People v. Kelly CA5

Filed 6/12/15 P. v. Kelly CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE, F067082 Plaintiff and Respondent, (Super. Ct. No. F97591276-1) v.

WADE EDWARD KELLY, OPINION Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Fresno County. Jonathan B. Conklin, Judge. John Hargreaves, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Max Feinstat, Deputy Attorneys General, for Plaintiff and Respondent.

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On October 15, 1997, appellant, Wade Edward Kelly, pled guilty to driving under the influence causing bodily injury (Veh. Code, § 23153, subd. (a)), and admitted he personally inflicted great bodily injury upon one victim (Pen. Code,1 § 12022.7) and caused bodily injury to two victims (former Veh. Code, § 23182). He also admitted having suffered two prior prison terms (§ 667.5, subd. (b)) and two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(e)). Pursuant to the plea agreement, the trial court struck all of the enhancement allegations, except for those based on Kelly’s two prior strike convictions, and sentenced him, as a third strike offender, to an indeterminate term of 25 years to life. On November 6, 2012, the electorate passed Proposition 36, amending the three strikes law to permit the recall of some sentences imposed under the three strikes law pursuant to the newly added section 1170.126. On March 28, 2013, Kelly filed a petition to recall his sentence pursuant to section 1170.126. On April 9, 2013, the trial court issued an order summarily denying the petition, finding Kelly statutorily ineligible for resentencing. The court explained that, due to Kelly’s admission of the great bodily injury enhancement, his commitment offense of driving under the influence causing bodily injury qualified as a “violent felony” under section 667.5, subdivision (c)(8), and a “serious” felony under section 1192.7, subdivision (c)(8). The court observed, although “the enhancement was stricken by the sentencing court, the fact of the admission remains.” On appeal, Kelly contends the trial court erred in relying on the stricken enhancement to find him ineligible for resentencing under section 1170.126.2 We disagree and affirm the trial court’s order.