People v. Kelly

Filed 3/6/19 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B291220 (Super. Ct. No. 2017008225) Plaintiff and Respondent, (Ventura County)

v.

GLORIA NYLEEN KELLY,

Defendant and Appellant.

Gloria Nyleen Kelly, a three strikes offender, stipulated to an 18-year state prison sentence in exchange for a plea to first degree burglary of a residence with another person present (Pen. 1 Code, §§ 459, 667.5, subd. (c)(21)) plus enhancements. Appellant admitted a prior strike conviction (§§ 667, subds. (c)(2) & (e)(2), 1170.12, subds. (a)(2) & (c)(2)), two prior serious felony convictions (§ 667, subd. (a)(1)), and seven prior prison term enhancements (§ 667.5, subd. (b)). The trial court sentenced appellant to four years on the burglary count, doubled to eight years for the prior strike, plus 10 years on the two five-year prior

All statutory references are to the Penal Code unless 1

otherwise stated.

serious felony enhancements (§ 667, subd. (a)(1)). The prior prison term enhancements were stricken in the interests of justice. (§ 1385.) She purports to appeal, contending that the matter must be remanded to the trial court to exercise its discretion to strike the five-year serious felony conviction enhancements pursuant to recently enacted Senate Bill 1393. (Legis. Counsel’s Dig., Sen. Bill No. 1393 (2017-2018 Reg. Sess.) Stats. 2018, ch. 1013, §§ 1, 2.) We dismiss the appeal because appellant failed to obtain a certificate of probable cause. (§ 1237.5; People v. Panizzon (1996) 13 Cal.4th 68, 89-90 & fn. 15 (Panizzon).) Procedural History In May 2018, appellant waived preliminary hearing and entered in to a negotiated disposition for an 18-year sentence in case no. 2017008225 and a 16-month consecutive sentence in case no. 2016027319 for driving under the influence of alcohol with injury to a person. (Veh. Code, § 23153, subd. (e).) It was a “package deal,” disposing of two cases. The written plea agreement stated that the prosecution agrees to “18 years consec to 1 yr 4 mos in [case no.] 2016027319[. The prosecution] will strike two strikes for purposes of sentencing only. [Section 667, subdivision] (a) priors will still be imposed.” When the change of plea was entered, appellant’s trial attorney agreed that a sentence would be 18 years in case no. 2017008225. S.B. 1393 On September 30, 2018, the Governor signed S.B. 1393 which, effective January 1, 2019, amends sections 667 and 1385 to give trial courts the discretion to dismiss five-year sentence enhancements under section 667, subdivision (a). (See Legis. Counsel’s Dig. to S.B. 1393 [“This bill would delete the restriction