People v. Barnette CA3

Filed 11/13/20 P. v. Barnette CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ---- THE PEOPLE,

Plaintiff and Respondent, C090884

v. (Super. Ct. No. 13F04035)

KENNETH WILSON BARNETTE,

Defendant and Appellant.

A jury found defendant Kenneth Wilson Barnette guilty of murder, shooting at an occupied vehicle, and attempted murder, and found true firearm discharge enhancement allegations. Defendant appealed and this court remanded for the trial court to consider its discretion to strike the firearm enhancements under Senate Bill No. 620 (2017-2018 Reg. Sess.). On remand, the trial court affirmed its original sentence and declined to strike the enhancements. Defendant now contends the trial court should have considered his post sentencing behavior, and the People agree. Because we agree with the parties on this point, we will remand the matter for resentencing. BACKGROUND We summarize the facts from our opinion in defendant’s prior appeal (People v. Barnette (Nov. 19, 2018, C079639) [nonpub. opn.] (Barnette)). “[Defendant] shot and killed Darryl Hill and shot at the vehicle occupied by some of Hill’s family members.”

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(Id. at p. 1) A jury found defendant guilty of murder (Pen. Code, § 187, subd. (a)),1 shooting at an occupied vehicle (§ 246), and attempted murder (§§ 187, subd. (a), 664). As to each of these three counts, the jury found true firearm discharge allegations (§ 12022.53, subd. (d)). (Barnette, at p. 5.) “The trial court sentenced defendant to a determinate five-year term (the middle term) for shooting at an occupied vehicle. It also sentenced defendant to an indeterminate term consisting of 25 years to life for the murder, life with the possibility of parole for attempted murder, and two terms of 25 years to life for the firearm discharge enhancements associated with the murder and attempted murder. Each of the terms were imposed consecutively, resulting in an aggregate term of five years, plus 82 years to life. The trial court concluded that the firearm-discharge enhancement was inapplicable to shooting at an occupied vehicle.” (Barnette, supra, C079639 at p. 5.) Defendant appealed and this court remanded the matter for the trial court to consider whether to strike one or both of the remaining section 12022.53 firearm discharge enhancements under Senate Bill No. 620 (Stats. 2017, ch. 682, § 2, effective January 1, 2018; § 12022.53, subd. (h)). (Barnette, supra, C079639 at pp. 25-26.) On remand, defendant argued the trial court should consider his post sentencing conduct and provided the trial court with his prison records showing his programming, work assignments, and educational efforts along with several letters attesting to his character while in prison. At the resentencing hearing, the trial court said it was “quite conflicted about the decision before it.” The trial court applauded defendant’s “efforts to rehabilitate himself” but determined it could not consider his post sentencing conduct. The trial court had researched Senate Bill No. 620 and found “the idea was not necessarily for the Court to consider the defendant’s post-conviction conduct” but instead