People v. Kelly CA3

Filed 6/24/21 P. v. Kelly CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C092310

Plaintiff and Respondent, (Super. Ct. No. 14F02340)

v.

SEAN KELLY,

Defendant and Appellant.

We previously remanded this matter for the trial court to consider using its newfound discretion under Senate Bill No. 620 (2017-2018 Reg. Sess.) to strike firearm enhancements imposed on defendant. The trial court declined to do so, and defendant now argues the court erred because it mistakenly believed it was unable to consider evidence of his postsentencing conduct in prison. We will reverse the order and remand the matter for a new hearing.

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I. BACKGROUND A jury found defendant guilty of second degree murder (Pen. Code, § 187, subd. (a))1 and attempted murder (§§ 664, 187, subd. (a)). (People v. Kelly (July 16, 2019, C082063) [nonpub. opn.].)2 The jury also found defendant personally discharged a firearm and personally discharged a firearm causing death as to both counts. (§ 12022.53, subds. (c), (d).) (Kelly, supra, C082063.) We affirmed the convictions on appeal, but remanded the case so the trial court could consider whether to exercise its discretion to strike the firearm enhancements under the changes to section 12022.53, subdivision (h) by then-newly enacted Senate Bill No. 620. (Kelly, supra, C082063.) Both parties submitted briefing on remand. Defendant submitted a brief arguing the enhancements should be stricken, citing the mitigating circumstances of the crime itself, such as defendant’s age and character, lack of significant gang affiliation, and rehabilitative efforts in prison. In support of these arguments, defendant attached reference letters from friends and family, transcripts and certificates for coursework completed in prison, and laudatory chronos from his prison central file. The prosecution briefing discussed the facts of the crime and dismissed defendant’s prison documents because defendant may have also “had unfavorable activity since his incarceration.” The trial court held a hearing on the matter and began by stating it was not clear whether the court was supposed to consider only the “factors and facts as it had at the time of sentencing,” or whether it was permitted to consider defendant’s prison activities in exercising its discretion. The court heard argument from both parties. Citing People v. Pearson (2019) 38 Cal.App.5th 112, the court determined it could not consider evidence