People v. Keen CA6

Filed 11/18/21 P. v. Keen CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H049197 (Monterey County Plaintiff and Respondent, Super. Ct. No. SS152058A)

v.

BRANDON SCOTT KEEN,

Defendant and Appellant.

In 2019, a jury convicted defendant Brandon Scott Keen of murder, two counts of assault with a deadly weapon by a state prisoner, and custodial possession of a weapon based on violent attacks he perpetrated on fellow inmates at Salinas Valley State Prison in 2013 and 2016. Defendant admitted allegations that he had suffered certain prior convictions which were the basis for allegations that he had suffered three prior serious felony convictions and three prior strike convictions. The trial court sentenced defendant to 141 years to life in prison, including a consecutive 15 years (five years for each of the three prior serious felony enhancements) on each count. Defendant appealed, arguing that his admissions to the prior convictions were not voluntary and intelligent because he was not advised of his constitutional rights; he also raised sentencing challenges. This court agreed that the trial court did not advise defendant of any of his rights before accepting his admissions, necessitating reversal and remand for retrial of the prior conviction enhancement allegations. Our prior opinion People v. Keen (Sept. 25, 2020, H046654) [nonpub. opn.] (H046654), noted that the three

alleged prior serious felony convictions arose in just two separate cases such that they supported—at most—two, not three, five-year enhancements. On remand, a jury found true that defendant had suffered three prior serious felony convictions in two separate cases. At resentencing, the trial court again imposed a consecutive five years for each of the three prior serious felony enhancements on each count. Defendant appeals, arguing that the trial court erred in imposing three serious felony enhancements per count, as opposed to two, for the reasons set forth in our earlier opinion. The Attorney General concedes error. We accept the concession, strike one of the prior serious felony enhancements, modify the sentence, and affirm the judgment as modified. I. BACKGROUND1 Defendant killed his cellmate at Salinas Valley State Prison in October 2013. In August 2016, defendant slashed another inmate’s face with an inmate-manufactured weapon during a fight. The Monterey County District Attorney charged defendant with murder (Pen. Code, § 187, subd. (a), count 1)2 and assault with a deadly weapon by a state prisoner (§ 4501, subd. (a), count 2) based on the 2013 killing. The information alleged that defendant personally used a deadly weapon within the meaning of section 12022, subdivision (b)(1) in the commission of the murder and that he personally used a deadly weapon within the meaning of sections 667 and 1192.7 in the commission of the assault (§ 969f, subd. (a)). The information charged defendant with assault with a deadly