People v. Curry CA3

Filed 11/22/22 P. v. Curry CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C095569

Plaintiff and Respondent, (Super. Ct. No. 12F00909)

v.

JAZZ KAYLENN CURRY,

Defendant and Appellant.

Defendant Jazz Kaylenn Curry contends the trial court, in resentencing him following his direct appeal, failed to consider ameliorative sentencing legislation that became operative shortly before the resentencing hearing. The People argue defendant forfeited these contentions and, in any event, the errors were harmless. We will reach the merits and conclude remand is warranted. We also conclude that, on remand, defendant’s

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booking and classification fees must be stricken and his custody credits recalculated. We otherwise affirm the judgment. BACKGROUND Defendant and a friend robbed a drug dealer at gunpoint. During the robbery, defendant shot the dealer three times, killing him. In 2015, a jury found defendant guilty of first degree murder (Pen. Code, § 187, subd. (a))1 and second degree robbery (§ 211). The jury also found true the robbery-murder special-circumstance allegation (§ 190.2, subd. (a)(17)(A)) and the allegation that defendant personally and intentionally discharged a firearm that proximately caused the death of a person (§ 12022.53, subd. (d)). The trial court sentenced him to life without the possibility of parole for murder, plus a consecutive term of 25 years to life for the firearm enhancement and a stayed sentence for the robbery offense. The court imposed certain fines and fees, including a $340 booking fee and a $62 classification fee pursuant to former Government Code section 29550.2. The court granted defendant 1,124 days of custody credits. In 2020, this court affirmed defendant’s convictions but remanded the matter for the trial court to consider striking or dismissing the firearm enhancement pursuant to Senate Bill No. 620 (2017-2018 Reg. Sess.) (Stats. 2017, ch. 682) and to correct the robbery sentence by selecting, imposing, and staying a full term (People v. Curry (Dec. 16, 2020, C078652) [nonpub. opn.]). Defendant’s resentencing brief, submitted in October 2021, noted that when defendant committed the offense, he was 20 years old and had one prior adult conviction for firearm possession. He also had a tumultuous childhood and was shot six times when he was 18 years old, causing him to suffer posttraumatic stress disorder. The prosecution’s rebuttal, submitted in November 2021, noted the 2015 presentencing