People v. Cry CA3

Filed 1/4/23 P. v. Cry CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C095493

Plaintiff and Respondent, (Super. Ct. No. 14F05904)

v.

KAVON WILLIAM CRY,

Defendant and Appellant.

This case comes to us for the second time on appeal. Defendant Kavon William Cry1 appeals the trial court’s order denying his request to strike a 25-year firearm enhancement under Penal Code2 section 12022.53, subdivision (d). Defendant contends the trial court abused its discretion in refusing to strike the term for the firearm enhancement because the court failed to properly consider relevant factors under

1 Defendant’s name is listed several different ways throughout the record. While the notice of appeal lists defendant’s name as “Kavon Cry,” the original abstract of judgment and the corrected minute orders use “Kavon William Cry”; we use the latter name in this opinion. 2 Undesignated section references are to the Penal Code.

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amended section 1385, which became effective on January 1, 2022. Defendant further contends remand is required so the trial court can consider additional mitigating factors included in the amended California Rules of Court. Finding defendant was not entitled to the application of amended section 1385, we affirm. FACTUAL AND PROCEDURAL BACKGROUND In October 2014, defendant and two codefendants were involved in a “drug rip gone bad,” during which defendant shot and killed victim Marquail H. Defendant was eighteen years old at the time. In 2016, a jury convicted defendant of murder and attempted robbery, finding true a robbery-murder special-circumstance allegation. The jury also found defendant personally discharged a firearm causing great bodily injury or death. The trial court sentenced defendant to life without the possibility of parole, with a consecutive term of 25 years to life for the firearm enhancement. In 2020, we affirmed defendant’s conviction but remanded the case to the trial court for resentencing, finding Senate Bill No. 620 (2017-2018 Reg. Sess.) (Stats. 2017, ch. 682, §§ 1-2) applied retroactively to defendant. Senate Bill No. 620, which became effective January 1, 2018, amended sections 12022.5 and 12022.53 to give trial courts discretion to strike firearm enhancements in the interest of justice. Because defendant’s sentence was not yet final, we remanded the matter so the court could consider whether to exercise its discretion to strike the firearm enhancement under the amended law. (See In re Estrada (1965) 63 Cal.2d 740, 745.) Following remand, defendant filed pleadings arguing his youthfulness and childhood trauma⸺including parental neglect and repeated exposure to violence⸺supported striking the enhancement. The prosecution filed responsive pleadings urging the trial court not to strike the enhancement, arguing the additional term corresponded with his involvement in the offense and the factors supporting the enhancement outweighed mitigating circumstances.