People v. Kelly CA3

Filed 2/16/23 P. v. Kelly CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C096079

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

v.

SEAN CLAUDE KELLY,

Defendant and Appellant.

This case returns to us from a previous remand for the trial court to consider defendant Sean Claude Kelly’s1 postsentencing conduct in prison in exercising its discretion as to whether to strike defendant’s firearm enhancements imposed under Penal Code2 section 12022.53, subdivision (d). (People v. Kelly (June 24, 2021, C092310)

1 Defendant’s name is listed several different ways throughout the record. While the notice of appeal filed in this case lists defendant’s name as “Sean Kelly,” the original abstract of judgment uses “Sean Claude Kelly”; we use the latter name in this opinion. 2 Undesignated section references are to the Penal Code.

1

[nonpub. opn.].) On remand, the trial court declined to dismiss or reduce defendant’s firearm enhancements. Defendant appeals and contends the trial court abused its discretion. We conclude the trial court properly exercised its discretion and affirm. FACTUAL AND PROCEDURAL BACKGROUND Due to the limited issue on appeal, we do not restate the underlying facts of the case at length. Suffice it to say “[a] jury found defendant guilty of second degree murder [citation] and attempted murder [citation]. [Citation.] The jury also found defendant personally discharged a firearm and personally discharged a firearm causing death.” (People v. Kelly (June 24, 2021, C092310) [nonpub. opn.], fn. omitted.) “The trial court imposed an aggregate indeterminate term of 72 years to life, consisting of a 15-year-to- life term for murder, along with a 25-year-to-life term for the firearm enhancement, and a seven-year term for attempted murder, along with a 25-year-to-life term for the firearm enhancement.” (People v. Kelly (July 16, 2019, C082063) [nonpub. opn.].) We remanded the case to the trial court to consider defendant’s postsentencing prison activities in exercising its discretion as to whether to strike defendant’s firearm enhancements pursuant to its authority under sections 12022.53, subdivision (h) and 1385. (People v. Kelly, supra, C092310.) On remand, defendant made three central arguments in support of his motion to strike the firearm enhancements. First, defendant argued the text of section 1385 indicates legislative intent to curtail lengthy sentences that result from sentencing enhancements. Second, defendant contended the Board of Parole Hearings protects public safety through parole suitability hearings, and the Board would require such a hearing before releasing defendant on parole. And third, defendant emphasized the following mitigating factors: he is not a gang member; he committed the crime in response to a threat; he was only 19 years old at the time of the crime; and postsentencing, he has continued his education, engaged in self-help courses and youth outreach, and completely abstained from violence.