People v. Kittles CA1/1

Filed 3/9/23 P. v. Kittles CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A165979

v. (San Francisco City DESHUN KITTLES, & County Super. Ct. Nos. CRI- Defendant and Appellant. 15025600, SCN226942)

Defendant Deshun Kittles was convicted of attempted murder and related offenses. We previously affirmed his conviction but remanded to allow the trial court to exercise its sentencing discretion under newly amended Penal Code section 654 and to correct the abstract of judgment.1 On remand, the trial court struck the enhancement for a prior serious felony conviction, reducing his total sentence from 26 years to 21 years. Defendant maintains the trial court abused its discretion when resentencing him by not choosing an offense other than attempted murder as the principal term in order to further reduce his term. The parties agree the trial court did not correct the abstract of judgment.

We take judicial notice of our opinion in People v. Kittles (Dec. 10, 1

2020, A154955) [nonpub. opn.] (Kittles I). (Evid Code, § 452, subd. (a).)

1

We remand in order for the trial court to correct the abstract of judgment. In all other respects, we affirm the judgment. BACKGROUND We recount the procedural background set forth in our prior opinion to the extent necessary to address the issue on appeal. “The San Francisco District Attorney charged defendant with attempted premeditated murder (Pen. Code, § 187, subd. (a), count 1),2 assault with a firearm (§ 245, subd. (b), count 2), discharging a firearm in a grossly negligent manner (§ 246.3, subd. (a), count 3), possession of a firearm after being convicted of a felony (§ 29800, subd. (a)(1), count 4), possession of a firearm after being convicted of a violent felony (§ 29900, subd. (a)(1), count 5), and resisting a peace officer (§ 148, subd. (a)(1), count 6). As to enhancing allegations, the district attorney alleged personal discharge of a firearm causing great bodily injury (§ 12022.53, subd. (d), count 1), personal use of a firearm and personally inflicting great bodily injury (§ 12022.5, subd. (a), 12022.7, subd. (a), counts 1, 2, 3), prior serious felony strike (§ 667, subds. (d), (e)), and prior prison terms for possession of a firearm by a felon and robbery (§ 667.5, subd. (b)). Count 4 and the prior prison term allegations were subsequently dismissed. The firearm enhancement as to count 3 was not submitted to the jury. “The jury found the attempted murder was not willful, deliberate, or premeditated, and found defendant guilty of the remaining counts and enhancement allegations true. The trial court sentenced defendant to a total prison term of 26 years (imposing the midterm of seven years for attempted murder, doubled based on his previous strike, plus seven years for the