People v. Stelly CA1/3

Filed 9/19/23 P. v. Stelly CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE, Plaintiff and Respondent, A166281

v. (Contra Costa County Super. Ct. No. 05001711365) KAMANI STELLY, Defendant and Appellant.

Kamani Stelly was convicted by a jury of one count of discharging a firearm at an occupied motor vehicle (Pen. Code, § 246; all further statutory references are to this code) (count one) and four counts of attempted willful, deliberate, and premeditated murder of D.R., O.Q., John Doe 1, and John Doe 21 (§§ 187, subd. (a), 664 (counts two through five), together with related true findings that defendant personally and intentionally discharged a firearm causing great bodily injury to D.R. and A.W. (§ 12022.53, subd. (d); (§ 12022.53(d)). This court affirmed the convictions for discharging a firearm at an occupied motor vehicle (count one) and for the attempted murders of D.R., O.Q., and John Doe 1 (counts two, three, and four). (People v. Stelly

1 We use initials to protect the victims’ privacy interests. (Cal. Rules of Court, rule 8.90(b)(4).) Two victims were designated in the trial court as John Doe 1 and John Doe 2 as their identities were unknown.

1

(Aug. 16, 2021, A157142) [nonpub. opn.] at pp. 2, 20.) We reversed the conviction for the attempted murder of John Doe 2 (count five) based on insufficient evidence, dismissed that count, and remanded for resentencing. (Id. at p. 2.) In all other respects, we affirmed the judgment. (Ibid.) Defendant was initially sentenced to an aggregate term of 37 years to life, consisting in pertinent part, of five years (middle term) for discharging a firearm at an occupied motor vehicle, plus 25 years to life on the related firearm enhancement under section 12022.53(d) (count one), and a consecutive life term (minimum of 7 years before parole eligibility) for the attempted murder of D.R. (count two). Following our remittitur after defendant’s direct appeal, the Legislature amended certain Penal Code provisions applicable to sentencing. Specifically, Senate Bill No. 81 (2021–2022 Reg. Sess.) amended section 1385, “to specify mitigating circumstances that the trial court should consider when deciding whether to strike enhancements from a defendant’s sentence in the interest of justice. (Stats. 2021, ch. 721, § 1.)” (People v. Lipscomb (2022) 87 Cal.App.5th 9, 16.)2 Assembly Bill No. 518 (2021–2022 Reg. Sess.) amended section 654, subdivision (a), by removing the requirement that the trial court must impose the longest term among several possible prison terms imposed for a single act or occasion. (Stats. 2021, ch. 441, § 1.) At resentencing, defendant asserted that under People v. Tirado (2022) 12 Cal.5th 688 (Tirado), the court had the discretionary authority to strike the section 12022.53(d) enhancement related to count one, and, in its place, impose a shorter term under either section 12022.53, subdivision (b)