People v. Smith CA4/1

Filed 12/13/23 P. v. Smith CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D081772

Plaintiff and Respondent,

v. (Super. Ct. No. FSB1301449)

KEISHA RENEE SMITH,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Bernardino, Hon. Alexander R. Martinez, Judge. Affirmed.

Patricia L. Brisbois, under appointment by the Court of Appeal, for the Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Garland, Assistant Attorney General, Alan L. Amann and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.

MEMORANDUM OPINION1 Kiesha Renee Smith (and her codefendant Michael Mitchell) was convicted in 2014 of first degree special circumstance murder for the 2005 killing of a 90-year old woman during a home invasion robbery. This court reversed Smith’s conviction for instructional error and remanded for a new trial. (People v. Smith (2017) 12 Cal.App.5th 766.) On remand, Smith pled no contest pursuant to People v. West (1970) 3 Cal.3d 595 to voluntary manslaughter (§ 192(a)) during which she personally used a firearm (§ 12022.5(a)); first degree home invasion robbery (§ 213(a)(1)(A)); first degree residential burglary (§ 459); and grand theft (§ 487(a)). Pursuant to the negotiated plea, she was sentenced to 25 years in state prison. In January 2022, Smith filed a petition for resentencing under section

1172.6.2 The trial court denied the petition, finding Smith failed to establish a prima facie case for relief. It reasoned that because Smith entered her plea in January 2020⎯“an entire year after” Penal Code section 1172.6 was enacted⎯she could not establish the requirement under subdivision (a)(3) of the statute that “she could not presently be convicted of murder . . . with the legal changes that went into effect on January [1], 2029.” Smith contends this was error. She argues the fact she entered her plea after the effective date of the statute does not make her ineligible for