People v. Kelly CA4/3

Filed 3/14/24 P. v. Kelly CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G062071

v. (Super. Ct. No. 08NF4115)

JARRELL KELLY, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, Cheri T. Pham, Judge. Reversed and remanded with directions. Cliff Gardner, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson, Felicity Senoski, and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.

Convicted of special circumstances murder and attempted murder in 2012, Jarrell Kelly appeals the summary denial of his petition for resentencing under Penal 1 Code section 1172.6. The trial court determined appellant failed to make a prima facie showing for relief because the jury found he acted with the intent to kill. However, while this appeal was pending, our Supreme Court determined such a finding is insufficient, in and of itself, to bar resentencing. (People v. Curiel (2023) 15 Cal.5th 433 (Curiel).) In his supplemental briefing on Curiel, the Attorney General concedes appellant may be entitled to resentencing on his attempted murder conviction, and therefore reversal is required as to that offense. But he maintains the record of conviction precludes relief on his murder conviction. We cannot agree. Because the record does not conclusively establish appellant’s ineligibility for resentencing on that conviction, we reverse the trial court’s order in its entirety and remand for further proceedings. FACTUAL AND PROCEDURAL BACKGROUND In 2006, appellant and several other members of the Rollin’ 20’s gang robbed two men at gunpoint in the restroom of a Denny’s restaurant in Anaheim. During the robbery, Armand Jones, a friend of the victims, entered the restroom. Appellant’s group tried to rob him too, but he resisted and chased the robbers outside. Jones’ friend Ronnell Spencer joined the chase and fired several shots at the robbers in the parking lot. Appellant’s group fired back, wounding Spencer and killing Jones. Appellant was charged with murder, attempted murder, robbery and street terrorism, as well as vicariously discharging a firearm. (§§ 187, subd. (a), 664, 211, 186.22, subd. (a), 12022.53, subds. (c), (d) & (e)(1).) He also faced two special circumstances allegations, namely that Jones was killed during a robbery and to further the activities of a criminal street gang. (§ 190.2, subds. (a)(17)(A) & (a)(22).)