People v. Gleghorn CA2/6

Filed 3/18/24 P. v. Gleghorn CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B329646 (Super. Ct. No. 200213059) Plaintiff and Respondent, (Ventura County)

v.

KELSEY DRU GLEGHORN,

Defendant and Appellant.

Kelsey Dru Gleghorn appeals from an order denying a recommendation by the Secretary of the California Department of Corrections and Rehabilitation (CDCR) to recall his 2004 sentence and resentence him pursuant to Penal Code section 1172.1.1 We affirm the order.

1 CDCR recommended resentencing under then-section

1170.03. The Legislature renumbered section 1170.03 as 1172.1 effective June 30, 2022, with no changes in text. (Stats. 2022 ch. 58, § 9.) Unspecified statutory references are to the Penal Code.

FACTUAL AND PROCEDURAL BACKGROUND Appellant’s Sentence Appellant broke into the Simi Valley home of Jill and John Billinger in 2001. Jill confronted him and he fled with a twelve- pack of beer. John’s wallet and other personal items were later found in the backyard. Police quickly located appellant and eleven of the twelve beers at a neighbor’s house. A jury found him guilty of first degree burglary (§§ 459, 667.5, subd. (c)(21)). He admitted three prior serious felony convictions (§ 667, subd. (a)) and three prior convictions within the meaning of the Three Strikes Law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The trial court sentenced him to 25 years to life as a third strike plus 15 years for prior serious felony enhancement. CDCR Recommends Recall and Resentencing The CDCR Secretary’s recommendation letter concerned the 15-year enhancement. The letter noted that “courts are now authorized to exercise their discretion to strike prior serious felony convictions for purposes of enhancement . . . , or to strike the punishment for the enhancement . . . , pursuant to PC section 1385.” It recommended the court exercise this discretion to recall appellant’s sentence on his burglary conviction and resentence him pursuant to section 1172.1. Trial Court Denies Recall At hearing, appellant cited his age (60), length of incarceration (20 years), and poor health as among the reasons for striking the enhancement. He submitted certificates commending him for participating in prison art programs, a declaration describing a physical attack by a cell mate, and health records documenting his recent surgery to address painful back injuries. Prosecutors countered that appellant had a