People v. Kelly CA3 ( 2023 )


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  • Filed 2/16/23 P. v. Kelly CA3
    NOT TO BE PUBLISHED
    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 This opinion has not been certified for publication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
    THIRD APPELLATE DISTRICT
    (Sacramento)
    ----
    THE PEOPLE,                                                                                C096079
    Plaintiff and Respondent,                                      (Super. Ct. No. 14F02340)
    v.
    SEAN CLAUDE KELLY,
    Defendant and Appellant.
    This case returns to us from a previous remand for the trial court to consider
    defendant Sean Claude Kelly’s1 postsentencing conduct in prison in exercising its
    discretion as to whether to strike defendant’s firearm enhancements imposed under Penal
    Code2 section 12022.53, subdivision (d). (People v. Kelly (June 24, 2021, C092310)
    1      Defendant’s name is listed several different ways throughout the record. While
    the notice of appeal filed in this case lists defendant’s name as “Sean Kelly,” the original
    abstract of judgment uses “Sean Claude Kelly”; we use the latter name in this opinion.
    2        Undesignated section references are to the Penal Code.
    1
    [nonpub. opn.].) On remand, the trial court declined to dismiss or reduce defendant’s
    firearm enhancements. Defendant appeals and contends the trial court abused its
    discretion. We conclude the trial court properly exercised its discretion and affirm.
    FACTUAL AND PROCEDURAL BACKGROUND
    Due to the limited issue on appeal, we do not restate the underlying facts of the
    case at length. Suffice it to say “[a] jury found defendant guilty of second degree murder
    [citation] and attempted murder [citation]. [Citation.] The jury also found defendant
    personally discharged a firearm and personally discharged a firearm causing death.”
    (People v. Kelly (June 24, 2021, C092310) [nonpub. opn.], fn. omitted.) “The trial court
    imposed an aggregate indeterminate term of 72 years to life, consisting of a 15-year-to-
    life term for murder, along with a 25-year-to-life term for the firearm enhancement, and a
    seven-year term for attempted murder, along with a 25-year-to-life term for the firearm
    enhancement.” (People v. Kelly (July 16, 2019, C082063) [nonpub. opn.].)
    We remanded the case to the trial court to consider defendant’s postsentencing
    prison activities in exercising its discretion as to whether to strike defendant’s firearm
    enhancements pursuant to its authority under sections 12022.53, subdivision (h) and
    1385. (People v. Kelly, supra, C092310.)
    On remand, defendant made three central arguments in support of his motion to
    strike the firearm enhancements. First, defendant argued the text of section 1385
    indicates legislative intent to curtail lengthy sentences that result from sentencing
    enhancements. Second, defendant contended the Board of Parole Hearings protects
    public safety through parole suitability hearings, and the Board would require such a
    hearing before releasing defendant on parole. And third, defendant emphasized the
    following mitigating factors: he is not a gang member; he committed the crime in
    response to a threat; he was only 19 years old at the time of the crime; and
    postsentencing, he has continued his education, engaged in self-help courses and youth
    outreach, and completely abstained from violence.
    2
    At the resentencing hearing, the trial court acknowledged receipt of a
    supplemental report from probation and evidence of defendant’s postsentencing conduct.
    The court explained its decision at length, beginning with an examination of defendant’s
    constitutional rights and society’s interests. The court found defendant’s due process
    rights had been met and the sentence imposed did not constitute cruel and unusual
    punishment. The court further found the sentence imposed protects society’s interest in
    punishing individuals who use a firearm in the commission of murder commensurate with
    the gravity of the offense.
    The trial court then analyzed the nature and circumstances of the crime and
    defendant’s involvement. The court described defendant’s crimes as “the most serious
    and violent felonies there are in our criminal justice and penal system.” Regarding the
    circumstances of the crime, the court noted it was “senseless,” “cold-blooded,” and “at
    close range,” and that defendant acted alone.
    Next, the trial court reviewed the relevant mitigating circumstances set forth in
    section 1385, former subdivision (c)(3),3 now subdivision (c)(2). The court found
    defendant did not submit any evidence to show imposition of the firearm enhancements
    would result in a discriminatory racial impact under section 1385, subdivision (c)(2)(A).
    As to section 1385, subdivision (c)(2)(B), the court acknowledged it gave great weight to
    the fact that multiple enhancements were alleged in this case. The trial court further
    found section 1385, subdivision (c)(2)(C) inapplicable to the case, as defendant’s
    sentence exceeded 20 years before imposition of the firearm enhancements.
    Notwithstanding this finding, the court afforded that mitigating circumstance great
    weight. Because defendant was 19 years old at the time of the crime, the court found
    3      Further references are to section 1385, subdivision (c)(2), the present identical but
    renumbered version of section 1385, former subdivision (c)(3). (Stats. 2022, ch. 58,
    § 15.)
    3
    section 1385, subdivision (c)(2)(G) inapplicable. The court noted defendant did not raise
    any of the remaining mitigating circumstances under section 1385, subdivision (c)(2) and
    found them inapplicable to the case.
    The trial court also reviewed defendant’s background, emphasizing the positive
    environment he grew up in and the array of opportunities he had available to him. The
    court found defendant chose a life of crime. The court analyzed defendant’s merits and
    demerits, noting defendant completed college courses and a variety of self-improvement
    programs. As to defendant’s demerits, the court noted insubordination, disobedience, and
    possession of contraband. On balance, the court found defendant continues to maintain a
    “criminal mind.”
    The trial court further considered aggravating and mitigating factors under
    California Rules of Court, rules 4.421 and 4.423. The court focused on the violent nature
    of defendant’s crimes and “[d]efendant’s continued choice to disregard societies [sic]
    rules.” The court closed with a consideration of defendant’s youth at the time of the
    crime, pursuant to California Rules of Court, rule 4.408. Despite defendant’s young age,
    the court found defendant had the maturity to comprehend the nature and gravity of the
    crime when he committed it. The court acknowledged it “considered [the matter]
    thoroughly and fully and [gave it] a lot of thought over a long period of time.”
    The trial court declined to strike or reduce defendant’s firearm enhancements.
    Defendant appeals.
    DISCUSSION
    Senate Bill No. 620 (2017-2018 Reg. Sess.) (Stats. 2017, ch. 682, § 2) amended
    section 12022.53, subdivision (h) to give trial courts discretion to “strike or dismiss” a
    section 12022.53 enhancement “in the interest of justice pursuant to [s]ection 1385.” Our
    Supreme Court in Tirado held that section 12022.53, subdivision (j) allows trial courts to
    “impose an enhancement under section 12022.53[, subdivisions ](b) or (c)” in place of a
    4
    dismissed section 12022.53, subdivision (d) enhancement. (People v. Tirado (2022)
    
    12 Cal.5th 688
    , 700.)
    Defendant contends the trial court abused its discretion by imposing an unduly
    harsh sentence that is contrary to the spirit of Senate Bill No. 620 and failing to strike a
    reasonable balance by imposing lesser firearm enhancements. We disagree.
    “We review a trial court’s order denying a motion to dismiss a sentence
    enhancement under section 1385 for abuse of discretion. [Citations.] A trial court may
    abuse its discretion where ‘its decision is so irrational or arbitrary that no reasonable
    person could agree with it’ . . . or ‘where the court considered impermissible factors in
    declining to dismiss.’ ” (Nazir v. Superior Court (2022) 
    79 Cal.App.5th 478
    , 490.) “In
    determining whether to dismiss a firearm enhancement under section . . . 12022.53, a
    court considers the same factors considered ‘ “when handing down a sentence in the first
    instance.” ’ [Citations.] These factors include those listed in California Rules of Court,
    rule 4.410 (general objectives in sentencing) [and] rules 4.421 and 4.423 (circumstances
    in aggravation and mitigation).” (Nazir, at p. 497.) Trial courts must also “consider and
    afford great weight” to the mitigating circumstances listed under section 1385,
    subdivision (c)(2) when a defendant offers evidence “that any of the mitigating
    circumstances . . . are present.” (§ 1385, subd. (c)(2).)
    Here, the record demonstrates the trial court properly exercised its discretion in
    declining to strike or reduce defendant’s firearm enhancements. The trial court presented
    a thorough analysis of factors relevant to defendant’s sentencing. The court found no due
    process violations nor cruel and unusual punishment and found the firearm enhancements
    served society’s interests. The court considered aggravating and mitigating
    circumstances including defendant’s background, the gravity and circumstances of the
    crime, and defendant’s postsentencing conduct.
    The trial court said defendant chose a life of crime and described the
    circumstances of the crime as “senseless,” “cold-blooded,” and “the most serious and
    5
    violent felonies there are in our criminal justice and penal system.” The court found
    defendant was mature enough at the time of the crime to understand the nature of his
    conduct, despite being 19 years old. The court commended defendant on his
    postsentencing accomplishments but ultimately found defendant is willing to break rules
    and continues to possess a “criminal mind.” The court said it gave great weight to the
    relevant mitigating circumstances under section 1385, subdivision (c)(2) and afforded
    extensive time and thought to its decision.
    The trial court’s considerations and findings demonstrate careful examination of
    appropriate factors under section 1385, subdivision (c)(2) and California Rules of Court,
    rules 4.410, 4.421, and 4.423. Absent a showing that the trial court’s “ ‘ “ ‘sentencing
    decision was irrational or arbitrary,’ ” ’ ” we presume the trial court “ ‘ “ ‘acted to
    achieve legitimate sentencing objectives.’ ” ’ ” (People v. Pearson (2019)
    
    38 Cal.App.5th 112
    , 116.) Defendant does not contend the trial court acted in an
    irrational or arbitrary manner, nor does defendant point to any consideration of
    impermissible factors. Instead, defendant asks us to reweigh the evidence in light of
    public policy. We cannot do so under an abuse of discretion standard of review.
    We conclude the trial court properly exercised its discretion in declining to strike
    or reduce defendant’s firearm enhancements.
    6
    DISPOSITION
    The order is affirmed.
    /s/
    ROBIE, Acting P. J.
    We concur:
    /s/
    DUARTE, J.
    /s/
    EARL, J.
    7
    

Document Info

Docket Number: C096079

Filed Date: 2/16/2023

Precedential Status: Non-Precedential

Modified Date: 2/16/2023