People v. Kittles CA1/1

Filed 3/9/23 P. v. Kittles CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent, A165979
v. (San Francisco City
DESHUN KITTLES, & County
Super. Ct. Nos. CRI-
Defendant and Appellant.
15025600, SCN226942)
Defendant Deshun Kittles was convicted of attempted murder and
related offenses. We previously affirmed his conviction but remanded to
allow the trial court to exercise its sentencing discretion under newly
amended Penal Code section 654 and to correct the abstract of judgment.1
On remand, the trial court struck the enhancement for a prior serious felony
conviction, reducing his total sentence from 26 years to 21 years.
Defendant maintains the trial court abused its discretion when
resentencing him by not choosing an offense other than attempted murder as
the principal term in order to further reduce his term. The parties agree the
trial court did not correct the abstract of judgment.
We take judicial notice of our opinion in People v. Kittles (Dec. 10,
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2020, A154955) [nonpub. opn.] (Kittles I). (Evid Code, § 452, subd. (a).)
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We remand in order for the trial court to correct the abstract of
judgment. In all other respects, we affirm the judgment.
BACKGROUND
We recount the procedural background set forth in our prior opinion to
the extent necessary to address the issue on appeal.
“The San Francisco District Attorney charged defendant with
attempted premeditated murder (Pen. Code, § 187, subd. (a), count 1),2
assault with a firearm (§ 245, subd. (b), count 2), discharging a firearm in a
grossly negligent manner (§ 246.3, subd. (a), count 3), possession of a firearm
after being convicted of a felony (§ 29800, subd. (a)(1), count 4), possession of
a firearm after being convicted of a violent felony (§ 29900, subd. (a)(1), count
5), and resisting a peace officer (§ 148, subd. (a)(1), count 6). As to enhancing
allegations, the district attorney alleged personal discharge of a firearm
causing great bodily injury (§ 12022.53, subd. (d), count 1), personal use of a
firearm and personally inflicting great bodily injury (§ 12022.5, subd. (a),
12022.7, subd. (a), counts 1, 2, 3), prior serious felony strike (§ 667, subds. (d),
(e)), and prior prison terms for possession of a firearm by a felon and robbery
(§ 667.5, subd. (b)). Count 4 and the prior prison term allegations were
subsequently dismissed. The firearm enhancement as to count 3 was not
submitted to the jury.
“The jury found the attempted murder was not willful, deliberate, or
premeditated, and found defendant guilty of the remaining counts and
enhancement allegations true. The trial court sentenced defendant to a total
prison term of 26 years (imposing the midterm of seven years for attempted
murder, doubled based on his previous strike, plus seven years for the
2 “All further undesignated statutory references . . . are to the Penal
Code.”
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personal use of a firearm and great bodily injury enhancement under
§§ 12022.5, subd. (a) & 12022.7, subd. (a) and five years for the prior strike).
The court dismissed the section 12022.53, subdivision (d) finding and stayed
or ran concurrently the sentences on the remaining counts and allegations.”
(Kittles I, supra, A154955.)
In our first opinion, we observed “Defendant was convicted pursuant to
count 2 of violating section 245, subdivision (b), ‘assault with a semi-
automatic firearm.’ The abstract of judgment described the conviction in
abbreviated fashion as ‘aslt w/semi/auto rifle on pers.’ Both parties agree, as
do we, that the abstract of judgment should be corrected to accurately
describe the conviction.” (Kittles I, supra, A154955.) Accordingly, we
remanded the matter “to allow the trial court to exercise the discretion
afforded it under Senate Bill No. 1393 (2017–2018 Reg. Sess.) and to issue an
amended abstract of judgment to indicate defendant was convicted in count 2
of violating section 245, subdivision (b), assault with a semi-automatic
firearm (and to also indicate any change in sentence if the court so exercises
its discretion under Sen. Bill No. 1393 (2017–2018 Reg. Sess.)).” (Ibid.)
On remand, in addition to requesting that the court strike the
enhancement for his serious felony conviction, defendant sought
reconsideration of his entire sentence based on recent changes to sentencing
laws and “previously unpresented information about the conduct underlying
[his] strike prior” and his efforts towards rehabilitation.
The trial court struck the section 667, subdivision (a)(1) five-year
enhancement, and otherwise reimposed the previous sentence, for an
aggregate term of 21 years. The abstract of judgment was not corrected.
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DISCUSSION
Defendant maintains the trial court erred in not choosing an offense
other than attempted murder as the principal term when it resentenced him.
He asserts the court abused its discretion under amended section 654 by not
“impos[ing] sentence on a lesser offense and stay[ing] sentence on the count
with the greatest term of imprisonment.”
Amended section 654 provides in part: “An act or omission that is
punishable in different ways by different provisions of law may be punished
under either of such provisions, but in no case shall the act or omission be
punished under more than one provision. An acquittal or conviction and
sentence under any one bars a prosecution for the same act or omission under
any other.” (§ 654, subd. (a).) At the time of defendant’s initial sentencing,
“section 654, former subdivision (a) required that a defendant who committed
an act punishable by two or more provisions of law be punished under the
provision that provided for the longest possible term. (Stats. 1997, ch. 410,
§ 1.) Effective January 1, 2022, Assembly Bill 518 amended section 654,
subdivision (a) to permit an act or omission punishable under two or more
provisions of law to ‘be punished under either of such provisions.’ (§ 654,
subd. (a); Stats. 2021, ch. 441, § 1.) Thus, under newly amended section 654,
a trial court is no longer required to punish under the longest possible term of
imprisonment when multiple offenses are based on the same act or omission.
(People v. Mani (2022) 74 Cal.App.5th 343, 379. . . .) Section 654 ‘now
provides the trial court with discretion to impose and execute the sentence of
either term, which could result in the trial court imposing and executing the
shorter sentence rather than the longer sentence.’ (Mani, supra, at p. 379.)”
(People v. White (2022) 86 Cal.App.5th 1229, 1236.)
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“The burden is on the party attacking the sentence to clearly show that
the sentencing decision was irrational or arbitrary. [Citation.] In the
absence of such a showing, the trial court is presumed to have acted to
achieve legitimate sentencing objectives, and its discretionary determination
to impose a particular sentence will not be set aside on review.” (People v.
Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.)
Defendant asserts the “present trend in felony sentencing in California
is to acknowledge more factors which mitigate against the extremely long
sentences which have been in vogue for about the last three decades.” He
maintains his sentencing memo “set forth a compelling case for a shorter
sentence, outlining his personal history and the significant efforts he has
made through classes and programs toward his rehabilitation and the
reduction of the risk of future crime.”
Defendant’s sentencing memo indicated he had earned his high school
diploma while in county jail and had “[a]ttended” or “[p]articipated” in
certain classes and lecture series. He also completed a 98-hour parenting
class and a 96-hour anger management class. Additionally, he participated
in the “Mentoring Men’s Movement,” a “community re-entry organization
focusing on providing positive male role models. . . .”
At the resentencing hearing the court indicated it had considered
defendant’s “conduct while incarcerated,” the new statute, and “thought long
and hard about this.” The court exercised its discretion “to not impose the
five-year sentencing prior so that his total aggregate sentence would then be
reduced from 26 years to 21 years. All other sentencing calculations would be
the same.”
The court addressed defendant’s claim that he should receive “a term
lower than 20 years pursuant to Penal Code section 1385 both based on his
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programming efforts as well as the age he was at the time that he suffered
his strike convictions.” The court specifically recognized since “the time that
the court initially pronounced judgment[,] the legislature has made a number
of changes to the criminal law in California. Most notably [section] 1385 has
been amended to state clear legislative preference for not imposing more than
one enhancement and for not exceeding 20 years. [¶] There is an important
proviso, however, in that if the court believes that the public safety as defined
by the statute would be compromised, judges on sentencing have the
discretion to go past 20. . . .” The court considered both the “new statute
[and] . . . a number of other provisions where the legislature has clearly
indicated that it’s overall goal is to reduce the length of many sentences while
giving judges the opportunity to depart upwards . . . [and] decline to adopt
this 20-year limitation based on public safety.”
The court further explained “I think that releasing him sooner than
what I’ve stated . . . wouldn’t be in the public safety, which is a physical
injury or other serious danger to others based on his demonstrated conduct
that came out during trial. [¶] Not only shooting the gentleman several
times, but by the fact that there were unexpended cartridges in the street
that had firing pin impressions upon them that indicated an attempt to fire
even more shots.”
In sum, the trial court carefully considered the facts in this case and
the “present trend in felony sentencing in California,” and struck the
enhancement for a prior serious felony, reducing defendant’s sentence by five
years. Defendant has failed to show the trial court abused its discretion by
not further reducing his sentence.
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DISPOSITION
The matter is remanded, and the trial court is ordered to correct the
abstract of judgment to reflect that pursuant to count 2 defendant was
convicted of assault with a semi-automatic firearm, and to forward a
corrected copy of the abstract of judgment to the Department of Corrections
and Rehabilitation. In all other respects, the judgment is affirmed.
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_________________________
Banke, J.
We concur:
_________________________
Humes, P.J.
_________________________
Swope, J.*
**Judge of the San Mateo County Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
A165979, People v. Kittles
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