Filed 6/12/15 P. v. Kelly CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F067082
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. F97591276-1)
                   v.

WADE EDWARD KELLY,                                                                       OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Fresno County. Jonathan B.
Conklin, Judge.
         John Hargreaves, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Max
Feinstat, Deputy Attorneys General, for Plaintiff and Respondent.


                                                        -ooOoo-
        On October 15, 1997, appellant, Wade Edward Kelly, pled guilty to driving under
the influence causing bodily injury (Veh. Code, § 23153, subd. (a)), and admitted he
personally inflicted great bodily injury upon one victim (Pen. Code,1 § 12022.7) and
caused bodily injury to two victims (former Veh. Code, § 23182). He also admitted
having suffered two prior prison terms (§ 667.5, subd. (b)) and two prior strike
convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(e)). Pursuant to the plea
agreement, the trial court struck all of the enhancement allegations, except for those
based on Kelly’s two prior strike convictions, and sentenced him, as a third strike
offender, to an indeterminate term of 25 years to life.
        On November 6, 2012, the electorate passed Proposition 36, amending the three
strikes law to permit the recall of some sentences imposed under the three strikes law
pursuant to the newly added section 1170.126. On March 28, 2013, Kelly filed a petition
to recall his sentence pursuant to section 1170.126. On April 9, 2013, the trial court
issued an order summarily denying the petition, finding Kelly statutorily ineligible for
resentencing. The court explained that, due to Kelly’s admission of the great bodily
injury enhancement, his commitment offense of driving under the influence causing
bodily injury qualified as a “violent felony” under section 667.5, subdivision (c)(8), and a
“serious” felony under section 1192.7, subdivision (c)(8). The court observed, although
“the enhancement was stricken by the sentencing court, the fact of the admission
remains.” On appeal, Kelly contends the trial court erred in relying on the stricken
enhancement to find him ineligible for resentencing under section 1170.126.2 We
disagree and affirm the trial court’s order.




1       Further statutory references are to the Penal Code unless otherwise indicated.
2       We agree the claim is appealable. (Teal v. Superior Court (2014) 60 Cal.4th 595, 598-
601.)

                                               2.
                                       DISCUSSION
       “On November 6, 2012, the voters approved Proposition 36, the Three Strikes
Reform Act of 2012, which amended sections 667 and 1170.12 and added section
1170.126 (hereafter the Act). The Act changes the requirements for sentencing a third
strike offender to an indeterminate term of 25 years to life imprisonment. Under the
original version of the three strikes law a recidivist with two or more prior strikes who is
convicted of any new felony is subject to an indeterminate life sentence. The Act diluted
the three strikes law by reserving the life sentence for cases where the current crime is a
serious or violent felony or the prosecution has pled and proved an enumerated
disqualifying factor. In all other cases, the recidivist will be sentenced as a second strike
offender.” (People v. Yearwood (2013) 213 Cal.App.4th 161, 167-168.)
       In addition to reforming three strikes sentencing for defendants convicted after the
effective date of the Act, the Act also added section 1170.126 to provide for retroactive
reform of existing three strikes sentences imposed before the effective date of the Act.
Section 1170.126 “provides a means whereby, under three specified eligibility criteria
and subject to certain disqualifying exceptions or exclusions, a prisoner currently serving
a sentence of 25 years to life under the pre-Proposition 36 version of the Three Strikes
law for a third felony conviction that was not a serious or violent felony may be eligible
for resentencing as if he or she only had one prior serious or violent felony conviction.”
(People v. White (2014) 223 Cal.App.4th 512, 517 (White), review den. Apr. 30, 2014,
S217030.)
       Kelly contends the trial court erred in finding him ineligible for resentencing under
the Act because his current felony of driving under the influence causing bodily injury is
not serious or violent. While acknowledging this offense “would constitute a serious or
violent felony … if the enhancement for infliction of great bodily [injury] is included,”
Kelly notes the enhancement was stricken in this case and argues that nothing in the plain
language of section 1170.126 permitted the court to rely on a stricken enhancement to

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find him ineligible for resentencing. He also notes the absence of “published decisions
analyzing the situation where a previously dismissed enhancement was used to find an
inmate ineligible for resentencing under Proposition 36.”
          Since the completion of briefing in this case, however, a number of decisions have
been published addressing analogous situations. Thus, in People v. Quinones (2014) 228
Cal.App.4th 1040, 1042 (Quinones) (review den. Nov. 12, 2014, S221336), the court
concluded that “an arming enhancement—found true by the jury but dismissed for
sentencing purposes at [the defendant’s] original 1996 sentencing hearing—may be used
to disqualify him for resentencing under Proposition 36.”
          In Quinones, a jury convicted the defendant of two counts of possession for sale of
heroin, one count of transportation of a controlled substance, and possession by a
convicted felon of a firearm, and found he was personally armed with a firearm during
the drug offenses, and had two prior strike convictions. (Quinones, supra, 228
Cal.App.4th at p. 1042.) At sentencing, the court “struck the arming allegation ‘at this
time as being unnecessary’ but imposed a sentence on the felon-in-possession charge,
noting ‘this was a pistol in this case, which was in his possession at the time’ of the drug
offenses.” (Ibid.) The court then sentenced the defendant to a term of 75 years to life.
(Ibid.)
          The defendant filed a petition to recall his sentence under the Act, asserting his
current felonies were not serious or violent. (Quinones, supra, 228 Cal.App.4th at
p. 1042.) Because the sentencing court had “‘struck the enhancement allegations
completely’”, the defendant posited that “the arming allegation was not part of his record
of conviction and he was eligible under the Act.” (Ibid.) In opposition, the People
argued “the arming allegation had been found true beyond a reasonable doubt by the jury,
and had been stricken for sentencing purposes only, and therefore under the Act it
disqualified defendant from relief.” (Id. at p. 1042, fn. omitted.) The trial court denied
the defendant’s petition for resentencing, “finding defendant ineligible under the Act

                                                4.
because he possessed a firearm during the current offenses, notwithstanding that the
sentencing judge struck the arming enhancement at defendant’s 1996 sentencing.” (Id. at
p. 1043.)
       The Quinones court concluded that the trial court correctly found the defendant
was ineligible for resentencing based on the court’s determination that “the current
offense fell within the bar of section 667, subdivision (e)(2)(C)(iii), and section 1170.12,
subd. (c)(2)(C)(iii), each of which describes the circumstance where ‘[d]uring the
commission of the current offense, the defendant … was armed with a firearm or deadly
weapon .…’” (Quinones, supra, 228 Cal.App.4th at p. 1044.) The court explained:

       “The jury found beyond a reasonable doubt that defendant possessed a
       firearm during the commission of the offenses, and the sentencing judge
       suggested the same during the sentencing proceeding. In the course of
       declining to strike one or both strikes, the sentencing judge found defendant
       was sophisticated, given [inter alia] the amount of heroin he possessed and
       the fact that he possessed a pistol .… Thus, apparently given the lengthy
       three strikes sentence imposed … the sentencing judge found the additional
       term for the firearm enhancement to be ‘unnecessary’ and declined to
       impose it. But that does not change the fact that defendant was armed with
       a firearm during the commission of the current offenses. Nothing in the
       record on appeal suggests any legal infirmity with the enhancement, such as
       a lack of evidentiary support, or other legal defect.” (Id. at p. 1044,
       bracketed insertion added, italics added, fn. omitted.)
       In support of its conclusion that the defendant was ineligible for resentencing
under the Act because he was armed with a firearm during the commission of the current
offense, the court in Quinones replied partly on its earlier decision in People v. Shirley
(1993) 18 Cal.App.4th 40 (Shirley), authority cited by the trial court here in its order
finding Kelly ineligible for resentencing. As the Quinones court explained:

       “[Shirley] held that the fact a sentencing court struck an admitted great
       bodily injury enhancement at sentencing did not preclude a later court from
       considering that enhancement to conclude the prior conviction was serious
       within the meaning of section 667. [Citation.] ‘Though a court may strike
       an enhancement allegation in the interests of justice at sentencing when
       authorized to do so, the enhancement is not nullified by lenient acts of the


                                             5.
       sentencing court.’ [Citations.]” (Quinones, supra, 228 Cal.App.4th at
       pp. 1044-1045, italics added.)
In other words, “[t]he striking of a prior conviction does not operate to defeat the factual
finding of the truth of the prior conviction, instead, such act merely serves to prohibit a
certain purpose for which the prior conviction may be used.” (People v. Turner (1998)
67 Cal.App.4th 1258, 1268.)
       The Quinones court also found to be “closely on point” the recent decision of
White, supra, 223 Cal.App.4th 512, explaining:

              “White had been convicted of possession of a firearm by a felon,
       which is not a disqualifying fact, but no arming enhancement had even
       been charged against him. [Citation.] White held that it was appropriate in
       considering White’s recall petition for the trial court to consider the facts of
       the crime, as shown by the record, to disqualify him. [Citation.]

              “Here we have an even stronger case than White; not only do the
       facts show defendant was armed with a firearm, but the jury also found
       those facts beyond a reasonable doubt. That the sentencing judge found it
       ‘unnecessary’ to add punishment therefore is immaterial.” (Quinones,
       supra, 228 Cal.App.4th at p. 1045; see People v. Osuna (2014) 225
       Cal.App.4th 1020, 1026-1027, 1032, 1035, 1040 (review den. July 9, 2014,
       S218183) [where inmate’s current offense possession of firearm by felon,
       inmate disqualified from resentencing under Act if record of conviction
       shows inmate in fact armed with firearm during unlawful possession
       thereof; disqualifying factors need not be pled and proved to jury beyond
       reasonable doubt]; accord, People v. Elder (2014) 227 Cal.App.4th 1308,
       1312-1317 (review den. Oct. 15, 2014, S220788); People v. Brimmer
       (2014) 230 Cal.App.4th 782, 797-801, 805-806 (review den. Jan. 14, 2015,
       S222664).)
       In light of the foregoing authorities, we conclude the trial court here did not err in
denying Kelly’s petition to recall his sentence. Even though the great bodily injury
enhancement was stricken for sentencing purposes pursuant to Kelly’s plea agreement,
the undisputed fact remains that he personally inflicted great bodily injury upon one of
the victims in his commitment offense of driving under the influence causing bodily




                                              6.
injury.3 Therefore, the trial court properly concluded Kelly’s current felony was a
serious felony and he was ineligible for resentencing under section 1170.126.
                                        DISPOSITION
       The judgment is affirmed.

                                                                    _____________________
                                                                                 HILL, P. J.
WE CONCUR:


 _____________________
GOMES, J.


 _____________________
FRANSON, J.




3       During the proceedings below, the trial court made statements acknowledging the horrific
nature of the injuries underlying the great bodily enhancement admitted by Kelly and
emphasizing that the court’s approval of the plea agreement, including the striking of the
enhancement, was not for Kelly’s benefit, but for the benefit of the victim and the victim’s
family, to spare them from having to testify at trial and relive the traumatic accident caused by
Kelly’s intoxicated driving. In the pre-probation report, which the court read and considered
prior to sentencing, the circumstances of the accident were succinctly summarized thus: “Kelly
drove his vehicle under the influence of cocaine causing injury to three different persons
including the amputation of both legs of a 13-year-old male.” At sentencing, the court stated this
was “one of the worst cases I’ve ever seen” and “one of those cases where frankly the family
needed to be spared coming into trial.… And the striking of these enhancements made this case
go away as far as not needing to try it.”


                                                7.
