People v. Kelly

240 Cal. Rptr. 3d 21, 28 Cal. App. 5th 886
CourtCalifornia Court of Appeal, 5th District
DecidedNovember 1, 2018
DocketF071934
StatusPublished
Cited by32 cases

This text of 240 Cal. Rptr. 3d 21 (People v. Kelly) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Kelly, 240 Cal. Rptr. 3d 21, 28 Cal. App. 5th 886 (Cal. Ct. App. 2018).

Opinion

MEEHAN, J.

*891INTRODUCTION

A jury convicted appellant Kevin Leroy Kelly of six counts: reckless evasion of a pursuing peace officer ( Veh. Code, § 2800.2 (count 1) ); transportation or sale of methamphetamine ( Health & Saf. Code, § 11379, subd. (a) (count 2) ); possession of methamphetamine for purpose of sale ( Health & Saf. Code, § 11378 (count 3) ); possession of a firearm by a felon ( Pen. Code, § 29800, subd. (a)(1) (count 4) );1 possession of ammunition by a felon (§ 30305, subd. (a)(1) (count 5) ); and possession of a short-barreled rifle or short-barreled shotgun (§ 33215 (count 6) ). The court also found true a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d) ) and nine prior prison term enhancements (§ 667.5, subd. (b) ) (section 667.5(b) ).

On July 8, 2015, the court sentenced Kelly to prison for the determinate term of 18 years 8 months based on the following: the upper term of four years for transportation of methamphetamine, doubled to eight years under the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d) ); plus eight months (one-third the midterm of two years) for reckless evasion, doubled to 16 months under the Three Strikes law; plus eight months *892(one-third the midterm of two years) for being a felon *25in possession of a firearm, doubled to 16 months under the Three Strikes law; plus eight years for eight prior prison term enhancements.2 The terms imposed on counts 3, 5, and 6 were stayed under section 654.

Kelly presents four claims on appeal. Kelly first argues that two of the prior prison term enhancements under section 667.5(b) were imposed erroneously because the convictions on which they were based had been reclassified from felonies to misdemeanors pursuant to Proposition 47 before sentencing. Kelly argues that since they were to be considered misdemeanors for all purposes, the convictions no longer met the elements required for enhancements under section 667.5(b). Respondent concedes, and we agree.

The remaining prior prison term enhancements were based on prior felonies that have not been reclassified. Of those, six of the felonies occurred before the two felonies that were redesignated under Proposition 47, and one occurred after the redesignated felonies and before the convictions challenged in this appeal.3 Kelly argues that the enhancements based on the six earlier prison terms should be reversed as well. He contends that the "washout" provision of section 667.5(b) applies because the reduction of the two felonies to misdemeanors under Proposition 47 resulted in a period exceeding five years during which he was free of felony convictions. As such, he contends that the six prior prison terms occurring before that five-year period should wash out and the enhancements based on those prison terms be stricken. Respondent argues that the washout provision does not apply because prior prison terms wash out only if there is an unbroken five-year period during which a defendant is free of both felony offenses and custody in prison. Respondent maintains that the reclassification of two of Kelly's convictions as misdemeanors did not alter the fact that he served prison terms for those convictions and, as a result, the requirements of the washout provision were not satisfied.

We agree with Kelly on this point as well. The intent of Proposition 47 is to reduce punishments that were a result of felony convictions reduced under its provisions. ( People v. Buycks (2018) 5 Cal.5th 857, 876, 236 Cal.Rptr.3d 84, 422 P.3d 531 ( Buycks ) [Proposition 47 intended to have an "ameliorative effect on any new collateral consequence imposed after a successful Proposition 47 *893resentencing"].) Interpreting the washout provision to disregard prison terms for reduced convictions honors the intent of the voters in enacting Proposition 47.

Kelly next claims that the court erred in applying a prior prison term enhancement based on a prior conviction from April 1992. Having found the washout provision applies to that prior conviction, we find the claim moot.

Kelly, in his last two claims, argues that the court should have stayed rather than imposed punishment on the reckless evasion charge under section 654, and directs the court to independently review a sealed transcript of an in camera hearing to determine whether the identity of a confidential informant should be disclosed. We find Kelly is not entitled to relief on either of these claims.

*26For the reasons set forth below, we will order all but one of the enhancements under section 667.5(b), stricken and remand for resentencing.

Factual History

On February 12, 2015, two sheriff's deputies were on patrol in Kern County in an unmarked vehicle. While stopped at a traffic light, the deputies noticed a red Toyota Corolla with a defective brake light and expired registration. The deputies activated their vehicle's lights and siren to initiate a traffic stop. The Toyota fled and the deputies pursued. During the pursuit, the driver of the Toyota committed several traffic violations, including running a red light and two stop signs, and driving on the opposite side of the road. The pursuit ended when the Corolla lost control and collided into a parked truck.

The deputies approached the car, and saw Kelly sprawled across the front seats. On the driver's side floorboard, the deputies saw and recovered a large amount of a white, crystal-like substance, later determined to be about 105 grams of methamphetamine. The deputies found a cell phone on the passenger seat, and a police scanner on the passenger side floorboard. The deputies searched Kelly, recovering $274, another cell phone, and a padlock key. The arresting deputy, testifying as an expert on narcotics use and sale, opined that Kelly possessed the methamphetamine for the purpose of sale.

Later that night, the sheriff's deputies went to a storage facility. There, the deputies used the key found on Kelly's person to open a storage unit at the *894facility. Inside the unit, the deputies found paperwork and photo identification for Kelly, a box containing live shotgun shells, and a single barrel sawed-off shotgun.

Procedural History

After a jury trial, Kelly was convicted of all six counts. The court proceeded to hold a trial on nine prior conviction allegations and found them all true. Kelly moved to have the oldest felony conviction stricken under People v. Superior Court (Romero ) (1996) 13 Cal.4th 497

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Bluebook (online)
240 Cal. Rptr. 3d 21, 28 Cal. App. 5th 886, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-kelly-calctapp5d-2018.