The People v. Kelley
| Decision Date | 08 May 2023 |
| Docket Number | F083017 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. DONOVAN JAWAUN KELLEY, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. No F20905507 Gary D. Hoff, Judge.
Spolin Law and Aaron Spolin for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary, and Ian Whitney Deputy Attorneys General, for Plaintiff and Respondent.
On March 18, 2021, a jury convicted defendant Donovan Jawaun Kelley of the murders of Brian M.[1] and Kiara A. (Pen. Code § 187, subd. (a); counts 1 &2)[2] and the attempted murders of Queshawn M., Nandi W., and Mary M. (§§ 187, subd. (a), 664; counts 3, 4, &5), and as to all offenses found true the enhancement he committed the crimes for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).[3] The trial court sentenced Kelley to a determinate term of 67 years, 6 months, with an indeterminate term of 149 years to life. This case proceeded to trial in February 2021, in the midst of the COVID-19 pandemic. At the time, the Fresno County Superior Court was operating under safety protocols which mandated, among other things, that all persons entering the courthouse wear face masks.
On appeal, Kelley contends: (1) the trial court committed structural, reversible error when it required him, the witnesses, and the jury to wear facial masks throughout the trial; (2) that if this court concludes his constitutional claims are forfeited based on his trial counsel failing to object to the masking requirement, defendant contends he received ineffective assistance of counsel because the masking requirement deprived him of his confrontation rights guaranteed by the Sixth Amendment; and (3) he is entitled to the benefit of newly enacted Assembly Bill No. 333 (2021-2022 Reg. Sess.) (AB 333), which amended the language of section 186.22, and added section 1109 requiring bifurcation of the trial of gang enhancements from that of the underlying offenses upon a defendant's request. The People concede the amendments to section 186.22 apply retroactively and that Kelley is entitled to a dismissal of the gang enhancements. However, the People argue newly added section 1109 does not apply retroactively and regardless, any failure by the trial court to bifurcate the gang enhancements was harmless based on the fact that "[m]uch, if not all of the gang evidence would have been admissible in relation to the substantive offenses."
Finally, Kelley contends newly enacted Senate Bill No. 81 (2021-2022 Reg. Sess.) (SB 81) applies retroactively to his case, and that he is entitled to the benefit of newly amended section 1385. The People argue this court need not address both SB 81's retroactivity and its applicability to this case because Kelley is already entitled to be resentenced.
We accept the People's concession, vacate the sentence, and remand for resentencing. We conclude AB 333 applies retroactively to the section 186.22 gang enhancements and therefore Kelley is entitled to a dismissal of these enhancements. However, the People are not foreclosed from retrying Kelley on the gang enhancements upon remand. Further, we do not address whether section 1109 applies retroactively, but conclude that any failure by the trial court to bifurcate the gang enhancements was harmless under the state law standard of People v. Watson (1956) 46 Cal.2d 818 (Watson). Lastly, because Kelley is entitled to resentencing, we do not address whether SB 81 applies retroactively to this case. The other claims lack merit. Accordingly, in all other respects, we affirm the judgment.
On August 20, 2020, the Fresno County District Attorney filed a dismissed and refiled felony complaint, which was later deemed to be an information, charging Kelley with the murders of Brian and Kiara (§ 187, subd. (a), counts 1 &2) with the enhancement he personally and intentionally discharged a firearm, which proximately caused great bodily injury or death to Brian and Kiara (§ 12022.53, subd. (d)), and the special circumstances there were multiple murders (§ 190.2, subd. (a)(3)) and the murders were intentional, and that he was an active participant in a criminal street gang (§ 190.2, subd. (a)(22)); the premediated attempted murders of Queshawn, Nandi, and Mary (§§ 187, subd. (a), 664, counts 3, 4, &5) with the enhancements he personally and intentionally discharged a firearm (§ 12022.53, subds. (c), (d));[4] and knowingly and maliciously dissuaded Alicia W. from testifying (§ 136.1, subd. (a)(1), count 6). As to all counts, it was further alleged Kelley committed the offenses in the furtherance of a criminal street gang (§ 186.22, subd. (b)(1)) and that he suffered a prior juvenile strike adjudication for robbery ((§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d), 211).
On March 18, 2021, a jury convicted Kelley of the second degree murders of Brian and Kiara (§ 187, subd. (a), counts 1 &2) and as to both counts found true the firearm enhancements (§ 12022.53, subd. (d)); the attempted murders of Queshawn, Nandi, and Mary (§§ 187, subd. (a), 664, counts 3, 4, &5) and found true the firearm enhancements (§ 12022.53, subds. (c), (d)); and dissuading Alicia from testifying as a witness (§ 136.1, subd. (a)(1), count 6) and found true the allegation the threat was made with an express or implicit threat of force or violence upon Alicia (§ 136.1, subd. (c)(1)). As to all counts, the jury found true the gang enhancements (§ 186.22, subd. (b)(1)). As to counts 1 and 2, the jury found defendant not guilty of first degree murder (§§ 187, subd. (a), 189, counts 1 &2)[5] and found not true the allegations the attempted murders were committed willfully, deliberately, and with premeditation (§§ 187, subd. (a), 189, 664, counts 3, 4, &5).[6] Kelley stipulated that he suffered a prior juvenile strike adjudication for robbery (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d), 211).
As to count 1, the trial court imposed an indeterminate term of 15 years to life, doubled to 30 years to life because of the prior strike adjudication, and imposed a consecutive indeterminate term of 25 years to life for the firearm enhancement (§ 12022.53, subd. (d)). As to count 2, the trial court imposed a consecutive indeterminate term of 15 years to life, doubled to 30 years to life because of the prior strike adjudication, imposed a consecutive indeterminate term of 25 years to life for the firearm enhancement (§ 12022.53, subd. (d)), and imposed an additional consecutive 10-year term for the gang enhancement (§ 186.22, subd. (b)(1)). As to count 3, the trial court imposed the upper term of nine years, doubled to 18 years because of the prior strike adjudication, to run consecutive to count 2, and imposed a consecutive indeterminate term of 25 years to life for the firearm enhancement (§ 12022.53, subd. (d)) and a consecutive 10-year term for the gang enhancement (§ 186.22, subd. (b)(1)). As to count 4, the trial court imposed the middle term of four years, eight months (one-third the middle term of seven years, doubled to 14 years because of the prior strike adjudication), to run consecutive to count 3, and imposed consecutive terms of six years, eight months (one-third of the 20-year term) for the gun enhancement and three years, four months (one-third of the 10-year term) for the gang enhancement. As to count 5, the trial court imposed the middle term of 4 years, 8 months (one-third the middle term of seven years, doubled to 14 years because of the prior strike adjudication), to run consecutive to count 4, and imposed consecutive terms of six years, eight months (one-third of the 20 year term) for the gun enhancement and three years, four months (one-third of the 10-year term) for the gang enhancement. Lastly, as to count 6, the trial court imposed an indeterminate term of seven years to life, doubled to 14 years to life because of the prior strike adjudication, to run consecutive to count 1. The total term imposed was a determinate term of 67 years, 6 months and an indeterminate term of 149 years to life.[7]
Tenzie J. lived in an apartment complex in Fresno, near Ashlan Avenue, and sold marijuana to Brian from his apartment. Brian, Mary, and Queshawn were siblings, and Brian and Kiara were in a relationship. Mary and Nandi were also in a relationship. At some point, a North Side Pleasant (NSP) gang member told Tenzie to not sell marijuana to rival gang members. Subsequently, after Brian had purchased marijuana, NSP gang members approached Tenzie and asked him whether Brian was a rival gang member. The group believed Tenzie was selling marijuana to rival gang members, which included Brian, and told Tenzie if we "catch these niggas over there we'll smoke them."
On April 28, 2019, at approximately 1:45 a.m., Nandi drove Brian, Mary, Queshawn, and Kiara in a car to the apartment complex to use the apartment's Wi-Fi. While Nandi was driving, Queshawn was seated in the front passenger seat and Brian, Mary, and Kiara were seated in the back seats. After arriving at the apartment complex, Brian got out of the car and went into Tenzie's apartment. Brian "asked if [Tenzie] had a firearm for sale" and appeared "a little shook up or nervous." Tenzie did not provide Brian a firearm. Brian then returned to the car and sat in the driver's seat, whereas Queshawn remained in the front passenger seat and Nandi sat in the back seat with Mary and Kiara.
Brian "started the car and started backing out" of the parking space...
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