Kelly
People v. Kelly
Opinion
Opinion
Acting, J.
Background of the Action
On May 22, 1997, pursuant to a negotiated plea, appellant, Derrick Jerome Kelly, pled guilty to one count of residential robbery. (Pen. Code, § 212.5.j He also admitted personal use of a handgun (§ 12022, subd. (b)) and three prior prison terms. (§ 667.5, subd. (b).) In exchange, the court dismissed two additional counts and imposed a term of ten years: the midterm of six years for the robbery, one year for the personal use enhancement, and three years for the prior prison terms. It also granted appellant 178 days of presentence credit.
On September 16, 1997, upon receipt of a letter from the California Department of Corrections (CDC), the court corrected its assessment of appellant’s credits, granting him 136 days of presentence credit.
Thereafter, the CDC sent another letter, this time informing the court the middle term for a section 212.5 violation is four years; the upper term is six years. On December 16, 1997, after determining aggravating factors existed to justify the upper term, the court modified appellant’s sentence to reflect the imposition of the upper term of six years for robbery. All other aspects of the sentence stayed the…