People v. Kennedy CA4/1 ( 2020 )

Filed 9/21/20 P. v. Kennedy CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D077634
Plaintiff and Respondent,
v. (Super. Ct. No. FSB1502137)
LAWRENCE EDWARD KENNEDY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Bernardino
County, Ronald M. Christianson, Judge. Affirmed.
Jason L. Jones, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance by Plaintiff and Respondent.
Defendant, Lawrence Edward Kennedy, appeals from a denial of his
petition brought pursuant to Penal Code1 section 1170.95 asking for
resentencing. The prosecution opposed his petition on the grounds that he
1 All further statutory references are to the Penal Code unless otherwise
stated.
was the actual killer, and in any event section 1170.95 was unconstitutional.
We appointed counsel to represent defendant in this court.
BACKGROUND2
Following an argument between Richard R. and defendant’s
codefendant Joseph Anthony Jackson, defendant went to Richard’s
apartment. He knocked on the door and Richard invited him inside.
Defendant shot Richard and fled through the front gate of the apartment
complex. A neighbor called 911. Richard later died at the hospital. Three
days later, a gun was found on Kennedy’s person when he was apprehended.
The firearm was later found to match the sole bullet casing found at the
scene of Richard’s murder. Comparison testing of the gun to the fired bullet,
however, was inconclusive. The markings on the bullet were insufficient for
identification.
On August 5, 2015, the San Bernardino District Attorney filed an
information charging defendant and Jackson with one count of first degree
murder (§ 187, count 1). Defendant was also charged with one count of being
a felon in possession of a firearm (§ 29800, subd. (a)(1), count 2). As to count
1, the information further alleged alternate firearm enhancements alleging
defendant personally used a firearm, personally discharged a firearm, and
personally discharged a firearm causing great bodily injury or death.
(§ 12022.53, subds. (b), (c) & (d).) Two convictions were alleged as strike
priors. (§§ 1170.12, subds. (a), (d); 667, subds. (b)-(i).)
On September 19, 2016, defendant was found guilty of first degree
murder. The jury also found true the section 12022.53, subdivision (d)
2 We granted defendant’s request to take judicial notice of the opinion
in his direct appeal, People v. Kenney (Sept. 27, 2018, D073847) [nonpub.
opn.].
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allegation he personally discharged a firearm causing great bodily injury or
death. Following a contested court trial, the court found one of defendant’s
prior strike convictions to be true.
On October 28, 2016, the court sentenced defendant to an
indeterminate term of 75 years to life plus a determinate term of six years.
Defendant received 25 years to life, doubled to 50 years, on count 1. An
additional term of 25 years to life was added for the section 12022.53,
subdivision (d) firearm enhancement. As to count 2, defendant received an
aggravated determinate term of three years, doubled to six, to be served
consecutively to the indeterminate term.
On September 27, 2018, defendant’s judgment was affirmed following
an appeal.
On August 26, 2019, defendant filed a petition for resentencing
pursuant to section 1170.95 (Sen. Bill No. 1437). On June 5, 2020, the court
denied defendant’s petition by finding him to be the actual killer of the
victim, and thus it found him statutorily ineligible for relief.
Defendant filed a notice of appeal on June 19, 2020.
ANALYSIS
Appointed counsel has filed an opening brief which states the case and
the facts. He also points our attention to those areas of the record where we
may review the question of whether the trial court erred in finding him
ineligible for relief under section 1170.95.
Pursuant to People v. Wende (1979) 25 Cal.3d 436, and Anders v.
California (1967) 386 U.S. 738, we have reviewed the entire record and have
concluded that there is no arguable issue on appeal. We notified defendant of
his right to submit a written argument in his own behalf within 30 days.
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That period has lapsed, and we have received no written argument from
defendant.
Defendant has been represented by competent counsel on this appeal.
DISPOSITION
The judgment is affirmed.
BENKE, Acting P. J.
WE CONCUR:
HUFFMAN, J.
O'ROURKE, J.
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