People v. Willingham-Kennedy CA2/8

Opinion

Filed 8/28/26 P. v. Willingham-Kennedy CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B344200

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA490638) v. TYONNA S. WILLINGHAM- KENNEDY, Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Alison S. Matsumoto, Judge. Affirmed with directions. Stanley Dale Radtke, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. _______________ Defendant and appellant Tyonna Willingham-Kennedy was charged with one count of murder (Pen. Code, § 187, subd. (a);1 count 1) and one count of kidnapping (§ 209; count 2). It was alleged the murder was committed during the commission of a robbery within the meaning of section 190.2, subdivision (a)(17). Codefendant Donald Wayne Bell, who is not a party to this appeal, was also charged with the murder and was alleged to be the shooter. At a pretrial hearing on June 12, 2023, before Judge Michael D. Abzug, defendant was present with privately retained counsel, Victor Sherman. The court was informed that a disposition had been reached, but that while the plea could be entered, sentencing would proceed at a later date. The court granted the prosecutor’s motion to amend the information to add a count for manslaughter (§ 192, subd. (a); count 3), and a firearm-use enhancement under section 12022.5. During the plea colloquy, defendant confirmed she understood she was facing a special-circumstance first degree murder charge, plus a kidnapping for robbery charge with enhancements, and a maximum exposure of life without parole, plus additional determinate terms. Defendant also confirmed she was afforded sufficient time to speak with her attorney. She said she understood the prosecution’s offer to be a total prison sentence of 14 years, consisting of an 11-year high term for manslaughter, plus a three-year low term on the enhancement. After defendant was advised of her rights, the court asked her if she was “fully satisfied” with the information given by her 1 All further undesignated statutory citations are to the Penal Code.

2 attorney, and defendant said “yes.” The court asked if she needed any more time to talk with her attorney confidentially before proceeding. Defendant responded, “no sir.” The court found defendant had freely and knowingly waived her constitutional rights and was agreeing to change her plea with a full understanding of the nature and the consequences of doing so. Counsel joined in the waivers and stipulated to a factual basis for the plea based on the police reports, the preliminary hearing transcripts, the probation report and all other discovery contained therein. The court accepted defendant’s waivers, plea of no contest to the manslaughter count, and admission of the firearm allegation. The court accepted defendant’s waiver under People v. Arbuckle (1978) 22 Cal.3d 749 and set sentencing on the negotiated disposition for July 11, 2023. The sentencing hearing was subsequently continued multiple times, during which time defendant filed a motion to withdraw her plea under section 1018. Defendant’s motion to withdraw was heard on January 7, 2025, before Judge Alison S. Matsumoto. We note for the record that the reporter’s transcript contains a typographical error on the first page of the hearing, showing the year as 2024, instead of 2025. Kieran Brown, a Bar Panel attorney, was appointed to represent defendant as her former counsel, Victor Sherman, intended to testify in support of the motion. Both Sherman and defendant testified. The court denied defendant’s motion to withdraw her plea, finding she had not shown by clear and convincing evidence there was good cause for withdrawal. Sentencing then proceeded. After reviewing the negotiated disposition, the court asked the parties about whether there had 3 been an admission of aggravating factors. The parties stipulated there had not. The court therefore concluded a high term of 11 years on the manslaughter count as originally agreed was not proper, and imposed a six-year middle term. The court imposed a consecutive three-year low term on the firearm enhancement under section 12022.5, subdivision (a). The court awarded presentence custody credits of 1787 days (1554 actual, 233 conduct). The remaining counts and special allegations were dismissed. The court denied defendant’s request for a certificate of probable cause. This appeal followed. While this appeal was pending, the Department of Corrections and Rehabilitation notified the trial court there was an error in the abstract of judgment with the firearm enhancement identified as a finding under section 12022.53, subdivision (d). A corrected abstract of judgment showing a firearm enhancement under section 12022.5, subdivision (a) was filed on April 4, 2025. We appointed appellate counsel to represent defendant. Defendant’s appointed counsel filed a brief under People v. Wende (1979) 25 Cal.3d 436 (Wende) in which no issues were raised. The Wende brief included a declaration from counsel in which he explains that he advised defendant he would be filing a Wende brief, forwarded the brief and the record to defendant, advised her of her right to file a supplemental brief and her right to discharge him as her attorney. Counsel also said he remains available to brief, upon request, any issues we may have following our independent review of the case. Defendant did not file a supplemental brief.

4 On May 30, 2025, we denied defendant’s petition for writ of habeas corpus. (In re Willingham-Kennedy, pet. den. May 30, 2025, B345298.) On April 16, 2026, we denied defendant’s petition for a writ of mandate compelling issuance of a certificate of probable cause. (Willingham-Kennedy v. Superior Court, pet. den. Apr. 16, 2026, B349087.) The Supreme Court denied review on May 27, 2026. (Willingham-Kennedy v. Superior Court (B349087) review den. May 27, 2026, S296348). In light of the denial of a certificate of probable cause, our review is limited to any denial of a motion to suppress, which was not at issue here, or postplea matters not affecting the validity of the plea. (Cal. Rule of Court, rule 8.304(b).) We have examined the record of proceedings submitted to this court, including the augmented records, and are satisfied that appointed counsel fully complied with his responsibilities. (People v. Kelly (2006) 40 Cal.4th 106; Wende, supra, 25 Cal.3d 436.) We find no arguable appellate issues. However, our review of the record indicates that the sentencing minute order from January 7, 2025 contains the same error contained in the original abstract of judgment, i.e., the statute for the firearm enhancement is cited as section 12022.53, subdivision (d), instead of section 12022.5, subdivision (a). While the abstract of judgment was subsequently corrected, there is nothing to indicate in the record that the sentencing minute order was also corrected. On remand, the trial court is therefore instructed to correct the sentencing minute order nunc pro tunc.

5 DISPOSITION The judgment of conviction is affirmed. On remand, the superior court is directed to correct the January 7, 2025 sentencing order nunc pro tunc to reflect the correct statutory citation for the firearm enhancement, which is Penal Code section 12022.5, subdivision (a).

VIRAMONTES, J.

WE CONCUR:

STRATTON, P. J.

WILEY, J.