People v. Kennedy CA4/1

California Court of Appeal · D077634 · 2020-09-21 · Unpublished

Proceeding: appeal from a judgment
Trial court: Superior Court of San Bernardino County · No. FSB1502137
Trial judge: Ronald M. Christianson
Outcome: affirmed — Affirmed.
Area: criminal
Panel: Patricia D. Benke (author), Richard D. Huffman, Sr., O'Rourke

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T05:22Z · confidence low

The trial court denied the defendant's petition for resentencing under Penal Code section 1170.95, finding him ineligible because he was the actual killer of the victim. The Court of Appeal affirmed the judgment after appointed counsel and the court found no arguable issues on appeal.

Ruling reviewed	Standard	The court	The model
Denial of petition for resentencing under Penal Code section 1170.95 “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.”	unclear	not reached	unsure The appellate court did not review the merits of the trial court's ruling. Instead, it conducted a Wende/Anders review of the record and concluded that there were no arguable issues on appeal, thereby affirming the judgment without addressing the specific legal or factual basis for the trial court's denial.

Authorities

relied: People v. Wende (1979) 25 Cal.3d 436 — Establishes the procedure for appointed counsel to review the record for arguable issues when an appellant is represented by counsel on appeal.
relied: Anders v. California (1967) 386 U.S. 738 — Requires appointed appellate counsel to file a brief identifying any arguable issues, even if none exist, and to request leave to withdraw.

The appellate opinion: sound with gaps — The opinion is procedurally sound in its application of the Wende/Anders framework for appointed counsel. However, it is a 'sound with gaps' opinion because it fails to address the specific legal arguments raised by the prosecution (unconstitutionality of section 1170.95) or the factual basis for the 'actual killer' finding, relying solely on the absence of arguable issues identified by counsel.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:30Z · confidence low

The trial court denied Lawrence Kennedy's Penal Code section 1170.95 resentencing petition, finding him statutorily ineligible because he was the actual killer of the victim (a jury had convicted him of first degree murder and found true a section 12022.53, subdivision (d) personal-discharge-causing-death enhancement). On appeal, appointed counsel filed a Wende brief, the Court of Appeal independently reviewed the record, found no arguable issue, and affirmed.

Ruling reviewed	Standard	The court	The model
Denial of section 1170.95 petition on the ground that defendant was the actual killer and therefore statutorily ineligible for resentencing “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.”	unclear	correct	agree with court The court did not articulate a standard of review; it conducted an independent Wende/Anders review of the record and found no arguable issue. The result is defensible: section 1170.95 relief is unavailable to an actual killer, and the jury's true finding on the section 12022.53, subdivision (d) allegation (personal discharge of a firearm causing death) is a record-of-conviction finding that defendant was the shooter, not a felony-murder or natural-and-probable-consequences accomplice. However, the opinion contains no substantive analysis of the ineligibility finding, does not describe the procedure the trial court followed (whether counsel was appointed or at what stage the petition was denied), and does not address whether Wende review even applies to an appeal from a postjudgment order. The conclusion appears correct on the facts recited, but the opinion's reasoning is minimal.

Authorities

relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel finds no arguable issues, the Court of Appeal must independently review the entire record to determine whether any arguable issue exists.
relied: Anders v. California (1967) 386 U.S. 738 — Constitutional framework for appointed counsel's duties and appellate review when counsel finds no meritorious issues on a first appeal of right.
missed: People v. Serrano (2012) 211 Cal.App.4th 496 — Wende/Anders independent review is constitutionally required only on a first appeal of right from a conviction, not on appeals from postjudgment orders; a court may dismiss such an appeal as abandoned when counsel raises no issues and the defendant files no supplemental brief.

The appellate opinion: sound with gaps — The affirmance is defensible because the jury's section 12022.53, subdivision (d) finding establishes that defendant personally shot the victim, making him an actual killer ineligible for section 1170.95 relief, and no supplemental brief was filed. The opinion nonetheless skips any substantive discussion of the ineligibility finding and does not address the then-existing split (e.g., People v. Serrano, persuasive though not binding) over whether Wende review applies to appeals from postjudgment section 1170.95 orders.

How this analysis was made · dispute it

record incomplete

Opinion

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.].

2 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.

3 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.

Cites, in this corpus

People v. Wende Crim. 20851 · 1979-10-12