People v. Kennedy CA4/1

Filed 9/21/20 P. v. Kennedy CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)