People v. Kuykendall CA2/6

Filed 10/20/20 P. v. Kuykendall CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE, 2d Crim. No. B297725 (Super. Ct. No.VA038748) Plaintiff and Respondent, (Los Angeles County)

v.

CARTER KUYKENDALL,

Defendant and Appellant.

Carter Kuykendall appeals an order denying his Penal Code1 section 1170.95 petition for resentencing of his prior first degree murder conviction (§§ 187, subd. (a), 189), with a robbery murder special circumstances finding (§ 190.2, subd. (a)(17)(A)). We conclude, among other things, that the trial court did not err because in his section 1170.95 petition Kuykendall did not make the required prima facie showing for relief, and the record shows he was the actual killer. We affirm.

1 All statutory references are to the Penal Code.

FACTS Concio Rodriguez Rendon was working as a clerk at an ARCO market in Norwalk, California after midnight on August 7, 1996. (People v. Kuykendall (Mar. 31, 2020, B131530) [nonpub. opn.].) Kuykendall walked in and told Rendon, “Open the register and give me all the money . . . . How much money ya got on you?” (People v. Kuykendall, supra, B131530.) Rendon relied, “I ain’t got no money on me.” (Ibid.) Kuykendall fired one shot into Rendon’s head. He called Rendon “[s]tupid” and fired a second gunshot hitting Rendon in the head and killing him. (People v. Kuykendall, supra, B131530.) There was a security camera and a videotape of this incident. Local television stations broadcasted photographs of the killer. Informants told the sheriff’s department that Kuykendall was the man shown on those photographs. The bullets that killed Rendon were .380 caliber bullets. At 1:00 a.m. on the same morning at a different location, there was a drive-by shooting. A sheriff’s deputy heard the shots and followed a fast-moving vehicle until it crashed into a fence. Kuykendall got out of that vehicle and fled. He was subsequently apprehended. A .380 Colt semiautomatic firearm was found in the crashed vehicle. That was the gun used to kill Rendon. Kuykendall had gunshot residue on his hands. After his arrest, Kuykendall admitted that he was at the ARCO market on the morning when Rendon was killed. At trial, Kuykendall’s mother testified that her son was the man in the ARCO market videotape and she identified Kuykendall’s voice “in the ARCO audiotape.” (People v. Kuykendall, supra, B131530.)