People v. Cree CA3

Filed 1/25/22 P. v. Cree CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Yolo) ----

THE PEOPLE, C093059

Plaintiff and Respondent, (Super. Ct. No. CR20006770 )

v.

DAVID KENNETH CREE,

Defendant and Appellant.

A jury convicted defendant David Kenneth Cree of second degree murder and attempted voluntary manslaughter. This court affirmed the second degree murder conviction in 2005. In January 2019, defendant filed a petition for resentencing under Penal Code section 1170.95. 1 The trial court found that defendant was ineligible for relief and denied the petition. Defendant appeals, arguing that the trial court erred in denying his section 1170.95 petition.

1 Undesignated statutory references are to the Penal Code.

1

For the reasons set forth below, we conclude the trial court did not err in denying defendant’s petition and affirm. BACKGROUND A. Prior Conviction The relevant facts of this case are detailed in our opinion People v. Lamkin (Sept. 13, 2005, C045080) [nonpub. opn.] (Lamkin). On the evening of October 8, 2000, Gregory Rowan and Jimmie Richardson, were asked a question by two men in a car and when they approached the car, the passenger shot the men with a sawed-off shotgun; Rowan survived but Richardson died. (Id. at p. 3.) The night of the shooting, Lamkin and defendant told a friend they had been target shooting and this friend had seen defendant sawing off the back end of a shotgun. (Ibid.) The friend also said the two appeared to psyche themselves up for something “they needed to do.” (Ibid.) Police later found expended shotgun shells at Lamkin’s residence matching the expended shells at the scene of the crime. (Id. at p. 4.) Defendant testified at trial he did not know Lamkin was going to shoot anyone and Lamkin’s testimony supported this view. (Lamkin, supra, C045080 at pp. 4, 24-27.) Lamkin testified he was drunk in the car and was startled awake by what he thought was a person with a weapon, so he fired the shotgun. (Id. at pp. 4, 26-27.) The jury found defendant and Lamkin guilty of second degree murder and attempted voluntary manslaughter and found true Lamkin was the actual shooter. (Lamkin, supra, C045080 at p. 2.) For second degree murder, the jury was instructed on unpremeditated and conscious disregard (implied malice) second degree murder. (Id. at p. 9.) Defendant was sentenced to 15 years to life for second degree murder and a consecutive determinate term of five years six months for attempted voluntary manslaughter. (Id. at p. 2.)