People v. Lemmon CA3

Filed 11/28/22 P. v. Lemmon CA3 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Shasta) ----

THE PEOPLE, C090231

Plaintiff and Respondent, (Super. Ct. No. 11F7820)

v. OPINION ON TRANSFER

KEVIN FRANK LEMMON,

Defendant and Appellant.

Defendant Kevin Frank Lemmon appeals from the trial court’s order denying his petition for resentencing under former Penal Code section 1170.95 (now section 1172.6).1 Defendant contends the trial court incorrectly weighed the facts using the wrong legal standard when it denied his petition at the prima facie stage and asserts his

1 Effective June 30, 2022, Penal Code section 1170.95 was renumbered section 1172.6, with no change in text (Stats. 2022, ch. 58, § 10). Undesignated statutory references are to the Penal Code.

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eligibility for resentencing was not precluded by the jury’s robbery-murder and burglary- murder special circumstance findings from his trial. We filed an unpublished opinion on May 23, 2022, affirming the trial court’s order. Our Supreme Court granted review of the matter on September 21, 2022, and transferred the case to us with directions to vacate our previous decision and reconsider the cause in light of People v. Strong (2022) 13 Cal.5th 698 (Strong). After reconsidering the matter, we will reverse the trial court’s order and remand the case for further proceedings. FACTUAL AND PROCEDURAL BACKGROUND In 2013, a jury found defendant guilty of first degree murder (§ 187, subd. (a)— count 1), first degree robbery (§ 211—count 2), and first degree burglary (§ 459—count 3). The jury also found true robbery-murder and burglary-murder special circumstance allegations (§ 190.2, subd. (a)(17)), and an allegation defendant acted in concert with two or more other persons as to the robbery count (§ 213, subd. (a)(1)(A)). On appeal, we affirmed the convictions but modified the sentence to correct a sentencing error. (People v. Lemmon et al. (Sept. 29, 2016, C074689) [nonpub. opn.], mod. Oct. 25, 2016 (Lemmon).)2 In our opinion, we detailed the evidence introduced at trial. In short, defendant and codefendants Kenneth Matthews and William Lee Freed, Jr., forced their way into the victim’s motel room “to steal money and/or drugs and to retrieve some personal belongings of [defendant’s] girlfriend.” 3 “When [the victim] tried to fight off the intrusion, Freed stabbed him multiple times.” (Ibid.)