Opinion
A158363
06-22-2020
THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY L. KENT, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. VC14552) MEMORANDUM OPINION
We resolve this case by memorandum opinion pursuant to California Standards of Judicial Administration, section 8.1. (See People v. Garcia (2002) 97 Cal.App.4th 847, 853-855.)
In 1985, a jury convicted Timothy L. Kent of first-degree murder, robbery and attempted robbery. The jury found true a special circumstances finding that the homicide occurred during the commission or attempted commission of a robbery, and additionally found true sentence enhancement findings of personal use of a weapon.
Kent was sentenced to life without possibility of parole (LWOP). On appeal, the special circumstances finding was vacated, but the judgment of conviction was otherwise affirmed.
In 2019, Kent filed a resentencing petition in propria persona under Penal Code section 1170.95, pursuant to recent amendments (Sen. Bill No. 1437 (2017-2018 Reg. Sess.) (SB 1437)) to the murder and felony murder statutes, arguing that he had been convicted on a felony murder theory and that there was insufficient evidence he intended to kill. The trial court denied the petition on the ground that Kent was the actual killer.
In this appeal from the denial of the resentencing petition, appointed counsel for Kent has filed a brief under People v. Wende (1979) 25 Cal.3d 436 (Wende). Counsel has also advised Kent of his right to file a supplemental brief, which he has not done. The case is now before us for our independent review under Wende. We shall affirm.
I.
In our opinion filed May 20, 1985, vacating the special circumstances finding but otherwise affirming, we recited the facts of this case as follows:
On December 13, 2019, we granted Kent's motion asking us to take judicial notice of the unpublished opinion in People v. Kent (May 20, 1985, AO 13607) [nonpub. opn.] (Kent). --------
"Stephen Brown and Robert Sevier drove to the County Club Crest neighborhood of the City of Vallejo looking for Janelle Barber. They were unable to locate the girl at her grandmother's house on Sawyer Street, and so drove around the corner onto Janice Street where they observed a man on the sidewalk 'waving his hands high.' According to Brown, there was 'something wrong' with the man; Brown believed that he may have been high on drugs or sick.
"As Brown and Sevier slowly drove past the man, he charged into the street and 'stuck a shotgun in the window' on Sevier's side of the car. The assailant wore a black leather coat and a nylon stocking pulled down over his head to his upper lip. The stocking 'mashed' the man's face, but Brown could still clearly see his facial features.
"At the assailant's command, Sevier pulled his vehicle over to the curb next to a 'blue Chevy Nova,' turned off the engine and opened the car door. The assailant demanded money despite the victims' protestations that they had none, then directed Sevier to get out of the car and lie on the ground. Sevier complied. Brown was also ordered out of the vehicle.
"As Brown removed himself from the car, a man seated in the blue Nova yelled, 'Shoot him, man; kill him, man; shoot him.' Thereupon, the gunman grabbed his shotgun with both hands, turned to Brown and exclaimed, 'I told you not to move, told you not to move, mother-fucking pigeon,' and shot him. The vehicle then left. The assailant also fled on foot until he caught up with the vehicle and entered it, whereupon the two men drove away from the scene south on Janice Street.
"Officer Herbert Jensen, the first policeman on the scene, had heard the shot a few minutes earlier. As he arrived at Janice Street in response to a radio report, Officer Jensen noticed several people standing around and a young, white male lying on his back on the ground with a shotgun wound just above his right collarbone. The victim had lost a great deal of blood and his pulse was fading. He later died from the wound. The pathologist later testified that Sevier was shot from no more than one-third of an inch away.
"A few feet from Sevier's body was his Cadillac. It was on the wrong side of the street, with the driver's door open and the engine off. Near the front of the car Jensen observed an expended shotgun cartridge; there was a live shotgun round towards the rear of the Cadillac.
"Vallejo Police Officers Donovan and Rouse observed the blue Nova traveling westbound on Highway 80 later that evening. They followed it for three miles to the Academy Road exit, whereupon Donovan detained the vehicle. Rodney Napier was the driver of the Nova and [Kent] was seated in the front passenger seat.
"[Kent] was asked to identify himself, and gave a false name. [Kent]'s 'natural' hairstyle was 'matted down.'
"Approximately 8 to 10 minutes later, Vallejo Police Officer Denver Moore arrived at the scene of the detention with Brown and another witness, Robert Stanford, who had observed the blue Nova leaving the area of the shooting at a 'high speed.' As they approached the detention scene, one or both of the witnesses became excited and identified the occupants of the detained vehicle as the perpetrators. Brown immediately identified Napier as the man who urged the gunman to shoot Sevier. At that time, he could not identify [Kent] as the assailant. Brown later identified [Kent] as the gunman at the preliminary examination and at trial. Stanford was only able to identify Napier as the driver of the vehicle which sped away from the crime scene. [Kent] and Napier were handcuffed and arrested.
"Officer Rouse then searched the car for weapons, and thereafter a second search was made for a vehicle registration. In the glove compartment, the officer discovered a wallet with the name Robert Sevier in it. Officer Rouse placed the wallet back in the glove compartment, and the car was towed to the police garage where it was impounded.
"Rouse later told Detective Crapo about his discovery of the wallet. Crapo, in turn, referred to the wallet, along with the remaining evidence in the case, in his affidavit in support of a search warrant for the Nova which was obtained and executed on July 15, 1980.
"The search of the vehicle pursuant to the warrant uncovered the following items which were admitted into evidence at trial: a registration in [Kent]'s name; a cocked, sawed-off shotgun with one shell in the chamber; a nylon stocking mash [sic]; a black leather jacket; Sevier's wallet; a white coat which contained shotgun shells and a medical card in [Kent]'s name; and an expended shotgun shell which, according to stipulation, was fired from the seized shotgun and matched the expended shell found near Sevier's car." (Kent, supra, AO 13607.)
Our May 1985 opinion affirmed Kent's murder conviction, but vacated the special circumstances finding under Carlos v. Superior Court (1983) 35 Cal.3d 131, 152, overruled by People v. Anderson (1987) 43 Cal.3d 1104, 1147, on the grounds that the trial court erred in failing to instruct correctly on the special circumstances. (Kent, supra, AO 13607.) The case was tried as a felony murder. Although the issue of intent to kill was not litigated at trial, only one weapon was used in this murder—a shotgun—and there was evidence Kent was the gunman, which is consistent with the jury finding of personal use of a weapon.
II.
On July 23, 2019, Kent filed a petition in Solano County Superior Court for resentencing under Penal Code section 1170.95, pursuant to the recent amendments (SB 1437) to the murder and felony murder statutes. In that petition, Kent stated that he was convicted of first degree murder pursuant to the felony murder rule. On his petition form, paragraph 5, he checked the box which stated, "I was convicted of 1st degree felony murder and I could not now be convicted because of changes to Penal Code § 189, effective January 1, 2019, for the following reasons (all must apply)[.]" Kent then checked the box that the victim was not a peace officer. Kent did not check the box in the form which stated as follows: "I was not the actual killer." He did not check the box which stated, "I did not, with the intent to kill, aid, abet, counsel, command, induce, solicit, request, or assist the actual killer in the commission of murder in the first degree." Kent did not check the box which stated, "I was not a major participant in the felony or I did not act with reckless indifference to human life during the course of the crime or felony."
On August 12, 2019, the trial court denied the petition for resentencing. It stated, "The true finding of the enhancement under Penal Code section 12022.5 means that, as a matter of law, [Kent], in carrying out the murder, personally used a firearm. Also, [Kent] admitted to shooting the victim in correspondence to the court. (He claimed it was an accident.) Therefore, [Kent] was the 'actual killer.' " On those grounds the trial court denied the resentencing petition.
This timely appeal followed.
DISPOSITION
Having conducted the required independent review under Wende, and seeing no issues that warrant further briefing, the order denying Kent's resentencing petition is affirmed.
STREETER, J. WE CONCUR: POLLAK, P. J.
BROWN, J.