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The People v. John F. Kendrick

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA


December 14, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JOHN F. KENDRICK, DEFENDANT AND APPELLANT.

APPEAL from a judgment of the Superior Court of San Diego County, Michael T. Smyth, Judge. Affirmed. (Super. Ct. No. SCD123570)

The opinion of the court was delivered by: O'rourke, J.

California Supreme and/or Appellate Courts D057109.doc

P. v. Kendrick 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

A jury convicted John F. Kendrick of three counts of armed robbery (Pen. Code,*fn1 § 211) and three counts of false imprisonment (§§ 236, 237) while using a handgun

(§ 12022.5, subd. (a)(1)). Kendrick separately pleaded guilty to a count 7 charge of armed robbery and a personal handgun use enhancement and admitted one strike prior and one serious felony prior conviction.

The court sentenced Kendrick to 27 years and eight months in prison.

In April 1999, the judgment was affirmed on appeal.

In September 1999, Kendrick filed a petition for writ of habeas corpus, arguing sentencing error, but it was denied.

In August, 2005, he filed a second writ petition, arguing he was denied due process because the court did not advise him that by pleading guilty he would waive his constitutional rights. The court denied the petition on grounds it was successive, the issues should have been raised on appeal, and his plea was knowing and voluntary.

In January 2007, he filed a third writ petition, arguing his plea was not knowing and voluntary, and he received ineffective assistance of counsel regarding the plea and subsequent appeal. The petition was denied in part because the evidence showed his plea was knowing and voluntary.

In July 2008, he filed a fourth writ petition, arguing he was innocent of the count 7 charge and received ineffective assistance of counsel, who failed to present exculpatory evidence. The court denied the petition as successive under In re Clark (1993) 5 Cal.4th 750, 765-768.

In December 2009, Kendrick petitioned for a writ of error coram nobis, seeking to withdraw his plea. The superior court denied the petition because it was successive and Kendrick had not shown ineffective assistance of counsel.

In March 2010, Kendrick filed appeals of the denial of the writ of error coram nobis, alleging he was innocent of count 7 and his plea was unconstitutional because the court did not advise him of his rights under Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122 before taking the plea.

DISCUSSION

Appointed counsel has filed a brief summarizing the facts and proceedings below. Counsel presents no argument for reversal but asks that this court review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to possible but not arguable issues whether the trial court erroneously denied the writ of error coram nobis as successive and erroneously concluded he had failed to show constitutional error regarding his plea because the court failed to question him before agreeing to the plea. We granted Kendrick permission to file a supplemental brief on his own behalf and he argues that his plea was taken without adequate advisement of his constitutional rights and his conduct did not amount to a violation of section 211 as a matter of law.

A review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738, including the possible issues referred to by Kendrick and appellate counsel, has disclosed no reasonably arguable appellate issues. Competent counsel has represented Kendrick on this appeal.

DISPOSITION

The judgment is affirmed.

WE CONCUR: BENKE, Acting P. J. IRION, J.


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