(Super. Ct. No. 09F04112)
The opinion of the court was delivered by: Hoch , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 found defendant guilty of carjacking, assault with a firearm, and second degree robbery (Pen. Code, §§ 215, subd. (a), 245, subd. (a)(2) & 211).*fn1 The jury also found that defendant personally inflicted great bodily injury and personally used, discharged, and caused bodily injury with, a firearm in the commission of the offenses. (§§ 12022.7, subd. (a) & 12022.53, subds. (b)-(d).) The trial court found defendant had two prior serious felony and strike convictions and sentenced defendant to a term of 75 years to life plus 10 years. (§ 667, subds. (a) & (b)--(i).)
On appeal, defendant contends the trial court erred by: (1) excluding third-party culpability evidence proffered by defense; and (2) imposing a full consecutive term for his assault with a firearm conviction. Defendant's evidence of third-party culpability consisted of mere motive or opportunity to commit the crime in another person. Without more, this evidence was insufficient. The trial court did not err in excluding this evidence. The trial court also did not err in imposing a full consecutive term for the assault with a firearm conviction because the brutal attack and carjacking incidents were separate criminal acts with different objectives, and the brutal attack was gratuitous and unnecessary to accomplish the carjacking. Finding no error, we affirm the judgment.
This case revolves around a brutal attack on victim Kiylund Lovelady. Lovelady and his sister, T., both know defendant Hank Kennedy, who had been married to their mother for several years.
On the evening of May 16, 2009, T. called Lovelady and asked him to give her and her boyfriend Zack a ride home from Kelly Mohr's trailer. Mohr had previously dated T.'s other brother, but had recently started spending time with Steve Gunderson. When Lovelady arrived at the trailer, defendant and Gunderson were also there.
Defendant left and, shortly thereafter, Gunderson noticed he was missing a $500 money order.*fn2 Gunderson told everyone present that no one was leaving until his money order was found. When Gunderson accused T. of taking the money order, T. said that Mohr had taken it. Gunderson threatened T., and Lovelady defended her, repeating that Mohr had taken the money order. Gunderson and Lovelady began arguing and Lovelady told his sister to get her things together so they could leave.*fn3 Lovelady followed his sister to the back room and waited while she and Zack packed their belongings.
Gunderson called defendant and told him he had gotten into a little confrontation with defendant's stepson. Defendant told him not to do anything to make Lovelady leave and that he would be there shortly.
A short time later, defendant, Gunderson, and a third man unknown to Lovelady and T. -- possibly named John -- appeared in the doorway. Defendant was wearing gloves and carrying a sawed-off .22 rifle with a pistol grip. Defendant grabbed T. by the hair and threw her out the back door. The third man left through the back door.
Defendant then told Zack to lie face down on the carpet and Zack complied. Defendant pointed his gun at Lovelady, who was sitting on the bed, and demanded the money order. When Lovelady told defendant he did not have it, defendant struck him repeatedly in the head with the gun. Defendant began threatening to kill Lovelady, blaming Lovelady for stealing the ...