Filed 1/9/20 P. v. Lemmons CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

KYLE EVERETT LEMMONS,

Defendant and Appellant.

E073072

(Super.Ct.No. RIF140496)

OPINION

APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge. Affirmed.

Stephanie M. Adraktas, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

FACTUAL AND PROCEDURAL HISTORY

A. PROCEDURAL HISTORY

On May 11, 2012, defendant and appellant Kyle Everett Lemmons was convicted of attempted murder of a police officer under Penal Code sections 664 and 187, second degree burglary under Penal Code section 459, and possession of stolen property under Penal Code section 496, subdivision (a). Defendant was sentenced by the trial court on August 10, 2012, to 27 years to life.

Seven years later, on May 15, 2019, defendant filed a petition for resentencing on his attempted murder conviction under Penal Code section 1170.95. In the petition, defendant alleged that he had been convicted “under a theory of felony murder or murder under the natural and probable consequences doctrine,” and that the victim was not a peace officer.

On June 7, 2019, at the hearing on the petition, defense counsel and the prosecutor argued before the court. When the prosecutor stated “[i]f the victim was a peace officer . . . none of the provisions of [Penal Code section] 1170.95 would apply.” Defense counsel then stated, “I’ll submit on that.” The prosecutor then went on to state: “Your Honor, I mean, the facts are [defendant] was in a gun battle with the police officer, and—yeah—and personal firearm use.” Thereafter, the trial court dismissed defendant’s petition on the grounds that none of the provisions under Penal Code section 1170.95 applied to defendant because the victim in the case was a police officer.

On June 19, 2019, defendant filed a timely notice of appeal from the denial of his petition.

B. FACTUAL HISTORY

On December 6, 2007, Riverside City police officers were dispatched to a bank in response to a 911 call wherein the caller stated that “he observed an individual place a handgun into a garbage can located near the front entrance of the bank.” Officer Miguel Rivera arrived at the scene and located the individual, later identified as defendant. When the officer exited his patrol vehicle, he made eye contact with defendant, who immediately started to run. Officer Rivera chased defendant “on foot and ordered him to stop running.” Defendant, however, continued to run and “pulled a 9mm handgun from his person and fired two rounds at the officer.” Officer Rivera then drew his weapon; defendant and the officer fired several additional gun shots as Officer Rivera continued to chase defendant on foot. Officer Rivera “called for additional back-up to establish a perimeter around the nearby buildings.” Another officer took defendant into custody as defendant attempted to jump over a fence.

An assistant manager at the bank told the police that defendant entered the bank and attempted to cash two checks. The assistant manager cashed one check because it was made payable to defendant but refused to cash the second check for $18,295.65 because it was issued to SOCO Group Inc. The bank video surveillance footage of the transaction showed defendant becoming irate after the assistant manager refused to cash the second check. Defendant then went outside and retrieved the gun from the trash can where he had placed it before entering the bank.

DISCUSSION

After defendant appealed, and upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 setting forth a statement of the case, a summary of the facts, and potential arguable issues, and requesting this court to undertake a review of the entire record. Pursuant to Anders, counsel identified the following issue to assist the court in its search of the record for error: “Did the trial court properly dismiss appellant’s motion to vacate his attempted murder convictions on grounds that he was not qualified for relief pursuant to section 1170.95?”

We offered defendant an opportunity to file a personal supplemental brief, but he has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error, considered the issue listed by appellate counsel, and find no arguable issue for reversal on appeal.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

Acting P. J.

We concur:

CODRINGTON

J.

MENETREZ

J.