P. v. Kennedy
Filed 8/21/08 P. v. Kennedy CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent, v. XAVIER SPAIN KENNEDY, Defendant and Appellant. | F054674 (Super. Ct. No. BF119626A) O P I N I O N |
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Sidney P. Chapin, Judge.
Larry Dixon, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
-ooOoo-
Appellant, Xavier Spain Kennedy, had two small children, a two-year-old boy and a seven-month-old girl, with Erica Fuentes. On June 19, 2007, Kennedy and Fuentes were living in a motel in Kern County and began to argue. During the argument, Kennedy put his arm around her, pushed her outside the room, and locked the door.
Kern County Sheriffs Deputy James Vasquez and other deputies were dispatched to the motel at approximately 9:49 a.m. En route, the deputies learned that Kennedy was wanted for a parole violation. Deputies attempted to contact Kennedy but received no response. They obtained Fuentess permission to enter the room and had the motel manager open the door. Kennedy was hiding in the back of the room with the children, carrying his daughter. He refused to let the infant go until one deputy hit him with a knee in the groin. Two deputies tried to pin Kennedy against the wall. However, he managed to free one hand and began punching one deputy in the face and back of the head. Kennedy stopped resisting when he was struck with a baton.
On July 9, 2007, the district attorney filed an information charging Kennedy with one count each of inflicting corporal injury on a cohabitant (count 1/Pen. Code, 273.5, subd. (a)), resisting an executive officer (count 2/Pen. Code, 69), false imprisonment (count 3/Pen. Code, 236), and misdemeanor child endangerment (count 4/Pen. Code, 273a subd. (b)). The information also charged Kennedy with a prior prison term enhancement (Pen. Code, 667.5, subd. (b)) and alleged that he had a prior conviction within the meaning of the three strikes law (Pen. Code, 667, subds. (b)-(i)).
On November 26, 2007, the court held a Marsden[1]hearing during which Kennedy complained that his attorney lied to him, failed to investigate his case, and did not interview Fuentes. The court denied the motion.
On December 11, 2007, the court conducted a second Marsden hearing during which Kennedy complained his defense counsel did not file a Pitchess[2]motion. The court again denied Kennedys Marsden motion. Later that day, Kennedy pled no contest to resisting an executive officer and admitted the prior prison term enhancement and that he had a prior conviction within the meaning of the three strikes law. In exchange for his plea, the remaining charges were dismissed and Kennedy was promised a stipulated five-year term, the middle term of two years on the substantive offense, doubled to four years because of his prior strike conviction, and a one-year prior prison term enhancement.
On January 10, 2008, the court sentenced Kennedy to the stipulated five-year term.
Kennedys appellate counsel has filed a brief which summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) Kennedy has not responded to this courts invitation to submit additional briefing.
Following independent review of the record we find that no reasonably arguable factual or legal issues exist.
The judgment is affirmed.
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*Before Vartabedian, Acting P.J., Dawson, J., and Kane, J.
[1]People v. Marsden (1970) 2 Cal.3d 118.
[2]Pitchess v. Superior Court (1974) 11 Cal.3d 531.
