P. v. Kennedy

Filed 1/26/17 P. v. Kennedy CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
JOHN F. KENNEDY,
Defendant and Appellant.
B264661
(Super. Ct. No. NA092421)
APPEAL from an order of the Superior Court of Los
Angeles County. Tomson T. Ong, Judge. Affirmed.
David Andreasen, under appointment by the Court of
Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Paul M. Roadarmel, Jr., and Daniel C. Chang,
Deputy Attorneys General, for Plaintiff and Respondent.
__________________________

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John F. Kennedy appeals from his conviction of one count
of second degree murder and four counts of attempted murder
arising from two separate shooting incidents. We reject his
contentions that the search warrant authorizing a wiretap of his
cell phone that produced incriminating conversations was not
supported by probable cause. We also hold that the judgment
was supported by substantial evidence, reject some claims of
instructional error and hold that others were harmless, and that
there was sufficient evidence to support the finding that he
suffered a prior conviction. We therefore affirm the judgment.
FACTS AND PROCEDURAL HISTORY
On the night of April 1, 2012, Keyon Kiles was shot and
killed at the Fantasy Gold Strip Club on Pacific Coast Highway
in Harbor City. Kiles and his brother, John F. Kennedy, were
there attending a “going away party” for Charlie Parker, who was
heading to prison. Parker belonged to the Rolling 20s gang; Kiles
and Kennedy were members of the rival Insane Crips gang.
Between eyewitness testimony and surveillance video
evidence, there is no dispute that Kennedy pulled out a gun and
began firing multiple shots outside the club right after his
brother was killed.1 The video showed Kennedy just outside the
club in a parking lot that separated it from a Panda Express
restaurant, in a firing stance with his arm raised. The parking
lot led out to PCH. A few hundred feet to the west was the
Harbor Inn Hotel. Three guests from the strip club party –
Ashley Kennedy, Danisha Dixon, and Britney Batiste – had fled
the shooting and run down PCH to Dixon’s car, which was parked
outside the Harbor Inn.2 The three women heard gunshots as
they entered the car. One round entered the car and struck
Batiste in the breast, causing a non-fatal wound.
1 On appeal, Kennedy concedes that he did so.
2 In order to avoid confusion, we will refer to Ashley Kennedy
by her first name.

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Ashley testified that she heard two shots from nearby and
believed they came from a car that had pulled up alongside.
However, she did not see a car. Dixon said the shots came from a
distance and did not see or hear a car pull up. Batiste could not
tell where the shots came from, but said no car had pulled up
when the shots were fired. Batiste had the bullet removed and
recovered. Ashley’s wrist was cut by broken glass.
Los Angeles police officers investigating the shooting
recovered eight .40 caliber Winchester casings from the scene.
Based on photos documenting the location of those casings, it
appears that three were found in the parking area outside the
strip club that led out to PCH, with the rest more or less in a line
heading west on PCH toward the Harbor Inn. They also found a
.40 caliber Federal casing on the sidewalk right by the Harbor
Inn.
Some six weeks later, on the night of May 12, 2012,
Kenneth McRoyal was shot and killed and Devon Augustine was
shot and wounded while attending a party at a downtown loft
complex. Photographs taken at the party show that Kennedy
was there. Three .40 caliber Winchester casings that came from
the same gun used in the strip club shooting were recovered at
the scene – two near the loft and one nearly 400 feet away next to
a set of car keys.
Witness testimony and police photos show that the shooting
took place near a ground floor wood deck adjacent to a doorway
into the loft. A metal gate sat at the far end of the deck, and
strung along that gate was a sheer tarp. McRoyal and Augustine
were outside the deck area when they were shot, and the shots
came from behind the tarp. Witness Dwayne Williams said he
heard arguing near the deck, saw some people shaking hands,
then heard one round of gunshots, followed soon after by another
round of gunfire.
In between the two shootings, Long Beach police detectives
obtained a warrant to add Kennedy’s cell phone to an ongoing

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wiretap of other Insane Crips members.3 In a wiretapped
conversation on April 17, 2012, Kennedy talked to an
unidentified male about selling or trading his gun. In an April
22, 2012, conversation, Kennedy referred to his brother’s feud
with Parker, identified another Rolling 20s gang member as the
person who shot and killed Kiles, said he was nearby when it
happened, and then “pulled out the hammer,” “tore the club up,”
and “just ran out of shells . . . [because] ten . . . [was not] enough.”
A police gang expert explained that Kennedy’s statement that he
pulled out a hammer and tore up the club was an admission to
committing the shooting.
On May 13, hours after the May 12 loft shooting, a wiretap
recorded a conversation where Kennedy asked the other person if
he ever found a certain key. The other person said the key had
not been found and that the area had been blocked off. The gang
expert believed this referred to the car key that was found near
one of the bullet casings. In a conversation later on May 13, an
unidentified male asked Kennedy if he had any “shells for that
thing?” Kennedy replied that he did not because he had used his
last night. The other man asked if he “got off last night,” which
the gang expert translated as asking whether he had fired his
gun. Kennedy said yes, adding that he got shot in the leg too.
Asked where this happened, Kennedy answered, “Aw, at some
loft function in L.A. somewhere.”
During another phone conversation shortly after the loft
shooting, Kennedy said he had been shot and was trying to get
home. Asked to describe what happened and who did it, Kennedy
replied: “Nah just, you feel me. You know how niggas be, it’s just
like a group of niggas, you know what I’m saying, just get there,
they talking, wolfing and shit. I didn’t say shit. You feel me, I
just kept going. But you know how confrontations go, and niggas
3 Kennedy contends there was no probable cause to authorize
the warrant. We set forth the facts surrounding the issuance of
the warrant in section 1 of our discussion.

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end up start shooting.” The other male asked if Kennedy had
“knock[ed] back.” Kennedy answered, “Yeah, hell yea.”
According to the gang expert, “knock back” means to shoot or to
shoot back. During a May 15 wiretapped conversation Kennedy
offered to sell his gun for $500.
In addition to the wiretapped conversations, a variety of
physical evidence placed Kennedy at the scene of the two
shootings. As noted, he was identified in a surveillance video as
the person taking a firing stance with a gun in his hand.
Kennedy made several phone calls at or near the time of the strip
club shooting that were relayed through cell phone towers in the
club’s vicinity. As part of the wiretap warrant, a GPS device had
been attached to Kennedy’s car. It showed that right before the
loft shooting his car was parked near the loft where the car keys
and one .40 caliber Winchester casing were found. The car began
to drive away moments after the shooting ended. A detective who
went to Kennedy’s house on a pretext saw that Kennedy had an
in-and-out bullet wound on his left thigh.
Kennedy was convicted of the second degree murder of
McRoyal and of the attempted murders of Augustine, Dixon,
Batiste, and Ashley. He was also convicted of shooting at an
occupied vehicle (Pen. Code, § 245). The jury found true
allegations that he personally and intentionally used a firearm
(Pen. Code, § 12022.53, subds. (b)-(d)), that the strip club crimes
were committed for the benefit of his street gang (Pen. Code,
§ 186.22), and that he had served a prior prison term for purposes
of the one-year enhancement provided by Penal Code section
667.5, subdivision (b).4 He was given a combined state prison
sentence of 173 years and eight months to life.
4 All further undesignated section references are to the Penal
Code.

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DISCUSSION
1. There Was Probable Cause for the Wiretap Warrant
California law prohibits wiretapping except as allowed by
statute. (People v. Sedillo (2015) 235 Cal.App.4th 1037, 1053
(Sedillo).) A wiretap may be ordered where affidavits establish
certain elements, including the one at issue here – probable cause
to believe that an individual is committing, has committed, or is
about to commit, certain specified crimes, including murder and
attempted murder. (Id. at p. 1055; § 629.52, subd. (a)(2),(6).)
When a defendant has been identified through an
authorized wiretap, the prosecution must ordinarily provide the
defendant with copies of the intercepted communications, the
court order, and the accompanying application. (§ 629.70,
subd. (b).) These disclosures may be limited upon a showing of
good cause, including the protection of the identity of confidential
informants. (Sedillo, supra, 235 Cal.App.4th at pp. 1053-1054;
§ 629.70, subd. (d).)
Finally, state law cannot be less protective of privacy than
the federal wiretap statutes, and, as a result, we also look to
applicable federal law when examining the propriety of a wiretap
authorization. (Sedillo, supra, 235 Cal.App.4th at p. 1053.)
Kennedy moved to suppress the wiretap authorization and
all the evidence obtained from the wiretap on the ground that the
warrant application did not establish probable cause that he had
committed or was committing any crimes. Instead, he contended,
the unsealed affidavit showed only that he might possess
information about crimes committed by his fellow gang members.
The motion was based on the disclosed portions of the wiretap
application. However, the prosecution’s opposition points and
authorities asked the trial court to also base its review on a
sealed affidavit containing information provided by a confidential
informant. The trial court denied the motion to suppress after
reviewing both the sealed and unsealed affidavits.
Kennedy may be right that the unsealed affidavit is
defective in regard to probable cause. However, the sealed
affidavit relaying information provided by the confidential

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informant cures any defects that might exist.5 (See People v.
Leon (2007) 40 Cal.4th 376, 392-393 [examining sealed affidavit];
People v. Hobbs (1994) 7 Cal.4th 948, 976-977 [same]; Sedillo,
supra, 235 Cal.App.4th at p. 1055 [same].) Without revealing too
much, the confidential informant provided direct evidence that
Kennedy obtained a handgun after his brother was shot at the
strip club and “shot at” Dixon, Batiste, and Ashley. This
statement provides probable cause that Kennedy committed that
crime. (See People v. Lazarus (2015) 238 Cal.App.4th 734, 765
[strong evidence of guilt gives rise to probable cause].) Because
the wiretap was valid as to the strip club shootings, the police
could use evidence concerning the subsequent loft shooting
obtained from the wiretaps as well. (United States v. Masciarelli
(1977) 558 F.2d 1064, 1067; People v. Jackson (2005)
129 Cal.App.4th 129, 145.) We therefore hold that the trial court
did not err by denying Kennedy’s motion to suppress the wiretap
evidence.
2. There Was Substantial Evidence That Kennedy Fired at All
Three Strip Club Shooting Victims
Kennedy raises two related substantial evidence challenges
to his attempted murder convictions in connection with the strip
club shooting: (1) even though he fired the gun that discharged
the .40 caliber Winchester casings, the existence of the one
Federal casing near the Harbor Inn shows there was at least one
more shooter, and there is no evidence that he was the one who
shot at Ashley, Dixon, and Batiste; and (2) even if there is
sufficient evidence that he fired in their direction, the fact that
only one bullet pierced the car and struck Batiste shows he fired
only one shot toward them, requiring reversal of two of the three
attempted murder convictions. (People v. Perez (2010) 50 Cal.4th
222, 231-232 [attempted murder convictions of multiple supposed
5 Kennedy asked us to augment the record to include the
sealed confidential informant affidavit so we could review it as
part of the probable cause analysis. We granted that motion.

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victims reversed when evidence showed only one shot in their
direction].)
A police detective testified that there had been other
shootings in the area and that it was not uncommon to find
expended shell casings from a previous shooting. Kennedy was
the only person seen with a gun and concedes that he was
responsible for the multiple Winchester casings (but not the lone
Federal casing) found at the scene of the strip club shooting. This
evidence at most raised a conflict for the jury to resolve, and we
hold that the jury could reasonably find that Kennedy had been
the only shooter.
We also believe there was substantial evidence that
Kennedy fired multiple shots toward the three women. First, as
the gang expert testified, gang culture called for an immediate
and escalated response by Kennedy that targeted as many people
as possible. Second, Kennedy had additional motive because the
fellow gang member who had just been killed was his brother.
Third, Kennedy admitted in a wiretapped conversation that he
emptied his gun in response to his brother’s murder. Fourth, the
location of the expended Winchester casings looks like a trail that
leads down PCH from the strip club to the Harbor Inn,
suggesting that Kennedy moved toward the victims in an effort to
concentrate on them and increase his chances of hitting his
targets. Finally, the fact that only one bullet hit the mark shows
only that Kennedy had poor aim. Taken as a whole, when viewed
under the substantial evidence standard of review, we conclude
there was sufficient evidence that Kennedy fired multiple shots
at all three victims at the strip club shooting.
3. Any Errors in Connection with the Kill Zone Instruction
Were Harmless
Although a murder charge requires proof of intent to kill by
either express or implied malice, attempted murder requires
proof that the defendant actually intended to kill the targeted
victim. Proof of intent by implied malice will not suffice. (People
v. Stone (2009) 46 Cal.4th 131, 140.) The jury was instructed
that it had to find specific intent in connection with the

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attempted murder counts. The jury was also instructed on the
so-called “kill zone” theory, which applies when a defendant
intends to kill a primary target, and his actions show a
concurrent intent to kill everyone around the target in order to do
so. (Id. at p. 137.)
In connection with the kill zone theory the jury was
instructed with CALJIC Instruction 8.66.1 as follows: “A person
who primarily intends to kill one person, may also concurrently
intend to kill other persons within a particular zone of risk. This
zone of risk is termed the ‘kill zone.’ The intent is concurrent
when the nature and scope of the attack, while directed at a
primary victim, are such that it is reasonable to infer the
perpetrator intended to kill the primary victim by killing
everyone in that victim’s vicinity. [¶] Whether a perpetrator
actually intended to kill the victim, either as a primary target or
as someone within a ‘kill zone’ or zone of risk is an issue to be
decided by you.”
Kennedy contends the trial court erred by giving this
instruction in two regards: (1) there was no evidence to support
the kill zone theory because there was no evidence that he knew
any of the victims or otherwise had selected one or more of them
as a primary target (People v. Guiton (1993) 4 Cal.4th 1116, 1129
[it is error to give instruction that is inapplicable because the
instructional theory is not supported by substantial evidence]);
and (2) even if there was evidence to support giving a kill zone
instruction, CALJIC 8.66.1 is flawed and misleading. We take
each in turn.6
6 Kennedy did not object to either giving CALJIC 8.66.1 in
the first place or to the wording of the instruction as given.
Respondent concedes that Kennedy’s failure to object did not
waive the objection to the wording of the instruction (§ 1259
[instructional error that affects defendant’s substantial rights not
waived by failure to object]), but contends he did waive the issue
whether the instruction should have been given at all. We
exercise our discretion to reach that issue on the merits.

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As to the first, we believe there was substantial evidence
that the four attempted murder victims were primary targets. As
discussed earlier, the evidence shows a trail of expended shell
casings leading down PCH toward Batiste, Dixon, and Ashley,
suggesting that Kennedy specifically targeted them and came
closer in order to increase his chances of hitting his targets. As
for the loft shooting, Kennedy said in a wiretapped conversation
that he shot back after being shot, also raising the inference that
he targeted the individuals he shot. As a result, there was
substantial evidence to support giving the kill zone instruction.
Kennedy’s second contention is based on three supposed
flaws in CALJIC 8.66.1. First, under People v. McCloud (2012)
211 Cal.App.4th 788, 802, footnote 7, he contends the
instruction’s use of the term “zone of risk” is misleading because
that term finds no support in the case law and because it
suggests the jury can find the defendant created a kill zone by
merely placing persons other than the primary target at risk of
fatal injury. Second, he contends the instruction does not refer to
specific intent, a required element of attempted murder. Finally,
he complains that the instruction allows the jury to find intent
under the kill zone theory if it is merely reasonable to infer the
defendant intended to kill the primary victim by killing everyone
around him, and should instead have required the jury to find
that the evidence actually established that intent.
We reject the latter two contentions. In order to evaluate a
claim of instructional error, we must view the instructions as a
whole to determine whether there is a reasonable likelihood the
jury was misled. (People v. Tate (2010) 49 Cal.4th 635, 696.) The
jury was instructed with CALJIC 3.31 that it had to find
Kennedy had the required specific intent for both the murder and
attempted murder counts. CALJIC 8.66 also told the jury that
the prosecution had to prove that Kennedy had malice
aforethought, “a specific intent to kill unlawfully another human
being,” in order to convict him of attempted murder. After

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describing the kill zone theory, CALJIC 8.66.1 concluded by
stating it was for the jury to decide whether Kennedy “actually
intended to kill the victim, either as a primary target or as
someone within a ‘kill zone’ . . . .” Taken as a whole, no
reasonable juror could conclude that Kennedy was guilty of
attempted murder if the kill zone theory were merely reasonable.
Instead, when read together, the directions clearly told the jurors
they must determine whether Kennedy specifically and actually
intended to kill each of his victims.
As for the first contention concerning use of the supposedly
ambiguous term “kill zone,” we conclude that any errors in that
instruction were harmless.7 Where an instruction omits or
misdescribes an element of a charged offense, the error violates
the right to a jury trial guaranteed by the Sixth Amendment to
the United States Constitution. As a result, we will reverse
unless the error is harmless beyond a reasonable doubt because
the verdict would have been the same absent the error. (People v.
Samaniego (2009) 172 Cal.App.4th 1148, 1165.)
Kennedy contends the error was prejudicial because:
(1) the prosecutor relied solely on an improper version of the kill
zone theory and never argued that there was evidence for a
finding that he actually intended to kill his attempted murder
victims; and (2) there was no evidence that he in fact had that
specific intent.
Kennedy is wrong as to both. In addition to arguing that
the kill zone theory applied, the prosecutor said in her opening
7 Although Kennedy challenges the wording of CALJIC
8.66.1, he does not offer alternative wording that should have
been used instead. We assume for discussion’s sake, but do not
decide, that error occurred. We also note that the language of
CALJIC 8.66.1 was revised in Fall 2016, and that the propriety of
CALJIC 8.66.1 is currently before our Supreme Court in several
cases. (People v. Cardona, S234660, rev. granted July 27, 2016;
People v. Sek, S226721, rev. granted July 22, 2015; People v.
Canizales, S221958, rev. granted Nov. 19, 2014.)

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argument regarding the attempted murder: “And did he intend
to kill? It doesn’t matter if he didn’t know [Batiste, Ashley, or
Dixon] from before. It doesn’t matter. But did he know they
were people and did he intend to kill somebody when he pulled
the trigger? Same thing as to Devon Augustine, you don’t have
mad [sic] at Devon Augustine or Ken McRoyal. Doesn’t matter.
Did he pull the trigger in the direction of a person intending to
kill?” In her closing argument, the prosecutor asked the jury to
find that Kennedy “tried to murder the three girls, and he tried to
murder Devon Augustine.”
Kennedy also complains that the prosecutor misstated the
meaning of CALJIC 8.66.1 when she told the jury that kill zone
liability existed if Kennedy “pulled the trigger knowing that there
were other people around and did not care who he hit in order to
accomplish his goals,” and, specifically as to the strip club
shooting, if Kennedy “fire[d] a shot toward that car and [did] not
care who, if anybody, he hit there.”
According to Kennedy, the test is not whether he cared
about hitting others but whether he intended to do so. When the
arguments and instructions are considered as a whole, we
conclude beyond a reasonable doubt that the jury was not thrown
off by the prosecutor’s comments.
First, Kennedy’s argument did not mention the intent issue
at all, focusing instead on creating reasonable doubt whether he
actually fired at the attempted murder victims. Second, as set
forth above, the instructions as a whole told the jury that in order
to find intent to kill under the kill zone theory, it had to find that
Kennedy specifically intended to kill his attempted murder
victims. Third, the prosecutor’s statements were prefaced by
both her reference to the instruction itself and her statement that
the focus was on whether Kennedy intended to kill his victims
and “tried” to kill them.
Given the evidence that Kennedy moved toward Dixon,
Batiste, and Ashley, leaving a trail of shell casings along the way,
and his own statement that he shot back at the loft party after
being shot himself, combined with the lack of emphasis on this

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issue during argument, we conclude beyond a reasonable doubt
that even if CALJIC 8.66.1 was flawed, a properly instructed jury
would have found that Kennedy actually intended to kill all four
victims when he fired.
4. The Prior Conviction Allegation Was Supported by
Substantial Evidence
In order to prove the section 667.5 prior conviction
allegation, the prosecutor introduced a packet from the California
Department of Corrections that included a prison intake record, a
set of fingerprints, and the abstract of judgment from the 2010
conviction of “John Fitzgeralg Kennedy” for being a felon in
possession of a firearm. At the hearing, the prosecutor referred
to an identifying photo in the packet, but that photo is not in the
appellate record. The trial court said it had reviewed the packet
and Kennedy’s lawyer offered no defense.
Kennedy contends on appeal that the evidence was
insufficient to establish that he was the same John Kennedy
identified by the records because the prosecutor did not offer a
comparison set of fingerprints for the court to examine, it is
unclear that the photograph was in fact before the trial court,
and there are many other people with the same name, including
one of his fellow gang members who was also a target of the
police wiretap.8
The prosecution must prove beyond a reasonable doubt the
elements of the sentence enhancement allegation. (People v.
Fielder (2004) 114 Cal.App.4th 1221, 1232.) A common means of
meeting that burden is to introduce certified documents from the
previous conviction proceedings and prison commitment,
including the abstract of judgment. (People v. Delgado (2008)
43 Cal.4th 1059, 1066.) The trier of fact may draw reasonable
inferences from those records that prove the prior conviction
allegation under the presumption that an official duty has been
regularly performed. (Ibid; Evid Code, § 664.) Unless evidence is
8 The unsealed wiretap affidavit corroborates this last point.

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offered to rebut this presumption, the trier of fact may determine
that a qualifying conviction occurred. (Delgado, at p. 1066.)
While the copy of the prior conviction documents placed in
the appellate record does not contain the photograph of Kennedy
referred to at the trial, we have reviewed the actual documents
themselves, which include that photograph.9 We therefore reject
Kennedy’s insinuation that the prosecutor falsely told the trial
court that the document packet included his photo and that the
trial court took that at face value without examining the packet.
Given that the trial court said it had reviewed the packet, which
included the photograph, along with the other documents, we
conclude there was sufficient evidence to support the section
667.5 prior conviction allegation.10
DISPOSITION
The judgment is affirmed.
RUBIN, ACTING P. J.
WE CONCUR:
FLIER, J. GRIMES, J.
9 We called up from the superior court all the exhibits
introduced at trial, including the prior prison record packet. On
our own motion we augment the record to include those exhibits.
(Cal. Rules of Court, rules 8.155(a)(1), 8.340(c).)
10 We also note that the 2010 abstract of judgment lists
Kennedy’s birthday as February 19, 1990, which matched the
date given by testimony at trial and the date listed in the
probation report from this proceeding.

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