The opinion
Filed 6/2/25 P. v. Kinney CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G063880
v. (Super. Ct. No. INF2201084)
LEMUEL KINNEY III, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Riverside
County, Dean Benjamini, Judge. Affirmed.
Brad J. Poore, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Melissa
Mandel and Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and
Respondent.
Lemuel Kinney III and an accomplice, Ezequiel Andres Torres,
were jointly charged with kidnapping and assaulting L.E. with a firearm, as
well as other offenses. Prior to trial, Torres pleaded guilty to the charges.
During Kinney’s jury trial, Torres testified regarding a drug deal that had
gone wrong, in which he and Kinney assaulted L.E. with firearms and
forcibly moved L.E. to the front door of his residence to unlock the door. The
jury convicted Kinney of kidnapping, assault with a semiautomatic firearm,
and possession of a firearm by a felon.
On appeal, Kinney contends Torres’s accomplice testimony was
uncorroborated and therefore the evidence was insufficient to support his
convictions. We disagree and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
I.
TEXT MESSAGES BETWEEN TORRES AND L.E.
On February 11, 2022, 18-year-old Torres sent text messages to
17-year-old L.E. after seeing L.E.’s social media posts about selling
marijuana. Torres did not know L.E. but contacted him to buy marijuana.
After Torres and L.E. agreed on a price for an ounce of marijuana and some
pills, L.E. gave Torres his address to come pick up the items. At L.E.’s
request, Torres sent a photograph of himself. Torres sent L.E. a message
when he was about five minutes away, letting him know he was close. L.E.
sent a message asking Torres to get out of the car when he got there.
II.
L.E.’S STATEMENTS TO LAW ENFORCEMENT
Around 2:30 a.m., Riverside County Deputy Sheriff Manuel
Padilla was dispatched to L.E.’s address. An adult living at the residence
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showed Padilla video from surveillance cameras on the property and reported
armed individuals tried to “take” L.E.
L.E. did not tell Padilla he had arranged to sell drugs to Torres
and denied knowing who the armed males were. Instead, he told Padilla he
walked outside around 11:40 p.m. to talk to his cousin on his cellphone when
two males in a white, older model car called him over and tried to sell him
drugs. He described one as a Hispanic male and the other as a Black male.
L.E. said the Hispanic male was driving, and the Black male, who was in the
car’s backseat, got out when L.E. walked up to the car. The Black male wore
a ski mask rolled up like a beanie and pulled it down later. The Hispanic
male wore a half-ski mask that showed his nose. L.E. said each male pulled
out a handgun and “clocked” them. The Hispanic male hit L.E. in the head
with a handgun.
L.E. ran toward the driveway of a neighbor’s house. He fell, and
they searched his pockets at gunpoint, demanding L.E. give them his money.
They, however, did not find anything in his pockets. They kicked L.E. in his
side and threatened to kill him and his mother if he made any noise. L.E. told
Padilla the two males picked him up and dragged him to his house, with the
Black male holding on to L.E.’s sweatshirt and walking behind him. At some
point, they had a gun to his neck. L.E. recounted one of the males demanded
to know the location of the money and told him to open the door to the house
or they were going to kill him and his family. L.E. prevented them from
entering the house by pretending to be unable to unlock the door. L.E.
jumped a wall and ran away, then the two males left.
Padilla viewed the video from the home’s surveillance cameras.
The recording from one camera depicted two males pushing L.E. to the
residence’s front door. The video recording from the front doorbell camera
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showed the two males walking up with L.E.; the males could be heard telling
L.E. to open the door and demanding he tell them the location of the money.
The two males wore dark clothing and their faces were covered with ski
masks. Padilla was unable to see the suspects’ full faces in the video footage
he reviewed. It appeared to Padilla one assailant was Hispanic and the other
was Black; the Black male was holding a handgun. The Hispanic male was
wearing blue medical gloves and put black gloves on over them. L.E. feigned
being unable to unlock the front door.
Padilla also obtained video from a surveillance camera at a
nearby residence. The neighbor’s surveillance camera captured “a white
older-model four-door vehicle parked near” L.E.’s residence. But the video
was blurry, and Padilla could not determine the car’s license plate or see
distinguishing marks on the car. Padilla believed the car was a Honda.
Deputy Yadira Perez interviewed L.E. a few weeks after the
incident. L.E. maintained the story he gave Padilla, with slight variations.
L.E. told Perez he was by the bench across the street from his house when the
Hispanic guy called him over, asked to use his cellphone, and tried to sell him
marijuana, amphetamine pills, and fentanyl. L.E. said they tried to get him
into the car, and when he declined, they pulled out handguns and demanded
money.
L.E. recounted he ran and fell. The males were quickly on top of
him, and the Hispanic male patted him down. They picked him up and
threatened to kill him and his family if he made any noises. They said they
wanted all the money and everything in the house. They walked him to his
house with a gun on him. L.E. pretended he was unable to unlock the front
door. He suggested he could hop the gate and go in through the side door.
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They gave him a boost over the wall and L.E. ran to the back door. The two
males left and drove away in their car.
L.E. told Perez the Hispanic male had a tattoo on his finger of a
money bag with a money sign on it. He provided Perez a photograph of the
Hispanic male as a potential suspect in the incident, which L.E. said he
obtained from social media. He said the other assailant “looked [B]lack” but
could have been “a dark Mexican.” L.E. described the car they were driving as
white with a black flame on it.
III.
POLICE INVESTIGATION
Law enforcement submitted the photograph L.E. provided Perez
to a facial recognition database and identified the individual in the
photograph as Torres. In March 2022, they executed a search warrant for
Torres’s residence and found two nine-millimeter Glock-style handguns,
similar to those seen in the video from the surveillance cameras. One firearm
was located inside a small bag belonging to Torres’s cousin, and the other was
discovered in the purse of Torres’s girlfriend. The handgun in the purse had
an extended magazine like one of the guns used in the incident. A black
puffer jacket, like the one worn by the Black male during the incident, was
found at Torres’s residence.
Torres, his girlfriend, and his cousin were arrested. Perez
interviewed Torres following his arrest. Torres admitted going to L.E.’s
residence to buy drugs and the deal did not go as planned, but he did not
initially name the person with him. He was hesitant to name his accomplice
because he was worried something would happen if he did. Perez told Torres
she could potentially have his girlfriend, who was a minor and thought to be
pregnant at the time, released to her parents instead of being booked into
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juvenile hall. Perez asked Torres what he was going to do for her. Torres
identified Kinney as the person with him because he did not want his
girlfriend to go to jail. When he identified Kinney to Perez, Torres knew
Kinney had other charges pending against him.
Based on the information Torres provided, a deputy sheriff
located Kinney’s home and saw a car parked at the residence like the one
seen in the surveillance video from the incident. The car at Kinney’s
residence was a four-door, white, older Toyota Camry, with several stickers
on the bumper. It appeared the car had been involved in a traffic collision and
was inoperable. A records check on the car’s license plate indicated the car
was a 1999 Toyota registered to Lemuel Kinney. Law enforcement executed a
search warrant for Kinney’s residence but did not locate any items relevant
to their investigation.
IV.
CHARGES
The prosecution jointly charged Kinney and Torres with
kidnapping L.E., assaulting him with a semiautomatic firearm, and
attempted robbery.
In April 2023, Torres pleaded guilty to the charges. He also
pleaded guilty in a separate case to a misdemeanor charge of possession of a
loaded firearm in a public place. Torres received 3 years of probation and a
10-year suspended sentence.
Kinney proceeded to trial on an amended information that
charged him with kidnapping (Pen. Code, § 207, subd. (a); count 1);1 assault
with a semiautomatic firearm (§ 245, subd. (b); count 2); attempted burglary
1 Undesignated references are to the Penal Code.
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(§§ 664, 459; count 3); and possession of a firearm by a felon (§ 29800,
subd. (a)(1); count 4). In the amended information, the prosecution alleged
Kinney personally used a firearm in the commission of the kidnapping
(§ 12022.53, subd. (b)); committed the offenses while out on bail (§ 12022.1);
and was previously convicted of an offense that qualified as a prior serious
felony (§ 667, subd. (a)) and a prior strike offense (§§ 667, subds. (c), (e)(1),
1170.12, subd. (c)(1)).
During a hearing on the in limine motions, Kinney admitted the
prior conviction allegations. The out-on-bail allegation was bifurcated from
the substantive charges, and Kinney waived his right to a jury trial on this
allegation.
V.
PROSECUTION’S TRIAL EVIDENCE
Prior to his testimony, L.E. was granted immunity under section
1324. L.E. was in custody at the time of his testimony, after pleading guilty
in two cases to possession of a loaded firearm in a public place. L.E. testified
he did not recognize the text messages between him and Torres involving the
sale of marijuana and other drugs. After he denied reporting to law
enforcement that two men attempted to rob him at gunpoint or that any
crime occurred, the prosecution played recordings of his prior statements to
Padilla and Perez.
L.E. repeatedly testified he had never seen Kinney before, did not
know him, and Kinney was not involved in the incident.
Torres was also granted immunity under section 1324 for his
testimony. Torres testified he met Kinney when Kinney was having work
done on his car. The two men started hanging out and smoked marijuana
together.
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Torres described the events that took place on February 11, 2022
involving L.E. While Torres was messaging L.E., Kinney visited Torres.
Kinney was driving his white car, a four-door Toyota sedan. Once they
received L.E.’s message confirming the sale, they went to L.E.’s house in
Kinney’s car to purchase the drugs. When they arrived,2 they parked the car
and met L.E. by a bench across the street from the address he gave them.
Torres was wearing a mask similar to a ski mask.
Torres gave cash to L.E. for the purchase. L.E. informed them he
did not have the items they wanted to purchase but his friends were coming
with the drugs. Torres and Kinney stood outside with L.E., by the bench,
waiting for his friends to arrive. Torres and Kinney were upset L.E. was
unable to produce the items he agreed to sell them. Torres thought L.E. was
stalling them so L.E.’s friends could come and try to rob them. After a few
minutes, Torres and Kinney started to argue with L.E. and things escalated
because L.E. kept repeating his friend was coming “with the stuff.” Kinney
pulled out a nine-millimeter handgun, loaded the chamber, pointed it at L.E.,
told him to stop playing, and demanded he give them the drugs. Torres also
pulled out his handgun.
L.E. ran, causing Torres and Kinney to chase after him because
he had taken their money without giving them the drugs. When L.E. fell,
Torres and Kinney caught up to him. They searched his pockets, trying to
find money or a phone, but they were unable to find anything. They ordered
L.E. to get up and assisted him by picking him up by his arms. When L.E.
2 Torres provided inconsistent testimony as to who was driving
when they arrived. He initially testified Kinney was driving, but on cross-
examination, Torres testified he was driving Kinney’s car when they met L.E.
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professed he did not have the drugs, they told him to take them to his house.
As they walked L.E. to the front door of his house, they held L.E.’s arms.
Torres was holding his handgun in his jacket pocket, and Kinney had his at
L.E.’s back. But they did not verbally threaten L.E. or his family.
They demanded L.E. open the door, but he could not get it to
unlock. L.E. said he would go in through the side door to get inside. After
Torres gave him a boost to get over the wall, L.E. ran away. Torres and
Kinney left in Kinney’s car. Kinney dropped Torres off at home, and Kinney
took both handguns. Torres did not see Kinney after the incident because
Kinney was irritated about what happened and they were not talking.
Torres acknowledged the police found two firearms when they
searched his house. However, he denied either gun belonged to him or that
they were used during the incident. Torres testified both handguns used on
February 11, 2022 belonged to Kinney.
Torres was shown photographs obtained from one of the
surveillance videos and identified the white car as belonging to Kinney.
Torres testified Kinney had a lot of stickers on the back of his car at the time.
After viewing the doorbell camera’s video, Torres identified Kinney in the
video as being with him and L.E.
Watching the surveillance video, Perez saw what she believed to
be a tattoo on the top of Kinney’s left hand. The prosecution had Kinney
display the tattoos on the backside of his hands to the jury, and the parties
stipulated he had those tattoos since January 13, 2022.
Kinney was previously convicted of a felony in 2015 and was
thereafter prohibited from owning, possessing, or having a firearm under his
control.
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VI.
DEFENSE’S TRIAL EVIDENCE
Kinney testified in his own defense and denied any involvement
in the incident, stating he was at home with his wife the evening of the
incident.
Kinney testified he met Torres once, in December 2021, at a baby
shower for Kinney’s wife. They spoke briefly, and Torres learned Kinney had
a case pending against him, but Kinney did not tell Torres what the case was
about.
As for the white car parked at his house, Kinney denied driving it
in February 2022 or that it was the car seen in the video from the
surveillance cameras. He testified the car belonged to his father, Lemuel
Kinney II and was inoperable at the time of the crime. He explained his
father rolled the car in January 2022 and had it towed to Kinney’s house
because his father did not have a place to park it. He testified he did not have
a driver’s license and did not own a car.
As a juvenile, Kinney was adjudicated for committing a burglary,
and he was previously convicted as an adult of taking or driving a stolen
vehicle, possessing a firearm as a prohibited person, and accessory to
robbery.
VII.
VERDICTS AND SENTENCING
The jury convicted Kinney of kidnapping, assault with a
semiautomatic firearm, and possession of a firearm by a felon. The jury found
Kinney personally used a firearm in the commission of the kidnapping
offense, and the court found Kinney committed the offenses while out on bail.
The jury found Kinney not guilty of attempted burglary.
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Pursuant to the “Three Strikes” law, the court sentenced Kinney
to prison for a total term of 17 years 4 months, comprised of 6 years for the
kidnapping conviction (low term doubled); a consecutive 10-year term for the
firearm enhancement; and 16 months consecutive for the firearm possession
conviction (one-third the midterm doubled). The court stayed the sentence for
the assault with a firearm conviction under section 654 and stayed the
punishment on the out-on-bail enhancement. The court imposed but struck
the punishment (§ 1385, subd. (b)) for the prior serious felony enhancement.
Kinney timely appealed.
DISCUSSION
Torres testified regarding Kinney’s participation in the charged
crimes, and the trial court instructed the jury Torres was an accomplice in
those crimes as a matter of law. (CALCRIM No. 335.) Because Torres was an
accomplice, section 11113 required his testimony be corroborated by other
evidence connecting Kinney with the commission of the offenses. Kinney
contends his convictions must be reversed because the only evidence
connecting him to the offenses was Torres’s uncorroborated accomplice
testimony. We disagree.
A. Applicable Law
The California Supreme Court has “interpreted section 1111 to
require ‘evidence tending to connect defendant with the crimes “without aid
or assistance from the testimony of”’ the accomplice.” (People v. Perez (2018)
3 Section 1111 provides in pertinent part: “A conviction can not be
had upon the testimony of an accomplice unless it be corroborated by such
other evidence as shall tend to connect the defendant with the commission of
the offense; and the corroboration is not sufficient if it merely shows the
commission of the offense or the circumstances thereof.”
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4 Cal.5th 421, 452.) The accomplice corroboration requirement in
section 1111 “is based on the Legislature’s determination that ‘“because of the
reliability questions posed by”’ accomplice testimony, such testimony ‘“by
itself is insufficient as a matter of law to support a conviction.”’” (People v.
Romero and Self (2015) 62 Cal.4th 1, 32 (Romero and Self).) “‘Thus, for the
jury to rely on an accomplice’s testimony about the circumstances of an
offense, it must find evidence that, “‘without aid from the accomplice’s
testimony, tend[s] to connect the defendant with the crime.’”’” (People v.
Rodriguez (2018) 4 Cal.5th 1123, 1128.)
The California Supreme Court has explained: “[A]n accomplice’s
testimony is not corroborated by the circumstance that the testimony is
consistent with the victim’s description of the crime or physical evidence from
the crime scene. Such consistency and knowledge of the details of the crime
simply proves the accomplice was at the crime scene, something the
accomplice by definition admits. Rather, under section 1111, the
corroboration must connect the defendant to the crime independently of the
accomplice’s testimony.” (Romero and Self, supra, 62 Cal.4th at p. 36.) “‘“The
entire conduct of the parties, their relationship, acts, and conduct may be
taken into consideration by the trier of fact in determining the sufficiency of
the corroboration.” [Citations.] The evidence “need not independently
establish the identity of the victim’s assailant” [citation], nor corroborate
every fact to which the accomplice testifies [citation], and “‘may be
circumstantial or slight and entitled to little consideration when standing
alone.’”’” (People v. Dalton (2019) 7 Cal.5th 166, 245; accord, People v. Gomez
(2018) 6 Cal.5th 243, 307–308.) Corroborating “‘evidence is “sufficient if it
tends to connect the defendant with the crime in such a way as to satisfy the
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jury that the accomplice is telling the truth.”’” (People v. Williams (2013) 56
Cal.4th 630, 679.)
“‘[T]he requirement that accomplice testimony be corroborated is
an “‘exception[]’ to the substantial evidence” rule. [Citation.] It is based on
the Legislature’s determination that “‘because of the reliability questions
posed by’” accomplice testimony, such testimony “‘by itself is insufficient as a
matter of law to support a conviction.’”’ [Citation.] For this reason, ‘[t]he trier
of fact’s determination on the issue of corroboration’ is not binding on the
reviewing court if the ‘corroborating evidence . . . does not reasonably tend to
connect the defendant with the commission of the crime.’” (People v. Dalton,
supra, 7 Cal.5th at p. 245.)
B. Torres’s Testimony Was Sufficiently Corroborated
Kinney contends there was no evidence identifying him as the
second individual involved in the offenses against L.E. apart from Torres’s
testimony. We conclude Torres’s testimony was corroborated by sufficient
evidence to satisfy section 1111.
Independent of Torres’s testimony, the jury viewed the
surveillance videos and photographs of the older model, white, four-door
sedan with a black or dark strip on the car’s side, driven by L.E.’s assailants.
The jury was able to compare these images to the photograph of the older
model, white, four-door Toyota at Kinney’s house and registered to Lemuel
Kinney. From these images, the jury could reasonably determine the car at
Kinney’s house was the car at the scene of the incident with L.E.
Torres’s testimony was also corroborated by the doorbell camera
video, in which Torres and a dark-skinned male are heard telling L.E. they
wanted money and they wanted him to open the front door. The jury was able
to view the video and still images and compare Kinney’s features and tattoos
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to those seen in the video. L.E.’s initial statement to law enforcement, in
which he described the second assailant as a Black male, also corroborated
Torres’s testimony. All of this evidence connected Kinney to the crimes
against L.E. and gave the jury a reasonable basis for finding Torres’s
accomplice testimony credible. (See People v. Rodriguez, supra, 4 Cal.5th at
p. 1129 [“The nonaccomplice evidence must corroborate aspects of the
accomplice testimony that ‘“‘tend[ed] to connect the defendant with the
crime’”’”].)
Kinney contends this evidence was insufficient corroboration. He
asserts L.E.’s statement did not corroborate Torres’s testimony because L.E.
did not mention Kinney’s face tattoos. Kinney also relies on L.E.’s trial
testimony that Kinney was innocent and not the second individual involved
in the crimes. Kinney contends the fact a white car was used in the crimes
and a white car was at his residence was insufficient corroboration to connect
him to the crimes because there are numerous white cars of the same make
and age on California roads. He further asserts the tattoo on his hand was
not corroborating evidence because it was not clear the suspect in the video
had a tattoo. The jury, however, could reasonably reject these arguments and
conclude otherwise after viewing the surveillance videos and photographs,
hearing L.E.’s initial statements to law enforcement, and observing Kinney’s
features and tattoos in the courtroom. Corroborating evidence may be
“‘“circumstantial or slight and entitled to little consideration when standing
alone.”’” (Romero and Self, supra, 62 Cal.4th at p. 32.)
We therefore conclude the evidence was sufficient to corroborate
Torres’s testimony concerning Kinney’s involvement in the crimes.
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DISPOSITION
The judgment is affirmed.
MOTOIKE, J.
WE CONCUR:
O’LEARY, P. J.
SANCHEZ, J.
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