People v. Jones CA5 ( 2022 )

Filed 7/14/22 P. v. Jones CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
F083258
Plaintiff and Respondent,
(Super. Ct. No. BF159975A)
v.
STEPFON JONES, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from an order of the Superior Court of Kern County. Michael G. Bush,
Judge.
Catherine White, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
* Before Poochigian, Acting P. J., Smith, J. and Snauffer, J.
STATEMENT OF APPEALABILITY
This trial court’s order is appealable pursuant to Penal Code section 1237,
subdivision (b),1 which authorizes an appeal “[f]rom any order made after judgment
affecting the substantial rights of the party.” (Teal v. Superior Court (2014) 60 Cal.4th
595, 597; People v. Martinez (2019) 31 Cal.App.5th 719, 729.)
STATEMENT OF THE CASE
In the underlying case, appellant Stepfon Jones was charged with premeditated
murder (Pen. Code, § 187, subd. (a); count 1); assault on a child under age eight resulting
in death (§ 273ab, subd. (a); count 2); and felony child endangerment (§ 273a, subd. (a);
count 3).
In May 2017, a jury found appellant guilty of counts 2 and 3, and the lesser
offense of second degree murder in count 1. On June 27, 2017, the trial court sentenced
appellant to 25 years to life in prison on count 2, and a consecutive six-year sentence on
count 3. The trial court stayed the term of count 1 pursuant to section 654.
Appellant appealed. On September 18, 2020, this Court affirmed. (People v.
Jones (Sept. 18, 2020, F075895) [nonpub. opn.].)
In September 2018, Governor Brown signed into law Senate Bill No. 1437 (2017-
2018 Reg. Sess.) (Stats. 2018, ch. 1015, § 4). That bill, effective on January 1, 2019,
added section 1170.95 to the Penal Code. Former Section 1170.95 (now § 1172.6)2
created a procedure for certain defendants convicted of felony murder or murder on a
natural and probable consequences theory to return to court and, depending on the facts
of their cases, receive relief.
1 Subsequent statutory references are to the Penal Code.
2Effective June 30, 2022, section 1170.95 was renumbered section 1172.6, with
no change in text (Stats. 2022, ch. 58, § 10).
2.
On June 21, 2021, appellant filed a Petition for Resentencing, contending that he
was entitled to relief under section 1170.95. He further requested an attorney be
appointed.
On June 25, 2021, defense counsel was appointed to represent appellant. On
July 14, 2021, the Kern County District Attorney filed opposition to the petition for
failure to make a prima facie showing of eligibility. On August 18, 2021, defense
counsel filed a reply to the District Attorney’s opposition. On August 26, 2021, the trial
court denied the petition by written order. Appellant filed a timely Notice of Appeal.
STATEMENT OF FACTS3
On April 25, 2015, at approximately 9:30 p.m., two officers were dispatched to an
apartment in Bakersfield where J.J. (mother) was trying to revive her four-month-old son,
S., with CPR. S., who was not breathing and had no pulse, had a two-inch long oval-
shaped bruise on his forehead above his left eye. When the officer asked what had
happened, mother said she tried to take S. out of his swing to change his diaper and
accidently struck his head against the base of the swing, causing S. to have a seizure and
stop breathing. The officer did not believe mother’s story, knowing the injuries could not
have happened as the result of an accidental bump on a baby swing. Fifteen minutes
later, appellant arrived at the apartment.
At the time, mother and appellant lived together with their two-year-old daughter,
Z., and infant S. in a two-bedroom apartment they shared with appellant’s brother and his
family. S. slept in a baby swing in the one bedroom, along with Z. on a mattress on the
floor and mother and appellant shared a bed. Mother described appellant as happy about
S.’s birth, but when he began to cry a lot at age two to three months, appellant became
3 This statement of facts is quoted from this Court’s September 18, 2020 decision,
which, in turn, was the sole basis for the trial court’s denial of appellant’s section 1170.95
petition.
3.
frustrated. When mother would pick S. up to comfort him, appellant would tell her to put
him down and let him cry as “He’s a boy,” and “You’re not supposed to hold him.”
Testifying about the events before calling 911, mother stated that on the evening
of April 24, 2015, she was home with the two children while appellant was out. S. had
been running a slight fever and finally went to sleep. When appellant returned home at
about 10:00 p.m., everyone was asleep and appellant went to bed. Around midnight, S.
woke up and started screaming in pain. Mother got up, grabbed S. and tried to give him a
pacifier and bottle. She rocked him and tried to distract him, but nothing worked. He
eventually fell asleep and mother put him back in his swing. But 10 minutes later, S.
woke again and began crying. Appellant told mother to “[s]hut him up” and make him be
quiet.
Appellant then got up, shut the bedroom door and grabbed S. and started shaking
him and telling him to “shut up.” Mother yelled at appellant to stop, saying he was going
to hurt S. and “kill him.” But appellant did not stop, even though S. was no longer
crying. Appellant dropped S. on the ground, and when mother went to pick him up,
appellant pushed her away. He then kicked S., “[l]ike he was kicking a football”, against
the wall.
S.’s head hit the wall above the electrical outlet, and he fell onto the mattress
where Z. was sleeping, which woke her. When mother picked S. up, his nose was
bleeding uncontrollably and his head was not straight. Mother did not call 911, but as
time passed, she told appellant they should take S. to the hospital. Appellant refused,
saying he did not want people asking what had happened to S. He specifically instructed
her not to tell the police what had happened.
Mother tried to take care of S., but he could not suck on a bottle and he breathed
with difficulty. His fists were clenched and would not open. Although she knew she
should take S. to the hospital, she did not because she was “scared.”
4.
The following morning, mother again told appellant they should take S. to the
hospital, but he said that was “not going to happen.” Appellant left with his brother later
in the afternoon. He did not return. That night, S. stopped breathing and mother called
911. Law enforcement and paramedics arrived, administered CPR and transported S. to
the hospital. Mother followed. Before departing, Mother told detectives she was picking
up S. from a small baby swing and accidentally hit his head on one of the swing’s arms.
At the hospital, Mother’s grandmother advised mother to tell the truth, which she
subsequently did by telling detectives what actually happened. Mother said she initially
lied to officers about the incident because she was fearful that Child Protective Services
(CPS) would remove Z. from her. Mother and appellant had both had prior incidents
with CPS, and mother would be required to take parenting and substance abuse classes in
order to keep her children.
Mother was charged with felony child abuse, but later entered into an agreement in
which she pled no contest to the charge and received one year in jail and five years felony
probation. As part of the agreement, she was required to testify against appellant at trial.
On cross-examination, mother acknowledged that she, individually, had been investigated
by CPS in December 2014.
As part of her testimony, mother testified that she and appellant had a difficult
relationship and that he was often jealous if anyone would speak to her, he was physically
abusive towards her, and he had also been physically abusive with Z., slapping and
punching her on her arms, face, back and legs and telling her to “shut up.” Mother did
not report this behavior because she was scared of appellant. Mother had known
appellant since she was 14 or 15; at the time of the fatal incident involving S., she was 19
years old. At times, mother would leave appellant but return when he promised to
change. She reported him to the police in 2013 for abusing her and again in March of
2014. She estimated that, between early 2012 and April of 2015, appellant physically
abused her on 20 or 30 separate occasions and hit Z. 10 to 20 different times.
5.
Mother testified to an incident that occurred in August 2013 when she and Z. were
staying with mother’s grandmother. Appellant broke into grandmother’s house, when he
was drunk, in an effort to see mother and Z. During the incident, grandmother slipped on
the front doorstep and fell. After mother helped grandmother up, appellant kicked the
door as grandmother was trying to go back into the house, trapping her arm in the door
frame as he did so. Mother and Z. hid from appellant in the bathroom, but appellant
broke down the door, “nudged” mother’s head and left. An officer who responded to the
911 call on the incident found grandmother’s right wrist severely swollen and the metal
security door indented, as if it had been kicked. The locking mechanism to the bathroom
door had been ripped off. Appellant was subsequently convicted of elder abuse.
Grandmother testified that she had witnessed appellant act aggressive and
controlling over mother. On one occasion, he came to her house and destroyed the front
door to get mother’s attention. Appellant called mother “very ugly” names and
threatened both mother and grandmother.
The officer who responded to mother’s 911 call in March of 2014, spoke to
mother, who said appellant shoved her, slapped her, and pulled her hair as she was trying
to leave the apartment. The next day, appellant admitted to another officer that he had
pushed mother once or twice during the argument.
Appellant’s mother testified that she had called 911 in 2013 when she witnessed
appellant hitting mother in the face and body after the two had an argument. The officer
who responded to the scene viewed visible redness and swelling on mother’s face.
Appellant’s brother, who lived in the same apartment as mother and appellant, saw
appellant push mother while the two were arguing, and had seen appellant “blow up” at
mother on prior occasions.
An autopsy determined S. died from blunt force head and neck trauma. He had
several fractures of the skull, suffered multiple hemorrhages underneath the scalp, and
several retinal and optic nerve sheath hemorrhages confirmed he had been shaken. The
6.
forensic pathologist opined that the injuries could not have been suffered accidentally,
and likened them to the type suffered by persons in traffic collisions. The injuries were
fresh and acute and of the same age.
Appellant spoke to officers in the early morning of April 26, 2015, a recorded
interview of which was played for the jury. After he was read his Miranda rights,
appellant claimed “It wasn’t on purpose,” but that he and mother were arguing and he
grabbed S., tripped over a chair, and they both fell to the ground “hard.” He later agreed
that he did not accidentally trip with S., but that he threw S. down in anger. He admitted
shaking S. “a little.” When asked if anyone overheard him say anything while this was
taking place, appellant said he probably said “shut up or something,” but then again said
“[i]t wasn’t on purpose though.” Appellant also admitted that he “kind of hit [S.] a little
bit” and gave him “one little kick” “a little bit hard” with his foot, causing S. to fly over
Z. on her mattress and hit the wall.
Appellant acknowledged having hit S. “a little” three or four times on his head a
few days earlier because he was crying. He admitted hitting Z. before, but “not like that,”
only that he would “whoop her” when she did not listen.
Appellant admitted pushing mother “a little bit” when he took S. from her. He
admitted threatening to shoot her, but he explained he had told her that a long time ago
and he was not serious.
After appellant kicked S., S. started bleeding from his nose, which scared both
appellant and mother. Neither did anything about it, other than to clean up the blood with
towels appellant later threw away.
Appellant told the interviewing detective that he was on SSI for “being … kinda
slow and I can’t read …, that’s about all I know.” When asked if he could have made a
different choice that night and not beaten S., appellant said, “[c]ould of” and “I know I
should of.” Appellant admitted that throwing and kicking S. were bad choices and that
he should have “[j]ust walked off.”
7.
Appellant acknowledged that mother had wanted to call 911 right away after
everything happened, but he asked her “[W]hat are we gonna tell ‘em?” Mother said she
did not know. No call was made to 911. Appellant agreed that his worry of getting into
trouble was stronger than him wanting to help his son. Appellant denied mother had
done anything to cause the injury.
The following day, a social worker interviewed appellant at the jail after Z. had
been placed into protective custody. The recorded interview was played for the jury.
Appellant again admitted shaking, dropping and kicking S. Appellant thought he might
have been drunk when he got mad at S.
Defense
Appellant blamed the incident on mother, citing her stories to the paramedics and
officers who responded to the scene. Mother acknowledged she had told grandmother,
on the way to the police station, that she was the one who struck S.’s head on the swing
right before she called 911.
Appellant’s father testified that he, like appellant, had learning disabilities and
were both clients at the Regional Center. Appellant’s father testified that appellant had
trouble with basic daily tasks, such as maintaining his personal hygiene.
In November 2016, a clinical psychologist, Nicanor S. Garcia, evaluated appellant
for intellectual disabilities. Appellant appeared to be his stated age of 22 years, but was
somewhat “slow and subdued” in his presentation and had a flat affect. While appellant
was able to count from two to 20, he skipped a few numbers. He had difficulty spelling
words like “cat” and “world” backwards. Appellant was able to remember two of the
three memory words the psychologist had earlier told him. He could read some words,
but was unable to explain simple proverbs.
Appellant knew who the current president was, but had slow auditory processing.
He had an IQ of 59, which was in the .3 percentile and 41 points below average.
Appellant had IQ tested in the same range at age 10 and was diagnosed with mild mental
8.
retardation. Dr. Garcia diagnosed appellant with “[i]ntellectual disability” “[m]ild in
degree or severity.” The psychologist believed appellant had limited ability to
communicate, reason, problem solve, and plan. He also had limited ability to take care of
himself and conceptualize everyday events.
DISCUSSION
We have elected to independently review the entire record as urged by appellant’s
counsel in this case, consistent with the opinions in People v. Gallo (2020)
57 Cal.App.5th 594, 598, and People v. Flores (2020) 54 Cal.App.5th 266, 269.
In denying appellant’s petition for resentencing pursuant to section 1170.95, the
trial court explicitly found that appellant had failed to make a prima facie case for relief
under section 1170.95, subdivision (c), because, as the actual killer, appellant was
statutorily ineligible for relief.4 The trial court specifically relied upon this Court’s
opinion affirming appellant’s underlying convictions.
Appellant’s brief, the facts as set forth in the underlying case, and the record of
conviction are universally in agreement that appellant was the actual killer in this case.
The trial court’s finding was based on appropriate evidence in conformance with our
Supreme Court’s opinion in People v. Lewis (2021) 11 Cal.5th 952, 970—972.
APPELLATE COURT REVIEW
Appellant’s appointed appellate counsel has filed an opening brief that
summarizes the pertinent facts, raises no issues, and requests this court to review the
record independently. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) The opening
brief also includes the declaration of appellate counsel indicating appellant was advised
he could file his own brief with this court. By letter on December 7, 2021, we invited
appellant to submit additional briefing. To date, he has not done so.
4 Section 189, subdivision (e)(1).
9.
On March 4, 2022, this Court issued an order permitting appellate counsel to strike
appellant’s brief filed under Wende, supra, 25 Cal.3d 436, and to instead file an
appellant’s opening brief if counsel determined that recently enacted legislative changes
to the law were applicable to appellant’s case. By letter of March 5, 2022, appellant’s
counsel informed the court that she had determined not to submit any further briefing in
this case.
Having undertaken an examination of the entire record, we find no evidence of
ineffective assistance of counsel or any other arguable error that would result in a
disposition more favorable to appellant.
DISPOSITION
The order denying appellant’s petition for resentencing is affirmed.
10.