People v. Jenkins CA1/1 ( 2023 )

Filed 9/21/23 P. v. Jenkins CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent, A166567
v. (San Mateo County
DEMETRIUS LAVON JENKINS, Super. Ct. No. SC025470A)
Defendant and Appellant.
Defendant Demetrius Lavon Jenkins appeals from an order denying his
petition to vacate his murder conviction and be resentenced under Penal
Code1 section 1172.6.2 Defendant contends at an evidentiary hearing held
under section 1172.6, subdivision (d)(3), the trial court should not have
admitted evidence of the transcript of his 1990 preliminary hearing without
first requiring the prosecution to establish the unavailability of the
1 All statutory references are to the Penal Code, unless otherwise
indicated.
2 Defendant filed his petition for resentencing under former
section 1170.95, which the Legislature later renumbered section 1172.6
without substantive change. (Stats. 2022, ch. 58, § 10.) We hereafter cite to
section 1172.6 for ease of reference.
preliminary hearing witnesses. We reject this contention and affirm the
court’s order.
I. FACTUAL AND PROCEDURAL BACKGROUND
Two witnesses, Emile J. and Alisha S., testified at defendant’s
preliminary hearing held on November 27, 1990.3 On August 8, 1990, Emile
and Alisha were in East Palo Alto. Both observed defendant standing by the
driver’s side of a car talking to a “white guy” seated in the driver’s side. Then
they heard a gunshot.
Following the shot, defendant said to the man in the car, “ ‘break
yourself.’ ” Emile J. understood this to mean, “you give up whatever you have
on you.” He heard the man in the car respond, “I don’t have nothing,” and
saw him roll up his window. Emile told defendant, “ ‘Don’t shoot.’ ” Alisha
indicated that “Everybody was like, ‘Don’t do it.’ ” After defendant said,
“break yourself,” Emile saw the barrel of a gun “pointing toward the window.”
Once the man rolled up the window, Emile and Alisha heard what sounded
like a firecracker/second gunshot and Emile noticed the window was
shattered. Defendant ran away. Following the shooting, the man in the car
drove off and it looked like he was going to turn at a stop sign, but instead
swerved, hitting a car. A couple of hours later, defendant told Emile that
“whoever did it was sick.”
In a 2013 risk assessment report prepared for the Board of Parole
Hearings, defendant stated he shot the victim because the victim would not
give him money. Similarly, in a 2016 risk assessment report, defendant
recalled that after asking three times for money, he “ ‘got tired’ ” and “ ‘shot
the man.’ ”
3 We take the facts from the preliminary hearing transcript.
2
Following a preliminary hearing, an information was filed charging
defendant with murder (§ 187) and attempted robbery (§§ 211, 664). It was
further alleged defendant used a firearm in committing both offenses
(§§ 12022.5, 1203.06), and the murder occurred during the commission of the
attempted robbery (§ 190.2, subd. (a)(17)).
Defendant pleaded no contest to first degree murder and admitted the
firearm allegation. On the prosecution’s motion, the court dismissed the
remaining count and allegations.
In April 1991, defendant was sentenced to 30 years to life in state
prison.
Over 20 years later, on August 15, 2021, defendant filed a petition for
resentencing under section 1172.6. After the prosecution conceded defendant
had made a prima facie showing for relief, the trial court held an evidentiary
hearing.
During the evidentiary hearing, over defendant’s objection, the court
admitted evidence of the preliminary hearing transcript and defendant’s
statements to the parole board.4 Defendant argued the preliminary hearing
transcript was not admissible unless the prosecution established the
witnesses whose testimony the prosecution intended to offer were
unavailable in accordance with Evidence Code section 1291. The court
rejected defendant’s argument and ruled the preliminary hearing transcript
was admissible regardless of the availability of the witnesses.
After hearing arguments from counsel, the court denied defendant’s
section 1172.6 petition. The court explained it had reviewed all the evidence
“with particular weight given to the preliminary hearing transcript
4 Because defendant does not challenge the admissibility of his
statements to the parole board, we will not address their admissibility.
3
specifically the witness’ statements concerning their testimony of observing
the defendant fire the firearm at extremely close range at the victim . . . .”
The court also noted the witness’s statements were “given further context by
the admitted [parole] risk assessments as well as the defendant’s statement
here in court,” explaining “his motivations and why the shooting occurred.”
Lastly, the court found there was no reason to vacate and resentence on any
count because all the evidence was “sufficient” to support the first degree
murder conviction.
II. DISCUSSION
Section 1172.6, subdivision (d)(3) provides: “The admission of evidence
in the [evidentiary] hearing shall be governed by the Evidence Code, except
that the court may consider evidence previously admitted at any prior
hearing or trial that is admissible under current law, including witness
testimony, stipulated evidence, and matters judicially noticed.” (Italics
added.)
Defendant contends the trial court erred at his evidentiary hearing on
his section 1172.6 petition by admitting the preliminary hearing testimony of
percipient witnesses Emile J. and Alisha S., because the language of
subdivision (d)(3) restricts the use of testimony given in a prior preliminary
hearing to testimony “that is admissible under current law.” Under current
law, he argues prior testimony is admissible pursuant to Evidence Code
section 1291, subdivision (a) if, among other requirements, the “declarant is
unavailable as a witness.” Thus, defendant concludes, at the evidentiary
hearing held pursuant to section 1172.6, the prosecution was required to
establish the unavailability of the preliminary hearing witnesses before
introducing the 1990 preliminary hearing transcript into evidence. Because
the prosecutor did not prove, or even attempt to prove the two witnesses who
4
testified at the preliminary hearing were unavailable to testify at the
evidentiary hearing, defendant maintains the prior testimony was
inadmissible hearsay. According to defendant, the trial court based its ruling
primarily on the preliminary hearing transcript and defendant’s statements
to the parole board merely provided “further context” for its ruling. Had the
preliminary hearing transcript been excluded, defendant claims there is a
reasonable probability defendant would have achieved a more favorable
result.
This argument was recently rejected in People v. Cody (2023)
92 Cal.App.5th 87 (Cody). In Cody, the trial court relied on the 2012 trial
transcripts at the section 1172.6 hearing.5 As the Cody court explained,
section 1172.6, subdivision (d)(3) provides: “ ‘The admission of evidence in
the hearing shall be governed by the Evidence Code . . . .’ [Citation.] If the
Legislature had stopped there, then we would likely agree with [the
petitioner’s] interpretation of the statute. That is, we would find the
prosecution is required to make a showing of witness unavailability under
Evidence Code section 1291, before the trial court admit the former testimony
of witnesses at the evidentiary hearing. However, the law has an explicit
exception that provides for the admission of former testimony: ‘The
admission of evidence in the hearing shall be governed by the Evidence Code,
except that the court may consider evidence previously admitted at any prior
hearing or trial that is admissible under current law, including witness
testimony . . . .’ (§ 1172.6, subd. (d)(3), italics added.)” (Cody, at p. 104.)
5 We see no reason to distinguish between the admissibility of a trial
transcript and a preliminary hearing transcript in a section 1172.6
evidentiary hearing, nor do the parties posit any reason to do so.
5
Cody further reasoned that section 1172.6 “does contemplate that there
may be some evidence that was admitted at a former trial that would not be
admissible under current law. (See, e.g., People v. Sanchez (2016) 63 Cal.4th
665, 686 [an expert cannot relate case-specific out-of-court statements to
support the expert’s opinion].) However, that does not mean that all witness
testimony at a prior trial cannot be admitted without the prosecution making
a showing of witness unavailability.” (Cody, supra, 92 Cal.App.5th at p. 104.)
Lastly, the court explained that adopting the petitioner’s interpretation
“would mean that all section 1172.6 evidentiary hearings would effectively
become new court trials,” a result “that is plainly not what the Legislature
intended.” (Id. at p. 104, citing People v. Clements (2022) 75 Cal.App.5th 276,
297.)
We agree with Cody’s reasoning and reject defendant’s arguments to
the contrary. Accordingly, the trial court did not err in allowing the
prosecution to introduce the 1990 preliminary hearing transcript into
evidence without requiring compliance with Evidence Code section 1291,
subdivision (a).
III. DISPOSITION
The judgment is affirmed.
6
MARGULIES, J.
WE CONCUR:
HUMES, P. J.
BOWEN, J.*
A166567
People v. Jenkins

Judge of the Contra Costa County Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California Constitution.
7