People v. Jenkins CA4/2

Filed 5/3/23 P. v. Jenkins CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E075787
v. (Super.Ct.No. INF064867)
LATOYA JENKINS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Reversed with directions.
Allen G. Weinberg, 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, Robin Urbanski and Meredith
S. White, Deputy Attorneys General, for Plaintiff and Respondent.
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In 2010, a jury convicted Latoya Jenkins of first degree murder with a true finding
on the robbery-murder special circumstance. (Pen. Code, § 190.2, subds. (a)(17)(A) &
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(d).) In 2020, Jenkins filed a petition to vacate her murder conviction under section
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1172.6 (formerly § 1170.95). The trial judge summarily denied the petition on the
ground the special circumstance finding rendered her categorically ineligible for
resentencing because it demonstrated the jury found she was “a major participant” in the
underlying robbery and acted “with reckless indifference to human life.” (§ 190.2, subd.
(d).)
Jenkins appealed the summary denial of her petition, arguing the finding didn’t
render her ineligible because it predated the California Supreme Court’s decisions in
People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th
522 (Clark), which clarified what “major participant” and “reckless indifference to
human life” mean for purposes of section 190.2, subdivision (d). After we dismissed the
appeal for lack of jurisdiction, the California Supreme Court granted review of our
dismissal order pending its decision in People v. Strong (2022) 13 Cal.5th 698 (Strong).
Subsequently, our Supreme Court issued Strong, in which it held that a robbery-
murder special circumstance finding predating Banks and Clark does not render a
petitioner ineligible for relief as a matter of law. After that decision, the Court transferred
1 Unlabeled statutory citations refer to the Penal Code.
2
Effective June 30, 2022, the Legislature renumbered section 1170.95 as section
1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.) We use section 1172.6 to refer
to whichever of the two statutes was in effect at the relevant time.
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Jenkins’s appeal back to us with directions to vacate our dismissal order and reconsider
the merits of her challenge under Strong. Having done so, we conclude Jenkins has
demonstrated a prima facie case for relief and is entitled to an evidentiary hearing under
section 1172.6, subdivision (d). We therefore reverse.
I
FACTS
A. Jenkins’s Trial, Conviction, and Direct Appeal
At Jenkins’s trial, the prosecution presented the following evidence, which we
take from our unpublished decision in her direct appeal. (People v. Jenkins (June 15,
2012, E052342) [nonpub. opn.] (Jenkins I).) On February 23, 2009, Jenkins and her two
brothers, Harrell and Drake, visited the home of Samuel Cotton to purchase marijuana.
When Cotton’s sister-in-law, S., answered the door, Jenkins told her they wanted to buy
$10-worth of weed from the victim. S. told Jenkins to come inside, but Jenkins hesitated
so S. closed the door and went back to the kitchen where she had been washing dishes.
A short time later, S. heard Jenkins ask Cotton for marijuana. Cotton asked, “Wait
a minute . . . Who’s with you?” and Jenkins replied she was with her “folks.” Jenkins
then went into the kitchen and talked with S., who continued to wash dishes until she
heard a male voice say, “Don’t move.” S. looked to where Cotton was sitting at the
dining table and saw a man—later identified as Harrell—holding Cotton in a choke hold
and pointing a gun at Cotton’s head. Harrell was wearing a black hooded sweater and had
a sheer stocking over his head to disguise his face.
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Complying with his order, S. went into the living room and got down on the floor.
She saw a second man, whom she later identified as Drake, standing in the hallway.
Drake also had a gun, and, like Harrell, was wearing a black hooded sweater with a sheer
stocking pulled over his head to disguise his face. Drake repeated Harrell’s order to lie
down on the floor.
S. closed her eyes and heard Harrell tell Cotton to get down on the ground. Within
seconds, she heard a gunshot followed by Jenkins saying, “Why did you shoot him? You
didn’t have to shoot him.” Jenkins knelt next to S. and told her, “[T]his wasn't supposed
to happen. I was supposed to get some weed.” Just before the group left, S. heard Drake
say, “Blood, calm down. You all right” and Harrell say, “Baby girl, you're going to be all
right. You’re going to be all right.”
The jury convicted Jenkins of first degree murder under a felony-murder theory
with a true finding on the robbery-murder special circumstance, and the trial court
sentenced her to life without possibility of parole. (§ 190.2, subds. (a)(17)(A) & (d).)
Jenkins appealed her conviction, arguing, among other things, that the record contained
insufficient evidence to support the special circumstance finding. In Jenkins I, we
rejected her contention and concluded the record contained substantial evidence to
support the special circumstance.
B. Banks, Clark, and Jenkins’s Habeas Petitions
In 2015 and 2016, the California Supreme Court decided Banks and Clark,
respectively, which discuss when section 190.2 authorizes a special circumstance life
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without parole sentence for a felony-murder defendant convicted as an aider and abettor.
(Banks, supra, 61 Cal.4th at p. 794; Clark, supra, 63 Cal.4th at pp. 609-610.) Those
decisions held that participation in an armed robbery, on its own, is insufficient to support
a finding the defendant acted with reckless indifference to human life. Instead, the fact
finder must consider “the defendant’s personal role in the crimes leading to the victim’s
death and weigh the defendant’s individual responsibility for the loss of life, not just his
or her vicarious responsibility for the underlying crime.” (Banks, at p. 801.) “The
defendant must be aware of and willingly involved in the violent manner in which the
particular offense is committed,” thereby “demonstrating reckless indifference to the
significant risk of death his or her actions create.” (Ibid., italics added.) Banks provided a
nonexhaustive list of factors to consider when determining whether the defendant was a
major participant in the underlying felony, and Clark provided a similar list for
determining whether the defendant acted with reckless indifference to human life.
(Banks, at p. 803; Clark, at pp. 619-623.)
Following those decisions, in 2016, Jenkins filed a habeas petition in the superior
court, alleging the record was insufficient to support the special circumstance finding
under the new guidance of Banks and Clark. The superior court denied the petition. The
following month, Jenkins filed a habeas petition in this court on the same ground, and we
summarily denied the petition.
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C. Senate Bill No. 1437 and Jenkins’s Section 1172.6 Petitions
In 2018, the Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.),
which, among other things, amended the definition of felony murder in section 189 and
created a procedure for vacating murder convictions predating the amendment that could
not be sustained under the new law. (Stats. 2018, ch. 1015, § 4.) Following this
procedure, in 2019, Jenkins filed a section 1172.6 petition to vacate her murder
conviction. She alleged she had been convicted of first degree murder under a felony-
murder theory and could not be convicted of murder under the new law.
Riverside County Superior Court Judge John D. Molloy appointed counsel for
Jenkins and held a hearing at which he summarily denied the petition. The judge
concluded the special circumstance finding demonstrated as a matter of law that the jury
had found she was a major participant in the robbery who acted with reckless indifference
to human life, and as a result, she was categorically ineligible for relief. Appointed
counsel stated, “I’m objecting for the record, but I understand the fact that the Court
referred to.”
Jenkins appealed the summary denial of her petition. Her appointed counsel filed a
no issue brief under People v. Wende (1979) 25 Cal.3d 436 and Anders v. California
(1967) 386 U.S. 738, but Jenkins filed a supplemental brief arguing the evidence was
insufficient to support a finding she was a major participant who acted with reckless
indifference to human life under Banks and Clark. In September 2019, we issued an
unpublished decision affirming the summary denial of her petition, explaining we had
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already determined in Jenkins I that substantial evidence supported the special
circumstance finding. (People v. Jenkins (Sept. 26, 2019, E072564) [nonpub. opn.].)
After we issued that opinion, a split of authority developed in the appellate courts
over whether a robbery-murder special circumstance finding that predates Banks and
Clark renders a petitioner ineligible for relief as a matter of law. Some courts—ours
among them—held that such a finding did render the petitioner ineligible, but other
courts took the opposite view and concluded that findings predating the guidance in
Banks and Clark did not render the petitioner ineligible as a matter of law. (Compare
People v. Torres (2020) 46 Cal.App.5th 1168, People v. Smith (2020) 49 Cal.App.5th 85,
& People v. York (2020) 54 Cal.App.5th 250 [concluding the special circumstance
finding does not render a petitioner ineligible for relief as a matter of law] with People v.
Gomez (2020) 52 Cal.App.5th 1, People v. Galvan (2020) 52 Cal.App.5th 1134, &
People v. Jones (2020) 56 Cal.App.5th 474, all abrogated by Strong, supra, 13 Cal.5th
698 [reaching the opposite conclusion].)
After this split emerged, on June 17, 2020, Jenkins filed a second section 1172.6
petition. This time, her petition alleged she was entitled to an evidentiary hearing because
her special circumstance finding predated Banks and Clark. Her petition identified the
split, and, relying on the Torres line of cases, argued that her first petition had been
deficient in failing to make this argument.
At a status conference on August 21, 2020, the same judge that decided Jenkins’s
first petition summarily denied her second petition, without prejudice, based on the same
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conclusion as before—that the special circumstance finding rendered her ineligible for
relief as a matter of law.
Jenkins then filed the current appeal, challenging the denial of her second petition.
On March 23, 2021, we dismissed her appeal by order, concluding the trial court lacked
subject matter jurisdiction to rule on her second petition because the order denying her
first petition had been affirmed on appeal. Jenkins petitioned the California Supreme
Court to review our dismissal order, and the Court granted review, deferring action
pending its decision in Strong.
In August 2022, our Supreme Court issued its decision in Strong, holding that a
special circumstance finding predating Banks and Clark does not render a petitioner
ineligible for relief. Following its decision, the Court transferred the matter back to us
with directions to vacate our dismissal order and reconsider Jenkins’s appeal under
Strong.
II
DISCUSSION
A. The Trial Court Did Not Lack Jurisdiction to Consider the Petition
As a threshold matter, we address the People’s contention we should dismiss this
appeal for the same reason we initially did so—lack of jurisdiction. To support this
argument, the People rely on the case we cited in our dismissal order, People v. Berg
(2019) 34 Cal.App.5th 856, 860-861 (Berg). We decline to dismiss for two reasons.
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First and most importantly, our Supreme Court has ordered us to vacate our
dismissal order and consider the merits of this appeal under Strong. If our high court
agreed with our previous conclusion that the trial court lacked jurisdiction to hear
Jenkins’s second petition, it would not have issued such an order.
Second, we conclude our earlier reliance on Berg to dismiss the appeal for lack of
subject matter jurisdiction was misplaced. In Berg, the trial court had granted the
defendant’s habeas petition challenging his sentence based on a recent change in the law.
The People appealed the order granting the petition, and the appellate court affirmed.
After remittitur issued in that case, the People asked the trial court to reconsider the order
granting the petition, the order the appellate court had affirmed. Upon reconsideration,
the trial court agreed with the People, vacated its prior order, and issued a new one
denying the petition. (Berg, supra, 34 Cal.App.5th at p. 860.) This time the defendant
appealed, arguing the trial court lacked jurisdiction to modify an order that had already
been affirmed on appeal. The Berg court agreed, concluding there was no authority to
“permit the People, within this same habeas proceeding, ‘to revive this litigation after its
final conclusion.’” (Id. at p. 861, italics added.)
Analogizing to Berg, we concluded the trial court similarly lacked jurisdiction to
rule on Jenkins’s second resentencing petition because we had already affirmed the
summary denial of her first petition. But upon further reflection, we conclude our analogy
was inapt.
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Berg is contextually distinguishable because it involved a single habeas
proceeding challenging the judgment before it became final. In such cases, because a
judgment includes the sentence, an appeal from the judgment generally deprives the trial
court of jurisdiction over a motion to modify the sentence. (People v. McKenzie (2020) 9
Ca1.5th 40, 46; People v. Scarbrough (2015) 240 Cal.App.4th 916, 922, 929-930.)
By contrast, a resentencing petition under section 1172.6 is not a challenge to the
judgment. Rather, section 1172.6 establishes a retroactive procedure for raising a
collateral, postjudgment challenge to a final conviction and sentence. “[S]ection 1170.95
contains no express bar to successive petitions.” (People v. Farfan (2021) 71 Cal.App.5th
942, 950 (Farfan).) Once a judgment has become final, as Jenkins judgment has, an
appeal from a postjudgment order denying a petition to modify the judgment does not
divest the trial court of jurisdiction over a second such petition.
In Berg, the People asked the trial court to modify the very same order the
appellate court had already affirmed, whereas Jenkins brought a second, distinct
resentencing petition, one that was based on a different legal ground than her first. As the
court recently explained in Farfan, to conclude a successive petition based on a different
legal ground than the first is procedurally barred “would thwart Senate Bill No. 1437’s
overall purpose of ensuring that ‘a person’s sentence is commensurate with his or her
individual criminal culpability’ [citation], and that ‘all those entitled to resentencing are
able to obtain relief’ [citation].” (Farfan, supra, 71 Cal.App.5th at p. 950 [rejecting the
People’s contention that collateral estoppel barred the defendant from filing a second
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§ 1172.6 petition].) This is in part because when Jenkins’s initial petition was denied in
2019, the jurisprudence on section 1172.6 was in a “still-evolving state.” (Farfan, at
p. 950.) In our view, refusing to consider the merits of Jenkins’s second petition because
she filed her first before the Banks/Clark issue arose in the appellate courts would
effectively punish her for diligently trying to protect her rights.
We therefore decline to dismiss the appeal and instead follow the California
Supreme Court’s directive to consider its merits under Strong.
B. Jenkins Is Entitled to an Evidentiary Hearing
In Strong, our Supreme Court held that a true finding on a robbery-murder special
circumstance that predates Banks and Clark does not render a section 1172.6 petitioner
ineligible for relief as a matter of law because the finding was made “under outdated
legal standards.” (Strong, supra, 13 Cal.5th at p. 720.) Strong also held that a court’s
postconviction determination that substantial evidence supports the finding under the
guidance established in Banks and Clark also does not render the petitioner ineligible as a
matter of law because that determination “would not involve a determination beyond a
reasonable doubt that [the current legal standards] were met.” (Strong, at p. 720.)
Having reconsidered this case under these principles, we conclude Jenkins has
established a prima facie case for relief because her special circumstance finding predates
Banks and Clark.
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III
DISPOSITION
We reverse the trial court’s order denying Jenkins’s second resentencing petition,
filed on June 17, 2020. On remand, the trial court shall issue an order to show cause and
conduct an evidentiary hearing in accordance with section 1172.6, subdivision (d).
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J.
We concur:
RAMIREZ
P. J.
RAPHAEL
J.
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