40 Cal.App.5th 30
Cal. Ct. App.2019Background
- Defendant Markeith Jenkins was convicted of assault likely to produce great bodily injury (§ 245(a)(4)) and battery with serious injury (§ 243(d)); jury found he personally inflicted great bodily injury (§ 12022.7(a)).
- Jenkins admitted two prior strike convictions, two prior serious felony convictions (triggering five‑year § 667(a)(1) enhancements), and two prior prison convictions; sentence imposed was 25 years‑to‑life plus 13 years (including enhancements).
- After sentencing Jenkins sought (1) pretrial mental‑health diversion under newly enacted § 1001.36, (2) resentencing discretion under Senate Bill 1393 (amending § 1385/§ 667), and (3) vacation of fines/fees under People v. Dueñas; he raised these issues on appeal.
- The record includes substantial evidence of serious mental illness (competency reports, psychiatric evaluations diagnosing paranoid schizophrenia/bipolar disorder, and testimony the defendant was off his meds) and facts suggesting his disorder may have contributed to the offense.
- The Court of Appeal held § 1001.36 and Senate Bill 1393 apply retroactively to nonfinal cases, conditionally reversed and remanded for a diversion eligibility hearing and, if diversion is denied or unsuccessful, for reconsideration of the five‑year prior enhancements; it ruled the trial court lacked jurisdiction under § 1237.2 to rule on the fines/fees motion while other issues were on appeal and found Jenkins forfeited his Dueñas challenge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1001.36 (mental‑health pretrial diversion) applies retroactively and warrants remand for an eligibility hearing | § 1001.36 was not intended to apply retroactively | § 1001.36 is ameliorative and should apply retroactively under Estrada; remand for a prima facie diversion showing is required | Applied retroactively; court conditionally reversed and remanded for a § 1001.36 prima facie/eligibility hearing |
| Whether Senate Bill 1393 (allowing courts to strike serious‑felony priors for § 667 enhancements) applies retroactively and requires remand to consider striking priors | SB 1393 should not apply retroactively | SB 1393 reduces punishment/vests discretion and thus applies retroactively to nonfinal judgments under Estrada | Applied retroactively; remand ordered to allow the trial court to consider striking one or more serious‑felony priors unless the court clearly would not have done so originally |
| Whether the trial court retained jurisdiction under § 1237.2 to rule on Jenkins’s motion to vacate fines/fees while his appeal raising other issues was pending | Trial court can retain jurisdiction to correct fines/fees errors after notice of appeal | Trial court should have jurisdiction to resolve Dueñas motion during pendency of appeal | § 1237.2’s exception does not apply when other issues are on appeal; Jenkins should have raised fines/fees challenge in the Court of Appeal; trial court lacked jurisdiction in this posture |
| Whether Jenkins preserved an inability‑to‑pay challenge to fines/fees under Dueñas or forfeited the claim | Dueñas requires an inability‑to‑pay hearing; relief should be available | Jenkins sought relief under Dueñas on appeal | Forfeited: Jenkins did not object at sentencing and expressly had no objection; court declined relief and noted statutory constraints on challenging the portion of restitution above statutory minimum |
Key Cases Cited
- In re Estrada, 63 Cal.2d 740 (retroactivity presumption for ameliorative statutes)
- People v. Lara, 4 Cal.5th 299 (application of Estrada and retroactivity principles)
- People v. Romero (People v. Superior Court (Romero)), 13 Cal.4th 497 (trial court discretion to strike strikes — Romero motion referenced)
- People v. Dueñas, 30 Cal.App.5th 1157 (addressing inability‑to‑pay challenges to fines and fees)
- People v. Frahs, 27 Cal.App.5th 784 (retroactivity of diversion statute analysis)
- People v. Burns, 38 Cal.App.5th 776 (agreeing § 1001.36 may apply retroactively)
- People v. Weaver, 36 Cal.App.5th 1103 (retroactivity analysis of § 1001.36)
- People v. Garcia, 28 Cal.App.5th 961 (retroactivity of statutes reducing punishment)
- People v. McDaniels, 22 Cal.App.5th 420 (remand required unless record clearly shows court would not have struck enhancement)
- People v. Alexander, 6 Cal.App.5th 798 (interpreting § 1237.2 procedural requirements)
- People v. Gutierrez, 35 Cal.App.5th 1027 (forfeiture of inability‑to‑pay challenge when no timely objection)
- People v. Hennessey, 37 Cal.App.4th 1830 (ability‑to‑pay may include prison wages)