THE PEOPLE, Plaintiff and Respondent, v. SHERWOOD DON JENKINS, Defendant and Appellant.
E075886 (Super.Ct.No. RIF089248)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION TWO
Filed 10/25/21
CERTIFIED FOR PUBLICATION
Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.
Matthew Rodriquez, Acting Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
In 2002, a jury convicted Sherwood Don Jenkins of the second degree murder and kidnapping of Phillip Reeves. (
Jenkins argues that the court erred because it engaged in improper factfinding at the prima facie review stage, and the record of conviction does not refute the allegations of his petition. The People concede that the court erred by failing to issue an order to show cause, and we agree. Accordingly, we reverse the order denying the petition, and we direct the trial court to issue an order to show cause under section 1170.95, subdivision (c).
In determining that the record of conviction does not refute the allegations of Jenkins‘s petition, we address three arguments for a contrary conclusion. First, the court that sentenced Jenkins implicitly found that he acted with intent to kill, and on Jenkins‘s direct appeal we determined that the sentencing judge‘s implied finding was supported by substantial evidence. We conclude that the implied finding does not, however, preclude relief under section 1170.95, because it was made by a preponderance of the evidence, not beyond a reasonable doubt.
Second, the jury that convicted Jenkins also found true a special circumstance under section 190.2 that requires intent to kill, but the sentencing court struck the special circumstance as legally invalid because the jury convicted Jenkins of only second degree murder. We conclude that because the special circumstance finding was stricken, it too does not preclude relief under section 1170.95. (People v. Barboza (2021) 68 Cal.App.5th 955, 965 (Barboza).)
Third, at Jenkins‘s trial, the jury instruction on the natural and probable consequences doctrine erroneously identified murder as the target offense, thereby requiring that in order to convict Jenkins of murder on a natural and probable consequences theory, the jury had to find that he directly aided and abetted murder. But a later paragraph of the same instruction told the jurors that they did not have to agree unanimously on the target offense that Jenkins aided and abetted. The jury therefore did not necessarily find that Jenkins directly aided and abetted murder, so again we are unable to conclude that the record of conviction refutes the allegations of his petition under section 1170.95.
BACKGROUND
I. Summary of Facts in the Prior Opinion
The following facts are drawn from our prior opinion in Jenkins‘s direct appeal (the 2004 opinion). (People v. Conner et al. (May 7, 2004, E033015) [nonpub. opn.].) In June 1999, Michael Conner and the murder victim, Reeves, got into a fight with two men. Conner fired a gun at the men and injured them. Several days later, law enforcement interviewed Reeves about the shooting.
In September 1999, Conner and Jenkins tracked down Reeves. Conner asked Reeves whether he had “snitched” on Conner, and Jenkins also questioned Reeves. Conner ordered Reeves “to start digging and find the gun,” which Conner believed Reeves had given to the police. After Reeves failed to produce the gun, Conner and Jenkins took Reeves to a landfill, where Reeves attempted to flee. Conner chased and shot at Reeves; once he caught Reeves, he strangled Reeves over a 10-minute period. Conner also struck Reeves in the head with a rock several times. Reeves died from multiple gunshot wounds and blunt force trauma to the head and neck.
Before they took Reeves to the landfill, Jenkins told Conner, “[H]e‘s the only witness. You got to kill him.” Two other associates were involved in the events, mostly as drivers. When Conner chased Reeves at the landfill, either Jenkins or one of the other associates laughed and said, “[Y]ou better catch him, he [sic] getting away from you.” After Conner, Jenkins, and their two associates left the landfill, Jenkins helped Conner set his clothes on fire. The police caught up to them, and Conner and Jenkins fled the scene.
II. Procedural Background
As relevant here, the second amended information charged Conner and Jenkins with the first degree murder and kidnapping of Reeves. In connection with the murder charges, the information specially alleged that Reeves “was a witness to a crime who was intentionally killed” to prevent his testimony in a criminal proceeding (the witness-killing special circumstance). (
In the People‘s closing argument, the prosecutor acknowledged that Jenkins “was not the one who killed [Reeves], based on the evidence.” But the prosecutor argued that Jenkins was liable for murder under three possible theories: (1) first degree murder under the felony murder rule; (2) first or second degree murder under the natural and probable consequences doctrine; or (3) first or second degree murder as a direct aider and abettor.
The court instructed the jurors on the definition of murder, express malice (but not implied malice), and deliberate and premeditated murder. The court
The court further instructed the jurors that if they found Jenkins guilty of first degree murder, they had to make a finding on the witness-killing special circumstance allegations. Regarding those allegations, the court instructed the jurors that if a defendant was not the actual killer, they could not find the special circumstance true as to that defendant unless they were “satisfied beyond a reasonable doubt that such defendant with the intent to kill aided, abetted, counseled, commanded, induced, solicited, requested, or assisted any actor in the commission” of first degree murder.
The jurors found Conner guilty of first degree murder and found Jenkins guilty of second degree murder. They also convicted both defendants of kidnapping and found the firearm enhancements true. And even though they did not find Jenkins guilty of first degree murder, the jurors returned a true finding on the witness-killing special circumstance alleged against him.
In January 2003, the trial court sentenced Jenkins to 15 years to life imprisonment on the murder count, an eight-year term on the kidnapping count, and a one-year term for the firearm enhancement. The court struck the witness-killing special circumstance finding because it was “not appropriate with a second-degree murder conviction.” (See
III. Jenkins‘s Direct Appeal
Jenkins appealed from the judgment of conviction, raising two challenges. First, he argued that his convictions were not supported by sufficient evidence because there was no evidence corroborating the accomplice testimony against him. Second, he urged us to stay his sentence for kidnapping under
In the section 654 discussion, we observed that the trial court had imposed multiple punishment on Jenkins “based upon its finding the kidnapping was for one purpose, and the murder was committed for another.” We held that the court‘s finding of multiple criminal objectives was supported by substantial evidence, reasoning as follows: “[T]he evidence showed that Jenkins not only aided and abetted the kidnapping of [Reeves], but he also encouraged
IV. Jenkins‘s Petition for Resentencing Under Section 1170.95
In January 2019, after enactment of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437), Jenkins filed a petition for resentencing under section 1170.95. He attested that (1) a charging document was filed against him that allowed the People to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine, (2) he was convicted at trial of second degree murder under the natural and probable consequences doctrine or the felony murder rule, and (3) he could not now be convicted of murder because of changes made to section 188 by Senate Bill 1437.
The People filed a response to the petition and argued primarily that Senate Bill 1437 was unconstitutional. They also argued that Jenkins was ineligible for relief because the 2004 opinion purportedly demonstrated that “he directly aided and abetted the killing with intent to kill.” In particular, the People relied on the section 654 discussion, in which we concluded that substantial evidence supported the trial court‘s implied finding that Jenkins harbored independent intents when he directly aided and abetted the kidnapping and the murder. The People attached a copy of the 2004 opinion to their response. Jenkins‘s counsel filed a reply arguing that Senate Bill 1437 was constitutional.
The court stayed the proceedings on the petition pending a decision on the constitutionality of Senate Bill 1437 in People v. Lamoureux (2019) 42 Cal.App.5th 241 (Lamoureux). After the Lamoureux court held that Senate Bill 1437 was constitutional (id. at p. 246), the trial court held a brief hearing at which it denied Jenkins‘s petition without issuing an order to show cause. Jenkins appeared through counsel. The People argued that the 2004 opinion found that Jenkins directly aided and abetted the murder, and they again cited the section 654 discussion. Defense counsel submitted on the briefs. The court stated: “Matter summarily denied.” The court did not explain the basis for its ruling.
Jenkins argues that his petition states a prima facie case for relief and that the record of conviction does not refute his prima facie showing. He argues that the court therefore erred by denying his petition without issuing an order to show cause. We agree.
1. Murder Liability and Senate Bill 1437
Murder is an unlawful killing “with malice aforethought.” (
Effective January 1, 2019, Senate Bill 1437 eliminated second degree murder liability under the natural and probable consequences doctrine.1 (Gentile, supra, 10 Cal.5th at pp. 839, 841.) It did so by amending section 188. (Gentile, at p. 846.) As amended, section 188 states that except for first degree felony murder, “to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.” (
Senate Bill 1437 did not change accomplice liability for murder under direct aiding and abetting principles. (People v. Offley (2020) 48 Cal.App.5th 588, 595-596.) “One who directly aids and abets another who commits murder is thus liable for murder under the new law just as he or she was liable under the old law.” (Id. at p. 596.)
Under direct aiding and abetting principles, an accomplice is guilty of a murder perpetrated by another “if the accomplice aids the commission of
II. Section 1170.95
Senate Bill 1437 added section 1170.95 so that defendants convicted of murder under prior law could seek retroactive application of amended sections 188 and 189. (People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis).) Subdivision (a) of section 1170.95 provides that any “person convicted of felony murder or murder under a natural and probable consequences theory may” petition the sentencing court to vacate the conviction and to be resentenced on any remaining counts if the following criteria are met: (1) “A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine,” (2) “[t]he petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder,” and (3) “[t]he petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019.” (
Upon the filing of a facially sufficient petition, the trial court must (1) appoint counsel for the petitioner if requested, (2) permit the People to file a response and permit the petitioner to file a reply, and (3) determine whether the petitioner has made a prima facie showing of entitlement to relief. (
“If the petitioner makes a prima facie showing that he or she is entitled to relief, the court shall issue an order to show cause.” (
Once the order to show cause issues, the court “must hold a hearing ‘to determine whether to vacate the murder conviction and to recall the sentence and resentence the petitioner on any remaining counts.‘” (Lewis, supra, 11 Cal.5th at p. 960, quoting
III. Jenkins‘s Section 1170.95 Petition
By denying Jenkins‘s petition without issuing an order to show cause, the court implicitly determined that Jenkins had not made a prima facie showing of entitlement to relief. We agree with Jenkins that the court‘s ruling was erroneous and must be reversed.
Jenkins‘s petition contains the required factual allegations. He alleges that the charging document allowed the People to proceed against him under the felony murder rule or the natural and probable consequences doctrine, he was convicted of second degree murder following a trial, and he could not now be convicted of murder because of changes to section 188. The court had to assume the truth of those allegations, unless the record of conviction contains facts refuting them. The jurors necessarily rejected the first degree felony murder theory when they convicted Jenkins of only second degree murder, but the record does not exclude the possibility that they convicted him under the natural and probable consequences theory, which is no longer a valid theory because of changes to section 188. The court therefore erred by denying Jenkins‘s petition at the prima facie review stage.
The basis for the court‘s ruling is unclear, but to the extent that the court relied on the sentencing court‘s section 654 ruling, that ruling does not refute Jenkins‘s allegations. “Section 654 precludes multiple punishment where an act or course of conduct violates more than one criminal statute but a defendant has only a single intent and objective. [Citation.] In such circumstances, the court must impose but stay execution of sentence on all of the convictions arising out of the course of conduct except for the offense with the longest sentence.” (People v. McCoy (2012) 208 Cal.App.4th 1333, 1338.) But “[i]f [the defendant] entertained multiple criminal
Here, by declining to stay Jenkins‘s sentence on the kidnapping count, the sentencing court necessarily found that Jenkins “formed a separate intent and objective for each offense.” (People v. Coleman (1989) 48 Cal.3d 112, 162.) Thus, the court implicitly found that Jenkins formed an intent to aid and abet murder—that is, an intent to kill. (See People v. Bradley (2003) 111 Cal.App.4th 765, 770 [aider and abettor “must personally have had the objective of committing both the robbery and the attempted murder” to authorize unstayed sentences for both offenses].) And in our 2004 opinion, we held that the sentencing court‘s finding was supported by substantial evidence.
Even so, the sentencing court‘s finding does not preclude relief under section 1170.95. Ordinarily, a defendant is ineligible for relief if the trier of fact found beyond a reasonable doubt that the defendant intended to kill. Intent to kill constitutes express malice (
But prior findings by the sentencing court under section 654 do not have the same preclusive effect in this context. Unlike the jury‘s findings underlying the verdict, the sentencing court‘s findings are made “under the lower standard of preponderance of the evidence.” (Carter, supra, 34 Cal.App.5th at p. 844.) Findings by a preponderance of the evidence do not
While the trial court had only the 2004 opinion before it, other pertinent portions of the record of conviction (the charging document, verdict forms, closing arguments, and jury instructions) are before this court. The facts in the more comprehensive record do not refute Jenkins‘s allegation of eligibility for relief, so we cannot affirm the court‘s order as correct on another ground disclosed by the record. (People v. Zapien (1993) 4 Cal.4th 929, 976 [a correct ruling ““will not be disturbed on appeal merely because given for a wrong reason““].)
Still, two aspects of the record merit discussion, even if they do not refute the allegations of the petition: (1) the witness-killing special circumstance finding, and (2) the court‘s instruction on the natural and probable consequences doctrine.
First, the witness-killing special circumstance required the jury to find beyond a reasonable doubt that Jenkins acted with intent to kill. (
The next paragraph of the instruction, however, contradicted that requirement by telling the jury the following: “You are not required to unanimously agree as to which originally contemplated crime the defendant aided and abetted, so long as you are satisfied beyond a reasonable doubt and unanimously agree that the defendant aided and abetted the commission of an identified and defined target crime and that the crime of murder was a natural and probable consequence of the commission of that target crime.” This portion of the instruction told the jurors that they did not have to agree on the identity of the particular target offense Jenkins aided and abetted, so long as they agreed that he aided and abetted a target offense of which murder was a natural and probable consequence.
If the instruction had omitted that additional paragraph, we might have been forced to conclude that the jury necessarily found Jenkins aided and abetted murder, under either the erroneous natural and probable consequences instruction or the direct aiding and abetting instruction. But the instruction given does not permit that conclusion. The jurors could have followed the portion of the instruction that removed the (erroneous) requirement that, in order to convict on a natural and probable consequence theory, they had to agree that Jenkins aided and abetted murder. Consequently, the instruction does not show that Jenkins was convicted on a theory that remains valid after enactment of Senate Bill 1437.
In sum, the People prosecuted Jenkins under several theories of accomplice liability for murder, and the jurors convicted him of second degree murder. The jurors could have relied on direct aiding and abetting principles or the natural and probable consequences doctrine, and the record of conviction does not exclude the possibility that they relied on natural and
DISPOSITION
The order denying Jenkins‘s section 1170.95 petition is reversed. On remand, the trial court shall issue an order to show cause under section 1170.95, subdivision (c).
CERTIFIED FOR PUBLICATION
MENETREZ J.
We concur:
MCKINSTER Acting P. J.
SLOUGH J.