People v. Jenkins

• Decision Date: 16 July 2020
• Docket Number: D076664
• Parties: THE PEOPLE, Plaintiff and Respondent, v. JAMES ARTHUR JENKINS II, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

THE PEOPLE, Plaintiff and Respondent, v. JAMES ARTHUR JENKINS II, Defendant and Appellant.

D076664

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

July 16, 2020

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. SCD278215)

APPEAL from a judgment of the Superior Court of San Diego County, Laura H. Parsky, Judge. Affirmed, sentence vacated and remanded for resentencing.

Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, and Michael D. Butera, Deputy Attorney General, for Plaintiff and Respondent.

A jury convicted James Arthur Jenkins II¹ of attempted robbery and first degree murder of A.L. (the Victim). (Pen. Code, §§ 664, 211, 187, subd. (a).)² The jury found true the allegations that Jenkins had personally used a deadly weapon in committing each offense (§§ 12022, subd. (b)(1), 1192.7, subd. (c)(23)) and personally inflicted great bodily injury during the attempted robbery. (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8).) In a bifurcated proceeding, Jenkins admitted the truth of a prior strike and prior serious felony allegation. The court sentenced him to the aggregate term of 50 years to life with a consecutive six-year term, comprised of 50 years to life for first degree murder (25 years to life, doubled under the Three Strikes law), enhanced by one year for use of a deadly weapon and five years for the prior serious felony conviction. Sentence on the attempted robbery was imposed but stayed under section 654.

Jenkins's counsel filed a brief seeking our independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders). Jenkins also filed a supplemental brief. Upon our independent review of the record, we identified an issue which might, if resolved favorably to Jenkins, result in a modification of Jenkins's sentence.³ We invited theparties to file supplemental letter briefs on the following issue: Was defense counsel prejudicially ineffective in failing to ask the trial court to strike the punishment for the serious felony conviction? After reviewing the supplemental letter briefs, we affirm the judgment, but vacate the sentence and remand the matter to allow the trial court to exercise its discretion regarding striking the sentence for Jenkins's prior serious felony conviction.

FACTUAL AND PROCEDURAL BACKGROUND

In the early morning hours of August 22, 2018, the Victim was visiting his homeless friend Keisha at an encampment on University Avenue in San Diego. Two other homeless men, Calvin and David, were also at the encampment. At some point, Jenkins arrived. Keisha described Jenkins, who was also homeless, as a "bully." When Jenkins arrived, the Victim left. Keisha described the Victim's demeanor as "nervous" and Jenkins's demeanor as "serious." As Jenkins followed the Victim, Keisha was packing her belongings when she heard a "thumping noise." She did not see what had happened, but thought that Jenkins had hit the Victim.

Calvin also saw the Victim leave as soon as Jenkins arrived. Jenkins followed the Victim and tried to grab him, as the Victim said " 'I'm not going to give you anything.' " As Jenkins caught up to the Victim, Calvin saw Jenkins's arm raised over him, and then saw the Victim on the ground with blood around his head. Jenkins then went through theVictim's pockets while asking "[W]here's the jewelry at? Where's the jewelry at?" Calvin called the paramedics as soon as Jenkins left. He explained that the Victim and Jenkins knew each other and described the Victim as a person who stole items from stores and then sold them to make money.

A responding police officer found the Victim on the ground with a large amount of blood around his head. He appeared disoriented and could not answer basic questions. A trauma surgeon noted that the Victim had a head wound. A scan of the Victim's head revealed "a large, deep penetrating wound to the brain."

Another trauma surgeon stated that the stabbing object went into a thick part of the Victim's skull, and that it took a lot of force to get through the bone. He commented that the Victim's injury was only the second time in 20 years he had seen a stab wound to the head that penetrated deeply enough to kill a person. Both surgeons opined that a knife likely caused the Victim's brain injury. The Victim underwent surgery, but did not improve. After the Victim's family decided to remove life support, the Victim died very quickly.

Based on information provided by Keisha and Calvin, police identified Jenkins as possibly being the assailant. They prepared a photographic line-up that included Jenkins's photograph. Both Keisha and Calvin identified Jenkins as the assailant.

DISCUSSION

Appointed appellate counsel filed a brief summarizing the facts and proceedings below. He presented no argument for reversal, but asked this court to review the record for error as mandated by Wende, supra, 25 Cal.3d 436. Counsel has identified thefollowing issues that "might arguably support the appeal" (Anders, supra, 386 U.S. at p. 744):⁴ whether (1) the evidence supported the jury's true finding on the premeditation and deliberation allegation; (2) the evidence established that the murder was committed during the commission of attempted robbery, a felony; (3) the trial court abused its discretion in the admission of multiple photographs of the decedent's brain injury; (4) the trial court prejudicially abused its discretion in denying defense counsel's request for admission of witness Calvin's section 289 conviction from 1994 for impeachment; (5) defense counsel provided ineffective assistance by affirmatively seeking admission of body-worn camera evidence showing police discussing using a chokehold and that Jenkins was previously placed in a chokehold; (6) the trial court erred in refusing to instruct the jury on voluntary manslaughter and/or involuntary manslaughter as a lesser included offense of murder; (7) the Victim's treatment at the hospital resulted in an infection that constituted an independent intervening cause absolving Jenkins of liability for the Victim's death; (8) the trial court erred in denying Jenkins's request for the court to exercise its discretion to strike Jenkins's prior strike conviction under Romero⁵; and (9) defense counsel provided ineffective assistance in failing to ask the trial court to strikethe punishment for the serious felony conviction or if the trial court abused its discretion in failing to strike such punishment.

We granted Jenkins permission to file a brief on his own behalf. He responded, listing six issues. Five issues listed by Jenkins duplicate issues listed by appellate counsel. He also asserts that he qualifies for pretrial mental health diversion.

When the appellant raises specific issues in a Wende proceeding, we must expressly address them in our opinion and if they fail, explain why. (People v. Kelly (2006) 40 Cal.4th 106, 110, 120, 124.) Below we address the issues identified by appellate counsel and Jenkins, including the issue where we requested supplemental briefing.

1. Sufficiency of the Evidence

The trial court instructed the jury that it could convict Jenkins of murder under two theories: (1) malice aforethought and (2) felony murder. Jenkins suggests an arguable issue exists as to whether sufficient evidence supported either theory. In evaluating the sufficiency of the evidence supporting a conviction, we " 'review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence . . . from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt.' " (People v. Jennings (1991) 53 Cal.3d 334, 364.) The testimony of a single witness, if believed by the trier of fact, is sufficient to support a conviction, unless that testimony is physically impossible or inherently improbable. (People v. Young (2005) 34 Cal.4th 1149, 1181.)

a. Premeditation and deliberation

Murder is the unlawful killing of a human being with malice aforethought. (§ 187, subd. (a).) There are two degrees of murder. Any willful, deliberate, and premeditated killing is first degree murder. (§ 189.) " 'Deliberation' refers to careful weighing of considerations in forming a course of action; 'premeditation' means thought over in advance." (People v. Koontz (2002) 27 Cal.4th 1041, 1080 (Koontz).) " 'The process of premeditation and deliberation does not require any extended period of time. "The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly. . . ." ' " (Ibid.) There are three basic categories of evidence pertinent to the determination of premeditation and deliberation in the context of murder: (1) planning activity, (2) motive, and (3) manner of killing. (People v. Perez (1992) 2 Cal.4th 1117, 1125.) "Review on appeal of the sufficiency of the evidence supporting the finding of premeditated and deliberate murder involves consideration of the evidence presented and all logical inferences from that evidence in light of the legal definition of premeditation and deliberation. . . ." (Id. at p. 1124.)

With respect to motive, the jury could reasonably have inferred that Jenkins sought to kill the Victim because the Victim would not give Jenkins what he wanted. Jenkins knew the Victim and presumably knew that the Victim stole items for resale. Looking nervous, the Victim left as soon as Jenkins arrived. Jenkins followed and tried to grab him as the Victim said " 'I'm not going...