People v. Jenkins CA2/2 ( 2022 )

Filed 2/4/22 P. v. Jenkins CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B312226
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA050222)
v.
CLIFFORD JENKINS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Juan Carlos Dominguez, Judge. Reversed and
remanded with directions.
Robert Booher, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Idan Ivri and Thomas C. Hsieh,
Deputy Attorneys General, for Plaintiff and Respondent.
Clifford Jenkins appeals the summary denial of his petition
for resentencing under Penal Code1 section 1170.95. Appellant
maintains that because he made a prima facie showing that he is
entitled to relief under the statute, the superior court was
obligated to issue an order to show cause pursuant to section
1170.95, subdivision (c), and conduct an evidentiary hearing in
accordance with subdivision (d). Instead, the superior court
improperly engaged in factfinding based on this court’s prior
opinion in the direct appeal to determine that appellant was a
major participant in the underlying felonies who acted with
reckless indifference to human life and was thus ineligible for
resentencing as a matter of law. Respondent concedes the point.
We also agree that the superior court erred to the extent it relied
upon the prior appellate opinion to make its own findings of fact
at the prima facie review stage under section 1170.95,
subdivision (c).
The error is not harmless. Having taken judicial notice of
the trial record and reviewed the jury’s verdict forms and jury
instructions, we conclude the record of conviction does not
demonstrate appellant is ineligible for relief as a matter of law.
We therefore remand the matter to the superior court for further
proceedings, including the issuance of an order to show cause and
an evidentiary hearing in accordance with section 1170.95,
subdivision (d).2
1 Undesignated statutory references are to the Penal Code.
2 In remanding this matter to the superior court for
proceedings in accordance with section 1170.95, subdivision (d),
“[w]e express no opinion about [appellant’s] ultimate entitlement
2
FACTUAL AND PROCEDURAL BACKGROUND
A. The murder of Randy Burge3
On February 22, 1990, around 2:00 p.m., codefendant
Ernest Simms approached Kevin Thomas, who was in his car
stopped in traffic. Simms put a .25- or .32-caliber revolver to the
back of Thomas’s head and ordered him out of the car. Simms
then escorted Thomas at gunpoint to a nearby residence, where
they were met at the back door by appellant, who also pointed a
.25- or .32-caliber revolver at Thomas’s head. Appellant
handcuffed Thomas and wrapped tape around his mouth before
leaving the house. Appellant returned moments later holding
Randy Burge⎯a witness to Thomas’s kidnapping⎯at gunpoint.
Simms told Burge he was “ ‘at the wrong place at the wrong
time.’ ” (Simms I, supra, B074209.)
Codefendants Brian Hill and Freddie Doss then entered the
house carrying guns: Hill’s was a .25- or .32-caliber revolver and
Doss held a .38-caliber revolver. Appellant and Simms forced
Thomas to call his mother to demand a $10,000 ransom. After
the call, appellant took a ring, keys, and approximately $30 in
cash from Thomas. Burge began asking the men why he was
being held. Simms pointed his gun at Burge and told him to shut
up. But Burge persisted in asking questions and making noise
until Simms shot him in the foot. (Simms I, supra, B074209.)
to relief following the hearing.” (People v. Drayton (2020) 47
Cal.App.5th 965, 983 (Drayton).)
3 The statement of facts is drawn from this court’s decision
filed on January 11, 1996, in appellant’s direct appeal from the
conviction. (People v. Ernest Simms et al. (Jan. 11, 1996,
B074209) [nonpub. opn.] (Simms I).)
3
At some point, appellant and Simms left the house to
secure the ransom money while Hill and Doss remained guarding
Thomas and Burge at gunpoint. Fearing he was going to be
killed, Thomas threw himself through a closed glass window. He
landed on his back in the driveway and the handcuffs broke. Hill
and Doss fired at least eight to ten shots at Thomas as he ran
down the street. Thomas ducked into a store and hid while a
store employee called the police. (Simms I, supra, B074209.)
Around 9:44 p.m. police located appellant and Simms near
the house where Thomas and Burge had been held. Both men
fled and were captured by police a short time later. (Simms I,
supra, B074209.)
That night around 9:00 p.m. a witness heard a single
gunshot from Centinela Park in Inglewood, approximately 3.9
miles from the residence where Burge and Thomas had been
held. The next morning a jogger discovered Burge’s body
facedown in the park. His hands were handcuffed behind his
back and a rolled-up T-shirt was stuffed in his mouth. Burge had
been fatally shot execution-style with a single round from a .38-
caliber firearm, resulting in a contact wound to his head behind
the ear. He had also suffered a gunshot wound to his foot from a
.22-caliber handgun. The coroner estimated the time of death
between 8:00 and 9:00 p.m. on February 22, 1990. (Simms I,
supra, B074209.)
B. Relevant proceedings
Following a jury trial, appellant (along with codefendants
Simms, Hill, and Doss) were convicted of the first degree murder
4
of Randy Burge (§ 187, subd. (a); count I), among other offenses.4
(Simms I, supra, B074209.) The jury also found true two special
circumstance allegations against Hill and Doss that the murder
was committed during the commission of a robbery, a
kidnapping, and a kidnapping for ransom. (§ 190.2, subd.
(a)(17).) (Simms I, supra, B074209.) At sentencing, the trial
court struck the special circumstance findings, stating its intent
to sentence all of the defendants identically. The court sentenced
all defendants to a term of 25 years to life for the first degree
murder of Burge, plus a consecutive term of four years for the
personal firearm use enhancement, for a principal term of 29
years to life.5 (Simms I, supra, B074209.) This court affirmed
4 The defendants were also convicted of the kidnapping of
Burge for robbery (§ 209, subd. (b); count II), the kidnapping of
Thomas for ransom (§ 209, subd. (a); count III), conspiracy to
commit the crime of kidnapping for ransom of Thomas, with true
findings on five of the alleged overt acts (§§ 182/209, subd. (a);
count IV), the robbery of Thomas (§ 211, subd. (a); count V), and
the attempted willful, deliberate, and premeditated murder of
Thomas (§§ 664/187, subd. (a); count VI). The jury found true the
personal use of a firearm allegation as to all defendants on counts
I through VI, and in bifurcated proceedings, the court found
appellant guilty of possession of a firearm by a convicted felon
(former § 12021.1) and found true three alleged prison priors.
(Simms I, supra, B074209.)
5The defendants’ sentences also included a consecutive
subordinate term of life with the possibility of parole for the
attempted murder of Thomas (count VI), and stayed sentences
under section 654 of life with the possibility of parole for the two
kidnapping charges and the conspiracy to commit kidnapping
charge. (Simms I, supra, B074209.) Appellant was sentenced to
5
the judgments of conviction in an unpublished opinion filed
January 11, 1996. (Simms I, supra, B074209.)
Appellant filed a petition for resentencing under section
1170.95 on August 8, 2019. After appointing counsel and
accepting briefing from the parties, the superior court summarily
denied the petition without issuing an order to show cause.
In its memorandum of decision, the superior court
summarized the facts set forth in Simms I, noting that this court
had found overwhelming evidence that appellant and his
codefendants had committed willful, deliberate, and
premeditated murder. (Simms I, supra, B074209.) Based on its
review of the trial court file, the record from the direct appeal,
and the prior appellate opinion, the superior court determined
that appellant’s conduct demonstrated he had “assumed a
leadership role in the kidnapping of the two victims” including
that he “was armed throughout the incident,” pointed his gun at
Thomas’s head twice, placed duct tape over Thomas’s mouth,
demanded that Thomas contact his mother for the ransom
money, stole a ring and $30 from Thomas, and offered Thomas
$5,000 to retract his preliminary hearing testimony. The
superior court then concluded that under the circumstances of
this case, appellant “could be tried and convicted of murder under
a number of other theories, including . . . first degree felony
murder as either a direct aider and abettor acting with the intent
to kill or, as a ‘major participant who acted with reckless
indifference to human life’.” He therefore failed to make the
requisite prima facie showing for relief under section 1170.95.
an additional concurrent term of two years for the felon in
possession charge. (Simms I, supra, B074209.)
6
DISCUSSION
The Superior Court Summarily Denied
Appellant’s Section 1170.95 Petition in Error
A. Applicable law
The Legislature enacted Senate Bill No. 1437 to “amend
the felony murder rule and the natural and probable
consequences doctrine, as it relates to murder, to ensure that
murder liability is not imposed on a person who is not the actual
killer, did not act with the intent to kill, or was not a major
participant in the underlying felony who acted with reckless
indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f);
People v. Gentile (2020) 10 Cal.5th 830, 842 (Gentile); People v.
Martinez (2019) 31 Cal.App.5th 719, 723 (Martinez).)
With one narrow exception (where the victim was a peace
officer killed in the performance of duty and the defendant knew
or reasonably should have known that fact (§ 1170.95, subd. (f)),
Senate Bill 1437 effectively eliminates murder convictions
premised on any theory of vicarious liability—that is, any theory
by which a person can be convicted of murder for a killing
committed by someone else, such as felony murder or the natural
and probable consequences doctrine—unless the People also
prove that the nonkiller defendant personally acted with the
intent to kill or was a major participant who acted with reckless
disregard to human life. (§ 189, subd. (e) [requiring that
participant in specified felony during which a death occurs may
be convicted of murder only if he/she was the actual killer, an
aider and abettor who acted with intent to kill, or a major
participant in the underlying felony who acted with reckless
indifference to human life]; § 188, subd. (a)(3) [amending natural
and probable consequences doctrine to require that all principals
7
act with express or implied malice to be convicted of murder (with
the exception of felony murder under § 189, subd. (e)]; Gentile,
supra, 10 Cal.5th at pp. 842–843.)
With the addition of section 1170.95, Senate Bill No. 1437
also allows a person previously convicted of murder under a
felony-murder or natural and probable consequences theory to
seek resentencing if he or she could no longer be convicted of
murder because of the amendments to sections 188 and 189. 6
(People v. Lewis (2021) 11 Cal.5th 952, 957, 959, 971 (Lewis));
Gentile, supra, 10 Cal.5th at p. 843; Martinez, supra, 31
Cal.App.5th at pp. 722–723.)
When a petition for resentencing under section 1170.95
meets the basic requirements set forth in subdivision (b)(1) and
(2), the superior court must appoint counsel for petitioner if
requested (§ 1170.95, subd. (b)(3)), the prosecutor must then file a
response to the petition, and the petitioner may file a reply (id.,
subd. (c)). After the parties have had an opportunity to submit
briefing, the superior court is required to “hold a hearing to
determine whether the petitioner has made a prima facie case for
relief. If the petitioner makes a prima facie showing that the
petitioner is entitled to relief, the court shall issue an order to
show cause.” (Ibid.; Lewis, supra, 11 Cal.5th at p. 960.)
In determining whether the petitioner has made a prima
facie case for relief, the superior court may consider the
petitioner’s record of conviction. (Lewis, supra, 11 Cal.5th at
6 As amended by Senate Bill No. 775 (Stats. 2021, ch. 551,
§ 2), section 1170.95 now also applies to persons previously
convicted of attempted murder or manslaughter under a felony-
murder or natural and probable consequences theory. (§ 1170.95,
subd. (a).)
8
pp. 970–971.) “The record of conviction will necessarily inform
the trial court’s prima facie inquiry under section 1170.95,
allowing the court to distinguish petitions with potential merit
from those that are clearly meritless.” (Lewis, supra, 11 Cal.5th
at p. 971.) At the prima facie review stage, the superior court
properly denies a petition where the record of conviction
demonstrates the petitioner is ineligible for relief as a matter of
law. (Ibid.; see also People v. Mancilla (2021) 67 Cal.App.5th
854, 859, 863–864.)
However, the superior court’s authority to make
determinations without issuing an order to show cause and
proceeding in accordance with section 1170.95, subdivision (d) is
circumscribed by “readily ascertainable facts from the record
(such as the crime of conviction), rather than factfinding
involving the weighing of evidence or the exercise of discretion
(such as determining whether the petitioner showed reckless
indifference to human life in the commission of the crime).”
(Drayton, supra, 47 Cal.App.5th at p. 980; Lewis, supra, 11
Cal.5th at pp. 971–972; People v. Clayton (2021) 66 Cal.App.5th
145, 153.) Although a prior appellate opinion is generally
considered to be part of the record of conviction, our Supreme
Court has cautioned that “the probative value of an appellate
opinion is case specific, and ‘it is certainly correct that an
appellate opinion might not supply all answers.’ ” (Lewis, at
p. 972; People v. Woodell (1998) 17 Cal.4th 448, 454–455, 457
[“not . . . all appellate opinions” “establish” what happened before
the trial court, and “[w]hether and to what extent an opinion is
probative in a specific case must be decided on the facts of that
case”].) Thus, in reviewing any part of the record to make its
preliminary assessment regarding whether the petitioner would
9
be entitled to relief if his or her factual allegations were proved,
the superior court must take petitioner’s factual allegations as
true and may not engage in factfinding. (Lewis, at pp. 971–972;
People v. DeHuff (2021) 63 Cal.App.5th 428, 439–440.)
B. The record of conviction does not establish
appellant’s ineligibility for relief under section 1170.95 as
a matter of law
Appellant alleged facts sufficient to state a prima facie case
entitling him to relief, and the superior court erred in making its
own findings of fact at the prima facie review stage of the section
1170.95 proceeding without issuing an order to show cause and
conducting an evidentiary hearing. In denying the petition, the
superior court relied on the prior appellate opinion’s description
of the offenses, the trial court file, and the record from the direct
appeal to conclude that appellant is ineligible for relief as a major
participant in the underlying crimes who acted with reckless
indifference to human life. However, “[t]he major participant and
reckless indifference findings the trial court made based solely on
the record evidence entail the weighing of evidence, drawing of
inferences, and assessment of credibility that should be left to the
factfinding hearing process contemplated by section 1170.95,
subdivision (d).” (People v. Duchine (2021) 60 Cal.App.5th 798,
816; Drayton, supra, 47 Cal.App.5th at p. 982.) At the prima
facie review stage of a section 1170.95 proceeding, such judicial
factfinding is prohibited.
Not only did the superior court err by engaging in judicial
factfinding at the prima facie stage on issues that were not
conclusively resolved by the record of conviction, but the court
also answered the wrong question when it decided that appellant
could theoretically have been found guilty under the theory that
10
he was “a ‘major participant who acted with reckless indifference
to human life’ ” that remains valid under Senate Bill 1437. (See
Duchine, supra, 60 Cal.App.5th at pp. 813 [“the third element of
[former] section 1170.95, subdivision (a) does not require an
absence of sufficient evidence, on the record of conviction, to
support a hypothetical finding that the defendant is guilty of
murder under a currently valid theory”], 816.) The jury in this
case neither addressed nor made any finding (such as on a felony-
murder special-circumstance allegation) that would have
required proof of those two elements as to appellant, and the
record of conviction did not otherwise establish those elements as
a matter of law. (See Duchine, at p. 816.)
The error is not harmless because the record of conviction
does not establish appellant’s ineligibility for relief under section
1170.95 as a matter of law. (See §§ 189, subd. (e)(3), 190.2,
subd. (d).) The jury in this case was instructed it could convict
the defendants of first degree murder on the theories of willful,
deliberate, premeditated murder, felony murder, or under the
doctrine of natural and probable consequences. In argument to
the jury the prosecutor explained that the defendants were guilty
of the first degree murder of Randy Burge pursuant to any one of
four different theories: (1) willful, deliberate, and premeditated
murder; (2) robbery felony murder, including murder liability for
an aider and abettor to the robbery and/or for a coconspirator in
the robbery; (3) murder liability for an aider and abettor to a
kidnapping if the murder was a natural and probable
consequence of the kidnapping; and (4) murder liability for a
coconspirator in the conspiracy to kidnap Thomas if a natural
and probable consequence of the conspiracy was the killing of a
witness.
11
The prosecutor emphasized that although a verdict of first
degree murder had to be unanimous, unanimity as to which
theory applied was not necessary for a conviction. This is correct.
As our Supreme Court has explained, “premeditated murder and
felony murder are not different crimes, but are instead alternate
mechanisms of determining liability. Accordingly, ‘as long as
each juror is convinced beyond a reasonable doubt that defendant
is guilty of murder as that offense is defined by statute, it need
not decide unanimously by which theory he is guilty.’ ” (People v.
Scully (2021) 11 Cal.5th 542, 598.) Here, the preprinted general
verdict form by which the jury convicted appellants of first degree
murder included only one of four theories of guilt (willful,
deliberate, and premeditated murder), which some, all, or none of
the jurors may have accepted as the basis for the conviction.
This is not a case where the jury was given several
different guilty verdict forms, each stating a distinct theory of
first degree murder—one theory being willful, deliberate, and
premeditated murder, and others presenting the vicarious
liability theories of felony murder and natural and probable
consequences—that would allow us to infer the basis for the
jury’s guilty verdict from its choice of one verdict form over the
others. Instead, the jury was given a single, general guilty
verdict form for the crime of first degree murder that included
one possible theory of first degree murder preprinted on it. (See
§ 189, subd. (a).) Under these circumstances, the inclusion of the
“willful, deliberate, and premeditated” language on the verdict
form does not constitute a jury finding of the specific theory
underlying the verdict, nor does it preclude the possibility that
the jury found the defendants guilty of first degree murder under
a felony-murder or natural and probable consequence theory.
12
Accordingly, the jury’s findings in this case do not establish as a
matter of law appellant’s ineligibility for relief under section
1170.95.
In sum, neither the prior appellate opinion nor the record of
conviction in this case eliminates the possibility that the jury
found appellant guilty of first degree murder under a felony-
murder or natural and probable consequences theory.
Accordingly, neither shows appellant is ineligible for relief under
section 1170.95 as a matter of law.7
7In light of our resolution of the instant appeal under state
law, appellant’s constitutional claims are moot. (See People v.
Spring (1984) 153 Cal.App.3d 1199, 1208 [appellate argument
may be rendered moot if sought-after relief is granted for other
reasons].)
13
DISPOSITION
The postjudgment order denying Jenkin’s petition for
resentencing under Penal Code section 1170.95 is reversed. The
matter is remanded to the superior court for the issuance of an
order to show cause and further proceedings in accordance with
Penal Code section 1170.95, subdivision (d)(3).
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
CHAVEZ, J.
HOFFSTADT, J.
14