Opinion
E072564
09-26-2019
THE PEOPLE, Plaintiff and Respondent, v. LATOYA JENKINS, Defendant and Appellant.
Latoya Jenkins, in pro. per. and Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. INF064867) OPINION APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge. Affirmed. Latoya Jenkins, in pro. per. and Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
A jury found defendant and appellant Latoya Jenkins guilty of first degree murder (Pen. Code, § 187, count 1), first degree burglary (§ 459, count 2), and attempted first degree robbery (§ 211, count 3). The jury also returned true findings on the special circumstance allegations under section 190.2, subdivision (a)(17)(A) and (a)(17)(G), that defendant committed the murder in count 1 while engaged in the commission or attempted commission of a robbery and while engaged in the commission or attempted commission of a burglary, respectively. A trial court sentenced her on the first degree murder conviction with the special circumstance findings to life in state prison without the possibility of parole. The court stayed the sentences on counts 2 and 3 pursuant to section 654. Defendant filed a petition for resentencing under section 1170.95, which the court denied.
All further statutory references will be to the Penal Code, unless otherwise indicated.
Defendant filed a timely notice of appeal. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The factual background is taken from this court's opinion in People v. Jenkins (June 15, 2012, E052342) [nonpub. opn.]. --------
In the afternoon on February 23, 2009, Lavinski Harrell shot Samuel Cotton in the back while he and his two younger siblings, his brother Drake and defendant, were at Cotton's home. Cotton died as a result of the gunshot wound. Defendant had taken her brothers to Cotton's home for the purported purpose of buying marijuana from him. Cotton's sister-in-law, Salassie Monique Winfrey, answered when defendant knocked on the door of Cotton's house. Defendant told Winfrey she wanted to buy $10 of weed from Cotton. Because she knew defendant, Winfrey opened the door so that defendant could come inside. According to Winfrey, defendant did not enter and hesitated at the door, so Winfrey closed the door, but did not lock it. Winfrey went back to the kitchen where she had been washing dishes before defendant knocked.
A short time later, Winfrey heard defendant ask Cotton for the marijuana, followed by Cotton saying, "Wait a minute . . . Who's with you?" Winfrey heard defendant say she was with her "folks." Defendant then came into the kitchen and chatted with Winfrey, who continued to wash dishes. Winfrey stopped washing dishes when she heard a man's voice say, "Don't move." Winfrey looked over 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 his head. Harrell was wearing a black hooded sweater and had a sheer stocking over his head to disguise his face.
Harrell directed Winfrey to lie down on the floor by waving the gun toward the living room. Winfrey complied. In the living room, Winfrey saw a second man, whom she later identified as Drake, standing in the hallway. Drake also had a gun, was wearing a black hooded sweater, and had a sheer stocking pulled over his head to disguise his face. Drake repeated Harrell's direction that Winfrey lie down on the floor.
Winfrey, who was pregnant, closed her eyes while lying on the living room floor. She heard Harrell tell Cotton to get down on the ground. Within seconds she heard a gunshot followed by the sound of footsteps moving quickly in the direction of Harrell. She heard defendant say, "Why did you shoot him? You didn't have to shoot him." Defendant came over to where Winfrey was lying on the floor and said, "Mo, this wasn't supposed to happen. I was supposed to get some weed." Winfrey heard Drake say, "Blood, calm down, Blood, calm down. You all right. You all right." She also heard Harrell say, "Baby girl, you're going to be all right. You're going to be all right." Then Winfrey heard the front door close.
Winfrey identified defendant and Drake to the police. Within two months after the shooting, the police had arrested all three suspects. Harrell admitted to the police that he had intended to rob Cotton but claimed the shooting was an accident and occurred when he tried to get Cotton to lie down on the floor. Harrell admitted he took a half pound of marijuana from the dining room table after the shooting, and he also admitted that the gun the police recovered when he was arrested was the weapon that killed Cotton.
On July 29, 2010, defendant was convicted of first degree murder (§ 187, count 1), first degree burglary (§ 459, count 2), and attempted first degree robbery (§ 211, count 3). The jury also found true the special circumstance allegations that defendant committed the murder charged while engaged in the commission or attempted commission of a robbery (§ 190.2, subd. (a)(17)(A)) and while engaged in the commission or attempted commission of a burglary (§ 190.2, subd. (a)(17)(G)).
On September 17, 2010, the court sentenced defendant to life in state prison without the possibility of parole on count 1 and stayed the sentences on counts 2 and 3, pursuant to section 654.
Defendant filed an appeal and alleged, among other claims, that the evidence was insufficient to support the jury's true findings on the felony-murder special-circumstance allegations under section 190.2, subdivision (a)(17)(A) and (a)(17)(G). On June 15, 2012, in an unpublished opinion, this court affirmed defendant's convictions. In doing so, we found the evidence was sufficient to show she acted with reckless indifference to human life. (People v. Jenkins, supra, E052342.)
On March 14, 2016, defendant filed a petition for writ of habeas corpus in the superior court, alleging that she was entitled to relief under People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark). The superior court denied the petition on July 13, 2016.
In August 2016, defendant filed a petition for writ of habeas corpus in this court in case No. E066618, claiming the special circumstance findings against her were not supportable under Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522. This court denied the petition on August 23, 2016.
On February 7, 2019, defendant filed a petition for resentencing under section 1170.95 in the superior court, citing Banks, supra, 61 Cal.4th 788.
On April 12, 2019, the court held a hearing on the section 1170.95 petition and appointed counsel. The court noted that it reviewed the verdict forms and that the felony-murder special circumstances were found true by the jury. The court further stated that the jury was given CALCRIM 703, which required that a nonactual killer be found to have had the specific intent to kill or have been a major participant acting with reckless disregard to human life. The court added that there was also a remittitur and a Court of Appeal decision. It then denied the petition. Appointed counsel stated that he had read the decision and objected for the record, although he "[understood] the facts that the Court referred to."
DISCUSSION
Defendant appealed and, upon her request, this court appointed counsel to represent her. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case and the following potential arguable issues: (1) whether this court should order further proceedings in the superior court to determine if defendant is entitled to relief under Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522, since the superior court erred in summarily denying her petition for writ of habeas corpus in 2016 because it would have been impossible for her to raise her claims under Banks and Clark on direct appeal; (2) whether this court should "recall the remittitur" in case No. E066618, in order to determine if defendant was entitled to relief on the merits regarding her claim under Banks and Clark that the evidence was insufficient to establish she was a major participant in the murder, and she acted with reckless disregard to human life; (3) whether defendant was provided with ineffective assistance of counsel (IAC) with respect to the section 1170.95 petition, since the hearing took place within moments of counsel being appointed, and he was not aware of the full procedural history of the matter or that her claim under Banks and Clark had never been heard by any court on its merits; and (4) whether it was prejudicial error to deny the section 1170.95 petition on the merits without defendant being personally present or having waived her right to be present. Counsel has also requested this court to undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, which she has done. She makes a myriad of claims concerning her section 1170.95 petition for resentencing (the petition). She contends that: (1) she made a prima facie showing that she was entitled to relief under section 1170.95 pursuant to Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522; (2) she filed a motion to request a 30-day extension to serve a reply to the People's opposition to the petition (§ 1170.95, subd. (c)), but was not able to serve a reply since she never received a ruling on her motion; rather, the court held the hearing and denied the petition 10 days after she filed her motion; (3) the court failed to conduct a hearing on the petition; (4) since she was appointed counsel for her petition, such appointment "was a tacit finding that she had made a prima facie showing"; (5) she was never allowed to present evidence of how she qualified for relief, which violated her constitutional rights; (6) section 1170.95, subdivision (d)(3), supports a "liberal interpretation" and "provides a petitioner with the procedural mechanism to present new and additional evidence" that was not introduced at trial; (7) Banks, supra, 61 Cal.4th 788 applies to her case retroactively; (8) the evidence was insufficient to show she was a major participant who acted with reckless indifference to human life; and (9) she received IAC during the section 1170.95 hearing, since her appointed counsel was not familiar with her case and only objected for the record.
On September 30, 2018, the Governor signed Senate Bill 1437. (People v. Martinez (2019) 31 Cal.App.5th 719, 722-723.) "The legislation, which became effective on January 1, 2019, addresses certain aspects of California law regarding felony murder and the natural and probable consequences doctrine by amending Penal Code sections 188 and 189, as well as by adding Penal Code section 1170.95, which provides a procedure by which those convicted of murder can seek retroactive relief if the changes in law would affect their previously sustained convictions." (Id. at pp. 722-723.) "Senate Bill 1437 was enacted 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.' " (Id. at p. 723.)
All of defendant's arguments ultimately come down to her claim that the evidence was insufficient to show that she was a major participant in the underlying burglary and robbery, or that she acted with reckless indifference to human life; therefore, she cannot be held liable for felony murder. (§§ 189, subd. (e)(3) & 190.2, subd. (d); Banks, supra, 61 Cal.4th at pp. 797-798; Clark, supra, 63 Cal.4th at p. 609.) However, defendant has already made this same argument numerous times, and it has been rejected every time. On June 15, 2012, this court affirmed defendant's convictions. In doing so, we found the evidence was sufficient to show she acted with reckless indifference to human life. (People v. Jenkins, supra, E052342.) On March 14, 2016, defendant filed a petition for writ of habeas corpus in the superior court, alleging that she was entitled to relief under Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522, and the superior court denied the petition. In August 2016, defendant filed a petition for writ of habeas corpus in this court in case No. E066618, claiming the special circumstances findings against her were not supportable under Banks and Clark. This court denied the petition. Moreover, the trial court held a hearing on her section 1170.95 petition and correctly noted that the jury was given CALCRIM 703, which required that a nonactual killer be found to have had the specific intent to kill or have been a major participant acting with reckless disregard to human life. The court also acknowledged the writ petition and this court's prior decision on appeal. In view of the record, the court properly denied her petition.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent review of the record and find no arguable issues.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: CODRINGTON
J. SLOUGH
J.