People v. Jenkins

Opinion

Filed 10/25/21 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E075886

v. (Super.Ct.No. RIF089248)

SHERWOOD DON JENKINS, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.

Reversed.

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. (Pen. Code, §§ 187, 207; unlabeled statutory citations

refer to this code.) In 2019, Jenkins filed a petition to vacate his murder conviction under

1 section 1170.95, and the trial court denied the petition without issuing an order to show

cause.

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).)

2 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.

3 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). (§ 190.2, subd. (a)(10).) The information also alleged that Conner

personally and intentionally discharged a firearm and caused great bodily injury or death.

(§ 12022.53, subd. (d).) As to Jenkins, the information alleged that a principal in the

murder was armed with a firearm. (§ 12022, subd. (a)(1).)

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.

4 The court instructed the jurors on the definition of murder, express malice (but not

implied malice), and deliberate and premeditated murder. The court also instructed the

jurors on the theories of murder liability on which the People relied—direct aiding and

abetting, the natural and probable consequences doctrine, and first degree felony murder.

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

§ 190.2, subd. (a) [fixing the penalty for first degree murder when one or more of the

enumerated special circumstances is found true]; People v. Friend (2009) 47 Cal.4th 1,

5 71 [“[A] finding of guilt of first degree murder was a necessary precondition to the

special circumstance finding”].)

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 section 654. We rejected both arguments

and affirmed the judgment in May 2004.

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 Conner to murder [Reeves]. When [Reeves] failed to

produce the gun, Jenkins told Conner that [Reeves] had to be killed. When Conner and

[Reeves] got back into Thompson’s car, Jenkins said, ‘[H]e’s the only witness. You got

to kill him.’ Because there is evidence to support the trial court’s finding of multiple

objectives, we must uphold the trial court’s decision.”

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

6 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.

7 The court stated: “Matter summarily denied.” The court did not explain the basis for its

ruling.

DISCUSSION

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.

I. Murder Liability and Senate Bill 1437

Murder is an unlawful killing “with malice aforethought.” (§ 187, subd. (a).)

Although malice is an element of murder, prior law permitted defendants who did not act

with malice to be liable for murder under the natural and probable consequences doctrine.

(People v. Clements (2021) 60 Cal.App.5th 597, 610, review granted Apr. 28, 2021,

S267624.) Specifically, an aider and abettor of a nonhomicide target offense could be

liable for murder if the direct perpetrator of the target offense committed murder and the

murder was a natural and probable consequence of the target offense. (People v. Gentile

(2020) 10 Cal.5th 830, 845 (Gentile).) The doctrine thus allowed the accomplice “to be

convicted of murder without personally possessing malice aforethought.” (Ibid.)

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

1 Senate Bill 1437 also changed the first degree felony murder rule by amending section 189 to impose new requirements for the rule’s application. (Gentile, supra, 10 Cal.5th at p. 842.) The changes to the rule effected by Senate Bill 1437 are not relevant here, because the jury convicted Jenkins of second degree murder.

8 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.” (§ 188, subd.

(a)(3).) The requirement that the principal act with malice is “incompatible” with the

natural and probable consequences doctrine. (Gentile, at p. 847.)

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 that offense with

‘knowledge of the direct perpetrator’s unlawful intent and [with] an intent to assist in

achieving those unlawful ends.’” (Gentile, supra, 10 Cal. 5th at p. 843.) The direct aider

and abettor of murder, like the direct perpetrator, must act with malice. (Id. at p. 844;

accord People v. McCoy (2001) 25 Cal.4th 1111, 1118 [direct “aider and abettor must

know and share the murderous intent of the actual perpetrator”].) “Malice can be express

or implied. It is express when there is a manifest intent to kill.” (Gentile, at p. 844, citing

§ 188, subd. (a)(1).)

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

9 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.” (§ 1170.95, subd. (a)(1)-(3).)

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. (§ 1170.95, subd. (c); People v. Mancilla (2021)

67 Cal.App.5th 854, 863.) In conducting the prima facie review, “‘“the court takes [the]

petitioner’s factual allegations as true and makes a preliminary assessment regarding

whether the petitioner would be entitled to relief if his or her factual allegations were

proved.”’” (Lewis, supra, 11 Cal.5th at p. 971.) The court may consider the record of

conviction, but it must not engage in factfinding, weigh the evidence, or reject the

petition’s allegations on the basis of adverse credibility determinations. (Id. at pp. 971-

972, 974.) But if the record of conviction “‘“contain[s] facts refuting the allegations

made in the petition,”’” then the court is justified in rejecting them. (Id. at p. 971.)

10 “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.” (§ 1170.95, subd. (c).) We independently

review the trial court’s ruling on whether the petitioner has made the requisite prima facie

showing. (People v. Garcia (2020) 57 Cal.App.5th 100, 110, review granted Feb. 10,

2021, S265692.)

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

§ 1170.95, subd. (d)(1).) At that hearing, “the burden of proof shall be on the prosecution

to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing. . . .

The prosecutor and the petitioner may rely on the record of conviction or offer new or

additional evidence to meet their respective burdens.” (§ 1170.95, subd. (d)(3).)

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

11 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 objectives which were independent of and

not merely incidental to each other, [the defendant] may be punished for independent

violations committed in pursuit of each objective.” (People v. Beamon (1973) 8 Cal.3d

625, 639.) The sentencing court applies the preponderance of the evidence standard

when determining whether the defendant entertained multiple criminal intents and

objectives. (People v. Carter (2019) 34 Cal.App.5th 831, 844-845 (Carter).)

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

12 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 (§ 188, subd. (a)(1)), so the prior finding establishes that the defendant “act[ed]

with malice aforethought” under amended section 188. (§ 188, subd. (a)(3); see also

People v. Allison (2020) 55 Cal.App.5th 449, 460 [special circumstance findings that

require the defendants to have intentionally killed bar relief under section 1170.95];

People v. Bentley (2020) 55 Cal.App.5th 150, 152, 154 [special circumstance finding

under section 190.2, subdivision (a)(21), incorporated finding of intent to kill, rendering

the defendant ineligible for relief under section 1170.95], review granted Dec. 16, 2020,

S265455; People v. Jones (2020) 56 Cal.App.5th 474, 482 (Jones) [special circumstance

finding under section 190.2, subdivision (d), barred the defendant from relief under

section 1170.95, “because a jury has already found [him] to have satisfied the new

definition of felony murder under amended section 189”], review granted Jan. 27, 2021,

S265854.) Such a prior finding therefore establishes that the defendant could still be

convicted of murder after Senate Bill 1437.

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

13 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 establish that the defendant could be convicted of anything, because

conviction requires proof beyond a reasonable doubt. (See People v. Aranda (2012) 55

Cal.4th 342, 356 [“[T]he prosecution must prove a defendant’s guilt of a criminal offense

beyond a reasonable doubt . . .”]; see also Conservatorship of O.B. (2020) 9 Cal.5th 989,

1007 [“[I]n criminal cases . . . the prosecution’s burden of proving a defendant’s guilt

beyond a reasonable doubt affects how an appellate court reviews the record for

substantial evidence”].) Consequently, the sentencing court’s implicit finding that

Jenkins formed an intent to kill does not establish that Jenkins could be convicted of

murder after Senate Bill 1437, and the finding does not refute his allegation of eligibility.

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.

14 First, the witness-killing special circumstance required the jury to find beyond a

reasonable doubt that Jenkins acted with intent to kill. (§§ 190.2, subds. (a)(10), (c),

190.4, subd. (a); People v. Pearson (2012) 53 Cal.4th 306, 322.) As already discussed,

that prior finding of intent to kill would ordinarily render a defendant ineligible for relief

under section 1170.95. But here, the court struck the special circumstance finding at

sentencing. The finding therefore was not incorporated into the judgment, and Jenkins

had no opportunity to challenge that finding of intent to kill. (See Jones, supra, 56

Cal.App.5th at p. 483 [special circumstance finding precluding relief under section

1170.95 could be challenged by filing a habeas petition].) Under these circumstances, we

decline to give the stricken special circumstance finding preclusive effect at the prima

facie review stage, and we conclude that it does not refute Jenkins’s allegation that he is

eligible for relief. (Barboza, supra, 68 Cal.App.5th at p. 965 [stricken special

circumstance finding that required the jury to find intent to kill was a “nullit[y]” and did

not “foreclose the possibility of relief under section 1170.95”].)

Second, the court’s instruction on the natural and probable consequences doctrine

contained an error under then-existing law, but the instruction as a whole still permitted

the jury to find Jenkins guilty under the theory. The erroneous portion of the instruction

incorrectly identified the target and nontarget offenses. Specifically, it stated that to

convict Jenkins of murder under the doctrine, the jurors had to find: “1. The crime of

murder was committed; [¶] 2. That the defendant aided and abetted that crime; [¶] 3. That

a co-principal in that crime committed the crime of kidnapping or felony false

imprisonment; and [¶] 4. The crime of murder was a natural and probable consequence of

15 the commission of the crime of kidnapping or felony false imprisonment.” The first

element should have identified the target offense as kidnapping or felony false

imprisonment, not murder. Once the first element misidentified the target offense as

murder, the second element had the effect of requiring the jurors to find that Jenkins

directly aided and abetted murder.

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

16 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 probable consequences. We conclude that Jenkins’s petition

states a prima facie case for relief and that the record does not refute his allegations of

eligibility. Accordingly, the trial court erred by denying the petition without issuing an

order to show cause.

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.