Opinion
D076664
07-16-2020
THE PEOPLE, Plaintiff and Respondent, v. JAMES ARTHUR JENKINS II, Defendant and Appellant.
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.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 II of attempted robbery and first degree murder of A.L. (the Victim). (Pen. Code, §§ 664, 211, 187, subd. (a).) 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.
Although appellate counsel identified defendant as James Arthur Jenkins in the Wende brief, during trial defense counsel confirmed that James Arthur Jenkins II was defendant's true name, as is shown on the abstracts of judgment.
Undesignated statutory references are to the Penal Code.
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. We invited the parties 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.
Generally, "an arguable issue on appeal consists of two elements. First, the issue must be one which, in counsel's professional opinion, is meritorious. That is not to say that the contention must necessarily achieve success. Rather, it must have a reasonable potential for success. Second, if successful, the issue must be such that, if resolved favorably to the appellant, the result will either be a reversal or a modification of the judgment." (People v. Johnson (1981) 123 Cal.App.3d 106, 109.)
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 the Victim'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 the following issues that "might arguably support the appeal" (Anders, supra, 386 U.S. at p. 744): 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 Romero ; and (9) defense counsel provided ineffective assistance in failing to ask the trial court to strike the punishment for the serious felony conviction or if the trial court abused its discretion in failing to strike such punishment.
In Anders, supra, 386 U.S. 738, the United States Supreme Court stated that, when requesting that a reviewing court determine whether an indigent's appeal is frivolous, counsel may file a "brief referring to anything in the record that might arguably support the appeal." (Id. at p. 744.) A listing of issues is not constitutionally required (Smith v. Robbins (2000) 528 U.S. 259, 272-273), nor is it "a requirement in California's Wende procedure." (People v. Garcia (2018) 24 Cal.App.5th 314, 324.)
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
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 to give you anything.' " After assaulting the Victim, Jenkins went through his pockets while asking about jewelry. The circumstances strongly suggest that Jenkins attacked the Victim to steal jewelry. (People v. Pensinger (1991) 52 Cal.3d 1210, 1238 [the fact of an unreasonable motivation "is true of any senseless killing, but the incomprehensibility of the motive does not mean that the jury could not reasonably infer that the defendant entertained and acted on it"].)
Jenkins necessarily engaged in some level of "planning activity" by having a knife or other sharp object on his person before confronting the Victim. A reasonable jury could infer from this evidence that Jenkins planned to stab and kill the Victim if the Victim did not give him what he wanted. Additionally, "[t]he utter lack of provocation by the [V]ictim is a strong factor supporting the conclusion that [Jenkins's] attack was deliberately and reflectively conceived in advance." (People v. Lunafelix (1985) 168 Cal.App.3d 97, 102.) Finally, the manner of killing—a powerful stab to a vital area of the body—indicates Jenkins's assault was designed to kill. (People v. Mayfield (1997) 14 Cal.4th 668, 768 [gunshot to the face "is consistent with a preexisting intent to kill"], abrogated on another ground as stated in People v. Scott (2015) 61 Cal.4th 363, 390, fn. 2.)
The record contains ample evidence from which the jury could have concluded that Jenkins premeditated and deliberated the Victim's murder.
b. Felony murder
Robbery is "the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (§ 211.) Attempted robbery requires "a specific intent to commit robbery and . . . a direct but ineffectual act toward the commission of the crime." (People v. Lindberg (2008) 45 Cal.4th 1, 27.) Where attempted robbery is the alleged underlying felony, the intent required for liability under the felony-murder rule is the specific intent to commit robbery. (Koontz, supra, 27 Cal.4th at p. 1080.) "All murder . . . that is committed in the perpetration of, or attempt to perpetrate [certain enumerated offenses, including robbery] is murder of the first degree." (§ 189.)
The record strongly supports the inference that Jenkins's wanted jewelry and that he stabbed the Victim after he refused to give Jenkins anything. This inference is further supported by Jenkins's act of rifling through the Victim's pockets after the stabbing while asking for jewelry. Accordingly, the record fully supports Jenkins's conviction for the attempted robbery. Correspondingly, the record also supports Jenkins's conviction for first degree murder on a felony-murder theory.
c. Causation
" 'An element of homicide is that the defendant's criminal act or omission be the proximate cause of the death.' " (Zemek v. Superior Court of Riverside County (2020) 44 Cal.App.5th 535, 552.) Generally, proximate cause is established when an act is directly connected with the resulting injury, and when there is no independent intervening force in operation. (People v. Cervantes (2001) 26 Cal.4th 860, 866.) To be independent, an intervening cause must be unforeseeable. (Id. at p. 871.) If an intervening cause is a normal and reasonably foreseeable result of the defendant's original act, the intervening act is dependent and will not exonerate a defendant. (Ibid.)
Here, a trauma surgeon testified that the Victim did not recover after surgery and there was "concern" about a brain infection. There is no evidence in the record that the Victim actually suffered a brain infection. Notably, the medical examiner testified that "a penetrating injury" to the head caused the Victim's death. In any event, even if the Victim had suffered a brain infection, this would not constitute an independent intervening cause because an infection is a reasonably foreseeable result of stabbing a person in the brain with a non-sterile object.
2. Evidentiary Issues
Generally, "all relevant evidence is admissible." (Evid. Code, § 351.) Relevant evidence is that which has any tendency in reason to prove or disprove any disputed fact material to the outcome of the case. (Evid. Code, § 210.) A trial court has broad discretion in determining the relevance of evidence, but lacks discretion to admit irrelevant evidence. (People v. Hamilton (2009) 45 Cal.4th 863, 940.) Nonetheless, even relevant evidence may be excluded if the trial court finds that its "probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.)
We review a trial court's ruling on the admissibility of evidence for abuse of discretion. (People v. Williams (1997) 16 Cal.4th 153, 197.) " 'It is . . . well settled that the erroneous admission or exclusion of evidence does not require reversal except where the error or errors caused a miscarriage of justice. [Citation.] "A 'miscarriage of justice' should be declared only when the court, 'after an examination of the entire cause, including the evidence,' is of the 'opinion' that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." ' " (People v. Fields (2009) 175 Cal.App.4th 1001, 1018.)
a. Victim photographs
The prosecution moved in limine to admit multiple crime scene and autopsy photographs. Defense counsel moved to exclude some of this evidence as inflammatory and requested an in camera hearing. At the hearing, defense counsel indicated that he had no objection to certain photographs. The People withdrew a number of photographs and the trial court excluded several photographs.
A trial court has the discretion to exclude evidence if its probative value is substantially outweighed by its prejudicial effect. (Evid. Code, § 352.) Specifically, admission into evidence of victim photographs is within the broad discretion of the trial court when a claim is made that the photographs are unduly gruesome or inflammatory. (People v. Crittenden (1994) 9 Cal.4th 83, 133.) We will not disturb the trial court's exercise of its discretion unless the probative value of the photographs clearly is outweighed by their unduly prejudicial effect. (Id. at p. 134.) Appellate courts "have rejected the contention that photographs of a murder victim must be excluded as cumulative simply because testimony also has been introduced to prove the facts that the photographs are intended to establish." (Id. at pp. 134-135.) Prosecutors "are not obliged to prove their case with evidence solely from live witnesses," and a jury is "entitled" to see photographs of a victim's body "to determine if the evidence supports the prosecution's theory of the case." (People v. Gurule (2002) 28 Cal.4th 557, 624.)
The photographs that the court admitted over defense counsel's objections are not unduly gruesome or cumulative of other admitted photographs showing the Victim's injuries. Admission of the photographs is not arguable because the issue is not meritorious and, even if resolved favorably to Jenkins, would not result in a reversal or modification of the judgment.
b. Impeachment evidence
Calvin had a 2018 felony conviction for possessing methamphetamine and a 1994 felony conviction for forcible sexual penetration with a foreign object that required him to register as a sex offender. The parties stipulated that the defense could use the 2018 felony possession conviction for impeachment. The People sought to exclude the 1994 sexual conviction as remote and inflammatory. After conducting an Evidence Code section 352 analysis, the trial court excluded the 1994 sexual conviction noting that it carried "an additional emotional element" and was remote.
The credibility of a witness may be attacked by showing that the witness has a felony conviction. (Evid. Code, § 788.) Subject to a trial court's exercise of discretion under Evidence Code section 352, evidence of a felony conviction for an offense involving moral turpitude is admissible for impeachment purposes in any criminal proceeding. (People v. Castro (1985) 38 Cal.3d 301, 313, 315-317 (Castro); Cal. Const., art. I, § 28, subd. (f)(4).) Crimes involving moral turpitude are divided into two groups: those "in which dishonesty is an element," such as fraud, and those "that indicate a ' "general readiness to do evil," ' from which a readiness to lie can be inferred." (People v. Chavez (2000) 84 Cal.App.4th 25, 28.)
In determining whether an offense is a crime involving moral turpitude, a court must look to the statutory definition of the crime and determine whether " 'the least adjudicated elements of the conviction necessarily involve moral turpitude.' " (People v. Rivera (2003) 107 Cal.App.4th 1374, 1380.) Although we generally review a trial court's admission of a prior conviction as impeachment evidence for an abuse of discretion (People v. Edwards (2013) 57 Cal.4th 658, 722), we exercise our independent judgment in determining whether a crime involves moral turpitude. (See Clerici v. Department of Motor Vehicles (1990) 224 Cal.App.3d 1016, 1027.)
Simple possession of a controlled substance is not a crime of moral turpitude (Castro, supra, 38 Cal.3d at p. 317); accordingly, there is an issue of invited error regarding the stipulated admission of Calvin's 2018 felony conviction for impeachment purposes. Although we located no authority addressing whether the crime of forcible sexual penetration with a foreign object qualifies as an offense involving moral turpitude, the least adjudicated elements of forcible sexual penetration include a sexual penetration that is accomplished by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person. (§ 289, subd. (a)(1)(A).) These elements involve a readiness to do evil and thus qualify the crime as an offense involving moral turpitude. (See People v. Chavez, supra, 84 Cal.App.4th at pp. 28-30 [misdemeanor sexual battery a crime of moral turpitude]; People v. Chandler (1997) 56 Cal.App.4th 703, 708-709 [prostitution a crime of moral turpitude]; People v. Massey (1987) 192 Cal.App.3d 819, 823 [lewd touching of a child a crime of moral turpitude].) The trial court, however, exercised its discretion under Evidence Code section 352 to exclude this conviction for impeachment purposes.
Even if the trial court erred in excluding Calvin's forcible sexual penetration conviction for impeachment, this assumed error combined with the invited error in admitting Calvin's felony possession offense for impeachment, would be harmless. (Castro, supra, 38 Cal.3d at pp. 317-318 [examining erroneous admission of simple possession crime for impeachment under People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).) During trial the jury learned that Calvin suffered a felony conviction for possessing methamphetamine. The court instructed the jury on how to evaluate the testimony of witnesses, including whether the witness has a felony conviction. Defense counsel mentioned Calvin's felony conviction during closing argument. Accordingly, jurors knew that Calvin suffered a prior felony conviction and that they could take this fact into account in evaluating Calvin's credibility. Based on this evidence and jury argument, any error was harmless, especially in light of Keisha's corroborating testimony that Jenkins was the assailant. (Cal. Const., art. VI, § 13; Watson, supra, at p. 836.)
c. Body camera evidence
Two of the officers who responded to the murder scene wore body cameras. The jury watched the body camera videos that included captions of what was said. During the videotaped interview of David, the officers stated that Jenkins might be a suspect for the murder. One officer stated that he had previously put Jenkins in a chokehold and "put him to sleep."
During trial, the prosecutor noted this conversation and indicated that he would not be introducing this body camera evidence, but that defense counsel would be requesting to play the video in its entirety for tactical reasons. Before the jurors saw the video, the court discussed it with counsel outside the presence of the jury. During that discussion, the prosecutor informed the court that one of the officers mentioned a prior incident where Jenkins presumably had become combative and had been placed in a chokehold. The prosecutor reiterated that he did not plan on playing the video, but that the defense would introduce the video for tactical reasons. Defense counsel agreed that he would be introducing the video for tactical reasons because he wanted to provide the "entire picture without me editing and cutting out the video."
Appellate counsel and Jenkins suggest that an arguable issue may exist as to whether defense counsel's decision to offer this evidence amounted to ineffective assistance of counsel. " '[T]o demonstrate ineffective assistance of counsel, a defendant must first show counsel's performance was "deficient" because his [or her] "representation fell below an objective standard of reasonableness . . . under prevailing professional norms." [Citations.] Second, he [or she] must also show prejudice flowing from counsel's performance or lack thereof. [Citation.] Prejudice is shown when there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." ' " (In re Harris (1993) 5 Cal.4th 813, 832-833 (Harris); Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) "On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding." (People v. Mai (2013) 57 Cal.4th 986, 1009.)
" 'Reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." ' [Citations.] '[W]e accord great deference to counsel's tactical decisions' [citation], and we have explained that 'courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight' [citation]. 'Tactical errors are generally not deemed reversible, and counsel's decisionmaking must be evaluated in the context of the available facts.' " (People v. Weaver (2001) 26 Cal.4th 876, 925-926.)
Here, defense counsel argued during closing that Jenkins did not commit the crime and that jurors should "not ignore" David. Counsel played the body camera video for the jury, noting that police found David at the scene with a knife and that the experts opined that a knife had caused the Victim's injury. The body camera footage was a prominent part of the defense closing argument, with counsel playing the video throughout. He also urged jurors to watch the video during their deliberations.
The record shows that defense counsel had a tactical reason to seek admission of David's entire statement to police; namely, it furthered the defense of mistaken identity. Convictions will be reversed on grounds of ineffective assistance of counsel only "if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission." (People v. Fosselman (1983) 33 Cal.3d 572, 581.) The record here does not show that " ' "there simply could be no satisfactory explanation" ' " for deciding to present this evidence. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) Accordingly, any claim of ineffective assistance is more appropriately decided in a habeas corpus proceeding. (Ibid.)
3. Instructional Issue
During a discussion regarding the jury instructions, the prosecutor noted that CALCRIM No. 620 included language regarding voluntary and involuntary manslaughter. He asked that this language be removed, noting that Jenkins's defense was mistaken identity. Defense counsel did not object to the removal of these references, with counsel stating: "I would submit to the sentiments of [the prosecutor]. The evidence and testimony presented here in trial doesn't support inclusion of LIOs. I would request they not be given." The trial court agreed and removed the language. Appellate counsel and Jenkins suggest that an arguable issue may exist as to whether the trial court prejudicially erred in refusing to instruct the jury on voluntary manslaughter and/or involuntary manslaughter as a lesser included offense of murder.
A trial court must sua sponte instruct the jury on all theories of a lesser included offense which find substantial support in the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 153-154.) However, when a defendant has expressly objected to a lesser included offense instruction or otherwise indicated his opposition to such instruction, and the trial court withholds the lesser included instruction, the defendant may not, on appeal, then argue that such an instruction should have nonetheless been given. (People v. Barton (1995) 12 Cal.4th 186, 198 (Barton); People v. Cooper (1991) 53 Cal.3d 771, 830-831 (Cooper); People v. Prince (2007) 40 Cal.4th 1179, 1265.) A defendant's expression of consent or agreement that a lesser included offense instruction be withheld from the jury raises the bar of invited error. (See Barton, supra, at p. 198.)
Here, the prosecution requested that instructions on the lesser included offenses of voluntary and involuntary manslaughter not be given because these instructions were inconsistent with the defense contention that Jenkins was not the murderer. Defense counsel agreed, did not object to the removal of these instructions, and expressly requested that the instructions not be given. On this record, any alleged error regarding the removal of these instructions constituted invited error. (Barton, supra, 12 Cal.4th at p. 198.) In any event, even if Jenkins had asked for manslaughter instructions, the trial court was not required to give them because substantial evidence did not support a voluntary or involuntary manslaughter conviction.
4. Post-Trial Issues
a. Romero motion
In deciding whether to dismiss a prior conviction allegation under section 1385, a trial court must consider whether "in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.) A trial court has limited discretion to strike prior convictions in Three Strikes cases. (§ 1385; Romero, supra, 13 Cal.4th at p. 530.) We will not disturb the trial court's ruling absent an abuse of that discretion. (People v. Carmony (2004) 33 Cal.4th 367, 376 (Carmony).) "[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Id. at p. 377.) A career criminal must show "extraordinary" circumstances to fall outside the spirit of the Three Strikes law and the failure to strike a prior strike conviction will not constitute an abuse of discretion unless no reasonable minds could differ. (Id. at p. 378.)
The trial court prefaced its ruling on Jenkins's Romero motion by acknowledging the standards for ruling on the motion articulated by our high court in Carmony, supra, 33 Cal.4th 367 and People v. Williams, supra, 17 Cal.4th 148. It then observed that Jenkins committed his first strike offense—first degree robbery—14 years earlier when Jenkins was "barely an adult." During this offense, Jenkins choked the victim almost to the point of unconsciousness. The court noted that it considered Jenkins's juvenile record, which consisted of three convictions. It also examined Jenkins's criminal history which "involve[d] a great deal of violent conduct, and very little time outside of the criminal justice system." This record supports the trial court's conclusion that Jenkins fell squarely within the ambit of the Three Strikes law.
b. Mental health diversion
Effective June 27, 2018, section 1001.36 authorizes pretrial diversion for defendants with mental disorders. (Stats. 2018, ch. 34, § 24.) " '[P]retrial diversion' means the postponement of prosecution, either temporarily or permanently, at any point in the judicial process from the point at which the accused is charged until adjudication, to allow the defendant to undergo mental health treatment . . . ." (§ 1001.36, subd. (c).) Effective January 1, 2019, the Legislature amended section 1001.36 to make defendants charged with certain offenses, including murder, categorically ineligible for diversion. (§ 1001.36, subd. (b)(2)(A); Stats. 2018, ch. 1005, § 1.)
A court may grant pretrial diversion under section 1001.36 if the court finds: (1) the defendant suffers from an identified mental disorder; (2) the mental disorder played a significant role in the commission of the charged offense; (3) the defendant's symptoms will respond to treatment; (4) the defendant consents to diversion and the defendant waives the defendant's speedy trial rights; (5) the defendant agrees to comply with treatment; and (6) the defendant will not pose an unreasonable risk of danger to public safety, as defined in section 1170.18, if the defendant is treated in the community. (§ 1001.36, subd. (b).) The defendant bears the burden of making a prima facie showing that he will meet the minimum eligibility requirements for diversion. (§ 1001.36, subd. (b)(3).)
Section 1001.36 was amended again on October 3, 2019, for nonsubstantive changes effective January 1, 2020. (Stats. 2019, ch. 497, § 203.)
In this case, the preliminary hearing took place on January 30, 2019, trial began on June 7, 2019, and Jenkins was sentenced September 13, 2019. All these events took place after the effective date of amended section 1001.36. Jenkins is statutorily ineligible for mental health diversion because he was charged with murder.
c. Prior serious felony conviction
Under the previous version of section 1385, subdivision (b), a court was required to impose a five-year consecutive term for "any person convicted of a serious felony who previously has been convicted of a serious felony" under section 667, subdivision (a), and the court had no discretion "to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667." (Former §§ 1385, subd. (b); 667, subd. (a).) Effective January 1, 2019, Senate Bill No. 1393 amended section 1385, subdivision (b), to allow a trial court to exercise its discretion to strike or dismiss a section 667 prior serious felony conviction for sentencing purposes. (People v. Garcia (2018) 28 Cal.App.5th 961, 971.) In Garcia, the court held that Senate Bill No. 1393 applies to all judgments not final as of the bill's effective date of January 1, 2019. (Id. at p. 973.)
Jenkins's sentencing took place nine months after the amendment to section 1385. The probation report incorrectly stated that the five-year enhancement was "mandatory." The People's sentencing statement sought imposition of the enhancement, but did not alert the court that it had sentencing discretion. Although defense counsel filed a statement in mitigation that included a Romero motion seeking leniency, counsel did not invoke Senate Bill No. 1393. Finally, at sentencing, neither the court nor counsel mentioned the court's discretion to strike the five-year enhancement under Senate Bill No. 1393.
The Attorney General argues that defense counsel does not perform deficiently by failing to raise a meritless claim. That principle does not apply here, however, because calling the trial court's attention to its newly granted discretion to not impose the five-year enhancement would not have been meritless. A defense lawyer may render ineffective assistance if he "fails to adequately understand the available sentencing alternatives, promote their proper application, or pursue the most advantageous disposition for his client." (People v. Scott (1994) 9 Cal.4th 331, 351.) As another court recently stated in evaluating a claim of ineffective assistance on appeal, where counsel "fails to raise 'a significant and obvious issue,' the failure will generally be considered deficient performance under Strickland, supra, 466 U.S. 668 if the missed issue is 'clearly stronger than those presented.' " (In re Hampton (2020) 48 Cal.App.5th 463, 477.)
The standards for evaluating a claim of ineffective assistance of counsel are set forth at part 2.c, ante. --------
Here, defense counsel brought a Romeo motion seeking to strike Jenkins's prior strike. Had this motion been successful, it would have resulted in a 25-year sentence, instead of a 50 year sentence. Although the trial court did not abuse its discretion in denying the Romero motion (ante, at pt. 4. a.), the court may have been amenable to a more modest adjustment—striking the five-year enhancement—given the severity of the sentence under the Three Strikes law. But defense counsel never made the request. We can discern no conceivable tactical reason to explain why defense counsel did not ask the trial court to strike Jenkins's five-year enhancement. (People v. Speight (2014) 227 Cal.App.4th 1229, 1248-1249 [finding deficient performance where counsel did not raise an argument during a sentencing hearing that occurred five weeks after a California Supreme Court decision announced the relevant principle].) It would have taken little effort to raise this issue as an alternative consideration in the Romero motion or during the sentencing hearing. Counsel's failure to seek the maximum leniency available to his client was constitutionally deficient.
The remaining question is whether there is a reasonable probability the result would have been different if counsel had requested that the trial court exercise its discretion under amended section 1385. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, supra, 466 U.S. at p. 694.) The People contend that, given the trial court's denial of Jenkins's Romero motion, remand is unwarranted because there is no reason to believe that the trial court would exercise its discretion to strike the prior serious felony enhancement. We disagree.
The trial court's application of the three strikes sentencing scheme to Jenkins does not suggest an unwillingness to strike the five-year enhancement because this enhancement arises out of an entirely distinct sentencing scheme and policy backdrop. (Cf. People v. Williams (2004) 34 Cal.4th 397, 401-405 [discussing the different statutory and policy backdrops of section 667, subdivision (a), and the Three Strikes law]; see People v. Johnson (2019) 32 Cal.App.5th 26, 47, 69 [remanding under Senate Bill No. 1393 even though the trial court denied a Romero motion to strike a strike prior and indicated it would not strike a serious felony prior if it had the discretion to do so].) Moreover, neither attorney informed the court of its sentencing discretion on this issue and the probation report incorrectly stated that the enhancement was mandatory.
For these reasons, our confidence in the outcome is undermined. Accordingly, Jenkins's sentence is vacated and the matter is remanded for resentencing to allow the trial court to exercise its discretion and determine whether to strike Jenkins's serious felony enhancement. We offer no opinion on how the court should exercise its discretion.
Following an independent review of the record, we find that no further reasonably arguable factual or legal issues exist. Competent counsel has represented Jenkins on this appeal.
DISPOSITION
Jenkins's sentence is vacated and the matter is remanded to allow the trial court to exercise its discretion and determine whether to strike the serious felony enhancement. If the court strikes the enhancement, then the court shall resentence Jenkins accordingly and shall forward an amended abstract of judgment to the appropriate authorities. If the court declines to strike this enhancement, Jenkins's previously imposed sentence shall remain in effect. In all other respects, the judgment is affirmed.
DATO, J. WE CONCUR:
BENKE, Acting P. J.
O'ROURKE, J.