California Court of Appeals, Fourth District, First Division
FOR PARTIAL PUBLICATION[*]
from a judgment of the Superior Court of San Diego County,
Melinda J. Lasater, Judge. Super. Ct. Nos. CD272046/CD270678
O'Connor, under appointment by the Court of Appeal, for
Defendant and Appellant.
Becerra, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney
General, Robin Urbanski and Yvette M. Martinez, Deputy
Attorneys General, for Plaintiff and Respondent.
convicted defendant Markeith Jenkins of assault by means
likely to produce great bodily injury (Pen
Code, § 245, subd. (a)(4)) and battery
with serious injury (§ 243, subd. (d)). The jury also
found true defendant personally inflicted great bodily injury
(§ 12022.7, subd. (a)). Defendant subsequently admitted
to having two prior strike convictions (§ 667, subds.
(c) & (e)(2)(A)); two prior serious felony convictions
(§§ 667, subd. (a)(1) & 1192.7, subd. (c)); and
two prior prison convictions (§ 667, subd. (b)).
sentencing, defendant filed a motion based on People v.
Superior Court (Romero) (1996) 13 Cal.4th 497
(Romero) seeking in the interest of justice to have
one or more of his strike priors set aside. The court denied
that motion, imposed on defendant the term of 25 years to
life on the assault by means likely to produce great bodily
injury conviction; stayed pursuant to section 654,
subdivision (a)(1) his sentence on the conviction for battery
with serious bodily injury; and imposed three consecutive
years for the great bodily injury enhancement (§
12022.7, subd. (a)); and an additional 10 years for the two
serious felony prior convictions, for a total sentence of 13
years plus 25 years to life.
opening brief, defendant contends remand is necessary both
for a pretrial diversion hearing (§ 1001.36), and to
give the court an opportunity to exercise its newly provided
discretion pursuant to Senate Bill No. 1393 (2017–2018
Reg. Sess.), (hereafter Senate Bill 1393), effective January
1, 2019, to dismiss or strike one or more of his serious
felony prior convictions. Defendant alternately contends the
court abused its discretion when it refused under
Romero to strike one or more of his prior strike
the People filed their respondent's brief, defendant
moved in the trial court to vacate various fines,
assessments, and fees imposed at sentencing (sometimes,
motion to vacate), relying on People v.
Dueñas (2019) 30 Cal.App.5th 1157
(Dueñas). Defendant provided this court with
a courtesy copy of the motion to vacate when he filed his
reply brief in this court on May 10, 2019.
19, 2019, on our own motion we requested supplemental
briefing on the following two issues: (1) whether a superior
court retains jurisdiction under section 1237.2 to address
the imposition of fines, assessments, and fees imposed on a
defendant, when an appeal has already been filed in which the
imposition of such is not the only issue being
appealed; and, regardless of the outcome of that threshold
issue, (2) whether defendant in the instant case is entitled
to a hearing under Dueñas on his ability to
pay the fines, assessments, and fees that were imposed at
sentencing, or whether he forfeited that alleged right by his
failure to object to such imposition. The parties submitted
supplemental briefing as requested, which we have considered
in deciding this case.
explain, we agree newly enacted section 1001.36 and newly
amended sections 667, subdivision (b), and 1385, subdivision
(b), apply retroactively in this matter. Accordingly, we
conditionally reverse the judgment and remand the matter to
allow the trial court an opportunity to exercise its
discretion under these statutes, as discussed in more detail
further explain, we conclude the trial court lacked
jurisdiction under section 1237.2 to rule on defendant's
motion to vacate because as is clear, defendant's appeal
raises issues other than the imposition of fines,
assessments, and fees. We also conclude on the facts of this
case that defendant forfeited his right to challenge the
imposition of such.
Brooks A. testified he and his friend David. L. had dinner on
May 12, 2017, at a restaurant located in Balboa Park in San
Diego. After dinner, while walking back to their car, Brooks
heard and saw two males on the opposite side of the street
"having a very loud conversation." As Brooks and
David continued walking, they heard the yelling between the
two males becoming louder. Brooks then looked over his right
shoulder and noticed one of the two males who had been
yelling approaching from behind. Brooks at trial identified
this man as defendant. Brooks observed the man was a few feet
away, and appeared animated and aggressive as he approached.
testified the man was still yelling loudly, but this time at
them. Although the man was "really incoherent,"
Brooks did hear him say something like, "Why-why are you
walking away from me?" Brooks did not know the man, and
had never seen or spoken to him before. Brooks turned toward
the man, and said "something to the effect of, I'm
sorry. I don't-I don't know what's going on"
Brooks noticed the man was holding or "gripping
something" in his right hand.
Brooks could take another step and without warning, he felt a
fist hit his jaw, nose, and cheek area. Brooks did not see
what he described as a bone-shattering punch because he was
in the process of turning around when struck. The force of
the blow "shattered" multiple teeth,
"busted" open his lip, and caused significant blood
loss from his mouth and nose. David called 911 while he and
Brooks walked to the end of the street, where they met
police. Immediately before the punch, Brooks did not see
anyone threatening the man, including, as discussed
post, "with a stick."
weeks after the attack, Brooks could not eat solid food; he
also had trouble breathing and swallowing, and experienced
significant pain and discomfort despite taking pain
medication. Months after the attack, Brooks still experienced
facial swelling and discomfort from the punch.
testified he and Brooks had been friends for years. After
dinner while walking back to David's car, they heard a
man behind them "yelling" but could not make out
what the man was saying. The man, whom David described as
middle-aged and whom he identified in court as defendant,
appeared to be yelling at them, as he was looking directly at
Brooks and David. Like Brooks, David did not know the man,
and had never met or spoken to him. David also did not see
the man being chased by another man holding a stick. As soon
as they both turned around in response to the man's
yelling, according to David the man appeared "ready to
attack and then... did," hitting Brooks in the face.
saw the man was holding an object in his right hand when he
punched Brooks in the face. David, however, could not tell
what the object was. David, who worked in a hospital, noted
the punch was forceful enough to knock off parts of
Brooks's teeth. Immediately after the punch, blood
started pouring out of Brooks's mouth and nose. In shock
over what had just happened to Brooks, David yelled at the
man, who turned around and walked the other way. David also
heard a bystander on the other side of the street yell at the
man. After assessing the injuries to Brooks's face, David
called 911. As he was doing so, he saw the man again start to
approach. Scared for their safety, David and Brooks crossed
the street to avoid the man.
testified in his own defense. On the day of the May 12
attack, defendant was temporarily homeless and living in
Balboa Park. As he was resting by a tree with his eyes
closed, defendant heard someone going through his belongings.
When he looked up, he saw a woman he described as homeless
running away. Defendant checked his personal belongings and
found his cigarettes and debit card missing.
next saw a large man holding a "giant stick"
staring at him. Defendant estimated the stick was about six
inches in diameter, and believed this individual, whom he had
seen in the park before, was a lookout for the woman who had
just stolen some of his belongings. The individual looked
like he wanted to hurt defendant.
nonetheless approached this individual and pleaded for the
return of his debit card. In response, the individual told
defendant to leave, at the same time flexing his muscles.
Defendant, who was then standing in the middle of the street,
heard someone yell "Hit him." Defendant believed
someone across the street was imploring the individual to
strike defendant with the stick.
testified the man who yelled "Hit him" was victim
Brooks. Defendant angrily approached Brooks, attempted to
explain that he had just been robbed of his cigarettes and
debit card, and suggested that Brooks should try and help him
instead of encouraging the other individual to use the stick
to hit defendant. According to defendant, Brooks in response
merely said, "I can't help you," or words to
that effect. As defendant was having this conversation with
Brooks, defendant saw the individual with the stick walking
"fast" toward them.
for his own safety, defendant testified he then
"lunged" toward, and punched, Brooks to keep from
being hit by the other individual, who, according to
defendant, was aggressively swinging the stick as he
approached. Defendant claimed he had nothing in his hand, and
only used his fist, when he hit Brooks.
to defendant, the other individual again sought to strike
defendant with the stick. This time, defendant grabbed the
stick, and the two men struggled over it. Because the other
individual was wearing leather gloves, he dropped the stick,
allowing defendant to take possession of it. Defendant then
threw the stick over the bridge.
testified that he never felt threatened or "anything
like that" by Brooks; that Brooks had no weapons in his
hand when defendant hit him; that defendant did not hit
Brooks in self-defense; but that Brooks "just was in the
way" as defendant attempted to avoid the other
individual holding the stick. Defendant also testified he was
not a "violent person," and he felt bad about