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People v. Jenkins

California Court of Appeals, Fourth District, First Division

September 18, 2019

THE PEOPLE, Plaintiff and Respondent,
v.
MARKEITH JENKINS, Defendant and Appellant.

         CERTIFIED FOR PARTIAL PUBLICATION[*]

          APPEAL from a judgment of the Superior Court of San Diego County, Melinda J. Lasater, Judge. Super. Ct. Nos. CD272046/CD270678

          Sheila O'Connor, under appointment by the Court of Appeal, for Defendant and Appellant.

          Xavier 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.

          BENKE, J.

         A jury convicted defendant Markeith Jenkins of assault by means likely to produce great bodily injury (Pen Code,[1] § 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)).

         Before 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.

         In his 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 convictions.

         After 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.

         On June 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.

         As we 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 post.[2]

         As we 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.

         FACTUAL BACKGROUND

         Victim 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.

         Brooks 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.

         Before 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."

         For 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.

         David 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.

         David 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.

         Defendant 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.

         Defendant 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.

         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.

         Defendant 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.

         Fearing 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.

         According 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.

         Defendant 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 hurting Brooks.

         DISCUSSION

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