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People v. Felix

California Court of Appeals, Third District, Sacramento

October 16, 2019

THE PEOPLE, Plaintiff and Respondent,
JOVAN JERMAINE FELIX, Defendant and Appellant.


          APPEAL from a judgment of the Superior Court of Sacramento County, No. 13F07431 Robert M. Twiss, Judge.

          Victor S. Haltom, Retained Counsel for Defendant and Appellant.

          Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Carlos A. Martinez, Supervising Deputies Attorneys General, for Plaintiff and Respondent.

          HULL, J.

         Defendant Jovan Jermaine Felix contends the trial court abused its discretion in his trial for attempted murder by introducing evidence of a prior crime and by denying his motions for retrial and to reopen the evidence. We disagree and affirm the judgment.

         Facts and Legal Proceedings

         Defendant and his girlfriend went to the Level Up Lounge in midtown Sacramento late on August 17, 2013. Defendant ordered a Long Island Iced Tea. The bartender, Daniel Petty, made and served the drink. Without tasting the drink, defendant refused it, saying he would not enjoy it. He wanted Petty to make him another drink. His girlfriend said the drink needed more alcohol. Petty said he could add more alcohol, but it would cost more. After the two pushed their drinks away, Petty asked Scott Nguyen, the other bartender on duty, to take over, and he went outside.

         Defendant told Nguyen the drink was too sweet. Nguyen offered to make it sourer or to make a different drink, but defendant did not like either suggestion. He and his girlfriend soon left the bar.

         Outside, Joleen Esquivel, the bar's general manager, was seated with some friends. Petty was informing her of a conflict in the bar when defendant came out and interrupted them. He said Petty had a “bootsy” or messed-up attitude. Petty explained to Esquivel what had happened, and Esquivel offered to make defendant another drink. Defendant refused the offer. He said he came to the bar a lot and was not coming back.

         Commenting on the customer service, defendant said, “This is how places get burned down.” Shocked, Esquivel asked, “Are you threatening us?” Defendant replied, “No, but I'm just saying that's how stuff like that happens.” He said his girlfriend was a bartender. Addressing the girlfriend, Esquivel explained that as a bartender, she would know that someone who wants more alcohol in a drink must pay for it. Defendant and his girlfriend left.

         Around 1:30 or 2:00 a.m., Petty and Nguyen began closing the bar along with another bar employee, Angelo Stowers. The bar's DJ, Aaron Jacobson, began packing up his equipment. While they were closing, Stowers had about six ounces of whiskey but did not appear intoxicated. Jacobson had four to six drinks that evening.

         As the group was leaving, Nguyen and Stowers noticed defendant around the corner. He was wearing a fisherman's hat pulled over his face. Defendant was with another man, later identified as Cornelius Jones. Jones wore glasses. He appeared disgruntled and had clenched fists. He peered into the building's windows. Nguyen heard Jones ask, “Are these the guys?” Petty heard Jones say, “They both have glasses.” Nguyen said to the two men, “What's up?” Stowers told the group to walk away.

         As Nguyen was leaving, Jones punched him in the head from behind. Nguyen went to the ground. Stowers grabbed Jones with both arms and body-slammed him to the sidewalk. Jacobson kicked Jones in the back of the head. Defendant lunged at Jacobson and tried to hit him with his fist, but Jacobson kept his distance as defendant chased him.

         Jones stood up and brandished a knife. Stowers yelled, “Knife!” and everyone started to disperse. Stowers jumped backward into the street and ran to the other side as Jones chased him. He slipped and lost his footing on the curb. He landed against a wall of a restaurant. He turned, and Jones was almost on top of him. He grabbed Jones's wrist, but Jones stabbed him in the stomach. Stowers pulled out his own knife and slashed Jones across the face. Jones put his left hand up to his face, and Stowers yelled “Cops!” Jones immediately bolted off. A GMC SUV pulled up. Defendant and Jones got in, and the car went away.

         Stowers was transported to the hospital, where he underwent surgery to ligate a small artery that had been cut by the stabbing. During the surgery, Stowers's heart stopped beating. Various measures were taken, and his heart restarted within minutes.

         Back at the crime scene, Nguyen discovered that two of his car's tires had been slashed. He frequently parked in the same spot when he worked at the bar. Police recovered a pair of glasses by where Jones stabbed Stowers.

         Jacobson positively identified Jones in a photo lineup. Police found a GMC Yukon parked outside Jones's residence. When authorities contacted Jones, he was not wearing glasses, although some of his Facebook photos depicted him wearing glasses.

         Defendant and Jones were tried jointly before separate juries. Jones was convicted of premeditated attempted murder and other serious crimes. (People v. Jones (2019) 32 Cal.App.5th 267, 269.) However, the court declared a mistrial in defendant's case.

         After retrial, a jury found defendant guilty of attempted murder, assault with a deadly weapon, and assault by means of force likely to produce great bodily injury. (Pen. Code, §§ 664/187, subd. (a); 245, subds. (a)(1), (4), unless otherwise stated, statutory section references that follow are to the Penal Code.) The court found that defendant committed the assault by means of force likely to cause great bodily injury while released from custody on a primary offense, and that he had a prior strike and serious felony conviction for assault with a firearm. (§§ 12022.1; 245, subd. (a)(2); 667, subd. (a); 667.5, subd. (b)-(i); 1170.12.)

         The court sentenced defendant to a state prison term of 28 years four months as follows: a doubled upper term of nine years for a total of 18 years for the attempted murder; a one-third consecutive doubled term of two years for the assault with force; five years for the prior serious felony enhancement, two years for the released from custody enhancement, and, in a separate case, a one-third consecutive term of one year, four months for possession of a firearm by ...

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