A big Thank You and shout out to Central California Appellate Program (CCAP) for their regular Case summaries efforts. Central California Appellate Program (CCAP) is a nonprofit law office, created pursuant to California Rules of Court, rule 8.300(e), serving the Third and Fifth District Courts of Appeal (external links), and dedicated to improving the quality of indigent representation in criminal, juvenile, dependency and mental health appeals.
This posting is specific to Penal Code section 1170.95 petition. As a quick review: This statute states that if you have a felony murder conviction under the old law but if tried under the new law, a jury or judge would not have convicted you, then you can petition the court for resentencing.
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People v. Jenkins (2021) 70 Cal.App.5th 924 , District: 4 DCA , Division: 2 , Case #: E075886
Opinion Date: 10/25/21
Trial court erred by summarily denying Penal Code section 1170.95 petition without issuing an order to show cause because the petition stated a prima facie case for relief and the record of conviction does not refute the prima facie showing. In 2002, a jury convicted Jenkins of second degree murder and kidnapping. The jury also found true a witness-killing special circumstance, which required the jury to find an intent to kill. The trial court struck the special circumstance finding because the jury was only supposed to return a finding if it found Jenkins guilty of first degree murder.
The Court of Appeal affirmed. In 2019, Jenkins’s section 1170.95 petition was summarily denied. Jenkins appealed. Held: Reversed and remanded with directions to issue an order to show cause. In conducting the prima facie review of a section 1170.95 petition, the court takes the petitioner’s factual allegations as true, unless the record of conviction contains facts refuting them. Jenkins’s petition contained the required factual allegations to make a prima facie showing that he was entitled to relief. The Court of Appeal here reviewed the record of conviction and concluded it does not exclude the possibility that the jury convicted Jenkins under the natural and probable consequences theory.
Although the sentencing court implicitly found Jenkins acted with intent to kill when applying Penal Code section 654 (and the Court of Appeal determined this finding was supported by substantial evidence on direct appeal), this does not preclude relief because the finding was made by a preponderance of the evidence, not beyond a reasonable doubt. Additionally, the witness-killing special circumstance does not preclude relief because the trial court struck the finding.
Finally, the jury instruction on the natural and probable consequences doctrine erroneously identified murder as the target offense. But a later paragraph of the instruction told the jurors they did not have to agree unanimously on the target offense, so the instruction as a whole did not necessarily show Jenkins was convicted on a murder theory that is still valid.
The full opinion is available on the court's website here: https://www.courts.ca.gov/opinions/documents/E075886.PDF
A big THANK YOU to CCAP for summarizing the Jenkins case.