PEOPLE v. MARK JENKINS

Filed 6/20/06

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County. Gary J. Ferrari, Judge. Affirmed in part, reversed in part and remanded.

Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell, Supervising Deputy Attorney General, and Susan S. Kim, Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION

Appellant Mark Jenkins challenges his murder conviction on the grounds the trial court erred by concluding that his prior Utah convictions for aggravated robbery constituted serious or violent felonies under California law, refusing his request to instruct on second degree murder as a lesser included offense, doubling his life without possibility of parole term under the Three Strikes Law, and imposing a parole revocation fine.

We conclude the record is insufficient to prove that appellant's Utah priors constitute serious or violent felonies under California law. Appellant was not entitled to instructions on second degree murder, as no evidence was presented that would have absolved him of felony murder but not second degree murder based upon malice. The trial court erred by doubling appellant's term of life without possibility of parole and by imposing a parole revocation fine.

BACKGROUND AND PROCEDURAL HISTORY

Appellant entered a liquor store, placed a white plastic bag on the counter, and pointed a gun at the stores' proprietor, Chan Hoeung. Words were exchanged, and Hoeung drew his own gun. Appellant fired at Hoeung, who fired back. As a result of the gunfire, Hoeung died and appellant was injured.

A jury convicted appellant of first degree murder and found true a robbery-murder special circumstance allegation. It also found he had personally and intentionally fired a gun, causing death, and personally used a gun. The court found appellant had suffered two prior serious or violent felony convictions and served two prior prison terms within the scope of Penal Code section 667.5, subdivision (b). It sentenced appellant to life in prison without possibility of parole, and doubled the term under the Three Strikes Law. The court enhanced appellant's sentence by 25 years to life under Penal Code section 12022.53, subdivision (d) and ten years under Penal Code section 667, subdivision (a)(1).

DISCUSSION

1. Appellant's prior Utah robbery convictions do not constitute serious or violent felonies under California law.

The information alleged appellant had suffered two prior serious and/or violent felony convictions within the scope of the Three Strikes Law and Penal Code section 667, subdivision (a)(1). To prove these allegations, the prosecutor introduced the following: (1) a judgment of conviction dated October 30, 1997 reflecting a guilty plea to one count of aggravated robbery in Weber County, Utah; (2) a sentencing worksheet dated August 11, 1997 reflecting a conviction of one count of aggravated robbery in Davis County, Utah; (3) two copies of apparently the same Utah State Prison fingerprint card; and (4) photocopies of photographs of appellant. None of these documents indicate the facts underlying either of appellant's aggravated robbery convictions.

Appellant contends the evidence was insufficient to show that his Utah aggravated robbery convictions constituted strikes or prior serious felonies for purposes of enhancement under Penal Code section 667, subdivision (a)(1). In particular, he argues robbery may be committed in Utah with a different intent than is required in California. He further argues that, whereas California law requires that force or fear be used against the person in possession of the property taken in a robbery, force or fear may be used against any person in Utah. Therefore, he argues, application of the Three Strikes Law and Penal Code section 667, subdivision (a)(1) violated due process.

Penal Code section 667, subdivision (a)(1) provides for a sentence enhancement for each prior conviction for â€