People v. Dinkins CA2/3

California Court of Appeal Aug 17, 2020 No. B301378Unpublished

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Holding. The court held that a defendant who was the actual killer and was not convicted under the felony-murder rule or the natural and probable consequences doctrine is ineligible for resentencing under Penal Code section 1170.95 as a matter of law. Consequently, the trial court's failure to appoint counsel before summarily denying the petition was harmless error.

Issues

Whether a defendant convicted as the actual killer is eligible for resentencing under Penal Code section 1170.95.
Whether the trial court's failure to appoint counsel before summarily denying a section 1170.95 petition constitutes an arguable issue requiring reversal.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“Because Dinkins was the actual killer and was not convicted pursuant to the natural and probable consequences doctrine or the felony murder rule, he is statutorily ineligible for section 1170.95 relief.”

“Dinkins is ineligible as a matter of law, pure and simple; counsel’s representation can do nothing to change that fact.”

Filed 8/17/20 P. v. Dinkins CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B301378

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. NA083282) v.

NEELY LE’JON DINKINS,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Tomson T. Ong, Judge. Affirmed. Thomas T. Ono, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. _________________________

Appellant Neely Le’jon Dinkins appeals the trial court’s order denying his petition for resentencing pursuant to Penal Code section 1170.95.1 Because Dinkins is ineligible for relief as a matter of law, we affirm the court’s order. FACTUAL AND PROCEDURAL BACKGROUND2 On September 11, 2009, Alexi Alvarez and Yesenia Soto were lawfully crossing a Long Beach street with their two small children, two-year-old Oscar and one-year-old Kaylee, who were seated in a Radio Flyer wagon. Kaylee was wearing a seatbelt. Dinkins, who was intoxicated, was driving his girlfriend’s Dodge Durango. When making a turn into the intersection, he hit the children but continued to drive, dragging them under the truck. Attempting to stop Dinkins, a bicyclist chased him, Yesenia climbed onto his truck and pounded on the partially open window, and numerous bystanders screamed at him. Nonetheless, Dinkins declined to stop. At some point, Oscar, seriously injured, rolled from underneath the car, but Kaylee remained trapped. Dinkins continued to speed from the scene for over a mile, inflicting horrific injuries upon Kaylee and killing her. A jury convicted Dinkins of second degree murder (§ 187, subd. (a), count 1), gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a), count 2), driving under the

People v. Dinkins CA2/3

AI Brief

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B301378

NEELY LE’JON DINKINS,

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