People v. Jennings CA6

Filed 2/17/22 P. v. Jennings CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H049043 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. 155731)

v.

MATTHEW GEORGE JENNINGS,

Defendant and Appellant.

Defendant Matthew George Jennings appeals the denial of his Penal Code section 1170.95 petition for resentencing. At issue is a question that has divided the courts of appeal and is currently pending before the California Supreme Court: Does a felony-murder special circumstances finding (Pen. Code, § 190.2, subd. (a)(17)) that was made before People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark) were decided preclude a defendant from making a prima facie showing of eligibility for relief under Penal Code section 1170.95? (People v. Strong, review granted March 10, 2021, S266606.) Consistent with an opinion from another panel of this court (People v. Pineda (2021) 66 Cal.App.5th 792, review granted September 29, 2021, S270513 (Pineda)), we will reverse the order denying defendant’s petition and remand the matter with instructions to the trial court to determine whether defendant’s conduct was proscribed by the special circumstances statute, as construed in Banks and Clark.

I. TRIAL COURT PROCEEDINGS Our brief factual summary is derived from this court’s prior opinion affirming defendant’s judgment on direct appeal. (People v. Jennings (Apr. 11, 2001, H017202) [nonpub. opn.].) We take judicial notice of that opinion on our own motion for the limited purpose of providing context for the purely legal issue raised in this appeal. (Evid. Code, §§ 452, subd. (d), 459.) The manager of a craft store was ambushed at the store after it closed one night in 1991. The manager was bound with duct tape, robbed, and stabbed over 20 times which led to his death. Approximately $9,000 was taken from the store’s safe. Defendant and three other individuals were later arrested. Defendant was charged with first degree murder (Pen. Code, § 187), two counts of robbery (Pen. Code, § 211), and two counts of burglary (Pen. Code, § 459). (Unspecified statutory references are to the Penal Code.) As to the murder count, the information alleged special circumstances of lying in wait, torture, burglary, and robbery. (§ 190.2, subd. (a)(15), (a)(17)(A), (a)(17)(G).) Defendant pleaded guilty to one burglary count and one robbery count before trial (both for conduct on a different date unrelated to the homicide). There was trial testimony that defendant was the “ ‘leader of the pack’ ” of men charged with the killing. An acquaintance testified to hearing defendant and the other men brag about committing robberies using a stun gun, and overhearing the men talk about their plan to rob the specific craft store where the manager was killed. The same witness testified that defendant appeared to be one of the masterminds behind the planned craft store robbery. But evidence from multiple sources suggested that defendant was not in the store when the manager was murdered, including a jail call from defendant to his former girlfriend and statements to police by all three codefendants that defendant was outside during the killing. Blood matching the manager’s blood type was found on the clothing of the three codefendants when they were arrested, but no blood was found on defendant’s clothing at the time of his arrest. 2