People v. Jenkins CA1/1

Filed 9/21/23 P. v. Jenkins CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A166567

v. (San Mateo County DEMETRIUS LAVON JENKINS, Super. Ct. No. SC025470A) Defendant and Appellant.

Defendant Demetrius Lavon Jenkins appeals from an order denying his petition to vacate his murder conviction and be resentenced under Penal Code1 section 1172.6.2 Defendant contends at an evidentiary hearing held under section 1172.6, subdivision (d)(3), the trial court should not have admitted evidence of the transcript of his 1990 preliminary hearing without first requiring the prosecution to establish the unavailability of the

1 All statutory references are to the Penal Code, unless otherwise

indicated. 2 Defendant filed his petition for resentencing under former

section 1170.95, which the Legislature later renumbered section 1172.6 without substantive change. (Stats. 2022, ch. 58, § 10.) We hereafter cite to section 1172.6 for ease of reference.

preliminary hearing witnesses. We reject this contention and affirm the court’s order. I. FACTUAL AND PROCEDURAL BACKGROUND Two witnesses, Emile J. and Alisha S., testified at defendant’s preliminary hearing held on November 27, 1990.3 On August 8, 1990, Emile and Alisha were in East Palo Alto. Both observed defendant standing by the driver’s side of a car talking to a “white guy” seated in the driver’s side. Then they heard a gunshot. Following the shot, defendant said to the man in the car, “ ‘break yourself.’ ” Emile J. understood this to mean, “you give up whatever you have on you.” He heard the man in the car respond, “I don’t have nothing,” and saw him roll up his window. Emile told defendant, “ ‘Don’t shoot.’ ” Alisha indicated that “Everybody was like, ‘Don’t do it.’ ” After defendant said, “break yourself,” Emile saw the barrel of a gun “pointing toward the window.” Once the man rolled up the window, Emile and Alisha heard what sounded like a firecracker/second gunshot and Emile noticed the window was shattered. Defendant ran away. Following the shooting, the man in the car drove off and it looked like he was going to turn at a stop sign, but instead swerved, hitting a car. A couple of hours later, defendant told Emile that “whoever did it was sick.” In a 2013 risk assessment report prepared for the Board of Parole Hearings, defendant stated he shot the victim because the victim would not give him money. Similarly, in a 2016 risk assessment report, defendant recalled that after asking three times for money, he “ ‘got tired’ ” and “ ‘shot the man.’ ”