The opinion
Filed 2/2/21
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F076883
Plaintiff and Respondent,
(Super. Ct. No. BF156917A)
v.
DONTRELL COLLINS, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. John W. Lua,
Judge.
Kyle Gee, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Nirav K.
Desai, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Dontrell Collins drove his car at nearly 100 miles per hour and collided into a
vehicle carrying three young women; two of them died. A test of his blood revealed the
* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of sections II, III, IV and V of the Discussion.
presence of alcohol and phencyclidine (PCP). He was convicted of many crimes,
including two counts of murder.
On appeal, Collins raises four claims. One, the trial court erred in denying his
motion to challenge the prosecutor’s excusal of a black prospective juror during jury
selection. Two, the evidence did not prove murder. Three, his attorney failed to object to
a psychologist’s opinion regarding his mental state during the incident. Four, the court
abused its discretion in denying his motion to continue the sentencing hearing.
The first claim is well taken. It appears the trial court applied the incorrect
standard to review the motion challenging the prosecutor’s excusal of a black juror. Our
independent review of the record supports a reasonable inference the prosecutor’s excusal
was improperly motivated. The remaining issues lack merit. Accordingly, the judgment
is conditionally reversed to resume and conclude the hearing on the motion.
BACKGROUND
Charges
The Kern County District Attorney charged Collins with eight crimes: Murder
(Pen. Code,1 § 187; counts 1 & 2); gross vehicular manslaughter while intoxicated
(§ 191.5; counts 3 & 4); driving while intoxicated and causing injury (Veh. Code,
§ 23153, subds. (a) & (b); counts 5 & 6); resisting an executive officer (§ 69; count 7);
and committing a crime while in custody (§ 653.75; count 8). The charges included
several enhancements: Personally inflicting great bodily injury (§ 12022.7; counts 5 & 6)
and multiple victims in an intoxicated driving case (Veh. Code, § 23558, counts 3, 4, 5 &
6). It was also alleged Collins had previously served a prison term (§ 667.5, subd. (b))
and suffered prior strike convictions (§§ 667, subds. (b)-(i) & 1170.12, subds. (c)-(j)).
1 Undesignated statutory references are to the Penal Code.
2.
Trial Evidence
The evidence established Collins drove his vehicle at an extremely fast speed on a
highway with multiple stoplights. California Highway Patrol Officer Boshers first
noticed Collins’s vehicle and registered it on his radar at 95 miles per hour. Boshers
made a “U-turn” to follow the vehicle but was unable to catch up.
Multiple other people witnessed the same. One witness described Collins’s
vehicle “driving really, really fast.” The witness saw Collins swerve and almost lose
control. He believed Collins drove through a red light at over 90 miles per hour.
Another witness estimated Collins’s vehicle was traveling about 120 miles per
hour. The car was moving so fast it was “wobbl[ing] ….” The car drove straight through
a red light with other vehicles at the intersection.
Yet another person witnessed Collins’s vehicle speeding at “about a hundred miles
an hour, jump[] up on the center divider, and then c[o]me down off the divider and r[u]n
into the back of another car” that was slowing for a red light. The collision “caus[ed]
both vehicles to explode,” engulfing the rear-ended vehicle in flames. Two young
women died in the fire and a third survived but with serious, long-term injuries and
anguish.
A roadside investigation near the collision concluded with Collins’s arrest. During
the investigation, Collins described driving along the road, trying to slow down, engaging
the brakes, and colliding with another vehicle from behind. The law enforcement officer
conducting the investigation believed Collins had driven under the influence of alcohol
(DUI). A preliminary breath test registered at “.11 percent” “breath alcohol content.” A
later blood test registered a “.071 percent … blood alcohol content” positive for PCP.
Collins was then booked into the local jail. A few hours later, he was involved in
a physical altercation with a guard at the jail. A few days later he was interviewed by a
law enforcement officer. In response to a question about how “often he drank and
drove,” he responded, “[T]oo many times.”
3.
Collins’s girlfriend testified at the trial. She had warned him not to drive “high”
on a near daily basis.
An investigator from the Department of Motor Vehicles also testified. The
investigator produced four forms Collins had signed in the five years preceding this
collision. Each form included a warning about the dangers of drinking and driving. His
signature acknowledged he read each warning.
Dr. Michael Musacco, a psychologist, testified about Collins’s mental health. He
testified Collins suffered from “a persisting substance induced-mental illness.” He
opined Collins was capable of understanding the nature and quality of his actions and the
difference between right and wrong. In response to the prosecutor’s questioning,
Dr. Musacco agreed Collins knew the nature and quality of his actions and the difference
between right and wrong when the collision occurred.
Verdict and Sentence
Collins was convicted as charged. He was sentenced to serve 73 years four
months to life in prison.
DISCUSSION
As mentioned, Collins raises four claims on appeal. First, he argues the court
erred in denying his Batson/Wheeler2 motion to challenge the prosecutor’s excusal of a
prospective black juror. Specifically, he claims the court inappropriately hypothesized
race-neutral reasons for the excusal and applied the wrong standard of review.
Second, Collins contends the evidence insufficiently proved murder because it
failed to prove his subjective awareness of the dangers attending his conduct and his
conscious disregard for those dangers. Third, he alleges his attorney was constitutionally
ineffective for failing to object to a psychologist’s opinion that, at the time of the
collision, Collins understood the nature and quality of his actions and the difference
2 Batson v. Kentucky (1986) 476 U.S. 79; People v. Wheeler (1978) 22 Cal.3d 258.
4.
between right and wrong. Fourth, he believes the court abused its discretion in denying
his motion to continue the sentencing hearing because he needed additional time to
research a new trial motion and to conclude writing a “sentencing brief ….”
We find merit in the first claim. A thorough review of the record reveals the court
erred by denying the Batson/Wheeler motion. The remaining claims fail. As we shall
explain, the proper remedy is to conditionally reverse the judgment with directions to
resume the hearing on the Batson/Wheeler motion.
I. The Court Erred In Denying The Batson/Wheeler Motion
During jury selection, the jury box was filled with 12 prospective jurors. Six
potential alternate jurors were seated outside the box. These 18 jurors were subjected to
questioning to determine their fitness to serve as jurors. The remainder of the venire was
seated in the courtroom gallery.
After questioning concluded and each party exercised three peremptory strikes, the
prosecutor accepted the 12 jurors in the box. At that point, one black juror was seated in
the 12-person jury box. The parties each exercised an additional peremptory and a
second black juror, Margo S.,3 moved from an alternate seat into the 12-person jury box.
Collins then used a fifth peremptory strike on a different juror and the prosecutor used a
fifth peremptory to strike Margo S.. Collins challenged the prosecutor’s fifth strike
pursuant to Batson/Wheeler.
Outside the jury’s presence, Collins’s attorney explained Margo S. was “obviously
an African American woman … which is … Mr. Collins’ racial group.” The challenge
was premised on the fact counsel “didn’t hear anything in her comments that would
indicate a race-neutral reason for excusing her ….”
3
Many of the prospective jurors are identified in the record by their full names.
We decline to do so here.
5.
The court responded it must determine if “the excusal led to a reasonable inference
of a discriminatory nature and, by virtue of deduction, there was no other reason under
which the prospective juror should have been excused or released.” The court
subsequently denied the motion, finding Collins “failed to demonstrate a prima facie case
that would lead one to reasonably believe that the only reason Ms. [S.] was released from
this panel is for a discriminatory purpose ….”
The court added, “[B]ased on the direct observations that the Court had in having
the opportunity to question Ms. [S.], it did appear to the Court that not only based on her
profession does she have some understanding of potential evidence that might be
presented in this case, even though she can set it aside, but just as importantly, if not
more importantly, she herself was prosecuted for petty theft, as she put it, when she was
younger, and she also has cousins that have been incarcerated, two in particular, that she
shared with us, one being a result of assaulting his or her mother and another for
assaultive allegations.” “Those … circumstances … certainly would lend itself to
excusing Ms. [S.] for reasons other than” discrimination.
The prosecutor agreed with the court and added, “[S]he indicated that one of her
relatives … was convicted of charges as a result of an assault that resulted from what she
termed a mental breakdown, which is psychologically similar, but not the same situation
as the defense is arguing in this case.” He also noted that “prospective juror number one
[was] also African-American and the People accepted the panel with her on it.”
Collins now faults the court for applying the wrong standard to the motion, and for
positing its own nondiscriminatory reasons for the prosecutor’s challenge. The People
urge us to affirm because the trial court applied the right standard or, alternatively,
Collins nonetheless failed to raise a prima facie case of discrimination.
We agree with Collins the trial court apparently applied the wrong standard. We
also agree with the People we may independently review the record. But our independent
6.
review, contrary to the People’s contention, supports a reasonable inference of
discrimination.
A. Additional Background
Jury selection in this case began with direct questioning to 17 prospective jurors.4
The remaining prospective jurors from the venire were asked to pay attention to each
question and answer so they would be “ready to respond with answers applicable to [the]
questions.” We detail the voir dire relevant to the Batson/Wheeler motion, focusing
primarily on the jurors the prosecutor first accepted and Margo S..
The court asked each of the 17 jurors several questions, including whether they
personally or a close friend or family member was “charged with or accused of
committing a crime ….” Juror 4237967’s brother was arrested for a crime. The juror
formed an opinion about whether the brother was treated fairly or unfairly and could set
aside the brother’s experience in serving as a juror in this case.
Juror Micheal B. himself was involved with a crime. He answered he was
convicted and the case was dismissed. Those answers were not clarified. He never
formed an opinion about whether he was treated fairly and could set aside his experience.
Juror Betty B. had two sons with cases involving DUI charges. One of her sons
was twice imprisoned. She believed she could set aside their experiences and serve fairly
as a juror.
Juror 4301270’s stepson was arrested once. Her own son was convicted of a DUI
by plea. She formed no opinion on whether they were treated fairly and could set their
experiences aside and serve impartially. She would not hold against Collins his
exercising his right to a trial instead of pleading guilty.
4 The court intended to begin jury selection with 18 prospective jurors but one of
the original 18 jurors was quickly excused because she knew the victims.
7.
Juror 4552487 was previously convicted of a DUI. The juror formed an opinion
about whether he or she was treated fairly and could set aside his or her own experience
in serving as a juror. The juror would not hold against Collins his exercising his right to
a trial.
Juror John V. himself was convicted of DUI by plea. He believed he was treated
fairly. His experience would not influence his role as a juror. He would not hold against
Collins his exercising his right to a trial.
Juror 4462349’s parents were involved with a crime. The juror did not form an
opinion about whether his or her parents were treated fairly and could set aside his or her
experience and serve fairly as a juror.
The jurors introduced themselves after answering the court’s initial inquiries.
Juror Brad D. worked for Kern County Behavioral Health and Recovery Services. He
had training or experience with detecting or recognizing mental illness. He thought he
could set aside his training and rely solely on the evidence in this case.
The prosecutor collectively asked the same 17 jurors if “anybody … had a
negative experience with law enforcement?” Only Betty B. replied affirmatively.
The prosecutor then stated he believed “that if you’ve been charged with a crime
or you’ve been convicted or something that everyone has an opinion whether they’ve
been treated fairly or not ….” He followed up by directly asking Juror 4552487 if he or
she was treated fairly. The juror responded, “Yes.”
After this initial questioning concluded, the parties began exercising peremptory
challenges against the jurors seated in the 12-person jury box. The potential alternates,
seated outside the box, would take the place of each excused juror so that there were
always 12 jurors in the jury box.
Each party exercised three peremptory challenges, reducing the prospective jurors
in the box to 11. Each of the above identified and discussed jurors remained among the
8.
11. Seven more jurors were then seated to fill the prospective panel with 18 total jurors,
including Margo S..
Margo S. introduced herself as “a psych tech at the Department of Corrections.”
The court followed up by asking if she “[w]ould … be able to set aside [her]
[professional] training and experience” while serving as a juror in this case. She twice
answered, “Yes.”
The court then asked the seven new jurors if they or someone close to them had
“ever been charged with or accused of committing a crime ….” Margo S. replied she was
“charged with a petty theft when [she] was younger, and [had] a couple of cousins who
[were] in prison ….” She explained one of her cousins “attacked his mom” during “a
mental breakdown” and the other “had assault charges.” She was not close to her cousins
and could set aside her own as well as their experiences in serving as a juror.
In response to Collins’s attorney, Margo S. divulged her familiarity with mental
health medications. She added that she would like to correct any evidence during the trial
that conflicted with her training but would not do so if that was disallowed.
When the prosecutor resumed questioning, he directly asked two of the seven new
jurors if they were treated fairly by law enforcement.5 He then collectively asked the
others if they had any negative experiences with law enforcement. Margo S. did not
respond.
After the parties concluded their questioning, the prosecutor “accept[ed] the panel
as presently constituted.” At that point, the panel consisted of every juror identified
above. Margo S. was in seat 14.
5Those two jurors had described experiences with law enforcement that are not
otherwise relevant.
9.
Collins did not accept the panel and instead excused one juror, followed by the
prosecutor responding in kind. Margo S. then moved into seat two. After Collins
excused another juror, the prosecutor excused Margo S., prompting the present motion.
B. Analysis6
“The ‘Constitution forbids striking even a single prospective juror for a
discriminatory purpose.’ ” (Foster v. Chatman (2016) 136 S.Ct. 1737, 1747.) Ruling on
a Batson/Wheeler motion is a three stage process. In a typical criminal7 case, “ ‘ “[f]irst,
a defendant must make a prima facie showing that a peremptory challenge has been
exercised on the basis of race[; s]econd, if that showing has been made, the prosecution
must offer a race-neutral basis for striking the juror in question[; and t]hird, in light of the
parties’ submissions, the trial court must determine whether the defendant has shown
purposeful discrimination.” ’ ” (Snyder v. Louisiana (2008) 552 U.S. 472, 476-477
(Snyder).)
6 The Legislature recently enacted legislation to address concerns with the
Batson/Wheeler framework. It explicitly found “the existing procedure for determining
whether a peremptory challenge was exercised on the basis of a legally impermissible
reason has failed to eliminate … discrimination. In particular, the Legislature [found]
that requiring proof of intentional bias renders the procedure ineffective and that many of
the reasons routinely advanced to justify the exclusion of jurors from protected groups
are in fact associated with stereotypes about those groups or otherwise based on unlawful
discrimination.” (Assem. Bill No. 3070 (2019-2020 Reg. Sess.) § 1, subd. (b).) The
Legislature “designate[d] several justifications as presumptively invalid and provide[d] a
remedy for both conscious and unconscious bias in the use of peremptory challenges.”
(Ibid.)
Presumptively invalid justifications include “[e]xpressing a distrust of or having a
negative experience with law enforcement or the criminal legal system” and “[h]aving a
close relationship with people who have been stopped, arrested, or convicted of a crime.”
(Assem. Bill No. 3070 (2019-2020 Reg. Sess.) § 2, subds. (e)(1) & (e)(3).) Neither party
notes this legislation and we do not rely on it to decide this appeal. (See id., § 2, subd. (i)
[new legislation “applies in all jury trials in which jury selection begins on or after
January 1, 2022.”].)
7The Constitution forbids discriminatory strikes against jurors in all cases, civil
and criminal, and applies equally to defendants, plaintiffs, and prosecutors alike.
10.
“A defendant establishes a prima facie case of discrimination ‘by producing
evidence sufficient to permit the trial judge to draw an inference that discrimination has
occurred.’ [Citation.] An inference is a logical conclusion based on a set of facts.
[Citation.] When the trial court concludes that a defendant has failed to make a prima
facie case, we review the voir dire of the challenged jurors to determine whether the
totality of the relevant facts supports an inference of discrimination.” (People v.
Lancaster (2007) 41 Cal.4th 50, 74 (Lancaster).) An “ ‘only logical conclusion’
standard … overstate[s] the requirement….” (Id. at p. 75.)
“[C]ertain types of evidence [are] ‘especially relevant,’ including: ‘whether a party
has struck most or all of the members of the venire from an identified group, whether a
party has used a disproportionate number of strikes against members of that group,
whether the party has engaged those prospective jurors in only desultory voir dire,
whether the defendant is a member of that group, and whether the victim is a member of
the group to which a majority of remaining jurors belong.’ ” (People v. Rhoades (2019)
8 Cal.5th 393, 429 (Rhoades).) “[A]n appellate court may take into account
‘nondiscriminatory reasons for a peremptory challenge that are apparent from and
“clearly established” in the record [citations] and that necessarily dispel any inference of
bias.’ ” (Id. at p. 431.)
“[A] reviewing court may not rely on a prosecutor’s statement of reasons to
support a trial court’s finding that the defendant failed to make out a prima facie case of
discrimination. … [T]he fact that the prosecutor volunteered one or more
nondiscriminatory reasons for excusing the juror is of no relevance at the first stage.”
(People v. Scott (2015) 61 Cal.4th 363, 390 (Scott).)
Nonetheless, “[w]hen discriminatory intent is ‘ “inherent” ’ in the explanation
offered by the prosecutor [citation], the public’s confidence in the rule of law suffers,
regardless of whether the defendant was able to make out a prima facie case of
discrimination. In these circumstances, ‘justice must satisfy the appearance of justice.’
11.
[Citation.] Reviewing courts, therefore should not blind themselves to the record in the
‘rare’ circumstance that a prosecutor volunteers a justification that is discriminatory on its
face.” (Scott, supra, 61 Cal.4th at pp. 390-391.)
Comparative juror analysis also aids in “evaluating the prima facie case[,]”
particularly when the trial court “has posited possible prosecutorial reasons for” a
challenged strike.8 (Rhoades, supra, 8 Cal.5th at p. 432, fn. 17.) “By comparing the
excused jurors to those the prosecutor retained on the identified characteristics, we test
the hypothesis that these characteristics were distinct enough to account for the challenge
and dispel any inference of bias.” (Ibid.)
Initially, we recognize the trial court apparently applied the wrong standard by
applying a “no other reason” or “only reason” standard to the first-stage review. This is
no different than a deficient “ ‘only logical conclusion’ ” standard. (Lancaster, supra,
41 Cal.4th at p. 75.) In this circumstance, we may “review the record to resolve the legal
question whether defendant’s showing supported an inference that the prosecutor excused
a prospective juror for an improper reason.” (Ibid.)
Here, the trial court’s three race-neutral reasons for striking Margo S. are
unsupported and contradicted by the record.9 The first reason, that “based on her
profession … she ha[d] some understanding of potential evidence in [the] case,” applied
8 A reviewing court has a “duty to search for constitutional error with painstaking
care ….” (Burger v. Kemp (1987) 483 U.S. 776, 785.) “[T]he purposeful exclusion of
identifiable groups from participation on juries undermines public respect for our
criminal justice system.” (Scott, supra, 61 Cal.4th at p. 390.) If evaluating a
Batson/Wheeler motion involves true consideration of all the circumstances, it would
seem necessary to examine highly relevant comparisons among jurors. This is especially
so where the prosecutor has proffered justifications for the strike that do not stand up
against even a cursory review of the record.
9“ ‘ “Review of a trial court’s denial of a Wheeler/Batson motion is deferential,
examining only whether substantial evidence supports its conclusions.” ’ ” (People v.
Mai (2013) 57 Cal.4th 986, 1048.) “[B]ut that review remains a meaningful one.”
(People v. Lenix (2008) 44 Cal.4th 602, 621.)
12.
equally to Brad D., a juror the prosecutor accepted notwithstanding a professional
familiarity with mental illnesses. Brad D., like Margo S., unequivocally stated he could
set aside his personal experience and rely instead on the evidence in this case. Indeed,
the court immediately recognized she stated she could set aside her professional
experience and knowledge. The court then raised, in its own words, the “just as
important[] if not more important[]” additional reasons involving prior law enforcement
contacts.
But these additional reasons are flatly contradicted by the record. While it is true
Margo S. stated she was “charged with a petty theft when [she] was younger,” she was
never asked how the charges were resolved. She was never asked if she was treated
fairly. She was never asked if her experience was negative or positive. And she did not
otherwise disclose the answers to those questions. Certainly, her experience did not
prevent her from pursuing a career at the Department of Corrections and Rehabilitation.
Most telling, the prosecutor accepted seven other jurors with similar law
enforcement contacts or experiences, including two jurors who were convicted of DUI,
and two whose sons were either convicted of, or at least charged with, DUI. Clearly, the
record reveals Margo S.’s prior charge for petty theft had little, if anything, to do with her
dismissal.
Similar evidentiary gaps apply to Margo S.’s cousins’ experiences. It was neither
asked nor disclosed whether those experiences were negative or positive, or whether she
believed her cousins were treated fairly. The only other evidence was that Margo S. was
not close to her cousins. To find any of these experiences with law enforcement
important would be tantamount to concluding every contact with law enforcement
resulting in arrest, prosecution, or conviction is a negative experience. Such a
conclusion, without more, is irrational.
Finally, “ ‘[w]here the facts in the record are objectively contrary to the
prosecutor’s statements, serious questions about the legitimacy of a prosecutor’s reasons
13.
for exercising peremptory challenges are raised.’ ” (People v. Arellano (2016)
245 Cal.App.4th 1139, 1169.) This is one of those cases. The prosecutor echoed the
court’s reasons and added two of his own: That there was another black juror still on the
panel, and Margo S.’s cousin was convicted after “a mental breakdown, which is
psychologically similar, but not the same situation as the defense is arguing in this case.”
Although none of these justifications are facially discriminatory, we cannot blindly
ignore reasons that defy logic or support in the record.
As noted, both the court and the prosecutor cited Margo S.’s criminal history, and
her cousins’ criminal histories, as race-neutral bases for her excusal. But the prosecutor
did not directly ask Margo S. a single meaningful question. Even though he himself
expressed a belief that every person charged with a crime forms an opinion about fair
treatment, he still did not ask her about her experience. Nor did he ask about her cousins,
despite later citing those exact experiences as justifications for her excusal. If these
issues “had actually mattered,” the prosecutor “probably would have” inquired into them.
(Miller-El v. Dretke (2005) 545 U.S. 231, 244-246 (Miller-El); People v. Smith (2018)
4 Cal.5th 1134, 1152 [“an attorney’s failure to meaningfully examine a prospective juror
about a subject about which the attorney claims to be concerned can constitute evidence
of pretext.”].) Indeed, the prosecutor did directly ask other jurors if law enforcement
acted fairly in their respective situations.10 With this context, the total lack of voir dire
on these issues is significant evidence of discrimination. (Rhoades, supra, 8 Cal.5th at
p. 429 [desultory questioning is relevant in first-stage analysis]; People v. Parker (2017)
2 Cal.5th 1184, 1211-1212 [failing to ask juror “ ‘ “any questions at all” ’ ” is relevant].)
We do, of course, acknowledge the prosecutor’s acceptance of another black juror
in this case “lessen[s] the strength of any inference of discrimination that the pattern of
10 Prior to excusing Margo S., the prosecutor had in total directly asked four
different jurors if law enforcement acted fairly in their respective circumstances.
14.
the prosecutor’s strikes might otherwise imply.” (People v. Reed (2018) 4 Cal.5th 989,
1000.) But accepting one juror of a particular group does not necessarily mean another
juror of the same group was not dismissed due to membership in the same group. There
could be reasons why one juror appears favorable to the party, while the other juror is
nonetheless stricken precisely because of his or her group.
The prosecutor’s other stated reason is less than articulate and makes little, if any,
sense.11 Without further elaboration, the premise that knowing a person with a mental
health issue who was convicted of a crime and sentenced to prison somehow justifies a
peremptory challenge defies logic. It would appear the opposite conclusion is true: A
person’s personal knowledge that mental health issues do not prevent conviction or
imprisonment would seem advantageous to the prosecution in a case involving a mental
health defense. In fact, no person would know that better than a “psych tech” at the
Department of Corrections and Rehabilitation.
Ultimately, the prosecutor did not ask Margo S. any meaningful questions. The
prosecutor directly asked other jurors if they were treated fairly by law enforcement and
accepted seven jurors with some connection to criminal charges including two jurors
personally convicted of DUI. The court and prosecutor then each cited Margo S.’s
unknown criminal history as a race-neutral basis for her excusal.
None of the other reasons hypothesized by the court, or proffered by the
prosecutor, find support in either logic or the record. The criminal history justifications
11 “It is true that peremptories are often the subjects of instinct, [citation], and it
can sometimes be hard to say what the reason is. But when illegitimate grounds like race
are in issue, a prosecutor simply has got to state his reasons as best he can and stand or
fall on the plausibility of the reasons he gives.” (Miller-El, supra, 545 U.S. at p. 252.) It
is also true “ ‘[a] reason that makes no sense is nonetheless’ ” a valid reason as long as it
is genuine and nondiscriminatory. (People v. Stanley (2004) 39 Cal.4th 913, 936.) But
the validity of the prosecutor’s justification is not relevant to defeating a prima facie case,
even though its implausibility may be relevant to proving a prima facie case. (Scott,
supra, 61 Cal.4th at pp. 390-391.)
15.
are contradicted by the record. The disparate treatment between accepted jurors and
Margo S. is not obviously explained away by other clearly established reasons in the
record. The facts were sufficient to raise a reasonable inference of discrimination. The
trial court erred in concluding otherwise.
C. Remedy
We believe the correct resolution is for the trial court to proceed with the second
and third stages upon remand.12 “The trial court has a pivotal role in
evaluating Batson claims. Step three of the Batson inquiry involves an evaluation of the
prosecutor’s credibility, [citation], and ‘the best evidence [of discriminatory intent] often
will be the demeanor of the attorney who exercises the challenge,’ [citation]. In addition,
race-neutral reasons for peremptory challenges often invoke a juror’s demeanor
(e.g., nervousness, inattention), making the trial court’s firsthand observations of even
greater importance. In this situation, the trial court must evaluate not only whether the
prosecutor’s demeanor belies a discriminatory intent, but also whether the juror’s
demeanor can credibly be said to have exhibited the basis for the strike attributed to the
juror by the prosecutor. We have recognized that these determinations of credibility and
demeanor lie ‘ “peculiarly within a trial judge’s province,” ’ [citation], and we have
stated that ‘in the absence of exceptional circumstances, we would defer to [the trial
court],’ [citation.]” (Snyder, supra, 552 U.S. at p. 477.)
For these reasons, the trial court “should attempt to conduct the second and
third Batson steps. It should require the prosecutor to explain his challenges.13 If the
prosecutor offers a race-neutral explanation, the court must try to evaluate that
12This limited remand is the remedy articulated by Justice Chin in the majority
opinion in People v. Johnson (2006) 38 Cal.4th 1096, 1101-1104 (Johnson), following an
extensive review of applicable California and federal decisions. It was recently applied
in Unzueta v. Akopyan (2019) 42 Cal.App.5th 199, 217-218.
13 See, e.g., People v. Tapia (1994) 25 Cal.App.4th 984, 1031-1032.
16.
explanation and decide whether defendant has proved purposeful racial discrimination. If
the court finds that, due to the passage of time or any other reason, it cannot adequately
address the issues at this stage or make a reliable determination, or if it determines that
the prosecutor exercised his peremptory challenges improperly, it should set the case for
a new trial. If it finds the prosecutor exercised his peremptory challenges in a permissible
fashion, it should reinstate the judgment.”14 (Johnson, supra, 38 Cal.4th at pp. 1103-
1104.)
II. The Evidence Proved Implied Malice Murder
Collins was convicted of two counts of second degree murder. He now argues the
evidence did not prove murder because implied malice was not proven. We disagree.
“In reviewing a claim for sufficiency of the evidence, we must determine whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime or special circumstance
beyond a reasonable doubt. We review the entire record in the light most favorable to the
judgment below to determine whether it discloses sufficient evidence—that is, evidence
that is reasonable, credible, and of solid value—supporting the decision, and not whether
the evidence proves guilt beyond a reasonable doubt. [Citation.] We neither reweigh the
14
On remand, the trial court should be particularly mindful the prosecutor
contemporaneously placed his justifications on the record. In addition, the prosecutor
might well take the opportunity to explain why some jurors with characteristics identical
to or similar to Margo S. were deemed appropriate, but Margo S. was excused for those
exact characteristics, i.e., criminal charges and familiarity with mental health issues. (See
People v. Miles (2020) 9 Cal.5th 513, 543 [“ ‘a party legitimately may challenge one
prospective juror but not another to whom the same particular concern applies [because]
the risk posed by one panelist might be offset by other answers, behavior, attitudes or
experiences that make one juror, on balance, more or less desirable.’ ”].) We simply note
the record, including the prosecutor’s justifications, does not disclose any concern
relating to Margo S.’s attitude, behavior, or ability to answer any questions truthfully and
without equivocation. The trial court will need to examine the plausibility and sincerity
of the prosecutor’s responses, if any.
17.
evidence nor reevaluate the credibility of witnesses. [Citation.] We presume in support
of the judgment the existence of every fact the jury reasonably could deduce from the
evidence. [Citation.] If the circumstances reasonably justify the findings made by the
trier of fact, reversal of the judgment is not warranted simply because the circumstances
might also reasonably be reconciled with a contrary finding.” (People v. Jennings (2010)
50 Cal.4th 616, 638-639.)
Second degree murder requires proof of an act, committed with malice
aforethought, resulting in death. (§ 187; People v. Cravens (2012) 53 Cal.4th 500, 507
(Cravens).) Malice aforethought may be express or implied. (Ibid.) Implied malice
exists when a person performs an act, the natural and probable consequences of which are
dangerous to human life, and acts with conscious disregard to that danger. (People v.
Chun (2009) 45 Cal.4th 1172, 1181.) “ ‘[I]mplied malice [involves] “both a physical and
a mental component. The physical component is satisfied by the performance of ‘an act,
the natural consequences of which are dangerous to life.’ [Citation.] The mental
component is the requirement that the defendant ‘knows that his conduct endangers the
life of another and ... acts with conscious disregard for life.’ ” (People v. Soto (2018)
4 Cal.5th 968, 974 (Soto).)
Murder based on the act of driving while intoxicated does not require proof “of a
‘predicate act,’ i.e., a prior DUI or an alcohol-related accident necessary to establish
implied malice.” (People v. Johnigan (2011) 196 Cal.App.4th 1084, 1091 (Johnigan).)
“ ‘[L]ike all other elements of a crime, implied malice may be proven by circumstantial
evidence.’ ” (People v. Jimenez (2015) 242 Cal.App.4th 1337, 1358.)
The record here sufficiently proved implied malice.15 The physical component of
implied malice is not at issue. Suffice it to say, driving a car at speeds near or in excess
15 The act, causation, and death elements of murder are not disputed.
18.
of 100 miles per hour is dangerous to life. The evidence proving the mental component
was compelling and sufficient.
Perhaps most importantly, Collins admitted he drove after consuming alcohol “too
many times.” The jury could reasonably interpret his admission as a confession
regarding the dangers of intoxicated driving. “A confession is like no other evidence.
Indeed, ‘the defendant’s own confession is probably the most probative and damaging
evidence that can be admitted against him …. [T]he admissions of a defendant come
from the actor himself, the most knowledgeable and unimpeachable source of
information about his past conduct.’ ” (Arizona v. Fulminante (1991) 499 U.S. 279, 296.)
Beyond Collins’s admission, his driving itself exhibited an “actual awareness of
the great risk of harm which he had created.” (People v. Watson (1981) 30 Cal.3d 290,
301 (Watson).) Specifically, he drove down the road at extremely high speeds and nearly
hit multiple vehicles but swerved to avoid collisions. The jury could reasonably infer his
knowledge of dangerous conduct from the fact Collins actively avoided colliding with
other vehicles multiple times before striking the victims’ vehicle. (Ibid.)
Moreover, Collins’s girlfriend testified she warned him about the dangers of
driving “high” almost every day before the collision. He also signed four DMV forms
indicating he had read the attendant warnings regarding intoxicated driving.16 (See
People v. Wolfe (2018) 20 Cal.App.5th 673, 683 [signed DMV form relevant to
subjective knowledge].)
16 Collins further argues “the truth is that people do not read the reverse sides of
such applications, any more than people read the ‘terms and conditions’ of car rental
agreements.” But his signature undoubtedly is evidence he read the warnings and it is the
jury’s exclusive prerogative to resolve the facts. The warnings read as follows: “I am
advised that being under the influence of alcohol or drugs, or both, impairs the ability to
safely operate a motor vehicle. Therefore, it is extremely dangerous to human life to
drive while under the influence of alcohol or drugs, or both. If I drive while under the
influence of alcohol or drugs, or both, and as a result, a person is killed, I can be charged
with murder.”
19.
The jury could also readily infer Collins knew he would need to drive after
consuming alcohol because he was sober when he drove to the store to purchase the
alcohol. (See Watson, supra, 30 Cal.3d at p. 300.) “It also may be presumed that
[Collins] was aware of the hazards of driving while intoxicated. … ‘One who willfully
consumes alcoholic beverages to the point of intoxication, knowing that he thereafter
must operate a motor vehicle, thereby combining sharply impaired physical and mental
faculties with a vehicle capable of great force and speed, reasonably may be held to
exhibit a conscious disregard for the safety of others.’ ” (Id. at pp. 300-301; Johnigan,
supra, 196 Cal.App.4th at p. 1091 [the danger of intoxicated driving is “ ‘ “a very
commonly understood risk” ’ ”].)
We need not, however, indulge in presumptions. Collins consciously disregarded
the danger to other lives by traveling at nearly 100 miles per hour while making no
attempt to stop at red lights with multiple vehicles along his path. Immediately before
crashing, with multiple vehicles either slowing or stopped for a red light in front of him,
Collins made no apparent attempt to slow his vehicle. Instead, he swerved onto the
center divider attempting to pass the vehicles—as if they were obstacles in his path—and
blow through yet another red light. Unfortunately, his attempt failed and he instead
struck another vehicle with enough force to ignite it, killing two of its occupants and
severely burning the third.
In sum, “Whether [Collins] was subjectively aware of the risk is best answered by
the question: how could he not be? It takes no leap of logic for the jury to conclude that
because anyone would be aware of the risk, [Collins] was aware of the risk.” (People v.
Moore (2010) 187 Cal.App.4th 937, 941; see Cravens, supra, 53 Cal.4th at p. 511 [jury
may justifiably infer “defendant’s subjective awareness” of dangerous conduct from “the
circumstances … alone”].) His conduct in swerving to avoid collisions and still
subsequently failing to stop—or even slow down—at red lights while driving nearly or
20.
more than 100 miles per hour exhibits a clear conscious disregard for human life. His
claim the evidence insufficiently proved murder is meritless.
III. Defense Counsel Was Not Ineffective
At trial, Dr. Musacco testified Collins understood the nature and quality of his
actions and knew the difference between right and wrong at the time of the collision. The
prosecutor referenced this testimony multiple times in closing argument.
Collins now faults his attorney for failing to object to the testimony and the
prosecutor’s corresponding argument. The question squarely presented is whether
Dr. Musacco’s testimony is equivalent to an opinion Collins possessed the requisite
“mental component” of implied malice. (See Soto, supra, 4 Cal.5th at p. 974.) We need
not, however, answer the question because we conclude a different outcome at trial was
not reasonably probable even absent the specific testimony and argument at issue.
A. Additional Background
A large portion of the trial focused on Collins’s mental state while he drove the
vehicle that ultimately killed two victims. To that end, Collins sought to introduce
evidence he suffered from a mental disease impairing his ability to appreciate or
understand the dangerousness of his conduct, and inhibiting his ability to consciously
disregard that danger.
To accomplish the goal, Collins introduced portions of his interviews with law
enforcement relating he did not remember driving at all. His lack of recollection was
attributed to believing he was Jesus which caused tunnel vision, or because something
entered his body, forcing him to “gun it” and otherwise black out. The prosecutor
introduced other portions of those interviews, including that Collins remembered
“put[ting] the pedal to the metal,” “trying to make the car fly,” and swerving and trying to
slow down before crashing.
Collins also introduced evidence of his mental health issues through
Dr. Musacco’s testimony. Dr. Musacco believed Collins legitimately suffered from a
21.
mental illness especially because the illness was well documented both before and after
the collision. For example, Collins was once hospitalized during an episode in which he
experienced supernatural visions.
To undercut the force of Dr. Musacco’s testimony, the prosecutor pointed out
medical doctors had previously advised Collins to quit consuming PCP. The prosecutor
also emphasized Dr. Musacco was originally appointed by the court to evaluate Collins’s
sanity but concluded Collins was sane at the time of the collision. Specifically,
Dr. Musacco agreed with the prosecutor that Collins understood the nature and quality of
his actions and knew the difference between right and wrong.
In closing argument, the prosecutor argued Collins “appreciated the difference
between right and wrong. When he’s out there, he knows that it’s wrong to drive 95 to
110 miles an hour down a busy street. Oh, he knows it, absolutely. [Dr. Musacco] told
you that he appreciated the difference between right and wrong.” He continued, “But not
just that. He understood the nature and quality of his actions. Another way to put that is
he knows the difference between driving 110 miles an hour … and throwing a piece of
bubble gum out his window … which is one of the reasons that I think you will find that
the mental evidence in this case doesn’t really have applicability.” The prosecutor then
explained mental health evidence was relevant to implied malice but voluntary
intoxication was not.
Later, the prosecutor stated any mental health defense was limited by
Dr. Musacco’s opinion that Collins knew “the difference between right and wrong and …
probably more important than that, he understands the nature and quality of his actions.
He’s aware of that. And there’s a whole lot of evidence that suggests that.”
The prosecutor then listed the evidence supporting his argument including that
Collins’s girlfriend, family, and prior doctors had all in various ways advised him to quit
using drugs. That “[h]e [had previously] signed four” DMV forms explaining the
dangers of intoxicated driving. That he admitted to drinking and driving “[t]oo many”
22.
times. And that “one of the single best pieces of evidence” was his recorded interview
minutes after the collision in which, to quote the prosecutor, Collins remembered
“swerving out of the way of a car” and trying “to slow down or … to apply his
brakes ….”
B. Analysis
The Sixth Amendment guarantees the “ ‘right to the effective assistance of
counsel.’ ” (Strickland v. Washington (1984) 466 U.S. 668, 685-686.) “ ‘[T]o establish a
claim of ineffective assistance of counsel, [Collins] bears the burden of demonstrating,
first, that counsel’s performance was deficient because it “fell below an objective
standard of reasonableness [¶] ... under prevailing professional norms.” [Citations.]
Unless a defendant establishes the contrary, we shall presume that “counsel’s
performance fell within the wide range of professional competence and that counsel’s
actions and inactions can be explained as a matter of sound trial strategy.” [Citation.] If
the record “sheds no light on why counsel acted or failed to act in the manner
challenged,” an appellate claim of ineffective assistance of counsel must be rejected
“unless counsel was asked for an explanation and failed to provide one, or unless there
simply could be no satisfactory explanation.” [Citations.] If a defendant meets the
burden of establishing that counsel’s performance was deficient, he or she also must
show that counsel’s deficiencies resulted in prejudice, that is, a “reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” ’ ” (People v. Bell (2019) 7 Cal.5th 70, 125.) “ ‘A reasonable probability is a
probability sufficient to undermine confidence in the outcome.’ ” (In re Gay (2020)
8 Cal.5th 1059, 1086.)
“The object of an ineffectiveness claim is not to grade counsel’s performance. If it
is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice … that course should be followed.” (In re Cox (2003) 30 Cal.4th 974, 1019-
1020; People v. Carrasco (2014) 59 Cal.4th 924, 982.) We follow that course here.
23.
There are two distinct but related issues we must resolve. First, was
Dr. Musacco’s testimony admissible and, if not, was defense counsel ineffective for not
objecting? Second, did the prosecutor urge the jury to find implied malice based on
Dr. Musacco’s testimony and, if so, was defense counsel ineffective for not objecting?
We conclude any error is harmless on both accounts.
At the outset we note our Supreme Court, in People v. DeHoyos concluded an
expert’s opinion the defendant knew the difference between right and wrong at the time
of a murder was irrelevant and inadmissible during a trial’s guilt phase. (People v.
DeHoyos (2013) 57 Cal.4th 79, 118 (DeHoyos).) The Court also concluded the testimony
was not otherwise inadmissible under sections 28 and 2917 because it was not
“tantamount to stating an opinion that defendant did or did not have the mental state
required for the crime charged ….” (DeHoyos, at p. 121.)
The testimony here is more than that Collins knew the difference between right
and wrong—it included the opinion he understood the nature and quality of his actions,
i.e., driving a car at a high rate of speed. But the testimony itself, even if inadmissible
under sections 28 and 29, was not prejudicial. Collins readily acknowledged he knew he
was driving a car at a high rate of speed. Dr. Musacco’s opinion added nothing to
Collins’s admission.
The prosecutor’s argument poses a different question. Undoubtedly, the
prosecutor referenced Dr. Musacco’s irrelevant sanity opinion multiple times in closing
argument and obviously linked it to the implied malice mental state element. But the
17 Sections 28 and 29, provide as relevant: “Evidence of mental disease, mental
defect, or mental disorder is admissible solely on the issue of whether or not the accused
actually formed a required specific intent, premeditated, deliberated, or harbored malice
aforethought, when a specific intent crime is charged.” (§ 28, subd. (a).) And, “In the
guilt phase of a criminal action, any expert testifying about a defendant’s mental illness,
mental disorder, or mental defect shall not testify as to whether the defendant had or did
not have the required mental states, which include, but are not limited to, purpose, intent,
knowledge, or malice aforethought, for the crimes charged.” (§ 29.)
24.
prosecutor also closely tied the argument to the actual facts which were highly relevant to
proving implied malice, i.e., prior warnings about intoxicated driving and Collins’s
driving itself exhibiting subjective knowledge regarding dangerous driving.
Significantly, the prosecutor bridged the gap between Dr. Musacco’s irrelevant
opinion and the evidence by referencing Collins’s various admissions including
“put[ting] the pedal to the metal,” “trying to make the car fly,” and trying to avoid a
collision by swerving and engaging the brakes. Granted, Collins also made statements he
did not remember driving, did not remember any traffic, and did not remember the
collision either because he was Jesus or something entered his body and, presumably,
took control of the vehicle. But those statements were inconsistent with prior
contemporaneous admissions about remembering driving and swerving, and were largely
“ ‘unpersuasive in view of the other evidence, because [they were] “conclusory, self-
serving, and not subject to cross-examination.” ’ ” (People v. Suarez (2020) 10 Cal.5th
116, 166.)
Critically, there was little to differentiate whether Collins’s self-serving statements
about Jesus and not remembering driving—if true—were due to a mental illness or
instead voluntary intoxication. For these reasons, whether or not the prosecutor’s
argument was objectionable, Collins has not discharged his burden to show prejudice and
our confidence in the outcome is not undermined. The ineffective assistance of counsel
claim fails.
IV. The Court Properly Denied The Motion To Continue Sentencing
The jury returned its verdict on November 16, 2017. A sentencing hearing was set
for January 17, 2018. The probation department filed its report and recommended
sentence on January 8, 2018.
One day before the sentencing hearing, Collins’s counsel filed a written motion to
continue the hearing to another date. Counsel sought more time “to address several
issues … includ[ing] the possibility of striking the defendant’s prior strike conviction,
25.
Penal Code §[]654 issues, and the issue of concurrent versus consecutive sentencing.”
Counsel also sought additional time “to address the constitutional issues of proportionate
sentencing and Eighth Amendment ‘gross disproportionality’ to sentences for similar
conduct.” The necessity of additional time was due to reviewing the probation report on
January 12. In a sworn declaration attached to the motion, counsel declared, “I have
recently (within the past 3 days) learned of information that may lead to a basis to file a
motion for a new trial. At this point, I am only seeking time so that I have an opportunity
to evaluate the information and conduct investigation.”
At the sentencing hearing, the court first considered the motion to continue.
Collins’s counsel explained his request for additional time to pursue a motion for new
trial was based upon issuing a subpoena to a local school district for Collins’s “records.”
Counsel offered to make “an ex parte offer of proof ….”
The trial court denied the motion “find[ing] that good cause ha[d] not been
demonstrated ….” Collins’s counsel proceeded to argue for concurrent sentences, to
dismiss the prior strike enhancement, and that the maximum sentence would violate the
Eighth Amendment’s grossly disproportionate jurisprudence. The court declined to
dismiss the prior strike enhancement, imposed and stayed sentence on some counts, and
otherwise pronounced consecutive sentences. The court also found the total sentence did
not violate the Eighth Amendment.
On appeal, Collins claims the court abused its discretion in denying the motion to
continue both because it failed to listen to an offer of proof regarding the new trial motion
and the denial left counsel unprepared for the sentencing hearing. We disagree.
“A continuance in a criminal case may be granted only for good cause. (§ 1050,
subd. (e).) Whether good cause exists is a question for the trial court’s
discretion. [Citation.] The court must consider ‘ “ ‘not only the benefit which the
moving party anticipates but also the likelihood that such benefit will result, the burden
on other witnesses, jurors and the court and, above all, whether substantial justice will be
26.
accomplished or defeated by a granting of the motion.’ ” ’ ” (People v. Doolin (2009)
45 Cal.4th 390, 450 (Doolin).) The trial court may not exercise its discretion “so as to
deprive the defendant or his attorney of a reasonable opportunity to prepare.” (People v.
Sakarias (2000) 22 Cal.4th 596, 646.)
“A reviewing court considers the circumstances of each case and the reasons
presented for the request to determine whether a trial court’s denial of a continuance was
so arbitrary as to deny due process. [Citation.] Absent a showing of an abuse of
discretion and prejudice, the trial court’s denial does not warrant reversal.” (Doolin,
supra, 45 Cal.4th at p. 450.) “ ‘[T]he pertinent inquiry is whether the court’s ruling ‘falls
outside the bounds of reason.” ’ ” (People v. Perez (2018) 4 Cal.5th 421, 443.)
The court here was well within the bounds of reason in denying the motion to
continue. Collins’s counsel was not denied a reasonable opportunity to prepare. This
was not a situation in which an attorney unfamiliar with the record and issues is denied
the opportunity to prepare. (See, e.g., People v. Fontana (1982) 139 Cal.App.3d 326,
332-335.) At the time of sentencing here, counsel had represented Collins for one and a
half years.18 Moreover, counsel could not have been seriously surprised by the
recommendation of the maximum sentence in a murder case with multiple victims,
especially in a case involving relatively straightforward indeterminate and determinate
sentencing principles.19
18 Collins’s trial counsel began representing him in July 2016.
19 By relatively straightforward, we mean there was no issue of statutory
interpretation involved in pronouncing judgment. Or at least none was presented to the
court. (Compare People v. Henderson (2020) 54 Cal.App.5th 612, 627, review granted
Dec. 23, 2020, S265172 [Three Strikes law requires consecutive sentences for multiple
strike offenses committed on the same occasion] with People v. Marcus (2020)
45 Cal.App.5th 201, 211 [trial courts retain discretion to sentence multiple strike offenses
committed on same occasion concurrently under Three Strikes law].)
27.
For these reasons, even if the court abused its discretion, Collins cannot show
prejudice. The court considered each issue his counsel raised prior to pronouncing
judgment.
In a similar vein, Collins cannot show prejudice with respect to the new trial
motion. A new trial based upon new evidence20 could only be granted if “the
defendant … could not, with reasonable diligence, have discovered and produced [the
evidence] at the trial.” (§ 1181(8).) Because the subpoenaed documents were his own
school records, he necessarily could have “discovered” them before trial.21 An ex parte
offer of proof could not change the law. Accordingly, we reject the claim the trial court
erred in denying the motion to continue the sentencing hearing.
V. The Prior Prison Term Enhancements No Longer Apply
Collins’s sentence was enhanced by three years for previously serving a prison
term. (§ 667.5, subd. (b).) Senate Bill No. 136 (2019-2020 Reg. Sess., § 1), amended
“section 667.5, subdivision (b), to eliminate the … prior prison term enhancement for
most prior convictions. [Citation.] An exception, not applicable here, is made for a
20 Although the specific grounds for a new trial were never disclosed, the only
logical conclusion is that new evidence was the potential ground. No other ground for a
new trial in section 1181 appears viable based on counsel’s limited representation that the
underlying issue involved subpoenaing school records. We are fully confident counsel’s
reference in the declaration to “seeking time … to evaluate the information and conduct
investigation” meant an investigation of facts, i.e., new evidence.
21 The same conclusion would remain true even if the records sought would lead
to additional evidence or witnesses in Collins’s favor. The reasonable diligence standard
would apply equally to the records and any derivative evidence. Finding otherwise
would require concluding Collins and his counsel were unaware the school records
existed or that the event believed to be memorialized was forgotten. Such a conclusion is
untenable. Finally, we cannot envision a scenario in which the school records would
demonstrate actual innocence to a crime occurring at a time Collins was not in school.
(Cf. People v. Martinez (1984) 36 Cal.3d 816, 819-825 [appropriate to grant new trial
motion where, reasonable diligence notwithstanding, “newly discovered evidence shows
the defendant was probably innocent”].)
28.
qualifying prior conviction on a sexually violent offense …. [¶] Because [the
amendment] became effective before [Collins’s] judgment became final, … the amended
law applies to him retroactively.” (People v. Reneaux (2020) 50 Cal.App.5th 852,
876.) The enhancements in this case are ordered stricken.
DISPOSITION
The prior prison term enhancements (§ 667.5, subd. (b)) are stricken. The
judgment is otherwise conditionally reversed for proceedings consistent with this
opinion. Should the trial court ultimately reinstate its pronounced judgment, it is directed
to issue an amended abstract of judgment reflecting the stricken enhancements and then
forward it to the appropriate authorities.
SNAUFFER, J.
WE CONCUR:
FRANSON, Acting P.J.
MEEHAN, J.
29.