Jenkins
People v. Jenkins
Opinion
Opinion
Boland, J.
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 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 store’s 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.