People v. Jones CA2/2

Filed 3/3/21 P. v. Jones CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 TWO

THE PEOPLE, B302475

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA032267)
v.

DEVIN DESHON JONES,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, William C. Ryan, Judge. Affirmed.
Nancy L. Tetreault, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Steven D. Matthews and Rama R.
Maline, Deputy Attorneys General, for Plaintiff and Respondent.
 Defendant and petitioner Devin Deshon Jones (defendant)
appeals from the denial of his petition to recall his sentence
1
pursuant to Penal Code section 1170.126, and to resentence him
as a second strike offender. He contends that the order was not
supported by substantial evidence. Finding no merit to
defendant’s contention, we affirm the order.

BACKGROUND
The conviction and subsequent petition
In 1995, defendant was convicted of willful infliction of
corporal injury on his spouse (count 1), in violation of section
273.5, subdivision (a), and making terrorist threats (count 2) in
violation of section 422. The court found true the allegation
pursuant to section 667, subdivision (b) through (i), the “Three
Strikes” law, that defendant had suffered two prior serious felony
convictions. On May 8, 1995, the trial court sentenced defendant
to a term of 25 years to life in prison on count 1 and a concurrent
term of 25 years to life on count 2. Defendant’s conviction was
affirmed on appeal in People v. Jones (Aug. 12, 1996, B093278
[nonpub.opn.]).
In 2013, defendant filed a petition for resentencing as a
second strike offender under section 1170.126 (Proposition 36, the
Three Strikes Reform Act of 2012), on the ground that corporal
injury to a spouse and criminal threats were neither serious nor
violent felonies in 1995 under the definitions in section 1192.7,
subdivision (c) or section 667.5, subdivision (c). The trial court
denied the petition, finding defendant ineligible for resentencing
because a violation of section 422 was a serious felony at the time

__________________________________________________________
1 All further statutory references are to the Penal Code,
unless otherwise indicated.

2
 2
of the petition. This court reversed the trial court’s order on the
ground that criminal threats were not listed as a serious felony at
the time of defendant’s commission of the crime or at the time of
his conviction, and the matter was remanded with directions to
redetermine defendant’s eligibility. (People v. Jones (June 17,
2014, B251204 [nonpub. opn.]).)
On remand the trial court issued an order to show cause
and received further briefing. After the prosecution filed its
opposition, defendant requested several extensions of time and
filed a bifurcated reply in October 2017. In the meantime the
California Supreme Court issued People v. Johnson (2015) 61
Cal.4th 674 (Johnson), which held that for purposes of
determining eligibility for resentencing under section 1170.126,
the classification of an offense as serious or violent is based on
the law as of November 7, 2012, the effective date of Proposition
3
36. (Id. at p. 683.) The trial court heard the arguments of
counsel on August 26, 2019, and took the matter under
submission.
On October 31, 2019, the trial court ruled that defendant
was again ineligible for resentencing under section 1170.126.
The court concluded that the evidence showed beyond a
reasonable doubt that defendant intended to, and did, cause great

__________________________________________________________
2 A violation of section 422, was added to the list of serious
felonies by Proposition 21, effective March 8, 2000. (§ 1192.7,
subd. (c)(38).)

3 Here, defendant is not challenging the trial court’s
ineligibility finding on count 2, making terrorist threats. His
appeal is limited to count 1, willful infliction of corporal injury on
his spouse, in violation of section 273.5.

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bodily injury to the victim, and that he was therefore ineligible
for resentencing, pursuant to section 1170.126, subdivision (e)(2).
Defendant filed a timely notice of appeal from the order.
The trial court’s findings
In its opposition to the petition, the prosecution set forth
relevant trial testimony at length, and defendant filed a copy of
the reporter’s transcript of the trial testimony. The trial court
issued a memorandum of decision summarizing the trial
testimony in relevant part as follows:
“The commitment offense on [sic] began as an
argument between Petitioner and his wife, Patricia
[W.] . . . . On September 18, 1994, Patricia lived in her
home with her and Petitioner’s two young daughters, and
Petitioner’s mother, Sherrell Christmas, and Petitioner’s
two sisters, Nina and Tiffany Jones. (RT at pp. 46-49.)
While Petitioner still had belongings at the home, he would
come and go, not sleeping at the home regularly. (RT at
pp. 48-49.) At around 7:45 a.m. that morning, Patricia was
asleep with her two daughters when she woke to a loud
knock at the door and Petitioner’s voice telling someone to
open the door. (RT at pp. 50-51.) Soon after, Petitioner
came into her bedroom and asked her to get up. (RT at
p. 52.) At that time, she and her youngest daughter got out
of the bed, and Petitioner started talking to Patricia. (RT
at p. 53.) At some point they began arguing, but Patricia
did not remember many details around this point in the
argument. (RT at p. 53.) Patricia ‘somehow’ ended up on
the bed, and only recalled Petitioner pushing her once. (RT
at pp. 53-54.) When asked if he did anything else to her
that day, Patricia did not ‘recall.’ (RT at p. 54.)

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 “After being pushed onto the bed, Patricia recalled
leaving the bedroom to use the phone in the hall, however
she did not end up using it. (RT at p. 54.) The two
continued arguing and ended up in another bedroom with
Petitioner moving toward Patricia, and Patricia moving
backward. (RT at p. 55.) Once they were in that room,
Petitioner shut the door. (Id.) The two were still arguing,
perhaps about Patricia ‘seeing other people or a pager or
something.’ (RT at pp. 55-56.) Patricia was upset and
crying and denied seeing other people. (RT at p. 56.) While
in that room, Patricia thought Petitioner may have pushed
her ‘probably once,’ and had no recollection of anything else
he may have done to her at that time. (RT at p. 57.)
“At that point, Patricia was so frightened by the
argument she was having with Petitioner that she ran to
her neighbor’s home in her pajamas to use the phone to call
911. (RT at pp. 57-59.) Though she was frightened enough
to run to the neighbors to call 911, according to Patricia’s
testimony, Petitioner never threatened her or did anything
more than push her two times and yell at her. (RT at
pp. 59, 103-104.) Initially, Patricia recalled the paramedics
arriving in an ambulance, but did not recall the police
coming or ever speaking to the police that day. (RT at
pp. 60, 77-78, 110-111.) Patricia later recalled speaking to
one male officer inside her neighbor’s home, telling him she
needed an ambulance, but did not tell him anything that
happened with Petitioner. [Fn. 5: “Patricia did not recall
testifying at the preliminary hearing that she was
‘screaming and hollering and panicking’ while speaking to
police and paramedics.”] (RT at pp. 112, 117, 120, 122.)

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 “According to Patricia’s trial testimony, she had
injuries on her leg and her collarbone, both sustained from
falling outside the house while running to the neighbor’s
house. (RT at pp. 61-62.) She noticed no other pain or
bruising as a result of her encounter with Petitioner. (RT
at p. 63.) When pressed at trial, Patricia recalled perhaps
having ‘one or two’ black eyes and a bump on her head in
the days following the argument with Petitioner. (RT at
pp. 65-67, 114.) She believed she must have sustained the
black eye(s) when she fell outside. (RT at p. 66.) Patricia
stated that she did not want to be in court testifying at
trial. (RT at p. 70.)
“At trial, Patricia’s recollection was refreshed using
her preliminary hearing testimony. (RT at pp. 70-71.) At
trial, however, Patricia stated her statements at
preliminary hearing were not true. (RT at pp. 72-73, 77-78,
81-83, 137.) She confirmed that during her preliminary
hearing testimony, she was emotional, at times crying. (RT
at pp. 116-117.)
“At the preliminary hearing Patricia testified that, on
the morning of the offense, Petitioner came into the
bedroom, snatched the covers off the bed, grabbed her and
swung her by the hair. (RT at p. 72.) Next, Petitioner left
the room, and came back with a steak knife, swung it at
her chest, and said he was going to kill her. [Fn. 6: “At
trial, she testified both that she did not remember if
Petitioner had a knife and that he did not have a knife. (RT
at pp. 73-74, 76, 103.)”] (RT at pp. 73-74, 187, 189.) Using
the knife, he started to rip up Patricia’s clothes, but the
knife broke while he was using it on her clothing. (RT at

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pp. 76, 188-190.) While the two were in the second
bedroom, Petitioner closed the door and began choking
Patricia, grabbed her by her left collarbone, and then hit
her with fists in the face and head three or four times. (RT
at pp. 80-82, 190-191.) While he grabbed and pulled on her
left collarbone, Petitioner said he was going to break her
bones. (RT at pp. 83, 106, 191.) Patricia screamed, ‘Help
me.’ (RT at p. 118.) At that point, Petitioner’s mother
entered the room and told Petitioner to stop and leave her
alone. (RT at pp. 83-84.)
“Patricia testified that she lied at the preliminary
hearing was [sic] because she was upset with Petitioner
regarding the argument they had the day of the offense and
that he may have been seeing someone else. (RT at pp. 77,
81, 137.) At the time of the preliminary hearing, Patricia
intended to seek a divorce from Petitioner. She started the
process for obtaining a restraining order against Petitioner,
but never completed the process. (RT at pp. 126-127.) At
the time of trial, she decided she cared for Petitioner and
wanted him to have a relationship with their children. (RT
at pp. 125-126.)
“As a result of Petitioner’s actions that day, Patricia
had a ‘knot’ on her head, a swollen jaw, two black eyes, and
scrapes and bruising to her left collarbone. (RT at pp. 65-
67, 84-86, 192.) She also took pain medication prescribed
at the hospital for a couple of days. (RT at p. 107.) At trial
Patricia testified she required the medication for her leg,
but at the preliminary hearing she testified she required
the pain medication for the pain in her head as a result of
the beating. (RT at pp. 108, 192.)

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 “Patricia was asked at trial if she was afraid of
Petitioner, his friends, or his family and she that [sic]
testified she was not. (RT at p. 128.) Patricia was then
shown handwritten notes she made during a conversation
with Petitioner’s father. She testified she made the notes
because the conversation ‘bothered’ her. (RT at pp. 129-
130.) The notes indicated Petitioner’s father said, ‘It’s not
worth it for beating up someone,’ and ‘nothing would
prevent [Petitioner] from calling up someone to get you at
your job or anywhere.’ (RT at pp. 130-131.) Patricia was
also shown another handwritten note she made as a result
of a second conversation with Petitioner’s father, where he
recited the address of Patricia’s mother and Patricia’s
4
workplace.[ ] (RT at pp. 131-132.) On that note, there was
also a reference to a conversation with Petitioner, where
Petitioner said, ‘If his life gets uncomfortable, your [sic] is
too,’ and ‘If you went to court, then you are not going to be
working here anymore and they better move you
somewhere else.’ (RT at pp. 133, 135.)
“Compton Police Officer Timothy Dobbin also
testified at trial. He testified that on September 18, 1994,
at about 8:25 a.m. he came in contact with a very upset
Patricia . . . . (RT at pp. 143-145, 147.) Upon seeing her, he
noticed she had blood coming from her mouth and lower lip,
bruises and marks around both sides of her face and
jawline, and bruising on the top of her cheek bone, just
below her eye. (RT at pp. 146-147.) Officer Dobbin also

__________________________________________________________
4 Patricia testified that it was defendant who recited the
addresses in a telephone call he made to her.

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 noticed bruising on her left collarbone. (RT at pp. 147-148.)
Patricia was distraught and crying. (RT at p. 148.)
“Patricia told Officer Dobbin that her husband came
into the house around 7:45 a.m. and began yelling at her
and shouting profanities at her. Petitioner came into the
back bedroom and began to ransack the bedroom, throwing
clothing everywhere. She asked him why he was acting
that way, and he turned on her, becoming very aggressive
and began striking her on the head, face, and chest,
specifically her left collarbone, with closed fists. She had
sustained an injury to her right knee when she fell while
running outside to the neighbor’s house. The attack lasted
less than ten minutes. (RT at pp. 149-152.) Patricia
pointed out Petitioner as the person who attacked her. (RT
at pp. 153-154.)
“Officer Dobbin testified that he also spoke to
Petitioner that morning and Petitioner stated that he lost
control of himself in his anger and he struck his wife to stop
her from seeing other men. (RT at pp. 155-156.)”
DISCUSSION
Defendant contends that insufficient evidence supported
the trial court’s finding that he intended to inflict great bodily
injury when he committed the crime of willful infliction of
corporal injury on his spouse.
Proposition 36 authorizes prisoners serving third strike
sentences whose current offense is not a serious or violent felony,
to petition for recall of the sentence and for resentencing as a
second strike case. (§ 1170.126, subd. (f); see §§ 667, subd. (e)(1),
1170.12, subd. (c)(1); Johnson, supra, 61 Cal.4th at pp. 679-680.)
As the prosecution argued in opposition to the petition, a

9
defendant is not qualified for such relief if during the current
offense, he “‘was armed with a firearm or deadly weapon, or
intended to cause great bodily injury to another person.’ (§§ 667,
subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii).)” (Johnson, at
pp. 681-682.) Once the defendant shows that he was not
convicted of a serious or violent felony, the prosecution bears the
burden of proving beyond a reasonable doubt that defendant is in
fact ineligibile. (People v. Frierson (2017) 4 Cal.5th 225, 234-235.)
In reviewing an order denying relief under Proposition 36,
we defer to the trial court’s determination if it is supported
by substantial evidence. (People v. Perez (2018) 4 Cal.5th 1055,
1063 (Perez).) “[W]e view the evidence in the light most favorable
to the trial court’s findings without reassessing the credibility of
witnesses or resolving evidentiary conflicts. [Citations.]” (People
v. Thomas (2019) 39 Cal.App.5th 930, 935-936 (Thomas), citing
Perez, supra, at p. 1066.) Reversal on a substantial evidence
ground “is unwarranted unless it appears ‘that upon no
hypothesis whatever is there sufficient substantial evidence to
support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18
Cal.4th 297, 331.) “With regard to proof of intent, our Supreme
Court has explained that although ‘“[e]vidence of a defendant’s
state of mind is almost inevitably circumstantial,”’ such evidence
may nevertheless be sufficient by itself to support a court’s
factual finding of intent.” (Thomas, supra, at p. 936, quoting
People v. Manibusan (2013) 58 Cal.4th 40, 87.) “Even where
. . . the evidence of guilt is largely circumstantial, our task is not
to resolve credibility issues or evidentiary conflicts, nor is it to
inquire whether the evidence might ‘“‘be reasonably reconciled
with the defendant’s innocence.’”’ [Citations.] The relevant
inquiry is whether, in light of all the evidence, a reasonable trier

10
of fact could have found the defendant guilty beyond a reasonable
doubt. [Citation.]” (People v. Gomez (2018) 6 Cal.5th 243, 278.)
Defendant’s first argument appears to be that because a
defendant can be convicted of corporal injury to a spouse under
section 273.5, even if the injury is minor and does not amount to
great bodily injury, no reasonable inference can arise from a
section 273.5 conviction that defendant intended to cause great
bodily injury. Defendant also argues that because the prosecutor
did not allege a great bodily injury enhancement in the
information or attempt to prove at trial that the victim suffered
great bodily injury, it must be inferred that the record of
conviction does not contain sufficient evidence to support such a
finding.
“‘[W]here one applies force to another in a manner
reasonably certain to produce, and actually producing, great
bodily injury, the requisite intent can be presumed, since the
intent with which an act is done may be inferred from the
circumstances attending the act, including the manner in which
the act was done and the means used.’” (Thomas, supra, 39
Cal.App.5th at p. 938, quoting People v. Phillips (1989) 208
Cal.App.3d 1120, 1124.) Although an intent to inflict great bodily
injury may be reasonably inferred from the infliction of such
injury, the actual infliction of great bodily injury is a not
prerequisite for finding intent to cause great bodily injury.
(Thomas, supra, at p. 937.) Indeed, even where a great bodily
injury enhancement is found not true by the jury, a review of the
record of conviction may support a finding that the defendant
intended to cause great bodily injury and is thus ineligible for
resentencing. (Id. at p. 938.)

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 Here, substantial evidence supports the trial court’s finding
that defendant inflicted great bodily injury, and the
circumstances of the beating further support the court’s
conclusion that defendant intended to cause great bodily injury.
Patricia’s trial and preliminary hearing testimony demonstrates
that after defendant pushed her down onto the bed of the first
bedroom, he swung a steak knife at her and said he was going to
kill her. When she went into the hallway, he backed her up into
the second bedroom, closed the door, choked her, grabbed her by
her left collarbone and pulled on it for about a minute, saying he
was going to break her bones. He then struck her with fists in
the face and head three or four times. Patricia testified at
preliminary hearing that she suffered a knot on the head, two
black eyes, a swollen jaw, and bruises on her left collarbone area.
It took about a week for the bruising and swelling to subside and
she still had head pain at the time of the preliminary hearing.
Soon after the beating she described it to Officer Dobbin, who
observed blood coming from her lower lip, marks all along the
sides of her face and jaw line, and bruises all over her face and
the left collarbone area of her chest. Patricia was in such pain
that she asked Officer Dobbin for an ambulance. Defendant
admitted to Officer Dobbin that he struck Patricia.
Defendant suggests that because he did not succeed in
breaking any of Patricia’s bones or in killing her, it must be
concluded that his intention was merely to frighten her. We
disagree. Injuries similar to Patricia’s, a “swollen jaw, bruises to
head and neck and sore ribs” have been found to support finding
of great bodily injury. (People v. Escobar (1992) 3 Cal.4th 740,
752.) As defendant inflicted great bodily injury upon Patricia, his

12
intent to do so may be reasonably inferred. (Thomas, supra, 39
Cal.App.5th at p. 937.)
Defendant also invites this court to disbelieve Patricia’s
preliminary hearing testimony because it conflicted with much of
her trial testimony, and she claimed at trial that she had lied at
the preliminary hearing. As the reviewing court, we do not
resolve credibility issues or evidentiary conflicts. (People v.
Gomez, supra, 6 Cal.5th at p. 278.) The trier of fact is entitled to
give the statements of a recanting victim, like those of any other
witness, whatever weight it deems appropriate, or to disregard
them altogether. (See Thomas, supra, 39 Cal.App.5th at p. 937.)
In Thomas, we observed that “the trial court had good reason to
put little stock in the [conflicting] statements,” as the victim felt
sorry for the defendant, did not want him to go to prison, and
wrote to him that he was prepared to testify falsely. (Ibid.)
Here too, the trial court had good reason to reject Patricia’s
recantations and her claims of lack of recollection of events and
injuries about which she testified at the preliminary hearing.
The trial court also found evidence of Patricia’s fear of defendant
and his father, as a potential motive for her change in testimony.
She made notes of telephone calls from defendant and his father
which “bothered” her. The calls contained implied and explicit
threats, such as the father’s warning that “nothing would prevent
[defendant] from calling up someone to get you at your job or
anywhere.” The trial court also noted that on a call from
defendant, he said to Patricia, “‘If his life gets uncomfortable,
your [sic] is too,’” and “‘If you went to court, then you are not
going to be working here anymore and they better move you
somewhere else.’”

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 Defendant further suggests that we should disbelieve
Officer Dobbin’s description of Patricia’s injuries because he did
not take photographs. The reviewing court does not reweigh the
evidence. (Perez, supra, 4 Cal.5th at p. 1066.) Unless it is
physically impossible or inherently improbable, the testimony of
a single witness, if believed by the trier of fact, is sufficient to
sustain a judgment. (People v. Scott (1978) 21 Cal.3d 284, 296.)
As defendant does not contend that Officer Dobbin’s testimony
regarding his observations was physically impossible or
inherently improbable, we reject the suggestion that
corroboration in the form of photographic evidence was
necessary.
We have reviewed the entire record and conclude that the
evidence was sufficient to permit a rational trier of fact to find
beyond a reasonable doubt that Patricia suffered great bodily
injury and that defendant intended to inflict great bodily injury.
We thus defer to the trial court’s findings and conclude that it did
not err in ruling that defendant was disqualified for resentencing
as a second strike offender. (See Perez, supra, 4 Cal.5th at
p. 1063.)

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 DISPOSITION
The order denying defendant’s petition is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

____________________________, J.
CHAVEZ
We concur:

__________________________, P. J.
LUI

__________________________, J.
HOFFSTADT

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