People v. Henderson CA2/7 ( 2021 )

Filed 12/10/21 P. v. Henderson CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B309677
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A918235)
v.
ARTHUR LEE HENDERSON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Nicole C. Bershon, Judge. Affirmed.
Susan K. Shaler, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Kristen J. Inberg and Nicholas J. Webster,
Deputy Attorneys General, for Plaintiff and Respondent.
_____________________
Arthur Lee Henderson appeals from a postjudgment order
denying his petition for resentencing under Penal Code
section 1170.951 as to his 1988 convictions of first degree murder
and attempted murder. Henderson contends the trial court erred
in acting as an independent factfinder and summarily denying
his petition before issuing an order to show cause and holding an
evidentiary hearing pursuant to section 1170.95, subdivision (d).
However, as to the murder conviction, the jury was instructed it
could only find the felony-murder special circumstance true if it
found Henderson had the intent to kill.
As to the attempted murder conviction, Henderson
contends, the People concede, and we agree the superior court’s
order denying Henderson’s petition should be reversed for the
court to consider Henderson’s petition in light of recent
amendments to section 1170.95 enacted by Senate Bill No. 775
(Senate Bill 775) (2021-2022 Reg. Sess.) (Stats. 2021, ch. 551,
§ 2), signed by the Governor on October 5, 2021, which will take
effect January 1, 2022. We therefore affirm the superior court’s
order as to Henderson’s murder conviction and reverse the order
as to the attempted murder conviction. We remand for the court
to consider, after January 1, 2022, Henderson’s petition as to his
attempted murder conviction under the amendments to
section 1170.95.
1 All statutory references are to the Penal Code.
2
FACTUAL AND PROCEDURAL BACKGROUND
A. The Evidence at Trial
We described the 1986 killing of Kenneth Fields in our
prior opinion in People v. Elgin et al. (Sept. 21, 1989, B033856)
[nonpub. opn.]. On the morning of Sunday, December 7, 1986,
David Davis and Anthony Pierce stopped by the house of
Henderson’s mother and talked with Henderson in front of the
house for about 10 minutes. Davis bragged about his pickup
truck and showed Henderson about $900, which Davis said he
was going to use to fix up the truck. Davis had known Henderson
for about nine months, and until recently he had lived near
Henderson’s mother. Davis considered Henderson a friend and
admired Henderson’s truck. Cylon Elgin was sitting on the curb
near the house and drinking beer. Davis had previously seen
Elgin in the neighborhood 55 or 60 times.
At about 8:00 that evening, Davis and Kenneth Fields were
in Davis’s kitchen when Henderson came to the door and said his
truck had broken down on the street. Davis let Henderson in, but
Henderson shortly left, saying he needed to check on his truck.
Davis left the exterior security door open so Henderson could
return. About 30 to 60 seconds later Davis heard footsteps, and
the door banged in a way that indicated it had not been latched.
Elgin appeared in the kitchen doorway wearing a ski mask.
Davis recognized Elgin immediately by his movements and walk.
Elgin pointed a revolver directly at Davis and demanded, “Give
me the money.” Davis “rushed him” and was “tussling with him”
to take the gun away. Davis and Elgin struggled back and forth
for about 30 seconds, then Davis was hit on the head and fell to
the floor. Davis was unconscious for about 30 seconds.
3
After Davis regained consciousness, he lay on the kitchen
floor and kept his eyes closed, pretending to be dead. He thought
he heard some gunshots when he awakened and two or more
people running through the house. While he was on the floor,
Davis heard in Henderson’s voice, “Shoot him in the head,” or
“Shoot them in the head.” Another voice that Davis did not
recognize asked, “Where is it at?” Davis had about $900 in his
pants pockets, but no one looked through his pockets.
When Davis was sure the men had left, he got up and
examined Fields, who was lying by the kitchen sink. Fields had
been shot in the chest; Davis had been shot in his left bicep. A
neighbor called the police, and Davis and Fields were transported
to the hospital. Davis stayed there five days; Fields died.
Two deputies who interviewed Davis in the hospital
obtained a statement from him that Henderson (known to Davis
as “Art”) came to Davis’s house and asked to use the telephone
because his car ran out of gas.2 Davis let Henderson in, and
while Henderson was on the telephone, another person
confronted Davis in the kitchen and pointed a revolver at him,
saying, “Give me the money, motherfucker, or I’ll kill you.” After
the shooting, Davis heard Henderson tell the second suspect to
“[s]hoot them in the head” and “[m]ake sure they are dead.”
Davis later identified Henderson and Elgin from
photographs. Davis was positive Elgin was the man in the mask
and Henderson made the statement about shooting them in the
head. About two weeks later, Henderson’s brother-in-law,
Wilferton Roberts, told the police he was at Henderson’s home
2 Davis’s statement at the hospital differed in minor respects
from his testimony at trial.
4
when he overheard Henderson and Elgin talk about a shooting.
Elgin said he had done the shooting; Roberts could not recall
what Henderson said.
Elgin’s brother, Keith McComb, McComb’s girlfriend, and
Elgin’s girlfriend provided alibis as part of the defense case.
Elgin’s girlfriend testified that on the night of the murder Elgin
was with her at her parents’ home between 8:00 and 8:15, and he
did not leave. He was not nervous, upset, or fidgety.
B. Jury Instructions
The trial court instructed the jury with CALJIC No. 3.01 on
aider and abettor liability. The court also instructed the jury with
CALJIC 3.00 as to the natural and probable consequences
doctrine: “One who aids and abets is not only guilty of the
particular crime that to his knowledge his confederates are
contemplating committing, but he is also liable for the natural and
probable consequences of any act that he knowingly and
intentionally aided or encouraged.”
The court’s instruction with CALJIC No. 8.11 as to murder
provided that malice aforethought is implied “when the killing
results from an intentional act involving a high degree of
probability that it will result in death, which act is done for a
base, antisocial purpose and with a wanton disregard for life” or
“when the killing results from an intentional act, the natural
consequences of which are dangerous to life, which act was
deliberately performed by a person who knows that his conduct
endangers the life of another and who acts with conscious
disregard for life.” Further, the court instructed with CALJIC
No. 8.21 on the felony-murder rule that “[t]he unlawful killing of a
human being, whether intentional, unintentional or accidental,
5
which occurs as a result of the commission of or attempt to commit
the crime of [r]obbery, and where there was in the mind of the
perpetrator the specific intent to commit such crime, is murder of
the first degree.”
The court also instructed the jury with CALJIC No. 8.81.17
that to prove the special circumstance that the defendant
committed a murder in the commission of robbery or attempted
robbery, it must be proved, among other elements, “[t]hat the
defendant . . . intended to kill a human being . . . [or] . . . intended
to aid another in the killing of a human being.”3 The trial court
did not instruct the jury that Henderson had to be a major
participant acting with reckless indifference to human life.
As to attempted murder, the trial court instructed the jury
with CALJIC No. 8.66 that to prove the crime, it must be proved
that “a direct but ineffectual act was done by one person toward
killing another human being,” and “the person committing such
act harbored express malice aforethought, namely, a specific
intent to kill unlawfully another human being.”
The jury convicted Henderson and Elgin of the first degree
murder of Fields (§ 187, subd. (a); count 1); the attempted murder
of Davis (§§ 187, subd. (a), 664; count 2); and attempted robbery
in an inhabited dwelling (former § 213.5, § 664; count 3). The
jury also found true as to both defendants the special
circumstance that the murder was committed during the course
3 The introductory instruction on special circumstances
(CALJIC No. 8.80) similarly provided that if the defendant was
an aider and abettor and not the actual killer, to find the special
circumstance of first degree murder to be true, “it must be proved
beyond a reasonable doubt that he intended to aid in the killing
of a human being . . . .”
6
of an attempted robbery. (§ 190.2, former subd. (a)(17).) The jury
found true as to both defendants that a principal was armed with
a firearm (§ 12022, subd. (a)) and as to Elgin, that he personally
used a firearm (§ 12022.5).
The trial court sentenced Henderson on the murder count
to life without the possibility of parole plus one year for the
firearm enhancement. The court imposed a consecutive term of
10 years on the attempted murder count (the upper term of nine
years plus one year for the firearm enhancement). The court
imposed a three-year term for attempted robbery, plus one year
for the firearm enhancement, to run concurrent to the sentences
on the other counts. We affirmed Henderson’s convictions on
appeal, rejecting Henderson’s contention the evidence was
insufficient to support a finding of premeditated and deliberate
murder. (People v. Elgin, supra, B033856.)
C. Henderson’s Petition for Resentencing and the Superior
Court’s Ruling
On January 11, 2019 Henderson, representing himself,
filed a form petition for resentencing seeking to vacate his
murder conviction and be resentenced in accordance with recent
statutory changes relating to accomplice liability for murder. In
his petition, Henderson declared he “was convicted of 1st or 2nd
degree murder pursuant to the felony murder rule or the natural
and probable consequences doctrine,” and he “could not now be
convicted of 1st or 2nd degree murder because of changes made to
Penal Code §§ 188 and 189, effective January 1, 2019.” He also
checked the box on the form stating he was not the actual killer
and did not act with the intent to kill.
7
On March 19, 2019 the superior court 4 found that
Henderson had established a prima facie case he was eligible for
relief under section 1170.95, set the matter for a hearing on
whether to issue an order to show cause, and appointed counsel
for Henderson.5 In its opposition, the People argued Henderson
was ineligible for relief as to the murder conviction because, by
finding the felony-murder special circumstance to be true after
being instructed with CALJIC No. 8.80, the jury must have found
Henderson intended to kill Fields. The People argued as to
attempted murder that the jury was instructed with CALJIC
No. 8.66, which required for a guilty verdict that Henderson
harbor “a specific intent to kill unlawfully another human being.”
Henderson, through counsel, filed a response in which he
argued the People had not proved beyond a reasonable doubt that
he was a direct aider and abettor of the murder or, under the
felony-murder rule, was a major participant in the robbery and
acted with reckless indifference to human life. He also asserted
he was entitled to relief from his attempted murder conviction,
but he did not present any argument.
The superior court 6 ordered supplemental briefing on the
impact on the petition of the trial court’s instruction with
4 Judge Alan B. Honeycutt.
5 Although the minute order suggests the superior court
issued an order to show cause, it appears the court set the matter
for a hearing on whether an order to show cause should be issued.
As will be discussed, the court later determined Henderson was
not eligible for relief as a matter of law, and it did not issue an
order to show cause.
6 Judge Nichole C. Bershon.
8
CALJIC Nos. 8.807 and 8.81.17. The People in their
supplemental brief reiterated that the jury found Henderson
harbored express malice in finding the felony-murder special
circumstance to be true. Henderson did not file a supplemental
brief.
At a hearing on December 3, 2020, the People again argued
Henderson was ineligible for relief because the record of
conviction showed the jury instructions on felony-murder special
circumstances and attempted murder required a finding of intent
to kill, and further, this court affirmed that finding on appeal.
The superior court provided an oral tentative ruling to deny the
petition based on Henderson’s statement to “shoot them in the
head” and this court’s finding there was sufficient evidence of
Henderson’s intent to kill. Henderson’s attorney responded that
Davis was not 100 percent sure Henderson made the comment to
shoot the victims in the head, and thus an evidentiary hearing
was appropriate. Further, the court should set an evidentiary
hearing to determine whether Henderson was a major
participant and acted with reckless indifference to human life.
The prosecutor reiterated that the jury “made an express finding
on all the counts, . . . including the murder, that the defendant
intended to kill. That’s it. The conviction conforms with today’s
standard.” The court responded, “Right.” After hearing oral
argument, the superior court denied the petition, finding
Henderson ineligible for resentencing under section 1170.95.
Henderson timely appealed.
7 The superior court’s order referenced CALJIC No. 8.80.81,
but the jury was instructed on special circumstances with
CALJIC No. 8.80.
9
DISCUSSION
A. Senate Bill No. 1437
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill
1437) eliminated the natural and probable consequences doctrine
as a basis for finding a defendant guilty of murder and
significantly limited the scope of the felony-murder rule. (People
v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis); People v. Gentile
(2020) 10 Cal.5th 830, 842-843, 847-848 (Gentile).) New
section 188, subdivision (a)(3), provides, “Except as stated in
subdivision (e) of Section 189, in order to be convicted of murder,
a principal in a crime shall act with malice aforethought. Malice
shall not be imputed to a person based solely on his or her
participation in a crime.” New section 189, subdivision (e), in
turn, limits the felony-murder rule exception to the malice
requirement for aiders and abettors to circumstances where the
People prove the defendant “was a major participant in the
underlying felony and acted with reckless indifference to human
life, as described in subdivision (d) of Section 190.2.”
Senate Bill 1437 also provides a procedure in new
section 1170.95 for an individual convicted of felony murder or
murder under a natural and probable consequences theory to
petition the sentencing court to vacate the conviction and be
resentenced on any remaining counts if he or she could not have
been convicted of murder under Senate Bill 1437’s changes to
sections 188 and 189. (Lewis, supra, 11 Cal.5th at p. 959; Gentile,
supra, 10 Cal.5th at pp. 842-843.) If the section 1170.95 petition
contains all the required information, including a declaration by
the petitioner that he or she was convicted of murder and could
not now be convicted of murder because of changes to section 188
10
or 189 (§ 1170.95, subd. (b)(1)(A)), the court must appoint counsel
to represent the petitioner upon his or her request pursuant to
section 1170.95, subdivision (c). (Lewis, at pp. 959-960.) Further,
upon the filing of a facially sufficient petition, the court must
direct the prosecutor to file a response to the petition and permit
the petitioner to file a reply, and the court must determine
whether the petitioner has made a prima facie showing that he or
she is entitled to relief. (See § 1170.95, subd. (c); Lewis, at
p. 964.)
In determining whether the petitioner has made a prima
facie showing he or she is entitled to relief under section 1170.95,
subdivision (c), “[l]ike the analogous prima facie inquiry in
habeas corpus proceedings, ‘“the court takes petitioner’s factual
allegations as true and makes a preliminary assessment
regarding whether the petitioner would be entitled to relief if his
or her factual allegations were proved. If so, the court must issue
an order to show cause.”’ [Citations.] ‘[A] court should not reject
the petitioner’s factual allegations on credibility grounds without
first conducting an evidentiary hearing.’ [Citations.] ‘However, if
the record, including the court’s own documents, “contain[s] facts
refuting the allegations made in the petition,” then “the court is
justified in making a credibility determination adverse to the
petitioner.”’” (Lewis, supra, 11 Cal.5th at p. 971.)
Appellate opinions are generally part of the record of
conviction, but as the Supreme Court in Lewis cautioned, the
opinion “‘might not supply all the answers.’” (Lewis, supra,
11 Cal.5th at p. 972.) Further, “[i]n reviewing any part of the
record of conviction at this preliminary juncture, a trial court
should not engage in ‘factfinding involving the weighing of
evidence or the exercise of discretion.’” (Ibid.) Rather, at the
11
prima facie review stage, the court’s review is limited to “‘readily
ascertainable facts’” in the record (such as the crime of
conviction). (People v. Duchine (2021) 60 Cal.App.5th 798, 815.)
The jury instructions given by the trial court are part of the
record of conviction. (People v. Daniel (2020) 57 Cal.App.5th 666,
676; People v. Soto (2020) 51 Cal.App.5th 1043, 1055.)
If the petitioner makes a prima facie showing under
section 1170.95, subdivision (c), the court must issue an order to
show cause and hold a hearing “to determine whether to vacate
the murder conviction and to recall the sentence and resentence
the petitioner on any remaining counts.” (§ 1170.95, subd. (d)(1).)
If a hearing is held, “[t]he prosecutor and the petitioner may rely
on the record of conviction or offer new or additional evidence to
meet their respective burdens.” (§ 1170.95, subd. (d)(3); see
Gentile, supra, 10 Cal.5th at p. 853; People v. Rodriguez (2020)
58 Cal.App.5th 227, 237, review granted Mar. 10, 2021, S266652.)
B. The Trial Court Correctly Found Henderson Is Ineligible for
Relief Under Section 1170.95 as to His Murder Conviction
Henderson contends the superior court erred in finding him
ineligible for resentencing as to his murder conviction because it
failed to consider whether he was a major participant who acted
with reckless indifference to human life under the factors set
forth in People v. Banks (2015) 61 Cal.4th 788 and People v. Clark
(2016) 63 Cal.4th 522. Henderson is correct that he was convicted
before the Supreme Court decided Banks and Clark. But
Henderson’s conviction was also prior to the 1990 amendment of
section 190.2 that allowed the felony-murder special
circumstance to be found true without a finding the defendant
intended to kill.
12
Section 190.2, former subdivision (a)(17), provided in 1986
(the year of the murder) as a special circumstance, “The murder
was committed while the defendant was engaged in or was an
accomplice in the commission of, attempted commission of, or the
immediate flight after committing or attempting to commit the
following felonies,” including robbery. (§ 190.2, former
subd. (a)(17)((i).) The Supreme Court in Carlos v. Superior
Court (1983) 35 Cal.3d 131, 135, overruled by People v.
Anderson (1987) 43 Cal.3d 1104, 1138-1139,8 construed the
felony-murder special circumstance in light of the language of the
1978 death penalty initiative and the initiative’s presentation to
the voters “to require an intent to kill or to aid in a killing as an
element of the felony murder special circumstance.” Consistent
with the holding in Carlos, CALJIC Nos. 8.80 and 8.81.17
required the defendant to intend to kill or aid another in killing a
human being for a true finding on the felony-murder special
circumstance.
However, Proposition 115, passed by the voters in 1990,
codified in section 190.2, subdivision (d), a provision that allowed
the felony-murder special circumstance to be found true without
8 The Supreme Court in People v. Anderson, supra, 43 Cal.3d
at pages 1138 to 1139 held “that the broad holding of Carlos that
intent to kill is an element of the felony-murder special
circumstance cannot stand, and that the following narrow
holding must be put in its place: intent to kill is not an element
of the felony-murder special circumstance; but when the
defendant is an aider and abettor rather than the actual killer,
intent must be proved before the trier of fact can find the special
circumstance to be true.”
13
proof of intent to kill where the aider and abettor was a major
participant who acted with reckless indifference to human life.
(Prop. 115, § 10, codified as § 190.2, subd. (d); see Tapia v.
Superior Court (1991) 53 Cal.3d 282, 297-298; People v. Solis
(2020) 46 Cal.App.5th 762, 773.) As the Tapia court observed,
the amendment of section 190.2, subdivision (d), “changes state
law to the detriment of defendants.” (Tapia, at p. 298, fn. 16.)
The trial court here instructed the jury with CALJIC
No. 8.81.17 based on then-applicable law that to prove the felony-
murder special circumstance, it must be proved, among other
elements, “[t]hat the defendant . . . intended to kill a human
being . . . [or] . . . intended to aid another in the killing of a
human being.” Thus, in finding the special circumstance was
true, the jury necessarily found Henderson intended to kill Fields
and aided and abetted the killing.
Henderson asserts the jury would have understood CALJIC
No. 8.81.17 not to require an intent to kill because the general
special-circumstance instruction (CALJIC No. 8.80) applied an
intent-to-kill requirement to an “aider and abettor,” and somehow
the jury would have read the two instructions together to believe
an intent to kill was required only for a direct aider and abettor
and not a defendant convicted under the felony-murder rule. We
reject this tortured reading of the jury instructions—CALJIC
No. 8.81.17 specifically applies to the special circumstance of a
“murder in the commission of [r]obbery or attempted robbery,”
requiring that the defendant intend to kill or intend to aid
another in the killing of a human being. Nothing in CALJIC
No. 8.80 suggests otherwise. Thus, Henderson is ineligible for
relief as a matter of law because he was convicted on a ground
14
(intent to kill) that remains valid notwithstanding Senate Bill
1437’s amendments to sections 188 and 189.9
C. We Reverse the Superior Court’s Order Denying Henderson’s
Petition as to His Attempted Murder Conviction
Senate Bill 775 amends section 1170.95 to, among other
changes, (1) apply section 1170.95 to convictions for voluntary
manslaughter and attempted murder; (2) add new
subdivision (b)(3), which requires the appointment of counsel at
the prima facie review stage if requested; (3) affirm the standard
of proof at the order to show cause hearing is proof beyond a
reasonable doubt; and (4) clarify that “a finding that there is
substantial evidence to support a conviction for murder,
attempted murder, or manslaughter is insufficient to prove,
beyond a reasonable doubt, that the petitioner is ineligible for
resentencing.” Because the Legislature did not pass these
amendments as urgency legislation, they will become effective on
January 1, 2022. (See Cal. Const., art. IV, § 8, subd. (c).)
Henderson contends in his supplemental brief that Senate
Bill 775’s amendments to section 1170.95 apply retroactively to
his petition under In re Estrada (1965) 63 Cal.2d 740, 745
9 Henderson also argues the trial court engaged in improper
factfinding in relying on the statement by Henderson that the
shooter should shoot the victims in the head. Any error in relying
on this statement attributed to Henderson is harmless because
the jury found Henderson harbored an intent to kill. (See Lewis,
supra, 11 Cal.5th at p. 974 [on appeal, petitioner “must therefore
‘demonstrate there is a reasonable probability that in the absence
of the error he . . . would have obtained a more favorable
result.’”].)
15
(Estrada).) Further, because amended section 1170.95,
subdivision (a), provides for relief where the petitioner was
convicted of “attempted murder under the natural and probable
consequences doctrine” and “could not presently be convicted
of . . . attempted murder because of changes to Section 188 or 189
made effective January 1, 2019” (§ 1170.95, subd. (a) & (a)(3)), we
should reverse the superior court’s denial of Henderson’s petition
because the jury was instructed and relied on the natural and
probable consequences doctrine in convicting him of the
attempted murder of Davis.
The People agree we should reverse the superior court’s
denial of Henderson’s petition as to his attempted murder
conviction and remand for consideration of the petition in light of
Senate Bill 775 because the jury was instructed on the natural
and probable consequences doctrine, and “there is no utility in
adjudicating this appeal under the old law, only for [Henderson]
to initiate new section 1170.95 proceedings in several months.”
We also agree the superior court’s order as to Henderson’s
attempted murder conviction should be reversed, and we remand
with directions for the court to appoint counsel for Henderson
and, after January 1, 2022, to determine whether Henderson has
made a prima facie showing he is entitled to relief under
amended section 1170.95, and if he has, to issue an order to show
cause and set an evidentiary hearing.10
10 Because the special circumstance finding only applied to
the murder conviction, the court will need to analyze the
attempted murder conviction separately. Although
determination of whether Henderson is ineligible for relief as to
his attempted murder conviction likely requires factfinding not
appropriate for the prima facie review stage, we remand for the
16
DISPOSITION
The order denying Henderson’s petition for resentencing
under section 1170.95 is affirmed as to his murder conviction and
reversed as to his attempted murder conviction. We remand with
directions for the superior court to appoint counsel for Henderson
and, after January 1, 2022, to determine whether Henderson has
made a prima facie showing he is entitled to relief under
amended section 1170.95, and if he has, to issue an order to show
cause and set an evidentiary hearing.
FEUER, J.
We concur:
PERLUSS, P. J.
SEGAL, J.
superior court to make this determination in the first place. We
note that defense counsel conceded at the hearing on Henderson’s
petition that “there was no natural and probable consequence
theory of instruction either as to the murder or as to the
attempted murder,” but he urged the court to issue an order to
show cause for the People to prove at an evidentiary hearing that
Henderson harbored an intent to kill.
17