People v. Henderson CA4/1 ( 2022 )

Filed 12/19/22 P. v. Henderson CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D080850
Plaintiff and Respondent,
v. (Super. Ct. No. RIF1201399)
CALEB MARQUAN HENDERSON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Riverside County,
William S. Lebov, Judge. (Retired Judge of the Yolo Sup. Ct. assigned by the
Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Marcia R. Clark, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
In 2013, a jury convicted Caleb Marquan Henderson of two counts of
attempted premeditated murder (Pen. Code,1 §§ 187, subd. (a), 664) and
found true an allegation that a principal discharged a firearm causing serious
1 All further statutory references are to the Penal Code.
bodily injury (§ 12022.53, subds. (d), (e)(1)). The jury also convicted
Henderson of being an active participant in a criminal street gang (§ 186.22,
subd. (a)). The alleged serious felony prior conviction and a strike conviction
were found true.
Henderson was sentenced to a total term of 50 years to life consecutive
to a determinate term of 27 years 8 months.
Henderson appealed and this court affirmed the judgment in an
unpublished opinion. (People v. Branch, et.al. (May 8, 2015, D067450).)
In 2019, Henderson filed a petition for resentencing under former
section 1170.95 (now renumbered 1172.6). The petition was denied by the
trial court on the grounds attempted murder was not covered by former
section 1170.95. Henderson appealed and this court affirmed. The Supreme
Court granted review and remanded the case for reconsideration in light of
Senate Bill No. 775. This court reconsidered the opinion and reversed the
order denying resentencing and remanded for further proceedings. (People v.
Henderson (Mar. 4, 2022, D076878).)2
On remand, the trial court held a hearing and then denied the petition.
The court reviewed the record with counsel. It found the jury was not
instructed on felony murder or on liability based on the doctrine of natural
and probable consequences. The defense noted that Henderson’s family
members had discovered the words natural and probable consequences in the
jury instructions. Those words were found in CALCRIM No. 3149 dealing
with when an act causes bodily harm. It did not deal with liability for
murder based on the acts of an accomplice. The court found Henderson was
not eligible for relief under former section 1170.95.
2 Appellant’s request for judicial notice of our records in both prior
appeals, is granted.
2
Henderson filed a timely notice of appeal.
Appellate counsel has filed a brief pursuant to People v. Wende (1979)
25 Cal.3d 436 (Wende), indicating counsel has not been able to identify any
arguable issues for reversal on appeal. Counsel asks this court to review the
record for error as mandated by Wende. We offered Henderson the
opportunity to file his own brief on appeal, but he has not responded.
The facts of the current offenses were discussed in our original opinion
on direct appeal. We will not repeat them here.
DISCUSSION
As we have noted, appellate counsel has filed a Wende brief and asks
the court to review the record for error. To assist the court in its review, of
the record and in compliance with Anders v. California (1967) 386 U.S. 738(Anders), counsel has identified the following issue that was considered in
evaluating the potential merits of this appeal: Whether the trial court erred
by denying the petition before giving defense counsel time to review the case,
and whether the denial of additional time was prejudicial.
We have reviewed the entire record as mandated by Wende and Anders.
We have not discovered any arguable issues for reversal on appeal.
Competent counsel has represented Henderson on this appeal.
3
DISPOSITION
The order denying Henderson’s petition for resentencing under
section 1172.6 is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
IRION, J.
DATO, J.
4