People v. Henderson CA4/1 ( 2020 )

Filed 11/13/20 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, D076878
Plaintiff and Respondent,
v. (Super. Ct. No. RIF11201399)
CALEB MARQUAN HENDERSON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Riverside County,
John D. Molloy, Judge. Affirmed.
Nancy Olsen, by appointment of the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Meredith S.
White and Robin Urbanski, Deputy Attorneys General, for Plaintiff and
Respondent.
On July 10, 2019, Henderson filed a petition under Penal Code1
section 1170.95 and Senate Bill No. 1437 (Senate Bill 1437) to have two
attempted murder convictions vacated. After appointment of counsel and
briefing, the superior court concluded Henderson was ineligible for relief
because his convictions are not for felony murder or murder under the
natural and probable consequences doctrine. Henderson maintains he is
eligible for relief under section 1170.95 because his convictions are for
attempted murder, a crime to which he contends section 1170.95 applies. We
disagree and will affirm.
FACTUAL BACKGROUND
The facts of the underlying matter are not relevant to the legal issue
before us. However, to provide some context of the underlying crime, we
recite the facts as they were described in Henderson’s direct appeal, People v.
Daquan Rashad Branch, et al. (May 8, 2015, D067450) [nonpub. opn.]
(Branch):2
“On February 9, 2012, Jason G. walked with friends through the El
Dorado apartment complex in Moreno Valley, California. They were
confronted by Henderson and two other individuals. Henderson asked for
Jason’s gang affiliation. Jason replied that he was a member of the Rolling
90’s, a gang in Los Angeles. Henderson said they were in Sex Cash territory,
Web Block, referencing a prominent Moreno Valley gang and one of its
cliques. After this exchange, Jason and his friends went on their way.[3]
1 Further section references are to the Penal Code.
2 We grant defendant’s request for judicial notice.
3 “At trial, Jason testified that he had previously been mistaken for a
member of the Wild Flax gang. Wild Flax is a rival gang to Sex Cash.”
2
“Later that day, Jason met his friend Kendrick P. Kendrick was
associated with the Harlem 30’s, another Los Angeles gang. Kendrick was
familiar with Branch, Henderson, and Walker. Kendrick had played video
games with them that afternoon in an apartment in the El Dorado complex.
Lareka Davis was a tenant in that apartment. Henderson stayed there as
well, and Branch and Walker came by sometimes.
“Jason and Kendrick were walking through the El Dorado complex
when they saw Davis talking on her cell phone near her apartment. Davis
made a gesture towards them as they passed. Soon afterwards, Jason noticed
they were being followed by three individuals, later identified as Branch,
Henderson, and Walker. They closed the gap between themselves and Jason
and Kendrick. Henderson yelled out ‘Web’ or ‘Web Block’ at least once, and
Walker fired shots at Jason and Kendrick. Jason was struck once in the
back, fracturing two ribs and puncturing a lung. Jason ran to a nearby
apartment, where the occupant called police. Kendrick fled to a different
apartment complex and told a security guard about the shooting.
“The Riverside County Sheriff’s Department responded to the scene of
the shooting. Sheriff’s deputies found five spent .380-caliber shell casings, as
well as a live .380-caliber bullet. After further investigation, including
interviews with the victims, sheriff’s deputies obtained and executed a search
warrant at Davis’s apartment. Davis, Branch, and Henderson were inside. A
deputy observed Branch attempting to escape over the balcony of the
apartment and ordered him to stop. The search of the apartment revealed
papers referencing the Web Block clique and a loaded .380-caliber handgun
hidden in a bucket. Forensic examination of the handgun revealed
insufficient DNA to conduct an analysis.
3
“After her arrest, Davis told investigators she was at her apartment on
the night of the shooting. She heard five loud booming sounds. A few
minutes later, Branch and Henderson came back to the apartment sweating
profusely. Davis was aware that Branch, Henderson, and Walker were
members of Sex Cash and had overheard them say ‘Web Block’ in the past.[4]
“Walker also gave a statement to investigators, which was admitted
only into the evidence heard by his jury. Walker admitted he was part of the
group that confronted Jason earlier in the day. Walker also admitted he,
Branch, and Henderson followed Jason and Kendrick the night of the
shooting, but he said one of the others was the shooter. Walker explained
that they thought Jason or Kendrick was from Sex Cash’s rival gang Wild
Flax.
“At trial, Jason described his encounter with Henderson and his friends
earlier in the day. Jason also identified Henderson and Walker as two of the
individuals who followed him and Kendrick later that night, and he testified
that Walker was the shooter. Likewise, Kendrick identified Branch,
Henderson, and Walker as the individuals who followed them on the night of
the shooting. Kendrick also identified Walker as the shooter and testified
that Henderson was the person who yelled ‘Web’ or ‘Web Block’ before the
shooting.
“Davis denied that she was present at the apartment during the
shooting. She stated that she could not remember what she told
investigators because she was drunk, emotional, and felt threatened. An
investigator testified to her prior statements. Another investigator, a gang
4 “After being charged with attempted murder as a codefendant of
Branch, Henderson, and Walker, Davis pleaded guilty to being an accessory
after the fact and admitted the crime was committed to benefit the Sex Cash
gang.”
4
expert, provided evidence that Sex Cash was a criminal street gang; that
Branch, Henderson, and Walker were active members of that gang; and that
the shooting was committed to benefit the gang.
“Branch, Henderson, and Walker did not call any witnesses in their
defense. At trial, their counsel highlighted potential inconsistencies and
shortcomings in Jason’s and Kendrick’s identifications of the defendants.
They also relied on Jason’s and Kendrick’s gang affiliations to argue their
statements were unreliable.”
PROCEDURAL BACKGROUND
On June 28, 2013, a jury convicted Henderson of two counts of
attempted murder (§§ 187, subd. (a), 664) and one count of active
participation in a criminal street gang (§ 186.22, subd. (a).) The jury found
true two gang and firearms-related enhancements as to each attempted
murder count. (§§ 186.22, subd. (b) & 12022.53, subd. (e)(1).)
The court sentenced Henderson to 50 years to life in prison plus
27 years and 8 months. We affirmed the conviction on direct appeal in
Branch, and the Supreme Court denied review in September 2015.
On July 10, 2019, Henderson filed a petition in superior court to have
his attempted murder convictions vacated and to be resentenced under
section 1170.95 and Senate Bill 1437. The People filed an opposition
explaining Henderson was ineligible for relief under section 1170.95 because
he was not convicted of murder. The court appointed counsel to Henderson,
and Henderson filed a reply, asserting the applicability of Senate Bill 1437 to
his case.
Following a hearing in November 2019, the superior court dismissed
the case, citing People v. Lopez (2019) 38 Cal.App.5th 1087, review granted
November 13, 2019, S258175 (Lopez) and People v. Munoz (2019)
5
39 Cal.App.5th 738, review granted November 26, 2019, S258234 (Munoz),
which each concluded Senate Bill 1437 does not apply to the offense of
attempted murder.
Henderson timely appealed.
DISCUSSION
Effective January 1, 2019, Senate Bill 1437 eliminated liability for
murder under the felony murder and natural and probable consequences
doctrines. (§§ 188, subd. (a)(3) & 189, subd. (e); People v. Anthony (2019) 32
Cal.App.5th 1102, 1147 (Anthony).) In this appeal, Henderson argues Senate
Bill 1437 also applies to attempted murder, and the superior court’s denial of
his petition to vacate the attempted murder convictions was therefore
erroneous. We disagree, and we will affirm.
The interpretation of a statute is a question of law, subject to de novo
review. (Goodman v. Lozano (2010) 47 Cal.4th 1327, 1332.) “ ‘As in any case
involving statutory interpretation, our fundamental task is to determine the
Legislature’s intent so as to effectuate the law’s purpose.’ ” (People v. Cole
(2006) 38 Cal.4th 964, 974-975; People v. Murphy (2001) 25 Cal.4th 136, 142.)
We examine the statutory language and give it a plain and commonsense
meaning. (Cole, at p. 975.) If the statutory language is unambiguous, then
the plain meaning controls. (Ibid.) It is only when the language supports
more than one reasonable construction that we may look to extrinsic aids like
legislative history and ostensible objectives. (Ibid.; In re Young (2004)
32 Cal.4th 900, 906.)
This matter tasks us with contemplating whether Senate Bill 1437
modifies accomplice liability for attempted murder and therefore whether a
defendant convicted of attempted murder is eligible for relief under
section 1170.95. We begin by looking at the language of the amended
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statutes, giving them “ ‘ “ ‘a plain and commonsense meaning.’ ” ’ ” (People v.
Gonzalez (2017) 2 Cal.5th 1138, 1141.) “We must follow the statute’s plain
meaning, if such appears, unless doing so would lead to absurd results the
Legislature could not have intended.” (People v. Birkett (1999) 21 Cal.4th
226, 231; People v. Gray (2014) 58 Cal.4th 901, 906.)
Senate Bill 1437 addressed aspects of felony murder and the natural
and probable consequences doctrine (People v. Martinez (2019) 31
Cal.App.5th 719, 722), “redefin[ing] ‘malice’ in section 188. Now, to be
convicted of murder, a principal must act with malice aforethought; malice
can no long ‘be imputed to a person based solely on [his or her] participation
in a crime.’ (§ 188, subd. (a)(3).)” (In re R.G. (2019) 35 Cal.App.5th 141, 144
(In re R.G.).) Senate Bill 1437 also amended section 189 by adding
subdivision (e), which states that a participant in the target felony who did
not actually commit a killing is nonetheless liable for murder if he or she
aided, abetted, or assisted the actual killer in first degree murder or was a
major participant in the target crime and acted with reckless indifference to
human life. (§ 189, subd. (e)(2)-(3).) The result is that Senate Bill 1437
“ensure[s] that murder liability is not imposed on a person who is not the
actual killer, did not act with intent to kill, or was not a major participant in
the underlying felony who acted with reckless indifference to human life.”
(Anthony, supra, 32 Cal.App.5th at p. 1147.)
In addition to these changes, Senate Bill 1437 added section 1170.95 to
the Penal Code. It permits “[a] person convicted of felony murder or murder
under a natural and probable consequences theory” to petition the sentencing
court to vacate the murder conviction and resentence the petitioner on the
remaining counts. (§ 1170.95, subd. (a); In re R.G., supra, 35 Cal.App.5th at
p. 144.)
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Colleagues in the Second and Fourth Appellate Districts have
addressed the applicability of Senate Bill 1437 to attempted murder and
concluded section 1170.95 relief is not available to defendants convicted of
attempted murder. (Lopez, supra, 38 Cal.App.5th at p. 1104, Munoz, supra,
39 Cal.App.5th at p. 757, People v. Dennis (2020) 47 Cal.App.5th 838, 846,
review granted Jul. 29, 2020, S262184.) We agree with the reasoning offered
by the court in Lopez, and we will follow it here.
In Lopez, supra, 38 Cal.App.5th 1087, the court explained: “[T]here is
nothing ambiguous in the language of Senate Bill 1437, which in addition to
the omission of any reference to attempted murder, expressly identifies its
purpose as the need ‘to amend the felony murder rule and the natural and
probable consequences doctrine, as it relates to murder, to ensure that
murder liability is not imposed on a person who is not the actual killer, did
not act with the intent to kill, or was not a major participant in the
underlying felony who acted with reckless indifference to human
life.’ [Citation.]” (Id. at p. 1104.)
Lopez also points out that the language in section 1170.95 authorizes
only those convicted of felony murder or murder under the natural and
probable consequences theory to petition for relief, and it authorizes the court
to hold a hearing regarding whether to vacate murder convictions. (Lopez,
supra, 38 Cal.App.5th at pp. 1104-1105, citing § 1790.95, subds. (a) & (d).)
This authorization does not extend beyond murder convictions; the plain
language of these statutes neither mentions attempted murder nor offers a
procedure for vacating attempted murder convictions based on the natural
and probable consequences doctrine. (See Lopez, at pp. 1104-1105; §§ 188,
189, 1170.95.)
8
Additionally, the language of section 189, subdivision (e) suggests the
Legislature knowingly excluded attempted murder. Subdivision (e) states
that an underlying felony can be either completed or attempted, but the same
sentence omits the word “attempted” in the context of a participant’s liability
for murder. (§ 189, subd. (e) [“A participant in the perpetration or attempted
perpetration of a felony listed in subdivision (a) in which a death occurs is
liable for murder only if one of the following is proven” (italics added)].)
“ ‘When the Legislature “has employed a term or phrase in one place and
excluded it in another, it should not be implied where excluded.” ’ [Citation.]”
(People v. Buycks (2018) 5 Cal.5th 857, 880.)
Moreover, in Lopez, the court explains that the exclusion of attempted
murder from the statutes is consistent with the legislative history: “When
describing the proposed petition process, the Legislature consistently referred
to relief being available to individuals charged in a complaint, information or
indictment ‘that allowed the prosecution to proceed under a theory of first
degree felony murder, second degree felony murder, or murder under the
natural and probable consequences doctrine’ and who were ‘sentenced to first
degree or second degree murder.’ (Assem. Com. on Public Safety, Rep. on
Sen. Bill No. 1437 (2017-2018 Reg. Sess.) as amended May 25, 2018, p. 1.) In
addition, when discussing the fiscal impact and assessing the likely number
of inmates who may petition for relief, the Senate Committee on
Appropriations considered the prison population serving a sentence for first
and second degree murder and calculated costs based on that number. (See
Sen. Com. on Appropriations, Rep on Sen. Bill No. 1437 (2017-2018 Reg.
Sess.) as introduced Feb. 16, 2018, p. 3 (Senate Committee on Appropriations
Report).) The analysis of potential costs did not include inmates convicted of
attempted murder.” (Lopez, supra, 38 Cal.App.5th at p. 1105.)
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Lopez concluded offenses charged under the natural and probable
consequences doctrine can be based on a theory of vicarious liability, not
actual or imputed malice; thus, the accomplice to attempted murder does not
need to share the perpetrator’s intent. (Lopez, supra, 38 Cal.App.5th at
p. 1101, citing People v. Chiu (2014) 59 Cal.4th 155, 158, 164, 167.) “As a
matter of statutory interpretation, Senate Bill 1437’s legislative prohibition
of vicarious liability for murder does not, either expressly or impliedly,
require elimination of vicarious liability for attempted murder.” (Lopez, at
p. 1106.)
Henderson also contends that interpreting Senate Bill 1437 to exclude
attempted murder could lead to anomalous results because a defendant
convicted of aiding and abetting in an assault that leads to murder would be
convicted and sentenced only for the assault, while a defendant convicted of
aiding and abetting in an assault that leads to attempted murder could be
convicted and sentenced both for assault and for attempted murder, resulting
in a longer sentence. Moreover, he notes that because some sentence
enhancements are available only for the attempted murder and not the
underlying crime, those who are convicted of aiding and abetting a target
crime that leads to attempted murder could receive lengthy, 25-year
sentence, for which they would not be eligible were they only sentenced for
the target crime. (See § 12022.53, subd. (a)(1) & (18).)
Although he maintains that the Legislature could not have reasonably
intended these differences, it is clear from the plain language of Senate Bill
1437 that the Legislature did not intend to include attempted murder in the
legislation, however anomalous the sentencing differences may appear.
(Birkett, supra, 21 Cal.4th at p. 231 [follow plain meaning unless results are
absurd and unintended].) The Legislative findings and declarations offered
10
in the nonpublished portion of the bill make clear that the bill was focused
only on murder, not attempted murder: “It is necessary to amend the felony
murder rule and the natural and probable consequences doctrine, as it
relates to murder, to ensure that murder liability is not imposed on a person
who is not the actual killer, did not act with intent to kill, or was not a major
participant in the underlying felony who acted with reckless indifference to
human life.” (Sen. Bill No. 1437 (2017-2018 Reg. Sess.) § 1, subd. (f).)
Moreover, “ ‘ “The failure of the Legislature to change the law in a particular
respect when the subject is generally before it and changes in other respects
are made is indicative of an intent to leave the law as it stands in the aspects
not amended.” [Citations.]’ ” (In re Greg F. (2012) 55 Cal.4th 393, 407.)
Further, excluding attempted murder from Senate Bill 1437 does not
necessarily lead to absurd results because “it is far from clear that
interpreting Senate Bill 1437 to apply to convictions for murder, but not
attempted murder, will always, or typically, result in longer sentences for the
latter.” (Munoz, supra, 39 Cal.App.5th at pp. 757-758.) The basic
punishment for attempted murder is already far less severe than the
punishment for murder; thus, this interpretation does not undermine the
goal of making punishment commensurate with culpability. (Ibid.) And
“[t]o the extent a disparity might exist in an individual case, that
circumstance is not sufficient to render the plain language of the statute
absurd.” (Id. at pp. 759-760.)
Henderson urges us to consider the Fifth Appellate District’s decision
in People v. Larios (2019) 42 Cal.App.5th 956, 966, review granted February
26, 2020, S259983. But even the court in Larios concluded that a defendant
convicted of attempted murder is “categorically excluded from seeking relief
through the section 1170.95 petitioning procedure” (id. at p. 970) because
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“[t]he plain language of section 1170.95, subdivision (a) limits relief to
persons ‘convicted of felony murder or murder under a natural and probable
consequences theory.’ ” (Id. at p. 969.)
Finally, if, as Henderson maintains, the sentencing results were not a
reflection of this stated intention, the remedy would be legislative. (See
Costa v. Workers’ Comp. Appeals Bd. (1998) 65 Cal.App.4th 1177, 1184
[“[J]udicial review of a statute does not involve a consideration of the
legislation’s wisdom.”].)
DISPOSITION
The judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
BENKE, Acting P. J.
IRION, J.
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