People v. Henry CA1/4 ( 2021 )

Filed 2/26/21 P. v. Henry CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent, A158921
v. (Solano County
ROBERT HENRY, Super. Ct. No. VC19726)
Defendant and Appellant.
Defendant Robert Henry appeals after the trial court denied his
petition under Penal Code section 1170.95 to vacate his murder conviction
and for resentencing.1 The court denied the petition after appointing counsel
for Henry, receiving adversary briefing, and hearing oral argument, but
without holding an evidentiary hearing. We conclude the court correctly
denied the petition without proceeding to an evidentiary hearing, because the
verdict returned by the jury at Henry’s trial irrefutably establishes that he is
ineligible for relief under section 1170.95 as a matter of law. We therefore
affirm.2
1 Undesignated statutory references are to the Penal Code.
Henry has also filed in this court a petition for a writ of habeas corpus
2
(No. A160596). We will address that petition in a separate order.
1
I. BACKGROUND
At Henry’s trial in 1986, the jury convicted him of the first degree
murder of Andre Johnson (§§ 187, subd. (a), 189). The jury found true a
special-circumstance allegation that the murder was intentional and was
committed for financial gain (§ 190.2, subd. (a)(1)). Finally, the jury found a
principal in the crime was armed with a firearm (§ 12022, subd. (a)). The
prosecution’s theory at trial was that Henry hired Francis Lee Brewer to kill
Cedric Turner (who Henry believed had participated in a robbery of Henry),
and Brewer instead shot and killed Johnson, believing Johnson to be Turner.
The prosecution argued Henry was guilty of aiding and abetting the murder
of Johnson on a transferred intent theory.
The trial court sentenced Henry to life imprisonment without the
possibility of parole. This court affirmed Henry’s conviction in a 1988
unpublished opinion. (People v. Henry (Sept. 21, 1988, A035447) [nonpub.
opn.].)
In October 2017, Henry filed in the trial court a petition for a writ of
habeas corpus, arguing that newly discovered evidence established his actual
innocence.3 In the habeas matter, the court appointed counsel for Henry,
issued an order to show cause as to two claims of actual innocence, and
ultimately held an evidentiary hearing in December 2019, after which it
denied relief.4
3For purposes of setting forth the background of the trial court habeas
proceedings involving Henry, we take judicial notice of the record in a related
appeal (People v. Henry (Sept. 18, 2020, A159396) [nonpub. opn.]). (Evid.
Code, §§ 452, subd. (d), 459, subd. (a).)
4Henry filed a notice of appeal purporting to challenge the trial court’s
order denying his habeas petition. This court dismissed that appeal because
the challenged order was not appealable. (People v. Henry, supra, A159396.)
As noted, Henry has also filed a habeas petition in this court (No. A160596),
and that matter is pending.
2
With his habeas matter still pending in the trial court, in March 2019
Henry petitioned that court under section 1170.95 to vacate his murder
conviction and for resentencing. The court appointed Henry’s habeas counsel
to represent him in connection with the section 1170.95 petition. In his
petition and in supplemental filings by counsel, Henry argued the jury might
have convicted him of murder on the basis of the natural and probable
consequences doctrine or the felony-murder rule, and that he could not now
be convicted of murder in light of the changes to sections 188 and 189 effected
by Senate Bill Number 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437), which
took effect on January 1, 2019.
Henry also filed a motion to amend his habeas petition to include
allegations related to the issues presented in his section 1170.95 petition.
The court denied that motion in July 2019, concluding the section 1170.95
petition provided an adequate remedy to address those issues.
Henry’s counsel and the Solano County District Attorney’s office
submitted briefing pertaining to the section 1170.95 petition, and the court
heard argument on the petition in August 2019. On September 16, 2019, the
court issued a written order denying the petition without holding an
evidentiary hearing. In its order, the court relied in part on the jury’s true
finding as to the financial-gain special circumstance at Henry’s 1986 trial.
The court noted that this finding “established that the jury believed beyond a
reasonable doubt that the murder herein was intentional and that [Henry]
acted with the specific intent to aid Mr. Brewer in its commission.” The court
concluded Henry is ineligible for relief under section 1170.95, because “the
record available” to the court did not show that Henry “could not be convicted
of first or second degree murder under the changes effective to Penal Code
§§ 188 or 189 under the law effective January 1, 2019.”
3
II. DISCUSSION
A. Senate Bill 1437
Senate Bill 1437 “ ‘amend[ed] 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.’
(Stats. 2018, ch. 1015, § l, subd. (f ).)” (People v. Gentile (2020) 10 Cal.5th
830, 842 (Gentile).)
As outlined by our Supreme Court in Gentile, Senate Bill 1437
furthered that purpose by adding three provisions to the Penal Code: “First,
to amend the felony-murder rule, Senate Bill 1437 added section 189,
subdivision (e): ‘A participant in the perpetration or attempted perpetration
of [qualifying felonies] in which a death occurs is liable for murder only if one
of the following is proven: [¶] (1) The person was the actual killer.
[¶] (2) The person was not the actual killer, but, with the intent to kill, aided,
abetted, counseled, commanded, induced, solicited, requested, or assisted the
actual killer in the commission of murder in the first degree. [¶] (3) The
person 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.’ . . . .
“Second, to amend the natural and probable consequences doctrine,
Senate Bill 1437 added section 188, subdivision (a)(3) . . . : ‘Except [for
felony-murder liability] 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.’
4
“Third, Senate Bill 1437 added section 1170.95 to provide a procedure
for those convicted of felony murder or murder under the natural and
probable consequences doctrine to seek relief under the two ameliorative
provisions above.” (Gentile, supra, 10 Cal.5th at pp. 842–843.)
B. Section 1170.95
Subdivision (a) of section 1170.95 specifies the conditions that provide a
basis for relief under the statute: “A person convicted of felony murder or
murder under a natural and probable consequences theory may file a petition
with the court that sentenced the petitioner to have the petitioner’s murder
conviction vacated and to be resentenced on any remaining counts when all of
the following conditions apply: [¶] (1) A complaint, information, or
indictment was filed against the petitioner that allowed the prosecution to
proceed under a theory of felony murder or murder under the natural and
probable consequences doctrine. [¶] (2) The petitioner was convicted of first
degree or second degree murder following a trial or accepted a plea offer in
lieu of a trial at which the petitioner could be convicted for first degree or
second degree murder. [¶] (3) The petitioner could not be convicted of first or
second degree murder because of changes to Section 188 or 189 made
effective January 1, 2019.”
If a petition containing certain required information is filed (see
§ 1170.95, subd. (b)), the trial court must then determine whether a
petitioner has made a sufficient prima facie showing to proceed to an
evidentiary hearing. Subdivision (c) of section 1170.95 provides: “The court
shall review the petition and determine if the petitioner has made a prima
facie showing that the petitioner falls within the provisions of this section. If
the petitioner has requested counsel, the court shall appoint counsel to
represent the petitioner. The prosecutor shall file and serve a response
within 60 days of service of the petition and the petitioner may file and serve
5
a reply within 30 days after the prosecutor[’s] response is served. These
deadlines shall be extended for good cause. If the petitioner makes a prima
facie showing that he or she is entitled to relief, the court shall issue an order
to show cause.”
If the court issues an order to show cause, the court must hold an
evidentiary hearing to determine whether the petitioner is entitled to relief.
(§ 1170.95, subd. (d).) At that hearing, “the burden of proof shall be on the
prosecution to prove, beyond a reasonable doubt, that the petitioner is
ineligible for resentencing. If the prosecution fails to sustain its burden of
proof, the prior conviction, and any allegations and enhancements attached to
the conviction, shall be vacated and the petitioner shall be resentenced on the
remaining charges. The prosecutor and the petitioner may rely on the record
of conviction or offer new or additional evidence to meet their respective
burdens.” (Id., subd. (d)(3).)
C. Henry Did Not Make a Prima Facie Showing That He Is Entitled
to Relief Under Section 1170.95
1. The Trial Court’s Ruling
After appointing counsel for Henry and considering briefing and oral
argument from the parties as outlined in section 1170.95, subdivision (c), the
trial court in effect concluded Henry had not made a prima facie showing that
he was entitled to relief. Specifically, as to the three conditions for relief set
forth in section 1170.95, subdivision (a), the court found Henry had
established the first two conditions—he was charged with murder, allowing
the prosecution to proceed on a theory of felony murder or murder under the
natural and probable consequences doctrine, and he was convicted of murder
(§ 1170.95, subd. (a)(1)–(2)). But the court concluded Henry had not made a
sufficient showing as to the third condition for relief, i.e., that he could not be
convicted of murder under the changes to sections 188 and 189 that took
effect January 1, 2019 (§ 1170.95, subd. (a)(3)). The court therefore denied
6
Henry’s petition without issuing an order to show cause or holding an
evidentiary hearing under section 1170.95, subdivision (d).
2. The Jury’s Special-Circumstance Finding Establishes Henry
Is Ineligible for Relief
Henry contends the trial court erred by denying his petition at the
prima facie review stage, and that he made a sufficient showing to require
the court to issue an order to show cause and hold an evidentiary hearing.
We disagree, because we conclude the record of Henry’s conviction
(specifically, the jury’s verdict) establishes he is ineligible for relief.
A petitioner is ineligible for relief under section 1170.95 as a matter of
law if the petitioner “was convicted on a ground that remains valid
notwithstanding Senate Bill 1437’s amendments to sections 188 and 189.”
(People v. Verdugo (2020) 44 Cal.App.5th 320, 330, review granted Mar. 18,
2020, S260493 (Verdugo).)5 The record shows the jury at Henry’s trial
adopted a theory of murder liability that remains valid under section 188 as
amended by Senate Bill 1437—the theory that Henry, with the intent to kill,
directly aided and abetted the commission of first degree murder.
5 In Verdugo, the appellate court concluded that this determination
may be made during the first of two prima facie reviews by the trial court
under section 1170.95, subdivision (c), and that the first such review (which
may be dispositive) may be conducted before the court appoints counsel for
the petitioner. (Verdugo, supra, 44 Cal.App.5th at pp. 328–329, 332–333,
review granted.) There is disagreement among the Courts of Appeal as to
these procedural points. (See People v. Cooper (2020) 54 Cal.App.5th 106,
112–113, 115, 118, 123, review granted Nov. 10, 2020, S264684 [disagreeing
with Verdugo; holding § 1170.95, subd. (c) provides for just one prima facie
review and requires the appointment of counsel upon the filing of a facially
sufficient petition that requests appointment of counsel].) No issue
pertaining to this split of authority is raised by the present appeal, as the
trial court here appointed counsel for Henry and received adversary briefing
before issuing its ruling.
7
As noted, Senate Bill 1437 amended section 188 by adding
subdivision (a)(3), which specifies that: “Except [for felony-murder liability]
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.” As
the Supreme Court explained in Gentile, this amendment changed the law of
aiding and abetting liability as it pertains to murder, but it leaves intact the
theory of direct aiding and abetting as a basis for a murder conviction.
The Gentile court stated: “Our law recognizes two forms of liability for
aiders and abettors. [Citation.] First, under direct aiding and abetting
principles, an accomplice is guilty of an offense perpetrated by another if the
accomplice aids the commission of that offense with ‘knowledge of the direct
perpetrator’s unlawful intent and [with] an intent to assist in achieving those
unlawful ends.’ [Citation.] [¶] Second, under the natural and probable
consequences doctrine, an accomplice is guilty not only of the offense he or
she directly aided or abetted (i.e., the target offense), but also of any other
offense committed by the direct perpetrator that was the ‘natural and
probable consequence’ of the crime the accomplice aided and abetted (i.e., the
nontarget offense).” (Gentile, supra, 10 Cal.5th at p. 843.)
Following the enactment of Senate Bill 1437, natural and probable
consequences liability cannot extend to first degree or second degree murder.
(Gentile, supra, 10 Cal.5th at pp. 838–839.) But “Senate Bill 1437 does not
eliminate direct aiding and abetting liability for murder because a direct
aider and abettor to murder must possess malice aforethought.” (Id. at
p. 848.)
At Henry’s trial, the trial court instructed the jury on aiding and
abetting liability, explaining principles of both direct aiding and abetting and
the natural and probable consequences doctrine (although it did not instruct
8
on a specific target offense that allegedly led to the nontarget offense of
murder). The court instructed in part: “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
reasonable or probable consequences of any act that he knowingly or
intentionally aided or encouraged. [¶] A person aids and abets the
commission of a crime when he or she, one, with knowledge of the unlawful
purpose of the perpetrator and, two, with the intent or purpose of
committing, encouraging or facilitating the commission of the offense, by act
or advice, aids, promotes, encourages or instigates the commission of the
crime.”
Similarly, the prosecutor argued that Henry aided and abetted
Brewer’s murder of Johnson. In making this argument, the prosecutor
referred to both direct aiding and abetting and the natural and probable
consequences doctrine. As to direct aiding and abetting, the prosecutor
stated: “[I]t’s our particular theory that the aider and abettor here was the
Defendant, Mr. Henry, through his aiding, promoting, encouraging or
instigating Mr. Brewer to perform the act Mr. Brewer did.” As to natural and
probable consequences, the prosecutor did not articulate a specific target
crime that Henry aided and abetted and that resulted in the nontarget crime
of murder. But the prosecutor did refer to the natural and probable
consequences doctrine as a basis for murder liability in light of conflicting
evidence that was before the jury as to the agreement between Henry and
Brewer.
The prosecutor stated: “When you’re thinking about this principal,
aider and abettor theory, the aider and abettor, he is guilty of the particular
crime that he knew his confederate was contemplating doing, but he’s also
liable for the natural, reasonable or probable consequences of that act.
9
[¶] Now, here there’s been conflicting testimony about whether it was going
to be a shooting, whether it was going to be a beating, whether it was going to
be a killing. That’s what you’re here to decide, ladies and gentlemen; from all
the evidence, you have to come to those conclusions. [¶] I submit to you, if
you find that Mr. Henry only thought there was going to be a shooting, well,
again, that doesn’t solve the problem for him. It doesn’t mean that he’s not
guilty; because under the principal theory, if he’s liable for the natural and
reasonable or probable consequences of that act, well, what’s the natural,
reasonable, probable consequence of shooting someone? That that someone
might die, which is exactly what happened here.”
In addition to the aiding and abetting theories, Henry contends the
instructions and arguments at trial also allowed the jury to consider felony
murder as a possible theory of murder liability, and he argues the trial court
was incorrect to conclude he was not prosecuted on a felony-murder theory.
We are skeptical that the jury would have understood the felony-murder rule
as a separate avenue to reaching a verdict of first degree murder. No
separate felony-murder instruction was given. There was no allegation that
Johnson’s murder occurred during the perpetration of one of the felonies
listed in section 189, subdivision (a) (such as a robbery or a burglary), so as to
support a conviction of first degree felony murder.
Henry argues, however, that the court’s general instructions on murder
allowed the jury to convict him of first degree murder on a felony-murder
theory because (1) the instructions defined murder as an unlawful killing
that is committed with malice aforethought or that occurs during the
commission of a felony that is inherently dangerous to human life (thus
incorporating the second degree felony-murder doctrine as an alternative to
malice murder (see People v. Chun (2009) 45 Cal.4th 1172, 1182 [“Second
degree felony murder is ‘an unlawful killing in the course of the commission
10
of a felony that is inherently dangerous to human life but is not included
among the felonies enumerated in section 189’ ”])), and (2) the instructions
did not specify that a killing during the commission of such a felony is second
degree, rather than first degree, murder. As Henry notes, the prosecutor also
made a brief reference to this definition of murder in closing argument,
although he then focused on the elements of malice and premeditation and
did not develop any argument that Henry was guilty of murder because
Johnson was killed during the commission of an inherently dangerous felony.
As noted, we do not find it likely that the jury gleaned from these brief
references a path to a first degree murder verdict that was independent of the
aiding and abetting theory on which the prosecution focused. But we need
not resolve this issue. Even if we assume the jury had available to it multiple
theories of murder liability (direct aiding and abetting, the natural and
probable consequences doctrine, and even perhaps an undeveloped felony-
murder theory), the jury’s finding on the financial-gain special circumstance
is dispositive here. That finding establishes the jury found that Henry, with
the intent to kill, directly aided and abetted the commission of first degree
murder.
Section 190.2 sets forth special circumstances that subject a person
convicted of first degree murder to a punishment of death or life
imprisonment without the possibility of parole. The special circumstance in
section 190.2, subdivision (a)(1) applies when “[t]he murder was intentional
and carried out for financial gain.” (§ 190.2, subd. (a)(1); see People v.
Freeman (1987) 193 Cal.App.3d 337, 339 [construing 1978 version of § 190.2,
which included identical language in subd. (a)(1)].)
When the defendant is not the actual killer, the financial-gain special
circumstance applies if the defendant, “with the intent to kill, aids, abets,
counsels, commands, induces, solicits, requests, or assists any actor in the
11
commission of murder in the first degree.” (§ 190.2, subd. (c); People v. Fayed
(2020) 9 Cal.5th 147, 201–202.) The 1978 version of the statute that applied
at the time of the crime and the trial in this case included similar language.
(People v. Freeman, supra, 193 Cal.App.3d at p. 339 [quoting former subd. (b)
of § 190.2, which provided for application of the special circumstance to a
defendant who was not the actual killer but was “ ‘found guilty of
intentionally aiding . . . counseling . . . inducing, soliciting . . . or assisting any
actor in the commission of murder in the first degree’ ”]; see People v. Padilla
(1995) 11 Cal.4th 891, 933 [“[I]n this case, before defendant could be found
subject to the financial gain special circumstance as an accomplice, the jury
was required to find that defendant had the intent to kill”].)6
The jury’s true finding on the financial-gain special circumstance thus
includes findings that Henry, with the intent to kill (i.e., express malice
(§ 188, subd. (a)(1))), directly aided and abetted the commission of first degree
murder. (See People v. Bentley (2020) 55 Cal.App.5th 150, 154, review
granted Dec. 16, 2020, S265455 [jury’s true finding, as to shooter’s
accomplice, on special circumstance for shooting from motor vehicle under
§ 190.2, subd. (a)(21), encompassed finding that accomplice “aided and
abetted the shooter ‘with the intent to kill’ ” (citing § 190.2, subd. (c))].) In
short, the jury adopted a theory of murder liability—direct aiding and
abetting—that is still valid after Senate Bill 1437. (§ 188, subd. (a)(3);
Gentile, supra, 10 Cal.5th at p. 848.) Accordingly, Henry is ineligible for
6 Not at issue in this case is the different standard applicable when the
special circumstance involved is the felony-murder special circumstance in
section 190.2, subdivision (a)(17). (See § 190.2, subd. (d) [imposing special-
circumstance liability under § 190.2, subd. (a)(17) to a defendant who is not
the actual killer if the defendant, “with reckless indifference to human life
and as a major participant, aids, abets, counsels, commands, induces, solicits,
requests, or assists in the commission of ” the underlying felony].)
12
relief under section 1170.95 as a matter of law. (Verdugo, supra,
44 Cal.App.5th at p. 330, review granted.)
3. The Jury Instruction on the Special Circumstance Was
Not Defective
In his appellate briefing, Henry states he “agrees that a financial gain
special circumstance finding typically makes a petitioner ineligible for relief
under section 1170.95 because it normally requires the jury to find that the
defendant had the intent to kill.” Henry contends, however, that the special-
circumstance finding here is not dispositive, because the instructions to the
jury about the special circumstance were ambiguous and did not require the
jury to find he personally had the intent to kill. We disagree.
At Henry’s trial, the court’s instruction on the financial-gain special
circumstance provided in part:
“If Defendant, Robert Henry, was an aider and abettor but not the
actual killer, it must be proved beyond a reasonable doubt that he intended to
aid in the killing of a human being before you are permitted to find the
alleged special circumstance of that first degree murder to be true as to
Defendant, Robert Henry. [¶] . . . [¶] To find that the special circumstance
referred to in these instructions as murder for financial gain is true, each of
the following facts must be proved: [¶] One, that the murder was intentional;
and [¶] Two, that it was carried out for financial gain. [¶] To find that the
special circumstance is true, the Defendant need not be the individual who
actually committed the murder. [¶] If the Defendant intentionally aided,
abetted, counseled, commanded, induced, solicited, requested or assisted any
actor in the commission of murder in the first degree, which murder was
intentional and which was carried out for financial gain, you should find the
special circumstance to be true.” (Italics added.)
The court thus instructed the jury that (1) to find the special
circumstance true as to a defendant who was not the actual killer (the sole
13
theory as to Henry, who the prosecution never contended was the actual
killer), the jury must find he had the intent to kill, and (2) the jury had to
find Henry intentionally aided and abetted the commission of first degree
murder. In the middle of the instruction, the court set forth the elements of
the particular special circumstance at issue—the financial-gain special
circumstance—including the requirement that the murder was intentional.
(§ 190.2, subd. (a)(1).)
Henry contends the jury might have focused solely on the portion of the
instruction stating that to find the special circumstance true, it had to find
two “facts” had been proved, including that “the murder was intentional.”
Henry argues the jury could have found this element was satisfied by proof
that Brewer had the intent to kill, without finding that Henry did. In
Henry’s view, the jury thus could have decided he was guilty of first degree
murder on a theory other than direct aiding and abetting (such as the natural
and probable consequences doctrine), and then found the financial-gain
special circumstance true, all without finding Henry had the intent to kill.
We reject this contention. In assessing a claim that an instruction
misled the jury, “[w]e must consider the instructions together as a whole, to
determine whether it is reasonably likely a jury would interpret an
instruction in a particular way, because we presume jurors understand and
correlate all of the instructions.” (People v. Burton (2018) 29 Cal.App.5th
917, 925.) In our view, it is not reasonably likely the jury interpreted the
special-circumstance instruction in the manner Henry suggests. As noted,
the same instruction expressly stated that, to find the special circumstance
true, the jury had to find that Henry himself “intended to aid in the killing of
a human being” and “intentionally aided, abetted, counseled, commanded,
induced, solicited, requested or assisted any actor in the commission of
murder in the first degree.” We do not think it reasonably likely the jury
14
ignored those portions of the instruction, focused solely on the part identified
by Henry, and construed it to mean there was no need to find Henry had the
intent to kill.7
Henry contends that, at the prima facie review stage under
section 1170.95, the record is to be construed in his favor and does not
“conclusively refute” his claim that he was convicted on the basis of the
natural and probable consequences doctrine or the felony-murder rule despite
the special-circumstance finding. (See People v. Drayton (2020)
47 Cal.App.5th 965, 980 [“when assessing the prima facie showing, the trial
court should assume all facts stated in the section 1170.95 petition are true”];
id. at p. 968; but see People v. Garcia (2020) 57 Cal.App.5th 100, 116, review
granted Feb. 10, 2021, S265692 [disagreeing with Drayton as to standard for
prima facie sufficiency].) We are not persuaded that an obligation to read the
factual record in a petitioner’s favor changes the nature of this court’s task in
determining the legal effect of express jury findings and whether they
establish that the petitioner is ineligible for relief as a matter of law. The
jury’s true finding on the special-circumstance allegation, based on proper
instructions, is dispositive here and establishes Henry is ineligible for
section 1170.95 relief as a matter of law. “The purpose of section 1170.95 is
to give defendants the benefit of amended sections 188 and 189 with respect
7 This court rejected a similar argument in Henry’s direct appeal,
concluding the special-circumstance instruction required the jury to find
Henry had the intent to kill. (People v. Henry, supra, A035447.) We noted
there that “the special circumstance requirement that the jury find defendant
‘intended to aid in the killing of a human being’ could not be clearer on the
issue of appellant’s intent to kill.” (Ibid.) And, also relevant to Henry’s
present contentions, we noted on direct appeal that the jury’s true finding on
the special circumstance, a finding that was based on proper instructions,
established that the jury’s verdict was not based on the natural and probable
consequences doctrine. (Ibid.)
15
to issues not previously determined, not to provide a do-over on factual
disputes that have already been resolved.” (People v. Allison (2020)
55 Cal.App.5th 449, 461.)
Because Henry is ineligible for relief, we need not address his
arguments to the effect that certain aspects of the trial court’s reasoning were
unsound. For example, Henry asserts the trial court (1) incorrectly concluded
that no felony-murder theory was presented at trial, and (2) improperly relied
on this court’s opinion on direct appeal to determine the facts underlying
Henry’s conviction and/or to ascertain which theory of murder liability was
the basis for his conviction. Because the jury’s special-circumstance finding
shows it adopted a valid direct aiding and abetting theory, it is irrelevant
which other theories were available for the jury’s consideration. Also
irrelevant are any alleged defects in the trial court’s assessment, based on
evidence or arguments presented at trial, as to which theory was likely to
have been adopted by the jury.
Finally, Henry faults the trial court for not considering “any of the new
evidence” he submitted in support of his section 1170.95 petition, which he
contends supported his claims of innocence and “would have created a
reasonable doubt as to the prosecution’s ability to again convict [him] of
murder.” There was no error. Because the jury’s verdict establishes that
Henry is ineligible for relief as a matter of law, he could not and did not make
the prima facie showing under subdivision (c) of section 1170.95 that is a
prerequisite to the issuance of an order to show cause and the holding of an
evidentiary hearing at which the prosecution would have to prove ineligibility
beyond a reasonable doubt. (§ 1170.95, subds. (c)–(d).) At the prima facie
review stage, there was no need for the court to consider the evidence or
factual arguments that Henry might have sought to introduce at such a
16
hearing. (§ 1170.95, subd. (d)(3) [at evidentiary hearing, parties may
introduce new evidence].)
For the same reason, the recent decision in People v. Rodriguez (2020)
58 Cal.App.5th 227, cited by Henry in a supplemental filing, is inapposite.
That case focuses on the standards and procedures applicable at an
evidentiary hearing held under section 1170.95, subdivision (d), after the
petitioner has made a prima facie showing of eligibility and the trial court
has issued an order to show cause. (Rodriguez, at pp. 241–242 [“once a prima
facie case of eligibility has been made and an order to show cause issued,” the
prosecution has the burden under § 1170.95, subd. (d)(3) to prove the
petitioner’s ineligibility beyond a reasonable doubt (italics added)]; see id. at
pp. 230, 234.) Because Henry did not make a prima facie showing here, no
burden arose to prove him ineligible beyond a reasonable doubt.
III. DISPOSITION
The order denying Henry’s section 1170.95 petition is affirmed.
STREETER, Acting P. J.
WE CONCUR:
TUCHER, J.
BROWN, J.
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