People v. Henderson CA2/8 ( 2024 )

Filed 10/7/24 P. v. Henderson CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B326456
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BA480779
v.
JOMARI DAMON HENDERSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Mark S. Arnold, Judge. Affirmed in part,
vacated in part, and remanded.
Maxine Weksler, 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, Scott A. Taryle and Chung L. Mar, Deputy
Attorneys General, for Plaintiff and Respondent.
____________________
Rodney Hudson entered a smoke shop in a part of Los
Angeles claimed by Jomari Damon Henderson’s gang. Henderson
shot Hudson dead. A jury convicted Henderson of first degree
murder and other crimes.
Henderson claims insufficient evidence shows he
premeditated and deliberated this murder. He argues the trial
court erred in failing to instruct the jury on voluntary
manslaughter and in allowing the prosecution’s gang expert to
opine on his state of mind.
Henderson also levels various attacks on his sentence and
on the trial court’s strike finding under the Three Strikes law.
(Pen. Code, §§ 667, subds. (b)–(i), 1170.12.) We use the term
“strike” to refer to a “prior felony conviction” within the meaning
of this law. (People v. Watts (2005) 131 Cal.App.4th 589, 592, fn.
2 (Watts).)
One of these latter claims has merit, so we reverse the
strike finding, vacate Henderson’s sentence, and remand the
matter for a new determination of the prior conviction allegation
and for resentencing. We affirm Henderson’s convictions.
Statutory citations are to the Penal Code.
I
We review the evidence favorably to the judgment. (See
People v. Jones (2014) 223 Cal.App.4th 995, 997 (Jones).)
Indoor and outdoor surveillance cameras at the C&C
Smoke Shop on Florence Avenue recorded the events leading to
this shooting, which occurred on the evening of August 5, 2019.
Video shows an SUV with its lights on parked along a curb.
A white car parks in front of the SUV. A man with red shorts
(Hudson) gets out of the white car and walks towards the camera.
2
Henderson and a companion (William Ewell) leave the SUV and
closely follow Hudson to the smoke shop.
Henderson is wearing a gray hoodie and a brightly colored
shoulder bag. Ewell is wearing black. At the entrance to the
shop, both men make a hand sign.
Upon entering the shop, Henderson immediately questions
Hudson: “You bang?” “I don’t bang, bruh” says Hudson.
Henderson replies, “Crackins my game. What’s popping?” He
walks outside and tells Hudson, “Yo, you need to come outside.”
Ewell follows Henderson out, saying “On the Eight . . . .”
Henderson continues, “Oh, you tell people what what’s up here;
right?” Then he asks Hudson, “Blood?”
Hudson joins them outside, but the cameras do not pick up
what they are saying. Henderson and Ewell begin walking away
from the shop while Hudson goes back inside. The other two turn
around and follow Hudson. Ewell enters the shop while
Henderson waits outside with his left hand resting in his
shoulder bag.
Inside the shop, Ewell tells Hudson, “On Bloods, watch how
you address me, Bro. This is the set, bro --.” He tells Hudson to
calm down. Hudson says, “My guy, listen” and “you niggas came
at me --.” Ewell repeats, “This is the set, nigga.”
Hudson defends, “Okay. I know ‘cause I’m in L.A., nigga --”
“I told you niggas I don’t gangbang.” “Period.” “I don’t gangbang,
nigga.” “I just told you niggas that.” Henderson continues to
wait outside, still with his hand in his bag.
Two female customers urge the men to stop. One of these
witnesses later reported Hudson was nervous and looked like he
did not want to leave the shop, the other men were aggressive,
and one of them tried to fight Hudson.
3
Back on the scene, we see Ewell go outside with Henderson.
Hudson calls out from inside, “Nigga. I’m in L.A. I get it. I get
it. Get the fuck out of here.” Then he asks the cashier for two
Beverlies.
Henderson goes to the store entrance and again tells
Hudson, “You come outside.” The two go back and forth:
“[Hudson:] No, I know you feeling yourself. You got your
bag with you. I get it, my nigga. You good.
“[Henderson]: Come straighten it outside, homie
“[Hudson]: I get it.
“[Henderson]: Why you chasing my car?
“[Hudson]: I get it.
“[Henderson]: Why you chasing my car, bro.”
Henderson walks away from the store and down the sidewalk, his
hand still in his bag.
Meanwhile Ewell faces Hudson at the doorway. A few feet
separate them. Hudson looks at Ewell and says, “If I fuck you
up, I’ll fuck him up. You niggas wanna . . . . Fuck him up. Shit.”
He makes a quick movement forward. Ewell puts up his hands.
Hudson then walks away from Ewell and Henderson
towards the white car. The two men let Hudson pass. Ewell
heads to the driver’s side of the SUV. Henderson heads towards
Hudson in the dark. You can faintly see Henderson raise his left
arm and reach towards Hudson. There is a flash by Henderson’s
extended arm. Then you hear three shots in quick succession.
Henderson gets in the SUV, which makes a U-turn out of
its parking spot. Hudson also makes it into his car and drives off.
Hudson’s girlfriend was waiting in the white car and heard
the shots. She was scared. When Hudson returned, he had blood
“coming out” at his groin and said, “he shot me.” She applied
4
pressure to his wounds and called 911. After driving away from
the shop, Hudson crashed into a pole.
Medical personnel testified about Hudson’s critical injuries.
Doctors kept him alive for more than a month, but eventually
Hudson died from complications from his wounds.
The prosecution showed the jury text messages from a
couple weeks after the shooting, which seem to show Henderson
(“Jomari”) admitting he shot someone three times, the victim got
in his car and crashed it, and the shooting was on camera.
As part of the prosecution effort to explain this killing,
Officer Eric Dapello established Henderson was a member of the
Eight Trey Gangster Crips gang. Henderson had several tattoos
referencing this gang. Both Henderson and Ewell “threw up” the
hand sign for their gang as they followed Hudson into the smoke
shop. The shop is located in territory claimed by Eight Trey.
This territory is surrounded by enemy gangs on all sides,
including a Blood gang, which made them “particularly
territorial.” Eight Trey feuds with most Blood gangs, who wear
red, as Hudson did the night Henderson shot him. As Dapello
explained,“[a]ny gang member would be hard-pressed not to
engage somebody within their territory . . . that they thought
might be a rival gang member.”
Dapello also explained some of the terms Henderson and
Ewell used. Gang members who ask another person if they
“bang” are initiating a conflict with that person. Eight Trey
Gangsters say “on the eight” to identify their gang affiliation.
When they see someone wearing red and refer to “bloods,” like
Ewell did, they are identifying the person as a member of a Blood
gang and are initiating conflict.
5
Hudson’s girlfriend confirmed Hudson was not a gang
member.
Henderson did not testify, and the defense called no
witnesses. Outside the jury’s presence, Henderson admitted he
had a prior felony conviction.
Defense counsel sought an instruction on imperfect self-
defense. The trial court denied the request, noting there was no
sign Henderson had heard Hudson’s last comment to Ewell, the
shooting occurred later down the street, and the evidence of self-
defense was too slight.
In closing argument, the defense argued the prosecution
had not proved the gun police found was the gun that killed
Hudson; nor did the prosecution prove Henderson killed him.
The defense did not argue Henderson shot because he felt
threatened or enraged by Hudson.
The jury found Henderson guilty of first degree murder
(§ 187, subd. (a), count 1) and determined he personally used a
handgun (§ 12022.5, subd. (a)). The jury also convicted him of
assault with a firearm (§ 245, subd. (a)(2), count 2), firearm
possession by a felon (§ 29800, subd. (a)(1), counts 3 and 4), and
unlawful possession of ammunition (§ 30305, subd. (a)(1), count
5). Finally, the jury found true four aggravating factors.
Before sentencing, Henderson admitted that he had a prior
felony vandalism conviction and that he had admitted a gang
allegation under section 186.22 in the same case. The trial court
found Henderson’s admissions to be true and declined to dismiss
the strike.
For count 1, the court sentenced Henderson to 60 years to
life in prison. This consisted of 25 years to life doubled under the
Three Strikes law, plus 10 years for the firearm enhancement.
6
The court imposed a consecutive 16-month term for count 4 and a
concurrent four-year term for count 5. The court stayed the
sentences on the other counts.
II
On appeal, Henderson argues insufficient evidence shows
this murder was deliberate and premeditated first degree
murder. He claims the trial court erred in many ways: in
refusing to give lesser included offense instructions, in permitting
expert testimony about his state of mind, in making its strike
finding, in refusing to dismiss the prior strike conviction, and in
imposing the upper term on the firearm enhancement. We find
merit in certain arguments regarding the strike finding and
therefore reverse this finding, vacate Henderson’s sentence, and
remand the matter for further proceedings, as detailed below.
A
Henderson argues his murder conviction must be
overturned because the trial court should have instructed the
jury on the lesser included offense of voluntary manslaughter
based on heat of passion and imperfect self-defense. These
arguments lack merit.
Trial courts have a sua sponte duty to instruct on lesser
included offenses when the evidence could lead a rational jury to
conclude the defendant committed the lesser offense but not the
greater one, provided substantial evidence supports the lesser
offense. (See People v. Williams (2015) 61 Cal.4th 1244, 1263
(Williams).)
We independently review this issue. (People v.
Thomas (2023) 14 Cal.5th 327, 385 (Thomas).)
Murder may be reduced to the lesser included offense of
voluntary manslaughter where the defendant acted in the heat of
7
passion. (§ 192, subd. (a).) This lesser offense has a subjective
component and an objective component. (People v. Moye (2009)
47 Cal.4th 537, 549.) Regarding the subjective component, the
defendant must have acted under the actual influence of a strong
passion inflamed by the victim. (Id. at p. 550; see also Jones,
supra, 223 Cal.App.4th at p. 1000 [the subjective test “inquires
whether the defendant in fact committed the act because he was
provoked”].)
Imperfect self-defense is another basis for reducing murder
to manslaughter. It too has a subjective component. (See
Thomas, supra, 14 Cal.5th at pp. 386–387.) Imperfect self-
defense occurs “when defendants act in the actual but
unreasonable belief they are in imminent danger of great bodily
injury or death.” (People v. Odell (2023) 92 Cal.App.5th 307,
321.) It requires “your actual belief that you must defend against
an imminent danger.” (Ibid.; see also People v. Oropeza (2007)
151 Cal.App.4th 73, 82.)
The trial court properly omitted instructions on heat of
passion and imperfect self-defense because there was insufficient
evidence of the subjective component of these theories.
The evidence showed Henderson and Ewell followed
Hudson into the smoke shop to confront him. Instead of
attempting to make a purchase, they went directly to Hudson and
asked if he was in a gang. Hudson repeatedly denied this, and
Henderson repeatedly taunted him to come outside. Henderson
paced outside the shop with his hand in his bag—which carried a
gun—while Ewell and Hudson kept talking. Hudson did tell
Ewell “[i]f I fuck you up, I’ll fuck him up.” But Henderson was
far away at this point. It is unclear whether Henderson heard
Hudson’s statement. There was no sign this statement roiled
8
Henderson. Henderson did not testify, and no one testified along
these lines. The videos show Henderson was calm before the
shooting and seemingly focused on drawing Hudson outside; he
was not overcome with extreme emotion, as his briefs argue.
Instead of confronting Hudson immediately when he finally
got outside, Henderson let him pass and go to his car. Then he
attacked. No evidence suggested Henderson believed he was in
danger. He was armed with a gun, and his colleague was with
him. Henderson started a two-on-one confrontation with an
unarmed victim, who kept his distance from Henderson, and
whose back was towards Henderson, at the time of the shooting.
Henderson’s briefs argue he must have been acting under
the influence of fear or extreme emotion based on Hudson’s large
size, his proximity, the possibility he was an armed gang
member, his demeanor, and his threats to Ewell. This
speculation does not give rise to a lesser included offense
instruction. (See Williams, supra, 61 Cal.4th at p. 1264; see also
Thomas, supra, 14 Cal.5th at p. 385 [speculative, minimal, or
insubstantial evidence is insufficient].)
Instructions on imperfect self-defense and heat of passion
were unwarranted. (See Thomas, supra, 14 Cal.5th 327 at p. 387
[manslaughter instruction unwarranted where there was no
evidence defendant shot in the heat of passion or “actually
believed—reasonably or unreasonably—that he was in fear of
death or great bodily injury”]; People v. Simon (2016) 1 Cal.5th
98, 133–134 [trial court properly rejected self-defense instruction
where the record was devoid of evidence tending to show
defendant’s subjective fear of the unarmed victim].)
9
B
Henderson next claims insufficient evidence shows this
murder was deliberate and premeditated.
In reviewing claims of this type, we examine the record
favorably to the judgment. We discern whether there is
substantial evidence from which a rational juror could find the
defendant guilty beyond a reasonable doubt. (People v. Mendoza
(2011) 52 Cal.4th 1056, 1068–1069 (Mendoza).) We do not resolve
factual conflicts. Instead, we presume the existence of every fact
in support of the verdict that reasonably could be inferred from
the evidence. (People v. Brady (2010) 50 Cal.4th 547, 564
(Brady).)
Against this high burden, Henderson’s insufficiency claim
stumbles. His case has all three hallmarks of premeditation and
deliberation: evidence of planning activity, preexisting motive,
and manner of killing. (See Mendoza, supra, 52 Cal.4th at p.
1069.)
The surveillance videos provide evidence of planning and
show the manner of Henderson’s attack was to ensure death.
Henderson waited in the SUV until Hudson arrived and left his
car. Henderson pursued him with a gun, closely trailing Hudson
into the shop. He confronted Hudson immediately about
“banging,” before Hudson ever spoke, and ignored Hudson’s
denials. He repeatedly told Hudson to come outside, where he
waited calmly with his gun. The videos show Henderson pacing
outside the shop, ready with his hand inside his shoulder bag.
When Hudson completed his purchase and walked to his car,
Henderson let him pass him and continue down the sidewalk,
away from the shop’s cameras. Then he shot Hudson three times
10
at close range, including in the abdomen and pelvis, with Ewell
ready to drive them away.
A rational jury could have concluded this evidence showed
reflection and a plan to kill a perceived rival. (See Mendoza,
supra, 52 Cal.4th at p. 1069 [the test is reflection, not time; a
brief interval can suffice].)
Motive reflecting deliberation and premeditation also was
apparent. Henderson wanted to defend his gang territory:
Hudson was wearing bright red shorts in territory claimed by
Henderson’s Crips gang. Red was the color of the Bloods, which
were enemy gangs. Henderson’s gang was surrounded by rivals,
so there was extra pressure to guard its territory. As Henderson
and Ewell pursued Hudson into the smoke shop, they “threw up”
their gang’s hand sign, advertising their mission, and
immediately asked Hudson about his gang membership.
Henderson did not need to shoot Hudson on sight to have a
gang motive. Nor did he need to be motivated by a desire for
retaliation.
Henderson cites cases that are factually distinct and do not
help him.
He argues for different inferences from the evidence that
would violate our standard of review. (See Brady, supra, 50
Cal.4th at p. 561.) We reject Henderson’s characterization of the
evidence as showing a rash or impulsive response to a mere “brief
verbal exchange” between “tough guys.”
Ample evidence supports the jury’s finding of premeditation
and deliberation.
C
Henderson forfeited his next complaints about the gang
expert’s testimony. Even assuming no forfeiture, any error in
11
permitting this testimony was harmless. We set the scene and
then explain these conclusions.
At the end of Dapello’s direct testimony, the prosecutor
asked for a sidebar conference. He said he had two remaining
questions but wanted to avoid them if they were objectionable.
He explained both questions pertained to motive: the motive of
an Eight Trey Gangster Crip in approaching someone in Eight
Trey territory wearing red shorts, and the motive of an Eight
Trey Gangster in shooting a person in Eight Trey territory
wearing red shorts after a confrontation.
The court responded these were “fair” questions because
they did not ask about the defendant’s motive. Defense counsel
responded: “Okay. Well, shouldn’t it be asked like a
hypothetical?” The court remarked, “It’s kind of like a
hypothetical.” Defense counsel replied, “Okay. That’s fine.”
The prosecutor resumed his examination and played clips
from the surveillance video. Dapello identified Henderson as the
person in the video with the gray sweatshirt and bag. The
prosecutor asked two questions in line with those he proposed.
In response to the second question, Dapello answered:
“So the way -- the currency that, I guess, gang members
typically will deal in is not generally U.S. dollars or something,
has more to do with respect. So with respect, the other side of it
being -- you know, adoration would be intimidation. And both --
you can respect someone both ways. You can be afraid of them,
too afraid to do something or to stop them from doing something,
or you can be -- adore them so much you would not do something.
“In this case, the gentleman in the gray sweater, with the
bag, chose to intimidate the individual, came into the store,
because he perceived him as a rival gang member. In addition to
12
that, he ensured that everyone within the community saw that
that person, wearing the wrong color in that area for his gang
membership, being within that gang territory, that that
individual would not be welcome because they are a perceived
threat to the gangsters.”
There was no objection or motion to strike this testimony.
Henderson forfeited his current complaint that Dapello’s
answer exceeded the permissible scope of expert testimony and
inappropriately opined on his thoughts, perception, and motive.
(See People v. Stevens (2015) 62 Cal.4th 325, 333 [“the failure to
object to the admission of expert testimony or hearsay at trial
forfeits an appellate claim that such evidence was improperly
admitted”].)
Even assuming no forfeiture, any error in admitting the
testimony was harmless, as considerable other evidence showed a
gang motive for Henderson’s actions. This point did not hinge on
the now-disputed sliver of testimony. Moreover, Dapello’s answer
easily could have been rephrased had counsel objected, and
Henderson does not argue any error in admitting the testimony
was incurable.
D
The trial court must decide the prior conviction allegation
anew.
Henderson attacks the court’s strike finding on many
fronts. We focus on the meritorious ground, after providing some
background.
In 2015, Henderson pleaded no contest to vandalism over
$400 (§ 594). The felony complaint for this case alleged
Henderson had defaced a wall with graffiti. Henderson also
admitted a gang enhancement under section 186.22, subdivision
13
(b)(1)(A). In connection with his plea, the trial court warned
Henderson his conviction would amount to a strike under the
Three Strikes law. This is due to the gang enhancement. (See §§
667, subd. (d)(1), 1192.7, subd. (c)(28).)
In the current case, the second amended information from
September 2022 alleged Henderson previously had been
convicted of a serious or violent felony (the gang-related
vandalism) that qualified him for sentencing under the Three
Strikes law.
Effective January 1, 2022, Assembly Bill No. 333 (2021-
2022 Reg. Sess) (AB 333) altered the requirements for gang
enhancements. (People v. Tran (2022) 13 Cal.5th 1169, 1206.)
Because Henderson does not argue specific statutory changes are
critical to his appeal, we similarly do not detail the changes.
In August 2022, the California Supreme Court decided
People v. Renteria (2022) 13 Cal.5th 951 (Renteria), which
clarified the showing required for gang enhancements when a
defendant is a lone actor. (Id. at pp. 957 & 964–965.) Renteria
raised the bar for finding an enhancement true in these cases.
(See id. at pp. 965–969.)
In September 2022, after voir dire had begun and outside
the jury’s presence, the court raised Henderson’s 2015 gang-
related vandalism conviction. It noted the case was final and this
conviction was a “valid strike.” Defense counsel argued against
this position, claiming Henderson “gets the benefit” of the
changes to section 186.22 enacted by AB 333. The trial court
rejected this argument.
Before the verdict, Henderson waived his right to a jury
trial on his prior conviction. After the verdict, Henderson waived
his right to a court trial. He acknowledged he could double his
14
sentence by admitting his conviction. He then admitted that he
suffered a prior conviction for violating section 594, that the
underlying vandalism charge was a felony, and that he admitted
the gang allegation under section 186.22 in the same case.
Defense counsel concurred in the admissions and stipulated there
was a factual basis for them.
The trial court accepted Henderson’s admissions as true. It
denied Henderson’s request to dismiss the prior conviction in the
interests of justice and doubled Henderson’s sentence on the
murder count as a result.
On appeal, Henderson recognizes the Three Strikes law
covers gang-enhanced felonies. Or to rephrase it, typically a true
finding on a gang enhancement will establish the underlying
felony is a strike. But Henderson claims insufficient evidence
shows his conviction qualifies as a strike, and therefore his strike
sentence is unlawful, due to the changes wrought by Renteria and
AB 333.
Specifically, Henderson argues no evidence showed, and he
did not admit, that he vandalized in 2015 for a gang’s benefit and
that he had the necessary intent, as required by Renteria for lone
actor cases like his. (See Renteria, supra, 13 Cal.5th at p. 973.)
In other words, the admissions and record before the court did
not establish the conviction Henderson admitted constitutes a
violation of section 186.22, subdivision (b), as revised by AB 333
and interpreted by Renteria. Henderson’s strike sentence is thus
the result of improper judicial factfinding. (See generally People
v Gallardo (2017) 4 Cal.5th 120; see also People v. Hiller (2023)
91 Cal.App.5th 335, 345 (Hiller) [“Where the prior conviction is
based on a guilty plea, the prosecution must prove the defendant
admitted all elements” of the offense].)
15
Henderson maintains current law governs determinations
of whether prior convictions constitute strikes. He relies on
People v. Strike (2020) 45 Cal.App.5th 143 (Strike), where the
appellate court reversed a prior strike finding after concluding
the defendant’s admissions did not establish the offense of gang
participation as narrowed by another Supreme Court case, People
v. Rodriguez (2012) 55 Cal.4th 1125 (Rodriguez). (See Strike, at
pp. 146–150, 153–154; accord People v. Farias (2023) 92
Cal.App.5th 619, 648 & 652, review granted Sept. 27, 2023,
S281027 (Farias) [“Though the record establishes defendant’s
2009 conviction for gang participation, the documents provided
do not prove that the conviction constitutes a violation of section
186.22, subdivision (a), as interpreted in Rodriguez”]; Watts,
supra, 131 Cal.App.4th at pp. 596–597 [vacating defendant’s
sentence and remanding for further proceedings where the
appellate court could not determine from the record whether the
defendant’s prior conviction qualified as a strike after a recent
Supreme Court decision clarified the law on gang offenses].)
Rodriguez narrowed the scope of the gang participation
offense (186.22, subd. (a)) by interpreting the statute to exclude
lone actor cases. (Rodriguez, supra, 55 Cal.4th at pp. 1128 &
1138–1139.) The result of both Rodriguez’s and Renteria’s
narrowing of the gang statute is that certain convictions
predating these decisions are inconclusive on their face as to
whether they qualify as a strike. (See Strike, supra, 45
Cal.App.5th at p. 150.)
The prosecution’s answer to this argument is Henderson
admitted his prior conviction qualified as a strike, and he is
bound by this admission. This mischaracterizes Henderson’s
admissions, which we outlined above. Henderson did not admit
16
his prior conviction was a strike or a qualifying conviction under
the Three Strikes law. (Cf. People v. Scott (2023) 91 Cal.App.5th
1176, 1181, review granted Sept. 27, 2023, S280776 (Scott)
[defendant “specifically said, ‘I admit the strike prior’ ”].)
The parties point to cases that reach different conclusions
about whether a true finding that a prior gang offense qualifies
as a strike requires proof of the additional elements required by
AB 333. (Compare Farias, supra, 92 Cal.App.5th at pp. 650–652,
review granted Sept. 27, 2023, S281027, with Scott, supra, 91
Cal.App.5th at pp. 1180–1184, review granted Sept. 27, 2023,
S280776.) The Supreme Court has taken up the issue in People
v. Fletcher (2023) 92 Cal.App.5th 1374, review granted Sept. 27,
2023, S281282. But that issue is not dispositive here, where
Henderson also points to an intervening judicial clarification of
the law on gang enhancements. (See Scott, supra, at pp. 1183–
1184 [Strike and Watts not controlling “because they dealt with
changes in the judicial interpretation of a statute, rather than
amendments to the statute itself”; while judicial decisions
operate retrospectively to say what a law always meant,
statutory amendments do not].)
The prosecution argues Henderson forfeited some of his
claims regarding the strike. Henderson’s counsel challenged the
validity of his prior conviction at the outset of trial, and the trial
court quickly batted down this challenge. Although Henderson
did not re-urge this challenge after trial, he did not forfeit this
claim. (See Hiller, supra, 91 Cal.App.5th at pp. 344–345.)
Strike and Watts dictate the result here. The strike finding
and Henderson’s sentence—which accounts for this finding—
cannot stand. We therefore reverse this finding and remand this
matter for a new determination of whether Henderson’s 2015
17
gang-related vandalism conviction amounts to a strike, applying
the current law on section 186.22 gang enhancements. The trial
court then must resentence Henderson. Rehearing the prior
conviction allegation may change the sentencing calculus.
We do not reach Henderson’s other attacks on the strike
finding and on his sentence.
DISPOSITION
We reverse the trial court’s finding on the prior conviction
allegation, vacate Henderson’s sentence, and remand this matter
for further proceedings consistent with this opinion. We
otherwise affirm the judgment.
WILEY, J.
We concur:
STRATTON, P. J.
VIRAMONTES, J.
18