Filed 3/4/22 P. v. Henderson CA4/1
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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. RIF1201399)
CALEB MARQUAN HENDERSON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Riverside County,
John D. Molloy, Judge. Reversed and remanded with directions.
Nancy Olsen, by appointment of the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra and Rob Bonta, Attorneys 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 (Stats. 2018, ch.1015) (Senate Bill
1437) to have two attempted murder convictions vacated. The superior court
concluded Henderson was ineligible for relief because his convictions are not
for felony murder. Henderson appealed, contending section 1170.95 applied
to his convictions for attempted murder. We affirmed the denial of the
petition, relying on a body of case law that held section 1170.95 and Senate
Bill 1437 did not apply to cases such as Henderson’s. (People v. Henderson
(Nov. 13, 2020, D076878) [nonpub. opn.].)
Henderson petitioned for review, and the Supreme Court granted
review and transferred the case to this court to reconsider in light of the
newly enacted Senate Bill No. 775 (Stats. 2021, ch. 551) (Senate Bill 775),
which became effective January 1, 2022.
Having now reconsidered the case, we will reverse the order denying
the petition for resentencing and remand the matter to the superior court
with directions to hold proceedings consistent with section 1170.95,
subdivision (c).
FACTUAL AND PROCEDURAL BACKGROUND
The facts of the underlying matter are not relevant to the legal issue
before us. They can be found in Henderson’s direct appeal, People v. Daquan
Rashad Branch, et al. (May 8, 2015, D067450) [nonpub. opn.] (Branch):2
At Henderson’s 2013 trial, the jury was presented with instructions
regarding Henderson’s liability as a direct aider and abettor. There were no
1 Further section references are to the Penal Code.
2 We grant defendant’s request for judicial notice.
2
instructions regarding the natural and probable consequences theory. In
closing argument, the prosecutor argued a theory of aiding and abetting.
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, but found that he did not personally and intentionally
discharge a firearm. (§§ 186.22, subd. (b) & 12022.53, subds. (d), (e)(1).) It
also found not true that Henderson’s attempted murders were willful,
deliberate, and premeditated.
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)
39 Cal.App.5th 738, review granted November 26, 2019, S258234 (Munoz),
3
cases which were subsequently transferred to the Courts of Appeal with
directions to vacate3 and which each concluded Senate Bill 1437 does not
apply to the offense of attempted murder.
Henderson timely appealed, and this court affirmed the denial of the
petition, relying on a body of case law that held section 1170.95 and Senate
Bill 1437 did not apply to cases such as Henderson’s. (People v. Henderson,
supra, D076878.)
Henderson petitioned for review, and the Supreme Court granted the
petition, then it transferred the case to this court to reconsider in light of the
newly enacted Senate Bill 775, which became effective January 1, 2022. We
requested and received supplemental briefs on the impact of Senate Bill 775
on this case.
DISCUSSION
A. Legal Principles
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).)
Senate Bill 1437 addressed aspects of felony murder and the natural
and probable consequences doctrine, “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 .) Senate Bill 1437 also amended section 189 by adding
subdivision (e), which states that a participant in the target felony who did
3 Lopez and Munoz have been rendered “depublished” or “unciteable.”
(See Cal. Rules of Court, rule 8.1115(e)(3).)
4
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.)
Section 1170.95, subdivision (c) provides: “Within 60 days after
service of a petition that meets the requirements set forth in
subdivision (b), the prosecutor shall file and serve a response. The
petitioner may file and serve a reply within 30 days after the prosecutor’s
response is served. These deadlines shall be extended for good cause.
After the parties have had an opportunity to submit briefings, the court
shall hold a hearing to determine whether the petitioner has made a
prima facie case for relief. If the petitioner makes a prima facie showing
that the petitioner is entitled to relief, the court shall issue an order to
show cause. If the court declines to make an order to show cause, it shall
provide a statement fully setting forth its reasons for doing so.”
When a trial court reviews a petition for resentencing, the court first
determines if the petitioner has shown a prima facie case for relief under
the statute. If so, the court must issue an OSC and hold an evidentiary
hearing on the petition. (People v. Lewis (2021) 11 Cal.5th 952, 962.)
However, the court may deny the petition if the person is ineligible as a
matter of law. (People v. Drayton (2020) 47 Cal.App.5th 965, 980-981.)
The court may review the record of conviction, including any prior
appellate opinion, to determine if the petitioner’s allegations are rebutted
5
by the record. (Lewis, at p. 972.) However, the court may not engage in
factfinding and weighing credibility at the prima facie stage of petition
review. (Drayton, at pp. 979-980.)
Prior to the enactment of Senate Bill 775, courts were divided over the
question of whether a person convicted of attempted murder was eligible for
resentencing under Senate Bill 1437 and section 1170.95. (People v. Alaybue
(2020) 51 Cal.App.5th 207, 222.) Senate Bill 775 addresses this conflict. The
Legislature’s stated purpose, in part, in enacting Senate Bill 775 was to
clarify that “that persons who were convicted of attempted murder or
manslaughter under a theory of felony murder and the natural probable
consequences doctrine are permitted the same relief as those persons
convicted of murder under the same theories.” (Stats. 2021, ch. 551, § 1.)
B. Analysis
In their supplemental briefs, the parties recognize that in light of
Senate Bill 775, the potential for resentencing under section 1170.95 applies
to certain individuals convicted of attempted murder. However, the Attorney
General argues remand is not appropriate here because Henderson was
convicted of attempted murder under a still-valid theory of direct aiding and
abetting, not the natural and probable consequences doctrine, rendering him
ineligible for resentencing under section 1170.95.
The trial court did not consider the theory under which Henderson was
convicted of attempted murder. The People did not argue before the trial
court that Henderson failed to meet his prima facie burden because he was
not found guilty under a still-valid theory; it argued that the petition did not
meet the prima facie requirements because Henderson was not convicted of
6
murder.4 The court based its denial of the petition on Henderson’s conviction
for attempted murder and not murder. It did not address the theory of
liability.
Senate Bill 775 has clarified that denying a petition based on a
conviction for attempted murder is no longer a correct reason to deny a
section 1170.95 petition. But Henderson has not had an opportunity to
demonstrate he can meet his prima facie burden based on the theory of
conviction. Henderson must have an opportunity to make a prima facie
showing that his conviction for attempted murder falls within the provisions
of section 1170.95. Accordingly, we will reverse the trial court’s order
denying the petition and remand the matter to the trial court with
instructions to conduct further proceedings to determine if a prima facie case
for relief has been shown, as required by the statute. (See § 1170.95,
subds. (c), (d)(1) & (3).)
DISPOSITION
The order denying Henderson’s petition for resentencing under
section 1170.95 is reversed. The matter is remanded to the superior court
with directions to conduct further proceedings consistent with the views
4 The People also challenged the constitutionality of Senate Bill 1437.
7
expressed in this opinion. We express no opinion regarding the appropriate
outcome.
HUFFMAN, Acting P. J.
WE CONCUR:
IRION, J.
DO, J.
8