People v. Henley

Filed 12/5/22
CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D079001

Plaintiff and Respondent,

v. (Super. Ct. No. CR127760)

HEATHER LEATRICE HENLEY,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County,
David M. Gill, Judge. Reversed; remanded with directions.
Pauline E. Villanueva, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Robin
Urbanski and Meredith S. White, Deputy Attorneys General, for Plaintiff and
Respondent.
In 1992, a jury convicted Heather Leatrice Henley of murder (Pen.

Code, 1 § 187, subd. (a); count 1); two counts of robbery (§ 211; counts 2
and 3); and assault with a firearm (§ 245, subd. (a)(2); count 4). However, the

1 Statutory references are to the Penal Code unless otherwise specified.
jury found not true the allegation that Henley personally used a firearm
(§ 12022.5, subd. (a)) in connection with counts 1 through 3. The court
sentenced Henley to prison for 25 years to life on count 1 plus an additional
term of six years for counts 2 through 4. Henley appealed, and we affirmed
the judgment. (See People v. Henley (Jan. 26, 1994, D016818) [nonpub.
opn.].)

In 2019, Henley filed a petition for resentencing under section 1172.6 2
as to her murder conviction. The superior court appointed counsel,
determined that Henley had made the requisite prima facie showing under
the statute, and issued an order to show cause. The parties agreed that
Henley’s original murder conviction was premised on a felony murder theory
and that her eligibility for section 1172.6 relief was contingent on whether
the evidence showed she was a major participant in the robbery who acted
with reckless indifference to human life. After holding an evidentiary

hearing in 2021, 3 the superior court found that Henley was not entitled to
relief because the prosecution proved beyond a reasonable doubt that she was
a major participant who acted with reckless indifference to human life.
Henley appeals, contending the court improperly found that she
personally used a firearm in contradiction to the not-true finding of the jury
during her 1992 trial. She also argues that substantial evidence does not

2 Henley brought her motion under former section 1170.95, which was
renumbered as section 1172.6 without substantive change on June 30, 2022.
(See Stats. 2022, ch. 58 (Assem. Bill No. 200) § 10, eff. June 30, 2022.) As
such, we refer to the subject statute by its current number throughout this
opinion.

3 The superior court stayed Henley’s petition while the appellate courts
determined the constitutionality of section 1172.6. Thus, the evidentiary
hearing on Henley’s petition for resentencing occurred over two years after
she filed her initial petition.
2
support the court’s finding that she was not entitled to relief. We agree that
the court prejudicially erred in finding that Henley personally used a firearm
during the robbery. As such, we reverse the court’s order denying Henley’s
petition under section 1172.6. However, we do not agree with Henley that
the court’s findings were not supported by substantial evidence. As such, we
remand this matter back to the superior court to hold another section 1172.6
evidentiary hearing consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
In the superior court’s order denying Henley’s petition, it referenced
our recital of the facts in People v. Henley, supra, D016818 as “reasonable,
fair, and accurate.” Thus, we repeat those facts from our previous opinion to
provide context. However, we use first names of various third parties to
protect their privacy.
“FACTS
“On August 30, 1991, shortly after the midnight closing of the drive-up
window at the Taco Bell at 5070 Federal Boulevard in San Diego, assistant
manager Lourdes A[.] was cleaning the restaurant with employee Santos N[.]
The interior portion of the restaurant had been closed since 11 p.m.
[Lourdes] heard knocking on the rear door and told the woman who knocked
that they were closed when she requested napkins. About five minutes later
Henley knocked at the front door and [Lourdes] waved her away saying they
were closed.
“At about the same time, Irma S[.], [Santos’s] cousin, was in her pickup
truck outside the restaurant waiting to give him a ride. [Irma] watched as
Henley and two men walked from the rear of the Taco Bell to the entrance of
the driveway. After a few minutes Henley walked up to [Irma’s] pickup and
asked her for a light for her cigarette. [Irma] said she did not have a light,

3
and Henley returned to the front of the restaurant where she stood talking to
the others. Sanchez could see [Lourdes] and [Santos] inside the restaurant.
“Five to ten minutes later, [Irma] heard the rear door open as [Santos]
took out the trash cans. Henley and the others hurried to the back and forced
their way into the restaurant, pushing [Santos] back inside. All of the

assailants had guns.[ 4] The assailants disabled the telephones in the
restaurant.
“Henley was the first one to grab [Lourdes]. She asked [Lourdes] to
show them where the safety deposit was located. Henley pointed her gun at
[Lourdes] and ordered her to kneel on the floor, taking off [Lourdes’s] glasses

and removing her jewelry and watch.[ 5] One of the men took [Lourdes’s]
purse from the office area and handed it to Henley who took $300 from it.
During this time [Santos] was lying on the floor. He told the assailants not to
hurt [Lourdes].
“Henley told [Lourdes] that if she did not give them the money they
would kill her and [Santos]. One of the assailants, later identified as Calvin
Cooper, put a gun in [Lourdes’s] mouth and told her to show him where the
money or the safety deposit was or he would blow off her head. While

[Calvin 6] moved [Lourdes] toward the front part of the store, Henley and
another assailant opened the cash registers looking for money. All of the

4 This factual recital appears to be in conflict with the jury’s findings.

5 Evidence that Henley used a gun was offered as part of the
prosecution’s case in chief. However, as discussed ante, the jury found not
true the personal use allegation against Henley.

6 We refer to Calvin Cooper by his first name to avoid confusion with
another individual who shares the surname Cooper in an opinion we discuss
post.
4
restaurant money had already been put in the safety box, which [Lourdes]
could not open. [Calvin] then took [Lourdes] back toward the rear of the
restaurant, and while he was doing so [Lourdes] heard a gun shot. When she
heard the shot, [Lourdes] was looking down, standing next to where [Santos]
lay. Henley and the others left after the shooting.
“[Calvin] had [Lourdes] kneel next to [Santos]. [Lourdes] saw [Santos]
was dead; she saw he had been shot in the back of the head. Before he left,
[Calvin] told [Lourdes] not to call the police or he would come back and shoot
her. [Lourdes] waited five to ten minutes then opened the back door to get
help. As she opened the door to her left, [Lourdes] saw [Calvin] who pulled
out his gun and shot at [Lourdes], hitting her in the arm and seriously
wounding her. After waiting a few more minutes inside the restaurant,
[Lourdes] went outside again and flagged down [Irma] who had seen the
robbers inside and was returning to the Taco Bell after trying to call for help
from a nearby location.
“[Irma] knew that [Santos] always had his wallet with him and he
carried it in his front pocket when wearing his uniform pants. [Irma] also
knew [Santos] had about $150 in his wallet when he went to work that night.
His wallet was never recovered.
“Henley’s fingerprints were on [Lourdes’s] eyeglasses found at the
scene. [Santos] had died from the gunshot wound to the back of his head
inflicted from a distance of about one foot.
“Henley’s defense was that she had been drinking Thunderbird wine
with the group and was driven to the Taco Bell restaurant. She knocked on
the front door and asked for the time. Henley denied knowing there was
going to be a robbery, [and that] she took off [Lourdes’s] glasses, asked for her
jewelry, had a gun, and other details of the crimes.”

5
 The 2021 Evidentiary Hearing
The prosecution presented three exhibits to the superior court in
support of its opposition to Henley’s petition. The first contained minutes
and motions that were part of the 1992 trial record; the second consisted of
the entire trial transcript; and the third was this court’s opinion in People v.
Henley, supra, D016818. The prosecutor explained to the court that the
second exhibit was “the most significant . . . because that is the record upon
which the evidence is coming to support that the petitioner is a major
participant and acted with reckless indifference to human life.”
During her initial argument, the prosecutor focused entirely on the
trial transcripts in making her contentions. She emphasized Henley’s direct
involvement in the robberies, pointing out that Henley threatened to kill both
the victims. The prosecutor asserted that the evidence showed that Henley
was a major participant who acted with reckless indifference to human life
under the factors in People v. Banks (2015) 61 Cal.4th 788 (Banks) and
People v. Clark (2016) 63 Cal.4th 522 (Clark). In doing so, the prosecutor
admitted that the jury did not find that Henley personally used a firearm but
argued that finding did not “necessarily mean she wasn’t armed with

something.” 7 Indeed, the prosecutor maintained “there [was] no
question . . . that [Henley] and her cohorts were armed, and not only were
they armed, they were armed with a loaded gun ready and available to use.
There’s no question about that.” The prosecutor also pointed out that
Lourdes testified that she “believed” Henley had a gun. When questioned by
the court, the prosecutor stated it was her position that Henley had a gun
during the robbery. However, the prosecutor acknowledged that the getaway

7 The prosecutor never argued that Henley was armed with anything but
a gun.
6
driver claimed that she did not see Henley with a gun, and the prosecutor
admitted that she did not have any evidence to refute that testimony.
Nevertheless, the prosecutor subsequently reiterated that Lourdes believed
that Henley had a gun. And, when specifically arguing that Henley exhibited
a reckless indifference to human life, she noted all three perpetrators worked
in unison: “And this is significant, all three got out at the same time.
They’re out and they’re out with their loaded weapons.”
After the prosecutor argued that Henley was not eligible for relief
under section 1172.6, defense counsel called Henley as a witness at the
evidentiary hearing. Henley admitted that she had lied in her prior
testimony during trial because she was scared. She testified that the first
time she met Calvin was on the night of the shooting, about two and a half
hours before the robbery. She was aware that Calvin and the other

perpetrator (S.S.) 8 planned to commit a robbery on the night in question.
Moreover, Henley admitted she accompanied them because she wanted
money, but she denied knowing that violence would be involved or that
Calvin or S.S. had been violent in the past. Rather, she emphasized that her
focus was on obtaining some money.
On the night of the robbery, Henley learned that Calvin and S.S.
planned to rob the Taco Bell when Calvin sent her to knock on the door and
ask for a napkin. The Taco Bell was not the original place for the robbery,
but Calvin and S.S. could not find the place they had planned to rob.
When the three of them entered the Taco Bell, Henley was in the back
of the store with Santos. However, Calvin told her to get Lourdes’s jewelry
and then check the cash registers. Henley stated Calvin’s demeanor had

8 The People represent this third individual was a minor at the time the
crimes were committed. As such, they refer to him by his initials “S.S.” in the
respondent’s brief. We do so too in this opinion.
7
changed by that point, and she was afraid of him. Calvin had a gun pointed
at Lourdes, and Henley admitted that she told Lourdes to give her Lourdes’s
jewelry because Calvin was “flipping” and would kill Lourdes if she did not do
so. Henley then took Lourdes’s jewelry and glasses.
Henley was attempting to open the cash registers in the front of the
restaurant when Santos was shot. She testified that she looked back and saw
Calvin standing over Santos with a gun but denied seeing the shooting when
it occurred. She claimed that she did not know Calvin was going to shoot
Santos. She also admitted that she did not do anything to help Santos before
or after he was shot. Instead, as soon as she heard the gunshots, she and
S.S. ran. Henley testified that she did not believe there was anything she
could do to help Santos after she saw the bullet wound in his head.
Henley admitted she was aware Calvin had a gun on the subject night.
She denied handling the gun herself or having a gun during the robbery. She
knew S.S. had a “dummy gun” without a functional trigger.
During cross-examination, Henley admitted she was aware that S.S.
had been involved with burglaries and robberies, which is how he knew
Calvin. Nevertheless, she stated she did not know Calvin or S.S. were violent
or that a robbery could involve violence. In addition, Henley stated that she
had given money to her boyfriend, which he used to buy a gun and give that
gun to S.S. Yet, she emphasized that she never handled that gun as well.
Additionally, Henley admitted that she told the parole board that
Santos died because she had brought the gun, but she explained that her
statement was to admit guilt to the board. She clarified that she felt
“responsible because [her] boyfriend gave them a gun.”
The prosecutor did not ask Henley if she had a gun during the robbery.
Nonetheless, Henley claimed that she did not have a gun pointed at Lourdes

8
in response to another question, and the prosecutor moved to strike Henley’s

testimony as unresponsive. 9 The prosecutor also pointed out areas in which
Henley’s testimony at the evidentiary hearing differed from her testimony at
trial.
After Henley’s testimony concluded and the court allowed the parties to
further argue the petition, the court stated that it would read the trial
transcripts and then provide a written ruling. In that written ruling, the
court denied the petition, explaining that it found, beyond a reasonable doubt
that Henley “was a major participant in the underlying felony of robbery” and
“acted with reckless indifference to human life.” In clarifying its ruling, the
court based its conclusion on its finding that Henley was “[a]rmed with a
firearm” and “threatened the two employees with immediate death, which
threat was forcefully repeated by [Calvin] as [Calvin] thrust a firearm into
the mouth of one of the employees.” The court acknowledged that the jury
found that Henley did not personally use a firearm, but explicitly stated:
“This Court finds she was armed with a firearm, which she displayed in a
threatening manner. She was personally armed with a firearm, knew
[Calvin] was armed, heard his threats of immediate death after he thrusts
his weapon into the mount of one of the employees . . . .”
Henley timely appealed.
DISCUSSION
A. General Legal Background
On September 30, 2018, the Governor signed Senate Bill No. 1437
(Senate Bill 1437). “The legislation, which became effective on January 1,
2019, addresses certain aspects of California law regarding felony murder
and the natural and probable consequences doctrine by amending Penal Code

9 The court struck the testimony as unresponsive.
9
sections 188 and 189, as well as by adding Penal Code section [1172.6], which
provides a procedure by which those convicted of murder can seek retroactive
relief if the changes in law would affect their previously sustained
convictions.” (People v. Martinez (2019) 31 Cal.App.5th 719, 722; see
People v. Gentile (2020) 10 Cal.5th 830, 842-843.)
Section 1172.6, 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.”
Moreover, section 1172.6, subdivision (d)(3) sets forth the burden of
proof and the evidentiary rules to be followed by the court if the court grants
an OSC and holds an evidentiary hearing:
“At the hearing to determine whether the petitioner is
entitled to relief, the burden of proof shall be on the
prosecution to prove, beyond a reasonable doubt, that the
petitioner is guilty of murder or attempted murder under
California law as amended by the changes to Section 188
or 189 made effective January 1, 2019. The admission of
evidence in the hearing shall be governed by the Evidence
Code, except that the court may consider evidence
previously admitted at any prior hearing or trial that is
admissible under current law, including witness testimony,
stipulated evidence, and matters judicially noticed. The
court may also consider the procedural history of the case

10
 recited in any prior appellate opinion. However, hearsay
evidence that was admitted in a preliminary hearing
pursuant to subdivision (b) of Section 872 shall be excluded
from the hearing as hearsay, unless the evidence is
admissible pursuant to another exception to the hearsay
rule. The prosecutor and the petitioner may also offer new
or additional evidence to meet their respective burdens. A
finding that there is substantial evidence to support a
conviction for murder, attempted murder, or manslaughter
is insufficient 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.”

Here, the court issued an OSC and held an evidentiary hearing. At
that hearing, the court determined that the People carried their burden to
prove that Henley was guilty of murder beyond a reasonable doubt under the
applicable changes in the law.
It is undisputed that Henley was not the actual killer in the instant
action. Instead, she was convicted under the natural and probable causes
doctrine or the felony murder rule. Senate Bill 1437 changed the law as to
what needed to be proven to convict a defendant under felony murder. The
parties agree that the essential question before the superior court during the
section 1172.6 evidentiary hearing was whether Henley was a major
participant in the underlying robbery who acted with reckless indifference to
human life. (See § 189, subd. (e)(3).) Accordingly, we briefly discuss the
current status of the felony murder rule in California.
The United States Supreme Court has addressed the degree of conduct
and mental state required to impose the death penalty on non-killers
convicted of murder under a felony murder theory. Enmund v. Florida (1982)
458 U.S. 782 (Enmund) and Tison v. Arizona (1987) 481 U.S. 137 (Tison),

11
“collectively place conduct on a spectrum, with felony-murder participants
eligible for death only when their involvement is substantial and they
demonstrate a reckless indifference to the grave risk of death created by their
actions.” (Banks, supra, 61 Cal.4th at p. 794.)
Enmund lies at one end of the spectrum. Although the defendant in
that case identified a robbery victim, drove armed confederates to the victim’s
house, acted as a getaway driver, and helped dispose of the weapons, the
court determined him ineligible for the death penalty because he did “ ‘not
himself kill, attempt to kill, or intend that a killing take place or that lethal
force will be employed.’ ” (Banks, supra, 61 Cal.4th at p. 799, quoting
Enmund, supra, 458 U.S. at p. 797.)
Tison lies at the other end of the spectrum. There, the Supreme Court
considered whether the death penalty could be imposed on two brothers who
broke their father and his cellmate out of prison using numerous weapons
and then, in their ensuing escape, carjacked and robbed a family that their
cohorts ultimately killed. (See Tison, supra, 481 U.S. at pp. 138-142.) The
court concluded that the brothers constitutionally could be subject to the
death penalty because their “major participation in the felony committed,
combined with reckless indifference to human life, is sufficient to satisfy the
Enmund culpability requirement.” (Id. at p. 158.)
Tison’s holding was directly incorporated into section 190.2,
subdivision (d), which governs special circumstance murder and was
integrated into section 189, subdivision (e)(3) by Senate Bill 1437.
Accordingly, “the standard under section 189, subdivision (e)(3) for
holding . . . a defendant [who was not the actual killer] liable for felony
murder is the same as the standard for finding a special circumstance under

12
section 190.2(d), as the former provision expressly incorporates the latter.”
(In re Taylor (2019) 34 Cal.App.5th 543, 561.)
Our high court has clarified that Enmund and Tison “establish that a
defendant’s personal involvement [in the crimes] must be substantial, greater
than the actions of an ordinary aider and abettor to an ordinary felony
murder such as Earl Enmund.” (Banks, supra, 61 Cal.4th at p. 802.) That is,
he or she must have been a “major participant” in the crime, under the
totality of the circumstances. (Id. at p. 803.) In Banks, the court identified
several considerations relevant to the major participant inquiry: “What role
did the defendant have in planning the criminal enterprise that led to one or
more deaths? What role did the defendant have in supplying or using lethal
weapons? What awareness did the defendant have of particular dangers
posed by the nature of the crime, weapons used, or past experience or conduct
of other participants? Was the defendant present at the scene of the killing,
in a position to facilitate or prevent the actual murder, and did his or her own
actions or inaction play a particular role in the death? What did the
defendant do after lethal force was used?” (Id. at p. 803.) “No one of these
considerations is necessary, nor is any one of them necessarily sufficient. All
may be weighed in determining the ultimate question, whether the
defendant’s participation ‘in criminal activities known to carry a grave risk of
death’ [citation] was sufficiently significant to be considered ‘major.’ ” (Ibid.)
To determine whether a defendant acted with reckless indifference to
human life, we “look to whether a defendant has ‘ “knowingly engag[ed] in
criminal activities known to carry a grave risk of death.” ’ [Citations.]”
(Banks, supra, 61 Cal.4th at p. 801.) “The defendant must be aware of and
willingly involved in the violent manner in which a particular offense is
committed, demonstrating reckless indifference to the significant risk of

13
death his or her actions create.” (Ibid.) A defendant’s degree of participation
in the crime also can affect the reckless indifference inquiry; “the greater the
defendant’s participation in the felony murder, the more likely that he [or
she] acted with reckless indifference to human life.” (Tison, supra, 481 U.S.
at p. 153.) Although “there are some felonies as to which one could properly
conclude that any major participant necessarily exhibits reckless indifference
to the value of human life,” such as “ ‘the manufacture and planting of a live
bomb,’ ” armed robbery is not among them. (Clark, supra, 63 Cal.4th at
p. 615, quoting Banks, supra, 61 Cal.4th at p. 810, fn. 9.)
In Clark, supra, 63 Cal.4th at pages 618 through 622, the California
Supreme Court established a five-factor test for whether a defendant acted
with reckless indifference to human life. As with the factors relevant to
major participation, no one factor is necessary, nor is any necessarily
sufficient. The first factor is the defendant’s knowledge of weapons, and use
and number of weapons. (Id. at p. 618.) “The mere fact of a defendant’s
awareness that a gun will be used in the felony is not sufficient to establish
reckless indifference to human life.” (Ibid.) However, it may be “significant”
if a defendant personally uses a weapon during the crime. (Ibid.) The second
factor is whether the defendant was physically present at the crime scene and
whether he or she had opportunities to limit the crime or aid the victim(s).
(Id. at p. 619.) A defendant’s presence may be particularly significant where
“the murder is a culmination or a foreseeable result of several intermediate
steps, or where the participant who personally commits the murder exhibits
behavior tending to suggest a willingness to use lethal force.” (Ibid.) The
third factor is the duration of the felony; crimes of longer duration present
greater risk of violence and therefore evince more reckless indifference. (Id.
at p. 620.) “Where a victim is held at gunpoint, kidnapped, or otherwise

14
restrained in the presence of perpetrators for prolonged periods, ‘there is a
greater window of opportunity for violence’ [citation], possibly culminating in
murder.” (Ibid.) The fourth factor is the defendant’s knowledge of his or her
coparticipants’ likelihood of killing. (Id. at p. 621.) A defendant who knows a
coparticipant previously has used lethal force is more culpable than one
unaware of a coparticipant’s propensity for violence. (Ibid.) The fifth factor
is whether the defendant made any efforts to minimize the risk of violence.
(Ibid.) Such efforts may include planning the crime to occur at a time or
location where bystanders are unlikely to be present, or using unloaded or
minimally loaded firearms. (See id. at pp. 621-622.)
Both the “magnitude of the objective risk of lethal violence and a
defendant’s subjective awareness of that risk” are relevant to the reckless
indifference inquiry. (Clark, supra, 63 Cal.4th at p. 623.) “Awareness of no
more than the foreseeable risk of death inherent in any [violent felony] is
insufficient” to demonstrate reckless indifference to human life. Instead,
“knowingly creating a ‘grave risk of death’ ” is necessary to establish the
requisite mindset. (Banks, supra, 61 Cal.4th at p. 808.) “ ‘[T]he fact a
participant [or planner of] an armed robbery could anticipate lethal force
might be used’ is not sufficient to establish reckless indifference to human
life.” (In re Scoggins (2020) 9 Cal.5th 667, 677, quoting Banks, at p. 808.)
“The defendant must be aware of and willingly involved in the violent
manner in which the particular offense is committed,” and must then
consciously disregard “the significant risk of death his or her actions create.”
(Banks, at p. 801.)

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 B. Henley’s Petition for Resentencing
1. Henley’s Contentions
Under section 1172.6, subdivision (d)(3), the superior court acts as an
independent fact finder and determines whether the People have met their
burden in proving the defendant guilty of murder under the revised felony
murder law. (See People v. Ramirez (2021) 71 Cal.App.5th 970, 984
(Ramirez); § 1172.6, subd. (d)(3).) Below, the superior court found that
Henley was a major participant who acted with reckless indifference to
human life under the Banks/Clark factors. Henley claims the court’s finding
is not supported by substantial evidence. In addition, she claims the trial
court prejudicially erred in finding that she used a gun during the robbery in
contradiction to the jury’s not true finding that she personally used a firearm.
2. Standard of Review
A trial court’s factual findings at a section 1172.6, subdivision (d)(3),
hearing are reviewed for substantial evidence. (Ramirez, supra, 71
Cal.App.5th at p. 985; People v. Bascomb (2020) 55 Cal.App.5th 1077, 1087.)
Under this standard, the record is reviewed “ ‘ “in the light most favorable to
the judgment” ’ ” and a reviewing court decides “ ‘ “whether it discloses
substantial evidence . . . such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.” ’ ” (Bascomb, at p. 1087.) “[W]e
look to whether the prosecution has introduced sufficient evidence of

16
‘ “ ‘reasonable, credible, and of solid value to support a finding beyond a
reasonable doubt’ ” ’ ” that petitioner was guilty. (Clark, supra, 63 Cal.4th at
p. 618.)
3. Analysis
Here, Henley contends the superior court’s conclusions were based
primarily on two findings. First, the court found that Henley was personally
armed with a firearm during the robbery. Second, Henley verbally
threatened to kill Lourdes, and Calvin made the same threat and placed the
gun in her mouth. As to the first finding, Henley maintains the jury’s “not
true” finding of the allegation that she personally used a firearm barred the
court from reaching the opposite conclusion at the evidentiary hearing. To
this end, she asserts that res judicata and collateral estoppel prohibit any
relitigation of the factual issue whether she was armed. In addition, after
filing her opening brief, Henley submitted notice of new authority that she
claims is pertinent to this argument, People v. Cooper (2022) 77 Cal.App.5th

393 (Cooper). 10
In questioning the superior court’s factual finding that she used a
firearm during the robbery, Henley is primarily challenging the preclusive
effect of the jury’s not-true finding on that same factual dispute, which is an
issue of law we independently review. (See People v. Arroyo (2016) 62 Cal.4th
589, 593; Cooper, supra, 77 Cal.App.5th at p. 412; People v. Esmaili (2013)
213 Cal.App.4th 1449, 1462.)
Cooper involved a defendant and two codefendants who participated in
a kidnapping that resulted in the death of the victim. (Cooper, supra, 77

10 The defendant, Aaron Cooper, in Cooper, supra, 77 Cal.App.5th 393 is
not the same Cooper as the one who was involved with Henley on the night in
question here.
17
Cal.App.5th at p. 397.) An autopsy revealed that the victim died of a gunshot
wound to the head (id. at p. 400); however, it was unclear which defendant
had fired the fatal shot. “The jury convicted [Cooper] of one count of first
degree murder and one count of kidnapping and found true that a principal
was armed with a firearm during both offenses. But Cooper—who was
stipulated to be a convicted felon—was acquitted of a charge of being a felon
in possession of a firearm.” (Id. at p. 399, fn. omitted.) The superior court
denied Cooper’s section 1172.6 petition for resentencing, “finding beyond a
reasonable doubt that Cooper was a major participant in the kidnapping who
acted with reckless indifference to human life. In reaching this conclusion,
the court made numerous statements to the effect that Cooper possessed and
fired a gun on the day in question.” (Cooper, at p. 408, fn. omitted.) The
appellate court reversed, concluding “that a trial court cannot deny relief in a
section [1172.6] proceeding based on findings that are inconsistent with a
previous acquittal when no evidence other than that introduced at trial is
presented.” (Id. at p. 398.) Based on the jury’s finding that Cooper had not
been in possession of a firearm at the time of the kidnapping, the appellate
court found that “any evidence he possessed or used a gun should not have
played a role in the [superior] court’s analysis.” (Id. at p. 412.)
The appellate court reached its conclusion relying on “the analogous
context of petitions for resentencing under the Three Strikes Reform Act of

2012 (Proposition 36 or the Act).” 11 (Cooper, supra, 77 Cal.App.5th at
p. 413.) In doing so, the court cited, with approval, Arevalo, supra, 244

11 Proposition 36 reduced “the punishment for some third strike offenses
that are neither serious nor violent.” (People v. Arevalo (2016) 244
Cal.App.4th 836, 841 (Arevalo).) It also added section 1170.126, which
“create[d] a procedure by which some inmates already serving third strike
sentences [could] seek resentencing” to comport with the Act’s prospective
ameliorative effect. (Arevalo, at p. 841.)
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Cal.App.4th 836 and People v. Piper (2018) 25 Cal.App.5th 1007. Both of
those cases held that a superior court could not conclude that a defendant
was ineligible for resentencing under section 1170.126 by relying on factual
determinations about the defendant’s gun use that “turn[ed] acquittals and
not-true enhancement findings [at trial] into their opposites.” (Arevalo, at
p. 853; accord Piper, at p. 1015.) The appellate court in Cooper applied the
analysis in Arevalo and Piper to section 1172.6. (Cooper, at p. 415.)
However, the court noted a key difference between section 1172.6 and
section 1170.126 in that the former allows the prosecution to present new
evidence at a resentencing hearing while the latter does not. (Cooper, at
pp. 415-416.) Yet, the appellate court determined that this difference did not
affect its analysis of the issues before it “because the prosecution did not
introduce any new or additional evidence at the hearing, and the trial court’s
conclusion that Cooper was ineligible for relief was based on the same
evidence that the jury considered.” (Id. at p. 416.) As such, the court had “no
difficulty concluding” that, “in light of the evidence and arguments at trial,
Cooper’s acquittal of the firearm-possession count ‘constituted [a] finding[ ]
inconsistent with’ the trial court’s theory that was a major participant in the
kidnapping who acted with reckless indifference to human life.” (Id. at
pp. 416-417.)
The appellate court in Cooper explained that the jury had rejected the
prosecution’s argument that the evidence proved Cooper was armed.
Nonetheless, at the section 1172.6 evidentiary hearing, the superior court
considered the same evidence, found that Cooper did possess and fire a
firearm, and “explicitly relied on this finding to determine he was a major
participant.” (Cooper, supra, 77 Cal.App.5th at p. 417.) Consequently, the
appellate court determined that the superior court prejudicially erred and

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remanded the matter back to the superior court for a new hearing on whether
Cooper was entitled to relief. (Id. at p. 418.)
Here, the People do not claim Cooper, supra, 77 Cal.App.5th 393 was
wrongly decided. Rather, they maintain that Cooper is not instructive in the
instant action because new evidence was presented at the section 1172.6

evidentiary hearing, namely Henley’s testimony. 12 The People point out that
Henley’s testimony at the evidentiary hearing “differed significantly from her
trial testimony and from her statements to police during the initial
investigation.” Because the superior court heard this new evidence, the
People argue that it “necessarily had to make a credibility determination and
resolve conflicts in the evidence that the trial jury did not.” The People
further emphasize that the superior court concluded that both Henley’s trial
testimony and her testimony at the evidentiary hearing were “ ‘incredible,
self-serving, and unworthy of belief.’ ” Because the court found Henley’s
testimony not credible, the People argue the superior court was left with
Lourdes’s trial testimony that Henley was armed as well as the trial
testimony of the getaway driver that she “saw [Henley] get out of her car
carrying a small, ‘clutch’ bag that presumably carried a firearm.” In other
words, the People argue that by virtue of Henley testifying at the
section 1172.6 hearing and the superior court finding her unbelievable, the
court could then reconsider the trial evidence and reach the opposite factual
finding of the jury, which considered that same evidence. We believe the

12 To be clear, the prosecutor did not offer Henley’s testimony or any other
new evidence when it argued against the petition. In fact, the prosecutor
informed the court that the 1992 trial transcript was the “most significant”
exhibit before the court because it would provide the evidence to prove
Henley was a major participant in the robbery who “acted with reckless
indifference to human life.”
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People’s argument is inconsistent with the holding in Cooper, supra, 77
Cal.App.5th 393.
Here, the People do not point to any new evidence presented at the
section 1172.6 evidentiary hearing that addresses whether Henley used a
firearm during the robbery. True, Henley testified at the evidentiary hearing
and the superior court found her not credible (as it did her trial testimony).
But Henley did not offer any new testimony about using a firearm during the
robbery. Indeed, her testimony at trial and the evidentiary hearing was
consistent on this point: She steadfastly claimed she was not armed.
Further, the People do not set forth any portion of Henley’s testimony
at the evidentiary hearing that proves she was armed. In fact, during that
hearing, the prosecutor did not cross-examine Henley regarding her claim
that she was not armed. Instead, in arguing that the substantial evidence
supports the superior court’s finding that Henley was armed during the
robbery, the People solely rely on the testimony of two trial witnesses. That
evidence is not new. It is the same evidence the jury found did not prove
beyond a reasonable doubt the allegation that Henley personally used a
firearm in the commission of the robbery. Accordingly, the superior court
here erred the same way as the superior court in Cooper. It “effectively
turned [an] acquittal ‘into [its] opposite[ ].’ [Citations.]” (Cooper, supra, 77
Cal.App.5th at p. 417.)
Having concluded that the superior court erred in finding Henley was
armed, we turn to the appropriate disposition of this matter. The People
argue that even if the superior court erred, such error was harmless in light
of other evidence showing Henley was a major participant who acted in
reckless indifference to human life. Assuming, without deciding, that the
applicable standard for assessing prejudice is that of People v. Watson (1956)

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46 Cal.2d 818, 836, we conclude the error was prejudicial. Under Banks and
Clark, a defendant’s personal possession of a weapon and actual use of a
weapon are all highly relevant to whether the defendant was a major
participant who acted with reckless indifference to human life. (Clark, supra,
63 Cal.4th at p. 618; Banks, supra, 61 Cal.4th at p. 803.) Although we agree
with the People that the evidence Henley used a firearm during the robbery
was not the only evidence supporting the court’s eligibility determination, it
was crucial to that determination. For example, in the court’s written order,
it mentioned twice that Henley was “armed with a firearm.” The court also
emphasized that Henley, while armed, threatened the two employees in Taco
Bell with “immediate death” and displayed the firearm “in a threatening
manner.” Thus, it is clear from the court’s order that it believed the fact
Henley was armed was strong evidence that she acted with reckless
indifference to human life. As such, we cannot say on this record that it
would not be reasonably probable that the court would not have denied
Henley relief had it not found that she possessed and used a firearm during

the robbery. Accordingly, reversal is required. 13
Although we conclude that the superior court prejudicially erred in
finding that Henley used a firearm during the robbery, we disagree with
Henley that we should direct the court to grant her requested relief. As the
People point out, and we agree, there was other evidence that could support a
finding that Henley was a major participant who acted with reckless
indifference to human life. For example, Henley admitted that she knew at
least one of her cohorts was armed with a working gun. She repeatedly

13 Because we conclude that reversal is required under Cooper, supra, 77
Cal.App.5th 393, we do not address Henley’s arguments that the court’s
finding that she was armed was barred under res judicata or collateral
estoppel.
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changed her story about what occurred inside the Taco Bell, including her
role in the events. Henley twice attempted to gain access into the locked
Taco Bell before the robbery began. In addition, even if Henley did not have
a gun, there is evidence that she threatened Lourdes. Also, although she saw
how Calvin placed his gun inside Lourdes’s mouth and then pointed it at both
her head and Santos’s head, Henley continued with the robbery. She did not
attempt to leave. And she never took any steps to help the victims.
On this record, we cannot say that substantial evidence does not
support the court’s conclusion that Henley was a major participant who acted
with reckless indifference to human life. Thus, we decline to grant Henley
her requested relief.
In short, the superior court erred in determining that Henley was
armed during the commission of the robbery in contradiction to the jury’s
opposite finding at trial. Further, the court’s finding appears to have been
one of the most important facts on which it based its determination that
Henley was not entitled to relief. Thus, we must reverse the order. That
said, we stop short of concluding that substantial evidence did not support a
finding that Henley was a major participant who acted with reckless
indifference to human life. Therefore, it is appropriate to remand this matter
for a new hearing on whether Henley is entitled to relief.
DISPOSITION
The order denying Henley’s section 1172.6 petition is reversed. The
matter is remanded for the trial court to hold a new hearing to determine
whether the prosecution proved, beyond a reasonable doubt, that Henley was
a major participant in the robbery who acted with reckless indifference to
human life. In doing so, the superior court may not rely on any evidence
admitted during the trial that contradicts the jury’s finding that the

23
prosecution did not prove beyond a reasonable doubt that Henley personally
used a firearm during the commission of the robbery.

HUFFMAN, Acting P. J.

WE CONCUR:

AARON, J.

IRION, J.

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