Filed 12/12/22 P. v. Henry CA3
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C091428
Plaintiff and Respondent, (Super. Ct. No. 13F04938)
v. OPINION ON TRANSFER
KEVIN HENRY, JR.,
Defendant and Appellant.
This case returns to us on transfer with directions from our Supreme Court.
A jury found defendant Kevin Henry, Jr., guilty of first degree murder occurring
during a robbery in 2013. The jury also found a true robbery-murder special
circumstance. Defendant petitioned the trial court for resentencing under what is now
Penal Code section 1172.61 based on changes made to the felony-murder rule by Senate
1 Undesignated statutory references are to the Penal Code.
1
Bill No. 1437 (2017-2018 Reg. Sess.). The trial court denied defendant’s petition,
finding the record established defendant was ineligible for resentencing because the jury
found the special circumstance true. On appeal, defendant argues the trial court erred in
relying on the special circumstance finding to disqualify him for relief. We disagreed in
our original opinion filed July 26, 2021, and affirmed the order.
Defendant petitioned our Supreme Court for review; that court has now directed us
to reconsider the matter in light of People v. Strong (2022) 13 Cal.5th 698. Having done
so, we agree with the parties that the trial court’s order denying the petition must be
reversed and the matter remanded for further proceedings consistent with this opinion.
BACKGROUND
We take the basic facts of defendant’s case from our opinion in his original appeal.
(People v. Henry (Aug. 1, 2018, C077813) [nonpub. opn.] (Henry).)2 In August 2013,
defendant and Devon Roberson-Anderson went to buy a large amount of marijuana from
Colen Lugo, arranged by Gregory K. Gregory K. testified that after Lugo showed
Roberson and defendant the marijuana, Gregory K. saw Henry try to take the marijuana
and then both Henry and Roberson reached for their waist. One of them, Gregory K.
could not remember which, pulled out a gun. Gregory K. dove to the ground and then
heard a gunshot. Defendant then turned Gregory K. over and took things from his
pockets at gunpoint before fleeing with Roberson. (Henry, C077813.)
Effective June 20, 2022, section 1170.95 was renumbered as section 1172.6 without
substantive change. (Stats. 2022, ch. 58, § 10.) We will refer to the section by its new
numbering.
2 On our own motion, we take judicial notice of this prior decision. (Evid. Code, § 452,
subd. (d).) We provide this summary of facts from the prior opinion in defendant’s direct
appeal solely for context and do not rely on these facts for our analysis or disposition
here. (See § 1172.6, subd. (d)(3).)
2
Lugo died at the scene from a gunshot wound. Gregory K. and other witnesses
could not testify as to who shot Lugo. Defendant and Roberson both testified, and both
denied shooting Lugo. (Henry, supra, C077813.)
The jury found defendant and Roberson guilty of first degree murder (§ 187 subd.
(a)) and two counts of robbery (§ 211). The jury also found true allegations the murder
was committed while defendants were engaged in the commission of a robbery (§ 190.2,
subd. (a)(17)), found defendant guilty of being a felon in possession of a firearm
(§ 29800, subd. (a)(1)), and found that both defendant and Roberson personally used a
firearm in the commission of all three crimes (§ 12022.53, subd. (b)). The trial court also
found true allegations defendant had two prior convictions within the meaning of sections
667, subdivisions (b)-(i) and 1170.12. The trial court sentenced defendant to life without
the possibility of parole, plus an additional 70 years to life in state prison. (Henry, supra,
C077813.)
Defendant appealed and we remanded for the trial court to exercise its discretion
to strike the firearm enhancements under section 12022.53, subdivision (h). (Henry,
supra, C077813.) In July 2019, the trial court declined to strike defendant’s firearm
enhancements.
In February 2019, defendant filed a petition for resentencing under what is now
section 1172.6 alleging he could not now be convicted of murder because of the changes
made to sections 188 and 189. The petition alleged he was not the actual killer, did not
aid or abet the murder with the intent to kill, and was not a major participant in the felony
or act with reckless indifference to human life. The prosecution filed a response and a
motion to dismiss and defendant’s counsel filed an opposition. In December 2019, the
trial court denied defendant’s petition, stating that because the jury found the special
circumstance true under section 190.2, subdivision (a)(17), “the jury necessarily found
that [defendant] was either the actual killer, acted with intent to kill, or was a major
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participant in the underlying crime who acted with reckless indifference to human life.”
As described above, we initially affirmed the order denying defendant’s petition.
DISCUSSION
Defendant originally argued the trial court erred in relying on the jury’s special
circumstance finding to establish he was a major participant who acted with reckless
indifference to human life because our Supreme Court clarified the special circumstances
analysis after his conviction in People v. Banks (2015) 61 Cal.4th 788 and People v.
Clark (2016) 63 Cal.4th 522. In supplemental briefing, the People now agree.
The Legislature enacted and the Governor signed Senate Bill No. 1437 (2017-
2018 Reg. Sess.) (Senate Bill No. 1437), effective January 1, 2019 (Stats. 2018, ch. 1015,
§ 4), determining that the change in law was “ ‘necessary to amend the felony murder
rule and the natural and probable consequences doctrine, as it relates to murder, to ensure
that murder liability is not imposed on a person who is not the actual killer, did not act
with the intent to kill, or was not a major participant in the underlying felony who acted
with reckless indifference to human life.’ ” (People v. Superior Court (Gooden) (2019)
42 Cal.App.5th 270, 275.) As pertinent here, Senate Bill No. 1437 added what is now
section 1172.6, which permits a person convicted of felony murder or murder under a
natural and probable consequences theory to petition the sentencing court to vacate the
murder conviction and resentence the person on any remaining counts if, among other
things, the petitioner could not be convicted of first or second degree murder due to the
change in the law. (§ 1172.6, subd. (a).)
Section 190.2, subdivision (d) provides that, for the purposes of those special
circumstances based on the enumerated felonies in paragraph (17) of subdivision (a),
which include robbery, an aider and abettor must have been a “major participant” and
have acted “with reckless indifference to human life.” (§ 190.2, subd. (d); Tapia v.
Superior Court (1991) 53 Cal.3d 282, 298.) Thus, on its face, a special circumstance
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finding satisfies the requirements for accomplice murder liability even after Senate Bill
No. 1437. (§ 189, subd. (e).)
Since defendant’s conviction, however, the Supreme Court has refined the analysis
for who qualifies as a major participant acting with reckless indifference to human life in
Banks and Clark and “construed section 190.2, subdivision (d) in a significantly different,
and narrower manner than courts had previously construed the statute.” (People v.
Torres (2020) 46 Cal.App.5th 1168, 1179.)
After we rejected defendant’s claims in our previous opinion, our Supreme Court
decided Strong, which concluded: “Findings issued by a jury before Banks and Clark do
not preclude a defendant from making out a prima facie case for relief under Senate Bill
1437. This is true even if the trial evidence would have been sufficient to support the
findings under Banks and Clark.” (People v. Strong, supra, 13 Cal.5th at p. 710.) Here,
the trial court concluded that the jury’s pre-Banks and Clark findings precluded defendant
from making a prima facie case. Because this conclusion does not survive Strong, we
will reverse the trial court’s order and remand for further proceedings consistent with this
opinion.3
3 Defendant also faults his counsel for failing to raise an argument under Banks and
Clark. Because we are reversing, we need not address this argument.
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DISPOSITION
The order denying defendant’s petition is reversed, and the cause is remanded with
directions to conduct further proceedings consistent with this opinion.
/s/
Duarte, Acting P. J.
We concur:
/s/
Renner, J.
/s/
Boulware Eurie, J.
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