People v. Henderson

46 Cal.App.5th 533

260 Cal.Rptr.3d 104

The PEOPLE, Plaintiff and Respondent,

v.Ian Alexander HENDERSON et al., Defendants and Appellants.

D076200

Court of Appeal, Fourth District, Division 1, California.

Filed March 13, 2020

As Modified on Denial of Rehearing March 30, 2020

Jason L. Jones, under appointment by the Court of Appeal, for Defendant and Appellant Ian Henderson.

Ellen M. Matsumoto, Gardena, under appointment by the Court of Appeal, for Defendant and Appellant Zavier Marks.

Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Charles C. Ragland, Scott C. Taylor and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.

O'ROURKE, J.

A jury convicted Ian Alexander Henderson and codefendant Zavier Michael Marks of attempted murder ( Pen. Code,¹ §§ 664, subd. (a), 187, subd. (a) ; count 1) and shooting at an inhabited dwelling (§ 246; count 2). With respect to count 1, the jury found true allegations that the attempted murder was committed by both defendants willfully and with deliberation and premeditation ( § 664, subd. (a) ). It found not true allegations as to both counts that the defendants committed the offenses for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)(C)). The court dismissed allegations that as to both counts, a principal either used a firearm, discharged a firearm, or discharged a firearm causing great bodily injury (§ 12022.53, subds. (b)–(e)). However, it found true allegations that Henderson and Marks each suffered a single conviction constituting both a serious felony prior conviction (§ 667, subd. (a)(1)) and a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).

The court sentenced Henderson to a 29-year-to-life prison sentence: seven years to life on count 1 doubled to 14 years to life by his strike prior, plus a consecutive middle term of five years on count 2 doubled to 10 years, and an additional consecutive five years for the serious felony prior conviction. It sentenced Marks to 19 years to life in prison: seven years to life on count 1 doubled to 14 years to life by the strike prior conviction, plus a concurrent midterm of five years on count 2 doubled to 10 years, and a five-year enhancement for the serious felony prior conviction.

Henderson contends: (1) his count 2 conviction must be reversed because it is barred by section 1387, under which a prosecutor may not refile charges that have already been twice dismissed; (2) the prosecutor committed prejudicial misconduct during his closing argument when explaining premeditation and Henderson received ineffective assistance of counsel by counsel's failure to object to it; and (3) the trial court erred by imposing a consecutive sentence on count 2 based on the same facts as underlying its imposition of a serious felony prior conviction. Marks contends the trial court erred by denying Henderson's motion alleging a prima facie case of discrimination after the prosecutor exercised his first peremptory challenge against an African-American juror (Juror No. 12, also referred to by the parties as J12-8). Marks joins Henderson's first two claims and Henderson joins Marks's claim.

In supplemental briefing, both Henderson and Marks ask that the matter be remanded for resentencing so that the trial court may exercise its discretion whether to impose or strike the five-year sentence for their prior serious felonies. Pointing out the court did not indicate at sentencing whether it would have stricken the five-year terms if it knew it had discretion to do so, the People concede the matter should be remanded so the court can exercise its discretion whether to strike those terms. We agree with the concession. We vacate the defendants' sentences and remand with directions set forth below. With the exception of Henderson's claim concerning imposition of his consecutive sentence on count 2, which we direct the trial court to address on remand, we reject the defendants' other contentions.

FACTUAL AND PROCEDURAL BACKGROUND

Given the nature of defendants' appellate claims it suffices to just briefly summarize the underlying facts of the offenses. We provide additional detail below as necessary to resolve prejudice arguments.

At about 2:15 a.m. on March 26, 2017, three men seen in proximity to a vehicle within an apartment complex asked the victim where he was from and whether he was a "Blood or a Crip." After the victim said he was from Watts, they fired multiple rounds of bullets at him, hitting the victim's hip after he dropped to the ground and tried to crawl away, and also hitting occupied apartments. A security guard called police and gave them the license plate number of the car when it drove out of the complex. An officer found 24 bullet casings in the area.

At about 10:00 that morning an officer stopped the vehicle involved in the shooting, finding Henderson in the driver's seat and Marks, another man, and a woman as passengers. Police searching the vehicle found two loaded nine-millimeter handguns, a large capacity magazine for one of the guns, and a cell phone. An additional search of the car revealed a third loaded handgun, which was later determined by a firearms examiner to have been the gun that fired eight of the rounds at the crime scene. The examiner determined one of the 24 rounds was fired from one of the other two guns found in the car. Federal officers performed an analysis on Henderson's phone and found it had activated three cell phone towers in the San Bernardino area at about 2:17 a.m., about 1.5 miles from the crime scene.

Neither Henderson nor Marks presented witnesses in their defense. Their third codefendant, Edwurd Sanders, testified that he, Henderson and Marks drove to a strip club that morning, drank alcohol and left at about 1:45 a.m. The jury could not reach a verdict as to Sanders, and the court declared a mistrial as to him.

DISCUSSION

I. Operation of Two-Dismissal Rule and Exception of Sections 1387 and 1387.1

A. Legal Principles

Section 1387, subdivision (a) provides, with exceptions not applicable here: "An order terminating an action pursuant to this chapter ... is a bar to any other prosecution for the same offense if it is a felony ... and the action has been previously terminated pursuant to this chapter ...." This statute sets out a " ‘two-dismissal rule; two previous dismissals of charges for the same offense will bar a new felony charge.’ " ( People v. Trujeque (2015) 61 Cal.4th 227, 255, 188 Cal.Rptr.3d 1, 349 P.3d 103 ; see also People v. Juarez (2016) 62 Cal.4th 1164, 1167, 199 Cal.Rptr.3d 735, 366 P.3d 989.)

Section 1387.1, subdivision (a) constitutes an exception to that rule—allowing a third opportunity for the People to pursue violent felony charges—if either of the prior two dismissals was due to excusable neglect and the prosecution did not act in bad faith. ( People v. Trujeque, supra , 61 Cal.4th at pp. 255-256, 188 Cal.Rptr.3d 1, 349 P.3d 103 ; People v. Standish (2006) 38 Cal.4th 858, 882, 43 Cal.Rptr.3d 785, 135 P.3d 32 ; People v. Villanueva (2011) 196 Cal.App.4th 411, 425, 126 Cal.Rptr.3d 244.) That section provides: "(a) Where an offense is a violent felony, as defined in Section 667.5 and the prosecution has had two prior dismissals, as defined in Section 1387, the people shall be permitted one additional opportunity to refile charges where either of the prior dismissals under Section 1387 were due solely to excusable neglect. In no case shall the additional refiling of charges provided under this section be permitted where the conduct of the prosecution amounted to bad faith." Thus, "if the previously charged and dismissed felony is not a violent felony as defined in section 667.5, ‘[s]ection 1387 generally bars a third prosecution of a felony, and certainly bars further prosecution when section 1387.1's prerequisites are not met [e.g., a section 667.5 violent felony].’ " ( People v. Salcido (2008) 166 Cal.App.4th 1303, 1310, 83 Cal.Rptr.3d 561.)

These statutes, contained in Chapter 8 (entitled "Dismissal of the Action for Want of Prosecution or Otherwise") are part of "a series of statutes, commencing with Penal Code section 1381, [that] are a construction and implementation of the California Constitution's speedy trial guarantee." ( People v. Villanueva, supra , 196 Cal.App.4th at p. 422, 126 Cal.Rptr.3d 244.) That they protect that pretrial right is reflected in their legislative history, which the California Supreme Court has already examined in several cases. In those, the court addressed the " ‘human problems the Legislature sought to address in adopting section 1387—" ‘the ostensible objects to be achieved [and] the evils to be remedied.’ " ’ " ( People v. Juarez, supra , 62 Cal.4th at p. 1170, 199 Cal.Rptr.3d 735, 366 P.3d 989 ; People v. Traylor (2009) 46 Cal.4th 1205, 1213-1214, 96 Cal.Rptr.3d 277, 210 P.3d 433 ; Burris v. Superior Court (2005) 34 Cal.4th 1012, 1018, 22 Cal.Rptr.3d 876, 103 P.3d 276.) It explained: " ‘Section 1387 implements a series of related public policies. It curtails prosecutorial harassment by placing limits on the number of times charges may be refiled. [Citations.] The statute also reduces the possibility that prosecutors might use the power to dismiss and refile to forum shop. [Citations.] Finally, the statute prevents the evasion of speedy trial rights through the repeated dismissal and refiling of the same charges.’ " ( Juarez , at p. 1170, 199 Cal.Rptr.3d 735, 366 P.3d 989, quoting Burris , at p. 1018, 22 Cal.Rptr.3d 876, 103 P.3d 276.) This court and others have said that the purpose of section 1387 is to " ‘prevent improper successive attempts to prosecute a defendant.’ " ( People v. Salcido, supra , 166 Cal.App.4th at p.1309, 83 Cal.Rptr.3d 561 ; Berardi v. Superior Court (2008) 160 Cal.App.4th 210, 219, 72 Cal.Rptr.3d 664 ; People v. Rodriguez (2013) 217 Cal.App.4th 326, 334, 158 Cal.Rptr.3d 401 ; ...