People v. Henley

85 Cal.App.5th 1003

301 Cal.Rptr.3d 821

The PEOPLE, Plaintiff and Respondent,

v.Heather Leatrice HENLEY, Defendant and Appellant.

D079001

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

Filed December 5, 2022

Pauline E. Villanueva, under appointment by the Court of Appeal, San Diego, 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.

HUFFMAN, Acting P. J.

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 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 1172.6² 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 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, 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 [Calvin⁶ ] moved [Lourdes] toward the front part of the store, Henley and another assailant opened the cash registers looking for money. All of the 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."

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, 189 Cal.Rptr.3d 208, 351 P.3d 330 ( Banks ) and People v. Clark (2016) 63 Cal.4th 522, 203 Cal.Rptr.3d 407, 372 P.3d 811 ( 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 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,...