People v. HendersonPeople v. Henderson
APPEAL from a judgment of the Superior Court of Los Angeles County, Frederick N. Wapner, Judge. Affirmed.
Rudolph J. Alejo, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Blythe J. Leszkay and Kristen J. Inberg, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Level Omega Henderson guilty on two counts of assault with a semiautomatic firearm (one for each of two victims), one count of possession of a firearm by a felon, and one count of assault by means likely to produce great bodily injury. The trial court sentenced Henderson to a prison term of 27 years, which included consecutive terms on the two convictions for assault with a semiautomatic firearm.
Henderson argues his trial lawyer provided ineffective assistance by failing to call a percipient witness. Henderson also argues he is entitled to a new sentencing hearing because the trial court did not recognize it had discretion under the three strikes law to impose concurrent sentences on the two convictions for assault with a semiautomatic firearm. We conclude Henderson has not shown in this appeal that his trial attorney provided ineffective assistance at trial because the record does not disclose why his lawyer chose not to call the witness or that his attorney‘s decision was below the standard of care. We also conclude the trial court did not have discretion to impose concurrent sentences on the two convictions for assault with a semiautomatic firearm. Therefore, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Henderson Gets into a Fight
In March 2015 Henderson fought with Daniel Tillett in the courtyard of an apartment complex. At one point Henderson walked away from the area where they were fighting and went to his car. William Aguilar, who had been making some repairs at the apartment building, saw Henderson open the trunk of the car and walk back toward the courtyard holding a semiautomatic handgun. Aguilar called the 911 emergency operator.
A few minutes later Henderson returned to his car and drove away.1 After Henderson left, Aguilar went to the courtyard and saw Tillett and a woman named Tiffany. Tillett was bleeding from his face. Aguilar agreed to take Tillett to the hospital, but before they left, Henderson returned to the courtyard holding the same gun Aguilar had seen before. With his right hand
Two police officers went to the apartment complex and saw Henderson standing over Tillett on the ground. Henderson hit Tillett several more times before fleeing to a vacant apartment unit. The officers did not follow Henderson into the apartment. Five minutes later, Henderson walked out of the apartment unarmed. The police searched the apartment and discovered a torn window screen in the bathroom. The police also found a semiautomatic handgun on the ground in a small atrium “directly below the window.” The only access to the atrium was through the windows of a few apartments and the roof of the apartment building.
B. The People Charge Henderson with Multiple Crimes
The People charged Henderson with one count of assault with a semiautomatic firearm on Tillett (
C. A Jury Convicts Henderson on All Counts
At trial the People called several witnesses, including Aguilar and the two police officers who arrived at the apartment complex. The People did not call Tillett or Tiffany. The parties stipulated Henderson had been convicted of a felony. Henderson did not call any witnesses. The jury found Henderson guilty on all counts.
D. The Trial Court Denies Henderson‘s Motion for New Trial
Prior to sentencing, the trial court granted Henderson‘s motion to represent himself under Faretta v. California (1975) 422 U.S. 806 [95 S.Ct. 2525]. After several continuances, however, and at Henderson‘s request, the court appointed new counsel for Henderson. Henderson filed a motion for new trial, attaching a handwritten declaration from Tiffany stating that, “during the course of the physical altercation” between Henderson and Tillett, she did not see Henderson “with any weapon” and that she saw Henderson and Tillett “fighting with their fists only.” Henderson also attached a transcript of his investigator‘s interview with Tiffany where Tiffany stated that neither the prosecutor nor Henderson‘s prior attorney subpoenaed her to testify and that, had she been served with a subpoena, she would have testified. Henderson argued, among other things, that his prior lawyer rendered ineffective assistance by failing to “fully investigate and secure the attendance of” Tiffany at trial. The trial court denied Henderson‘s motion for new trial.
E. The Trial Court Sentences Henderson
In a bifurcated proceeding, the trial court found true all of the prior conviction allegations. On Henderson‘s motion, the court struck three of Henderson‘s four prior serious or violent felony convictions under the three strikes law, one of his two prior serious felony convictions under
DISCUSSION
A. Henderson Has Not Shown His Trial Counsel Provided Ineffective Assistance at Trial
Henderson argues his trial attorney provided ineffective assistance by failing to interview Tiffany and call her to testify at trial. Henderson contends his attorney‘s performance was deficient because Tiffany‘s statement that she did not see Henderson with a gun “would have directly supported” Henderson‘s theory at trial that he “never used a gun” during his fight with Tillett. The People argue Henderson cannot establish his trial counsel‘s performance was deficient because the record does not disclose why counsel did not call Tiffany as a witness.
“To make out a claim that counsel rendered constitutionally ineffective assistance, ‘the defendant must first show counsel‘s performance was
“Usually, ‘ineffective assistance [of counsel claims are] more appropriately decided in a habeas corpus proceeding.‘” (Hoyt, supra, 8 Cal.5th at p. 958.) On direct appeal, “we may reverse ‘only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation.‘” (People v. Arredondo (2019) 8 Cal.5th 694, 711; see People v. Mai, supra, 57 Cal.4th at p. 1009.) “‘All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding.‘” (Hoyt, at p. 958.)
Henderson does not argue (1) or (2), and nothing in the record affirmatively discloses his trial counsel had no rational tactical purposes for not interviewing Tiffany or calling her as a witness or indicates that anyone asked his attorney why she did not or that she failed to respond to such an inquiry. Henderson argues only (3): His trial counsel‘s decision not to call Tiffany was “per se unreasonable“; i.e., there could be no satisfactory explanation for her decision.
But there were several reasons Henderson‘s trial counsel may have decided not to call Tiffany, reasons to which we defer. (See People v. Carrasco (2014) 59 Cal.4th 924, 989 [“The decision whether to call certain witnesses is a ‘matter[ ] of trial tactics and strategy which a reviewing court generally may not second-guess.‘“]; People v. Wang (2020) 46 Cal.App.5th 1055, 1088 [defendant failed to show “there could be no rational tactical purpose for defense counsel‘s failure to call” a witness where the record did “not affirmatively reveal the lack of a rational tactical purpose for not calling the . . . witness“]; cf. People v. Bolin (1998) 18 Cal.4th 297, 334 [“Whether to call certain witnesses is . . . a matter of trial tactics, unless the decision results from unreasonable failure to investigate.“].) First, Henderson‘s trial counsel may not have found Tiffany‘s account of the incident and proposed testimony credible. (See Lord v. Wood (9th Cir. 1999) 184 F.3d 1083, 1095, fn. 8 [“A lawyer who interviews the witness can rely on his assessment of their articulateness and demeanor—factors we are not in a position to second-guess.“].) Even if Tiffany told trial counsel she did not see Henderson with a gun, counsel reasonably could have concluded, based on her evaluation of Tiffany as a witness, that the risks of putting Tiffany on the stand and having her say something different or harmful were too great. (Cf. People v. Freeman (1994) 8 Cal.4th 450, 522-523 [there was “no basis for finding ineffective assistance of counsel” where the reviewing court could not “determine on appeal the tactical reasons for the approach counsel took,” counsel may have preferred making an argument to the jury “to having witnesses testify and be subject to cross-examination,” and “we do not know what the witnesses might have said if asked“].)
Second, had trial counsel for Henderson called Tiffany to testify at trial, the prosecutor may have elicited additional facts on cross-examination that supported the People‘s case or damaged Henderson‘s defenses. For example, Aguilar testified that he did not see the beginning of the fight between Henderson and Tillett and that he did not see what happened after he observed Henderson walk from his car to the apartment complex with the gun. And by the time Aguilar saw Tillett, Tillett was already bleeding from his face. Tiffany‘s testimony could have filled in some of the gaps in Aguilar‘s testimony. In addition, the People charged Henderson not only with assault with a semiautomatic firearm, but also with assault by means likely to produce great bodily injury. Even if Tiffany testified she did not see Henderson with a gun, she may have testified she saw Henderson hit Tillett, which would have provided further evidence in support of the latter charge.
Third, in closing argument Henderson‘s trial counsel used Tiffany‘s (and Tillett‘s) absence from the trial to argue the People had not met their burden of proof beyond a reasonable doubt. In particular, counsel argued the People “denied” the jury the true story by failing to call the people “who know the real story about what happened” and “who know the full picture.” (See Harrington v. Richter (2011) 562 U.S. 86, 109 [131 S.Ct. 770] [“To support a defense argument that the prosecution has not proved its case it sometimes is better to try to cast pervasive suspicion of doubt than to strive to prove a certainty that exonerates.“].)
To be sure, if there were evidence Henderson‘s trial counsel did not even try to find and interview Tiffany, Henderson might be able to show his attorney‘s performance was deficient. (See In re Gay, supra, 8 Cal.5th at p. 1076 [an attorney‘s duty to render effective assistance includes the “‘duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary‘“]; see, e.g., id. at p. 1078 [where the defendant was charged with shooting a police officer, his attorney acted unreasonably in failing to interview two witnesses who may have testified the codefendant was the shooter]; Riley v. Payne (9th Cir. 2003) 352 F.3d 1313, 1317-1319 [attorney acted unreasonably by failing to interview a witness who was with the defendant and the victim shortly before the alleged assault occurred and would have offered testimony favorable to the defendant‘s theory of self-defense].) As Henderson concedes, however, the record does not indicate either way whether, let alone affirmatively show, trial counsel for Henderson attempted to locate and interview Tiffany (or, if she did, what she learned during her investigation). (See People v. Mayfield (1993) 5 Cal.4th 142, 188 [“tactical choices presented to us on a silent record . . . are better evaluated by way of a petition for writ of habeas corpus, and on direct appeal we reject them“].)
B. The Trial Court Did Not Have Discretion To Impose Concurrent Sentences on the Two Convictions for Assault with a Semiautomatic Firearm
The trial court imposed consecutive sentences on count 1, assault with a semiautomatic firearm on Tillett, and count 5, assault with a semiautomatic firearm on Aguilar. In imposing consecutive sentences for these two convictions, the court stated that, “as to count 5,” the “three strikes law requires that on serious or violent felonies, two or more, that they be sentenced consecutively.”
Citing People v. Hendrix (1997) 16 Cal.4th 508 (Hendrix), where the Supreme Court held “consecutive sentences are not mandated under [section 667,] subdivision (c)(7) if all of the serious or violent current felony convictions are ‘committed on the same occasion‘” (Hendrix, at p. 512), Henderson argues the trial court erred in failing to recognize it had discretion to impose concurrent sentences on counts 1 and 5.4 The People argue the trial court did not have discretion to impose concurrent sentences because Proposition 36, approved by the voters in 2012, 15 years after the Supreme Court‘s decision in Hendrix, eliminated a trial court‘s discretion to impose concurrent sentences and requires the court to impose consecutive sentences “where the defendant has multiple current strike convictions.” Henderson cites several cases that have agreed with his position. (See People v. Marcus (2020) 45 Cal.App.5th 201 (Marcus); People v. Gangl (2019) 42 Cal.App.5th 58 (Gangl); People v. Buchanan (2019) 39 Cal.App.5th 385 (Buchanan); People v. Torres (2018) 23 Cal.App.5th 185 (Torres).) In three of these cases, however, a dissenting justice agreed with the People‘s position. (See Marcus, at p. 215 (conc. & dis. opn. of Krause, J.); Gangl, at pp. 72-80 (conc. & dis. opn. of Krause, J.); Buchanan, at pp. 392-398 (conc. & dis. opn. of Needham, J.).)
We agree with the People and the dissenting justices in Marcus, Gangl, and Buchanan that Proposition 36 eliminated the trial court‘s discretion to impose concurrent sentences on multiple current serious or violent felony convictions.
1. Hendrix
defendant has one or more prior serious or violent felony convictions, as defined in subdivision (d), the court shall adhere to each of the following: . . . [¶] (6) If there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts, the court shall sentence the defendant consecutively on each count . . . . [¶] (7) If there is a current conviction for more than one serious or violent felony as described in paragraph (6), the court shall impose the sentence for each conviction consecutive to the sentence for any other conviction for which the defendant may be consecutively sentenced in the manner prescribed by law.”
In Hendrix, supra, 16 Cal.4th 508 the Supreme Court considered whether a trial court has discretion to impose concurrent sentences under
Turning to
2. Proposition 36
Before voters adopted Proposition 36 in 2012, subdivisions (c)(6) and (c)(7) of
Proposition 36 amended subdivision (a)(6) subdivision (b), the court shall impose the sentence for each conviction consecutive to the sentence for any other conviction for which the defendant may be consecutively sentenced in the manner prescribed by law.” (
even when those felonies were committed at the same time and involve the same facts“].)6
3. Proposition 36 Eliminated a Trial Court‘s Discretion To Impose Concurrent Sentences on Convictions for Multiple Serious or Violent Felonies
“We interpret statutes added or amended by voter initiative . . . in the same manner we interpret those enacted by the Legislature.” (People v. Jessup (2020) 50 Cal.App.5th 83, 87; see People v. Valenzuela (2019) 7 Cal.5th 415, 423 [“In construing [an] initiative, ‘we apply the same principles that govern statutory construction.‘“].) “Where a law is adopted [or amended] by the voters, ‘their intent governs.’ [Citation.] In determining that intent, ‘we turn first to the language of the statute, giving the words their ordinary meaning.‘” (People v. Buycks (2018) 5 Cal.5th 857, 879-880; accord, People v. Herrera (2020) 52 Cal.App.5th 982, 990.) “‘[I]f the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent . . . of the voters (in the case of a provision adopted by the voters).‘” (People v. Valencia (2017) 3 Cal.5th 347, 357; accord, People v. Kelly (2018) 28 Cal.App.5th 886, 897.) “[W]e presume the voters intended the meaning apparent from that language, and we may not add to the statute
or rewrite it to conform to some assumed intent not apparent from that language.” (People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 571; accord, Herrera, at p. 991.)
The plain language of
The court in Torres and the majority opinions in Buchanan, Gangl, and Marcus interpreted amended
The problem with this interpretation is that it is not what
violent felony convictions “as described by subdivision (a)(6)“— i.e., multiple serious or violent felony convictions not committed on the same occasion and not arising from the same set of facts. Therefore, the Supreme Court‘s holding in Hendrix that courts had discretion to impose concurrent sentences when the defendant committed the felonies on
In Hendrix the Supreme court held that
It is true that
As Justice Mosk explained in his concurring opinion in Hendrix,
DISPOSITION
The judgment is affirmed.
SEGAL, J.
We concur:
PERLUSS, P. J.
DILLON, J.*
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to