People v. Henry CA3

Filed 7/29/25 P. v. Henry CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C099989

Plaintiff and Respondent, (Super. Ct. No. 13F04938)

v.

KEVIN HENRY, JR.,

Defendant and Appellant.

In 2014, a jury found defendant Kevin Henry, Jr. and his co-defendant, Anthony Roberson, guilty of first degree murder and two counts of robbery. The jury found true allegations that the murder was committed while defendants were engaged in the commission of a robbery (Pen. Code, § 190.2, subd. (a)(17))1 and that defendants

1 Undesignated statutory references are to the Penal Code.

1

personally used a firearm in the commission of these offenses (§ 12022.53, subd. (b)).2 At the close of the People’s case in chief, the court granted the People’s oral motion to dismiss additional firearm allegations under sections 12022.53, subdivisions (c) and (d). Defendant appeals from an order of the trial court after remand denying his petition for resentencing of his murder conviction under section 1172.6. He contends the trial court applied the wrong legal standard at his evidentiary hearing by reviewing the trial record for substantial evidence, rather than acting as an independent fact finder. Defendant also argues the court erred when it relied on the possibility that defendant discharged a firearm despite the dismissal of the section 12022.53, subdivision (c) and (d) allegations. In defendant’s view, the dismissal was the equivalent of an acquittal and had preclusive effect in this proceeding. Further, defendant contends any forfeiture of this issue constituted ineffective assistance of counsel. Because we find the trial court’s application of an incorrect standard of proof at the evidentiary hearing was prejudicial, we will reverse the order denying the petition. Accordingly, we do not reach defendant’s claims regarding the dismissal of the firearms allegations. We remand for further proceedings consistent with this opinion. I. BACKGROUND “In Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437), the Legislature significantly narrowed the scope of the felony-murder rule. It also created a path to relief for defendants who had previously been convicted of murder on a felony- murder theory but who could not have been convicted under the new law. Resentencing is available under the new law if the defendant neither killed nor intended to kill and was not ‘a major participant in the underlying felony [who] acted with reckless indifference to