People v. Henning CA3

Filed 10/7/21 P. v. Henning CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Placer) ----

THE PEOPLE, C092472

Plaintiff and Respondent, (Super. Ct. No. 62071378)

v.

JAISEN LEE HENNING,

Defendant and Appellant.

In 2008, defendant Jaisen Lee Henning was sentenced to an aggregate prison term of 17 years four months for his convictions for attempted robbery, burglary, assault with a firearm, and evading an officer, along with numerous firearm enhancements. We upheld this judgment in a published opinion issued October 14, 2009, case No. C060371. (People v. Henning (2009) 178 Cal.App.4th 388, 392.) Thereafter, on October 11, 2017, the Governor signed Senate Bill No. 620 (2017-2018 Reg. Sess.), which amended Penal

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Code sections 12022.5 and 12022.53, effective January 1, 2018 (Stats. 2017, ch. 682, §§ 1-2), to permit a trial court to strike a firearm enhancement: “The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law.” On September 20, 2019, the California Department of Corrections and Rehabilitation (CDCR) sent a letter to the trial court invoking the authority of Penal Code section 1170, subdivision (d)(1)1 and urging the trial court to recall defendant’s sentence and resentence him in light of the court’s new discretion to strike the firearm enhancements under sections 12022.53, subdivision (h) and 1385. The trial court never affirmatively recalled defendant’s sentence and ultimately denied the motion to recall and strike the firearm enhancements in a hearing on August 7, 2020. Defendant now appeals arguing the trial court abused its discretion in refusing to strike at least one of his firearm enhancements because “[o]n balance, the mitigating factors outweigh the aggravating factors.” We disagree and affirm. BACKGROUND To facilitate our review, we will incorporate the facts and proceedings from defendant’s previous appeal, People v. Henning, supra, 178 Cal.App.4th at pp. 392-394: “On the afternoon of July 7, 2007, defendant finished a 10-hour session of playing the video game Grand Theft Auto: San Andreas. Grand Theft Auto engages players in ‘missions’ to commit murder, drive-by shootings, burglary, other violent crimes, and theft. A player learns of missions from other characters in the game.