People v. Henry CA3

Filed 12/12/22 P. v. Henry CA3 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C091428

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

v. OPINION ON TRANSFER

KEVIN HENRY, JR.,

Defendant and Appellant.

This case returns to us on transfer with directions from our Supreme Court. A jury found defendant Kevin Henry, Jr., guilty of first degree murder occurring during a robbery in 2013. The jury also found a true robbery-murder special circumstance. Defendant petitioned the trial court for resentencing under what is now Penal Code section 1172.61 based on changes made to the felony-murder rule by Senate

1 Undesignated statutory references are to the Penal Code.

1

Bill No. 1437 (2017-2018 Reg. Sess.). The trial court denied defendant’s petition, finding the record established defendant was ineligible for resentencing because the jury found the special circumstance true. On appeal, defendant argues the trial court erred in relying on the special circumstance finding to disqualify him for relief. We disagreed in our original opinion filed July 26, 2021, and affirmed the order. Defendant petitioned our Supreme Court for review; that court has now directed us to reconsider the matter in light of People v. Strong (2022) 13 Cal.5th 698. Having done so, we agree with the parties that the trial court’s order denying the petition must be reversed and the matter remanded for further proceedings consistent with this opinion. BACKGROUND We take the basic facts of defendant’s case from our opinion in his original appeal. (People v. Henry (Aug. 1, 2018, C077813) [nonpub. opn.] (Henry).)2 In August 2013, defendant and Devon Roberson-Anderson went to buy a large amount of marijuana from Colen Lugo, arranged by Gregory K. Gregory K. testified that after Lugo showed Roberson and defendant the marijuana, Gregory K. saw Henry try to take the marijuana and then both Henry and Roberson reached for their waist. One of them, Gregory K. could not remember which, pulled out a gun. Gregory K. dove to the ground and then heard a gunshot. Defendant then turned Gregory K. over and took things from his pockets at gunpoint before fleeing with Roberson. (Henry, C077813.)