People v. Henson CA3

Filed 2/23/23 P. v. Henson CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (San Joaquin) ----

THE PEOPLE, C096757

Plaintiff and Respondent, (Super. Ct. No. STK-CR-FECOD-2015- v. 0007347)

MARCUS HENSON,

Defendant and Appellant.

This appeal comes to us ostensibly pursuant to People v. Wende (1979) 25 Cal.3d 436. A jury convicted defendant Marcus Henson of four counts of attempted murder, four counts of assault with a semiautomatic firearm, shooting at an occupied vehicle, and participating in gang activity, and found several enhancements true. (People v. Henson (Oct. 14, 2020, C084770 [nonpub. opn.].) Defendant appealed, and we reversed and remanded two of the attempted murder counts, and vacated his conviction on three other counts and their associated enhancements. After he was resentenced to 15 years to life plus 20 years, defendant filed a petition for resentencing under Penal Code section

1

1172.6.1 The trial court denied that petition at the prima facie stage. Having reviewed the record and having found no arguable error that would result in a disposition more favorable to defendant, we will affirm. FACTUAL AND PROCEDURAL BACKGROUND An indictment filed on August 20, 2015, charged defendant with two counts of attempted murder of two police officers (§§ 664, 187 subd. (a.)—counts 1 & 2); two counts of attempted premeditated murder of those same officers (§§ 664, 187 subd. (a.)— counts 3 & 4); two counts of assault with a semiautomatic firearm on those officers (§ 245, subd. (d)(2)—counts 5 & 6); two additional counts of assault with semiautomatic firearms on those officers (§ 245, subd. (b)—counts 7 & 8); shooting at an occupied vehicle (§ 246—count 9); and participation in gang activity. (§ 186.22, subd. (a)—count 10.) The indictment also alleged a series of enhancements: as to counts 1 through 4, defendant and/or a principal intentionally discharged a firearm (§§ 12022.53, subds. (c), (e)(1)), and as to counts 5 through 9 that defendant personally used a firearm (§ 12022.5, subd. (a)), rendering those counts serious felonies (§ 1192.7, subd. (c)(8)), and counts 1 through 9 were committed for the benefit of a criminal street gang. (§ 186.22, subd. (b).) The basic facts of the case are that defendant and his fellow gang members fired 26 shots at an unmarked police car containing two Stockton police officers in plain