People v. Henson CA3

Filed 5/22/23 P. v. Henson CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C096412

Plaintiff and Respondent, (Super. Ct. No. STKCRFECOD20150007347) v.

MARCUS HENSON,

Defendant and Appellant.

Defendant Marcus Henson opened fire at two police officers. A jury found defendant guilty of, among other things, active participation in a criminal street gang, and found true the criminal street gang allegations. On appeal, defendant contends, and the People agree, that remand is appropriate because Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 699, §§ 3-4; Assembly Bill No. 333) substantially changes the elements of the gang offense and gang enhancements. We shall reverse defendant’s conviction of active participation in a criminal street gang and vacate the true findings as to the gang enhancement. The matter

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is remanded to give the People an opportunity to retry the gang offense and the gang enhancements under the amended statute. The judgment is affirmed in all other respects. I. BACKGROUND We summarize the factual and procedural background from our unpublished opinion in defendant’s previous appeal, People v. Henson (Oct. 14, 2020, C084770) [nonpub. opn.] (Henson). We granted defendant’s request to incorporate by reference the record on appeal in Henson. Defendant and members of the Flyboys gang ambushed two police officers and opened fire at them while they were driving away in an unmarked police car. (Henson, supra, C084770.) A jury found defendant guilty of two counts of attempted murder of a peace officer (Pen. Code, §§ 664, subd. (e) & 187, subd. (a)—counts 1 & 2),1 two counts of attempted murder (§§ 664, subd. (a) & 187, subd. (a)—counts 3 & 4), two counts of assault with a semiautomatic firearm on a peace officer (§ 245, subd. (d)(2)—counts 5 & 6), two counts of assault with a semiautomatic firearm (§ 245, subd. (b)—counts 7 & 8), shooting at an occupied vehicle (§ 246—count 9), and active participation in a criminal street gang (§ 186.22, subd. (a)—count 10). The jury further found true the firearm allegations (§§ 12022.5, subd. (a), 12022.53, subds. (c) & (e)) and the criminal street gang allegation (§ 186.22, subd. (b)(1)) as to counts 1 through 9. (Henson, supra, C084770.) The trial court originally sentenced defendant to an aggregate indeterminate term of 50 years to life, plus an aggregate determinate term of eight months. (Henson, supra, C084770.)