People v. Henderson CA5

Filed 11/15/23 P. v. Henderson CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F084750 Plaintiff and Respondent, (Super. Ct. No. F21900035) v.

GERMAN DWAYNE HENDERSON, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Gregory T. Fain, Judge. Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kimberley A. Donohue and Annabella Yousif, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P. J., Franson, J. and Meehan, J.

Defendant German Dwayne Henderson raises only one issue in this appeal following his convictions for first degree murder and assault with a firearm. Specifically, defendant contends the trial court’s decision to impose two use of a firearm enhancements as part of his sentence results in a violation of Penal Code1 section 1385, subdivision (c)(2) because the sentence exceeded 20 years. We disagree and affirm the sentence imposed. PROCEDURAL SUMMARY On February 23, 2021, an information was filed charging defendant with murder (§ 187, subd. (a), a felony; count 1), attempted murder (§§ 664/187, subd. (a), a felony; count 2), and assault with a firearm (§ 245, subd. (a)(2), a felony; count 3). Along with these charges, the information contained allegations supporting various enhancements attached to each count involving the use of a firearm (§ 12022.53, subd. (d)) and the infliction of great bodily injury (§ 12022.7, subd. (a)). Following a jury trial, defendant was found guilty of first degree murder (count 1) and committing an assault with the use of a firearm (count 3) on April 4, 2022. The jury also found true the allegations that defendant intentionally discharged a firearm within the meaning of section 12022.53, subdivision (c)2 as to count 1, and personally used a firearm within the meaning of section 12022.5, subdivision (a) as to count 3.3

1 All further statutory references are to the Penal Code. 2 Although the information only identified subdivision (d) of section 12022.53 as a possible enhancement to count 1, the verdict form presented to the jury and signed by the jury foreman listed both subdivisions (c) and (d) as available enhancements. The jury found the allegation that defendant violated section 12022.53, subdivision (d) “not true,” but found “true” the allegation defendant used a firearm as defined in section 12022.53, subdivision (c). No challenge to that verdict form has been raised in this appeal. 3 Section 12022.5, subdivision (a) is a mandatory enhancement under subdivision (d) of section 12022.5, as discussed in People v. Ledesma (1997) 16 Cal.4th 90, 97–101.