People v. Henderson

• Decision Date: 14 September 2020
• Docket Number: B298366
• Citation: 54 Cal.App.5th 612,269 Cal.Rptr.3d 135
• Parties: The PEOPLE, Plaintiff and Respondent, v. Level Omega HENDERSON, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

54 Cal.App.5th 612

269 Cal.Rptr.3d 135

The PEOPLE, Plaintiff and Respondent,

v.Level Omega HENDERSON, Defendant and Appellant.

B298366

Court of Appeal, Second District, Division 7, California.

Filed September 14, 2020

Rudolph J. Alejo, Berkeley, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Blythe J. Leszkay and Kristen J. Inberg, Deputy Attorneys General, for Plaintiff and Respondent.

SEGAL, J.

INTRODUCTION

A jury found Level Omega Henderson guilty on two counts of assault with a semiautomatic firearm (one for each of two victims), one count of possession of a firearm by a felon, and one count of assault by means likely to produce great bodily injury. The trial court sentenced Henderson to a prison term of 27 years, which included consecutive terms on the two convictions for assault with a semiautomatic firearm.

Henderson argues his trial lawyer provided ineffective assistance by failing to call a percipient witness. Henderson also argues he is entitled to a new sentencing hearing because the trial court did not recognize it had discretion under the three strikes law to impose concurrent sentences on the two convictions for assault with a semiautomatic firearm. We conclude Henderson has not shown in this appeal that his trial attorney provided ineffective assistance at trial because the record does not disclose why his lawyer chose not to call the witness or that his attorney's decision was below the standard of care. We also conclude the trial court did not have discretion to impose concurrent sentences on the two convictions for assault with a semiautomatic firearm. Therefore, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Henderson Gets into a Fight

In March 2015 Henderson fought with Daniel Tillett in the courtyard of an apartment complex. At one point Henderson walked away from the area where they were fighting and went to his car. William Aguilar, who had been making some repairs at the apartment building, saw Henderson open the trunk of the car and walk back toward the courtyard holding a semiautomatic handgun. Aguilar called the 911 emergency operator.

A few minutes later Henderson returned to his car and drove away.¹ After Henderson left, Aguilar went to the courtyard and saw Tillett and a woman named Tiffany. Tillett was bleeding from his face. Aguilar agreed to take Tillett to the hospital, but before they left, Henderson returned to the courtyard holding the same gun Aguilar had seen before. With his right hand Henderson hit Tillett in the face with the butt of the gun, and with his left hand he hit Tillett with an uppercut to his jaw. Tillett fell to the ground. Tiffany yelled at Henderson, "Please do not kill my baby's daddy." Henderson pointed the gun in a "sweeping motion" at both Tiffany and Aguilar. Aguilar ran to his truck, saw a police car, and flagged it down.

Two police officers went to the apartment complex and saw Henderson standing over Tillett on the ground. Henderson hit Tillett several more times before fleeing to a vacant apartment unit. The officers did not follow Henderson into the apartment. Five minutes later, Henderson walked out of the apartment unarmed. The police searched the apartment and discovered a torn window screen in the bathroom. The police also found a semiautomatic handgun on the ground in a small atrium "directly below the window." The only access to the atrium was through the windows of a few apartments and the roof of the apartment building.

B. The People Charge Henderson with Multiple Crimes

The People charged Henderson with one count of assault with a semiautomatic firearm on Tillett ( Pen. Code, § 245, subd. (b), count 1),² one count of assault with a semiautomatic firearm on Aguilar (count 5), one count of possession of a firearm by a felon (§ 29800, subd. (a)(1), count 3), and one count of assault by means likely to produce great bodily injury on Tillett ( § 245, subd. (a)(4), count 4).³ The People alleged that Henderson had four prior serious or violent felony convictions within the meaning of the three strikes law (§§ 667, subds. (b)-(j), 1170.12), that Henderson had two prior serious felony convictions within the meaning of section 667, subdivision (a)(1), and that Henderson served four prior separate prison terms within the meaning of section 667.5, subdivision (b).

C. A Jury Convicts Henderson on All Counts

At trial the People called several witnesses, including Aguilar and the two police officers who arrived at the apartment complex. The People did not call Tillett or Tiffany. The parties stipulated Henderson had been convicted of a felony. Henderson did not call any witnesses. The jury found Henderson guilty on all counts.

D. The Trial Court Denies Henderson's Motion for New Trial

Prior to sentencing, the trial court granted Henderson's motion to represent himself under Faretta v. California (1975) 422 U.S. 806, , 45 L.Ed.2d 562. After several continuances, however, and at Henderson's request, the court appointed new counsel for Henderson. Henderson filed a motion for new trial, attaching a handwritten declaration from Tiffany stating that, "during the course of the physical altercation" between Henderson and Tillett, she did not see Henderson "with any weapon" and that she saw Henderson and Tillett "fighting with their fists only." Henderson also attached a transcript of his investigator's interview with Tiffany where Tiffany stated that neither the prosecutor nor Henderson's prior attorney subpoenaed her to testify and that, had she been served with a subpoena, she would have testified. Henderson argued, among other things, that his prior lawyer rendered ineffective assistance by failing to "fully investigate and secure the attendance of" Tiffany at trial. The trial court denied Henderson's motion for new trial.

E. The Trial Court Sentences Henderson

In a bifurcated proceeding, the trial court found true all of the prior conviction allegations. On Henderson's motion, the court struck three of Henderson's four prior serious or violent felony convictions under the three strikes law, one of his two prior serious felony convictions under section 667, subdivision (a)(1), and all of his four prior prison terms under section 667.5, subdivision (b). The trial court sentenced Henderson to a prison term of 27 years, consisting of the upper term of nine years on count 1, doubled under the three strikes law, a consecutive term of four years on count 5 (one-third the middle term of six years, doubled under the three strikes law), and five years for the remaining enhancement under section 667, subdivision (a)(1). The court also imposed and stayed under section 654 a three-year term on count 3 and a four-year term on count 4. Henderson timely appealed.

DISCUSSION

A. Henderson Has Not Shown His Trial Counsel Provided Ineffective Assistance at Trial

Henderson argues his trial attorney provided ineffective assistance by failing to interview Tiffany and call her to testify at trial. Henderson contends his attorney's performance was deficient because Tiffany's statement that she did not see Henderson with a gun "would have directly supported" Henderson's theory at trial that he "never used a gun" during his fight with Tillett. The People argue Henderson cannot establish his trial counsel's performance was deficient because the record does not disclose why counsel did not call Tiffany as a witness.

"To make out a claim that counsel rendered constitutionally ineffective assistance, ‘the defendant must first show counsel's performance was deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms. Second, the defendant must show resulting prejudice, i.e., a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different.’ " ( People v. Hoyt (2020) 8 Cal.5th 892, 958, 257 Cal.Rptr.3d 784, 456 P.3d 933 ( Hoyt ); accord, People v. Mai (2013) 57 Cal.4th 986, 1009, 161 Cal.Rptr.3d 1, 305 P.3d 1175.) "Whether counsel's performance was deficient, and whether any deficiency prejudiced defendant, are mixed questions of law and fact subject to our independent review." ( In re Gay (2020) 8 Cal.5th 1059, 1073, 258 Cal.Rptr.3d 363, 457 P.3d 502.)

"Usually, ‘ineffective assistance [of counsel claims are] more appropriately decided in a habeas corpus proceeding.’ " ( Hoyt , supra , 8 Cal.5th at p. 958, 257 Cal.Rptr.3d 784, 456 P.3d 933.) On direct appeal, "we may reverse ‘only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation.’ " ( People v. Arredondo (2019) 8 Cal.5th 694, 711, 256 Cal.Rptr.3d 574, 454 P.3d 949 ; see People v. Mai , supra , 57 Cal.4th at p. 1009, 161 Cal.Rptr.3d 1, 305 P.3d 1175.) " ‘All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding.’ " ( Hoyt , at p. 958, 257 Cal.Rptr.3d 784.)

Henderson does not argue (1) or (2), and nothing in the record affirmatively discloses his trial counsel had no rational tactical purposes for not interviewing Tiffany or calling her as a witness or indicates that anyone asked his attorney why she did not or that she failed to respond to such an inquiry. Henderson argues only (3): His trial counsel's decision not to call Tiffany was "per se unreasonable"; i.e., there could be no satisfactory explanation for her decision.

But there were several reasons Henderson's trial counsel may have decided not to call Tiffany, reasons to which we defer. (See People v. Carrasco (2014) 59 Cal.4th 924, 989, 175 Cal.Rptr.3d 538, 330 P.3d 859 ["The decision whether to call certain witnesses is a ‘matter[ ] of trial tactics and strategy which a reviewing court...