People v. Henderson
| Decision Date | 09 September 2021 |
| Docket Number | C088883 |
| Citation | 68 Cal.App.5th 709,283 Cal.Rptr.3d 687 |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Kejhonne M. HENDERSON, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
Certified for Partial Publication.*
Byron C. Lichstein, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, Supervising Deputy Attorney General, Timothy L. O'Hair, Deputy Attorney General, for Plaintiff and Respondent.
Defendant Kejhonne M. Henderson shot and killed J.P. at a house party in the North Highlands neighborhood of Sacramento. Upset that music of a local rapper disparaging his neighborhood's gang was being played, defendant exchanged heated words with the party's host. When J.P. intervened, he and defendant agreed to step outside. On their way to the door, defendant pulled a handgun out of his waistband and, when they got outside, shot J.P. multiple times in the head and chest. A.J., one of the party goers tackled defendant and knocked the gun out of his hand. Defendant regained possession and shot A.J. multiple times before fleeing. J.P. died before emergency services arrived at the scene, but A.J. survived.
A jury found defendant guilty of one count of second degree murder ( Pen. Code, § 187 )1 and one count of attempted murder (§§ 664/187) and found true enhancement allegations that defendant personally discharged a firearm causing great bodily injury or death (§ 12022.53, subd. (d)) as to each count. The trial court sentenced defendant to serve an aggregate determinate term of seven years plus an aggregate indeterminate prison term of 65 years to life.
On appeal, defendant contends: (1) the trial court prejudicially abused its discretion and violated his federal constitutional right to a jury drawn from a representative cross-section of the community by excusing two African-American prospective jurors for cause based on their stated belief that the criminal justice system treats African-Americans unfairly and because they were sympathetic towards defendant; (2) the trial court abused its discretion in dismissing a sitting juror during trial for dishonesty; (3) the prosecutor violated defendant's federal constitutional rights by intentionally obtaining privileged and confidential information from the Director of the Conflict Criminal Defenders about defense counsel's attempts to obtain expert witness funding; (4) the trial court prejudicially abused its discretion and further violated defendant's constitutional rights by allowing the prosecutor to present assertedly misleading testimony and argument regarding the defense's ability to perform an independent forensic analysis; (5) the trial court prejudicially erred by improperly instructing the jury regarding circumstantial evidence; (6) the cumulative prejudicial impact of the foregoing asserted errors requires reversal; (7) the trial court abused its discretion by not considering reducing the 25 years to life firearm enhancements to lesser included firearm enhancements; (8) the trial court erred by imposing a restitution fine without an ability to pay hearing in violation of People v. Dueñas (2019) 30 Cal.App.5th 1157, 242 Cal.Rptr.3d 268 ( Dueñas ); and (9) trial counsel provided constitutionally ineffective assistance of counsel by not submitting a Franklin2 package for future youthful offender parole consideration.
In the published portion of this opinion, we conclude that a trial court may not excuse for cause African-American prospective jurors solely because of their belief that the criminal justice system treats African-Americans unfairly, but reject defendant's assertion that the two African-American prospective jurors here were excused for that reason. They were excused because the trial court concluded that, based on the voir dire evidence, they could not be impartial because of their bias and sympathy for defendant. On this record, we cannot conclude the court's ruling was an abuse of discretion; nor was defendant's constitutional right to a jury drawn from a representative cross-section of the community violated.
We further conclude the trial court erred in excusing a seated juror under section 1089, because the record does not demonstrate to a demonstrable reality that the juror could not perform his duties. However, applying the harmless error standard in People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243 ( Watson ), we conclude the error was harmless.
In the unpublished portion of this opinion, we reject defendant's other claims of error.
We affirm.
On May 5, 2017, defendant's girlfriend S.S. drove him to the house party.3 The host of the party was one of S.S.’s former friends, M.L. When S.S. pulled up, she saw "a crowd of people like outside" the party location, including M.L.’s mother. S.S. walked up with defendant and gave M.L.’s mother a hug before continuing into the house.
Inside the house, M.L. was playing music. When S.S. walked in with defendant, a song by Mozzy was playing. As the prosecution's gang expert testified, Mozzy is a rapper and validated member of the Fourth Avenue Bloods from Oak Park. His lyrics disparage rival Del Paso Heights Bloods gang members, and people from "the Heights" do not like his music.
S.S. spoke to M.L. in the living room while defendant exchanged words with another young man who was also in the living room. As M.L. explained in her police interview, while she could not hear what was being said between defendant and the other young man, there "was clearly a problem."4
Defendant then turned his attention to M.L., saying "turn that sucka shit off" and "strictly twos Del Paso Heights." M.L. understood this to mean he wanted her to change the Mozzy song that was playing. As she did so, defendant "just kept talking, talking about stupid twos, strictly the Heights, da-da-da-da-da, one Del Paso, this and that sucka shit."5
While defendant was confronting M.L. over the music, her close friend, J.P., entered the living room from the kitchen and asked her if she was okay. J.P. then confronted defendant, who responded: J.P. agreed. As they turned to step outside, defendant pulled a handgun out of his waistband and held it by his side. One of J.P.’s friends, J.M., saw defendant pull out the gun and walked out of the house ahead of defendant and J.P. Defendant opened fire on J.P. as soon as they got outside, shooting J.P. multiple times including the back of the head.6 As J.M. described in his statement to police: "He didn't even give him a chance." J.M. ran away after the first couple rounds were fired, but not before seeing defendant shoot his friend in the head and lower back. A different witness to the shooting explained in her statement to police that three rounds were fired while J.P. was standing. Five or six additional rounds were fired after J.P. fell to the ground.
When defendant stopped firing, another of J.P.’s friends, A.J, chased defendant and tackled him to the ground, knocking the gun out of his hand.
Defendant managed to pick up the gun and then shot A.J. three times before running away. M.L.’s mother, who was still outside when the shooting occurred, was also hit in the calf by one of the rounds fired by defendant. She and A.J. survived their injuries. J.P. died before emergency services arrived at the scene.
As noted, while complaining about the music prior to the shooting, defendant refenced "stupid twos" and "strictly twos Del Paso Heights" while demanding that the party hosts "turn that sucka shit off". A gang expert testified that members of the Del Paso Heights Bloods often use a gang sign meant to display the letter H, which "stands for The Heights." This gang sign involves extending the pointer and pinky finger up. Referring to this gang sign, Del Paso Heights Bloods often verbally claim membership in the gang by saying some variation of: "Twos Up, stupid twos, It's all about the twos."
The term "Su[c]ka" is a derogatory term for rival gang members. The expert further opined that if a Mozzy song was playing at a party in Sacramento and a person said, " ‘Shut that suc[k]a off,’ " that would indicate that person was affiliated with a rival gang.
Although witnesses who previously identified defendant did not do so at trial, proof of defendant's identity as the shooter was nevertheless strong. Both J.M. and M.L. identified him out of a photo lineup. J.M. also described defendant as being a "dark skinned" African-American male, 5 feet 9 inches to 5 feet 10 inches in height, and about 170 to 180 pounds. He further explained that defendant was wearing a blue hooded jacket when he walked into the party with a girl that generally matched S.S.’s description. The host described defendant as being, "probably like six-three, six-four," and bigger in build, "maybe like 230," but confirmed he was wearing a "navy blue" hooded sweatshirt with a "yellow Polo symbol" and also identified S.S. as the person he was with when they arrived at the party. Another witness, who did not identify defendant, described the shooter as being a "dark skinned" African-American male, 5 feet 11 inches to 6 feet in height, and wearing a "dark blue" hooded sweatshirt.
From M.L.’s position inside the house, she was able to see S.S.’s response to the shooting. As M.L. explained, when the shooting started outside, "everyone was trying to get in" except for S.S. She pushed through the crowd of people coming inside and left the house. M.L. assumed she was leaving with defendant. This assumption turned out to be correct. As S.S.’s little brother, V.S., explained to a detective, he was playing video games at his home with a friend until around 2:00 a.m. At some point that night, S.S. and defendan...
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