In re Henderson 10/1/09 CA2/3

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B208829

Case Date: 11/19/2009

Preview:Filed 10/1/09 In re Henderson CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SECOND APPELLATE DISTRICT DIVISION THREE

In re CARL HENDERSON, on Habeas Corpus.

B208829 (Los Angeles County Super. Ct. No. BH04363

APPEAL from an order granting a petition for a writ of habeas corpus of the Superior Court of Los Angeles County, Steven R. Van Sicklen, Judge. Affirmed. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Heather Bushman, Jennifer A. Neill and Gregory J. Marcot, Deputy Attorneys General, for Appellant D.K. Sisto, as Wardon, etc.

A. William Bartz, Jr., for Respondent Carl Henderson. _____________________

INTRODUCTION The Board of Parole Hearings (Board) granted respondent Carl Henderson parole. Governor Arnold Schwarzenegger, however, reversed the Boards decision. Henderson then filed a petition for a writ of habeas corpus, which was granted by the superior court. Appellant D.K. Sisto (Warden Sisto or Sisto), the Warden of California State Prison, Solano, where Henderson is incarcerated, appeals the order granting Hendersons petition. We affirm the superior courts order and reinstate the Boards order granting Henderson parole. FACTUAL AND PROCEDURAL BACKGROUND 1. Pre-Conviction Personal History

Henderson was born in 1953. After graduating from high school and completing one year of college, Henderson served in the United States Navy for two years. Henderson received a medical discharge from the Navy in 1974. From 1974 until his incarceration in 1981, Henderson maintained steady employment working as a machine operator and janitor. Henderson was married in 1973. Although he separated from his wife in 1976, it is unclear from the record whether he obtained a divorce. Henderson has one daughter, with whom he has maintained a relationship. 2. Previous Record of Crime

As a juvenile, Henderson was charged with burglary and released to his parents. He was also charged with unlawful solicitation in connection with the sale of candy without a license. In 1976, Henderson was convicted for driving under the influence of alcohol. In 1981, he was convicted for being drunk in public. Henderson was never a member of a gang and, except for the commitment offense, was never charged with a crime involving violence. 3. Commitment Offense Hendersons life was forever changed by the events that occurred in the evening hours of August 25, 1981. About two weeks before the incident, Henderson temporarily 2

moved in with his aunt and cousin in Compton. Hendersons cousin was a member of the Piru gang. On the night before the incident, a member of the Santana Crips gang had been killed, allegedly by Hendersons cousin. In anticipation of a confrontation with the Santana Crips gang, members of the Piru gang gathered firearms and went to Oak Park in Compton. At the park, a confrontation between the rival gangs ensued. Witnesses testified that they saw Henderson fire a shotgun at 17-year-old Kennedy Johnson. Johnson was then shot and killed by a Piru gang member. Although Henderson admitted taking a shotgun into his aunts house and laying it on the table, he denied being at the park and denied shooting at Johnson. The jury, however, found Henderson guilty of murder (Pen. Code,

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