Filed 9/25/14 P. v. Henson CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


THE PEOPLE,

      Plaintiff and Respondent,                                        G049599

 v.                                                                    (Super. Ct. No. 12WF1578)

JONATHAN HENSON,                                                       OPINION

      Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Dan
McNerney, Judge. Affirmed.
                   Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   No appearance for Plaintiff and Respondent.

                                             *               *               *
              Appellant Jonathan Henson was convicted by a jury of carjacking (Pen.
Code, § 215) and it was found to be true that he personally used a firearm within the
meaning of Penal Code section 12022.53, subdivision (b). He was sentenced to the low-
term of three years for the carjacking and 10 years was added for the firearm conviction.
              He filed a timely appeal and we appointed counsel to represent him on
appeal. While not arguing against appellant, counsel filed a brief which fully set forth the
facts of the case and advised us there were no arguable issues on appeal. The brief
included a review of the record and consideration of possible arguments, but concluded
none of those arguments had any chance of success.
              We informed appellant he had 30 days to file written argument in his own
behalf. More than three months have passed, and we have received no such argument, so
it appears he does not intend to file one. We have reviewed the record of appellant’s trial
and the brief filed by his counsel. We can find no flaw in the court’s actions in this case,
and find ourselves in agreement with appellate counsel: There is no arguable error in the
proceedings against appellant. (People v. Wende (1979) 25 Cal.3d 436.)
                                          FACTS
              Late one night in 2006, Nguyen Vu got into his 2001 BMW. He noticed
three men in their early twenties walking toward him, two apparently Hispanic, the third
apparently Caucasian, all wearing sweatshirts. One knocked on his window. As Vu
rolled down the window, the man ordered him out of the car and showed the
semiautomatic handgun with which he had knocked on the window. He told Vu he
would shoot him if he did not get out of the car. When Vu did so, the man told him to go
home. The three men got into the car and drove off.
              Police found the BMW three hours later. There was a high-speed chase
which ended when the BMW crashed into a planter. The four Hispanic men in the car



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escaped, but a search of the vehicle turned up methamphetamine in a plastic baggie and
two sweatshirts.
              DNA testing on the baggie and sweatshirts provided the names of appellant
and one other suspect. Vu was unable to identify the other suspect – who turned out to be
an associate of appellant – but he did pick out appellant who, despite his name, is of
Hispanic heritage, and made a tentative identification: he said the photo of appellant
looked like the man with the gun, but he looked older in the photo and Vu could not say
he was one hundred percent sure.
              A duly-qualified forensic scientist testified the odds against the DNA found
on one of the sweatshirts matching someone other than appellant were roughly 1 in 4,000.
The odds against it matching someone other than appellant’s associate were 1 in one
trillion.
                                          DISCUSSION
              We have carefully scrutinized the trial record. The case was unremarkable
in its facts and without any flaws that would have formed the basis of a convincing
defense. Defense counsel argued the uncertainty of the identification and the fact the
DNA evidence would have included many people other than defendant. One in 4,000 is
hardly definitive in a county of three million next door to a megalopolis.
              But the ineluctable fact is defendant was picked out of a photo showup, the
DNA matched his, and DNA found on other items in the car matched that of an admitted
associate of appellant. This is hardly an open-and-shut case, but it was clearly enough to
support the jury’s verdict, and we have no power to second-guess their factual call.
              The trial presented no rulings or problems beyond those encountered in
every such trial. We found no evidentiary mistakes or instructional error. Viewing the
evidence in the light most favorable to the verdict, as we are required to do (People v.
Young (2005) 34 Cal.4th 1149, 1180), there was plenty here that was reasonable,
credible, and of solid value to support a verdict beyond a reasonable doubt. (People v.

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Johnson (1980) 26 Cal.3d 557, 578.)




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                                     DISPOSITION
               Appellate counsel was right: there are no issues on appeal. The judgment
is affirmed.




                                                BEDSWORTH, ACTING P. J.


WE CONCUR:



MOORE, J.



IKOLA, J.




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