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The People v. Tommy Henderson

March 11, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
TOMMY HENDERSON, DEFENDANT AND APPELLANT.



(Super. Ct. No. 04F09012)

The opinion of the court was delivered by: Butz ,j.

P. v. Henderson CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

A jury convicted defendant Tommy Henderson of attempted solicitation of a crime (Pen. Code, § 664/653f, subd. (a)--count 4),*fn1 could not reach a verdict on a count of forcible oral copulation (§ 288a, subd. (c)(2)--count 1), and acquitted on counts of kidnapping for the purpose of oral copulation (§ 209, subd. (b)(1)) and conspiracy to solicit murder (§§ 653f, subd. (a), 182, subd. (a)(1)). The trial court sustained a prior strike allegation. On retrial, a jury convicted defendant of forcible oral copulation--count 1.

On June 30, 2006, the trial court sentenced defendant to an upper term of eight years in state prison--for forcible oral copulation(§ 288a, subd. (c)(2)--count 1), and a consecutive one-year upper term for attempted solicitation (§ 664/653f, subd. (a)--count 4), doubled to two years for the strike. On July 19, 2006, the trial court corrected the term for count 4 to the upper term of 18 months, doubled for the strike, for an aggregate sentence of 11 years.

Defendant appealed his conviction, which we affirmed in an unpublished opinion. (People v. Henderson (July 8, 2008, C053196) [nonpub. opn.].)

Defendant then filed a petition for habeas corpus seeking reversal of his conviction. On September 15, 2009, the trial court denied the petition, but vacated the original sentence because the prior strike had not been applied to the oral copulation charge.

Defendant was resentenced on October 30, 2009. The trial court found the strike did not apply to the oral copulation count because the offense predated the strike conviction. The court then imposed a 10-year term, consisting of an upper term of eight years for oral copulation, and a consecutive middle term of one year for attempted solicitation, doubled to two years for the strike.

Defendant appealed in case No. C063659, contending there is a mistake in the abstract, the consecutive upper term on the oral copulation count violated his rights to due process and jury trial, and the court improperly relied on conduct and convictions--occurring after the oral copulation offense was committed--when it resentenced him.

While the appeal was pending in case No. C063659, the trial court revisited defendant's sentence on April 20, 2010, after defendant moved for an amended abstract reflecting the October 30, 2009 resentencing order. Rather than issuing an amended abstract, the trial court found two errors in its October 30 order: (1) the order did not specify whether the consecutive term on the attempted solicitation count was for a full consecutive term under section 667.6, subdivision (c) or for one-third the middle term under section 1170.1, subdivision (a); and (2) the order did not set forth the reasons for imposing the middle term on the attempted solicitation count rather than the upper term as originally imposed. The court recalled the sentence pursuant to section 1170, subdivision (d), and imposed the original 11-year term.

Defendant moved to set aside the April 20, 2010 order. In response, the trial court issued a new order on June 24, 2010. After "again re-examining this matter," the court determined the original sentence imposed in June and July of 2006 was lawful, vacated the September 15, 2009, October 30, 2009, and April 20, 2010 orders, and directed the court clerk to prepare an amended abstract reflecting the original 11-year sentence as imposed.

Defendant appealed this order in case No. C066381, asserting the April 20, 2010, and June 24, 2010 orders were unauthorized, as the pending appeal in case No. C063659 divested the trial court of jurisdiction.

We consolidated case Nos. C063659 and C066381 for purposes of disposition. We shall affirm the trial court's order in case No. C066381, dismiss as moot the appeal in case No. C063659, and ...


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