IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT Sacramento
March 11, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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Defendant appealed his conviction, which we affirmed in an unpublished opinion.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 order corrections to the amended abstract of judgment.
We dispense with a recitation of the underlying facts of defendant's crimes as they are unnecessary to the resolution of these appeals.
Defendant argues the October 30, 2009 order was a valid exercise of the trial court's sentencing authority. Asserting the pending appeal in case No. C063659 deprived the trial court of authority to issue the April 20, 2010, and June 24, 2010 orders, defendant asks us to vacate these orders and address alleged errors in the October 30, 2009 order.
A pending appeal normally deprives the trial court of jurisdiction over any matter affecting judgment. (People v. Alanis (2008) 158 Cal.App.4th 1467, 1472-1473.) However, the trial court retains jurisdiction to correct an unauthorized sentence at any time, even during a pending appeal. (People v. Cunningham (2001) 25 Cal.4th 926, 1044-1045; People v. Blume (1960) 183 Cal.App.2d 474, 476-478.)
A sentence is "unauthorized" and void when the sentence "could not lawfully be imposed under any circumstance in the particular case." (People v. Scott (1994) 9 Cal.4th 331, 354.) This "commonly occurs where the court violates mandatory provisions governing the length of confinement." (Ibid.) A sentence is also "'unauthorized'" where the sentencing court acts "'in excess of its jurisdiction.'" (Id. at p. 354, fn. 17.)
Defendant asserts the October 30, 2009 sentence was authorized because the term imposed on that day complied with the determinate sentencing law. He is mistaken.
A trial court has limited jurisdiction to change a sentence after judgment. Once judgment is rendered, the sentencing court is without jurisdiction to vacate or modify the sentence, except pursuant to the provisions of section 1170, subdivision (d). (See Portillo v. Superior Court (1992) 10 Cal.App.4th 1829, 1834-1835.) The statutory exception allows a sentencing court, on its own motion, to recall and resentence, subject to the express limitation that the court loses such jurisdiction if it fails to recall a sentence within 120 days of the original commitment. (See Dix v. Superior Court (1991) 53 Cal.3d 442, 464.) The only other exception is the trial court's jurisdiction to correct an unauthorized sentence, as described above.
The trial court did not have jurisdiction to resentence defendant on October 30, 2009, as it was more than 120 days since the original sentence was entered on June 30, 2006, and corrected on July 19, 2006. Since the original sentence was authorized, the trial court could not enter a new sentence on October 30, 2009. The October 30, 2009 sentence was unauthorized, and could be corrected by the trial court at any time, notwithstanding the pending appeal in case No. C063659. Likewise, the September 15, 2009 decision was unauthorized, as it vacated a valid sentence after the 120-day time limit of section 1170, subdivision (d).
Although the April 20, 2010 decision came to the right result--imposing the original sentence imposed in June and July of 2006--the court used the wrong mechanism, the recall provision of section 1170, subdivision (d) more than 120 days after judgment. The court rectified its errors with the June 24, 2010 decision, vacating the unauthorized orders of September 15, 2009, October 30, 2009, and April 20, 2010.
Accordingly, we shall affirm the June 24, 2010 order in case No. C066381. Since this vacates the October 30, 2009 order, defendant's appeal in case No. C063659 is dismissed as moot.
We have identified an error in the amended abstract. The abstract for the June 24, 2010 order incorrectly identifies the sentence for attempted solicitation as the middle term, rather than the upper term actually imposed. We shall order the trial court to prepare a corrected abstract of judgment.
The judgment (June 24, 2010 order) is affirmed in case No.C066381. The appeal in case No. C063659 is dismissed as moot. The trial court is directed to prepare a corrected abstract reflecting that defendant was sentenced to an upper term for attempted solicitation (§§ 664/653f, subd. (a)--count 4). The court shall forward a certified copy of the corrected abstract to the Department of Corrections and Rehabilitation.
We concur: NICHOLSON, Acting P. J. MAURO,J.