P. v. Howard

Filed 6/15/06 P. v. Howard CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Tulare County. Paul A. Vortmann, Judge.

A. M. Weisman, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Carlos A. Martinez and Catherine G. Tennant, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Appellant Kenneth Wayne Howard appears before us a second time, after we initially affirmed his convictions, but vacated his sentence and remanded the matter for resentencing. In the present appeal, he contends the trial court erred by denying his motion for a new trial, and that sentencing errors occurred.[1] For the reasons that follow, we will hold that the court lacked authority to entertain the new trial motion and, with minor corrections and modifications to the sentence, we will affirm.

PROCEDURAL HISTORY[2]

Following a jury trial, appellant was convicted of numerous sexual offenses against his grandson, Brandon; his son, Kenneth; his daughter, Becky; his stepdaughter, Gayla; and his niece, Lori. Although Brandon was only 10 years old at the time of trial, the remaining victims were adults by then, and the jury found that the statute of limitations was extended with respect to the counts involving them. (Pen. Code,[3] § 803, subd. (g).) It was further determined, either by the jury or through appellant's admissions, that appellant had suffered two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and a prior serious felony conviction (§ 667, subd. (a)(1)); had served a prior prison term (§ 667.5, subd. (b)); had previously been convicted of violating section 288, had tied or bound his victim, and had committed violations of section 288 against multiple victims (§ 667.61, subds. (a), (b), (d), (e)); and was a habitual sexual offender (§ 667.71). At the time of the original sentencing, appellant moved for a new trial.[4] The motion was denied, and, on January 15, 2003, appellant was sentenced to an aggregate term of 124 years to life in prison. He appealed.

On July 10, 2003, while the appeal was pending, the trial court granted the prosecution's request to dismiss, pursuant to Stogner v. California (2003) 539 U.S. 607 (Stogner), 17 of the 20 counts on which appellant was convicted. This left three counts involving Brandon: aggravated sexual assault of a child (§ 269, subd. (a)(3); count 1), and two counts of lewd or lascivious acts on a child under age 14 (§ 288, subd. (a); counts 3 & 4). The court ordered that appellant be remanded for resentencing on those counts, and appellant subsequently again moved for a new trial.[5] The trial court denied the motion based on lack of jurisdiction. On October 17, 2003, it denied appellant's motion for reconsideration, and also declined to resentence him, reasoning that dismissal of the 17 counts did not affect the sentence originally imposed on the remaining three counts. On June 28, 2004, however, the court filed an amended abstract of judgment showing that appellant had been sentenced, ex parte, to an aggregate term of 80 years to life in prison on counts 1, 3, and 4. Appellant filed a timely notice of appeal from the resentencing.

On appeal, we affirmed the convictions on counts 1, 3, and 4, but held that the trial court was not entitled to resentence appellant ex parte. Accordingly, we vacated the sentences and remanded the matter for resentencing. With respect to appellant's second, post-Stogner new trial motion, we stated: â€