People v. Henderson ( 2020 )

Filed 3/30/20
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D076200
Plaintiff and Respondent, (Super. Ct. Nos.
FSB17002568, FSB17002569)
v.
ORDER DENYING REHEARING
IAN ALEXANDER HENDERSON et al., AND MODIFYING OPINION
Defendants and Appellants. [NO CHANGE IN JUDGMENT]
THE COURT:
The petition for rehearing is denied.
It is ordered that the opinion filed herein on March 13, 2020, be modified as
follows:
On page 24, the name "Hernandez" is removed from the second full paragraph and
replaced with the name "Henderson" so that the paragraph now reads:
Because we are vacating Henderson's sentence and remanding for further
sentencing proceedings, we need not decide whether the trial court abused or was
within its broad discretion in imposing a concurrent prison term on count 2.
(People v. Clancey (2013) 56 Cal. 4th 562, 579 [court has broad discretion to
decide whether to run prison terms on multiple offenses concurrently or
consecutively].) On remand, the trial court must resentence Henderson after
deciding whether to exercise its discretion to strike his five-year prior serious
felony enhancement (see part VI, post). If the court elects consecutive sentences it
must state reasons for its decision. (People v. Sperling (2017) 12 Cal. App. 5th
1094, 1103 ["A trial court is required to state its reasons for imposing consecutive
sentences"]; see Cal. Rules of Court, rule 4.406(b)(5).) And while "[o]nly one
criterion or factor in aggravation is necessary to support a consecutive sentence"
(People v. Davis (1995) 10 Cal. 4th 463, 552; see People v. King (2010) 183
Cal. App. 4th 1281, 1323), the trial court is precluded from using the same facts to
impose a consecutive sentence and otherwise enhance Henderson's prison
sentence. (See Cal. Rules of Court, rule 4.425(b)(1).)
On page 36, the name "Hernandez" is removed from the disposition and replaced
with the name "Henderson" so that the disposition now reads:
"The sentences of Henderson and Marks are vacated and the matters
remanded with directions that the trial court resentence both defendants and in
doing so determine (1) whether to impose a consecutive or concurrent sentence for
Henderson's count 2 conviction; and (2) whether to strike Henderson's and Marks's
five-year enhancement under Penal Code sections 667, subdivision (a)(1) and
1385. In all other respects the
judgments are affirmed."
There is no change in the judgment.
BENKE, Acting P. J.
Copies to: All parties
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