People v. Henderson

Opinion

ROUSE, Acting P.J.

Defendant James Henderson appeals from a judgment and conviction imposed after he was tried by a jury and found guilty of robbery, in violation of Penal Code

1

section 211.

2

The People also appeal, contending that the trial court erroneously ruled that defendant’s prior conviction of violating section 288a did not constitute a prior serious felony within the meaning of section 667, subdivision (a).

The Evidence

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[1237]

I.-VI.

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VII.

People’s Appeal

As we have previously noted, the People have also appealed, pursuant to section 1238, subdivision (10), which authorizes the People to appeal from the imposition of an unlawful sentence, contending that the trial court was required, but failed, to enhance defendant’s sentence by five years based upon his prior conviction for violating section 288a. This question was argued at some length after the jury had returned its verdict convicting defendant of robbery.

Defendant’s prior conviction occurred in August 1982 and was for an offense committed on July 15, 1982, after the passage of Proposition 8. On the date when the prior crime was committed, section 288a defined oral copulation, and subdivision (c) of that statute provided, in pertinent part, that any person who participated in an act of oral copulation with another person who was under fourteen years of age and more than ten years younger than he, or when the act was accomplished against the victim’s will by means of force, violence, duress, menace or fear, would be punished by three, six or eight years in state prison. At the sentencing hearing in this case and in written briefs filed by the parties prior to that hearing, it was agreed by all concerned that the prior conviction had resulted in defendant’s being placed on probation, pursuant to a plea bargain, after pleading guilty to participating in an act of oral copulation with a child under 14 years of age and more than 10 years younger than defendant. There was no mention, in the prior charge or plea, of defendant’s having used force, violence, duress, menace or fear.