Filed 7/31/17 P. v. Curtis 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

JONATHAN CURTIS,

Defendant and Appellant.
C082470

(Super. Ct. Nos. 11F04056, 10F07217)




Defendant Jonathan Curtis appeals from the trial court’s denial of his Proposition 47 petitions (Pen. Code, § 1170.18) for resentencing. He contends the trial court erred in finding his convictions for unlawfully driving or taking a vehicle and receiving a stolen vehicle were not subject to resentencing. Finding the trial court lacked jurisdiction to entertain his petitions, we shall dismiss the appeal and direct the trial court to vacate its rulings on the matter.
BACKGROUND
On November 20, 2013, defendant was convicted by plea in case No. 11F04056 of receiving a stolen vehicle with a prior conviction of unlawfully driving or taking a vehicle, three counts of unlawfully driving or taking a vehicle with prior convictions of the same, and grand theft, along with a strike allegation. (People v. Curtis (Oct. 28, 2016, C076045) [nonpub. opn.] at pp. 1-3 (Curtis).) Defendant was on probation at the time after being convicted of receiving a stolen vehicle in an earlier case (case No. 10F07217). (Id. at p. 2, fn. 2.) On January 24, 2014, the trial court terminated probation in the earlier case, and, sentencing defendant in both cases, imposed a 13-year four-month state prison term.
Defendant appealed the judgment of conviction on March 21, 2014. We affirmed the conviction in an unpublished opinion on October 28, 2016. (Curtis, supra, C076045, at p. 2.) On January 11, 2017, the California Supreme Court granted defendant’s petition for review and deferred briefing pending consideration and disposition of related issues in People v. DeHoyos, S228230; People v. Page, S230793; and People v. Romanowski, S231405, or further order of the court. (People v. Curtis (Jan. 11, 2017, No. S238857) ___Cal.4th___ [2017 Cal. LEXIS 315].)
On December 3, 2015, defendant filed a section 1170.18 petition for resentencing as to all of his convictions in the two cases. He filed another petition the following day. On December 17, 2015, the trial court granted the petition as to the grand theft conviction, denied relief as to the other convictions, and resentenced defendant to a one-year term with time served for the theft conviction, modifying his state prison term to 12 years. On June 15, 2016, defendant filed a new petition seeking relief on the unlawful driving or taking and possession of a stolen vehicle convictions, which the trial court deemed a motion for reconsideration. The trial court denied the motion on the same day.
Defendant filed a notice of appeal on July 12, 2016.
DISCUSSION
Defendant contends the trial court erred in denying his petition as to his convictions for unlawfully driving or taking a vehicle and receiving a stolen vehicle because those crimes are subject to Proposition 47 relief. We do not reach either contention because the trial court was without jurisdiction to hear defendant’s petitions, both the initial petition and the motion for reconsideration.
“Subject to limited exceptions, well-established law provides that the trial court is divested of jurisdiction once execution of a sentence has begun. [Citation.] And, ‘[t]he filing of a valid notice of appeal vests jurisdiction of the cause in the appellate court until determination of the appeal and issuance of the remittitur.’ [Citations.] This rule protects the appellate court’s jurisdiction by protecting the status quo so that an appeal is not rendered futile by alteration. [Citations.] As a result of this rule, the trial court lacks jurisdiction to make any order affecting a judgment, and any action taken by the trial court while the appeal is pending is null and void. [Citation.]” (People v. Scarbrough (2015) 240 Cal.App.4th 916, 923.)
Applying Scarbrough, the People assert the trial court lacked jurisdiction to rule on any of defendant’s requests for relief as to case No. 11F04056 and asks us to declare the trial court’s orders on his section 1170.18 petition and petition for reconsideration void as to case No. 11F04056. The People additionally argue that the trial court had authority to rule on defendant’s petitions as to his conviction for receiving a stolen vehicle in the earlier case because the time for defendant to challenge the nature of that conviction (whether felony or misdemeanor) in that case was in 2011, when he was convicted and placed on probation. In his reply brief, defendant argues that if we follow Scarbrough, he should be allowed to file a section 1170.18 petition for his crimes in case No. 11F04056 when that case becomes final.
The pendency of defendant’s appeal deprived the trial court of jurisdiction to rule on defendant’s petitions as to either case. Defendant did not just seek to change the felony designation of his conviction for receiving a stolen vehicle in the earlier case. He petitioned for “recall of sentence” and resentencing in the earlier case. (§ 1170.18, subd. (a).) A defendant may be convicted in multiple cases but still receives a single indivisible sentence. (See § 1170.1, subd. (a); People v. Hill (1986) 185 Cal.App.3d 831, 834 [“an aggregate prison term is not a series of separate independent terms, but one term made up of interdependent components”].) While defendant’s conviction for receiving a stolen vehicle in the earlier case was final when he filed his section 1170.18 petitions, his sentence was not. Accordingly, “the trial court lacked jurisdiction to recall defendant’s sentence and to resentence him pursuant to section 1170.18 while this appeal was pending.” (People v. Scarbrough, supra, 240 Cal.App.4th at p. 929.) The trial court’s orders as to both petitions are therefore void.
A question remains as to the disposition of this appeal. “ ‘ “It is settled that the right to appeal is statutory and that a judgment or order is not appealable unless expressly made so by statute.” [Citations.]’ [Citation.]” (Teal v. Superior Court (2014) 60 Cal.4th 595, 598.) “Stated simply, a criminal appeal by the defendant may be taken only from ‘a final judgment of conviction’ (§§ 1237, subd. (a), 1466, subd. (2)(A)) or from ‘any order made after judgment, affecting the substantial rights’ of the party (§§ 1237, subd. (b), 1466, subd. (2)(B)).” (People v. Gallardo (2000) 77 Cal.App.4th 971, 980.) Since the trial court lacked jurisdiction to enter the orders as to either petition, the appeal should be dismissed. (People v. Turrin (2009) 176 Cal.App.4th 1200, 1208; People v. Mendez (2012) 209 Cal.App.4th 32, 34.)
Simply dismissing defendant’s appeal would leave in effect the trial court’s invalid orders granting defendant’s petition as to the grand theft conviction and resentencing him on that offense as well as its orders denying relief on the other offenses. Defendant raised two claims in the appeal from his conviction, asserting he should be allowed to withdraw from his plea due to a false promise of appealability as to the prior strike and asking this court to reduce his convictions to misdemeanors pursuant to Proposition 47. (Curtis, supra, C076045, at p. 2.) The trial court’s invalid order on the grand theft conviction potentially interferes with our and the Supreme Court’s resolution of the Proposition 47 issue, an unacceptable outcome.
Since the trial court’s order granting the petition on the grand theft conviction is not before us, we cannot vacate the order. However, pendency of an appeal does not deprive the trial court of jurisdiction to “vacate a void judgment, correct an unauthorized sentence, or correct clerical errors in the judgment.” (People v. Scarbrough, supra, 240 Cal.App.4th at p. 923.) In addition to dismissing the appeal, we shall direct the trial court to enter an order vacating its orders on both of defendant’s petitions. Since the court issued an amended abstract after resentencing defendant, it shall also issue a new amended abstract reflecting the original sentence. Finally, defendant remains free to file a section 1170.18 petition for relief in both cases once his conviction is final.
DISPOSITION
The appeal is dismissed. The trial court is directed to enter an order vacating its orders as to defendant’s section 1170.18 petition and his petition for reconsideration in this case. The trial court is further directed to prepare an amended abstract of judgment reflecting defendant’s original sentence in this case and to forward a certified copy to the Department of Corrections and Rehabilitation. This disposition is made without prejudice to defendant filing a section 1170.18 petition for relief in cases Nos. 10F07217 and 11F04056 once his conviction in those cases is final.



/s/
Robie, J.


We concur:



/s/
Blease, Acting P. J.



/s/
Renner, J.