P. v. Daley

Filed 8/20/07 P. v. Daley CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

After he was convicted of several offenses and sentenced to a total of 19 years 8 months in prison, appellant Mark Delroy Daley filed an appeal. In an opinion filed March 13, 2007, this court affirmed the conviction but determined the case had to be remanded for resentencing pursuant to Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856, 127 S.Ct. 856]. (People v. Daley (Mar. 13, 2007, A109917) [nonpub. opn.].)

On April 3, 2007, before our decision was final, the trial court issued a notice of hearing and transportation order scheduling further proceedings in the case on April 19, 2007. (See Cal. Rules of Court, rule 8.264(b)(1) [Court of Appeal decision is final in that court 30 days after filing of opinion].) At the April 19, 2007 hearing, the trial court stated it had conferred with counsel and understood the Appellate Court had determined a new sentencing hearing was required. The court then conducted a new hearing on May 17, 2007, at which it sentenced appellant once again to an aggregate term of 19 years 8 months imprisonment.[1]

Throughout these lower court proceedings in April and May 2007, however, this court had not issued a remittitur of the case. On April 25, 2007, appellants appointed counsel on appeal filed a petition for review of our decision in the Supreme Court. (See Cal. Rules of Court, rule 8.500(e) [petition for review may be filed within 10 days after Court of Appeal decision is final pursuant to Rule 8.264].) Review was pending in the Supreme Court when the trial court resentenced appellant on May 17, 2007,[2] when appellant filed a notice of appeal from the sentence on May 21, 2007, and when the trial court issued a new abstract of judgment on June 11, 2007. The Supreme Court ultimately denied review on June 13, 2007, and this court issued a remittitur on June 18, 2007. (See Cal. Rules of Court, rule 8.272(b)(1)(A) [remittitur must issue promptly from Court of Appeal upon denial of review].)

Appellants counsel has now filed a motion for summary reversal of the new judgment on the ground that the trial court lacked jurisdiction to conduct a sentencing hearing while appellants case remained pending in the appellate courts. Although provided an opportunity to do so, the Attorney General has not filed a response to the motion.

The 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.] (People v. Perez (1979) 23 Cal.3d 545, 554.) Although there are exceptions to this general rule, [o]rdinarily the trial court loses jurisdiction after the filing of an appeal over anything which may affect the judgment. [Citation.] (People v. Schulz (1992) 5 Cal.App.4th 563, 570.) One exception to the loss of jurisdiction rule applies for matters that are collateral or supplemental to the questions involved in the appeal. (Id. at pp. 570-571.) The appellate court in Schulz concluded the trial court had jurisdiction to retry and sentence the defendant for a great bodily injury enhancement because resolution of that matter would have no direct impact on the validity of the guilty verdict and sentence for the attempted murder charge pending on appeal. (Id. at p. 571.) The same cannot be said here, since the trial court resentenced appellant on precisely the same charges that were the subject of his appeal. (Indeed, the court even imposed the same sentence.)

Until a remittitur issued from this court, the trial court lacked the power to hear or determine the case, which is a lack of jurisdiction in its fundamental or strict sense. (See Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 288-291.) Although appellant did not raise the issue below, an act beyond a trial courts fundamental jurisdiction is null and void, and a claim based on a lack of fundamental jurisdiction may be raised for the first time on appeal. (People v. Chadd (1981) 28 Cal.3d 739, 757.)

An appellate court has inherent power to grant a motion for summary reversal, even of criminal judgments, in an appropriate case. (People v. Browning (1978) 79 Cal.App.3d 320, 323.) Because the trial court lacked jurisdiction to resentence appellant, the sentence it imposed on May 17, 2007, reflected in the June 11, 2007 abstract of judgment, is null and void, and the matter must again be remanded for resentencing.

DISPOSITION

The motion for summary reversal is granted. The judgment entered June 11, 2007 is reversed, and the cause is remanded for a new sentencing hearing in accordance with this courts prior opinion and recent Supreme Court authority (see People v. Black (July 19, 2007, S126182) __ Cal.4th __ [2007 Cal. Lexis 7604]; People v. Sandoval (July 19, 2007, S148917) __ Cal.4th __ [2007 Cal. Lexis 7606]).

_________________________

McGuiness, P.J.

We concur:

_________________________

Pollak, J.

_________________________

Siggins, J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line attorney.

[1] Although the court announced a sentence of 19 years 6 months, the minute order and abstract of judgment state the aggregate sentence as 19 years 8 months.

[2] Apparently, the trial court was never advised of the possibility that our decision was not yet final when it conducted the resentencing hearing.