Filed 11/7/18 P. v. Frazier CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Harry A. Staley, Judge. (Retired Judge of the Kern Sup. Ct. assigned by the Chief Justice pursuant to article VI, § 6 of the Cal. Const.)

Robert Navarro, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Rodney Frazier appeals following the reinstatement of his prior sentence after a further Brady[1] hearing conducted by the trial court. For the reasons set forth below, we reverse.

factUAL AND PROCEDURAL BACKGROUND

This is the second appeal arising from appellant’s request for Brady materials related to his conviction for possessing a sharp instrument while confined in a penal institution. In our prior unpublished opinion in People v. Frazier (Sept. 14, 2016, F070425), we determined that the trial court had generally acted appropriately in denying appellant’s request but that it had erred when it failed to search for Brady material that was more than five years old. We conditionally reversed appellant’s conviction and remanded the matter for the trial court to conduct that limited Brady review, with instructions on how to proceed depending on the results.

Our opinion was filed on September 14, 2016. The remittitur issued 60 days later on November 14, 2016. Between the filing of the opinion and the remittitur’s issuance, the trial court conducted the required Brady review, determined there were no further materials to produce, and proceeded to reinstate appellant’s prior sentence. The final hearing in this process occurred on November 10, 2016, with appellant appearing in propria persona.

This appeal timely followed.

Discussion

Appellant alleges the trial court’s review and resentencing are invalid because the court lacked jurisdiction prior to the remittitur’s issuance. Alternatively, appellant contends he was denied his right to counsel when resentenced and asks we independently review the trial court’s Brady conclusions. We reach only the jurisdictional issue.

Subject to unrelated exceptions, a trial court lacks jurisdiction to proceed on matters related to a pending appeal until the appellate court issues its remittitur. (People v. Alanis (2008) 158 Cal.App.4th 1467, 1472-1473; see In re Anna S. (2010) 180 Cal.App.4th 1489, 1499 [exception relating to juvenile proceedings]; see also Gallenkamp v. Superior Court (1990) 221 Cal.App.3d 1, 10 [“[M]odernly, the essence of remittitur is the returning or revesting of jurisdiction in an inferior court by a reviewing court. The reviewing court loses jurisdiction at the time of remittitur and the inferior court regains jurisdiction.”].) This jurisdictional limitation is necessary to ensure that only one court acts on a particular issue at a time and provides appellants with adequate assurances that they can proceed throughout the appellate process without additional encumbrances. (People v. Saunoa (2006) 139 Cal.App.4th 870, 872.) The lack of jurisdiction while a case is on appeal voids any action taken by the trial court. (People v. Alanis, supra, at p. 1473; see Gallenkamp v. Superior Court, supra, at p. 10 [“Because it may not be appropriate for the inferior court to receive the power to act upon a case immediately upon the reviewing court’s opinion becoming final, the rules relative to when remittitur should issue are necessarily nonspecific.”].)

The People acknowledge the trial court lacked jurisdiction to act, but request we overlook that error to avoid wasting judicial resources. While we recognize the potential efficiency of such a result, the requirement for jurisdiction before a court acts is so fundamental that concerns of judicial efficiency must give way to proper procedure. As the trial court lacked jurisdiction to conduct its Brady review and resentence appellant, we reverse the court’s judgment and, as we did in his prior appeal, remand for the trial court to comply with the requirements of our prior opinion following the issuance of the remittitur in this appeal.

disposition

The judgment is reversed. The case is remanded for the trial court to complete its review of Officer Lozano’s personnel files in a manner consistent with our prior unpublished opinion in People v. Frazier (Sept. 14, 2016, F070425).

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DESANTOS, J.

WE CONCUR:

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LEVY, Acting P.J.

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FRANSON, J.