Filed 4/24/18 P. v. McDade CA5








NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT


THE PEOPLE,

Plaintiff and Respondent,

v.

CARLTON LEMAR MCDADE,

Defendant and Appellant.


F075012

(Super. Ct. No. BF156045B)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Colette M. Humphrey, Judge.
Robert H. Derham, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
-ooOoo-
Appointed counsel for defendant Carlton Lemar McDade asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) We sent a letter to defendant, advising him of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. Defendant did not respond. On review, we conclude we must dismiss the appeal.
We provide the following brief description of the history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
On October 23, 2015, in the middle of his jury trial, defendant failed to appear. The trial court issued a bench warrant for his arrest.
On October 26, 2015, the jury found defendant guilty of three robberies and one attempted robbery. On December 17, 2015, the trial court sentenced him in absentia to 18 years four months.
On December 21, 2015, defense counsel filed a notice of appeal. We assigned the case No. F072932. On May 25, 2016, we notified defendant by letter that he was required to file his opening brief within 30 days of the letter, and that this court would consider appointing him counsel if he returned the required application. Defendant failed to respond and failed to file an opening brief. On July 1, 2016, we dismissed the appeal for failure to file an opening brief.
On November 22, 2016, almost one year after the trial court pronounced sentence, defendant appeared in court on the warrant. The court reiterated the sentence pronounced on December 17, 2015, while defendant was a fugitive. The court read defendant his appellate rights, stating he could appeal within 60 days of the date judgment was pronounced. His attorney filed a notice of appeal on January 19, 2017, which became the instant case, No. F075012.
On June 1, 2017, defendant filed a motion in this court to recall the remittitur and reinstate the appeal in case No. F072932. On October 5, 2017, we denied the motion.
On November 6, 2017, defendant petitioned the Supreme Court for review of our denial of the motion to recall the remittitur and reinstate the appeal. The Supreme Court denied the petition on January 24, 2018.
DISCUSSION
There are no issues here for us to review. Defendant’s appeal has already been dismissed once. California Rules of Court, rule 8.722(c)(2) gives us the authority to recall a remittitur and reassume jurisdiction over the case. But the rule applies to situations in which there is good cause. We found none here.
In California, judgment is rendered at the time the court orally pronounces sentence. (People v. Thomas (1959) 52 Cal.2d 521, 529, fn. 3; People v. Dixon (2003) 113 Cal.App.4th 146, 150; Pen. Code, § 1237, subd. (a) [“A sentence … shall be deemed to be a final judgment”].) A notice of appeal must be filed within 60 days of the date of the rendition of the judgment. (Cal. Rules of Court, rule 8.308(a).) This requirement is “ ‘ “essential to appellate jurisdiction.” ’ ” (In re Chavez (2003) 30 Cal.4th 643, 650.) “ ‘An untimely notice of appeal is “wholly ineffectual: The delay cannot be waived, it cannot be cured by nunc pro tunc order, and [with certain exceptions,] the appellate court has no power to give relief, but must dismiss the appeal on motion of a party or on its own motion.” ’ ” (Ibid.)
Defense counsel did file a timely notice of appeal on December 21, 2015, within 60 days of the pronouncement of sentence. But that appeal was dismissed due to defendant’s failure to respond or submit a brief. Defendant’s later attempt to file a second notice of appeal beyond the time limit did not resurrect the appeal. In the absence of a timely notice of appeal, we lack jurisdiction and must dismiss the appeal. (In re Chavez, supra, 30 Cal.4th at p. 650.)
DISPOSITION
The appeal is dismissed.