P. v. Parrish

Filed 6/30/06 P. v. Parrish CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a postjudgment order of the Superior Court of Orange County, Daniel J. Didier, Judge. Affirmed.

Doris M. Frizzell, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, David Delgado-Rucci and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Robert Eric Parrish appeals from a postjudgment order granting the People's motion to modify an order dismissing the action. He contends the trial court had no authority to reconsider the original dismissal order because it was not a clerical error but a final judicial act for which it had jurisdiction, and even if it acted in excess of its jurisdiction, the People were estopped from seeking relief. In a supplemental brief, he asserts the case should be remanded for resentencing because the trial court may have relied on his conviction for assault with a deadly weapon which was reversed by the United States District Court on his habeas corpus petition. We reject defendant's contentions and affirm.

FACTS AND PROCEDURAL BACKGROUND

Defendant was charged in case no. 94NF0327 with assault with a deadly weapon and infliction of corporal injury on a cohabitant. In case no. 94NF0951, he was charged with commercial burglary and petty theft with a prior conviction. The two cases were consolidated into case no. 94NF0327.

Following consolidation, a second amended information charged defendant with attempted murder (count 1), assault with a deadly weapon (count 2), commercial burglary (count 3), and petty theft with a prior (count 4). Counts 1 and 2 were severed from counts 3 and 4 for trial. In the first trial, the jury convicted defendant of assault with a deadly weapon but acquitted him of attempted murder. In the second trial, a different jury convicted defendant of commercial burglary and petty theft with a prior conviction, and returned a true finding that defendant had previously been convicted of two serious or violent felonies within the meaning of the â€