In re Hiscox
Filed 8/28/07 In re Hiscox 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
In re MICHAEL ROBERT HISCOX, on Habeas Corpus. | A117993 (Humboldt County Superior Court Case No. CV 07-0398) |
Petitioner Michael Robert Hiscox filed a petition for a writ of habeas corpus on June 8, 2007, claiming, in part, that his detention is unlawful because he was illegally sentenced by the trial court to an aggravated term in violation of the principles laid out in Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856].[1] Initially a jury had convicted petitioner on 11 counts of lewd and lascivious conduct with a child. Each count included a finding of substantial sexual conduct under Penal Code section 1203.066, subdivision (a)(8). The court had applied Penal Code section 667.61 and imposed 11 consecutive terms of 15 years to life (for a total of 165 years to life). (People v. Hiscox (2006) 136 Cal.App.4th 253, 256.)
On direct appeal this court affirmed petitioners conviction, but vacated that original sentence and remanded for sentencing under the law as it existed before November 30, 1994. (People v. Hiscox, supra, 136 Cal.App.4th at pp. 257, 262.) Petitioner filed a petition for review by the California Supreme Court, which denied the petition on May 17, 2006, and the remittitur issued on June 21, 2006. On May 4, 2006, before the Supreme Court acted, the superior court re-sentenced petitioner.
At re-sentencing, the court sentenced petitioner to 28 years, which it calculated as the aggravated term of eight years on the first count and two years on each of the remaining ten counts. The court explained the basis for imposing the aggravated term as follows: With respect to the term, the aggravated term on Count Number One, the Court finds that aggravating factors outweigh mitigating ones. There are, I find, no mitigating factors. And we have in aggravation Rule 4.421 subdivision (a)(11), Mr. Hiscox assumed a fatherly role with the three victims; and I believe, subsequent to hearing the trial, I believe that Mr. Hiscox violated the trust of the victims and their mother in gaining access to the victims.
A timely filed notice of appeal divests the trial court of subject matter jurisdiction, which it does not re-gain until the appellate court returns jurisdiction to the trial court with the issuance of the remittitur. (See Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 196-197; People v. Saunoa (2006) 139 Cal.App.4th 870, 872.) Thus, until the remittitur issues, the trial court cannot act on the reviewing courts decision; any actions it takes in that time period are a legal nullity. (People v. Saunoa, supra, 139 Cal.App.4th at p. 872.)
Because here, the trial court acted before it had re-gained jurisdiction of this case, petitioner has not been properly sentenced. Accordingly, both petitioner and the Attorney General agree that the case should be remanded to the trial court for re-sentencing. At re-sentencing, petitioner should be sentenced in accordance with the principles discussed in Cunningham, supra, People v. Black (2007) 41 Cal.4th 799, and People v. Sandoval (2007) 41 Cal.4th 825.
On August 17, 2007 the Attorney General formally waived issuance of an order to show cause and oral argument. He also stipulated to the immediate issuance of the remittitur upon the filing of this opinion Likewise, petitioner has waived issuance of an order to show cause and oral argument and stipulated to the immediate issuance of the remittitur.
Accordingly, we remand this case to the superior court for re-sentencing. Pursuant to stipulation, this opinion is final for all purposes immediately upon filing, and the clerk of the court shall immediately issue the remittitur herein.
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McGuiness, P.J.
We concur:
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Pollak, J.
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Siggins, J.
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[1] This court granted petitioners request to file an Amended Petition for a Writ of Habeas Corpus on August 8, 2007. The Amended Petition reiterates the original claim that the court improperly imposed an aggravated sentence.
