Filed 7/15/22 P. v. Roberson CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

----

Appointed counsel for defendant Marlon Leroy Roberson filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant filed a supplemental brief arguing an earlier sentencing decision was erroneous. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

A jury found defendant guilty of second degree robbery (Pen. Code, § 211)[1] and found true a firearm enhancement (§ 12022, subd. (a)(1)), a prior serious felony conviction (§ 667, subd. (a)), and three prior prison terms (§ 667.5, subd. (b)). (People v. Roberson (Mar. 17, 2021, C090181) [nonpub. opn.]).[2] On July 31, 2019, defendant was sentenced to the middle term of three years for robbery, doubled for the prior strike, five years for the prior serious felony conviction, and one year for each of the three prior prison terms. (Ibid.) The trial court also resentenced defendant on a prior conviction to: “one-third the middle term of eight months (§ 29800), doubled due to his prior strike conviction; and plus one-third the middle term of eight months (§ 30305), doubled due to his prior strike conviction, both to run consecutive to the sentence in the instant case.” (Ibid.)

Defendant appealed; this court struck his prior prison term enhancements (§ 667.5, subd. (b)), added two mandatory fees, and remanded for the trial court to resentence defendant in a manner consistent with our modifications. (People v. Roberson, supra, C090181.) At the August 23, 2021, resentencing hearing, the trial court followed our instructions; the defendant argued the trial court had erred in the original sentencing hearing by running his two sentences consecutively. The court declined to address this issue, finding resentencing was limited to the scope of this court’s remittitur on remand.

An amended abstract of judgment was filed on March 30, 2022, which accurately reflects the most recent sentence.

Defendant timely appealed; after several continuances for briefing, the case was fully briefed on April 28, 2022, and assigned to this panel on May 5, 2022.

DISCUSSION

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief setting forth the facts of the case and requesting that this court review the record to determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Defendant filed a supplemental brief arguing “upon the sentencing of the subsequent conviction, the trial court in error modified the sentence on the previous term.” He contends the trial court lacked jurisdiction during the 2019 sentencing to resentence him on the sentence he was serving and argues the second case “must run consecutive to the original sentence . . . at one third the midterm.” He notes he discovered this claimed error after remand from his prior appeal.

The trial court properly found it did not have jurisdiction to consider this issue. “It is well established that ‘[t]he order of the reviewing court is contained in its remittitur, which defines the scope of the jurisdiction of the court to which the matter is returned.’ ” (People v. Ramirez (2019) 35 Cal.App.5th 55, 64.) The trial court’s authority on remand was limited; it did not have authority to consider sentencing decisions made at a prior sentencing hearing, even if those decisions had resulted in an unauthorized sentence. (People v. King (2022) 77 Cal.App.5th 629, 637 [“the unauthorized sentence doctrine . . . does not itself create jurisdiction for the trial court to rule on a motion challenging the legality of a sentence”].)

Our review of the record has revealed no arguable issues on appeal that would resolve in a manner favorable to defendant.

DISPOSITION

The judgment is affirmed.

/s/

Duarte, J.

We concur:

/s/

Hull, Acting P. J.

/s/

Renner, J.

[1] Undesignated statutory references are to the Penal Code.

[2] We granted defendant’s motion for judicial notice of our opinion affirming the judgment of conviction and sentence in defendant’s direct appeal. (Evid. Code, §§ 459, subd. (a) [“[t]he reviewing court may take judicial notice of any matter specified in Section 452”]; 452, subd. (d) [permitting a court to take judicial notice of records of “any court of this state”].)