P. v. Nguyen
Following a bench trial, the court convicted Albert Loc Nguyen and Michael Toan Vu of three counts each of attempted murder (Pen. Code, 187, subd. (a), 664 [counts 1, 2, & 3]) and one count each of participation in a criminal street gang (id., 186.22, subd. (a) [count 4]). In People v. Nguyen and Vu (Oct. 26, 2005, G033899) [nonpub. opn.] (the First Appeal), we reversed the convictions on counts 1, 2, and 3, affirmed the convictions on count 4, and remanded for sentencing on count 4. In this appeal, Nguyen and Vu appeal their resentences and the denial of their motion to dismiss count 4. Complications arise in what might otherwise be a straightforward appeal because the trial court resentenced Nguyen and Vu and denied their motion to dismiss count 4 before the remittitur issued in the First Appeal. The remittitur issued on February 8, 2006 and was filed in the superior court on February 9. On February 6, 2006, two days before issuance of the remittitur, the trial court conducted a sentencing hearing, at which it resentenced Nguyen and Vu and denied their motion to dismiss count 4. A minute order reflecting those decisions was entered nunc pro tunc on February 8. Nguyen and Vu filed notices of appeal on February 7, the day before the remittitur issued. The notice of appeal in the First Appeal divested the trial court of jurisdiction until the remittitur issued on February 8, 2006. Acts of judicial discretion taken before a remittitur issues are void. We grant Nguyens motion to deem the notices of appeal timely because filing a notice of appeal is a ministerial act rather than an act of judicial discretion. Court conclude, however, the trial court lacked jurisdiction on February 6, 2006 to resentence Nguyen and Vu and to consider their motion to dismiss count 4. For that reason, the resentences are void, and Court are compelled to reverse and remand for the sole purpose of resentencing under count 4. Court note that the trial court was correct to deny the motion to dismiss count 4 because our opinion in the First Appeal expressly and unequivocally affirmed the convictions on that count.
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