Error and/or relief
It was error to deny the defendant’s petition for resentencing under section 1172.75. While review was still pending in the Supreme Court following the defendant’s appeal of his conviction, the trial court assumed jurisdiction and struck the prior prison term enhancement as directed by the Court of Appeal’s opiniion. More than a year later, the Calfiornia Department of Corrections and Rehabiltation advised that the defendant was on its list of inmates entitled to have their now-invalid prior prison term enhancements stricken. The court recalled the sentence under section 1172.75, but ultimately after the trial court discovered that it had already dismissed the now-invalid enhancement for a prior prison term, it concluded that the defendant was not eligible for resentencing. However, the trial court had no jurisdiction to strike the enhancement while the appeal was pending review in the Supreme Court.
First Holding:
Subject to limited exceptions, the filing of a valid notice of appeal vests jurisdiction of the cause in the appellate court until determination of the appeal and issuance of the remittitur. Remittitur transfers jurisdiction back to the inferior court so that it may act upon the case again, consistent with the judgment of the reviewing court. Until the remittitur issues, the lower court lacks jurisdiction over the subject matter of the order or judgment on appeal. So complete is this loss of jurisdiction effected by the appeal that even the consent of the parties has been held ineffective to reinvest the trial court with jurisdiction over the subject matter of the appeal and that an order based upon such consent would be a nullity.
Authority:
People v. Perez (1979) 23 Cal.3d 545, 554
People v. Scarbrough (2015) 240 Cal.App.4th 916, 923
Gallenkamp v. Superior Court (1990) 221 Cal.App.3d 1, 10
People v. Cunningham (2001) 25 Cal.4th 926, 1044
In re Lukasik (1951) 108 Cal.App.2d 438, 443
People v. Burhop (2021) 65 Cal.App.5th 808, 813
Second Holding:
Because the trial court was without subject matter jurisdiction to strike the sentencing enhancements when it did [while the matter was still on appeal], the court’s order is void and vulnerable to direct or collateral attack at any time. Because the order striking the prior conviction enhancement is void, the only judgment that applied to defendant’s case was the original judgment that included the section 667.5 enhancement. The court therefore erred when it declined to resentence defendant by striking the section 667.5 enhancement during a new resentencing hearing.
Authority:
PEN 1172.75(c), (d)(1), (d)(2)
People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660
People v. Vasilyan (2009) 174 Cal.App.4th 443, 450
People v. Green (2024) 104 Cal.App.5th 365, 373