People v. Embrey CA5

Filed 12/27/24 P. v. Embrey CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F086611 Plaintiff and Respondent, (Super. Ct. No. F16902216) v.

JORDAN LEE EMBREY, OPINION Defendant and Appellant.

THE COURT* APPEAL from an order of the Superior Court of Fresno County. Alvin M. Harrell III, Judge. Jake Stebner, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Kimberley A. Donohue, Assistant Attorney General, Eric L. Christoffersen and Ivan P. Marrs, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P. J., Peña, J. and Meehan, J.

Defendant and appellant Jordan Lee Embrey originally appealed his murder conviction, and this court affirmed the conviction in People v. Embrey (Nov. 8, 2024, F083822) [nonpub. opn.] (Embrey I). While defendant’s direct appeal in Embrey I was pending, defendant filed a petition for resentencing under former Penal Code section 1170.95, now section 1172.6,1 which the trial court denied. In the instant appeal, defendant argues the trial court’s order denying his section 1172.6 petition is void for lack of jurisdiction and must be vacated. Alternatively, if the order was not void, defendant contends the matter must still be remanded because the court (1) erred in denying defendant the Marsden2 hearing he requested, and (2) failed to conduct the section 1172.6 hearing in a procedurally proper manner. The People concede the court did not have jurisdiction to adjudicate defendant’s petition and contend defendant’s remaining claims are therefore moot. We agree with the parties the trial court lacked jurisdiction to rule on defendant’s petition for resentencing because the court had not yet regained jurisdiction of the matter following defendant’s direct appeal in Embrey I.3 The court’s order denying the petition was therefore null and void. We reverse and remand for further proceedings consistent with this opinion.

1 Undesignated statutory references are to the Penal Code. Effective June 30, 2022, section 1170.95 was amended and renumbered to section 1172.6. (Stats. 2022, ch. 58, § 10.) Although defendant filed a form petition for resentencing in September 2022, the form referenced the former statutory number. We refer to section 1172.6 throughout this opinion for clarity. 2 People v. Marsden (1970) 2 Cal.3d 118. 3 We grant defendant’s request for judicial notice of the record from his appeal in Embrey I, supra, F083822. (Evid. Code, §§ 452, subd. (d), 459, subds. (a)–(c).) The People did not oppose this request.