People v. Hightower CA5

California Court of Appeal Feb 27, 2014 No. F067048Unpublished

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Holding. The court held that a defendant who successfully petitions for a sentence recall under the Three Strikes Reform Act while an appeal of their original conviction is pending is judicially estopped from challenging the trial court's jurisdiction to hear that petition on appeal.

Issues

Does the doctrine of judicial estoppel preclude a defendant from challenging a trial court's jurisdiction to hear a sentence recall petition when the defendant previously sought and obtained relief under that same petition while an appeal was pending?

Disposition. affirmed

Quotations verified verbatim against the opinion

“When the court has subject matter jurisdiction, a party who seeks or consents to actions beyond the court’s power as defined by statute or decisional authority may be estopped to complain of an action that is taken in excess of the court’s jurisdiction.”

“We answer this question in the affirmative.”

“The orders granting the recall petition and sentencing appellant to 10 years 4 months are affirmed.”

Filed 2/27/14 P. v. Hightower 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F067048 Plaintiff and Respondent, (Super. Ct. No. VCF247094) v.

CURTIS PAUL HIGHTOWER, OPINION Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Tulare County. James W. Hollman, Judge. Gregory M. Chappel, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and John G. McLean, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

Following convictions for burglary and vehicle theft in the autumn of 2011, appellant Curtis Paul Hightower was sentenced as a third strike offender under the original Three Strikes Law to 25 years to life imprisonment. He appealed the judgment of conviction (People v. Hightower (May 1, 2013, F063681) [nonpub. opn.] (Case No. F063681)).1 During the appeal’s pendency, appellant filed in the trial court a petition for recall of sentence pursuant to Penal Code2 section 1170.126 (recall petition). This section is part of Proposition 36, the Three Strikes Reform Act of 2012 (the Act). The recall petition was granted and appellant was resentenced to 10 years 4 months imprisonment (resentencing order). Appellant then filed the present appeal from the resentencing order. A few months later, this court issued an unpublished decision in Case No. F063681 affirming the judgment of conviction and original sentence. As grounds for reversal, appellant argues that the trial court acted in excess of its jurisdiction by hearing the recall petition while an appeal of the judgment of conviction was pending. Respondent contends that appellant is judicially estopped from challenging the resentencing order on that basis. We agree with respondent and will affirm. FACTS Following jury trial, appellant was found guilty on September 8, 2011, of second degree commercial burglary (count 1), unlawful driving or taking of a vehicle (count 2)

People v. Hightower CA5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

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