People v. Carriedo CA2/6

Filed 6/28/16 P. v. Carriedo CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B267112 (Super. Ct. No. 2014021873) Plaintiff and Respondent, (Ventura County)

v.

JULIO CESAR CARRIEDO,

Defendant and Appellant.

Julio Cesar Carriedo was sentenced to four years in county jail and one year of mandatory supervision after being convicted of unlawfully driving a vehicle (Veh. Code, § 10851, subd. (a)), receiving stolen property (Pen. Code, § 496d, subd. (a)),1 and possessing a smoking device (Former Health & Saf. Code, § 11364.1, subd. (a)). While his appeal from those convictions was pending (Case No. B261314), appellant filed a Proposition 47 petition for resentencing pursuant to section 1170.18, subdivision (a). Appellant contended that because the violation of Vehicle Code section 10851, subdivision (a), is a theft offense, his unlawful receiving and driving of a vehicle worth less than $950 is a misdemeanor under Proposition 47. The trial court denied the petition on the merits. Appellant appeals that ruling.

1 All further statutory references are to the Penal Code unless otherwise stated.

The People contend, and we agree, the trial court's order denying the petition for resentencing is void because the court lacked jurisdiction to hear the petition while the appeal from appellant's convictions and sentence was pending.2 (People v. Scarbrough (2015) 240 Cal.App.4th 916, 920, 929 (Scarbrough).) Accordingly, we reverse the order denying the petition and remand with instructions to dismiss the petition. 3 DISCUSSION The passage of Proposition 47 created section 1170.18, which allows any defendant "currently serving a sentence for a conviction . . . of a felony or felonies who would have been guilty of a misdemeanor under [Proposition 47] had [it] been in effect at the time of the offense [to] petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case [and] to request resentencing . . . ." (§ 1170.18, subd. (a).) Certain theft-related offenses are among the crimes subject to redesignation and resentencing under Proposition 47. (Ibid.) A trial court, however, lacks jurisdiction to hear a petition for resentencing if the defendant has a pending appeal from the judgment. (Scarbrough, supra, 240 Cal.App.4th at pp. 920, 929.) "Neither the language nor intent of section 1170.18 or Proposition 47 . . . creates an exception to the general rule that a trial court may not issue an order affecting a judgment while an appeal is pending." (Id. at pp. 922, 929.) The court in Scarbrough rejected the defendant's argument that judicial economy would be promoted by allowing concurrent jurisdiction in such cases. It determined that concurrent jurisdiction would render an appellate court's efforts "futile" because the court "may be asked to review conflicting judgments, each with different errors to be corrected;