People v. Winner CA3

Filed 7/20/16 P. v. Winner CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Butte) ----

THE PEOPLE, C080965

Plaintiff and Respondent, (Super. Ct. Nos. CM035413, CM041745) v.

STACY ALAN WINNER,

Defendant and Appellant.

Defendant Stacy Alan Winner appeals from the trial court’s order removing his Penal Code section 1170.181 petition for resentencing from calendar, which the parties agree functioned as a denial of the petition.

1 Further undesignated statutory references are to the Penal Code.

1

The matter from which defendant purports to appeal (consolidated cases Nos. CM035413 and CM041745) was already on appeal from a previous section 1170.18 resentencing at the time his petition was denied. The Attorney General asserts the trial court lacked jurisdiction to entertain defendant’s petition as the underlying judgment was on appeal at the time of the order. Defendant did not address jurisdiction in his opening brief, and he did not file a reply brief. We agree with the Attorney General; accordingly, we shall dismiss the appeal. BACKGROUND We do not set forth the details of defendant’s crimes as their consideration is unnecessary to resolve this appeal. It suffices to say that defendant pleaded no contest to possession of methamphetamine for sale (Health & Saf. Code, § 11378) and admitted a strike (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and five prior prison terms (§ 667.5, subd. (b)) in case No. CM035413. The trial court granted defendant’s motion to strike the strike prior, suspended imposition of sentence, and placed defendant on 48 months of formal probation. Defendant later pleaded guilty to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) in case No. CM041745 and admitted violating his probation in case No. CM035413. The trial court sentenced defendant to seven years eight months in state prison for the two cases. On November 12, 2014, defendant filed a section 1170.18 petition for resentencing on the possession conviction in case No. CM041745. The trial court granted the petition, reducing the possession conviction to a misdemeanor, and resentenced defendant. Defendant filed (two) timely notices of appeal as to the trial court’s order, both designating case No. CM041745. On October 8, 2015, we granted appellant’s motion to consider the notice(s) of appeal as also including case No. CM035413.