People v. Whicker CA2/5

Filed 12/1/23 P. v. Whicker CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B325848

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. MA058071) v.

STACEY JEROME WHICKER,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Daviann L. Mitchell, Judge. Dismissed. John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION In 2015, defendant Stacey Jerome Whicker was sentenced to a lengthy third-strike prison term stemming from a series of altercations with his girlfriend and his girlfriend’s brother. On appeal, we modified the judgment to correct various sentencing errors. Five years later, the Department of Corrections and Rehabilitation (CDCR) notified the trial court of certain errors in defendant’s modified sentence. In accordance with CDCR’s advice, the court resentenced defendant to a slightly shorter prison term. In his appeal from that judgment, defendant again raised various sentencing errors. We modified the judgment to correct the errors, affirmed the judgment as modified, and remanded the matter with directions to the trial court to prepare a new abstract of judgment reflecting the modified sentence. On appeal, defendant argues that the trial court violated his right to be present for resentencing, that it failed to apply the full resentencing rule, and that his attorney provided constitutionally-deficient representation by failing to object. The People contend, and we agree, that on remand, the trial court did not resentence defendant at all. It was this court that modified the judgment, and as such, there is no new “post-remand” trial court judgment from which defendant can appeal. As we lack jurisdiction over this matter, the appeal is dismissed. (See Jennings v. Marralle (1994) 8 Cal.4th 121, 126 (Jennings) [reviewing courts have an independent duty to raise the issue when a doubt exists about their own jurisdiction].)