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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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;


       2
        The appeal from appellant's convictions and sentence is still pending. Briefing
was completed on March 30, 2016. The appeal challenges (1) appellant's dual
convictions for receiving and driving a stolen vehicle and (2) the sentences appellant
received for those convictions.
       3
         We dispense with the facts of appellant's crime as they are unnecessary to resolve
this appeal.
                                               2
and the trial court may be asked to effectuate a remittitur against a judgment that has
since been modified. These scenarios would lead to chaos, confusion, and waste―not
judicial economy." (Id. at p. 928.)
              Here, it is undisputed that appellant petitioned the trial court for
resentencing while his appeal was pending from the underlying convictions and sentence.
Appellant appealed the judgment on January 23, 2015, and the trial court heard and
denied the petition for resentencing on September 4, 2015. Because the trial court
lacked jurisdiction to hear appellant's petition, its order is void and must be reversed.
(Scarbrough, supra, 240 Cal.App.4th at pp. 920, 929; see Ruiz v. Ruiz (1980) 104
Cal.App.3d 374, 379, fn. 5 ["The proper procedure is to reverse [a] void order rather than
dismiss the appeal from it"]; Ochoa v. Dorado (2014) 228 Cal.App.4th 120, 133, fn. 8
[same].) Appellant may "petition[] for recall of sentence in the trial court once his
judgment is final . . . ." (People v. Noyan (2014) 232 Cal.App.4th 657, 672; Scarbrough,
at p. 930.)
                                       DISPOSITION
              The order denying the Proposition 47 petition for resentencing is void for
lack of jurisdiction. The order is reversed and the matter remanded to the trial court with
instructions to enter an order dismissing the petition.
              NOT TO BE PUBLISHED.




                                           PERREN, J.


We concur:


              YEGAN, Acting P. J.



              TANGEMAN, J.

                                              3
                              Manuel J. Covarrubias, Judge

                            Superior Court County of Ventura
                           ______________________________

             Law Office of Christina A. Barnes and Christina Alvarez Barnes, for
Defendant and Appellant.
             Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Victoria B.
Wilson, Supervising Deputy Attorney General, and Abtin Amir, Deputy Attorney
General, for Plaintiff and Respondent.
