Filed 9/25/14
                           CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            SECOND APPELLATE DISTRICT

                                    DIVISION THREE


THE PEOPLE,                                        B249493

        Plaintiff and Appellant,                   (Los Angeles County
                                                   Super. Ct. No. TA122476)
        v.

ESTEVAN HARO ESPINOSA,

        Defendant and Respondent.




        APPEAL from an order of the Superior Court of Los Angeles County,
Pat Connolly, Judge. Vacated.


        Jackie Lacey, District Attorney, Roberta T. Schwartz and Carolyn Nakaki, Deputy
District Attorneys, for Plaintiff and Appellant.


        J. Kahn, under appointment by the Court of Appeal, for Defendant and
Respondent.
         Plaintiff and appellant the People of the State of California appeal from the trial
court’s order reducing defendant and respondent Estevan Espinosa’s first degree murder
conviction to second degree murder, and resentencing him to a lower term. They
contend: (1) the court lacked jurisdiction to modify the judgment; and (2) even if the
court retained jurisdiction, modification of the judgment was improper because sufficient
evidence supported the jury’s first degree murder verdict and sentence for that crime did
not constitute cruel or unusual punishment. Because the People’s first contention is
dispositive, we reinstate the jury’s first degree murder verdict and the original sentence.
                    FACTUAL AND PROCEDURAL BACKGROUND
         1. Facts
         In light of the issues presented on appeal, we summarize the evidence adduced at
trial.
         a. People’s evidence
         The victim, Delmirio Lopez, was the boyfriend of appellant Espinosa’s mother,
Ebelia Haro, and they had lived together for approximately eight years. In March 2012
Lopez, Haro, appellant Espinosa, Espinosa’s younger brother, 18-year-old Asahel, and
his younger sister, 16-year-old D., had recently moved to a small apartment. D. and
Asahel slept in one bedroom; Lopez and Haro slept in another; and Espinosa slept on the
living room couch.1 Lopez was the “breadwinner” for the family, paying for rent, food,
clothing, and other necessities.
         On March 17, 2012, Lopez, Haro, Lopez’s friend Roberto Ramirez Cortez, and
Espinosa went out to dinner at approximately 11:00 p.m. Lopez, Haro, and Cortez had
been drinking beer for several hours, and had more at the restaurant. After dinner the
group went back to the apartment. Haro, Lopez, and Cortez drank more beer.




1      For the sake of convenience, we sometimes hereinafter refer to Espinosa’s siblings
by their first names.


                                               2
       Cortez testified2 that at approximately midnight, he and Lopez went into the
bedroom Lopez and Haro shared to turn on some music. Espinosa followed them. Lopez
angrily asked why Espinosa did not have a job. Cortez returned to the living room, where
he and Haro continued drinking. Five minutes later Lopez exited the bedroom and began
cutting lemons in the kitchen. Five minutes after that, Espinosa, who had put on a
sweatshirt, emerged from the bedroom and approached Lopez. Espinosa pulled out an
ice pick, pulled Lopez toward him, and stabbed Lopez repeatedly. Lopez fell to the
ground. Espinosa fled from the apartment. Cortez did not see a weapon in Lopez’s
hands when Espinosa attacked.
       Lopez died of his injuries several hours later. He had suffered 17 stab wounds to
his torso, neck, and head, ranging from five inches to less than an inch in depth. These
included five fatal wounds: two to his back that perforated his aorta; one to his left chest
that perforated his heart; and two to his head that penetrated his brain. The wounds were
made by two different stabbing instruments: a knife, and an object similar to an ice pick.
The fatal wounds to Lopez’s head were made with “pretty strong force.”
       Espinosa turned himself in at a sheriff’s station at approximately 6:00 that
morning. In a videotaped interview conducted by detectives, Espinosa stated that just
before the stabbing Lopez had entered D.’s bedroom and tried to take her photograph;
Espinosa told him not to; and Lopez smirked and stated the photo was for his phone’s
“caller ID.” Espinosa did not believe Lopez and thought the picture was “something
sexual in nature.” Espinosa followed Lopez to the living room and demanded he not take
pictures of his sister. Lopez pushed Espinosa and threatened to knock him out or beat
him up. Haro tried to separate the men. Lopez pushed Espinosa again. Espinosa thought
Lopez was going to hit him, and panicked. He grabbed a knife and an icepick and
stabbed Lopez. Prior to the stabbing, Espinosa had never been involved in a physical
altercation with Lopez.


2      Cortez was unavailable to testify at trial. Accordingly, his preliminary hearing
testimony was read to the jury.


                                             3
       b. Defense evidence
       Espinosa’s older sister, Yahaira, testified that approximately six years before the
murder, she asked Espinosa to keep an eye on D. because she believed Lopez had been
molesting D.
       D. testified that on the night of the murder, she went to bed in her room at
approximately 11:00 p.m., wearing a tank top and sweatpants. Thereafter, Asahel also
went to sleep in the bedroom they shared, while her mother and the other adults drank
beer in the living room. Earlier that day Lopez had tried to take a picture of her for his
cellular telephone’s caller ID, but she had refused. She was awakened when Lopez
opened her bedroom door and tried to take a picture of her. Espinosa followed and asked
why Lopez was trying to take D.’s picture. Lopez replied that Espinosa could not tell
him what to do. D. stated that she did not want her picture taken. Lopez pushed
Espinosa. D. called for her mother, who took Lopez back into the hall. D. locked the
bedroom door, but the lock was not working. She was afraid Lopez would return, but he
did not. D. told detectives that Lopez “gave [her] a bad feeling.” It was not unusual for
him to enter her bedroom in the middle of the night.
       Asahel testified that when he arrived home on the night of the murder, D. was
dozing off in the bedroom they shared. He went to sleep. He was awakened later by
noise outside the bedroom. He went to the living room and saw Lopez on the ground and
Espinosa standing in the kitchen. Asahel told Espinosa to leave.
       Espinosa testified in his own behalf. He claimed Lopez had told him he had been
in the military in El Salvador, had killed his sergeant, and had served time in jail. Lopez
was a “kind of aggressive,” “machismo” person. Lopez always carried a folding knife
with a four- to five-inch blade on his person. Espinosa believed Lopez was sexually
attracted to D. based on how he stared at and interacted with her.
       On the night of the murder, Espinosa saw Lopez in D.’s doorway taking a picture
with his cellular phone. Espinosa did not believe Lopez was taking a picture for his
caller ID, and thought Lopez was just “[p]robably” going to “go inside her room and
touch her, molest her right there.” Espinosa thought he was the only one who could stop

                                              4
Lopez. When Espinosa told Lopez not to take the picture, Lopez became aggressive, and
D. appeared scared. Lopez “kind of grinned” or smirked at Espinosa as if to say, “ ‘you
don’t tell me what to do.’ ” He pushed Espinosa. When Haro tried to intervene, Lopez
“kind of” pushed her and raised his voice. In the kitchen, Lopez pushed Espinosa again
and moved his arm as if he was “going to swing at [Espinosa] or . . . get something.”
Espinosa was afraid and thought Lopez was “going to do something” to him. Espinosa
saw a knife and an ice pick in the kitchen and grabbed both. He approached Lopez and
began swinging his arms. That was the last thing Espinosa remembered until he found
himself staring at Lopez on the floor.
         An ice pick was customarily kept at various locations in the home. Either in the
morning or early evening the day before the stabbing, Espinosa had seen it by Haro’s
bed. He testified that it was already in the kitchen when he grabbed it and used it against
Lopez.
         2. Conviction and post-trial proceedings
         On November 27, 2012, the jury found Espinosa guilty of first degree murder
(Pen. Code, § 187, subd. (a)),3 with the personal use of a deadly and dangerous weapon, a
knife. (§ 12022, subd. (b)(1).)
         On January 4, 2013, Espinosa filed a motion for a new trial on the grounds that the
court had misdirected the jury, erred by excluding evidence, and improperly restricted
voir dire. The motion did not assert that the evidence was insufficient, or that sentencing
Espinosa as a first degree murderer would amount to cruel or unusual punishment. To
the contrary, the motion stated that the “verdict was not contrary to the evidence
presented.”
         The trial court heard and denied the motion on January 15, 2013, concluding there
had been no legal error in the trial. Before it sentenced Espinosa, the court stated that
although it had presided over at least a dozen murder cases as a judge, and tried close to



3        All further undesignated statutory references are to the Penal Code.


                                              5
50 as a prosecutor, “this has been a very difficult case for this court.” The court did not
believe Lopez had engaged in any sexual conduct toward D., and did not think Espinosa
believed that Lopez had done so. The court was at a loss to explain why Espinosa
committed the murder, observing, “everyone in there had been drinking. And the court
feels that there is more to this story” than was revealed at trial. The court observed
Espinosa had no significant record. Although he had a tattoo reading “Compton,” it did
not necessarily indicate gang involvement. The court stated: “This is, without a doubt,
the most difficult sentencing that I’ve had to do.” Nonetheless, the court sentenced
Espinosa to the statutorily mandated term of 25 years to life in prison (§ 190, subd. (a)),
plus one year for the arming enhancement, for a total of 26 years to life. The court
imposed a restitution fine, a suspended parole restitution fine, a court operations
assessment, and a court construction fee. It set a victim restitution hearing for
February 7, 2013.
       Espinosa filed a notice of appeal on January 15, 2013. The abstract of judgment
was filed on January 16, 2013. The appellate record was filed with this court on
February 1, 2013.
       On February 7, 2013, the parties appeared for the restitution hearing.4 The court
stated: “[W]e set today as a restitution hearing. The court, in the interim period of time,
spoke with both the People and the defense in this matter, and explained to both that the
court was considering a re-sentencing in this matter and striking the first and making this
a second degree murder.” It explained “the [onus] was on the People . . . because the
inclination of the court was to reduce it to a second.” At defense counsel’s request, and
over the People’s objection, the court continued the hearing.
       On March 15, 2013, the defense filed a motion to reduce the conviction to
voluntary manslaughter, on the ground that the sentence constituted cruel and unusual



4     We take judicial notice of the record in Espinosa’s appeal, which is before us in
case No. B246238. (Evid. Code, § 452, subd. (d).)


                                              6
punishment under People v. Dillon (1983) 34 Cal.3d 441.5 The People filed an
opposition in advance of Espinosa’s motion, arguing that the trial court lacked
jurisdiction to modify the jury’s verdict because Espinosa had already filed a notice of
appeal.
       On April 9, 2013, the case was called for the restitution hearing and for
resentencing. The court noted it had “invited [the] defense to bring a motion for re-
sentencing” over the People’s objection. The prosecutor argued the court lacked
jurisdiction because the court had already denied Espinosa’s new trial motion, and
Espinosa had already filed a notice of appeal. The prosecutor objected, “[e]ven if all
parties agree, the law does not allow the court to do what it . . . basically is allowing the
defense to do, to now make a motion.” The court interjected: “Let me stop you there just
for one moment. . . . [W]hen you say ‘allow,’ it was the court that invited the defense to
bring this motion. And so I just want to make sure that it’s the court that is taking this
action.” The court opined that it did, in fact, retain jurisdiction to resentence Espinosa:
“Pursuant to [section] 1170(d), I do believe that I have the authority to recall this and
resentence the defendant within the 120 days on the court’s own motion, and pursuant to
[section] 1181, that I may modify this verdict.” The court stated it “believe[d] that
clearly this is the right thing to do.”
       The court found that the crime could not appropriately be reduced to voluntary
manslaughter. However, “the court does not believe that the defendant is guilty of a first
degree murder but of a second degree murder” based on the evidence presented. The
only basis for the jury’s first degree murder verdict was that “there was testimony that
was given that Mr. Espinosa, just moments––and when I say ‘moments,’ it seems seconds
prior to the murder––left the area where this argument occurred, and seems like that was
in the hall, goes into his mother’s bedroom, takes an icepick, retrieves that, then goes into


5     Dillon was abrogated on other grounds by People v. Chun (2009) 45 Cal.4th 1172,
1185-1186. Chun concluded that assaultive crimes merge with a charged homicide and
cannot be the basis for a second-degree felony-murder instruction. (Id. at p. 1178.)


                                               7
the kitchen where Mr. Lopez was cutting up limes. [¶] He not only uses that icepick for
a stabbing instrument, but also it appears the knife that Mr. Lopez was actually cutting
limes with for the next set of Corona beers.” While recognizing that “premeditation is
obviously not measured in time, and it is measured in the extent of the reflection,” the
court opined, “I do think that deliberation and premeditation [are] lacking . . . .”
        The court further reasoned that a 25-years-to-life sentence amounted to cruel and
unusual punishment. It explained: “[I]n accord with Dillon, I believe that it would be
cruel and unusual punishment––and I know that’s a term that perhaps may not be the
most appropriate in this case because, regardless of what I am doing, Mr. Espinosa, this
was truly a heinous crime––I do think this was a crime of rage, and I think that the––what
I have cited as far as the premeditation is the only thing that I can look back on with the
evidence in this case, and that is the retrieval of that icepick that would allow for a first.
[¶] And, again, I don’t think that the extent of reflection in this matter is appropriate.
And [punishing] it . . . as a first would be grossly disproportionate to what the offense
was . . . .”
        Taking into consideration the nature of the offender, the court observed that
Espinosa had been 21 years old when he committed the murder.6 He had no record
except for a misdemeanor conviction for driving with a suspended or revoked license
(Veh. Code, § 14601). There was no indication he was a gang member. He turned
himself in to police. He appeared to have been truthful and honest in his testimony
despite opportunities where he could have twisted the truth in response to counsel’s
questions. He was remorseful. In the court’s view, Espinosa did not pose a future danger
to society.
        To sum up, the court stated: “[A]s a judge, I believe that I have to do what is the
right thing. And this is not something that I have taken lightly. I do not stay up at night.


6       The trial court’s statement of Espinosa’s age appears to be incorrect. Espinosa
testified that he was 23 years old at the time of trial. Because he committed the murder
approximately eight months before trial, he was either 22 or 23 at the time of the killing.


                                               8
I have a lot of cases, and this is not a situation where I go home and I can’t sleep because
of what I’m hearing in the courtroom. I live my life and do my thing because it usually
does not bother me. [¶] This case has bothered me. . . . Once I made the decision in this
case to do what I think is the right thing, I have had no problems sleeping.”
       Accordingly, the court reduced the offense to second degree murder, and
resentenced Espinosa to a term of 16 years to life.
       On April 16, 2013, Espinosa filed a second notice of appeal.7
       The People appeal the court’s April 9, 2013 order reducing the degree of the
offense and resentencing Espinosa. (§ 1238, subd. (a)(6) & (10).)
                                       DISCUSSION
       The trial court did not have jurisdiction to modify the verdict and resentence
Espinosa.
       The People argue that the trial court lacked jurisdiction to modify the judgment
because it had already denied Espinosa’s new trial motion, and Espinosa had already filed
a notice of appeal. Espinosa counters that the trial court was empowered by section
1170, subdivision (d) to recall the case for the purpose of considering the Dillon factors
and resentencing him.
       Generally, the filing of a notice of appeal vests jurisdiction in the appellate court
and divests the trial court of jurisdiction to make any order affecting the judgment.
(People v. Wagner (2009) 45 Cal.4th 1039, 1061; People v. Perez (1979) 23 Cal.3d 545,
554; People v. Nelms (2008) 165 Cal.App.4th 1465, 1471; People v. Lockridge (1993) 12
Cal.App.4th 1752, 1757; Portillo v. Superior Court (1992) 10 Cal.App.4th 1829, 1834.)
“ ‘Because an appeal divests the trial court of subject matter jurisdiction, the court lacks
jurisdiction to vacate the judgment or make any order affecting it. [Citations.] Thus,
action by the trial court while an appeal is pending is null and void. [Citations.] Indeed,
“[s]o complete is this loss of jurisdiction effected by the appeal that even the consent of



7      Espinosa’s appeals in case Nos. B246238 and B248189 have been consolidated.


                                              9
the parties has been held ineffective to reinvest the trial court with jurisdiction over the
subject matter of the appeal and that an order based upon such consent would be a
nullity.” [Citation.]’ ” (Nelms, at p. 1471; People v. Alanis (2008) 158 Cal.App.4th
1467, 1472-1473.)
       “The purpose of the rule depriving the trial court of jurisdiction pending appeal
‘ “is to protect the appellate court’s jurisdiction by preserving the status quo until the
appeal is decided. The rule prevents the trial court from rendering an appeal futile by
altering the appealed judgment . . . by conducting other proceedings that may affect it.”
[Citation.]’ ” (People v. Alanis, supra, 158 Cal.App.4th at p. 1472; People v. Nelms,
supra, 165 Cal.App.4th at p. 1471.)
       Several exceptions to this rule exist. (See generally People v. Alanis, supra,
158 Cal.App.4th at pp. 1473-1474.) As pertinent here, it has long been held that under
section 1170, subdivision (d),8 the trial court retains jurisdiction to recall a sentence in a
criminal matter and to resentence the defendant notwithstanding the pendency of an
appeal. (People v. Nelms, supra, 165 Cal.App.4th at p. 1472; Alanis, at p. 1475; People
v. Lockridge, supra, 12 Cal.App.4th at p. 1757; Portillo v. Superior Court, supra,
10 Cal.App.4th at pp. 1835-1836.) Section 1170, subdivision (d) “allows a sentencing
court to recall its sentence ‘within 120 days of the date of commitment on its own
motion . . . .’ After recall, the court may ‘resentence the defendant in the same manner as
if he or she had not previously been sentenced,’ provided any new sentence does not



8       Section 1170, subdivision (d)(1) provides: “When a defendant subject to this
section or subdivision (b) of Section 1168 has been sentenced to be imprisoned in the
state prison and has been committed to the custody of the secretary, the court may, within
120 days of the date of commitment on its own motion, or at any time upon the
recommendation of the secretary or the Board of Parole Hearings, recall the sentence and
commitment previously ordered and resentence the defendant in the same manner as if he
or she had not previously been sentenced, provided the new sentence, if any, is no greater
than the initial sentence. The court resentencing under this subdivision shall apply the
sentencing rules of the Judicial Council so as to eliminate disparity of sentences and to
promote uniformity of sentencing. Credit shall be given for time served.”


                                              10
exceed the original sentence, grants credit for time served, and ‘appl[ies] the sentencing
rules of the Judicial Council so as to eliminate disparity of sentences and to promote
uniformity of sentencing. . . .’ ” (Dix v. Superior Court (1991) 53 Cal.3d 442, 455 (Dix).)
The court’s authority to resentence is as broad as that it possessed when the original
sentence was pronounced. (Id. at p. 456; People v. Johnson (2004) 32 Cal.4th 260, 266.)
“[W]ithin the 120-day period, the court may recall a sentence on its own motion for any
reason rationally related to lawful sentencing.” (Dix, at p. 456.)
       Here, the trial court acted within the statutory 120-day time period. The court’s
comments make clear the recall and resentencing was on its own motion, despite the fact
Espinosa filed a motion, upon the court’s invitation, to reduce the degree of the crime and
sentence. (See People v. Pritchett (1993) 20 Cal.App.4th 190, 193 [defendant does not
have standing to initiate a motion to recall a sentence under section 1170, subdivision
(d)]; People v. Turrin (2009) 176 Cal.App.4th 1200, 1204-1205 [same].) Thus, if the
court had merely resentenced Espinosa to a term authorized when the original sentence
was pronounced, it would have acted within its jurisdiction. However, the court did not
simply resentence Espinosa to a term that it had authority to impose in the first instance.
The lowest term available for a first degree murderer is 25 years to life in prison. (§ 190,
subd. (a) [“Every person guilty of murder in the first degree shall be punished by death,
imprisonment in the state prison for life without the possibility of parole, or
imprisonment in the state prison for a term of 25 years to life”].) Instead, the court also
modified the jury’s verdict by reducing the offense to second degree murder. Then, based
on the modified judgment, the court imposed the new sentence. The court lacked
jurisdiction to modify the judgment in this fashion. (See People v. Blount (2009) 175
Cal.App.4th 992, 998 [“section 1170 does not provide the trial court with any broader
discretion to impose sentence than the court originally possessed at the initial
sentencing”].) After a defendant has filed a notice of appeal, under section 1170,
subdivision (d), a trial court has jurisdiction to modify a defendant’s sentence, but not the
jury’s verdict.
       Nelms is instructive. There, while the defendant’s case was pending on appeal the

                                             11
trial court recalled his sentence pursuant to section 1170, subdivision (d) and, without
opposition by the People, dismissed his smuggling conviction. It then sentenced him to a
lower term. (People v. Nelms, supra, 165 Cal.App.4th at p. 1468.) Nelms concluded the
trial court had exceeded its jurisdiction. (Id. at p. 1471.) The court reasoned: “By its
express terms, section 1170, subdivision (d), is limited to sentencing and says nothing
about modifying the judgment.” (Nelms, at p. 1472, italics added.) Therefore, the “recall
was limited to resentencing and did not give the court authority to modify the judgment
of conviction.” (Id. at p. 1472, italics added.) Rather than merely resentencing Nelms,
the “court first dismissed one of the counts on which he was convicted, thereby altering
the judgment itself. Then, based on this modified judgment, the court imposed a new
sentence.” (Ibid.) This, Nelms reasoned, was impermissible: “the trial court had no
jurisdiction to dismiss the smuggling count once defendant filed his notice of appeal,
even if the parties agreed to such action. And because the resentencing was premised on
dismissal of the smuggling count, it too is of no force and effect.” (Id. at p. 1473; People
v. Alanis, supra, 158 Cal.App.4th at p. 1474 [trial court lacked jurisdiction under section
1170, subdivision (d) to recall sentence to allow the defendant to withdraw his plea].)
       As is readily apparent, the same is true here. The trial court did not simply
resentence Espinosa; it modified the jury’s verdict by reducing the degree of the murder.
The resentencing was premised on this modification. Contrary to Espinosa’s contention,
the fact the Nelms court dismissed a count, whereas here the court reduced the degree of
the offense, does not meaningfully distinguish the two situations: in both, the court
modified the verdicts, rather than simply resentencing the defendants, and based on the
modifications, imposed a new sentence. Section 1170, subdivision (d), did not confer
jurisdiction for the modification, only for resentencing. Thus, the trial court’s action is
null and void. (People v. Alanis, supra, 158 Cal.App.4th at p. 1473.)
       Espinosa argues that under People v. Dillon, supra, 34 Cal.3d 441, a trial court has
authority to reduce a first degree murder to a second degree murder and resentence a
defendant accordingly, if the first degree sentence amounts to cruel and unusual
punishment. Dillon held that “the penalty for first degree felony murder, like all statutory

                                             12
penalties, is subject to the constitutional prohibition against cruel or unusual punishments
(Cal. Const., art. I, § 17), and in particular to the rule that a punishment is impermissible
if it is grossly disproportionate to the offense as defined or as committed, and/or to the
individual culpability of the offender. [Citation.]” (Dillon, at p. 450.) Because “such
disproportion [was] manifest on the record” in Dillon, the court “modif[ied] the judgment
to punish [the] defendant as a second degree murderer.” (Ibid.)
       Espinosa is correct that “on a determination that a particular punishment is cruel or
unusual,” a trial court has the authority to modify the judgment to reduce the degree of
the offense. (People v. Cole (2001) 88 Cal.App.4th 850, 869; People v. Mora (1995) 39
Cal.App.4th 607, 615-616; People v. Leigh (1985) 168 Cal.App.3d 217, 223; 3 Witkin &
Epstein, Cal. Criminal Law (4th ed. 2012) Punishment, § 235, p. 382 [both trial judges
and appellate courts are authorized and required to apply Dillon analysis].) Thus, we do
not disagree that a trial court can, in an exceptional case, reduce the degree of a crime to
avoid imposing an unconstitutionally cruel or unusual sentence. (See People v. Mora,
supra, 39 Cal.App.4th at p. 615 [reduction of sentence under Dillon is the exception, not
the rule].) Further, if only resentencing rather than modification of the verdict was
involved, resentencing to avoid an unconstitutional sentence would clearly be a “reason
rationally related to lawful sentencing.” (See Dix, supra, 53 Cal.3d at p. 456.) However,
it does not flow from these principles that a trial court can resentence where it must also
reduce the degree of the offense in order to do so, when a notice of appeal has been filed.
Nothing in Dillon suggests an exception to the general rule that the filing of a notice of
appeal divests the trial court of jurisdiction.
       The trial court also stated it had authority to modify the verdict pursuant to section
1181. As pertinent here, section 1181 provides that “[w]hen a verdict has been rendered
or a finding made against the defendant, the court may, upon his application, grant a new
trial, in the following cases only: [¶] . . . [¶] 6. When the verdict or finding is contrary to
law or evidence, but if the evidence shows the defendant to be not guilty of the degree of
the crime of which he was convicted, but guilty of a lesser degree thereof, or of a lesser
crime included therein, the court may modify the verdict, finding or judgment

                                                  13
accordingly without granting or ordering a new trial, and this power shall extend to any
court to which the cause may be appealed[.]”
       However, here Espinosa did not move to reduce his sentence to voluntary
manslaughter, and the trial court did not act, until after Espinosa filed his notice of
appeal. Unlike section 1170, subdivision (d), section 1181 does not appear to comprise
an exception to the general rule that the filing of a notice of appeal divests the trial court
of jurisdiction. Espinosa does not direct us to any authority so holding, and we are aware
of none. Therefore, the trial court lacked jurisdiction to modify the jury’s verdict when it
did. (See People v. Nelms, supra, 165 Cal.App.4th at p. 1471.)9
       Because the trial court lacked jurisdiction to reduce the offense to second degree
murder, its order is null and void and of no effect.10




9      The People urge that Espinosa’s motion to reduce his conviction was “effectively
a second motion for a new trial pursuant to section 1181.” They point out that “in a
criminal case, a trial court that has denied a motion for a new trial lacks authority to
consider and grant a second or renewed motion for a new trial.” (People v. DeLouize
(2004) 32 Cal.4th 1223, 1228; see also People v. Wisely (1990) 224 Cal.App.3d 939, 948
[generally, “ ‘once a trial court has decided a new trial motion, it may not reconsider its
ruling or entertain subsequent requests for new trial’ ”; otherwise, “ ‘proceedings on new
trial motions might “become interminable” ’ ”].) But we need not consider whether the
People’s characterization of Espinosa’s motion is correct. “A trial court obviously cannot
reconsider its new trial motion ruling after it has lost jurisdiction over the case.” (People
v. Rose (1996) 46 Cal.App.4th 257, 263.) Espinosa’s filing of his notice of appeal
divested the court of jurisdiction to act pursuant to either section 1181 or section 1170,
subdivision (d).

10     In light of our conclusion, we do not reach the parties’ arguments regarding
whether the first degree murder sentence constituted cruel and unusual punishment,
whether there was sufficient evidence to establish premeditation and deliberation, or
whether the People’s appeal, insofar as it concerns the sufficiency of the evidence, is
barred by double jeopardy principles.


                                              14
                                       DISPOSITION
       The trial court’s order reducing the offense to second degree murder and imposing
a sentence of 16 years to life is vacated for lack of subject matter jurisdiction. The jury’s
first degree murder verdict and the original sentence of 25 years to life in prison is
reinstated. The clerk of the superior court is directed to prepare an amended abstract of
judgment and to forward a copy to the Department of Corrections.

              CERTIFIED FOR PUBLICATION




                                                  ALDRICH, J.


We concur:


              KLEIN, P. J.




              KITCHING, J.




                                             15
