Filed 3/23/16 P. v. Ashurst CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H042261
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. No. SS131139)

         v.

ROBERT JAMES ASHURST,

         Defendant and Appellant.



         Defendant Robert James Ashurst appeals from an order denying his petition for
recall of sentence and resentencing under Proposition 47.1 We affirm the order.


                                              I. Statement of the Case
         On January 16, 2014, defendant was convicted of possession of a controlled
substance (Health & Saf. Code, § 11350 – count one), possession of a controlled
substance while armed with a loaded, operable firearm (Health & Saf. Code, § 11370.1,
subd. (a) – count two), felony vehicular evasion of a peace officer with willful disregard
for the safety of others (Veh. Code, § 2800.2, subd. (a) – count three), and possession of a


1
       We need not consider defendant’s contention regarding an error in the minute
orders, because the trial court corrected the minute orders in response to defendant’s
request.
firearm by a felon (Pen. Code, § 29800, subd. (a)(1)2 – count four). The jury also found
that defendant was armed with a firearm in the commission of count three (§ 12022,
subd. (a)(1)).
       On April 10, 2014, the trial court sentenced defendant as a second strike offender
and imposed a sentence of 10 years eight months in prison. The trial court imposed: (1)
the upper term of four years for possession of a controlled substance while armed (count
two) and doubled that term to eight years; and (2) one year and four months each for
vehicular evasion (count three) and possession of a firearm by a felon (count four). The
trial court stayed the one-year enhancement attached to count three and the upper term of
three years for possession of a controlled substance (count one) pursuant to section 654.
       On May 26, 2014, defendant filed a notice of appeal in case No. H040995. The
opinion was filed on February 5, 2016.
       Meanwhile, on January 20, 2015, defendant filed a petition to have his felony
conviction for possession of a controlled substance be designated a misdemeanor
pursuant to section 1170.18, subdivision (a). The prosecutor argued that defendant was
ineligible for relief, his case was on appeal, and the trial court stayed execution of the
sentence for this count. The trial court denied the petition on the ground that it lacked
jurisdiction because defendant’s case was pending appeal. Defendant filed a timely
notice of appeal.


                                         II. Discussion
       Voters enacted Proposition 47, the Safe Neighborhoods and Schools Act, in
November 2014. The Legislative Analyst set forth the three effects of Proposition 47:
“This measure reduces penalties for certain offenders convicted of nonserious and
nonviolent property and drug crimes. The measure also allows certain offenders who

2
       All further statutory references are to the Penal Code unless otherwise specified.

                                              2
have been previously convicted of such crimes to apply for reduced sentences. In
addition, the measure requires any state savings that result from the measure be spent to
support [certain services].” (Voter Information Guide, Gen. Elect. (Nov. 4, 2014)
analysis by the Legislative Analyst, p. 35.)
       Proposition 47 established procedures for applications for reduced sentences for
specified nonserious and nonviolent property and drug crimes by adding section 1170.18.
Subdivision (a) of section 1170.18 permits persons convicted of the specified nonserious,
nonviolent property and drug felonies to file petitions “request[ing] resentencing . . . .”
(§ 1170.18, subd. (a).) Subdivision (b) of section 1170.18 provides that a court that
receives such a petition shall resentence the petitioner “unless the court, in its discretion,
determines that resentencing the petitioner would pose an unreasonable risk of danger to
public safety.” (§ 1170.18, subd. (b).)
       Defendant contends that section 1170.18 does not divest the trial court of
jurisdiction to rule on his resentencing petition during his pending criminal appeal.
       People v. Scarbrough (2015) 240 Cal.App.4th 916 (Scarbrough) is instructive. In
Scarbrough, the trial court granted the defendant’s petition to recall her sentence on two
felony convictions which were being reviewed on appeal, designate the convictions as
misdemeanors, and resentence her. (Id. at p. 920.) Scarbrough rejected many of the
same arguments advanced by defendant in the present case and held that the trial court’s
order was void. (Id. at p. 922.) We agree with the analysis and holding in Scarbrough.
       Scarbrough began its analysis by setting forth the applicable law regarding
appellate jurisdiction. “Subject to limited exceptions, well-established law provides that
the trial court is divested of jurisdiction once execution of a sentence has begun.
[Citation.] . . . This rule protects the appellate court’s jurisdiction by protecting the status
quo so that an appeal is not rendered futile by alteration. [Citations.] As a result of this
rule, the trial court lacks jurisdiction to make any order affecting a judgment, and any
action taken by the trial court while the appeal is pending is null and void. [Citation.]”
                                               3
(Scarbrough, supra, 240 Cal.App.4th at p. 923.) However, as Scarbrough recognized,
there are exceptions to this rule. While an appeal is pending, the trial court may: vacate
a void judgment; correct an unauthorized sentence; correct clerical errors in the
judgment; and correct errors in the calculation of presentence custody credits under
section 1237.1. (Scarbrough, at p. 923.) In addition, section 1170, subdivision (d)
allows the trial court to recall a sentence within 120 days of a prison commitment and
resentence a defendant notwithstanding a pending appeal. (Scarbrough, at p. 924.)
       Scarbrough then interpreted section 1170.18, subdivision (a), which states in
relevant part that “[a] person currently serving a sentence for a conviction . . . of a felony
or felonies who would have been guilty of a misdemeanor under the act that added this
section . . . had this act been in effect at the time of the offense may petition for a recall of
sentence before the trial court that entered the judgment of conviction in his or her case to
request resentencing in accordance with [enumerated sections, including Health and
Safety Code section 11350], as those sections have been amended or added by this act.”
A petition under section 1170.18 “shall be filed within three years after the effective date
of the act that added this section or at a later date upon a showing of good cause.”
(§ 1170.18, subd. (j).)
       As did the defendant in Scarbrough, defendant argues that “[t]he ordinary
meaning of this language is that section 1170.18 applies to any defendant who was
serving a sentence for a Proposition 47 offense on November 5, 2014, . . . regardless of
whether the judgment of conviction was final.”
       Scarbrough analogized section 1170.18 to section 1170.126, because both statutes
“use[d] substantially the same language, structure, and procedure to provide for recall and
resentencing of persons currently serving sentences where those persons would be subject
to lighter sentences pursuant to the newly enacted voter initiatives.” (Scarbrough, supra,
240 Cal.App.4th at p. 924.) Scarbrough relied on People v. Yearwood (2013) 213
Cal.App.4th 161, which interpreted section 1170.126. Yearwood held that the trial court
                                               4
did not have jurisdiction over a case when an appeal was pending and found that the
“ ‘good cause’ ” exception to the filing period of section 1170.126 allowed a prisoner to
seek relief after the appellate proceedings had terminated. (Scarbrough, at p. 925.)
Yearwood also observed that it was “ ‘reasonable for the voters to have designed a
statutory process where the trial court considers a petition for a recall of sentence after
final resolution of legal issues related to the conviction and original sentence (which may
have components that are unaffected by [the Three Strikes Reform Act of 2012]).’
[Citation.]” (Scarbrough, at p. 925.) Scarbrough agreed with the reasoning of Yearwood
and found that voters were “aware of this interpretation when they approved Proposition
47. [Citation.]” (Scarbrough, at p. 925.)
       Defendant argues that Yearwood is not persuasive. He points out that “[a] typical
defendant eligible for resentencing under section 1170.18 is currently serving a prison
sentence far shorter than Mr. Yearwood [who was serving 25 years to life plus one year
in prison] and would likely complete that sentence or be close to it if he had to wait for
the lengthy appellate process to conclude before he could apply for misdemeanor
resentencing.” However, in the event that a defendant is serving a relatively short prison
sentence, he or she can request that the reviewing court expedite the appeal. We also
note that, here, defendant is serving a prison sentence of 10 years and eight months as a
second-strike offender and the trial court stayed imposition of his three-year sentence for
possession of a controlled substance pursuant to section 654. Thus, there will be no
prejudice to defendant to renew his petition.3

3
       The present case is distinguishable from People v. Awad (2015) 238 Cal.App.4th
215 (Awad). In Awad, the defendant was convicted of multiple felony convictions for
forgery and theft, sentenced to five years, eight months in prison, and appealed from the
judgment. (Id. at p. 219.) Approximately three months later, the defendant brought a
petition to reduce the felony sentence for one of his forgery counts to a misdemeanor,
which the trial court denied on the ground that it lacked jurisdiction while his case was
pending on appeal. (Ibid.) The defendant sought expedition of the appeal from the
                                                                                 (Continued)
                                              5
       Relying on the argument in favor of Proposition 47 Voter Information Guide,
defendant also points out that the “voters who passed Proposition 47 wanted an
immediate halt to the wasteful use of their taxpayer dollars and to have that money
diverted, without unnecessary delay, to education.” However, as Scarbrough concluded,
there was nothing in either section 1170.18 or Proposition 47 indicating an immediate
halt to the expenditure of funds. (Scarbrough, supra, 240 Cal.App.4th at p. 928.)
Scarbrough explained that if the voters had intended such a result “there would be no
cause to create such a lengthy period to seek recall and resentencing relief—three years,
or longer on a showing of good cause.” (Ibid.) Scarbrough also noted that “concurrent
jurisdiction would not support judicial economy. Our efforts to review the initial
judgment may be rendered futile; we may be asked to review conflicting judgments, each
with different errors to be corrected; 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.” (Ibid.)
       Relying on In re Carpenter (1995) 9 Cal.4th 634, defendant also argues that “the
trial court should be able to consider the Proposition 47 petition irrespective of the
pendency of the appeal because it is a matter extrinsic to the appellate record.”
Carpenter held that the trial court had subject matter jurisdiction over habeas proceedings

underlying judgment. (Ibid.) As an alternative to an expedited appeal, the Court of
Appeal asked the parties to brief whether an appellate court has authority to order a
limited remand during the pendency of an appeal to allow the trial court to rule on a
Proposition 47 petition. (Awad, at p. 220.) After the defendant requested a limited
remand, the appellate court consolidated the two appeals, issued a limited remand to the
trial court to hear the Proposition 47 petition, issued a stay of the defendant’s first appeal,
and concluded that the second appeal was moot in light of the remand order. (Awad, at
pp. 223-225.) If the defendant in Awad had waited until after his appeal from the
underlying judgment was complete, he would have been unable to gain any benefit from
a successful Proposition 47 petition because he would have already served his sentence
on the felony conviction. Here, as previously stated, there is no such concern because
defendant’s sentence for possession of a controlled substance was stayed.

                                               6
when defendant’s claim of juror misconduct involved matters outside the appellate
record. (Carpenter, at p. 646.) Scarbrough rejected this argument and stated: “The
constitutional grant of original jurisdiction to all courts to hear writs of habeas corpus
renders those proceedings sui generis and the judicial interpretations of that jurisdiction
inapplicable to statutory proceedings such as this one.” (Scarbrough, supra, 240
Cal.App.4th at p. 927.)
       In sum, we conclude that the trial court properly concluded that it lacked
jurisdiction to consider defendant’s resentencing petition while his appeal from the
underlying judgment was pending before this court.


                                       III.   Disposition
       The order is affirmed.




                                              7
                                 _______________________________
                                 Mihara, J.



WE CONCUR:




______________________________
Elia, Acting P. J.




______________________________
Bamattre-Manoukian, J.




People v. Ashurst
H042261

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