Filed 4/14/14 P. v. Baker CA5



                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
                                     FIFTH APPELLATE DISTRICT


THE PEOPLE,

         Plaintiff and Respondent,                                                      F066827

                   v.                                                     (Super. Ct. No. BF133419A)

FRANKIE DELON BAKER,                                                                OPINION

         Defendant and Appellant.


                                                   THE COURT
         APPEAL from a judgment of the Superior Court of Kern County. Larry A. Errea,
Judge.
         James F. Johnson, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and
Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-


        Before Cornell, Acting P.J., Poochigian, J., and LaPorte, J.†

†      Judge of the Kings Superior Court assigned by the Chief Justice pursuant to article
VI, section 6 of the California Constitution.
       Appellant, Frankie Deleon Baker, pled no contest to indecent exposure with priors
(Pen. Code,1 § 314, subd. 1) and admitted allegations that he had a prior strike conviction
within the meaning of the three strikes law (§ 667, subd. (b)-(i)).
       This is Baker’s second appeal in this matter. In this appeal, Baker challenges the
trial court’s denial of a hearing on a motion to correct his award of presentence custody
credit. We conclude the order Baker appealed from was not an appealable order and
dismiss the appeal.
                                          FACTS
       In January 2010 and on two occasions in July 2010, Baker was observed
masturbating inside the Beale Library in Bakersfield.
       On June 29, 2011, Baker entered his plea in this matter.
       On November 2, 2011, the court sentenced Baker to a four-year term, the middle
term of two years on the substantive offense, doubled to four years because of his prior
strike conviction. Baker subsequently filed his first appeal in this matter (F063816).
       On June 28, 2012, while his first appeal was pending, the court granted Baker’s
motion to award him presentence custody credit for time he spent in custody from August
5, 2010, through June 1, 2011, on a parole violation related to his indecent exposure
conviction.
       On September 18, 2012, this court directed the parties to brief certain issues
including whether the court erred in awarding Baker presentence custody credit for this
period of time.
       In an unpublished opinion in case No. F063816, this court found the trial court
erred by awarding Baker presentence custody credit for time he served on a parole
violation and for time he was in custody after he was sentenced on the underlying

1      All statutory references are to the Penal Code.


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conviction in that case. In pertinent part, we found that Baker failed to show his
conviction on the one count of indecent exposure was the sole reason for his parole being
revoked. We also reduced Baker’s award of presentence custody credit from 985 days to
177 days and directed the trial court to prepare and file an amended abstract of judgment
that was consistent with our opinion.
       On December 17, 2012, prior to the remittitur issuing in case No. F063816, Baker
filed a motion in the trial court to correct his presentence custody credit. Baker alleged
he was entitled to such credit for the time he spent in custody on his parole violation
because his indecent exposure conviction in case No. BF133419A was the sole basis for
his parole being violated.
       On January 28, 2013, remittitur issued in case No. F063816; on January 30, 2013,
the remittitur was filed in the Kern County Superior Court.
       On February 7, 2013, over the People’s objection, the trial court held a hearing on
Baker’s motion where it took testimony from Baker’s former parole agent.
       On February 20, 2013, after holding that it could not hear Baker’s motion because
it had previously ruled adversely to Baker on the same issue, the court struck the
testimony taken at the February 7, 2013, hearing and denied the motion.
                                        DISCUSSION
       Baker contends the denial of a hearing on the merits of his December motion
violates mandatory provisions governing the length of confinement, rendered his
sentence unauthorized, amounts to jurisdictional error, denied him his state and federal
constitutional right to due process, and constitutes structural error mandating remand for
a hearing on the merits. We will conclude that the order appealed from was not
appealable and dismiss Baker’s appeal.

               “‘The filing of a valid notice of appeal vests jurisdiction of the cause
       in the appellate court until determination of the appeal and issuance of the
       remittitur.’ (…; see People v. Cunningham (2001) 25 Cal.4th 926, 1044

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       [‘“an appeal from an order in a criminal case removes the subject matter of
       that order from the jurisdiction of the trial court …”’]; People v. Murphy
       (1969) 70 Cal.2d 109, 116 [an appeal stays all further proceedings in the
       trial court upon the order or judgment appealed from and matters embraced
       therein].) 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.]’
       [Citation.]

               “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. (…; e.g., People v. Sonoqui (1934) 1
       Cal.2d 364, 367 [reversing a judgment of conviction because the trial
       occurred before the remittitur issued]; People v. Mayne (1897) 118 Cal.
       516, 522 [appeal from order denying a new trial removed court’s
       jurisdiction to change that order].)” (People v. Alanis (2008) 158
       Cal.App.4th 1467, 1472-1473.)

               “‘[Moreover,] [w]here a reviewing court reverses a judgment with
       directions ... the trial court is bound by the directions given and has no
       authority to retry any other issue or to make any other findings. Its
       authority is limited wholly and solely to following the directions of the
       reviewing court.’ (Rice v. Schmid (1944) 25 Cal.2d 259, 263 ...; see
       Tsarnas v. Bailey (1962) 205 Cal.App.2d 593, 595; Carter v. Superior
       Court (1950) 96 Cal.App.2d 388, 39 [‘The courts have repeatedly adhered
       strictly to the rule.... Any proceedings had or judgment rendered contrary
       to such specific directions would be void’].)” (People v. Dutra (2006) 145
       Cal.App.4th 1359, 1367.)
       Further, section 1237, in pertinent part, provides:

              “An appeal may be taken by the defendant: [¶] … [¶] (b) From
       any order made after judgment, affecting the substantial rights of the
       party.” (Italics added.)
       Applying these principles to the instant case, we conclude the trial court did not
have jurisdiction to hear Baker’s December 17, 2012, motion because it lost jurisdiction
over the underlying case when Baker filed his first appeal in this matter. Once remittitur
issued, it regained jurisdiction only to prepare an amended abstract of judgment. Further,
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since the trial court did not have jurisdiction to hear or grant Baker’s motion, the trial
court’s order denying the motion did not affect Baker’s substantial rights and was, thus,
not appealable.
                                      DISPOSITION
       The appeal is dismissed. However, our review of the record disclosed that Baker’s
abstract of judgment contains a clerical error. Although Baker was convicted of violating
Penal Code section 314, subdivision 1, his abstract of judgment erroneously
memorializes this section as section 3014.1. The trial court is directed to issue an
amended abstract of judgment that corrects this error and to forward a certified copy of
the abstract to the Department of Corrections and Rehabilitation.




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