Filed 1/20/16 P. v. Farias CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                         (Yolo)
                                                            ----



THE PEOPLE,                                                                                  C077761

                   Plaintiff and Respondent,                                    (Super. Ct. No. CRF135118)

         v.

ISMAEL PAUL FARIAS,

                   Defendant and Appellant.




         Defendant Ismael Paul Farias pleaded no contest to assault with a deadly weapon
and admitted enhancements for personally inflicting great bodily injury and two prior
prison terms (§ 667.5, subd. (b)).1 The trial court sentenced defendant to a stipulated
term of nine years in state prison.
         On appeal, defendant claims the trial court erred in failing to grant his motion to
recall his sentence and eliminate the enhancements for the two prior prison terms, which




1   Further undesignated statutory references are to the Penal Code.

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were reduced to misdemeanors after his sentencing pursuant to Proposition 47. We
conclude the trial court lacked jurisdiction to consider the motion to the extent it sought
to modify sentence enhancements that were already subject to a pending appeal. For this
reason, we affirm the judgment without reaching the question of whether the
enhancements for prior prison terms were eligible for reduction.
                                          I. BACKGROUND
       We dispense with the facts of defendant’s crime as they are unnecessary to resolve
this appeal.
       Defendant was sentenced on October 9, 2014. As part of his sentence, he was
subject to two consecutive one-year terms for the prior prison term enhancements. Those
enhancements were based on a 2010 conviction for second degree burglary and a 2012
conviction for felony petty theft with a prior.
       Trial counsel filed a notice of appeal for defendant on November 5, 2014. On
December 3, 2014, the trial court allowed defendant to file a second notice of appeal in
which the court granted a certificate of probable cause.
       On February 4, 2015, while his appeal was pending, defendant filed a petition for
recall of sentence and redesignation of convictions pursuant to section 1170.18. The trial
court designated the prior burglary and petty theft with a prior conviction as
misdemeanors, but did not resentence him on the prior prison term enhancements as they
affect the sentence he is currently serving for assault with a deadly weapon.
                                           II. DISCUSSION
       The passage of Proposition 47 created section 1170.18, which provides for 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 to request resentencing” under the
statutory framework as amended by the passage of Proposition 47. (§ 1170.18, subd. (a);

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see Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 14, pp. 73-74.)
Among the crimes subject to redesignation and resentencing are petty theft with a prior
and certain burglaries. (§ 1170.18, subd. (a).)
       Since the prior prison term enhancement requires that defendant was convicted of
a felony and served a prison term for that conviction (§ 667.5, subd. (b)), defendant
contends the enhancements should be stricken because that is no longer the case. We do
not reach this issue because the trial court was without jurisdiction to consider the
petition for recall of sentence as applied to convictions currently the subject of a pending
appeal.
       At the time defendant filed his section 1170.18 petition in the trial court,
defendant’s appeal of his 2014 conviction and sentence was pending in this court.
Because an appeal was pending, the trial lacked jurisdiction to recall his sentence and
resentence him under section 1170.18 with respect to the convictions or sentence
enhancements that are the subject of the pending appeal. (People v. Scarbrough (2015)
240 Cal.App.4th 916, 929.) We also lack jurisdiction to strike the priors in this appeal
because section 1170.18 is the sole means by which a defendant can seek resentencing
and requires a motion to recall filed in the trial court. (People v. Noyan (2014)
232 Cal.App.4th 657, 672.) We therefore decline defendant’s invitation to remand the
case with instructions to vacate the prison priors.
       Nonetheless, defendant may “petition[] for recall of sentence in the trial court once
his judgment is final.” (People v. Noyan, supra, 232 Cal.App.4th at p. 672; People v.
Scarbrough, supra, 240 Cal.App.4th at p. 930.)




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                                  III. DISPOSITION
      The judgment is affirmed.



                                                     /S/

                                             RENNER, J.


We concur:



      /S/

HULL, Acting P. J.



      /S/

MAURO, J.




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