Opinion
D070386
06-20-2017
THE PEOPLE, Plaintiff and Respondent, v. BARRON M. MCNULTY, Defendant and Appellant.
Doris M. LeRoy, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, and Warren J. Williams, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD237463) APPEAL from a judgment of the Superior Court of San Diego County, Eugenia A. Eyherabide, Judge. Reversed. Doris M. LeRoy, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, and Warren J. Williams, Deputy Attorney General, for Plaintiff and Respondent.
I.
INTRODUCTION
Barron M. McNulty appeals from an April 2016 judgment granting his March 2016 petition for resentencing under Penal Code section 1170.18, subdivision (a). Although the trial court granted McNulty's petition and resentenced him, the court sentenced McNulty to the same aggregate term as his previous sentence. While McNulty's appeal from the April 2016 judgment was pending, we directed the parties to file supplemental briefing concerning whether the trial court had jurisdiction to rule on McNulty's March 2016 petition for resentencing given that, at the time the court granted the petition, McNulty's appeal of a prior petition for resentencing (§ 1170.18, subd. (a)) was pending in this court (People v. McNulty (June 6, 2016, D068554) [nonpub. opn.]).
Unless otherwise specified, all subsequent statutory references are to the Penal Code. Section 1170.18 was adopted as part of Proposition 47, the Safe Neighborhoods and Schools Act (the Act).
The Supreme Court granted review of People v. McNulty, supra, D068554. (See People v. McNulty, review granted Aug. 10, 2016, S235695.) People v. McNulty, supra, S235695 remains pending in the Supreme Court.
We grant McNulty's request that we take judicial notice of the record in People v. McNulty, supra, D068554.
The People filed a brief arguing that the trial court lacked jurisdiction to rule on McNulty's March 2016 petition, given the pendency of his appeal in People v. McNulty, supra, D068554. McNulty filed a brief arguing that the trial court retained jurisdiction to rule on the March 2016 petition. We conclude that the trial court lacked jurisdiction to rule on the March 2016 petition. Accordingly, we reverse the April 2016 judgment.
II.
PROCEDURAL BACKGROUND
The facts of McNulty's underlying offenses are not relevant to the jurisdictional issue we address in this opinion.
A. The underlying case
In February 2012, the People charged McNulty with one count of conspiracy (§ 182, subd. (a)(1)) (count 1); eight counts of burglary (§ 459) (counts 2, 3, 10-15); three counts of forgery - possessing a completed check (§ 475, subd. (c)) (counts 4, 5, 6); one count of forgery - possessing an unfinished check (§ 475, subd. (b)) (count 7); two counts of receiving stolen property (§ 496, subd. (a)) (counts 8, 16); one count of petty theft with an access card (§ 484g, subd. (a)) (count 9); one count of possession of methamphetamine (§ 11377, subd. (a)) (count 17); one count of possession of heroin (§ 11350, subd. (a)) (count 18); and one count of possession of alprazolam (§ 11375, subd. (b)(2)) (count 19). The People also alleged that McNulty had served a prior prison term pursuant to sections 667.5, subdivision (b) and 668.
McNulty pled guilty to counts 1, 2, 4, 5, 6, 7, 13, 14, 15, and 16 and admitted the prison prior. The parties' plea agreement provided for McNulty to serve 10 years in local custody, with the last three years under community supervision. The People agreed to dismiss the balance of the charges. In April 2012, the trial court sentenced McNulty to the stipulated 10-year sentence, including three years on count 1, consecutive terms of eight months on each of the remaining nine counts, and one year for the prison prior. B. The May 2015 petition for resentencing and appeal
On May 22, 2015, McNulty filed a petition for resentencing pursuant to section 1170.18. In his petition, McNulty argued that he was entitled to resentencing because his burglary "conviction on count 2 is eligible for relief." The trial court denied the petition. On July 28, 2015, McNulty filed a notice of appeal from the trial court's order denying his petition. (People v. McNulty, supra, D068554.) C. The March 2016 petition for resentencing
In March 2016, while People v. McNulty, supra, D068554, was pending in this court, McNulty filed a second petition for resentencing. In the March 2016 petition, McNulty contended that he was eligible for resentencing because counts 4 through 6, count 7, and count 16 were eligible for relief. In accompanying points and authorities, McNulty noted that it appeared that the People agreed that McNulty was eligible for resentencing on these counts, referring to an April 2015 document in which the People stated, "The District Attorney agrees that the following counts are eligible for resentencing/reduction [counts 4-7, count 16]."
McNulty attached this document to his points and authorities. It is not clear from the record which petition for resentencing this document pertained to.
McNulty also argued that the trial court had jurisdiction to consider this petition, notwithstanding the pendency of the appeal in People v. McNulty, supra, D068554. McNulty attached a letter from his appellate attorney in People v. McNulty, supra, D068554 in which the attorney contended that the trial court had jurisdiction to rule on McNulty's petition, notwithstanding the pendency of the appeal of the prior petition.
On April 18, 2016, the trial court held a hearing at which the court noted that the People were not opposed to the resentencing. McNulty's counsel argued that he should be sentenced to a term less than the original 10-year sentence. The People argued that the court should resentence McNulty in such a manner "so that the sentence remains 10 years." The court granted McNulty's petition, but resentenced McNulty to the same aggregate term of ten years in local custody. The court achieved this sentence by sentencing McNulty to consecutive terms of 240 days on counts 4 through 7 and 16, which the court declared to be misdemeanors. As noted in part II.A, ante, McNulty had initially been sentenced in April 2012 to consecutive terms of eight months on each of these counts.
At the conclusion of the hearing, McNulty's counsel stated, "Just for the record, the court is making a finding . . . that it [has] jurisdiction." The court responded, "Yes, thank you very much. I forgot about that." D. The appeal in this case
McNulty filed a notice of appeal from the trial court's April 18 judgment.
Appointed appellate counsel filed a brief presenting no argument for reversal, but inviting this court to review the record for error in accordance with People v. Wende (1979) 25 Cal.3d 436. After this court received counsel's brief, we gave McNulty the opportunity to file a supplemental brief. McNulty filed a letter in which he contended that it was "not fair" that he received the same sentence upon resentencing that he had received initially.
After McNulty filed his supplemental brief, this court directed the parties to file supplemental briefing concerning whether the trial court had jurisdiction to rule on McNulty's March 2016 petition for resentencing, given the pending appeal in People v. McNulty, supra, D068554. E. The proceedings in People v. McNulty, supra, D068554.
In June 2016, this court reversed the trial court's July 2015 order denying McNulty's May 2015 petition "with directions to grant the petition and to resentence as may be appropriate." (People v. McNulty, supra, D068554 [nonpub. opn.].) In August 2016, the Supreme Court granted the People's petition for review (People v. McNulty, supra, S235695) and the matter remains pending in the Supreme Court.
III.
DISCUSSION
The trial court lacked jurisdiction to grant McNulty's March 2016 petition for
resentencing and to resentence him while McNulty's appeal of the trial court's
denial of his May 2015 petition for resentencing was pending
The People contend that the trial court lacked jurisdiction to grant McNulty's March 2016 petition for resentencing and to resentence him while his appeal of the trial court's denial of his May 2015 petition for resentencing remained pending in this court. We apply the de novo standard of review to this claim. (See Day v. Collingwood (2006) 144 Cal.App.4th 1116, 1123 [applying de novo standard of review in determining whether trial court had jurisdiction to rule on motion].) A. Governing law
1. Proposition 47
Proposition 47 created provisions permitting the resentencing of defendants serving a sentence for certain convictions (§ 1170.18, subds. (a), (b)) and authorizing the designation of certain prior convictions as misdemeanors for those defendants who have completed their sentences (id., subds. (f)-(h)).
Under former section 1170.18's resentencing mechanism, "[a] person currently serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section ('this act') 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 the reduced penalties provided for various crimes contained in the statute. (Id., subd. (a).) A person who satisfies the statutory criteria shall have his or her sentence recalled and be "resentenced to a misdemeanor . . . unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety." (Id., subd. (b).)
We quote from the former version of section 1170.18, subdivision (a) in effect at the time of the trial court's ruling granting McNulty's petition for resentencing. Although not material to this appeal, section 1170.18, subdivision (a) was amended, effective January 1, 2017, to state, "A person who, on November 5, 2014, was serving a sentence for a conviction . . . ." (Stats. 2016, ch. 767, § 1, italics added.)
Section 1170.18 also provides that persons who have completed felony sentences for offenses that would now be misdemeanors under Proposition 47 may file an application to have their felony convictions "designated as misdemeanors." (§ 1170.18, subds. (f)-(h).)
In People v. Roach (2016) 247 Cal.App.4th 178 (Roach), the Court of Appeal explained that a successful petition for resentencing pursuant to section 1170.18, subdivision (a) results in the full resentencing of a defendant on all convictions that comprise the defendant's aggregate sentence:
"A successful petition under section 1170.18 vests the trial court with jurisdiction to resentence the applicant, and in doing so the court is required to follow the generally applicable sentencing procedures in section 1170 et seq. [Citation.] In particular, section 1170.1, subdivision (a) directs a trial court how to determine an aggregate sentence . . . . '[W]hen a defendant is sentenced consecutively for multiple convictions, whether in the same proceeding or in different proceedings, the judgment or aggregate determinate term is to be viewed as interlocking pieces consisting of a principal term and one or more subordinate terms.' " (Roach, at p. 184.)
The Roach court further explained that in conducting a resentencing under section 1170.18, a trial court may reconsider all sentencing choices, not merely the individual terms imposed for particular convictions:
"We find some guidance from cases where a conviction underlying a principal term has been reversed on appeal and the matter remanded for resentencing. In that situation, the trial court on remand must 'select the next most serious conviction to compute a new principal term' and may also modify the sentences imposed on other counts as appropriate. [Citations.] In doing so, ' "the trial court is entitled to consider the entire sentencing scheme. Not limited to merely striking illegal portions, the trial court may reconsider all sentencing choices. [Citations.] This rule is justified because an aggregate prison term is not a series of separate independent terms, but one term made up of interdependent components." ' [Citations.] Similarly, where a petition under section 1170.18 results in reduction of the conviction underlying the principal term from a felony to a
misdemeanor, the trial court must select a new principal term and calculate a new aggregate term of imprisonment, and in doing so it may reconsider its sentencing choices." (Roach, supra, 247 Cal.App.4th at p. 185, italics added.)
2. A trial court's jurisdiction over a case that is pending on appeal
In People v. Scarbrough (2015) 240 Cal.App.4th 916, 923 (Scarbrough), the court summarized the law providing that an appeal of a matter generally divests the trial court of jurisdiction over any matters embraced by the appeal:
" '[T]he 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.' (People v. Perez (1979) 23 Cal.3d 545, 554; see People v. Cunningham (2001) 25 Cal.4th 926, 1044, [' "an appeal from an order in a criminal case removes the subject matter of that order from the jurisdiction of the trial court" . . .'].) This rule protects the appellate court's jurisdiction by protecting the status quo so that an appeal is not rendered futile by alteration. (People v. Alanis (2008) 158 Cal.App.4th 1467, 1472 [(Alanis)], quoting Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1089.) 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. (Alanis, supra, 158 Cal.App.4th at pp. 1472-1473.)" (Ibid.)
The Scarbrough court applied this law in concluding that a "trial court lacked jurisdiction to recall defendant's sentence and to resentence her pursuant to section 1170.18 while [her] appeal [from the underlying judgment] was pending." (Scarbrough, supra, 240 Cal.App.4th at p. 929.) The Scarbrough court reasoned in part that if a trial court exercised "concurrent jurisdiction," (id. at p. 928) over a petition for resentencing that pertained to a judgment on appeal, the court reviewing the judgment on appeal might "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." (Ibid.)
Similarly, in People v. Walker (2016) 5 Cal.App.5th 872 (Walker), the Court of Appeal relied on Alanis, supra, 158 Cal.App.4th at p. 1472, in concluding that a trial court's ruling on a defendant's application to have a felony conviction redesignated as a misdemeanor pursuant to section 1170.18, subdivision (f) was a "legal nullity" (Walker, at p. 875, fn. 3) in light of the defendant's pending appeal of an order denying his petition for resentencing pursuant to section 1170.18, subdivisions (a) through (e). B. Application
Section 1170.18, subdivision (f) provides, "A person who has completed his or her sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under this act had this act been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case to have the felony conviction or convictions designated as misdemeanors."
As the Roach court explained, a trial court resentencing a defendant under section 1170.18, subdivision (a) necessarily resentences the defendant on all counts. (Roach, supra, 247 Cal.App.4th at p. 185 [in resentencing a defendant pursuant to section 1170.18, a trial court considers "not a series of separate independent terms, but one term made up of interdependent components"].) Thus, in filing the May 22, 2015 petition for resentencing at issue in People v. McNulty, supra, D068554, McNulty sought a "recall of sentence," and "resentencing." (§ 1170.18, subd. (a).) If McNulty were to ultimately prevail in proceedings involving his May 22, 2015 petition, his "felony sentence shall be recalled and the petitioner resentenced . . . ." (Id., subd. (b).) Accordingly, in light of the fact that in resentencing a defendant under section 1170.18, subdivision (a), a trial court is not restricted to " ' "merely striking illegal portions," ' " (Roach, at p. 185) but instead " ' "may reconsider all sentencing choices" ' " (ibid.), we are unpersuaded by McNulty's contention that the trial court retained jurisdiction to rule on his March 2016 petition at issue in this appeal because the "subject matter of the instant petition concerning counts 4 through 7 and 16 is not 'embraced' within or 'affected' by the appeal from the separate order pertaining to count 2."
As noted in fn. 2, ante, the matter remains pending in the Supreme Court.
On the contrary, McNulty's appeal of the trial court's denial of his May 22, 2015 petition (People v. McNulty, supra, D068554) embraced his entire sentence, and divested the trial court of jurisdiction to act on any matter that might affect that sentence while that appeal remains pending. (See Scarbrough, supra, 240 Cal.App.4th at p. 923 [on an appeal from a judgment, "the trial court lacks jurisdiction to make any order affecting a judgment"]; Henry M. Lee Law Corp. v. Superior Court (2012) 204 Cal.App.4th 1375, 1383 ["A timely appeal stays trial court proceedings on all matters embraced in or affected by the appealed judgment or order, including its enforcement, but the court can proceed on other matters within the action"].) It is undisputed that People v. McNulty, supra, D068554, remained pending on April 18, 2016 when the trial court granted McNulty's March 2016 petition for resentencing and resentenced McNulty. It is also clear that the April 18 order and judgment resentencing McNulty affected McNulty's sentence. Thus, under the rationale of Scarborough, the trial court lacked jurisdiction to enter the April 18 judgment and to resentence McNulty.
The trial court did not expressly recall McNulty's prior sentence at the April 18 hearing. However, the court clearly implicitly recalled McNulty's prior sentence in resentencing McNulty. We refer to the April 18 ruling as an order insofar as the court recalled McNulty's prior sentence, and a judgment insofar as the court imposed a new sentence on McNulty.
McNulty attempts to distinguish Scarbrough on the ground that Scarbrough concluded that an appeal from the underlying judgment (§ 1237, subd. (a)) divests a trial court to rule on a petition for resentencing while the appeal is pending, while McNulty's appeal in People v. McNulty, supra, D068554, is an appeal from an order after judgment (§ 1237, subd. (b)). McNulty contends that the "rationale of the Scarbrough holding does not apply . . . where the issue on appeal from the post-judgment order as to count 2 is distinct from . . . any issue pertaining to counts 4 through 7 and 16." As explained above, McNulty's appeal from the trial court's postjudgment order denying his May 2015 petition for resentencing does not merely embrace count 2 but rather, encompasses his entire sentence on all counts, since resentencing on all counts is the relief to which McNulty would be entitled if he were to prevail on the May 2015 petition. As in Scarbrough, if the April 2016 judgment remained valid, notwithstanding the pendency of the appeal of the May 2015 petition for resentencing, this court, in reviewing the denial of the 2015 petition might "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." (Scarbrough, 240 Cal.App.4th at p. 928.) Thus, the rationale of the Scarbrough court applies squarely in this case, and we reject McNulty's contention to the contrary.
Section 1237 provides that "[a]n appeal may be taken by the defendant," from "a final judgment of conviction." (Id., subd. (a).)
Section 1237, subdivision (b) authorizes an appeal by a defendant of "any order made after judgment, affecting the substantial rights of the party."
In sum, we conclude that the trial court lacked jurisdiction to rule on McNulty's March 2016 petition and to enter the April 18, 2016 judgment resentencing McNulty. Accordingly, we must reverse the trial court's April 18, 2016 judgment. (See Alanis, supra, 158 Cal.App.4th at p. 1477 [stating that proper procedure where party appeals from judgment where trial court lacked jurisdiction to enter judgment is to "reverse the void judgment rather than dismiss the appeal"].)
In his supplemental brief, McNulty acknowledges that, to the extent this court concludes that the trial court lacked jurisdiction to grant his March 24, 2016 petition, the proper remedy is to reverse the trial court's April 18, 2016 judgment.
Upon the finality of the proceedings in People v. McNulty, supra, S235695, McNulty may seek to file a new petition pursuant to section 1170.18. However, we express no opinion concerning whether there would be any procedural impediment to the filing of a successive Proposition 47 under the circumstances of this case.
We further note that section 1170.18, subdivision (j) was amended effective January 1, 2017 to extend the time within which petitions pursuant to section 1170.18 may be filed. The statute provides in relevant part:
"(j) Any petition or application under this section shall be filed on or before November 4, 2022, or at a later date upon showing of good cause."
IV.
DISPOSITION
The trial court's April 18, 2016 judgment is reversed.
AARON, J. WE CONCUR: McCONNELL, P. J. DATO, J.