People v. Foletti

Full title: THE PEOPLE, Plaintiff and Appellant, v. KENNETH THEODORE FOLETTI…

Court: California Court of Appeals, Fifth District

Date published: Jun 20, 2007

No. F050801 (Cal. Ct. App. Jun. 20, 2007)

Opinion

THE PEOPLE, Plaintiff and Appellant, v. KENNETH THEODORE FOLETTI, Defendant and Appellant. F050801 California Court of Appeal, Fifth District June 20, 2007

Super. Ct. No. CRF20604

MODIFICATION OF OPINION ON DENIAL OF REHEARING

Levy, J.

The opinion filed in this case on June 1, 2007, is ordered modified as follows:

On page 2, at the end of the second full paragraph, insert footnote number 3.

On page 2, at the bottom of the page, insert the following text for footnote number 3:

The court heard and granted Foletti’s motion to dismiss the strikes on June 28, 2006; Foletti was sentenced on that same day. The clerk’s transcript contains a minute order dated June 28, 2006. The People filed notice of appeal on July 10, 2006. On September 6, 2006, the People filed its opening brief in the appeal. On September 29, 2006, the superior court granted a petition for writ of habeas corpus that was filed by Foletti; Foletti was directed to file notice of cross-appeal within 20 days. Foletti filed notice of cross-appeal on October 5, 2006. A nunc pro tunc order was signed by the sentencing judge on October 13, 2006 (this order is not file stamped). It purports to amend the June 28, 2006, minute order. However, the sentencing judge no longer possessed jurisdiction over this matter when she signed the nunc pro tunc order. As we explained in People v. Superior Court (Gregory) (2005) 129 Cal.App.4th 324:

“The general rule is that ‘“‘[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’ [citation], thereby divesting the trial court of jurisdiction over anything affecting the judgment. [Citations.]”’ [Citations.] ‘“The purpose of the rule depriving the trial court of jurisdiction in a case during a 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.]” (People v. Superior Court (Gregory), supra, 129 Cal.App.4th at p. 329.)

Accordingly, we have not considered the nunc pro tunc order in resolving the issues presented in the appeal and cross-appeal.

This modification does not effect a change in the judgment. The petition for rehearing is denied.

WE CONCUR: Vartabedian, Acting P.J., Harris, J.