Opinion
A159923
08-10-2020
THE PEOPLE, Plaintiff and Respondent, v. JOSHUA HARRELL, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR336781)
Joshua Harrell appeals from a post-judgment order denying his in propria persona petition to modify his sentence. Harrell's appellate counsel has filed a brief that raises no issue for appeal and asks this court for an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Having conducted that review, we affirm the judgment.
SUMMARY OF RECORD ON APPEAL
On August 23, 2018, a jury convicted Harrell of three felony violations of Penal Code section 530.5, subdivision (c)(2). On October 25, 2018, the trial court imposed an aggregate sentence of 12 years and 8 months, which included multiple sentence enhancements. A $9,000 restitution fine was imposed under section 1202.4, and an additional restitution fine of $9,000 was imposed but suspended under section 1202.45.
Statutory references are to the Penal Code. --------
On February 11, 2020, Harrell filed a petition for modification of his sentence. Acting in pro per, Harrell argued that his $9,000 restitution fine is excessive under People v. Dueñas (2019) 30 Cal.App.5th 1157. On the same day that Harrell filed this petition, the trial court denied it. The order states that the court read and considered Harrell's ex parte motion before denying it.
On March 9, 2020, Harrell filed a notice of appeal. The docketing statement prepared by the superior court clerk and filed along with Harrell's notice of appeal indicates that a related appeal is pending before this court in People v. Harrell (Nov. 27, 2019, No. A156017) ___Cal.App.5th___ , review granted Mar. 25, 2020, S259968.
DISCUSSION
The Wende brief filed by appellant's counsel does not draw our attention to any issues under Anders v. California (1967) 386 U.S. 738, 744. Harrell was apprised of his right to file a supplemental brief and to request to have his counsel relieved, but he did neither. (See People v. Kelly (2006) 40 Cal.4th 106, 110.) Following Wende guidelines, we have conducted an independent review of the record summarized above and conclude there are no meritorious issues to be argued on appeal.
"Subject to limited exceptions, well-established law provides that the trial court is divested of jurisdiction once execution of a sentence has begun. [Citation.] And, '[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.' [Citations.] 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." (People v. Scarbrough (2015) 240 Cal.App.4th 916, 923.)
There are exceptions to this rule, but they do not apply under the facts presented here. (See People v. Scarbrough, supra, 240 Cal.App.4th at p. 923-924; People v. Nelms (2008) 165 Cal.App.4th 1465, 1472.) We note specifically that the trial court retains limited jurisdiction for a period of 120 days to recall a sentence and resentence a defendant notwithstanding the pendency of an appeal. (§ 1170, subd. (d); Dix v. Superior Court (1991) 53 Cal.3d 442, 455-456.) In this case, the record shows that more than 120 days had passed when Harrell filed his petition.
Our independent review discloses no issue requiring further briefing.
DISPOSITION
The February 11, 2020 order is affirmed.
/s/_________
TUCHER, J. WE CONCUR: /s/_________
STREETER, Acting P. J. /s/_________
BROWN, J.