Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05-5079
NICHOLSON, Acting P. J.
In case No. 05-5079, a jury convicted defendant of first degree robbery (Pen. Code, § 211/212.5, subd. (a); subsequent undesignated statutory references are to this code), infliction of corporal injury on a former cohabitant (§ 273.5, subd. (a)), false imprisonment (§ 236/237, subd. (a)), and stalking (§ 646.9, subd. (a)). The trial court subsequently sustained allegations defendant committed each offense while on bail and violated his probation in case No. 04-1077, and sentenced him to 10 years 8months in prison.
Defendant’s sentence consisted of an upper term of six years for the robbery, a concurrent four-year term for infliction of corporal punishment on a former cohabitant, a concurrent three-year term for false imprisonment, two years for the on-bail enhancement, eight months for stalking, and two consecutive one-year terms in case No. 04-1077.
Defendant appealed, and in an unpublished opinion we affirmed his convictions, vacated the upper term sentences pursuant to Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856], and remanded the case for resentencing. (People v. King (Aug. 23, 2007, C051579) [nonpub. opn.].) Defendant filed a petition for review, which was denied on November 28, 2007. On December 6, 2007, we issued our remittitur to the trial court, which was filed on December 17, 2007.
On October 29, 2007, the trial court resentenced defendant to nine years eight months in prison. Defendant appeals his resentencing, contending the court lacked jurisdiction to resentence him, and his consecutive sentences violate Cunningham. We agree with the first contention and shall vacate the sentence and remand for resentencing.
Defendant was resentenced over a month before we issued the remittitur to the trial court. A timely filed notice of appeal divests the trial court of subject matter jurisdiction, which it does not regain until the appellate court returns jurisdiction to the trial court with the issuance of the remittitur. (See Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 196-197; People v. Saunoa (2006) 139 Cal.App.4th 870, 872.)
“Until remittitur issues, the lower court cannot act upon the reviewing court’s decision; remittitur ensures in part that only one court has jurisdiction over the case at any one time.” (Gallenkamp v. Superior Court (1990) 221 Cal.App.3d 1, 12.) Thus, before remittitur issues, the trial court cannot act on the reviewing court’s decision; any actions it takes in that time period are “null and void.” (People v. Saunoa, supra, 139 Cal.App.4th at p. 872.)
Because the trial court acted before it had regained jurisdiction of this case, defendant has not been properly sentenced. Accordingly, we agree with defendant and the Attorney General that the case should be remanded to the trial court for resentencing.
Since we are vacating the sentence, we decline to address defendant’s claims regarding consecutive sentencing and section 654.
DISPOSITION
The sentence issued on October 29, 2007, is vacated and the case is remanded for resentencing in accordance with this opinion.
We concur: RAYE, J. ROBIE, J.