Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. TA078116, Jerry E. Johnson, Judge. Reversed and remanded.
Mark L. Christiansen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
ARMSTRONG, J.
Appellant Kesshawn Nelson was convicted in April 2007 of one count of first degree murder in violation of Penal Code section 187, subdivision (a). The jury found true the allegation that appellant personally used a deadly and dangerous weapon, a knife, within the meaning of section 12022, subdivision (b)(1). Appellant admitted that he had suffered two prior convictions within the meaning of sections 667, subdivisions (b) through (i) and 1170.12 (the "Three Strikes" law). The trial court struck one prior conviction and sentenced appellant to 25 years to life in state prison, doubled pursuant to the Three Strikes law to 50 years to life in prison, plus a consecutive one-year enhancement term for the knife use.
Appellant appealed from the judgment of conviction. On September 30, 2008, this Court reduced appellant's conviction to second degree murder, and remanded this matter to the trial court for resentencing. On November 3, 2008, appellant filed a petition for review in the California Supreme Court. On December 5, 2008, while this matter was pending in the California Supreme Court, the trial court resentenced appellant to 31 years to life in state prison. The California Supreme Court denied review on January 14, 2009. This Court issued the remittitur on January 30, 2009.
Appellant appeals from the judgment of conviction, contending that the trial court was without jurisdiction to sentence him on December 5, 2008. Appellant also contends that the trial court's new abstract of judgment is confusing and inconsistent and that the trial court failed to calculate his actual time in custody up to the date of the sentencing hearing. Respondent agrees that the trial court lacked jurisdiction to resentence appellant and that this matter must be remanded. Respondent points out that the abstract can be corrected and clarified on remand, and that the trial court should recalculate custody time at resentencing. We agree.
Discussion
Appellant's first appeal vested this Court with sole jurisdiction of his case until he filed his petition for review on November 3, 2008. The California Supreme Court then had jurisdiction of this case while appellant's petition for review was pending in that court. Jurisdiction returned to this Court when the Supreme Court denied appellant's petition for review. Only when the remittitur issued on January 30, 2009 did the trial court have jurisdiction to act. (People v. Perez (1979) 23 Cal.3d 545, 554; Snukal v. Flightways Mfg., Inc. (2000) 23 Cal.4th 754, 771-773; People v. Saunoa (2006) 139 Cal.App.4th 870, 872.) Thus, the sentence imposed by the trial court on December 5, 2008 is void. (People v. Saunoa, supra, 139 Cal.App.4th at p. 871.) This matter must be remanded to the trial court for resentencing. (Id. at p. 872 [remand is required even when there is no reason to believe that the sentence will be any different].) As part of the resentencing, the trial court should calculate appellant's actual custody time in accordance with People v. Buckhalter (2001) 26 Cal.4th 20.
Disposition
The trial court's sentencing order of December 5, 2008 is reversed. This matter is remanded for resentencing.
We concur: TURNER, P. J., KRIEGLER, J.