Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA085664 Mike Camacho, Judge.
Lea Rappaport Geller, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
WILLHITE, Acting P. J.
Fortino Villalobos was convicted on one count of receiving stolen property (Pen. Code, § 496, subd. (a)) and one count of being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)). In a prior appeal, appellant challenged the trial court’s denial of his motion for acquittal or for new trial. (People v. Villalobos (Dec. 27, 2010, B218970) [nonpub. opn.], review den. Mar. 2, 2011, No. S189932.) While the case was pending, appellant filed a supplemental brief in the prior appeal, seeking correction of his presentence credits based on a 2009 amendment to section 4019 and a reduction in his sentence based on an amendment to section 496, subdivision (a), effective January 25, 2010. (Ibid.) We affirmed the judgment on December 27, 2010, rejecting all three of his claims, and the California Supreme Court denied his petition for review. (Ibid.)
All further statutory references are to the Penal Code.
In June 2010, while the prior appeal was pending, appellant filed a motion in the superior court to reduce the stolen property count to a misdemeanor, based on the 2010 amendment to section 496. The court denied the motion on June 11, 2010, but appellant filed it again. On July 7, 2010, the court again denied the motion, noting that it had previously denied the motion. Appellant filed a timely notice of appeal.
After review of the record, appellant’s court-appointed counsel filed an opening brief asking this court to review the record independently pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441.
On February 16, 2011, we advised appellant that he had 30 days within which to submit any contentions or issues that he wished us to consider. No response has been received to date.
We dismiss the appeal because the trial court did not have jurisdiction over appellant’s motion while the case was pending on appeal. (See People v. Turrin (2009) 176 Cal.App.4th 1200, 1208 [“Since the trial court lacked jurisdiction to modify the restitution fines, its order denying defendant’s motion requesting the same did not affect his substantial rights and is not an appealable postjudgment order. [Citation.]”.)
“As a general matter, ‘[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.] By the same token, the notice of appeal divests the trial court of subject matter jurisdiction. [Citations.] ‘Because an appeal divests the trial court of subject matter jurisdiction, the court lacks jurisdiction to vacate the judgment or make any order affecting it. [Citations.]’” (People v. Nelms (2008) 165 Cal.App.4th 1465, 1471.) None of the exceptions to this general rule, such as the trial court’s jurisdiction to correct clerical errors or to recall a sentence under section 1170, subdivision (d), apply here. (See id. at p. 1472 [describing exceptions].)
Because the trial court lacked jurisdiction to consider appellant’s motion, the order denying his motion did not affect his substantial rights and therefore is not an appealable order. (People v. Johnson (1992) 3 Cal.4th 1183, 1258; People v. Turrin, supra, 176 Cal.App.4th at p. 1208.) As a nonappealable order, it must be dismissed. (People v. Johnson, supra, 3 Cal.4th at p. 1258; People v. Turrin, supra, 176 Cal.App.4th at p. 1208.)
Even if the order were appealable, the appeal would be rejected because we decided the issue in the prior appeal, so the law-of-the-case doctrine applies. “[T]he law-of-the-case doctrine ‘prevents the parties from seeking appellate reconsideration of an already decided issue in the same case absent some significant change in circumstances.’ [Citation.]” (People v. Boyer (2006) 38 Cal.4th 412, 441.) There has been no change in the circumstances to justify revisiting the issue.
We have examined the entire record and are satisfied that no arguable issues exist, and that appellant has, by virtue of counsel’s compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112-113.)
DISPOSITION
The appeal is dismissed.
We concur: MANELLA, J., SUZUKAWA, J.