Opinion
A141643 A143957
12-20-2016
THE PEOPLE, Plaintiff and Respondent, v. JOSE BERNARDO VILLASENOR, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. FCR267008, FCR280512, FCR266908)
I.
INTRODUCTION
In 2010, Jose Villasenor was charged with 17 counts of second degree burglary in violation of Penal Code section 459 and with having suffered a prior strike conviction for a 2009 burglary. In 2014, after Villasenor's efforts to withdraw his plea to the 2009 burglary failed and a jury determined that he was competent to stand trial, Villasenor pleaded no contest to three of the 2010 burglary charges. He was sentenced to a total term of 10 years in state prison. Villasenor filed a notice of appeal of the judgment.
Unless otherwise stated, all statutory references are to the Penal Code.
While Villasenor's appeal was pending, California voters approved Proposition 47, the Safe Neighborhoods and Schools Act, which makes certain defendants eligible for a reduction of their sentence under specified circumstances. (§ 1170.18.) Villasenor filed a petition under section 1170.18, requesting that the trial court recall his sentence and reduce his second degree burglary convictions to misdemeanors. The trial court denied that petition, and Villasenor filed another appeal, which was consolidated with his appeal from the judgment.
In his appeal from the judgment, Villasenor contends the finding he was competent to stand trial is not supported by substantial evidence and resulted from a failure to instruct the jury correctly. We conclude these contentions are unfounded. In his second appeal, Villasenor argues that Proposition 47 requires that his burglary offenses be reclassified as misdemeanors. We do not reach the merits of this argument because the trial court did not have jurisdiction to rule on Villasenor's resentencing petition while his appeal from the judgment was pending. Therefore, we affirm the judgment, vacate the post-judgment order and remand this case for further proceedings.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. The 2009 Convictions
In July 2009, four criminal cases were pending against Villasenor in Solano County. In three of those cases, Villasenor was charged with felony burglary (cases FCR266908, FCR265847, and FCR267008). In the fourth case, Villasenor was charged with a misdemeanor drug offense (FCR266504).
On July 10, 2009, the trial court accepted a global resolution of all pending matters against Villasenor. Pursuant to that negotiated disposition, Villasenor entered a plea of no contest to an amended charge of attempted burglary in case FCR266908 and to a charge of first degree burglary in case FCR267008, and the trial court dismissed the two other pending cases. Before accepting the no contest pleas, the trial court conducted an inquiry to ensure that Villasenor understood the consequences of the negotiated disposition. During the colloquy, Villasenor confirmed that he understood that the two offenses to which he was entering pleas would constitute "strike priors."
On August 10, 2009, the trial court suspended the imposition of judgment and sentence, and placed Villasenor on a grant of probation for three years. The court also ordered Villasenor to serve a total of one year in county jail. Villasenor was released from jail on January 23, 2010.
B. The 2010 Burglaries (Case FCR280512)
On the evening of November 3, 2010, a police officer caught Villasenor in the laundry room of an apartment complex attempting to steal coins from the laundry machines. Villasenor was arrested, waived his rights and agreed to talk to police. He admitted that he broke into or otherwise gained entry to several apartment complex laundry rooms and stole, or attempted to steal, coins from the washers and dryers. He also explained that he had been kicked out of his house and needed the coins to buy food and support his methamphetamine addiction.
A May 17, 2011 information charged Villasenor with 17 counts of felony burglary. (§ 459.) Each charge was based on allegations of unlawful entry of a laundry room with intent to commit larceny and any felony. The alleged crimes occurred over the course of several days between October 12 and November 3, 2010, at various locations in Solano County. The information further alleged that Villasenor's 2009 burglary conviction constituted a prior strike and serious felony. (§§ 1107.12, subds. (a)-(d), 667, subd. (b).)
C. Collateral Attack of 2009 Convictions
In November 2011, Villasenor attempted to withdraw his 2009 pleas pursuant to a petition for a writ of error coram nobis and a writ of habeas corpus. Villasenor alleged that his former trial attorney, the district attorney, and the trial court all failed to advise him properly of the consequences of his pleas. Specifically, Villasenor argued that he suffered from serious cognitive deficits which affected his understanding of the pleas; that he was not properly advised that the 2009 offenses were strikes or serious felonies; and that he would not have entered pleas had he been properly advised.
On May 18, 2012, the trial court denied the petition for a writ of error coram nobis on the ground that Villasenor's alleged cognitive deficiencies were not new facts, but were known to him and his former counsel at the time the 2009 pleas were entered. The court also found that to the extent Villasenor could state a claim for ineffective assistance of counsel, his habeas petition afforded the proper remedy.
On October 3, 2012, the trial court denied the petition for habeas corpus. In a detailed written order filed on October 11, the court found that Villasenor failed to demonstrate that his former counsel's performance was objectively deficient, or that he suffered prejudice as a result of the entry of his 2009 pleas. The court underscored that Villasenor did not allege any facts which could establish that he either did not commit the 2009 burglaries or that he had any defense to them. The order also reflects that Villasenor's former trial counsel submitted a declaration in which she stated she did inform Villasenor of the potential future consequences of his pleas, and Villasenor entered those pleas against her advice.
After Villasenor's habeas petition was denied, the trial court set a trial date in the multiple burglary case for March 5, 2013. Another case (FCR287586) charging Villasenor with possessing a weapon in jail was to trail.
D. Competency Issues
On January 4, 2013, defense counsel declared a doubt as to Villasenor's competency to stand trial. Counsel submitted a psychological evaluation the defense had obtained from Dr. Timothy Derning, and requested further evaluation by the North Bay Regional Center (NBRC). The trial court suspended criminal proceedings and appointed the NBRC to conduct an evaluation to assess Villasenor's trial competency, and also to determine whether he was developmentally disabled.
In April 2013, the NBRC submitted a report concluding that Villasenor was not developmentally disabled, and was competent to stand trial. In response, the defense requested a jury trial on the question of Villasenor's competency. That trial was conducted between July 23 and July 26, 2013. On July 26, the jury returned a verdict finding that Villasenor was competent to stand trial.
E. The 2014 Judgment
On February 7, 2014, the trial court accepted a global resolution of all pending matters against Villasenor. Pursuant to that negotiated disposition, Villasenor entered a plea of no contest to the first three counts of second degree burglary in case FCR280512, and the remaining 14 counts were dismissed. The weapon possession charge in case FCR287586 also was dismissed. The one issue that was not resolved as part of the negotiated disposition was whether Villasenor had suffered a prior strike conviction. The defense conceded that Villasenor was the person who entered the 2009 pleas, but it maintained those pleas were not lawful. After Villasenor waived his right to a jury trial on the prior strike allegation, the court found that he had suffered a prior strike conviction.
On March 14, 2014, Villasenor was sentenced to a total term of 10 years in state prison.
F. The Proposition 47 Petition
On November 19, 2014, Villasenor filed a petition to recall his sentence pursuant to section 1170.18, subdivision (a) and to reduce his 2014 burglary convictions to misdemeanors pursuant Proposition 47. The prosecutor opposed the petition on the ground that the burglary convictions could not be reduced to misdemeanors because they did not constitute "shoplifting" within the meaning of section 459.5. Villasenor conceded that section 459.5 did not apply, but argued that he qualified for a reduction of his sentence under section 490.2 because the laundry room burglaries were theft offenses involving property worth less than $950. After a hearing, the trial court took the matter under submission. On December 23, 2014, the court filed an order denying Villasenor's petition to recall his sentence, concluding that the second degree burglary convictions could not be reduced to misdemeanors under section 490.2 or section 459.5.
III.
DISCUSSION
A. Villasenor May Raise Competency Issues On Appeal
As noted in our introduction, Villasenor contends (1) there is insufficient evidence to support the jury finding he was competent to stand trial; and (2) the trial court committed a prejudicial instructional error. The People argue these claims are not cognizable on appeal because they were not specified in the certificate of probable cause.
1. Background
The notice of appeal from the judgment was signed by defense trial counsel Nick Filloy and filed on April 8, 2014. Boxes checked on the form indicate that this appeal follows a jury trial and a guilty or no contest plea. The checked boxes also reflect that Villasenor's appeal is based on his sentence or matters occurring after a plea and that he also challenges the validity of a plea or admission. An order granting Villasenor's request for a certificate of probable cause is attached to the notice of appeal. On the part of that form where the party is instructed to specify the "grounds going to the legality" of the defendant's plea[s], Filloy provided the following information:
"In two of the committing offenses, FCR267008 and 266908 the defense brought a habeas petition to withdraw the pleas at the trial level. The habeas petition was denied and the defense preserved it by timely filing a writ to the First District Court of Appeal see In Re Jose Villasenor on Habeas Corpus A136838. The petition was brought on the grounds that defendant received ineffective assistance of counsel from the lawyer who advised him at the time of those pleas. The defendant does not appeal the validity of the plea in FCR280512, although he does appeal the court's finding on his strike prior." (Italics added.)
2. Analysis
Section 1237.5 provides that "[n]o appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere . . . except where both of the following are met: [¶] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [¶] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court."
Both of these requirements are satisfied in this case. In the request for a certificate of probable cause, Filloy identified ineffective assistance of counsel as a ground going to the legality of Villasenor's plea to the 2009 strikes in cases FCR267008 and 266908. Furthermore, the trial court signed the order granting the certificate of probable cause which was attached to and filed with Villasenor's timely notice of appeal.
Despite these facts, the Attorney General contends that Villasenor cannot appeal the jury finding that he was competent to stand trial because the certificate of probable cause does not identify mental incompetency as a ground going to the legality of the proceedings. According to respondent, Villasenor implicitly acknowledged that he was not challenging the jury's competency finding by stating he was not challenging his 2014 no contest pleas. In this regard, respondent points out that the jury's competency finding could not have had any impact on the 2009 pleas because they were entered before the jury trial took place.
While the Attorney General's interpretation of the certificate of probable cause may be factually sound, it is legally irrelevant. The pertinent point is that Villasenor did obtain a certificate of probable cause. Settled law establishes that once a certificate has been obtained, the appellant may raise cognizable issues that were not set forth in the statement of grounds used to secure that certificate. (People v. Hoffard (1995) 10 Cal.4th 1170, 1174; People v. Maultsby (2012) 53 Cal.4th 296, 305.) "Nothing in section 1237.5 indicates the defendant must specify, and the trial court certify as nonfrivolous, each issue to be raised on appeal. Such a rule is unnecessary to the purposes of the statute and would be inefficient in operation." (People v. Hoffard, supra, 10 Cal.4th at p. 1174.)
In his reply brief, Villasenor erroneously contends a defendant may challenge a finding of mental competency without obtaining a certificate of probable cause because such an error goes to the legality of the proceedings. This argument is legally incorrect. "[M]ental incompetence issues are indeed certificate issues, inasmuch as they are questions going to the legality of the proceedings, and, specifically, the validity of [the defendant's] guilty plea." (People v. Mendez (1999) 19 Cal.4th 1084, 1100, citing People v. Panizzon (1996) 13 Cal.4th 68, 76 ["a certificate must be obtained when a defendant claims that . . . the plea was entered at a time when the defendant was mentally incompetent"].)
B. The Competency Finding
" 'A defendant is mentally incompetent . . . if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.' (§ 1367, subd. (a).) 'A defendant is presumed competent unless the contrary is proven by a preponderance of the evidence.' [Citation.] 'An appellate court reviews the record in the light most favorable to the jury's determination' [citation], and determines whether substantial evidence supports the finding [citation]. ' "Evidence is substantial if it is reasonable, credible and of solid value." ' [Citation.]" (People v. Turner (2004) 34 Cal.4th 406, 425.)
1 . The Trial Evidence
In the present case, both parties relied on expert testimony to support their opposing views as to whether Villasenor was competent to stand trial. Villasenor's first witness was Dr. Timothy Derning, a clinical and forensic psychologist retained by the defense to evaluate whether Villasenor had an understanding of his legal situation. Derning's evaluation included a review of police reports, school reports and prior psychological evaluations. Derning also conducted two meetings with Villasenor and administered several tests, including an I.Q. test. From this information, Derning reached the opinion that Villasenor's intelligence falls within the third or fourth percentile when compared to the general population. However, Derning did not have enough information about Villasenor's adaptive abilities to determine whether he has an intellectual disability.
Derning testified that in order for a defendant to be competent to stand trial he must have both a factual and a rational understanding of his situation. To have a rational understanding of his case, the defendant must be able to "reason through things, think hypothetically, [and] consider [his] options." Using this criteria, Derning concluded that Villasenor was not competent to stand trial because he was not assisting his attorney or actively engaging in the process. According to Derning, Villasenor's factual competence was much higher than his rational competence, and his limited abilities to reason, "to think," and "to communicate and use language" were "impacting his rational understanding" to such an extent that he was not competent to stand trial.
Villasenor's second witness was John Philipsborn, a criminal defense attorney who testified as an expert on the "criminal defense function and on a lawyer's appraisal of a client's competence to stand trial." Philipsborn testified that in order for there to be legally effective representation in a criminal case, the lawyer and client must perform their respective roles; the lawyer's role is to communicate with the client and make informed decisions and the client's role is to provide information and make decisions that the law reserves for him. Phillipsborn never met Villasenor, never observed Villasenor interact with his attorney, and offered no opinion as to whether Villasenor was competent to stand trial.
The first prosecution witness was Dr. Kathleen O'Meara, the director of the NBRC. O'Meara, who has a doctorate in psychology, performs forensic evaluations for local courts. O'Meara testified that Villasenor was competent to stand trial, basing her opinion on a review of the defendant's history as well as a personal interview and assessment.
O'Meara testified that when she met with Villasenor, he was friendly, cooperative, easygoing, and he understood why he was being evaluated. He was able to engage in a dialogue about the purpose of O'Meara's evaluation, to provide her with pertinent background information, and to behave in a logical manner. He displayed an understanding of the charges against him and of the specific plea bargain that had been offered to him, and he also demonstrated a general ability to think. His understanding of the legal process was "basic, but accurate," and there was no indication of a mental disorder of any kind.
O'Meara also testified that she agreed with clinicians who have assessed Villasenor in the past and concluded that he does suffer from cognitive deficiencies but he does not meet the criteria for an intellectual disability. O'Meara further explained that Villasenor's low I.Q. did not make him incompetent because it was clear that he knew the nature and purpose of the proceedings against him, and he was capable of cooperating with his counsel in a rational way.
The prosecution's final witness was Dr. Todd Payne, a psychologist employed by the NBRC. Payne became involved in this case when the trial court first requested an assessment of Villasenor in January 2013. Payne reviewed pertinent records, including Villasenor's school records, probation reports and previous psychological evaluations. He also had two meetings with Villasenor and administered assessment instruments that were comparable to I.Q. tests. Payne diagnosed Villasenor with borderline intellectual functioning, a developmental language disorder and a methamphetamine abuse disorder. However, Payne did not find that Villasenor suffered from a developmental "disability."
Payne concluded that Villasenor was competent to stand trial. In summarizing the bases for this opinion, Payne highlighted these facts about Villasenor: he was able to "describe and appreciate the charges he faced"; he understood the concept of an adversarial proceeding; he had a "reasonably adequate understanding" of the roles of individuals involved in the process; he had a good relationship with his attorney; he was willing to cooperate with his attorney; he trusted his attorney; and he demonstrated an ability to learn new information about the process.
2. Analysis
Villasenor contends that the jury finding that he was competent to stand trial is not supported by substantial evidence. We disagree. O'Meara and Payne both testified that Villasenor was able to understand the nature of the proceedings and to assist in his defense and both supported their opinions with pertinent documentation and their own assessments based on direct interaction with the defendant. The testimony of these two expert witnesses constitutes substantial evidence supportive of the jury's finding of mental competency.
Villasenor contends that O'Meara's testimony should have been stricken because she only spent 45 minutes examining him. This novel proposition is not supported by substantive analysis or pertinent authority. Villasenor mistakenly relies on People v. Rodrigues (1994) 8 Cal.4th 1060, 1111 (Rodrigues).) The issue in Rodrigues was whether a trial court had a sua sponte duty to conduct a competency hearing. (Ibid.) Here, the trial court not only ordered a competency evaluation, it also conducted a jury trial on the issue. Moreover, to the extent Rodrigues is relevant here, it undermines Villasenor's claim of error. The Rodrigues court found that statements from two defense doctors did not constitute substantial evidence of incompetence because one doctor never met with the defendant and offered only a brief and general opinion, and the second doctor examined the defendant but did not formulate a conclusive opinion as to whether he was competent or not. (Ibid.) In this case, O'Meara met with Villasenor, conducted a competency assessment, and offered concrete opinions which were thoroughly explained and subject to cross-examination.
Villasenor contends that the opinions of the defense experts were more substantial and supported by more "appropriate" testing than those of the prosecution experts. The issue on appeal is whether the jury's finding is supported by substantial evidence, not which expert offered the best opinion. (People v. Marshall (1997) 15 Cal.4th 1, 31 (Marshall).) In Marshall, a jury found that a defendant was competent to stand trial in a case in which the experts unanimously agreed that the defendant was incompetent but a single lay witness testified otherwise. In holding that the jury's finding was supported by substantial evidence, the Supreme Court applied the following settled law: "As we have observed in the past: 'Of course, the jury is not required to accept at face value a unanimity of expert opinion: "To hold otherwise would be in effect to substitute a trial by 'experts' for a trial by jury . . . ." ' [Citation]" (Id. p. 31.)
Villasenor argues that the defense established by a preponderance of the evidence that Villasenor was not mentally competent and the prosecution did not carry its burden of overcoming that showing of incompetency. Stating the argument this way does not alter our substantial evidence standard of review, or our conclusion that the expert testimony of the prosecution witnesses supports the jury's finding in this case.
Villasenor intimates that the prosecution experts addressed the wrong issue by focusing on factual incompetency instead of intellectual incompetency. According to Villasenor, there simply was no evidence that he could rationally assist his counsel despite his intellectual limitations. As respondent points out, undisputed trial evidence established that Villasenor does not have an intellectual disability. Finally, as our summary of the trial evidence reflects, the prosecution witnesses did account for Villasenor's cognitive deficiencies, but nevertheless concluded that he had sufficient understanding and ability to assist his counsel in this case.
C. The Jury Instructions
"A trial court must instruct the jury, even without a request, on all general principles of law that are ' "closely and openly connected to the facts and that are necessary for the jury's understanding of the case." [Citation.] In addition, "a defendant has a right to an instruction that pinpoints the theory of the defense . . . ." ' [Citation.] The court may, however, 'properly refuse an instruction offered by the defendant if it incorrectly states the law, is argumentative, duplicative, or potentially confusing [citation], or if it is not supported by substantial evidence [citation].' [Citation.]" (People v. Burney (2009) 47 Cal.4th 203, 246.) "We review defendant's claims of instructional error de novo. [Citation.]" (People v. Johnson (2009) 180 Cal.App.4th 702, 707.)
1. Background
The trial court instructed the jury regarding the standard of mental competency required for a defendant to stand trial by giving a modified version of CALCRIM 3451, which stated:
"You must decide whether the defendant is mentally competent to stand trial. That is the only purpose of this proceeding. Do not consider whether the defendant is guilty or not guilty of any crime or whether he was sane or insane at the time that any alleged crime was committed.
"The defendant is mentally competent to stand trial if he can do all of the following: [¶] 1. Understand the nature and purpose of the criminal proceedings against him; [¶] 2. Assist, in a rational manner, his attorney in presenting his defense; [¶] AND [¶] 3. Understand his own status and condition in the criminal proceedings.
"Understand means to have a rational and factual understanding. (Italics added.)
"The law presumes that a defendant is mentally competent. In order to overcome this presumption, the defendant must prove that it is more likely than not that the defendant is now mentally incompetent because of a developmental disability.
"A developmental disability is a disability that begins before a person is 18 years old and continues, or is expected to continue, for an indefinite period of time. It must be a substantial handicap and does not include other handicapping conditions that are solely physical in nature. Examples of developmental disabilities include mental retardation, cerebral palsy, epilepsy, autism, and conditions closely related to mental retardation or requiring treatment similar to that required for mentally retarded individuals."
The trial court added the italicized sentence in the above-quoted instruction in response to a defense request to "parse" out the competency test to clarify that competency requires both a rational and factual understanding of the criminal proceeding. However, the court refused to give two additional special instructions that the defense claimed were necessary to advise the jury of a federal standard of competency that was allegedly more demanding than the standard set forth in CALCRIM 3451. The special instructions that were not given stated:
Special Instruction No. 1: "For a defendant in a criminal case to be competent to stand trial, he must: [¶] (1) have sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding; [¶] (2) he must have a rational understanding of the proceedings against him; [¶] (3) he must have a factual understanding of the proceedings against him; and [¶] (4) he must have the ability to assist his counsel in the preparation of the defense."
Special Instruction No. 2: "The legal standard for determining competence is the same whether an individual is pleading guilty to one or more criminal charges or whether that individual is going to trial. In either event, the individual must have the capacity to understand, and if necessary to give up, if pleading guilty, or to exercise, if going to trial, his right to trial by jury; his right to remain silent, or to testify in his own defense; his right to summon witnesses; his right to cross-examine witnesses through his lawyer if he has one; and his right to present a defense."
2. Analysis
Villasenor contends that the refusal to give his special jury instructions constituted reversible error because (1) the trial court had a duty to instruct the jury regarding the legal principles relevant to this case; and (2) Villasenor had the right to pinpoint instructions regarding his theory of the case.
First, Villasenor fails to show that the trial court violated a duty to instruct on general principles of law applicable to the case. Indeed, he fails to articulate any legal principle that was not addressed by the jury instructions that were used in this case. In the trial court Villasenor argued there was some additional federal standard that was not adequately addressed in CALCRIM 3451. But, he does not make that argument here. Instead, Villasenor rests on the general argument that the special instructions he offered were accurate, or if they were not the trial court should have corrected them.
As the trial court found, the special instructions were inaccurate and potentially confusing to the extent they failed to convey the statutory requirement that a defendant must understand the "nature and purpose of the proceedings." (See § 1367.) Furthermore, Special Instruction No. 2 addressed an irrelevant distinction between competency to stand trial and competency to enter a plea. Without disputing these points, Villasenor argues the trial court had a duty to correct any defects in the instructions, citing People v. Falsetta (1999) 21 Cal.4th 903, 924 and People v. Fudge (1994) 7 Cal.4th 1075, 1110. Those cases address the very different issue of a criminal defendant's right to an instruction focusing the jury's attention on facts relevant to the determination of the existence of reasonable doubt. (Ibid.) They impose no duty on the trial court to correct errors in a special instruction that purports to explain a legal principle that is either irrelevant or already covered by an accurate standard instruction.
Villasenor's second theory is that his special instructions were proper pinpoint instructions. A proper pinpoint instruction focuses on the defendant's theory of the case without addressing the evidence which allegedly supports that theory. (People v. Wright (1988) 45 Cal.3d 1126, 1137.) In the trial court, the special instructions were not offered as pinpoint instructions but were characterized as addressing general federal law principles for assessing mental incompetency. On appeal, however, Villasenor argues that a "major element" of his theory at trial was that he lacked sufficient ability to make "rational decisions about his case," and that "Special instructions one and two focused on this theory by reiterating the rational standards required for competency." (Italics added.)
The trial court is "not required to give pinpoint instructions that merely duplicate other instructions. [Citation.]" (People v. Panah (2005) 35 Cal.4th 395, 486.) To the extent Villasenor's special instructions were intended to pinpoint the defense theory that mental competency requires both a rational and factual understanding of the proceedings, that point was covered by the additional language that was added to CALCRIM 3451. Villasenor does not identify any other theory or legal principle that was addressed in the special instructions but not adequately covered by the instructions that the jury received.
D. The Proposition 47 Ruling
" 'Under section 1170.18, a person "currently serving" a felony sentence for an offense that is now a misdemeanor under Proposition 47, may petition for a recall of that sentence and request resentencing in accordance with the statutes that were added or amended by Proposition 47. (§ 1170.18, subd. (a).) A person who satisfies the criteria in section 1170.18 shall have his or her sentence recalled and be "resentenced to a misdemeanor . . . unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety." (§ 1170.18, subd. (b).)' [Citation.]" (People v. Contreras (2015) 237 Cal.App.4th 868, 891 (Contreras).)
In this case, Villasenor filed a section 1170.18 petition to recall his sentence while his appeal from the judgment was pending in this court. In their appellate briefs, neither Villasenor nor respondent considered whether the trial court had jurisdiction to rule on Villasenor's section 1170.18 petition. After securing supplemental letter briefs addressing this question, we conclude that the order denying Villasenor's petition is void for lack of jurisdiction. "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. [Citation.]" (People v. Scarbrough (2015) 240 Cal.App.4th 916, 923 (Scarbrough).
Villasenor contends that the trial court had jurisdiction to rule on his petition because section 1170.18 expressly permits a person "serving a sentence" to "petition for recall of a sentence" and also mandates that the superior court "shall determine" whether the petitioner is eligible for resentencing. (Quoting § 1170.18, subds. (a), (b).) But these provisions in the statute prove a different point—that a petition to recall a sentence pursuant to Proposition 47 must be filed and adjudicated in the superior court in the first instance. (See People v. Diaz (2015) 238 Cal.App.4th 1323, 1331-1334.) They do not support Villasenor's contention that the trial court had concurrent jurisdiction to decide his petition while his appeal from the judgment was pending, i.e., during the same time that an appellate court was entertaining a challenge to the underlying judgment upon which the sentence is based.
Section 1170.18 does not contain any language which expressly or implicitly confers concurrent jurisdiction on the superior court to recall a defendant's sentence while his or her appeal from the judgment is on appeal. Rather, it codifies a procedure which enables a defendant in such a position to file a section 1170.18 petition after the appeal is decided. (Scarbrough, supra, 240 Cal.App.4th at pp. 924-925.)
In Scarbrough, supra, 240 Cal.App.4th 916, the defendant pleaded no contest to drug related offenses and felony child endangerment. While her appeal from the judgment was pending, she obtained an order from the trial court pursuant to section 1170.18 "ostensibly recalling her sentence" for two of her felony convictions and "designating those convictions as misdemeanors, and resentencing her." (Id. at p. 920.) However, the appellate court found that the order recalling defendant's sentence and resentencing her was void because "the trial court lacked jurisdiction to resentence defendant." (Ibid.) In reaching this conclusion, the Scarbrough court applied the settled law summarized above, and concluded that the limited exceptions to jurisdictional divestment do not apply to a section 1170.18 petition. The court analogized this statute to section 1170.126 of the Three Strikes law, which has also been found not to apply to those whose judgments are not yet final. (Id. at pp. 924-925; see People v. Yearwood (2013) 213 Cal.App.4th 161, 177.)
Villasenor contends that Scarbrough was wrongly decided because the appellate court relied solely on a general rule that a trial court is divested of jurisdiction once execution of a sentence has begun and failed to recognize that section 1170.18 is a statutory exception to that rule. According to Villasenor, People v. Flores (2003) 30 Cal.4th 1059 (Flores) is the "controlling precedent," and Flores recognizes that there is a "qualification" to the general rule that a notice of appeal divests the trial court of jurisdiction when a specific statute so provides. Villasenor's analysis of these two cases is unconvincing. Suffice it to say, (1) the issue in Flores, supra, 30 Cal.4th 1059, was whether the trial court had jurisdiction to correct errors in the judgment upon remand from the appellate court, not while an appeal was pending; and (2) the Scarbrough court did recognize that there are exceptions to the law divesting a trial court of jurisdiction while an appeal is pending, but it found that Proposition 47 does not create such an exception. (Scarbrough, supra, 240 Cal.App.4th at pp. 924-925.) We agree with Scarbrough and adopt its analysis here.
Accordingly, we conclude that the order denying Villasenor's petition to recall his sentence is void because the trial court was divested of jurisdiction to rule on the section 1170.18 petition while Villasenor's appeal from the judgment was pending in this court. In light of this conclusion, we need not and do not address the numerous other issues the parties advance regarding how Proposition 47 should be applied in this case.
IV.
DISPOSITION
The judgment is affirmed. The December 23, 2014 order is vacated and this case is remanded to the trial court for further proceedings consistent with this decision.
/s/_________
RUVOLO, P. J. We concur: /s/_________
RIVERA, J. /s/_________
STREETER, J.