Opinion
E079105
12-28-2023
THE PEOPLE, Plaintiff and Respondent, v. HUBERT DAVID EDGIN, Defendant and Appellant.
Severo, Grenville Pridham, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson and Heather M. Clark, Deputy Attorney Generals, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF1803994 John M. Davis, Judge. Affirmed.
Severo, Grenville Pridham, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson and Heather M. Clark, Deputy Attorney Generals, for Plaintiff and Respondent.
OPINION
MILLER J.
Defendant and appellant Hubert Albert Edgin appeals from the trial court's resentencing order after remittitur. For the reasons set forth post, we affirm the judgment.
STATEMENT OF THE CASE
On December 9, 2019, a jury convicted defendant of unlawful sexual intercourse or sodomy with a child 10 years of age or younger under Penal Code section 288.7, subdivision (a) (count 1); unlawful oral copulation or sexual penetration of a child 10 years of age or younger under sections 288.7, subdivision (b) and 289 (count 1), and lewd and lascivious acts on a child under the age of 14 by force or fear under sections 288, subdivision (b) and 289 (counts 3 and 4).
All further statutory references are to the Penal Code unless otherwise specified.
On January 24, 2020, the trial court sentenced defendant to a total determinate term of 16 years plus an indeterminate term of 40 years to life as follows: (1) an indeterminate term of 25 years to life on count 1; (2) a consecutive indeterminate term of 15 years to life on count 2; (3) a consecutive middle term of eight years on count 3; and (4) a consecutive middle term of eight years on count 4.
After defendant appealed, in People v. Edgin (Aug. 17, 2021, E074622) [nonpub. opn.] (Edgin1), this court reduced the convictions on counts 3 and 4 to nonforcible lewd acts on a child under section 288, subdivision (a), and affirmed the judgment in all other respects. (Edgin1, at *4.) This court then remanded the case for resentencing on counts 3 and 4. (Ibid.)
On May 20, 2022, the trial court held a remittitur hearing. After vacating the sentences on counts 3 and 4, the court resentenced defendant to a consecutive middle term of six years on count 3, and a consecutive two years on count 4. Therefore, defendant was sentenced to state prison for a determinate term of eight years plus an indeterminate term of 40 years to life.
On June 1, 2022, defendant filed a timely notice of appeal.
DISCUSSION
On appeal, defendant argues that "there are two reasonable conclusion[s] that can be inferred from the circumstantial evidence" because (1) "The circumstantial evidence introduced on the record was just as consistent with innocence as it was guilty;" and (2) "There are two reasonable conclusions from the same sets of facts." In essence, defendant challenges the sufficiency of the evidence to support his underlying convictions. Defendant's appeal, however, is from the resentencing order- "resentencing re: remittitur on 5/20/22"-not the underlying convictions.
Under California law, "a direct attack upon a conviction in a second appeal after a limited remand for resentencing" is prohibited. (People v. Senior (1995) 33 Cal.App.4th 531, 535, citing People v. Webb (1986) 186 Cal.App.3d 401, 410 [when an appellate court affirms a judgment of conviction in a prior appeal and remands only for resentencing, a "[d]efendant cannot now be permitted to make a direct attack upon his convictions"; see also People v. Murphy (2001) 88 Cal.App.4th 392, 396-397 ["In an appeal following a limited remand, the scope of the issues before the court is determined by the remand order"].) "[O]nce the remittitur issues, 'the trial court is revested with jurisdiction of the case, but only to carry out the judgment as ordered by the appellate court.'" (People v. Hargis (2019) 33 Cal.App.5th 199, 204.)
Here, in Edgin1, defendant's first appeal, this court addressed defendant's sufficiency of the evidence claims. We found that there was insufficient evidence to convict defendant of counts 3 and 4, lewd acts by force or fear. Instead, we found that there was sufficient evidence to support the lesser included offense of nonforcible lewd acts on a child. Therefore, this court modified defendant's convictions on counts 3 and 4 to nonforcible commission of lewd and lascivious acts on a child under the age of 14, under section 228, subdivision (a). The judgment was affirmed in all other respects. This court then remanded the matter to the trial court for the limited purpose of resentencing defendant on the modified counts. Thereafter, as provided ante, the trial court resentenced defendant on counts 3 and 4; defendant appealed from that order.
Because this is defendant's second appeal, "[d]efendant cannot now be permitted to make a direct attack upon his convictions" again. (People v. Webb, supra, 186 Cal.App.3d at p. 410.) Defendant is limited to alleged errors relating to the resentencing order. (Ibid.) In this case, defendant has failed to raise a single argument challenging the resentencing order.
Since defendant has failed to challenge the resentencing order of May 22, 2022, we do not review his appeal.
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ P. J., RAPHAEL J.