People v. Scarbrough , 193 Cal. Rptr. 3d 125 ( 2015 )

Filed 9/29/15
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Butte)
----
THE PEOPLE, C075414
Plaintiff and Respondent, (Super. Ct. Nos. CM036294,
CM037299, CM037929)
v.
CHRISTY ANN SCARBROUGH,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Butte County, Michael P.
Candela, Judge. Affirmed.
Carol Foster, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, and Eric L. Christoffersen,
Deputy Attorney General, for Plaintiff and Respondent.
Defendant Christy Ann Scarbrough was granted probation after she pleaded no
contest to possession of hydromorphone and possession of heroin and admitted an on-bail
enhancement. She subsequently violated her probation and pleaded no contest to felony
1
child endangerment. She was sentenced to state prison, and this appeal followed.
Appointed counsel for defendant asked this court to review the record independently to
determine whether there are any arguable issues on appeal. (People v. Wende (1979)
25 Cal.3d 436 (Wende).) Finding no arguable error that would result in a disposition
more favorable to defendant, we affirm the judgment.
We publish this decision, however, to address an issue that is likely to recur and to
otherwise evade review. On November 4, 2014, California voters approved Proposition
47, which added section 1170.18 to the Penal Code,1 thereby permitting persons
convicted of certain offenses to seek recall and resentencing from the trial court. While
this appeal was pending, defendant sought and obtained an order from the trial court
pursuant to section 1170.18 ostensibly recalling her sentence on two of the felony
convictions that we were reviewing in this appeal, designating those convictions as
misdemeanors, and resentencing her. In light of defendant’s no contest plea, our review
was limited to reviewing the propriety of defendant’s sentencing. (§§ 1237, 1237.5; see
People v. Shelton (2006) 37 Cal.4th 759, 766.) If the trial court’s resentencing of
defendant while her appeal is pending was valid, our review of her sentence for the
subsequently recalled convictions would be rendered futile. Therefore, we address
whether section 1170.18 granted the trial court concurrent jurisdiction permitting it to
resentence defendant while this appeal was before us. We conclude the trial court lacked
jurisdiction to resentence defendant and, therefore, its order ostensibly recalling
defendant’s sentence and resentencing her is void.2
1 Undesignated statutory references are to the Penal Code.
2 After we set this matter for oral argument at defendant’s request, defendant filed a
notice of abandonment of appeal and request for dismissal. Once the record has been
filed with this court, we have discretion to deny such a request for dismissal, especially
when it poses an issue of broad public interest that is likely to recur. (Cal. Rules of
2
FACTUAL AND PROCEDURAL BACKGROUND
In January 2013, defendant pleaded no contest to possession of hydromorphone
(Health & Saf. Code, § 11350, subd. (a)) in case No. CM037299 to and possession of
heroin (Health & Saf. Code, § 11350, subd. (a)) in case No. CM037929, and admitted an
on-bail sentencing enhancement (Pen. Code, § 12022.1) in exchange for a dismissal of
the other charged counts, dismissal of another pending case, and a referral for sentencing
pursuant to Proposition 36.3 Pursuant to the plea agreement, the trial court suspended
imposition of sentencing and ordered defendant to complete three years of formal
probation pursuant to Proposition 36. The trial court ordered defendant to pay restitution
fines of $280 in each case, imposed and stayed concomitant probation revocation
restitution fines in each case, imposed statutory fines and fees and, for case
No. CM037929, imposed a $250 Proposition 36 drug program fee and a $380 Proposition
36 drug testing fee.
In July 2013, in case No. CM036294, defendant pleaded no contest to felony child
endangerment (§ 273a, subd. (a)) in exchange for dismissal of another criminal
proceeding, a referral for probation, and an understanding that this plea would constitute
a violation of her probation in case Nos. CM037299 and CM037929. However, as the act
that was the basis of the felony child endangerment was committed while defendant was
not on probation, the trial court found her plea in case No. CM036294 could not be the
Court, rule 8.316(b)(2); see People v. Osorio (2015) 235 Cal.App.4th 1408, 1411.) We
elect to do so here to address the jurisdictional question.
3 Also known as the Substance Abuse and Crime Prevention Act of 2000, Proposition 36
provides that “ ‘a defendant who has been convicted of a “nonviolent drug possession
offense” must receive probation and diversion into a drug treatment program, and may
not be sentenced to incarceration as an additional term of probation.’ [Citation.] If the
defendant completes such drug treatment and complies with the other conditions of
probation, ‘the conviction on which the probation was based shall be set aside and the
court shall dismiss the indictment, complaint, or information against the defendant.’ ”
(People v. Alice (2007) 41 Cal.4th 668, 680.)
3
basis of a probation violation in case Nos. CM037299 and CM037929. Nonetheless,
defendant admitted other probation violations committed while she was on probation in
case Nos. CM037299 and CM037929, namely, failing to submit for drug testing twice
and failing to report to the behavioral health department as ordered. Therefore, the trial
court revoked defendant’s probation, found she had violated her probation in case
Nos. CM037299 and CM037929, and ordered her remanded.
In November 2013, the trial court sentenced defendant to an aggregate term of
nine years four months in state prison: the upper term of six years for the felony child
endangerment, a consecutive term of eight months for possession of heroin (and stayed
the remaining portion of the three-year upper term it imposed on this count), a
consecutive term of eight months for possession of hydromorphone (and stayed the
remaining portion of the three-year upper term it imposed on this count), and two years
for the admitted sentencing enhancement. The trial court also credited defendant with
390 days of presentence custody credit: 195 days of actual time and 194 days of conduct
credit in case No. CM036294, and an additional one day of actual time in case
No. CM037299. The trial court ordered the previously imposed fines and fees to be paid;
ordered that the previously stayed probation revocation restitution fines were now due;
imposed and stayed parole revocation restitution fines in all three cases; and also imposed
statutory fines and fees in the child endangerment case. The trial court also ordered
defendant to complete three years of postrelease community supervision following her
release from state prison. (§ 1170, subd. (h).)
Defendant appealed. While her appeal was pending, defendant requested that the
trial court recall and reconsider her sentence pursuant to sections 1018 and 1170,
subdivision (d). The trial court declined to do so. Thereafter, while her appeal was still
pending, defendant petitioned the trial court for recall of her sentence and resentencing
pursuant to the recently enacted section 1170.18. The trial court granted defendant’s
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petition as to the possession of controlled substance convictions in case Nos. CM037299
and CM037929, ostensibly reducing those convictions to misdemeanors. The trial court
proceeded to resentence defendant to a term of six years in state prison for the child
endangerment, concurrent terms of one year for the possession convictions, and to alter
her credits.
We appointed counsel to represent defendant on appeal. Counsel filed an opening
brief that sets forth the facts of the case and requests this court to review the record and
determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d
436.) Defendant was advised by counsel of the right to file a supplemental brief within
30 days of the date of filing of the opening brief. Defendant’s request for additional time
to file a supplemental brief and to augment the record was granted. More than 30 days
have elapsed since the filing of the augmented record in this court, and we have received
no communication from defendant.
DISCUSSION
At our invitation, the parties submitted supplemental briefs addressing whether the
trial court had jurisdiction to resentence defendant pursuant to section 1170.18 while this
appeal was pending. Defendant contends section 1170.18 vests the trial court with
limited concurrent jurisdiction to entertain a petition for recall and resentencing of
convictions for enumerated offenses. Neither the language nor intent of section 1170.18
or Proposition 47 cause us to conclude the statute creates an exception to the general rule
that a trial court may not issue an order affecting a judgment while an appeal is pending.
Thus, we hold the trial court’s order recalling defendant’s sentence and resentencing her
is void.
5
I. Basic Principles
“When we interpret an initiative, we apply the same principles governing statutory
construction. We first consider the initiative’s language, giving the words their ordinary
meaning and construing this language in the context of the statute and initiative as a
whole. If the language is not ambiguous, we presume the voters intended the meaning
apparent from that language, and we may not add to the statute or rewrite it to conform to
some assumed intent not apparent from that language. If the language is ambiguous,
courts may consider ballot summaries and arguments in determining the voters’ intent
and understanding of a ballot measure.” (People v. Superior Court (Pearson) (2010)
48 Cal.4th 564, 571.) We also deem the enacting body “ ‘ “to be aware of statutes and
judicial decisions already in existence, and to have enacted or amended a statute in light
thereof.” ’ ” (People v. Scott (2014) 58 Cal.4th 1415, 1424 (Scott).)
II. Existing Law
Subject to limited exceptions, well-established law provides that the trial court is
divested of jurisdiction once execution of a sentence has begun. (See People v. Turrin
(2009) 176 Cal.App.4th 1200, 1204-1205.) 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.” (People v. Perez (1979) 23 Cal.3d 545, 554; see People v.
Cunningham (2001) 25 Cal.4th 926, 1044 [“ ‘an appeal from an order in a criminal case
removes the subject matter of that order from the jurisdiction of the trial court . . .’ ”].)
This rule protects the appellate court’s jurisdiction by protecting the status quo so that an
appeal is not rendered futile by alteration. (People v. Alanis (2008) 158 Cal.App.4th
1467, 1472, citing Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1089.) 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. (Alanis,
supra, 158 Cal.App.4th at pp. 1472-1473.)
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There are limited exceptions to this jurisdictional divestment. For instance, the
trial court may, while an appeal is pending, vacate a void judgment, correct an
unauthorized sentence, or correct clerical errors in the judgment. (People v. Nelms
(2008) 165 Cal.App.4th 1465, 1472.) Corrections to errors in the calculation of
presentence custody credits may also be ordered by the trial court while an appeal is
pending. (People v. Acosta (1996) 48 Cal.App.4th 411, 427-428 (Acosta); see § 1237.1
[expressly precluding appeal on grounds there was error in calculating credits unless the
defendant raises the issue at sentencing or by postsentencing motion in the trial court].)
Additionally, the trial court has jurisdiction for a period of 120 days to recall a
defendant’s sentence for reasons rationally related to lawful sentencing and to resentence
a defendant as if he or she had not been sentenced previously. (§ 1170, subd. (d); Dix v.
Superior Court (1991) 53 Cal.3d 442, 455-456 (Dix).) The trial court also has
jurisdiction to hear a writ of habeas corpus while an appeal of the challenged judgment is
pending, so long as the exercise of that jurisdiction does not “ ‘interfere with the appellate
jurisdiction’ ” in the pending matter. (In re Carpenter (1995) 9 Cal.4th 634, 645-646; see
Cal. Const., art. VI, § 10.)
III. Analysis
Section 1170.18, subdivision (a) provides in pertinent part: “A person currently
serving a sentence for a conviction . . . of a felony or felonies who would have been
guilty of a misdemeanor under the act that added this section (‘this act’) had this act been
in effect at the time of the offense may petition for a recall of sentence before the trial
court that entered the judgment of conviction in his or her case to request resentencing in
accordance with [enumerated sections, including Health and Safety Code section 11350],
as those sections have been amended or added by this act.” The trial court must then
determine if the petitioner is eligible for resentencing; if so, the trial court must recall and
resentence the petitioner, unless it determines that doing so “would pose an unreasonable
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risk of danger to public safety.” (§ 1170.18, subd. (b).) A person seeking relief under
this section must file his or her petition “within three years after the effective date of the
act that added this section or at a later date upon a showing of good cause.” (§ 1170.18,
subd. (j).) Defendant argues this section provides concurrent jurisdiction because the
language does not limit eligibility to persons with final judgments. We disagree.
In 2012, the voters enacted section 1170.126 as part of the Three Strikes Reform
Act of 2012. (Prop. 36, § 6, as approved by voters, Gen. Elec. (Nov. 7, 2012).) That
section provides in pertinent part: “Any person serving an indeterminate term of life
imprisonment . . . upon conviction . . . of a felony or felonies that are not defined as
serious and/or violent felonies . . . , may file a petition for a recall of sentence, within two
years after the effective date of the act that added this section or at a later date upon a
showing of good cause, before the trial court that entered the judgment of conviction in
his or her case, to request resentencing . . . .” (§ 1170.126, subd. (b).) Sections 1170.18
and 1170.126 use substantially the same language, structure, and procedure to provide for
recall and resentencing of persons currently serving sentences where those persons would
be subject to lighter sentences pursuant to the newly enacted voter initiatives.
We find People v. Yearwood (2013) 213 Cal.App.4th 161, 177 instructive.
Yearwood interpreted section 1170.126 and held it was not applicable to those whose
judgments were not yet final. Yearwood relied on the general principle that a trial court
lacks jurisdiction over a cause while an appeal is pending. (Yearwood, at p. 177.) It
found that the statute’s provision of a “good cause” exception to its two-year filing period
permitted prisoners to pursue relief under section 1170.126 once the appellate
proceedings were complete. (Yearwood, at p. 177.) Yearwood further noted that “[i]t is
reasonable for the voters to have designed a statutory process where the trial court
considers a petition for a recall of sentence after final resolution of legal issues related to
the conviction and original sentence (which may have components that are unaffected by
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[the Three Strikes Reform Act of 2012].” (Ibid.) The same holds true here. Moreover,
we deem the voters to have been aware of this interpretation when they approved
Proposition 47. (Scott, supra, 58 Cal.4th at p. 1424.)
Though we are persuaded that the reasoning and analysis of section 1170.126
conducted in Yearwood is equally applicable to section 1170.18, we nonetheless address
and reject defendant’s contentions that section 1170.18 is more analogous to (1) section
1170, subdivision (d), (2) section 1237.1, and (3) a writ of habeas corpus. We also reject
defendant’s claims that by finding there is no concurrent jurisdiction, we would (4)
thwart the voters’ intent of conserving financial resources, providing immediate relief to
eligible persons, and supporting judicial economy. Finally, we consider and reject
defendant’s contention that such a finding would (5) force an eligible person into the
“constitutionally untenable” position of seeking resentencing relief pursuant to section
1170.18 or pursuing appellate recourse.
A. Section 1170, Subdivision (d)
As we noted above, section 1170, subdivision (d) is an exception to the general bar
on trial court action while an appeal is pending. That section states that “[w]hen a
defendant . . . has been sentenced to be imprisoned in the state prison and has been
committed to the custody of the secretary, the court may, within 120 days of the date of
commitment on its own motion, or at any time upon the recommendation of the secretary
or the Board of Parole Hearings, recall the sentence and commitment previously ordered
and resentence the defendant in the same manner as if he or she had not previously been
sentenced, provided the new sentence, if any, is no greater than the initial sentence. . . .”
(§ 1170, subd. (d)(1).)
Portillo v. Superior Court (1992) 10 Cal.App.4th 1829, 1835 held that section
1170, subdivision (d) “provides a specific scheme for the trial court to exercise
jurisdiction for a limited time after it normally would have lost jurisdiction.” Its
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reasoning is premised on long-standing rules of statutory interpretation that seek to avoid
surplusage and that favor a specific statute over a general one regarding the same subject
matter. (Portillo, supra, at p. 1835.) For, if a person were to appeal a conviction, the
120-day period in which the trial court must, if at all, exercise its jurisdiction to recall and
resentence a defendant on its own motion would necessarily lapse while the appeal was
ongoing. To read section 1170, subdivision (d) as not providing for concurrent trial and
appellate court jurisdiction, would render it surplusage, which is a result we strive to
avoid. (Dix, supra, 53 Cal.3d at p. 459.)
There is no similar issue in the interpretation of section 1170.18. Relief may be
sought pursuant to this section for a period of “three years after the effective date of the
act that added this section or at a later date upon a showing of good cause.” (§ 1170.18,
subd. (j), italics added.) This relief is available only to those who have already been
sentenced and are either currently serving or have already completed serving their
sentence. (See § 1170.18, subds. (a), (f).) By providing three years, or longer on a
showing of good cause, to petition or apply to the sentencing court for relief, the voters
have amply provided eligible convicted persons time to fully pursue their appellate
challenges to their convictions before seeking recall and resentencing pursuant to its
provisions. Thus, unlike section 1170, subdivision (d), there is no need to interpret
section 1170.18 as creating concurrent jurisdiction to avoid rendering it superfluous.
B. Section 1237.1
Section 1237.1 states that “[n]o appeal shall be taken by the defendant from a
judgment of conviction on the ground of an error in the calculation of presentence
custody credits, unless the defendant first presents the claim in the trial court at the time
of sentencing, or if the error is not discovered until after sentencing, the defendant first
makes a motion for correction of the record in the trial court.” This is an express grant of
concurrent jurisdiction, not only permitting a trial court to exercise jurisdiction to correct
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a record after sentencing where there has been an error in calculating presentence custody
credits, but requiring a defendant to seek that postjudgment relief (if he or she did not
object at sentencing) before seeking relief from this court. Additionally, the failure to
award earned credits or awarding unearned credits results in the imposition of an
unauthorized sentence, which, as noted above is a recognized exception to the bar on
concurrent jurisdiction; that jurisdictional error may be corrected at any time. (People v.
Shabazz (1985) 175 Cal.App.3d 468, 473-474; see Acosta, supra, 48 Cal.App.4th at
p. 428, fn. 8.) There is no similar basis for recognizing concurrent jurisdiction to recall
and resentence a defendant pursuant to section 1170.18 because the sentence is not
unauthorized. Rather, section 1170.18 codifies the voters’ intent to retroactively reduce
properly imposed punishment for certain criminal offenders in an effort to reduce
spending on correctional facilities and programs. Therefore, the analogy to section
1237.1 is inapt.
C. Writ of Habeas Corpus
Finally, “Section 10 of article VI of the California Constitution . . . provides in
pertinent part: ‘The Supreme Court, courts of appeal, superior courts, and their judges
have original jurisdiction in habeas corpus proceedings.’ This provision grants original
subject matter jurisdiction over habeas corpus proceedings concurrently to the superior
court, the Court of Appeal, and [the Supreme Court].” (In re Carpenter, supra, 9 Cal.4th
at p. 645.) This power though is limited, as a superior court may not “ ‘interfere with the
appellate jurisdiction of either [the Supreme Court or the Court of Appeal] in matters
pending before said appellate courts . . . .’ ” (Id. at p. 646.) “Appellate jurisdiction is
limited to the four corners of the record on appeal . . . .” (Ibid.) Thus, where a writ of
habeas corpus relies on evidence outside the record, it may be considered by the superior
court despite a pending appeal. (Ibid.)
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Defendant claims that like a writ of habeas corpus, concurrent jurisdiction should
exist for resentencing pursuant to section 1170.18 because resentencing was not raised on
appeal, it involves evidence existing outside the appellate record, and “the trial court’s
reduction of qualified counts of conviction will not impact this Court’s decision with
respect to appellate issues raised.” We are not persuaded. The constitutional grant of
original jurisdiction to all courts to hear writs of habeas corpus renders those proceedings
sui generis and the judicial interpretations of that jurisdiction inapplicable to statutory
proceedings such as this one. Moreover, as noted above, the language of section 1170.18
is substantially similar to that of section 1170.126. Yearwood had been decided before
Proposition 47 was approved by the voters. Thus, as we stated above, the voters were
presumptively aware that the language of section 1170.18 would not create an exception
to the trial court’s jurisdictional divestment that exists once an appeal is filed. (Scott,
supra, 58 Cal.4th at p. 1424.) Had voters intended for the trial court to be able to act
while an appeal is pending, they could have expressly provided for that jurisdictional
concurrence. They did not.
D. Voters’ Intent
Nor are we convinced that the voters’ intent would be frustrated if we were to
conclude that section 1170.18 does not create concurrent jurisdiction for the trial court.
Defendant asserts that Proposition 47 “emphasiz[es] monetary savings.” We recognize
the stated purpose and intent of Proposition 47 was, among other things, “to ensure that
prison spending is focused on violent and serious offenses, to maximize alternatives for
nonserious, nonviolent crime, and to invest the savings generated from this act into
prevention and support programs . . . .” (Voter Information Guide, Gen. Elec. (Nov. 4,
2014) text of Prop. 47, § 2, p. 70.) By concluding there is no concurrent jurisdiction to
resentence a defendant pursuant to section 1170.18, we merely delay the resentencing; we
do not preclude its application. Thus, there is still the potential for monetary savings,
even if the savings are not as extensive as they may otherwise be. Additionally, for
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someone like defendant, whose sentence includes a principal term of six years for child
endangerment, which is not subject to resentencing under Proposition 47, a delay in
resentencing is not likely to alter the cost savings to the prison system at all. And, a
person who would prefer to seek relief by resentencing has the option of abandoning their
appeal prior to filing their petition pursuant to section 1170.18 in the trial court.
Defendant also asserts that Proposition 47 “contemplated immediate relief.”
Nothing in section 1170.18 or Proposition 47 indicates immediate relief was
contemplated. If voters intended there to be immediate relief, there would be no cause to
create such a lengthy period to seek recall and resentencing relief—three years, or longer
on a showing of good cause. Section 1170.18 could also require the trial courts to act on
petitions within a shortened timespan; it does not so provide. Thus, we do not find any
evidence of this asserted intention in the statute or initiative.
Defendant further argues that judicial economy will be thwarted if trial courts
cannot act while an appeal is pending. She claims a second appeal could be averted by
concurrent jurisdiction. Her claim relies on the fallacious assumption that we would have
jurisdiction to review the trial court’s actions in the recall and resentencing as part of our
review of the initial judgment. (See People v. Contreras (2015) 237 Cal.App.4th 868.)
And concurrent jurisdiction would not support judicial economy. Our efforts to review
the initial judgment may be rendered futile; we may be asked to review conflicting
judgments, each with different errors to be corrected; and the trial court may be asked to
effectuate a remittitur against a judgment that has since been modified. These scenarios
would lead to chaos, confusion, and waste—not judicial economy. Additionally, there is
nothing that indicates judicial economy was even contemplated by the voters.
We do recognize that several people with pending appeals have been resentenced
ostensibly pursuant to section 1170.18 while their appeals were pending. This does
create a quagmire, especially as regards individuals who have been released as a result of
13
their resentencing. However, that is an insufficient reason for us to find concurrent
jurisdiction where it was not statutorily afforded.
E. Election of Rights
We also reject defendant’s claim that, by finding there is not concurrent
jurisdiction, we are forcing defendant into a “constitutionally untenable dilemma” in
which she must decide whether to seek resentencing or to pursue her appeal. Defendant
relies on Simmons v. United States (1968) 390 U.S. 377, 393-394 [19 L.Ed.2d 1247,
1259], which held that “when a defendant testifies in support of a motion to suppress
evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted
against him at trial on the issue of guilt unless he makes no objection.” The court
reasoned that if a defendant’s testimony was later admissible, it would require the
defendant to surrender either his Fourth or Fifth Amendment rights in order to assert the
other. (Simmons, 390 U.S. at pp. 393-394 [19 L.Ed.2d at p. 1259].)
This authority is inapplicable. There are no constitutional rights involved here:
The right to appeal and the right to pursue recall and resentencing are both statutory.
(§ 1170.18; People v. Loper (2015) 60 Cal.4th 1155, 1159.) And, neither right is
infringed. If a person pursues his or her appeal, he or she may then pursue recall and
resentencing, if it is necessary, after the appeal is final. We acknowledge this rule may
yield harsh results for a given defendant. However, we trust solutions exist that may
mitigate, though not completely resolve, the resulting challenges facing a particular
defendant.4 Moreover, greater problems would ensue for litigants generally if we were to
eschew the jurisdictional principles involved here.
4 For instance, one potential solution that may be available to an eligible defendant
during the pendency of an appeal would be to request from the appellate court a stay of
execution of the sentence on the counts subject to resentencing. Admittedly, this remedy
may pose its own complications in that eligible persons may still be subject to
punishment for the misdemeanor and a year of parole on their release under the
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Therefore, we conclude the trial court lacked jurisdiction to recall defendant’s
sentence and to resentence her pursuant to section 1170.18 while this appeal was
pending.5 Accordingly, as we previously stated in People v. Noyan (2014)
232 Cal.App.4th 657, 672, defendant may “petition[] for recall of sentence in the trial
court once [her] judgment is final . . . .”
Having undertaken an examination of the entire record, we find no arguable error
that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed. (CERTIFIED FOR PUBLICATION)
BUTZ , J.
We concur:
RAYE , P. J.
RENNER , J.
resentencing provisions. (§ 1170.18, subd. (d).) Thus, a stay of execution on a
defendant’s felony sentence could cause him or her to be released while the appeal is
pending, and then require him or her to be incarcerated or placed on parole once the
resentencing has occurred. Thus, though such an effort would mitigate the severity of the
consequences produced by this rule, it would not resolve all issues.
5 In People v. Awad (2015) 238 Cal.App.4th 215, where a trial court denied a
defendant’s petition for recall and resentencing pursuant to section 1170.18 due to lack of
jurisdiction in light of a pending appeal, the Fourth District Court of Appeal, Division
Three, held that a reviewing court may stay a pending appeal and issue a limited interim
remand to the trial court for purposes of conducting a hearing on the petition for recall
and resentencing. Awad does not apply here, where the trial court granted defendant’s
petition despite the pending appeal and without any direction from this court.
15