People v. Pena C3 ( 2014 )

Filed 10/24/14 P. v. Pena C3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
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THE PEOPLE, C072266
Plaintiff and Respondent, (Super. Ct. No. MF031224A)
v.
MARIO MARTINEZ PENA,
Defendant and Appellant.
This case comes to us on appeal pursuant to People v. Wende (1979) 25 Cal.3d
436, which requires us to review the entire appellate record to determine whether there
are any arguable issues that might result in a more favorable outcome for defendant. For
reasons to follow, we conclude the appeal must be dismissed.
PROCEDURAL HISTORY
Defendant Mario Martinez Pena was charged in San Joaquin County case
No. MF031224A with child abuse resulting in death (Pen. Code, § 273ab),1 child
1 Undesignated statutory references are to the Penal Code.
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abuse/endangerment with a special allegation of death (§§ 273a, subd. (a), 12022.95), and
corporal injury to a child with an enhancement for great bodily injury (§§ 273d, subd. (a),
12022.7, subd. (d)).2
On October 23, 2009, in defendant’s presence, a jury was impaneled and sworn to
try his case and the matter was continued to October 27. On October 27, defendant failed
to appear and the matter was continued to October 28, upon which date defendant again
failed to appear. The court determined defendant had voluntarily absented himself and
proceeded with the trial.
On November 4, 2009, the jury found defendant guilty on all counts and found
true all enhancement allegations. That same date, the court sentenced defendant to
25 years to life on count 1 and to determinate terms on counts 2 and 3, but stayed those
terms pursuant to section 654.
On November 5, 2009, defendant’s trial counsel filed a notice of appeal on
defendant’s behalf. However, because defendant remained a fugitive, no appellate
attorney was appointed and on May 18, 2010, we dismissed the appeal. On July 20,
2010, we issued the remittitur.
On September 14, 2012, defendant was apprehended in Mexico. On October 15,
2012, defendant appeared with his original trial counsel for a hearing in the San Joaquin
County Superior Court regarding potential resentencing of defendant. Counsel
represented that he had nothing to offer with regard to the court’s jurisdiction to
resentence defendant. The court concluded it lacked jurisdiction to resentence defendant
and remanded him to serve his previously imposed prison sentence.
Defendant filed a notice of appeal from the court’s refusal to resentence him,
which has given rise to the appeal in this case. In his opening brief, defendant maintains
2 We take judicial notice of our records in an earlier case. (People v. Pena (May 18,
2010, C063509) [app. dism. by order].) (Evid. Code, § 452, subd. (d).)
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that “[the present] appeal . . . is authorized by California Rules of Court, Rule 8.304,
subdivision (b).” However, the cited section is not applicable as it governs appeals
following a plea of guilty or nolo contendere, or an admission of a probation violation,
and defendant’s guilt was the result of a jury trial. Nor could we construe the appeal as
coming under section 1237, subdivision (b)–a motion made after judgment affecting the
substantial rights of the defendant–because defendant had no right whatsoever to be
resentenced in the circumstances of this case. Accordingly, we shall dismiss the appeal.
DISPOSITION
The appeal is dismissed.
RAYE , P. J.
We concur:
NICHOLSON , J.
ROBIE , J.
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