People v. Scarbrough

• Decision Date: 29 September 2015
• Docket Number: C075414
• Citation: 240 Cal.App.4th 916,193 Cal.Rptr.3d 125
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Christy Ann SCARBROUGH, Defendant and Appellant.

240 Cal.App.4th 916

193 Cal.Rptr.3d 125

The PEOPLE, Plaintiff and Respondent

v.Christy Ann SCARBROUGH, Defendant and Appellant.

C075414

Court of Appeal, Third District, California.

Filed September 29, 2015

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.

Opinion

BUTZ, J.

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 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, 158 Cal.Rptr. 839, 600 P.2d 1071 (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, 37 Cal.Rptr.3d 354, 125 P.3d 290.) 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

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 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 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 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, and 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, 158 Cal.Rptr. 839, 600 P.2d 1071.) 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.

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, 107 Cal.Rptr.3d 265, 227 P.3d 858.) 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, 171 Cal.Rptr.3d 638, 324 P.3d 827 (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, 98 Cal.Rptr.3d 471.) 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, 153 Cal.Rptr. 40, 591 P.2d 63 ; see People v. Cunningham (2001) 25 Cal.4th 926, 1044, 108 Cal.Rptr.2d 291, 25 P.3d 519 [“ ‘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, 71 Cal.Rptr.3d 139, quoting Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1089, 86 Cal.Rptr.2d 602, ...