Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County, Super. Ct. No. BA295538, Marsha N. Revel, Judge.
Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and David Zarmi, Deputy Attorneys General, for Plaintiff and Respondent.
MANELLA, J.
INTRODUCTION
Appellant Saul A. Landaverde appeals from an order entered January 22, 2008, vacating a previous order, entered July 13, 2007, which modified the original sentence of November 21, 2006. The 2007 order was entered while the original judgment was on appeal, as was the 2008 order. Appellant contends the 2008 order was void, and that the 2007 modified sentence must be reinstated. We disagree, and affirm the order of January 2008.
BACKGROUND
Appellant was convicted of continuous sexual abuse of a child under the age of 14, and on November 21, 2006, he was sentenced to the upper term of 16 years in prison. In case No. B195340 (People v. Landaverde (2001) 157 Cal.App.4th 28), appellant timely appealed from the judgment, and while the appeal was pending, the United States Supreme Court decided Cunningham v. California (2007) 549 U.S. 270 (Cunningham). In July 2007, appellant brought a motion in the trial court to reduce appellant’s sentence to the middle term, arguing that under Cunningham, imposing the upper term was error. The court granted the motion, believing that Cunningham required a modification of appellant’s sentence to the middle term. Thus, on July 13, 2007, the court modified the sentence to reflect imposition of the middle term of 12 years in prison, leaving the remaining sentencing orders intact.
Appellant was sentenced under former Penal Code section 1170, subdivision (b), which required the imposition of the middle term, unless there were circumstances in aggravation or mitigation of the crime. Relying upon Blakely v. Washington (2004) 542 U.S. 296, 303 (Blakely), and Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi), the United States Supreme Court held in Cunningham that California’s sentencing statute violated a defendant’s right to a jury trial, because it permitted a trial court to impose the upper term based on facts admitted by the defendant or found by the court, rather than by a jury beyond a reasonable doubt. (Cunningham, supra, 549 U.S. at pp. 288-293.)
Thereafter, in a partially published opinion filed November 21, 2007, we affirmed the original judgment upon finding that in imposing the upper term, the trial court relied upon at least one proper fact that had been admitted by appellant, viz., that he had carried on the sexual abuse of the victim for years. Thus, we concluded, there was no Cunningham error.
See People v. Landaverde, supra, 157 Cal.App.4th at pages 33-34.
On January 22, 2008, the trial court called a hearing on the mistaken belief that the remittitur had been issued. Based upon the recent decision in People v. Alanis (2008) 158 Cal.App.4th 1467 (Alanis), the court determined that it had lacked jurisdiction on July 13, 2007, when it modified appellant’s sentence, because the appeal was still pending. The court therefore vacated the July order modifying the original sentence pronounced November 21, 2006, and reinstated the original sentence. Appellant timely filed a notice of appeal from the January 2008 order. On February 14, 2008, we issued the remittitur in case No. B195340.
DISCUSSION
Appellant contends that the January 22, 2008 order vacating the modification order and reinstating the upper term was void for lack of jurisdiction. Appellant relies primarily on Alanis, supra,158 Cal.App.4th 1467, citing the general rule with respect to the trial court’s loss of subject matter jurisdiction once a notice of appeal has been filed. The court in Alanis noted that “‘[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.]” (Id. at p. 1472, quoting People v. Perez (1979) 23 Cal.3d 545, 554.) The court further noted: “Because an appeal divests the trial court of subject matter jurisdiction, the court lacks jurisdiction to vacate the judgment or make any order affecting it. [Citations.] Thus, action by the trial court while an appeal is pending is null and void. [Citations.]” (Alanis, at pp. 1472-1473.) Appellant concludes from the general rule that the trial court had no jurisdiction on January 22, 2008, to vacate its July 2007 modification of the original sentence. He contends that the January 2008 order is void, and that the July 2007 sentence must therefore be reinstated, or the matter must be remanded for resentencing.
We disagree. As the Alanis court also noted, there are exceptions to the general rule, one of which is that “notwithstanding the pendency of an appeal, ‘[t]he trial court is allowed to vacate a void . . . judgment.’ [Citations.]” (Alanis, supra, 158 Cal.App.4th at p. 1473.) In addition, the trial court may correct an unauthorized sentence despite the pendency of an appeal. (People v. Cunningham (2001) 25 Cal.4th 926, 1044.)
Both appellant and respondent agree that the statutory exception found in Penal Code section 1170, subdivision (d), is inapplicable here. (See Portillo v. Superior Court (1992) 10 Cal.App.4th 1829, 1836 [court may recall sentence within 120 days notwithstanding pendency of an appeal].)
Because the July 2007 sentence modification order was entered while the case was on appeal, the trial court had no jurisdiction to enter it; thus, it was void, and the trial court had jurisdiction, under exceptions to the general rule, to vacate the July 2007 order. (See Alanis, supra, 158 Cal.App.4th at pp. 1472-1473.) Indeed, a void judgment may be vacated at any time on the court’s own motion. (People v. Glimps (1979) 92 Cal.App.3d 315, 325.)
Appellant also contends the original sentence to the upper term of imprisonment violated his constitutional rights to a jury trial and due process under Cunningham, supra, 549 U.S. 270. As respondent points out, that issue was decided against appellant in his previous appeal, and is law of the case. (See People v. Landaverde, supra, 157 Cal.App.4th at pp. 33-34.) Appellant argues that because the decision in his first appeal was not final when the trial court reinstated the original sentence, it was not law of the case on January 22, 2008. The decision is now final, however, and thus the doctrine applies in this proceeding. (See People v. Shuey (1975) 13 Cal.3d 835, 841 [“‘the law of the case . . . must be adhered to throughout its subsequent progress, both in the lower court and upon subsequent appeal’”].) We decline to revisit the Cunningham issue.
DISPOSITION
The order entered January 22, 2008, is affirmed.
We concur: EPSTEIN, P. J., WILLHITE, J.