Filed 8/16/16 P. v. Allen CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B265725
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA056609)
v.
GABRIEL ALLEN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Eric
Harmon, Judge. Remanded for resentencing.
Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Margaret E. Maxwell and
Nathan Guttman, Deputy Attorneys General, for Plaintiff and Respondent.
_______________________
Gabriel Allen previously appealed his convictions of a series of criminal offenses
against a minor. This court affirmed some convictions and reversed others, remanding
the matter to the trial court for resentencing. (People v. Allen (Mar. 18, 2015, B250775)
[nonpub. opn.].) The trial court resentenced Allen, but it did so prior to the issuance of
the remittitur. Because the trial court lacked jurisdiction at the time of resentencing, we
vacate the sentence and again remand for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
Allen was convicted of seven criminal offenses arising from his sexual contact
with a minor and his surreptitious recording of an adult and children while unclothed
and/or using a restroom. (People v. Allen (Mar. 18, 2015, B250775) [nonpub. opn.].) On
appeal, we rejected Allen’s claim that his counsel had been ineffective in failing to
accurately inform him of his maximum possible sentence during plea negotiations,
concluding that Allen had failed to establish any prejudice from the allegedly deficient
representation. (Id.) We reversed the convictions on three counts for insufficient
evidence and remanded the matter for resentencing. (Id.) This court issued the remittitur
on July 6, 2015.
Prior to the issuance of the remittitur, on July 2, 2015, the trial court resentenced
Allen on the surviving criminal convictions. Allen appeals.
DISCUSSION
Allen and the Attorney General agree, as do we, that his sentence must be vacated
because the trial court lacked jurisdiction when it resentenced him before the Court of
Appeal issued the remittitur. “The filing of a valid notice of appeal transfers jurisdiction
of a cause to the appellate court until the issuance of the remittitur. [Citation.] Remittitur
transfers jurisdiction from the appellate court to the court whose decision was reviewed.
[Citation.] ‘Until remittitur issues, the lower court cannot act upon the reviewing court’s
decision; remittitur ensures in part that only one court has jurisdiction over the case at
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any one time.’ [Citation.]” (People v. Saunoa (2006) 139 Cal.App.4th 870, 872.) We
vacate the sentence and remand for resentencing.
Allen also argues that his sentence must be vacated because he was represented by
counsel with a conflict of interest and because the trial court neither obtained a
supplemental probation report pursuant to California Rules of Court, rule 4.411(c) nor a
waiver of that requirement prior to resentencing him. As we have already concluded that
the sentence must be vacated because the court lacked jurisdiction over Allen at the
resentencing hearing, we need not consider Allen’s claims of additional errors at that
hearing.
DISPOSITION
The judgment is reversed and the matter remanded for resentencing.
ZELON, J.
We concur:
PERLUSS, P. J.
SEGAL, J.
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