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Name: People v. Espinosa
Case #: B249493
Court: CA Court of Appeal
District 2 DCA
Division: 3
Opinion Date: 09/25/2014

Trial court lacked jurisdiction to modify first degree murder conviction to second degree murder and to resentence defendant because a notice of appeal had been filed. A jury found defendant guilty of first degree murder for the stabbing death of his mother’s boyfriend. He was sentenced to 25 years to life plus one year for the knife use. He filed a notice of appeal. At a victim restitution hearing several weeks after sentencing, the court stated its inclination to reduce the offense to second degree murder and solicited a motion from the defense. The defense moved to reduce the offense to voluntary manslaughter on the ground the first degree murder sentence was cruel and unusual punishment. The prosecution opposed the request, claiming the court lacked jurisdiction because of the pending appeal. Finding it retained jurisdiction (Pen. Code, § 1170, subd. (d)) to resentence defendant, and that 25 years to life was cruel and unusual punishment, the court reduced the offense to second degree murder and resentenced defendant to 16 years to life. The prosecution appealed. Held: Reversed. Generally, the filing of a notice of appeal divests the trial court of jurisdiction. There are several exceptions to this rule. Under section 1170, subdivision (d), the trial court may recall the judgment within 120 days of commitment and resentence the defendant, notwithstanding the pendency of an appeal. Here, the trial court acted within the 120 day time period. But the court did not simply resentence defendant, it modified the jury’s verdict by reducing the offense to second degree murder, which it lacked jurisdiction to do. Even though the trial court also found a first degree murder sentence to be cruel and unusual punishment, it had no jurisdiction to reduce the degree of the offense in order to reduce the sentence.