P. v. Kashani



















Filed 7/5/12 P. v. Kashani
CA4/3











NOT TO BE PUBLISHED IN OFFICIAL REPORTS



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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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



FOURTH
APPELLATE DISTRICT



DIVISION
THREE




>

THE PEOPLE, Plaintiff and Respondent, v. MIR MASSOUD KASHANI, Defendant and Appellant.

G045796 (Super. Ct. No. 09HF0111) O P I N I O N

Appeal
from an order of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Daniel Barrett McNerney, Judge. Dismissed.

Kathleen
Woods Novoa, under appointment by the Court of Appeal, for Defendant and
Appellant.

Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, William M. Wood and A.
Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Defendant
Mir Massoud Kashani was found guilty by a jury of one count of committing href="http://www.fearnotlaw.com/">grand theft.href="#_ftn1" name="_ftnref1" title="">[1] On May 24, 2010,
defendant filed a notice of appeal challenging the judgment of conviction. In People
v. Kashani (Oct. 31, 2011, G043694)
(nonpub. opn.), we affirmed the judgment of conviction; the California Supreme
Court denied defendant’s petition for review.

While
defendant’s appeal from his judgment of conviction was pending, on
July 15, 2011, defendant filed a motion in the trial court, in which he
requested that the trial court reduce his felony conviction to a misdemeanor
under Penal Code section 17, subdivision (b) (the motion). On July 26, the trial court issued a minute
order in which the court denied the motion.
On September 15, defendant filed a notice of appeal as to the trial
court’s order denying the motion. In his
opening brief, defendant argues the
trial court abused its discretion by denying the motion.

For the
reasons we will explain, we dismiss the instant appeal for lack of
jurisdiction. In the respondent’s brief,
the Attorney General argues that the instant appeal must be dismissed because
the trial court had no jurisdiction to rule on the motion during the pendency
of the appeal from the judgment of conviction, and, thus, the court’s order
denying the motion is not appealable.href="#_ftn2" name="_ftnref2" title="">[2] In his reply brief, defendant acknowledges it
“may be true” the trial court was without jurisdiction to rule on the
motion.

“As a
general matter, ‘[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.’ [Citation.] By the same token, the notice of appeal divests
the trial court of subject matter jurisdiction.
[Citations.] ‘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.]’” (People
v. Nelms (2008) 165 Cal.App.4th 1465, 1471.) None of the exceptions to this general rule,
such as the trial court’s jurisdiction to correct clerical errors in the
judgment or to recall a sentence under Penal Code section 1170,
subdivision (d), applies in this case.
(Id. at p. 1472.)

Here,
the trial court lacked jurisdiction to rule on the motion during the pendency
of defendant’s appeal from the judgment of conviction. Therefore, the order denying the motion did
not affect defendant’s substantial rights and was not an appealable order. (People
v. Johnson (1992) 3 Cal.4th 1183, 1258.)
As the instant appeal was taken from a nonappealable order, we must
dismiss the appeal. (See >People v. Turrin (2009) 176 Cal.App.4th
1200, 1208 [“Since the trial court lacked jurisdiction to modify the
restitution fines, its order denying defendant’s motion requesting the same did
not affect his substantial rights and is not an appealable postjudgment order,”
thus, “[t]he appeal should be dismissed”].)

In his
reply brief, defendant cites Andrisani v.
Saugus Colony Limited (1992) 8 Cal.App.4th 517, in support of his argument
that “the proper procedure is for this court to remand this matter back to the
trial court to vacate its void order, and order it to hold a full and proper
hearing on the motion when it is again vested with jurisdiction to do so.” Andrisani
does not support defendant’s argument.
In that case, the appellate court held that a judgment or order which is
void on its face, “‘because its infirmity is determinable from an inspection of
the judgment roll or the record, may be set aside on motion at any time after
its entry by the court which rendered the judgment or made the order,’”
notwithstanding the pendency of an appeal.
(Id. at p. 523.) The appellate court stated: “The setting aside of a void order by the
trial court, while an appeal is pending, renders the appeal moot and subject to
dismissal.” (Ibid.) The appellate court
in Andrisani dismissed the appeal as
moot under the circumstances presented in that case. (Id.
at p. 527.) It did not remand the
matter to the trial court with directions.
(Ibid.) Andrisani
therefore does not support defendant’s proposed disposition in the instant
appeal.



DISPOSITION

The
appeal is dismissed.







FYBEL,
J.



WE CONCUR:







RYLAARSDAM, ACTING P. J.







BEDSWORTH, J.