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,

Plaintiff and Respondent,

v.

GABRIEL ALLEN,

Defendant and Appellant.

 B265725

 (Los Angeles County

 Super. Ct. No. MA056609)

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.

_______________________
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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.