Filed 10/16/23 P. v. LaCroix CA2/5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

JEREMIAH LACROIX,

Defendant and Appellant.

B318742

(Los Angeles County

Super. Ct. No. GA102302)

APPEAL from a judgment of the Superior Court of Los

Angeles County, Charlaine F. Olmedo, Judge. Dismissed.

Patricia A. Scott, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Scott A. Taryle and Rene Judkiewicz, Deputy 

Attorneys General, for Plaintiff and Respondent.

_________________________
2

INTRODUCTION

In 2019, defendant Jeremiah LaCroix was convicted of 

murder with gang and gun enhancements. In his direct appeal 

from that conviction, he raised various sentencing errors, which 

the People conceded. We modified the judgment to correct the 

errors, affirmed the judgment as modified, and remanded the 

matter with directions to the trial court to prepare a new abstract 

of judgment reflecting the modified sentence.

On appeal after remand, defendant argues he is entitled to 

the ameliorative benefits of several changes to the law enacted 

after judgment was imposed in his case. Although the People 

initially conceded these issues, they retracted those concessions 

in response to our request for letter briefs. The People now 

contend, and we agree, that the trial court did not resentence 

defendant on remand. It was this court that modified the 

judgment, and as such, there is no new trial court judgment from 

which defendant can appeal. As we lack jurisdiction over this 

matter, the appeal is dismissed.

BACKGROUND1

After exchanging words with members of another gang at a 

bar, defendant left the bar and returned with a gun. Hostilities 

ensued, and defendant shot three people, one of them fatally.

Defendant was convicted by jury of second degree murder 

(Pen. Code, § 187, subd. (a); count 1); attempted voluntary 

manslaughter as a lesser-included offense of attempted murder 

(§§ 664/192, subd. (a); count 2); possession of a firearm as a felon 

1 Most of the evidence presented at trial is irrelevant to 

defendant’s claims on appeal; we address only that evidence 

necessary to resolve the appeal and otherwise to provide context.
3

(§ 19800, subd. (a)(1); count 13); and assault with a 

semiautomatic firearm (§ 245, subd. (b); count 17).2 The jury 

found gang enhancements true as to all four counts (§ 186.22, 

subds. (b)(1)(A), (B), (C)). The jury also found defendant 

personally and intentionally discharged a firearm causing death 

(§ 12022.53, subd. (d); count 1), personally used a firearm 

(§ 12022.5, subd. (b)), and inflicted great bodily injury (§ 12022.7; 

counts 2 & 17). Defendant was acquitted of two additional counts 

of attempted murder, and the court dismissed a third count of 

attempted murder under section 1118.1.

The court sentenced defendant to an indeterminate term of 

50 years to life and a consecutive determinate term of 15 years, 

8 months. For the indeterminate term, the court imposed 15 

years to life for count 1 (§ 187, subd. (a)) plus 15 years to life for 

the gun enhancement (§ 12022.53, subd. (d)) and 10 years for the 

gang enhancement (§ 182.22, subd. (b)(1)(C)). The court 

sentenced defendant to an aggregate determinate term of 15 

years, 8 months. The court selected count 17 as the base count 

and sentenced defendant to 12 years: the high term of nine years 

(§ 245, subd. (b)), plus three years for the great-bodily-injury 

enhancement (§ 12022.7, subd. (a)). The court imposed a 

consecutive two-year term for count 2: one year (one-third the 

mid-term) for the substantive offense (§§ 664/192, subd. (a)) and 

one year (one-third the mid-term) for the great-bodily-injury 

enhancement. Finally, the court imposed a consecutive one year, 

eight month term for count 13: eight months (one-third the midterm) for the substantive offense (§ 29800, subd. (a)(1)) and one 

2 All undesignated statutory references are to the Penal 

Code.
4

year (one-third the mid-term) for the gang enhancement 

(§ 186.22, subd. (a)(1)(A)). The court stayed the gang and gun 

enhancements for counts 2 and 13 under section 654.

When the case first came before us on appeal, defendant 

raised various sentencing errors. By unpublished opinion, we 

modified the judgment and affirmed as modified. (People v. 

LaCroix (Aug. 28, 2021, B304354) [nonpub. opn.].) As discussed 

in more detail below, we remanded with directions to the trial 

court to prepare a new abstract of judgment reflecting the 

modified judgment and to send a certified copy of the new 

abstract to the Department of Corrections and Rehabilitation. 

(Id. at p. 5.) In all other respects, we affirmed. (Ibid.)

Upon remand, at an in-person hearing, the trial court made 

the changes to the judgment indicated in the disposition. 

Defendant filed a notice of appeal.

After both parties’ appellate briefs alluded to the in-person 

proceeding as a “resentencing hearing,” we requested 

supplemental briefing on whether the hearing “resulted in an 

appealable order from which this court has jurisdiction to decide 

the appeal.” (See Jennings v. Marralle (1994) 8 Cal.4th 121, 126

(Jennings) [reviewing courts have an independent duty to raise 

the issue when doubt exists about their own jurisdiction].)

DISCUSSION

1. Proceedings on Remand

On August 28, 2021, we issued an unpublished opinion in 

defendant’s direct appeal, People v. LaCroix. (People v. LaCroix 

(Aug. 28, 2021, B304354).) Our disposition stated: “The 

judgment is modified as follows: (1) as to count 1, murder, the 

10-year enhancement under section 186.22, subdivision (b)(1)(C) 

is stricken and a 15-year minimum parole eligibility term 
5

imposed; and (2) as to count 13, possession of a firearm by a felon, 

the sentence and related enhancement are stayed pursuant to 

section 654. The trial court is directed to prepare a new abstract 

of judgment reflecting these changes. The clerk shall forward the 

new abstract to the Department of Corrections [and 

Rehabilitation]. As modified, the judgment is affirmed.” (Id. at 

p. 5.)

On February 17, 2022, upon remand, the trial court held a 

hearing at which counsel for defendant and counsel for the 

prosecution were present. The court stated: “All we’ll do is 

modify the judgment as indicated by the Court of Appeal, and I’ll 

put that on the record. And then we’ll make sure we transmit 

that to the California Department of Corrections.” Counsel for 

defendant and the prosecution agreed to that procedure. The 

court then continued: “So, looking at the remittitur and the 

decision and remittitur filed October 18th of 2021, the court has 

been directed to strike the ten-year enhancement pursuant to 

186.22(b)(1)(C) and simply indicate to impose a 15-year minimum 

parole eligibility term; and as to count 2 and count 13, stay the 

sentences pursuant to Penal Code section 654.” Counsel for both 

parties accepted the modification.

2. The Trial Court Did Not Enter an Appealable 

Judgment or Order

In California, the right to appeal is statutory. (People v. 

Loper (2015) 60 Cal.4th 1155, 1159 [“The right to appeal is 

statutory only, and a party may not appeal a trial court’s 

judgment, order or ruling unless such is expressly made 

appealable by statute”].) The existence of an appealable 

judgment or order is a jurisdictional prerequisite to an appeal. 

(Jennings, supra, 8 Cal.4th at p. 126.) Section 1237 sets forth the 
6

situations under which a criminal defendant may appeal.

3 The 

statute authorizes appeals from “final judgments[,] those orders 

deemed by statute to be final judgments,” and any “order made 

after judgment, affecting the substantial rights of the party.” 

(People v. Mazurette (2001) 24 Cal.4th 789, 792 (Mazurette); 

§ 1237, subds. (a) & (b).) 

A newly imposed sentence following resentencing 

constitutes an appealable “final judgment of conviction.” (People 

v. Arias (2020) 52 Cal.App.5th 213, 219–221.) But not all 

proceedings on remand trigger the right to appeal. The rule 

remains that absent a judgment, a judgment substitute, or a 

qualifying postjudgment order, a defendant cannot appeal. 

(Mazurette, supra, 24 Cal.4th at pp. 792–793.) 

Defendant contends that the proceedings below must be 

understood as a resentencing hearing resulting in a new 

appealable judgment. We disagree. Our disposition did not 

authorize resentencing, a point plainly understood by the trial 

court, which did not characterize the remand proceeding as a 

resentencing hearing. Inviting counsel to attend a hearing for 

3 Section 1237 provides: “An appeal may be taken by the 

defendant: [¶] (a) From a final judgment of conviction except as 

provided in Section 1237.1 and Section 1237.5. A sentence, an 

order granting probation, or the commitment of a defendant for 

insanity, the indeterminate commitment of a defendant as a 

mentally disordered sex offender, or the commitment of a 

defendant for controlled substance addiction shall be deemed to 

be a final judgment within the meaning of this section. Upon 

appeal from a final judgment the court may review any order 

denying a motion for a new trial. [¶] (b) From any order made 

after judgment, affecting the substantial rights of the party.”
7

the purposes of observing changes the court was making to the 

abstract of judgment did not covert the appearance into a 

resentencing hearing. To the contrary, the court’s statement that

“all we’ll do is modify the judgment as indicated by the court of 

appeal” must be understood to refer to modifying the abstract of 

judgment, not the judgment itself, as that was the only course of 

action “indicated by the court of appeal.” In other words, the 

court’s statement suggests it was appropriately complying with 

the directions contained in the remittitur. (See People v. Dutra

(2006) 145 Cal.App.4th 1359, 1366 [trial court’s jurisdiction upon 

remand limited to carrying out directions contained in 

remittitur].)

Because the trial court did not resentence defendant, there 

is no appealable judgment or order in this case. And because 

there is no judgment or order from which defendant may properly 

appeal, we lack jurisdiction over this matter.

DISPOSITION

The appeal is dismissed.

RUBIN, P. J.

WE CONCUR:

BAKER, J. MOOR, J.