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Filed 2/25/15 P. v. Tillman CA3 

NOT TO BE PUBLISHED 

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 This opinion has not been certified for publication 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 

THIRD APPELLATE DISTRICT 

(Sacramento) 

---- 

THE PEOPLE, 

 Plaintiff and Appellant, 

 v. 

DERRICK DION TILLMAN, 

 Defendant and Respondent. 

C075552 

(Super. Ct. No. 09F09412) 

 In case No. C070879,1 a jury convicted defendant Derrick Dion Tillman of driving 

in wanton disregard for persons or property while fleeing a pursuing peace officer (count 

1), carrying a concealed weapon (count 2), carrying a loaded firearm (count 3), 

possession of a firearm by a felon (count 4), and the court found he had two prior strike 

 

1 We take judicial notice of our records in defendant’s prior appeal in this case, People v. 

Tillman (May 16, 2013, C070879) (nonpub. opn.), as modified May 24, 2013. (Evid. 

Code, § 459, subd. (d).) 
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convictions. On April 13, 2012, after denying defendant’s Romero2 request to strike one 

of his prior strikes, the trial court sentenced him to 50 years to life based upon 

consecutive 25-year-to-life terms imposed for the offenses in counts 1 and 4. In so 

sentencing defendant, the court stated it “believe[d] 50 years to life is too high.” The 

sentences for the two firearm counts were stayed pursuant to Penal Code section 654.3 

 Defendant initially appealed on April 19, 2012. He contended, among other 

things, that his trial counsel was ineffective for failing to argue to the trial court that it 

could strike one of his prior strike convictions on just a single count as authorized by 

People v. Garcia (1999) 20 Cal.4th 490 (Garcia), which permitted the trial court to strike 

prior convictions on an individual count-by-count basis. (Id. at pp. 492-493.) We agreed 

with defendant, vacated his sentence and remanded the matter “to the trial court for 

resentencing to permit it to exercise its discretion as authorized by Garcia, supra, 

20 Cal.4th 490.”4 Our unpublished opinion was filed on May 16, 2013, and the remittitur 

issued on July 17, 2013. 

 On November 6, 2012, the voters approved the Three Strikes Reform Act of 2012 

(the Act), which became operative on November 7, 2012. In short, the Act amended the 

 

2 People v. Superior Court (Romero) (1996) 13 Cal.4th 497. 

3 Undesignated statutory references are to the Penal Code. 

4 Our disposition (as modified only by the addition of the final sentence) stated in full, 

“Defendant’s sentence is vacated and we remand this matter to the trial court for 

resentencing to permit it to exercise its discretion as authorized by Garcia, supra, 

20 Cal.4th 490. The trial court is directed to correct the abstract of judgment to reflect a 

main jail booking fee of $270.17 and a main jail classification fee of $51.34, and to send, 

after resentencing, a certified copy of the abstract of judgment to the Department of 

Corrections and Rehabilitation reflecting the resentencing proceeding and changes to the 

sentence, if any, and the correction of these two fee amounts. In all other respects, the 

judgment is affirmed. Upon issuance of the remittitur, the Clerk/Administrator of this 

court is directed to send a copy of this opinion to the State Bar of California.” (People v. 

Tillman, supra, C070879; see fn. 1, ante.) 
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three strikes law to provide that a defendant sentenced under the three strikes law on or 

after November 7 would receive a determinate term of imprisonment if the defendant’s 

present felony was neither serious nor violent and the defendant was not disqualified 

because he or she came within the scope of other specified circumstances. Qualifying 

defendants were to be sentenced as second strike defendants, i.e., to determinate terms. 

(§ 667, subd. (e).) The Act also added section 1170.126 to the Penal Code, which 

provided that defendants serving indeterminate three strike sentences imposed prior to 

November 7, 2012, could petition the trial court for resentencing as second strike 

offenders if the indeterminate sentence they were then serving was not for a serious or 

violent felony, or they were excluded from such sentencing because of other specified 

conditions, and the court did not find them to be an unreasonable risk of danger to public 

safety. (§ 1170.126, subds. (a)-(b).) 

 On December 20, 2013, the trial court herein determined that defendant qualified 

for sentencing under the amended version of the Act because this court had vacated 

defendant’s sentence. The trial court then imposed a determinate term of seven years 

four months, consisting of the upper term of three years doubled to six years because of 

the strike for count 1, plus an effective consecutive term of eight months doubled to 16 

months because of the strike for count 2. 

 The People now appeal, contending that “[t]he trial court erroneously applied 

prospective section 1170.12 rather than retrospective section 1170.126 at [defendant’s] 

resentencing hearing.” Defendant responds that resentencing was necessarily governed 

by the amended three strikes law and he was properly sentenced as a second strike 

offender. For the following reason, we conclude both parties are wrong. 

DISCUSSION 

 “When an appellate court’s reversal is accompanied by directions requiring 

specific proceedings on remand, those directions are binding on the trial court and must
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be followed. Any material variance from the directions is unauthorized and void.” 

(Butler v. Superior Court (2002) 104 Cal.App.4th 979, 982.) 

Here, we vacated defendant’s sentence and “remand[ed] the matter to the trial 

court for resentencing to permit it to exercise its discretion as authorized by Garcia,

supra, 20 Cal.4th 490.” In other words, the trial court was to exercise its discretion by 

either striking one of defendant’s prior strikes, in which case it would resentence 

defendant to a term of 25 years to life, or by declining to strike either prior, in which case 

it was to resentence defendant to 50 years to life. Nothing in our opinion or disposition 

suggested that we were authorizing resentencing under the Act. Although the trial court’s 

sentencing order must be vacated on the ground of lack of jurisdiction, this court’s 

disposition of May 16, 2013, directing the trial court to exercise its discretion under 

Garcia in resentencing defendant remains in force because the trial court has not yet 

complied with it. (See People v. Taylor (1993) 19 Cal.App.4th 836, 842 [appellate 

court’s order remanding the cause with directions remains pending before the trial court 

until it is acted upon].)5 

 

5 We recognize that after the trial court imposed the determinate sentence purportedly 

pursuant to the Act it addressed our direction for it to exercise its discretion and consider 

striking one of defendant’s prior strike convictions as authorized by Garcia and stated it 

would decline to so strike. The trial court’s error in not following this court’s directions 

on remand is not subject to harmless error analysis. “No authority exists for conducting a 

harmless error analysis in this context.” (People v. Saunoa (2006) 139 Cal.App.4th 870, 

872.) 
5 

DISPOSITION 

The sentence imposed by the trial court on December 20, 2013, is vacated and the 

matter is remanded for the trial court to comply with the resentencing directions set forth 

in our prior opinion, People v. Tillman, supra, C070879 (remittitur issued Jul. 17, 2013). 

 BUTZ , J. 

I concur: 

 NICHOLSON , Acting P. J.
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ROBIE, J. 

 I concur. The law is clear that a trial court in a criminal case is bound to follow 

the terms of a remittitur because the terms of the remittitur “define the trial court’s 

jurisdiction” on remand. (People v. Dutra (2006) 145 Cal.App.4th 1359, 1367.) Here, 

that means the trial court did not have the power to resentence defendant under the 

provisions of the Three Strikes Reform Act of 2012 (the Act), which became operative 

while defendant’s first appeal was pending in this court, because our remittitur did not 

provide for resentencing under the Act. Instead, we remanded only so that the trial court 

could decide under People v. Garcia (1999) 20 Cal.4th 490 whether to strike one of 

defendant’s prior strike convictions on just a single count (and for correction of two fee 

amounts). By deviating from the terms of the remittitur, the trial court acted beyond its 

jurisdiction. As we said in Dutra, “[a] trial court may not disobey a remittitur.” (Dutra, 

at p. 1362.) 

 That said, I write separately to make it clear that defendant is not without a remedy 

under the Act. If, following resentencing in accordance with the terms of the remittitur in 

the prior appeal, defendant continues to serve an indeterminate term of imprisonment 

because of one or more of his prior strikes and if his sentence under the Act would not 

have been an indeterminate term of imprisonment, then defendant will be entitled to file a 

petition for a recall of sentence under Penal Code section 1170.126. Although the initial 

two-year window for filing such petitions closed in November 2014 (see id., subd. (b)), 

such a petition may be filed “at a later date upon a showing of good cause” (ibid.), and I 

believe the procedural complications of this case ought to be sufficient to meet that 

threshold. 

 ROBIE , J.