(Super. Ct. No. P02CRF0403)
The opinion of the court was delivered by: Robie , Acting P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 this case, defendant Daniel Duane Boggess is trying to work the system. He did not say one word when present at a state court appearance where the court, the prosecutor, and his newly appointed attorney agreed to set his resentencing hearing for a date past the 30-day deadline imposed by a federal court within which to resentence defendant. The next day following the state court appearance (which was now the 31st day), defendant wrote to the federal court that the state court had not complied with the deadline.
On defendant's appeal in this court from the state court resentencing that took place on the 38th day (which was the day the state court first learned of the federal court's deadline), we hold defendant forfeited his argument that the state court had no jurisdiction to resentence him. He had the chance to object on the 30th day but chose not to.
FACTUAL AND PROCEDURAL BACKGROUND
On June 20, 2011, a federal court granted defendant's petition for writ of habeas corpus because the 10-year upper term sentence imposed by a state court based on factors not found true by a jury violated the Sixth Amendment. The federal court ordered the state court to resentence defendant within 30 days of the federal court's order. The federal court further stated that if the state court failed to do so, then defendant's sentence would be reduced to eight years.
Defendant was brought to state court on July 20, which was the 30th day. At that court appearance, defendant said nothing when the state court, the prosecutor, and his attorney set his resentencing for August 3. The court and the parties stated they needed to review the lengthy case file.*fn1
On July 21, defendant on his own wrote the federal court that the state court had failed to comply with the 30-day deadline.
On the morning of July 28, the state court and defense counsel learned of the deadline when they received from the district attorney's office a copy of the federal court order. That afternoon, with defendant present, the state court held the resentencing hearing and reimposed the 10-year sentence. Defendant filed a timely appeal from the resentencing hearing.
Thereafter, defendant filed on his own in federal court a motion for reconsideration of the state court sentence, claiming the state ...