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March 16, 2026 Get Citation Alerts Download PDF Add Note

People v. Majstoric CA2/6

California Court of Appeal

• Citations: None known
• Docket Number: B338746

• Precedential Status: Non-Precedential

• Opinion

• Authorities (7)

• Cited By (0)

• Summaries (0)

• Similar Cases (0)

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Combined Opinion

Filed 3/16/26 P. v. Majstoric CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. Nos. B338746,
B341959
Plaintiff and Respondent, (Super. Ct. No. 23F-02935)
(San Luis Obispo County)
v.

BRANKO ALEXANDER
MAJSTORIC,

Defendant and Appellant.

Branko Alexander Majstoric appeals from the judgment
following his no contest plea to conspiracy to bring a controlled
substance into a state prison. (Pen. Code,1 §§ 182, subd. (a)(1),
4573, subd. (a).) He contends the trial court sentenced him
contrary to the terms of a negotiated disposition. The parties
agree the judgment must be reversed and the case remanded to
provide Majstoric the opportunity to withdraw his plea. We
agree and reverse.

1 Undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL HISTORY
Majstoric was charged in a felony complaint with selling,
furnishing, administering, or giving away a controlled substance
to a person in custody, or offering to do so (§ 4573.9; count 1), and
conspiracy to bring or send a controlled substance into a custodial
facility (§§ 182, subd. (a)(1), 4573; count 2). In April 2023,
Majstoric pleaded no contest to count 2 and admitted an overt act
in furtherance of the conspiracy.
Prior to entering the plea, the prosecutor and the trial court
stated Majstoric would receive a “split” sentence of two years in
“county jail prison” followed by one year of mandatory
supervision (§ 1170, subd. (h)(2) & (5)(B)). Majstoric was not
advised of his right to withdraw his plea if the court imposed a
more severe sentence. (See § 1192.5, subd. (c).) It does not
appear that a written plea form was used. The remaining count
and allegations were dismissed, “conditioned on the continuing
validity of the plea and admission.”
The probation sentencing report was delayed because
Majstoric was in custody in Sacramento County. When the
report was finally issued one year after the plea, the probation
officer recommended a state prison sentence of three years in the
present case because Majstoric was serving a prison sentence in
the Sacramento case of two years, eight months.
At the sentencing hearing in June 2024, Majstoric’s counsel
noted the probation recommendation “does seem to deviate from
the split,” but said he exchanged emails with the probation officer
and “came to the same conclusion.” He said he had “gone over
that with [his] client and [they were] ready to proceed.” The
court sentenced Majstoric to three years in state prison, to be
served consecutively with the Sacramento sentence. One week
later, Majstoric filed a notice of appeal, contending the three-year

2
state prison sentence violated the plea agreement and requesting
to withdraw his plea.
While his appeal was pending, in October 2024 the court
resentenced Majstoric to four years in state prison for the
conspiracy (§§ 182, subd. (a)(1), 4573, subd. (a)), with a
consecutive sentence of eight months (one-third the middle term)
for the Sacramento conviction for evading a police officer (Veh.
Code, § 2800.2, subd. (a)) and a concurrent sentence of two years
for the Sacramento conviction of being a felon in possession of a
firearm (§ 29800, subd. (a)(1)). The court calculated the total
prison sentence for both cases as four years, eight months.
Majstoric filed a second notice of appeal in November 2024,
contending the new sentence violated the April 2023 plea
agreement, and again requesting to withdraw his plea. We
consolidated the two appeals.
The case was calendared in January 2025 for a motion to
withdraw plea. The court did not hear the motion, but stated the
original agreed-upon disposition “resulted in an unlawful
sentence” and the parties had now agreed to a sentence the
parties were “certain” would “give[] the defendant the benefit of
his initial bargain.” Majstoric and the prosecution stipulated to a
new sentence of the low term of two years for the conspiracy, a
consecutive sentence of eight months for the Sacramento
conviction for evading, and a concurrent sentence of two years for
the Sacramento firearm conviction, for a total prison term of two
years eight months.
DISCUSSION
Withdrawal of plea
“[A] plea of guilty or nolo contendere . . . may specify the
punishment.” (§ 1192.5, subd. (a).) Where, as here, “the plea is
accepted by the prosecuting attorney in open court and is

3
approved by the court, the defendant, except as otherwise
provided in this section, cannot be sentenced on the plea to a
punishment more severe than that specified in the plea and the
court may not proceed as to the plea other than as specified in the
plea.” (Id., subd. (b).) “If the court approves of the plea, it shall
inform the defendant prior to the making of the plea that (1) its
approval is not binding, (2) it may, at the time set for the hearing
on the application for probation or pronouncement of judgment,
withdraw its approval in the light of further consideration of the
matter, and (3) in that case, the defendant shall be permitted to
withdraw the plea if the defendant desires to do so.” (Id., subd.
(c).)
The advisement required by section 1192.5, subdivision (c)
was not given here. “[W]hen the trial court fails to give a section
1192.5 admonition, the defendant’s failure to object at sentencing
does not waive his claim on appeal.” (People v. Silva (2016) 247
Cal.App.4th 578, 589; People v. Walker (1991) 54 Cal.3d 1013,
1024–1025, overruled on other grounds by People v. Villalobos
(2012) 54 Cal.4th 177, 183.)
The three-year prison sentence originally imposed is more
severe than the agreed-upon sentence of two years in county jail
with one year of mandatory supervision. (People v. Segura (2008)
44 Cal.4th 921, 935 [length of jail term is significant]; People v.
Silva, supra, 247 Cal.App.4th at pp. 591–592 [30-day jail
sentence consecutive to agreed-upon sentence allowed defendant
to withdraw plea].) “[T]here is a qualitative difference between
an inmate in actual prison custody and a felon released in the
community under mandatory supervision.” (Wofford v. Superior
Court (2014) 230 Cal.App.4th 1023, 1037.) Because the trial
court did not give the section 1192.5 admonition, counsel’s
statement that he and Majstoric were “ready to proceed” does not

4
establish the requirement that Majstoric personally knew he had
the right to withdraw his plea. (Silva, at pp. 589–590.) Thus,
Majstoric is entitled to withdraw his plea because the court
imposed a sentence in excess of that specified in the plea.
(§ 1192.5, subd. (c).)
Jurisdiction to modify judgment
The trial court purported to resentence Majstoric in
October 2024 while his appeal was pending. And in January
2025 it issued an amended judgment that approximated the
original plea bargain. But these orders are void because the
pendency of the appeals divested the trial court of jurisdiction.
“ ‘The 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.’ ” (People v. Alanis (2008) 158
Cal.App.4th 1467, 1472 (Alanis).) “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.] Thus, action by the trial court while an appeal is
pending is null and void.” (Id. at pp. 1473–1473.) The purported
changes to the sentence in October 2024 and January 2025 were
made while appeals in this matter were pending and are thus
void.
“One exception is that, notwithstanding the pendency of an
appeal, ‘[t]he trial court is allowed to vacate a void—but not
voidable—judgment.’ ” (Alanis, supra, 158 Cal.App.4th at
p. 1473.) This exception allows a trial court to vacate a judgment
on appeal that is “void on its face.” (Id. at p. 1474.) “[A] sentence
is generally ‘unauthorized’ where it could not lawfully be imposed
under any circumstance in the particular case,” e.g., “where the
court violates mandatory provisions governing the length of
confinement.” (People v. Scott (1994) 9 Cal.4th 331, 354, fn.

5
omitted.)
The original judgment here was voidable, not void. A
sentence of three years is statutorily authorized for conspiracy to
violate section 4573. The trial court had the jurisdiction to
impose a sentence in excess of that specified in the plea bargain,
with the consequence that “the defendant shall be permitted to
withdraw the plea if the defendant desires to do so.” (§ 1192.5,
subd. (c).) Accordingly, the trial court did not have jurisdiction to
change the sentence during the pendency of the appeals.
But while an appeal is pending, a trial court has “inherent
power ‘ “to correct clerical errors in its records” ’ ” including
“ ‘correction of abstracts of judgment that did not accurately
reflect the oral judgments of sentencing courts.’ ” (Alanis, supra,
158 Cal.App.4th at pp. 1473–1474.) “ ‘The distinction between
clerical error and judicial error is “whether the error was made in
rendering the judgment, or in recording the judgment
rendered.” ’ ” (Id. at p. 1474.) Here the court had the power to
correct the erroneous section designation in the original
abstract.2 But it did not have the power to change the sentence
while the appeals were pending.
“Under such circumstances, the proper procedure is to
reverse the void judgment rather than dismiss the appeal.”
(Alanis, supra, 158 Cal.App.4th at p. 1477, fn. omitted.)
Although the trial court eventually pronounced a sentence that
approximated the plea bargain, that sentence was void. We
decline to affirm either of those sentences because it “would
require us to . . . uphold the trial court’s actions despite its lack of

2 The original abstract erroneously listed count 2 as
conspiracy to violate section 4573.9 rather than to violate section
4573.

6
jurisdiction to take them.” (Id. at p. 1478.)
Majstoric had the right to withdraw his plea when the
initial sentence in excess of the agreed-upon disposition was
imposed. He retains the right to that relief on appeal.
DISPOSITION
The judgment is reversed. The matter is remanded to
provide Majstoric the opportunity to withdraw his no contest
plea. If he does not choose to withdraw the plea, or if he is later
convicted, the clerk shall prepare an amended abstract of
judgment and forward a copy to the Department of Corrections
and Rehabilitation.
NOT TO BE PUBLISHED.

BALTODANO, Acting P. J.

We concur:

CODY, J.

DEROIAN, J.

 Judge of the Santa Barbara County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.

7
Timothy S. Covello, Judge

Superior Court County of San Luis Obispo

Esther R. Sorkin, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Stephanie C. Brenan and Stefanie Yee, Deputy
Attorneys General, for Plaintiff and Respondent.