Opinion
C089573
04-17-2020
THE PEOPLE, Plaintiff and Respondent, v. SHAQUILLE HUSTON, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14F07830)
Defendant Shaquille Huston appeals the trial court's denial of his postjudgment petition for resentencing under Penal Code section 1170.95. Defendant contends, and the People agree, that the trial court was without jurisdiction to consider his petition by virtue of his pending appeal challenging the underlying judgment. We agree with this conclusion, but rather than reversing the trial court's order, we will dismiss this appeal for want of jurisdiction.
Undesignated statutory references are to the Penal Code. --------
Defendant, with three other perpetrators, robbed Vincent and Alex A. of marijuana and an amplifier. During the commission of the robbery, Vincent was shot and killed. A jury convicted defendant of first degree murder on a felony-murder theory with a special circumstance of robbery-murder, and the trial court sentenced defendant to life without the possibility of parole. Defendant timely appealed that judgment, and that appeal is pending in this court as case No. C086248.
Meanwhile, on January 17, 2019, defendant filed a form postjudgment petition for resentencing in pro. per., asking the trial court for resentencing under newly enacted section 1170.95. (Senate Bill No. 1437 (2017-2018 Reg. Sess.); Stats. 2018, ch. 1015, § 4.) The trial court denied the petition, finding that because the jury found true the section 190, subdivision (a)(17) special circumstance allegation, "the jury necessarily found that defendant Huston either was the actual killer, acted with intent to kill, or was a major participant who acted in the robbery with reckless indifference to human life . . . ." The trial court reasoned that because such circumstances still provided a valid basis for first degree murder under sections 187 and 189, defendant's petition for resentencing had to be denied without prejudice to defendant renewing it should he successfully overturn that enhancement in his pending appeal. Defendant appealed the trial court's denial of his petition.
"Once a notice of appeal is filed, jurisdiction vests in the appellate court until the appeal is decided on the merits and a remittitur issues." (People v. Martinez (2019) 31 Cal.App.5th 719, 729.) Thus, a defendant with a pending appeal who wishes to seek immediate relief in the trial court under section 1170.95 must seek a temporary stay of his appeal. (Martinez, at p. 729.) There is no concurrent jurisdiction to consider a section 1170.95 motion. (People v. Anthony (2019) 32 Cal.App.5th 1102, 1156.) As defendant did not follow this procedure, the trial court was without jurisdiction to consider his petition. Given this conclusion, the trial court's order denying defendant's petition did not affect defendant's substantial rights, and we must dismiss this appeal as having been brought from a nonappealable order. (See, e.g., People v. Chamizo (2019) 32 Cal.App.5th 696, 700, 701 [dismissing defendant's appeal from denial of a request to modify his sentence over which the trial court did not have jurisdiction].)
DISPOSITION
The appeal is dismissed.
/S/_________
MAURO, Acting P. J. We concur: /S/_________
MURRAY, J. /S/_________
RENNER, J.