Opinion
C089227
08-10-2020
THE PEOPLE, Plaintiff and Respondent, v. BRANDON ROCKY RIBERAL, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. STK-CR-FE-2013-0005786)
Defendant Brandon Rocky Riberal appeals from the trial court's denial of his postjudgment petition for resentencing under Penal Code section 1170.95 because the appeal of the underlying conviction was pending. He contends on appeal that the trial court had jurisdiction to consider the petition and asks us to reverse the order and remand with directions to consider his petition. Agreeing with the trial court we shall dismiss the appeal.
Undesignated statutory references are to the Penal Code. --------
On July 21, 2014, defendant was sentenced to life without the possibility of parole plus 57 years to life following his convictions for premeditated first degree murder (§ 187, subd. (a)), attempted premeditated murder (§ 664/187, subd. (a)), conspiracy to commit murder (§ 182, subd. (a)(1)), and various other firearm and gang crimes, as well as numerous firearm and gang enhancements. He appealed his conviction to this court in People v. Riberal et al., C077018.
On March 6, 2019, defendant filed a pro se section 1170.95 petition for resentencing. At that time, his appeal was still pending. On March 11, 2019, the trial court summarily denied the petition on the ground the pending appeal deprived it of jurisdiction to consider the 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. [Citations.]" (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 for a trial court to consider a section 1170.95 motion. (People v. Anthony (2019) 32 Cal.App.5th 1102, 1156; see also People v. Scarbrough (2015) 240 Cal.App.4th 916, 929-930 [no concurrent jurisdiction for a trial court to consider a § 1170.18 petition while appeal of the criminal conviction is pending].) 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/_________
BLEASE, Acting P. J. We concur: /s/_________
HULL, J. /s/_________
HOCH, J.