Filed 7/18/16 P. v. Alonzo CA2/4
                    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 FOUR




THE PEOPLE,                                                                   B265298

          Plaintiff and Respondent,                                           (Los Angeles County
                                                                              Super. Ct. No. TA130424)
          v.

RAYMOND C. ALONZO,

          Defendant and Appellant.


          APPEAL from an order of the Superior Court of Los Angeles County,
Hector E. Gutierrez, Judge. Dismissed.
          Mary Bernstein, under appointment by the Court of Appeal, for Defendant and
Appellant.
          Kamala D. Harris, Attorney General, Gerald A. Engler and Lance E. Winters,
Assistant Attorneys General, Mary Sanchez and Chung L. Mar, Deputy Attorneys
General, for Plaintiff and Respondent.
                                         ______________________________
       Raymond C. Alonzo appeals from the order denying his petition for resentencing
under Proposition 47. (Pen. Code, § 1170.18.)1 We dismiss the appeal because the trial
court lacked jurisdiction to rule on defendant’s petition while the appeal from his
judgment of conviction was pending.


                      FACTUAL AND PROCEDURAL SUMMARY
       As we explained in the earlier appeal (People v. Alonzo (Jan. 8, 2016, B256919
[nonpub. opn.] (Alonzo I)), in October 2013, defendant was arrested for driving a Toyota
Camry that had been reported stolen nine days before. A shaved Allen wrench was found
in the ignition. In 2014, “defendant was charged with unlawful driving or taking of a
vehicle with a prior conviction. (§ 666.5.) The information alleged that he had served
two prior prison terms and had suffered three prior theft convictions: in 2005 for
unlawful driving or taking of a vehicle (No. BA285678) (Veh. Code, § 10851, subd. (a));
in 2006 for felony grand theft auto (No. BA301302) (§ 487, subd. (d)(1)); and in 2008 for
felony grand theft auto (No. YA071291) (§ 487, subd. (d)(1)). The 2006 conviction
(No. BA301302) was alleged to be a serious felony strike based on the true finding on a
criminal street gang allegation. (§§ 186.22, 1192.7, subd. (c)(28).).” After a jury trial,
defendant was convicted of violating section 666.5 based on his present and previous
violations of Vehicle Code section 10851. He admitted his prior convictions. After his
Romero2 motion was denied, the trial court imposed a mid-term sentence of three years,
doubled to six years under the Three Strikes law.
       In June 2014, defendant filed a notice of appeal from the judgment of conviction.
Subsequently, on November 5, 2014, Proposition 47 (the Safe Neighborhoods and
Schools Act) went into effect. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.)
As a result, defendant petitioned for recall of his sentence on May 14, 2015, and
requested resentencing pursuant to section 1170.18. The trial court heard and denied the

       1
           Statutory references are to the Penal Code unless otherwise indicated.
       2
           People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
                                               2
petition for resentencing on May 28, 2015. The basis for the denial was that neither
Vehicle Code section 10851 nor section 666.5 was within the scope of Proposition 47.
The trial court also denied the petition because it determined that defendant posed an
unreasonable risk of danger to public safety. Defendant filed this appeal from the denial
of his petition for resentencing on June 25, 2015.
       We affirmed defendant’s judgment of conviction in January 2016 in Alonzo I, and
the Supreme Court denied his petition for review in April 2016.


                                       DISCUSSION
       We asked the parties to submit supplemental briefing whether the appeal should be
dismissed by the trial court for lack of jurisdiction to rule on defendant’s Proposition 47
petition while the appeal in Alonzo I was pending. We vacated submission of the case to
allow defendant additional time to brief that issue.
       As the court held in People v. Scarbrough (2015) 240 Cal.App.4th 916, 922
(Scarbrough), Proposition 47 does not create an exception to the general rule that a trial
court may not issue an order affecting a judgment while an appeal is pending. The
purpose of this rule is to protect the jurisdiction of the appellate court by preserving the
status quo “so that an appeal is not rendered futile by alteration.” (Id. at p. 923.) Nothing
in Proposition 47 suggests the voters intended that relief under that initiative be sought or
granted immediately; rather, the measure provides for three years, or longer on a showing
of good cause, to petition for such relief. (Id. at p. 928; see § 1170.18, subd. (j).) A mere
delay in obtaining relief under Proposition 47 does not frustrate the voters’ general intent
because the potential for judicial economy remains. (Scarbrough, at p. 928.) We agree
with the reasoning in Scarbrough, and defendant’s supplemental brief does not persuade
us that the case was incorrectly decided.
       Because the trial court lacked jurisdiction to rule on defendant’s petition for
resentencing under Proposition 47 during the pendency of the appeal in Alonzo I, its order
doing so was void and did not affect his substantial rights. This appeal, therefore, must


                                              3
be dismissed. (See § 1237, subd. (b); People v. Turrin (2009) 176 Cal.App.4th 1200,
1208; People v. Chlad (1992) 6 Cal.App.4th 1719, 1726.)
       We deny defendant’s request that we treat the Proposition 47 petition as a petition
for habeas corpus. As the court in Scarbrough pointed out, habeas corpus proceedings
are “sui generis” and should not be conflated with statutory proceedings under
Proposition 47. (Scarbrough, supra, 240 Cal.App.4th at p. 927.) Moreover, the denial of
a habeas corpus petition is not appealable. (People v. Gallardo (2000) 77 Cal.App.4th
971, 986.)
       By separate order, we also have denied defendant’s motion to stay the appeal and
remand the case to the trial court pursuant to People v. Awad (2015) 238 Cal.App.4th
215. In that case, the pending appeal from the underlying judgment of conviction was
stayed and a limited remand to the trial court was issued for purposes of conducting a
hearing on the defendant’s Proposition 47 petition. (Id. at p. 222.) This case is
distinguishable from Awad because, here, the appeal from the judgment of conviction is
final, and the only issue pending before us is the denial of defendant’s Proposition 47
petition. Defendant will not be prejudiced by the dismissal of his appeal because he may
refile his petition in the trial court.3




       3
         We note that the issue of whether Vehicle Code section 10851 is within the
scope of Proposition 47 is before the California Supreme Court in People v. Page (2015)
241 Cal.App.4th 714, review granted Jan. 27, 2016, S230793. Because of that, we find
unconvincing defendant’s argument that his eligibility for relief under Proposition 47 is
subject to a quick resolution.
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                                 DISPOSITION
      The appeal is dismissed.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



                                          EPSTEIN, P.J.
We concur:



      WILLHITE, J.



      MANELLA, J.




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