Filed 7/18/16 P. v. Edward 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                    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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,                                                                   B264987

          Plaintiff and Respondent,                                           (Los Angeles County
                                                                              Super. Ct. No. BA180721)
          v.

MEL TYRONE EDWARD,

          Defendant and Appellant.


          APPEAL from an order of the Superior Court of Los Angeles County,
Drew E. Edwards, Judge. Dismissed.
          Nancy L. Tetreault, 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, Noah P. Hill, Mary Sanchez and Andrew S. Pruitt, Deputy
Attorneys General, for Plaintiff and Respondent.
                                         ______________________________
       Mel Tyrone Edward 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 consider appellant’s current petition during the pendency of
the appeal from the denial of his earlier petition for resentencing under Proposition 36.
(§ 1170.126.)


                      FACTUAL AND PROCEDURAL SUMMARY
       As we explained in the earlier appeal (People v. Edward (Oct. 9, 2015, B257940)
[nonpub. opn.], Edward II), in 1999 appellant “was convicted by a jury of one felony
count of possession of crack cocaine. (Health & Saf. Code, § 11350, subd. (a).) He was
found to have sustained two prior felony strike convictions for second degree robbery,
and to have served two prior prison terms. After his Romero2 motion was denied, he
received a third-strike sentence of 27 years to life. (§§ 667, subd. (e)(2); 1170.12,
subd. (c)(2); 667.5, subd. (b).) We affirmed his conviction in a prior appeal. (People v.
Edward (Oct. 10, 2000, B136661) [nonpub. opn.][, Edward I].)”
       In May 2013, appellant petitioned for resentencing under Proposition 36, on the
ground that his current conviction is for a felony that is neither violent nor serious. The
trial court made a preliminary finding of eligibility, but after holding a hearing under
section 1170.126, subdivision (f), denied the petition on the ground that resentencing
defendant would pose an unreasonable risk of danger to public safety. The appeal in
Edward II followed, and during its pendency the voters approved Proposition 47.
Appellant argued that proposition implicitly amended Proposition 36 by redefining the
“unreasonable risk of danger to public safety” standard in section 1170.126. We
disagreed and affirmed the denial of his petition for resentencing under Proposition 36.
The California Supreme Court granted appellant’s petition for review (case No. S230685)
but deferred consideration until decision of two other pending cases. (People v. Chaney

       1
           Statutory references are to the Penal Code unless otherwise indicated.
       2
           People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
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(2014) 231 Cal.App.4th 1391, rev. granted Feb. 18, 2015 (S223676); People v. Valencia
(2014) 232 Cal.App.4th 514, rev. granted Feb. 18, 2015 (S223825).)
       Meanwhile, in May 2015, appellant petitioned to have his drug conviction reduced
to a misdemeanor under section 1170.18. The trial court concluded appellant had
disqualifying prior convictions and denied the petition. This appeal followed.


                                        DISCUSSION
       Respondent argues, and we agree, that the trial court lacked jurisdiction to
consider appellant’s petition for resentencing under Proposition 47 during the pendency
of his appeal from the denial of his petition under Proposition 36.
       A postjudgment order denying a petition for resentencing under Proposition 36 is
an appealable order (Teal v. Superior Court (2014) 60 Cal.4th 595, 601), and once an
appeal is timely filed from such an order, the trial court is divested of jurisdiction over its
subject matter. (See People v. Cunningham (2001) 25 Cal.4th 926, 1044 [“‘an appeal
from an order in a criminal case removes the subject matter of that order from the
jurisdiction of the trial court’”].) The goal is to protect the jurisdiction of the appellate
court by preserving the status quo “so that an appeal is not rendered futile by alteration.
[Citations.]” (People v. Scarbrough (2015) 240 Cal.App.4th 916, 923.) Since the trial
court is divested of jurisdiction during the pendency of the appeal, any action it takes is
null and void. (Ibid.)
       Respondent relies on People v. Yearwood (2013) 213 Cal.App.4th 161 and People
v. Scarbrough, supra, 240 Cal.App.4th 916, which held the trial court lacked jurisdiction
to consider a petition for resentencing under Proposition 36 and Proposition 47,
respectively, during the pendency of the appeal from the underlying judgment of
conviction. Appellant seeks to distinguish those cases on the ground that the appeal in
Edward II was not from the judgment of conviction, which has long become final. That
is a distinction without a difference. The general rule that trial courts are divested of
jurisdiction during the pendency of an appeal is not limited to appeals from the original
judgment of conviction; nor is it limited to the specifics of the order pending on appeal.

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(See People v. Murphy (1969) 70 Cal.2d 109, 116 [appeal stays all further proceedings in
trial court upon order or judgment appealed from and matters embraced therein].)
Rather, the rule ‘“prevents the trial court from rendering an appeal futile by altering the
appealed judgment [or order] . . . by conducting other proceedings that may affect it.’
[Citation.]” (Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1089.)
       We do not agree with appellant’s argument that the petitions for resentencing
under the two propositions are completely unrelated. The petitions were filed in the same
case and pertained to the same subject matter: the sentence for his current conviction.
His entitlement to recall that sentence is at issue in both petitions. Under Proposition 36,
which was adopted to reform the Three Strikes law, a defendant sentenced as a third
striker and currently serving a sentence of 25 years to life for a third felony conviction
that does not qualify as a serious or violent felony may, under specified circumstances, be
resentenced as if he were a second striker and had only one prior serious or violent felony
conviction. (People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1285.)
On the other hand, under Proposition 47, a defendant currently serving a felony sentence
for certain theft and drug offenses may, under specified circumstances, be resentenced to
a misdemeanor. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1092.) Treating
petitions filed under the two initiatives as completely unrelated has the potential of
creating just as much “chaos, confusion, and waste,” as considering a petition during the
pendency of a direct appeal from a judgment. (People v. Scarbrough, supra, 240
Cal.App.4th at p. 928.) It is not inconceivable that unrelated proceedings for sentence
recall under both voter initiatives may result in inconsistent sentencing of the same
defendant as a misdemeanant, and second or third striker at the same time.
       Appellant cites People v. Awad (2015) 238 Cal.App.4th 215, where the trial court
denied the defendant’s petition for resentencing under Proposition 47 for lack of
jurisdiction during the pendency of the appeal from the judgment of conviction. The
defendant sought to expedite the pending appeal. (Id. at p. 219.) As an alternative to
expediting the appeal, the reviewing court stayed it and issued a limited interim remand


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to the trial court for purposes of conducting a hearing on the Proposition 47 petition. (Id.
at p. 222.)
       The relief granted in People v. Awad, supra, 238 Cal.App.4th 215 has no
application to cases where, as here, the trial court acted without jurisdiction in
considering defendant’s petition on the merits “despite the pending appeal and without
any direction from this court.” (People v. Scarbrough, supra, 240 Cal.App.4th at p. 930,
fn. 5.) Moreover, we no longer have jurisdiction over the appeal in Edward II, which is
currently pending before the state Supreme Court. (See Cal. Rules of Court, rules
8.264(b), 8.512(b)-(c).)
       We recognize the concern that because many misdemeanor sentences are
relatively short, Proposition 47 would not have its intended effect unless trial courts can
quickly consider petitions for resentencing by those serving sentences for qualifying
felony convictions. (People v. Awad, supra, 238 Cal.App.4th at p. 221.) But nothing in
Proposition 47 suggests the voters intended that there be immediate relief, as the initiative
allows “a lengthy period to seek recall and resentencing relief—three years, or longer on
a showing of good cause.” (People v. Scarbrough, supra, 240 Cal.App.4th at p. 928; see
§ 1170.18, subd. (j).) Moreover, third strikers, such as appellant, serving indeterminate
life sentences, would still benefit substantially if found eligible under Proposition 47,
whether or not they receive immediate relief.
       Because the trial court lacked jurisdiction to consider appellant’s petition for
resentencing under Proposition 47 during the pendency of the appeal from the denial of
his Proposition 36 petition, its order did not affect his substantial rights and is not
appealable. This appeal, therefore, must 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.) Appellant argues that he would be time barred if he were to wait for the appeal in
Edward II, supra, to conclude before he could petition for relief under Proposition 47.
The trial court’s lack of jurisdiction to consider appellant’s Proposition 47 petition during
the pendency of that appeal may provide good cause for the delay in seeking relief.


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                                    DISPOSITION
      The appeal is dismissed. This order is without prejudice to consideration of
appellant’s Proposition 47 petition by the Superior Court upon conclusion of the appeal
in Edward II.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                EPSTEIN, P. J.
We concur:



      WILLHITE, J.



      MANELLA, J.




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