People v. Armendariz CA4/2 ( 2024 )

Filed 10/24/24 P. v. Armendariz CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E082566
v. (Super.Ct.No. INF1601092)
JOSE ANTONIO ARMENDARIZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Thomas E. Kelly, Judge.
(Retired Judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to
art. VI, § 6 of the Cal. Const.) Reversed and remanded with directions.
David L. Polsky, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Robin Urbanski and Donald
W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.
1
The trial court denied Jose Antonio Armendariz’s petition seeking resentencing on
his murder conviction. This was erroneous because, at the time, the court lacked
jurisdiction to rule on the merits of the petition because Armendariz’s direct appeal from
that conviction was pending before our Supreme Court. The trial court should have acted
on the petition without ruling on its merits by either dismissing or staying activity on it.
That said, the direct appeal has now ended, and the remittitur issued. We return this case
to the trial court for it to act on the merits of Armendariz’s petition.
BACKGROUND
In 2019 a jury convicted Armendariz of first degree murder (Pen. Code1, § 187,
subd. (a)) after he pleaded guilty to being a felon in possession of a firearm. (§ 29800,
subd. (a)). The jury also found true multiple enhancements, including a gang
enhancement (§ 186.22, subd. (b)(1)(C)), and multiple firearm enhancements
(§ 12022.53, subds. (c)-(e)).
On appeal, we vacated various enhancements and additional sentences for prior
prison terms, and remanded for Armendariz to be resentenced. (People v. Lopez (Nov. 3,
2022, E073016) [nonpub. opn.] (Lopez).) The California Supreme Court granted the
People’s petition for review on February 1, 2023.
Meanwhile, in February 2022, Armendariz petitioned for resentencing under what
is now section 1172.6. The court denied the petition without prejudice, saying, “I don’t
have jurisdiction. It’s on direct appeal.”
1 Unlabeled statutory citations refer to the Penal Code.
2
In August 2023 Armendariz filed another section 1172.6 petition. At the hearing,
Armendariz’s counsel stated, “I have confirmed that the jury had to have made a finding
that [Armendariz] had the intent to kill. I’ll submit.” The prosecution told the court—
incorrectly—that Armendariz’s appeal was final and requested the court “deny the
petition with prejudice.” The court ended the hearing by stating “[a]ll right. Denied.”
The minute order stated the petition was “denied with prejudice.”
In March 2024 the Supreme Court dismissed the pending direct appeal. (Lopez,
supra, E073016, review granted Feb. 1, 2023, S277304, dismissed and remanded
Mar. 27, 2024.) The remittitur issued from our court the next day on March 28, 2024.
DISCUSSION
Armendariz argues the trial court lacked jurisdiction to rule on the merits of his
August 2023 section 1172.6 petition because his case was pending on direct appeal. We
agree and therefore reverse.2
“ ‘ “[T]he 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” [citation]
and deprives the trial court of jurisdiction to make any order affecting the judgment
[citation].’ ” (People v. Wagner (2009) 45 Cal.4th 1039, 1061, quoting People v.
Lockridge (1993) 12 Cal.App.4th 1752, 1757.) “Until the remittitur issues, the lower
court lacks jurisdiction over the subject matter of the order or judgment on appeal.
2 We therefore need not address the parties’ dispute about whether the court’s
minute order correctly reflected the trial court’s oral ruling, and whether a denial that is
not expressly characterized as “with prejudice” is meaningfully different from one that is.
3
[Citation.] Thus, any order the lower court makes affecting an order or judgment on
appeal is null and void if made before the remittitur issues.” (People v. Burhop (2021) 65
Cal.App.5th 808, 813 (Burhop), italics omitted.) “The purpose of the rule divesting the
lower court of jurisdiction when an appeal is pending ‘ “is to protect the appellate court’s
jurisdiction by preserving the status quo until the appeal is decided. The rule prevents the
trial court from rendering an appeal futile by altering the appealed judgment . . . by
conducting other proceedings that may affect it.” ’ ” (Id. at p. 814, italics added.)
Armendariz’s appeal before the California Supreme Court was pending when the
trial court ruled on his petition. The trial court therefore lacked jurisdiction to consider
the merits of any petition for resentencing because granting the petition would have
affected the judgment and thereby changed the status quo.
The People cite People v. Cress (2023) 87 Cal.App.5th 421 (Cress) for the
proposition that the trial court only lacked jurisdiction to grant the petition, but retained
jurisdiction to deny it. But that is not what Cress says. In Cress, the trial court did not
deny the petition before it, it dismissed the petition. Indeed, Cress expressly declined to
decide whether the trial court could have denied the petition instead of dismissing it,
staying it, or doing “something else entirely.” (Id. at p. 425.) Thus, Cress stands for the
proposition that trial courts may dismiss petitions under section 1172.6 while appeals are
pending because “[t]he dismissal of the petition d[oes] not affect the judgment.” (Cress,
at pp. 424-425.) It does not support the People’s position that the court could deny the
petition on the merits, even though it lacks jurisdiction to grant it.
4
Moreover, Cress is distinguishable from the facts here. In Cress the defendant
filed a second section 1172.6 petition while an order denying his first such petition was
on appeal. (Cress, supra, 87 Cal.App.5th at p. 423.) As the concurrence in Cress points
out, that was a procedural posture distinct from both the posture of Burhop (holding a
trial court cannot issue a new ruling on a postjudgment motion while the first ruling on
the same motion is pending) and the common circumstance of postjudgment motions
filed while the underlying conviction is on direct appeal. (Cress, at p. 426 (conc. opn. of
Raphael, J.).) This case is not so distinct; it had the exact procedural posture
contemplated by the general rule. That is, Armendariz’s judgment was pending on direct
appeal, and therefore the general rule applied “that an appeal from an order in a criminal
case removes the subject matter of that order from the jurisdiction of the trial court.”
(Anderson v. Superior Court (1967) 66 Cal.2d 863, 865.) The trial court in this case
therefore had no jurisdiction to consider the petition on the merits at all.
We conclude the trial court’s ruling on the merits of Armendariz’s petition must
be reversed for lack of jurisdiction. However, because Armendariz’s appeal is no longer
pending, the court now has jurisdiction to consider the petition. We therefore remand to
permit the trial court to reconsider the petition on its merits.
5
DISPOSITION
We reverse the order denying Armendariz’s petition and remand to permit the trial
court to reconsider the petition given its newfound jurisdiction.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL
J.
We concur:
MILLER
Acting P. J.
CODRINGTON
J.
6