People v. Hutchinson CA2/8

Filed 8/24/23 P. v. Hutchinson CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT
THE PEOPLE, B324979
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA102378)
v.
ANTONE HUTCHINSON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Richard M. Goul, Judge. Vacated.
Jeffrey S. Kross, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Heidi Salerno, Deputy
Attorneys General, for Plaintiff and Respondent.
_______________________
Appellant Antone Hutchinson filed a petition for
resentencing pursuant to Penal Code section 1172.6, formerly
Penal Code section 1170.95, while his earlier petition for
resentencing was pending on appeal. As the trial court lacked
jurisdiction to consider the second petition for resentencing while
the appeal from the denial of his first petition was under review
by the California Supreme Court, we vacate the trial court’s order
denying the second petition for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
Hutchinson was convicted in 2017 of attempted murder
committed for the benefit of a criminal street gang (Pen. Code,
§§ 664/187, subd. (a), 186.22, subd. (b)(1)(C)) and shooting at an
inhabited dwelling (Pen. Code, § 246). In January 2019 he filed
his first petition for resentencing.1 (People v. Hutchinson (Apr.
30, 2020, B299078) [nonpub. opn.].) The trial court denied the
petition, and Hutchinson appealed. (Ibid.) This court affirmed
the trial court’s order. (Ibid.) The California Supreme Court
granted Hutchinson’s petition for review on July 8, 2020.
While the appeal from his first resentencing petition was
pending in the California Supreme Court, Hutchinson filed a
second petition for resentencing in the trial court on February 22,
2022. The trial court denied the second petition for resentencing
on October 12, 2022. Hutchinson appeals.
1 At Hutchinson’s request, we take judicial notice of the court
records pertaining to the first petition for resentencing. (Evid.
Code, §§ 452, subd. (d), 459.)
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DISCUSSION
Hutchinson and the People argue the trial court’s order
denying Hutchinson’s second petition for resentencing must be
vacated because the trial court lacked jurisdiction to rule on the
petition. We agree. Subject to exceptions not applicable here,
“ ‘an appeal from an order in a criminal case removes the subject
matter of that order from the jurisdiction of the trial court.’ ”
(People v. Cunningham (2001) 25 Cal.4th 926, 1044.) “The 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.” (People v. Perez (1979) 23 Cal.3d 545, 554.)
Because Hutchinson’s appeal from the denial of his first petition
for resentencing was pending in the California Supreme Court at
the time the trial court heard his second petition for
resentencing, the trial court acted in excess of its jurisdiction by
ruling on the second petition. (See People v. Burhop (2021)
65 Cal.App.5th 808, 813 [“any order the lower court makes
affecting an order or judgment on appeal is null and void if made
before the remittitur issues”].) Therefore, the trial court’s
October 12, 2022, ruling denying Hutchinson’s second petition for
resentencing is void and must be vacated.
We note that while this appeal was pending, the California
Supreme Court ordered this court to vacate and reconsider our
decision on Hutchinson’s first petition for resentencing in light of
Senate Bill No. 775 (Stats. 2021, ch. 551.) We did so, and we
concluded Hutchinson is entitled to be considered for
resentencing under the new law. (People v. Hutchinson (Mar. 14,
2023, B299078) [nonpub. opn.].) The remittitur issued May 18,
2023, returning jurisdiction to the trial court to consider,
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pursuant to Hutchinson’s first petition, whether to resentence
him.
DISPOSITION
The trial court’s October 12, 2022, ruling denying
Hutchinson’s second petition for rehearing is vacated.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, P. J.
We concur:
GRIMES, J.
WILEY, J.
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