People v. Edward CA2/4

Filed 7/18/16 P. v. Edward CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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