Trial court properly dismissed defendant’s second Penal Code section 1172.6 resentencing petition, which was filed while the denial of his first petition was on appeal. Convicted of murder in 2004, Cress filed a petition to vacate his conviction under section 1172.6. It was denied after the trial court found that Cress had the intent to kill when he aided and abetted the murder and, alternatively, that he was a major participant in the underlying felony who acted with reckless indifference to human life. He appealed. While his appeal was pending, Cress filed a second such petition. It was dismissed. On appeal, Cress argued the trial court lacked jurisdiction to dismiss the second petition. Held: Affirmed. Unless there is a statutory exception, the filing of a valid notice of appeal vests jurisdiction of the case in the appellate court and deprives the trial court of jurisdiction to make any order affecting the judgment. The trial court had jurisdiction to dismiss the petition because the order did not affect the judgment. Even if the trial court erred in dismissing the petition, any error was harmless. [Editor’s Note: Justice Raphael concurred, noting that “there is no reason to expect the trial court will ever be able to do anything but dismiss or deny” a second petition unless there is a change in law or circumstances.]
Case Summaries
