People v. Palmer CA2/6 ( 2021 )

Filed 9/15/21 P. v. Palmer CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
THE PEOPLE, 2d Crim. No. B307289
(Super. Ct. No. F000180189001)
Plaintiff and Respondent, (San Luis Obispo County)
v.
JOHN LOUIS PALMER,
Defendant and Appellant.
This is appellant John Louis Palmer’s second appeal in this
matter. In the first appeal, we reversed the trial court’s order
denying appellant’s petition to vacate his 1992 second degree
murder conviction and obtain resentencing under Penal Code
section 1170.95.1 (People v. Palmer (July 10, 2020, B298861)
[non-pub. opn.].) In the present, second appeal he challenges a
subsequent order denying the same petition. When the superior
court made the subsequent order, the remittitur had not yet been
issued in the first appeal. The parties agree that the pre-
1 All statutory references are to the Penal Code.
remittitur denial of the petition is void because the superior court
lacked subject matter jurisdiction. We conclude that all
proceedings in the lower court after the filing of the notice of
appeal in the first appeal and before the issuance of the
remittitur are null and void. We reverse and remand for further
proceedings. For the guidance of the superior court on remand,
we discuss a separate issue raised by appellant.
Procedural Background
Appellant was charged with the first degree murder of his
grandmother. She was killed by appellant’s accomplice during a
burglary of her residence.
Appellant pleaded guilty to second degree murder and first
degree residential burglary. He was sentenced to prison for four
years on the burglary and a concurrent term of 15 years to life on
the second degree murder.
In 2019 appellant petitioned for resentencing under newly
enacted section 1170.95. The statute provides that, if the
petitioner makes a prima facie showing of eligibility for relief,
“the court shall issue an order to show cause” and “hold a hearing
to determine whether” the petitioner is entitled to relief.
(§ 1170.95, subds. (c), (d)(1).) The superior court found that
appellant had made the requisite prima facie showing, but it did
not issue an order to show case. Instead, it denied the petition
because it concluded that section 1170.95 is unconstitutional.
Appellant appealed. We upheld the constitutionality of
section 1170.95. We reversed and remanded “with directions to
issue an order to show cause and set the matter for a hearing
pursuant to section 1170.95, subdivisions (c) and (d)(1).” (People
v. Palmer, supra, slip opn. at p. 11.)
2
The remittitur issued on September 1, 2020. Twelve days
earlier, on August 20, 2020, the superior court had denied
appellant’s petition after conducting a hearing. The court found
that appellant had not intended to injure his grandmother and
had not “personally participated in the murder.” The court
denied the petition because appellant could now be convicted of
murder under the felony-murder rule since he “was a major
participant and . . . he did act in reckless indifference and
disregard for human life.”
Senate Bill 1437
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (S.B. 1437)
amended section 189, insofar as it pertains to the felony-murder
rule, to add subdivision (e), which provides in relevant part: “A
participant in the perpetration or attempted perpetration of a
felony listed in subdivision (a) [e.g., burglary,] in which a death
occurs is liable for murder only if one of the following is
proven: . . . (3) The person was a major participant in the
underlying felony and acted with reckless indifference to human
life, as described in subdivision (d) of Section 190.2.” (Stats.
2018, ch. 1015, § 3.) S.B. 1437 amended section 188 to eliminate
liability for murder under the natural and probable consequences
doctrine. (People v. Gentile (2020) 10 Cal.5th 830, 843.)
Section 1170.95, added by S.B. 1437, provides in
subdivision (a), “A person convicted of felony murder or murder
under a natural and probable consequences theory may file a
petition with the court that sentenced the petitioner to have the
petitioner’s murder conviction vacated and to be resentenced on
any remaining counts when” certain conditions apply. One of the
conditions is that “[t]he petitioner could not be convicted of first
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or second degree murder because of changes to Section 188 or 189
made [by S.B. 1437] effective January 1, 2019.” (Id., subd. (a)(3).)
All Proceedings after Filing of Notice of Appeal and
before Issuance of Remittitur Are Null and Void
“The filing of a valid notice of appeal transfers jurisdiction
of a cause to the appellate court until the issuance of the
remittitur. [Citation.] Remittitur transfers jurisdiction from the
appellate court to the court whose decision was reviewed.
[Citation.] ‘Until remittitur issues, the lower court cannot act
upon the reviewing court’s decision; remittitur ensures in part
that only one court has jurisdiction over the case at any one
time.’ [Citation.] [¶] The [superior] court [in the present case]
had no jurisdiction to [issue an order to show cause and conduct a
hearing] prior to issuance of the remittitur. [Citation.] [¶] . . .
[T]he [superior] court’s failure to wait for remittitur . . . renders
all proceedings conducted [after the filing of the notice of appeal
and before issuance of the remittitur] . . . null and void.” (People
v. Saunoa (2006) 139 Cal.App.4th 870, 872.)
A similar situation occurred in People v. Burhop (2021) 65
Cal.App.5th 808. There, as here, the lower court denied a section
1170.95 petition on the ground that S.B. 1437 is unconstitutional.
The appellate court reversed and remanded the matter for
further proceedings. Before the remittitur issued the lower court
conducted a hearing, vacated the petitioner’s second degree
murder conviction, and resentenced him. The Court of Appeal
held that the orders adjudicating petitioner’s section 1170.95
petition “are null and void because they were made before the
remittitur was issued in [the appeal], and were thus made while
the [lower] court did not have subject matter jurisdiction to issue
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orders affecting [petitioner’s] section 1170.95 petition.” (Id. at
p. 813.)
Here, the lack of subject matter jurisdiction extends not
only to the superior court’s pre-remittitur orders, but also to the
pre-remittitur evidentiary hearing conducted pursuant to section
1170.95, subdivisions (c) and (d)(1). Thus, on remand the
superior court must start from scratch. The People correctly
note: “The case law . . . makes it clear that the entire August 20,
2020 evidentiary hearing is a nullity, and no part of it may be
used for any purpose.” “However wasteful another evidentiary
hearing may seem, ‘the trial court’s failure to wait for remittitur
before conducting the [hearing] renders all proceedings . . . , and
their results, null and void.’ (People v. Saunoa, supra, 139
Cal.App.4th at p. 872.)”
Disposition
The order denying appellant’s section 1170.95 petition is
reversed. The matter is remanded to the trial court with
directions to issue an order to show cause and conduct a de novo
hearing consistent with this opinion.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
TANGEMAN, J.
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Timothy S. Covello, Judge
Superior Court County of San Luis Obispo
______________________________
Sylvia W. Beckham, 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, Senior
Assistant Attorney General, Amanda V. Lopez, Michael J. Wise,
Deputy Attorneys General, for Plaintiff and Respondent.