65 Cal.App.5th 808
Cal. Ct. App.2021Background
- In 2001 Burhop was convicted of first-degree murder and premeditated attempted murder; he was sentenced to 27 years to life.
- In 2015 a habeas petition was resolved by stipulation downgrading the murder conviction to second degree and resentencing to 17 years to life.
- Burhop filed a §1170.95 petition in 2019 after Senate Bill 1437; the trial court initially denied it on constitutional grounds and Burhop appealed (Burhop II).
- This court issued its opinion in Burhop II on August 28, 2020, reversing the denial and remanding for further proceedings; the remittitur issued October 30, 2020.
- Despite the remittitur not yet issuing, the superior court held a hearing on October 2, 2020, vacated the second-degree murder conviction, struck the premeditation finding on attempted murder, resentenced Burhop to 11 years, and stayed execution pending appeal.
- The People appealed, arguing the October 2 orders were null and void because the superior court lacked jurisdiction while Burhop II was pending remittitur; the Court of Appeal agreed and reversed and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court had jurisdiction to adjudicate the §1170.95 petition before the remittitur issued in Burhop II | Orders are null and void because appeal vested jurisdiction in appellate court until remittitur | Court could act because the appellate decision was final and the constitutionality issue was not being relitigated | Court held no jurisdiction; October 2 orders void; reversed and remanded |
| Whether retroactive application of SB 1437 made Burhop’s 2015 sentence unauthorized, permitting correction during appeal pendency | 2015 judgment remained authorized; retroactivity does not automatically render it unauthorized; §1170.95 petition procedure required | SB 1437’s retroactivity rendered the sentence unauthorized, so trial court could modify immediately | Court rejected this; an unauthorized sentence must have been unlawful when imposed; retroactivity alone did not permit action before remittitur |
| Validity of striking premeditation on attempted murder at the Oct 2 hearing | That order was part of the resentencing process tied to the §1170.95 petition and thus affected the appealed judgment and was void | Trial court could extend Chiu and modify the attempted-murder finding independent of §1170.95 | Court held that order also was void for lack of jurisdiction despite not being grounded in §1170.95 |
Key Cases Cited
- People v. Perez, 23 Cal.3d 545 (1979) (notice of appeal vests jurisdiction in appellate court until remittitur)
- Gallenkamp v. Superior Court, 221 Cal.App.3d 1 (1990) (remittitur revests jurisdiction in the trial court)
- People v. Cunningham, 25 Cal.4th 926 (2001) (trial court lacks jurisdiction over matters on appeal until remittitur)
- People v. Alanis, 158 Cal.App.4th 1467 (2008) (orders affecting appealed judgment are null and void where trial court lacks jurisdiction)
- Townsel v. Superior Court, 20 Cal.4th 1084 (1999) (appeal rule preserves status quo to protect appellate jurisdiction)
- People v. Nelms, 165 Cal.App.4th 1465 (2008) (limited exceptions—void judgments and unauthorized sentences—where trial court retains some authority)
- People v. Scott, 9 Cal.4th 331 (1994) (defines "unauthorized sentence" as one that could not lawfully be imposed)
- People v. Chiu, 59 Cal.4th 155 (2014) (aider and abettor cannot be convicted of first-degree premeditated murder under natural and probable consequences)