THE PEOPLE, Plaintiff and Appellant, v. TRAVIS BURHOP, Defendant and Respondent.
E076057
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Filed 6/4/21
NOT TO BE PUBLISHED IN OFFICIAL REPORTS.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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FRE03818-4)
OPINION
APPEAL from the Superior Court of San Bernardino County. Michael A. Smith, Judge. Reversed.
Jason Anderson, District Attorney, and Mark A. Vos, Deputy District Attorney, for Plaintiff and Appellant.
Richard Power, under appointment by the Court of Appeal, for
I. INTRODUCTION
On October 2, 2020, the superior court conducted a contested hearing and issued orders granting relief to defendant and respondent, Travis Burhop, on Mr. Burhop‘s petition to vacate his 2015 second degree murder conviction and to be resentenced pursuant to
Thus, in this appeal, the People claim that the October 2, 2020 orders adjudicating Mr. Burhop‘s
II. PROCEDURAL BACKGROUND
In 2001, a jury convicted Mr. Burhop of one count of first degree murder (
Mr. Burhop appealed, and we affirmed his judgment of conviction and sentence in People v. Burhop (Aug. 10, 2004, E032717 [nonpub. opn.]) (Burhop I). In Burhop I, we held, among other things, that substantial evidence supported Mr. Burhop‘s first degree murder and premeditated attempted murder convictions under the natural and probable consequences doctrine. (See Burhop II, supra, E073709.) That is, we concluded that substantial evidence showed that Mr. Burhop intentionally aided and abetted an assault by means of force likely to produce great bodily injury, and that the murder and premeditated attempted murder were natural and probable consequences of the intended aggravated assault. (Ibid.) The evidence adduced at Mr. Burhop‘s trial is detailed in Burhop I and Burhop II, and it is unnecessary to recount that evidence here.
In 2015, Mr. Burhop filed a petition for writ of habeas corpus, which the parties settled by stipulating to reduce Mr. Burhop‘s first degree murder conviction to second degree murder, ostensibly pursuant to People v. Chiu (2014) 59 Cal.4th 155, 165-167 (Chiu) (aider and abettor cannot be convicted of first degree premeditated murder based on natural and probable consequences doctrine). (See Burhop II, supra, E073709.) Mr. Burhop was then resentenced to 17 years to life in prison. (Ibid.)
In 2019, Mr. Burhop filed his instant
In 2019, the superior court initially denied Mr. Burhop‘s
On September 11 and 25, 2020, the court and defense counsel were about to conduct further proceedings on the petition based on our decision in Burhop II, but at the People‘s requests, the matter was continued—first to September 25, then to October 2. In court, on September 25, the court pointed out that the remittitur in Burhop II had not been issued.
On October 2, 2020, the court and counsel proceeded with the hearing on Mr. Burhop‘s
On Mr. Burhop‘s attempted murder conviction in count 2, the court vacated the jury‘s finding that the attempted murder was willful, deliberate, and premeditated, thus reducing Mr. Burhop‘s applicable sentence on count 2 to a determinate term rather than an indeterminate life term. (
III. DISCUSSION
In this appeal, the People do not challenge the court‘s October 2, 2020 orders on their merits. Rather, they claim only that the orders are null and void because they were made before the remittitur was issued in Burhop II, and were thus made while the court did not have subject matter jurisdiction to issue orders affecting Mr. Burhop‘s
Subject to limited exceptions, “[t]he 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; People v. Scarbrough (2015) 240 Cal.App.4th 916, 923.) “[T]he essence of remittitur” (a Latin term meaning, “‘it is sent back‘“) “is the returning or revesting of jurisdiction” to the lower court by the reviewing court. (Gallenkamp v. Superior Court (1990) 221 Cal.App.3d 1, 8, 10.) “Remittitur transfers jurisdiction back to the inferior court so that it may act upon the case again, consistent with the judgment of the reviewing court.” (Id. at p. 10.)
Until the remittitur issues, the lower court lacks jurisdiction over the subject matter of the order or judgment on appeal. (See People v. Cunningham (2001) 25 Cal.4th 926, 1044.) Thus, any order the lower court makes affecting an order or judgment on appeal is null and void if made before the remittitur issues. (People v. Alanis (2008) 158 Cal.App.4th 1467, 1472-1473; People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660 [orders are null and void where court lacks jurisdiction over the subject matter or the parties].) “So complete is this loss of jurisdiction effected by the appeal that even the consent of the parties has been held ineffective to reinvest the trial court with jurisdiction over the subject matter of the appeal and that an order based upon such consent would be a nullity.” (In re Lukasik (1951) 108 Cal.App.2d 438, 443.)
The purpose of
Here, the record shows that October 2, 2020 orders adjudicating Mr. Burhop‘s
As indicated, there are a limited number of exceptions to the rule that a lower court lacks subject matter jurisdiction to issue orders affecting an order or judgment on appeal. For example, the lower court retains jurisdiction during the pendency of an appeal to set aside a void judgment, but not a voidable one. (People v. Nelms (2008) 165 Cal.App.4th 1465, 1472.) In addition, the lower court retains jurisdiction during the pendency of an appeal to correct an unauthorized sentence. (Ibid.; People v. Ramirez (2008) 159 Cal.App.4th 1412, 1424.) “A judgment is void rather than voidable only if the trial court lacked subject matter jurisdiction.” (People v. Malveaux (1996) 50 Cal.App.4th 1425, 1434People v. Chagolla (1983) 144 Cal.App.3d 422, 434.)
Mr. Burhop maintains that, because Senate Bill 1437 is retroactive, it rendered his original 2001 sentence, and his modified 2015 sentence of 17 years to life on his second degree murder conviction, unauthorized sentences in which the trial court retained jurisdiction to modify before the remittitur issued in Burhop II. We disagree.
Nor did the retroactive enactment of Senate Bill 1437 spontaneously render any part of Mr. Burhop‘s operative 2015 judgment of conviction and sentence unauthorized when the legislation became effective on January 1, 2019. By adding
Until a
Mr. Burhop points out that the constitutionality of Senate Bill 1437 was “not the subject of any arguments or orders made on October 2, 2020.” Thus, he suggests the court had subject matter jurisdiction to adjudicate his petition on October 2. Again, we disagree. As we have explained, the court unequivocally lacked subject matter jurisdiction to adjudicate Mr. Burhop‘s petition, as it did on October 2, given that the remittitur in Burhop II did not issue until October 30. The merits of Mr. Burhop‘s petition was very much the subject of the pending appeal in Burhop II.
On October 2, 2020, the merits of the petition, particularly the constitutionality of Senate Bill 1437, was the subject matter of the pending appeal in Burhop II. When the court adjudicated the petition on October 2, our August 28 decision in Burhop II was final in this court (
Thus, on October 2, 2020, it was still possible for the People to file a petition for review in Burhop II, and for our Supreme Court to grant the petition, reverse our decision in Burhop II, and hold that Senate Bill 1437 was unconstitutional, and that Mr. Burhop was therefore not entitled to any relief on his petition. The court‘s October 2 adjudication of the petition interfered with this process by granting relief to Mr. Burhop on the petition, when the matter of the constitutionality of Senate Bill 1437, and Mr. Burhop‘s entitlement to any relief on his petition, was still unsettled.
IV. DISPOSITION
The October 2, 2020 orders are reversed, and the matter is remanded to the superior court for further proceedings on Mr. Burhop‘s
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS J.
We concur:
RAMIREZ P. J.
RAPHAEL J.