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Name: People v. Burhop
Case #: E076057
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 06/04/2021

Court order vacating second degree murder conviction pursuant to Penal Code section 1170.95 is and void for lack of subject matter jurisdiction because it was made before the remittitur had issued from prior appeal. In 2001, Burhop was convicted of first degree murder and premeditated attempted murder. On appeal (Burhop I), the court concluded that substantial evidence supported the convictions under the natural and probable consequences doctrine. In 2015, the first degree murder conviction was reduced to second degree murder. In 2019, Burhop’s petition for resentencing pursuant to section 1170.95 was denied on the ground Senate Bill No. 1437 was unconstitutional. The court concluded SB 1437 is constitutional in Burhop II on August 28, 2020, and remanded the matter for further proceedings on the petition. Although the remittitur did not issue until October 30, and the People’s right to petition the California Supreme Court for review had not yet expired, the trial court resentenced Burhop on October 2 to a determinate sentence of 11 years on both convictions. The People appealed. Held: Reversed. Subject to limited exceptions, the filing of a valid notice of appeal vests jurisdiction in the appellate court until determination of the appeal and issuance of the remittitur. Until the remittitur issues, the lower court lacks jurisdiction over the subject matter of the order or judgment on appeal. This rule prevents the trial court from rendering an appeal futile by altering the appealed judgment by conducting other proceedings that may affect it. Burhop argued that the trial court retained jurisdiction to modify his sentence because SB 1437 rendered his sentence unauthorized. The court disagreed. An existing judgment of conviction and sentence remains presumptively authorized and unaffected by SB 1437 until a section 1170.95 petition is filed and adjudicated. Here, the trial court’s October 2 adjudication interfered with the process while Burhop’s entitlement to relief was still unsettled. [Editor’s Note: The premeditated attempted murder conviction was not explicitly reduced pursuant to section 1170.95, but the order reducing that count was nevertheless also held and void for the same reasons as the murder conviction.]