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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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,

 Plaintiff and Respondent,

v.

JOHN LOUIS PALMER,

 Defendant and Appellant.

 2d Crim. No. B307289

(Super. Ct. No. F000180189001)

 (San Luis Obispo County)

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 pre1 All statutory references are to the Penal Code.
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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.) 
3

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.
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.