People v. Palmer CA2/6

Filed 9/15/21 P. v. Palmer CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.)