People v. Berg

34 Cal.App.5th 856

246 Cal.Rptr.3d 646

The PEOPLE, Plaintiff and Respondent,

v.Jason A. BERG, Defendant and Appellant.

D073749

Court of Appeal, Fourth District, Division 1, California.

Filed April 29, 2019

As Modified on Denial of Rehearing May 23, 2019

Angela Bartosik, Chief Deputy Public Defender, Whitney N. Antrim and Troy A. Britt, Deputy Public Defenders, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steven T. Oetting and Matthew C. Mulford, Deputy Attorneys General, for Plaintiff and Respondent.

AARON, J.

I.INTRODUCTION

In Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 701, 107 Cal.Rptr.2d 149, 23 P.3d 43 ( Griset II ), the California Supreme Court explained, "An unqualified affirmance ‘ordinarily sustains the judgment and ends the litigation.’ " The Griset II court applied this principle in concluding that a trial court lacked jurisdiction, after the unqualified affirmance of its prior judgment, to consider a party's renewed motion for summary judgment based on a change in the law. ( Id. at pp. 694–695, 701, 107 Cal.Rptr.2d 149, 23 P.3d 43.) The Griset II court ruled that the trial court's "later judgment [on the renewed motion for summary judgment] was void insofar as it encompassed or rested upon a redetermination of the merits of the litigation." ( Id. at p. 701, 107 Cal.Rptr.2d 149, 23 P.3d 43.)

In this case, the trial court granted petitioner Jason A. Berg's petition for writ of habeas corpus, and we issued an opinion in a prior appeal that constituted an "unqualified affirmance" ( Griset II , supra , 25 Cal.4th at p. 701, 107 Cal.Rptr.2d 149, 23 P.3d 43 ) of the order granting the petition. ( In re Berg (2016) 247 Cal.App.4th 418, 202 Cal.Rptr.3d 786 ( Berg I ), review granted July 27, 2016, S235277 briefing deferred pursuant to Cal. Rules of Court, rule 8.512(d)(2), review dismissed July 26, 2017.) After the issuance of the remittitur in Berg I ,¹ the People filed a pleading in the trial court styled as a "Request to Reconsider and Vacate Previous Order." (Some capitalization omitted.) In their request, the People asked the court to vacate its prior order granting Berg's petition for writ of habeas corpus in light of an anticipated change in the law. In January 2018, after the new law became effective, the trial court granted the People's request, vacated its prior order granting Berg's petition for writ of habeas corpus, and issued a new order denying the petition.

In his opening brief, Berg claims that the trial court lacked jurisdiction to vacate its prior order granting his petition for writ of habeas corpus, among other contentions. We asked the parties to file supplemental letter briefs addressing the following question:

"What effect, if any, does [ Griset II , supra ,] 25 Cal.4th 688 [107 Cal.Rptr.2d 149, 23 P.3d 43], have on the issues in this case? (See id. at p. 701 [107 Cal.Rptr.2d 149, 23 P.3d 43] [trial court did ‘not have jurisdiction to reopen or retry the case’ after ‘unqualified affirmance’ of prior judgment].)"²

After careful consideration of the parties' supplemental, as well as their principal, briefs, we conclude that the trial court lacked jurisdiction to vacate its prior order granting the petition for writ of habeas corpus based on a change in the law. The People advance no authority or compelling argument for why the controlling principles decided in Griset II do not apply here. Griset II makes clear that a trial court lacks jurisdiction, after an unqualified affirmance, to reconsider the merits of an action, even in the face of a change in the law.

Further, applying this aspect of Griset II to habeas corpus proceedings is entirely consistent with case law providing that "[a] final order or judgment granting relief to a petitioner on habeas corpus is a conclusive determination ...." ( In re Crow (1971) 4 Cal.3d 613, 623, 94 Cal.Rptr. 254, 483 P.2d 1206 ( Crow ); see Jackson v. Superior Court (2010) (Jackson ) 189 Cal.App.4th 1051, 1067, 118 Cal.Rptr.3d 81 [trial court loses jurisdiction to reconsider habeas ruling where ruling becomes "final and binding, or when the People filed a notice of appeal from the order"].) In short, we are aware of no principle of law that would permit the People, within this same habeas proceeding, "to revive this litigation after its final conclusion." ( Griset II , supra , 25 Cal.4th at p. 702, 107 Cal.Rptr.2d 149, 23 P.3d 43 ; see People v. Superior Court (Gregory) (2005) 129 Cal.App.4th 324, 331, 28 Cal.Rptr.3d 276 ( Gregory ) [stating that, in habeas proceeding, " ‘[r]emittitur transfers jurisdiction back to the inferior court so that it may act upon the case again, consistent with the judgment of the reviewing court ’ " (italics added) ].)

Accordingly, we conclude that the trial court's January 2018 order is void for lack of jurisdiction (see Griset II , supra , 25 Cal.4th at p. 701, 107 Cal.Rptr.2d 149, 23 P.3d 43 ), and that we must therefore reverse that order. ( Ibid. [stating that on an appeal from a void ruling taken by the trial court, "the reviewing court's jurisdiction is limited to reversing the trial court's void acts"].)³

II.

FACTUAL AND PROCEDURAL

BACKGROUND⁴

A. The commitment offenses

At the age of 17, Berg murdered victim Kettie Hancock during a burglary/robbery of a store at which Hancock was the manager. Berg's girlfriend, who worked at the store, let Berg and an accomplice into the store. Berg stabbed Hancock more than 21 times.

Approximately two weeks prior to the Hancock murder, Berg committed a robbery of a gas station. During that robbery, Berg stabbed the victim, Richard Couch, at least twice, causing Couch to suffer a deep puncture wound to his left arm.

B. The underlying criminal case

In October 1996, the People charged Berg with murder (§ 187) (count 1), and alleged the special circumstance that Berg committed the murder in the course of a robbery (§ 190.2, subd. (a)(17) ), and during the commission of a burglary (§ 190.2, subd. (a)(17) ). The People also alleged that Berg personally used a knife during the murder (§ 12022, subd. (b)(1) ). In addition, the People charged Berg with conspiracy to commit robbery and burglary (§ 182, subd. (a)(1) ) (count 2), robbery (§ 211) (count 3), and burglary ( § 459 ) (count 4) and alleged a knife use allegation with respect to each count (§ 12022, subd. (b)(1) ). Counts 1 through 4 were all related to the Hancock murder.

With respect to the incident involving Couch, the People charged Berg with attempted murder (§§ 664, 187, subd. (a) ) (count 5), assault with a deadly weapon and by means of force likely to produce great bodily injury (§ 245, subd. (a) ) (count 6), and robbery (§ 211) (count 7). The People also alleged numerous weapon and injury enhancements with respect to these counts.

Berg pled guilty to all charges and allegations in May 1997.

The trial court sentenced Berg to life without the possibility of parole (LWOP) on the murder conviction. Pursuant to section 654, the court stayed execution of the sentence on the knife enhancement (§ 12022, subd. (b)(1) ) on count 1. The court also stayed execution of the sentences on both the substantive offenses and the enhancements on counts 2 through 4, pursuant to section 654. With respect to the attempted murder charged in count 5 and related enhancements, the court imposed an aggregate term of 11 years to be served concurrently with the LWOP sentence. The court stayed execution of the sentence on count 6 pursuant to section 654 and imposed a seven-year sentence on count 7, to be served concurrently with the LWOP sentence.

C. Berg's petition for writ of habeas corpus

In December 2014, Berg filed a petition for writ of habeas corpus and a supporting brief in which he contended that the sentencing court's imposition of an LWOP sentence for a crime that he committed as a juvenile violated the prohibition against cruel and unusual punishment contained in the Eighth Amendment of the United States Constitution under Miller v. Alabama (2012) 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 ( Miller ) and People v. Gutierrez (2014) 58 Cal.4th 1354, 171 Cal.Rptr.3d 421, 324 P.3d 245 ( Gutierrez ). Berg supported his petition with relevant portions of the record in the underlying criminal case.

After the People filed an informal response and Berg filed a reply, the trial court issued an order to show cause as to why Berg's sentence should not be vacated and a resentencing hearing held.

The People filed a return and a supporting brief in which they argued that the sentencing court had given "full consideration to the relevant youth-related factors applicable to [Berg]," and contended that "further guidance by [the] Miller and Gutierrez decisions would not have altered the court's sentencing choice." (Boldface & capitalization omitted.) In the alternative, the People argued that Miller should not be applied retroactively to Berg's case, which was final at the time Miller was decided.

After Berg filed a denial and the habeas court held a hearing on the petition, the court issued an order granting the petition. In its July 2015 order granting the petition, the habeas court concluded that "current Eighth Amendment jurisprudence regarding the imposition of life sentences on juvenile offenders must be applied retroactively to persons serving actual or functional LWOP sentences." The habeas court further concluded that the sentencing court's statement of reasons for imposing an LWOP sentence on Berg did not comport with the requirements of Miller . The court ordered "that a writ of habeas corpus be issued; that [Berg's] sentence of LWOP be vacated; and that the matter be set for re-sentencing in the Superior Court."

D. Berg I

The People appealed the trial court's order granting the petition for writ of habeas corpus. (See Pen. Code, § 1506⁵ [authorizing the People to take an appeal from "a final order of a superior court made upon the...