Opinion
F074138
12-04-2017
THE PEOPLE, Plaintiff and Respondent, v. MARC LYNDS REID II, Defendant and Appellant.
William C. Whaley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CRM028533B)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Merced County. Mark V. Bacciarini, Judge. William C. Whaley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Franson, J. and Meehan, J.
-ooOoo-
INTRODUCTION
As summarized in our partially published opinion decided on April 20, 2016, defendant Marc Lynds Reid II was arrested and charged with multiple felonies following the theft from a mausoleum of nine metal urns containing the cremated remains of 11 people. (People v. Reid (2016) 246 Cal.App.4th 822, 825-826.) Defendant was convicted by jury of all 23 charged counts: 11 counts of removal of human remains from the place of interment (Health & Saf. Code, § 7052, subd. (a)) (counts 1-11); 11 counts of grand theft (Pen. Code, § 487, subd. (a)) (counts 12-22); and one count of vandalism (§ 594, subd. (b)(1)) (count 23). (People v. Reid, supra, at p. 825.) We reversed two grand theft counts and stayed the vandalism sentence under section 654. (People v. Reid, supra, at pp. 826, 835.) Relevant to defendant's current appeal, we also found the trial court erred in denying defendant's Pitchess motion and we conditionally reversed with instructions to the trial court to conduct an in camera review pursuant to the procedure set forth in People v. Gaines (2009) 46 Cal.4th 172. (People v. Reid, supra, at p. 835.)
In accordance with recent changes to California law pertaining to the recognition of water cremation, or hydrolysis, as a means of final disposition of human remains, Health and Safety Code section 7052 has been amended effective January 1, 2018, but the amendment is not relevant to the issue raised on appeal. (Legis. Counsel's Dig., Assem. Bill No. 967, approved by Governor, Oct. 15, 2017 (2017-2018 Reg. Sess.) ch. 846, pp. 18-19, §§ 52-53.)
All further statutory references are to the Penal Code.
Pitchess v. Superior Court (1974) 11 Cal.3d 531. --------
The trial court subsequently conducted an in camera review of Detective Paul Johnson's personnel file on May 16, 2016, and found no discoverable information. The court reinstated the judgment and sentenced defendant on June 21, 2016. The court then resentenced defendant on July 11, 2016, and defendant filed a notice of appeal. Thereafter, on July 20, 2016, the California Supreme Court denied defendant's petition for review and remittitur issued. (Cal. Rules of Court, rule 8.272(b)(1)(A).)
In this appeal, defendant challenges the trial court's ruling following the in camera proceedings on the ground the court acted prior to the issuance of remittitur and, therefore, lacked jurisdiction. Defendant seeks reversal of the judgment and remand. Alternatively, defendant requests we conduct an independent review of the proceedings and the trial court's determination regarding the absence of discoverable information. (People v. Townsel (2016) 63 Cal.4th 25, 67-68.)
The People concede the trial court lacked jurisdiction to act and agree reversal and remand is proper. They also do not object to an independent review of the proceedings and the trial court's ruling.
We agree with the parties that the trial court lacked jurisdiction to act prior to the issuance of remittitur and, therefore, we reverse the judgment and remand the matter for further proceedings. (People v. Reid, supra, 246 Cal.App.4th at p. 835.)
DISCUSSION
Subject to certain exceptions not relevant here (People v. Scarbrough (2015) 240 Cal.App.4th 916, 923-924), "[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, citing People v. Sonoqui (1934) 1 Cal.2d 364, 367 & People v. Getty (1975) 50 Cal.App.3d 101, 107; accord, People v. Awad (2015) 238 Cal.App.4th 215, 223; People v. Saunoa (2006) 139 Cal.App.4th 870, 872; see § 1265; Cal. Rules of Court, rule 8.272). This rule "'"protect[s] the appellate court's jurisdiction by preserving the status quo until the appeal is decided,"'" and "'"prevents the trial court from rendering an appeal futile by altering the appealed judgment ... by conducting other proceedings that may affect it." [Citation.]'" (People v. Awad, supra, at p. 224, quoting Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1089; accord, People v. Scarbrough, supra, at p. 923; People v. Saunoa, supra, at p. 872.) After the appellate court resolves the appeal and the time has passed for the Supreme Court to grant review, the appellate court issues "a remittitur to remit the appellate court judgment to the trial court, to divest the appellate court of further jurisdiction, and to transfer jurisdiction back to the trial court." (People v. Awad, supra, at p. 223, citing Cal. Rules of Court, rule 8.272; accord, People v. Saunoa, supra, at p. 872.) "'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.'" (People v. Awad, supra, at p. 223, quoting Gallenkamp v. Superior Court (1990) 221 Cal.App.3d 1, 10; accord, People v. Saunoa, supra, at p. 872.)
Here, the trial court's actions comported with our directive to conduct an in camera review of Detective Johnson's personnel file, but the court did so while defendant's petition for review was pending before the California Supreme Court and before remittitur was issued. (Cal. Rules of Court, rule 8.272.) Accordingly, the trial court acted in the absence of jurisdiction and the judgment must be reversed. (People v. Saunoa, supra, 139 Cal.App.4th at p. 872; see People v. Scarbrough, supra, 240 Cal.App.4th at p. 923; People v. Superior Court (Gregory) (2005) 129 Cal.App.4th 324, 331.) In light of this conclusion, we do not reach defendant's alternative request for independent review of the in camera proceedings. (People v. Townsel, supra, 63 Cal.4th at pp. 67-68.)
DISPOSITION
The judgment is conditionally reversed and remanded for further proceedings consistent with People v. Reid, supra, 246 Cal.App.4th at page 835 once remittitur issues.