People v. Berg

Filed 4/29/19
CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D073749

Plaintiff and Respondent,

v. (Super. Ct. Nos. SCD123437,
HC21858)
JASON A. BERG,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County,

Charles G. Rogers, Judge. Reversed.

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.
 I.

INTRODUCTION

In Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 701 (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.) 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.)

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) of the order granting the petition. (In

re Berg (2016) 247 Cal.App.4th 418 (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

1 We take judicial notice of our opinion in Berg I and the record from that appeal,
sua sponte. (See Evid. Code, §§ 459 ["The reviewing court may take judicial notice of
any matter specified in [Evidence Code] Section 452"], 452, subd. (d) [permitting a court
to take judicial notice of the "[r]ecords of (1) any court of this state"].)
2
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, have on
the issues in this case? (See id. at p. 701 [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

2 Neither party cited Griset II in the trial court or in this court. In their supplemental
brief, the People observed that both parties cited In re Rosenkrantz (2002) 29 Cal.4th
616, 668 (Rosenkrantz) in their principal briefs in this court, and that Rosencrantz cited
Griset II. Rosenkrantz cited Griset II for the propositions that "[t]he doctrine of law of
the case . . . governs later proceedings in the same case," (id. at p. 668, italics omitted)
and that "[t]he doctrines of res judicata and collateral estoppel can give conclusive effect
to a former judgment or to the determination of an issue in a different proceeding." (Ibid.
at fn. 15.)
As indicated by our supplemental briefing request, in Griset II, the Supreme Court
also ruled that a trial court does "not have jurisdiction to reopen or retry the case" after an
"unqualified affirmance" of a prior judgment (Griset II, supra, 25 Cal.4th at p. 701). The
Griset II court expressly distinguished this jurisdictional limitation from the doctrines of
law of the case, res judicata, and collateral estoppel, mentioned above. (Id. at pp. 701–
702.) We afforded the parties the opportunity to discuss Griset II by way of
supplemental briefing since Rosenkrantz did not discuss the jurisdictional limitation
aspect of the case and the parties did not address it in either the trial court or their
principal briefs in this court.
3
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 (Crow); see Jackson v. Superior Court (2010) (Jackson) 189

Cal.App.4th 1051, 1067 [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; see People v. Superior Court (Gregory) (2005) 129

Cal.App.4th 324, 331 (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), 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

4
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.

3 In light of our conclusion, we need not consider the other contentions that Berg
raises on appeal.

4 Parts II.A–C, post, are drawn from our opinion in Berg I.
5
 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 (Miller) and People v.

Gutierrez (2014) 58 Cal.4th 1354 (Gutierrez). Berg supported his petition with relevant

6
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."

7
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 return of a writ of habeas corpus discharging a

defendant or otherwise granting all or any part of the relief sought"].)6 We affirmed the

trial court's order granting Berg's petition for writ of habeas corpus. (Berg I, supra, 247

Cal.App.4th 418.) The Supreme Court granted the People's petition for review and

deferred action in the matter pending consideration of a related issue in In re Kirchner

(2016) 244 Cal.App.4th 1398, review granted May 18, 2016, S233508. (Berg I, supra,

review granted July 27, 2016, S235277, briefing deferred pursuant to Cal. Rules of Court,

rule 8.512(d)(2).) After issuing its opinion In re Kirchner (2017) 2 Cal.5th 1040, the

Supreme Court dismissed review in this case and remanded the matter to this court.

(Berg I, supra, S235277, review dismissed July 26, 2017.)

5 Unless otherwise specified, all subsequent statutory references are to the Penal
Code.

6 While the appeal was pending, the People filed an application in the trial court for
a stay of the execution of the order granting Berg's petition for relief pursuant to section
1506. Section 1506 provides in relevant part:
"If the order [on the return of a writ of habeas corpus] grants relief
other than a discharge or release from custody, the trial court or the
court in which the appeal or petition for hearing is pending may,
upon application by the people, in its discretion, and upon such
conditions as it deems just stay the execution of the order pending
final determination of the matter."
Berg filed an opposition to the application for a stay. In August 2015, the trial
court granted the People's application and stayed the execution of its order granting
Berg's habeas petition.
8
 We issued our remittitur to the trial court on August 2, 2017.

E. Proceedings after the issuance of the remittitur in Berg I

The People filed a document in the trial court on August 29, 2017 entitled,

"Request to Set Status Conference Week of October 16, 2017, Based on Anticipated

Mootness of Resentencing Hearing."7 (Some capitalization omitted.) The People

requested that a status conference be set in the case because a pending legislative change

might moot the need for a resentencing hearing.

The People explained that the Legislature was in the "final stages" of passing a

bill, Senate Bill No. 394 (2017–2018 Reg. Sess.) (Senate Bill No. 394), that " 'would

make a person who was convicted of a controlling offense that was committed before the

person had attained 18 years of age and for which a life sentence without the possibility

of parole has been imposed eligible for release on parole . . . during his or her 25th year

of incarceration at a youth offender parole hearing.' " (Quoting Legis. Counsel's Dig.,

Sen. Bill No. 394 (2017–2018 Reg. Sess.).) The People stated that Senate Bill No. 394

would accomplish this result by making such persons eligible for a Youth Offender

Parole Hearing pursuant to section 3051.

Citing People v. Franklin (2016) 63 Cal.4th 261, 279–280 (Franklin), the People

maintained that Senate Bill No. 394 mooted Berg's claim that his sentence was

unconstitutional under the Eighth Amendment. In Franklin, the California Supreme

Court held that the enactment of Penal Code section 3051, together with two related

7 The People indicated that they filed this document in "anticipation of [an] informal
status conference" in the case.
9
statutes in Senate Bill No. 260 (2013–2014 Reg. Sess.) (Senate Bill No. 260), mooted a

defendant's claim that his sentence of 50 years to life for a crime that he committed as a

juvenile was unconstitutional under Miller because it was the functional equivalent of an

LWOP sentence. (Franklin, supra, at pp. 279–280). The Franklin court reasoned:

"In sum, the combined operation of section 3051 [and the related
statutes] means that Franklin is now serving a life sentence that
includes a meaningful opportunity for release during his 25th year of
incarceration. Such a sentence is neither LWOP nor its functional
equivalent. Because Franklin is not serving an LWOP sentence or
its functional equivalent, no Miller claim arises here. The
Legislature's enactment of Senate Bill No. 260 has rendered moot
Franklin's challenge to his original sentence under Miller." (Ibid.)

The People explained that while former section 3051, as originally enacted,

excluded juvenile LWOP offenders, Senate Bill No. 394 would extend the benefits of

section 3051 to such persons. The People argued that Berg's sentence would be lawful

under Miller under the amended version of section 3051 because he would have a

" 'meaningful opportunity for release no more than 25 years into [his] incarceration.' "

(Quoting Franklin, supra, 63 Cal.4th at p. 277.)

The trial court issued an ex part minute order on August 31 that stated in relevant

part:

"Counsel and the court meet in an unreported chambers conference
to address, among other things, the possible impact on this case of
pending legislation that would make juvenile offenders sentenced to
LWOP subject to the provisions of Penal Code section 3051 (SB
394.) The parties agree to a further status conference to be
conducted before this court on October 27, 2017, at 10:00 a.m., by
which time it should be known if the legislation passes. At that
hearing, the parties may further address the effects of that legislation
on Mr. Berg's case. It is the intention of the court that, pending that
hearing, the case will be maintained . . . status quo, and all issues and

10
 claims that each party may have are preserved." (Boldface omitted.)

The People filed a supplemental letter brief on October 25, 2017 informing the

court that Senate Bill No. 394 had been enacted into law and would become effective on

January 1, 2018. The People restated their argument that the change in the law mooted

Berg's Miller claim and requested that the court deny his habeas petition.

The court held an unreported chambers conference with counsel on November 9

and set the matter for a further hearing on December 15.8

The People filed a "Request to Reconsider and Vacate Previous Order," (some

capitalization omitted) on December 13 asking that the court vacate its prior order

granting the petition for writ of habeas corpus in light of the adoption of Senate Bill No.

394. In their brief, the People noted that in People v. Lozano (2017) 16 Cal.App.5th

1286, 1292 (Lozano), review granted February 21, 2018, S246013, review dismissed as

moot August 29, 2018,9 the Court of Appeal had concluded that the adoption of Senate

Bill No. 394 mooted a defendant's claim that her LWOP sentence violated Miller. With

respect to Berg's case, the People argued that "because the appeal is now complete,

jurisdiction has reverted back to [the trial] court." The People further contended that the

trial court "must use its inherent power to modify its own order." (Capitalization &

8 The court ordered its November 9 minute order to be issued nunc pro tunc as to
October 27.

9 In its order dismissing review in Lozano, the Supreme Court stated, "The above-
captioned matter is dismissed as moot in light of Senate Bill No. 394, signed into law on
October 11, 2017." (Lozano, supra, S246013, review dismissed as moot August 29,
2018.)

11
boldface omitted.)

Berg filed an opposition to the People's request, in which he argued that the trial

court "lack[ed] jurisdiction" to refuse to provide him with a "constitutionally sufficient

resentencing hearing," as required by this court's decision in Berg I, among other

arguments. Berg maintained in relevant part, "A trial court has no jurisdiction after

remand from the Court of Appeal to do anything other than follow the directions of the

remand order . . . ." (Citing People v. Dutra (2006) 145 Cal.App.4th 1359 (Dutra).)10

F. The trial court's January 2018 order

The trial court held a hearing on January 12, 2018 at which the parties presented

oral argument.11 The court issued a final order granting the People's request on January

23. The trial court explained that it understood that Berg had argued that the trial court

"is constrained to follow the Court of Appeal opinion and remittitur," and stated that the

resolution of Berg's contention "necessarily turns on the effect of the decision by the

Court of Appeal affirming the grant of the petition."

The trial court noted that in Dutra, the Court of Appeal stated, " 'Where a

reviewing court reverses a judgment with directions . . . the trial court is bound by the

directions given and has no authority to retry any other issue or to make any other

findings. Its authority is limited wholly and solely to following the directions of the

10 Berg also maintained that Senate Bill No. 394 did not moot his claim. In addition,
Berg argued that Lozano was distinguishable because, unlike in this case, the defendant
in that case had not had her sentence vacated by an order granting a petition of habeas
corpus.

11 On December 15, 2017, the court continued the hearing until January 12, 2018.
12
reviewing court.' " (Quoting Dutra, supra, 145 Cal.App.4th at p. 1367.) However, the

trial court distinguished Dutra on the ground that in Berg I, this court did not issue any

specific directions, but rather, as the trial court stated, "simply affirmed the granting of

the petition."

The trial court further concluded that it possessed inherent power to reconsider its

prior ruling granting Berg's habeas petition. In addition, on the merits of the People's

request, the court ruled that the adoption of Senate Bill No. 394 rendered Berg's claim

moot. (Citing Lozano, supra, 16 Cal.App.5th at p. 1289.) The court summarized its

ruling by stating:

"The court's order of July 16, 2015, granting the writ of habeas
corpus, is hereby vacated. A new order is entered denying the
petition, and the parties are restored to the status quo ante.

"The sentence and judgment as originally pronounced are reinstated,
subject, however, to the modification specified by SB 394 that the
sentence of LWOP is no longer in fact 'without the possibility of
parole,' because he may seek parole after 25 years."

G. The current appeal

Berg appeals from the trial court's January 23, 2018 order.12

12 In their respondent's brief, the People state, "Berg filed a timely notice of appeal
from the post-judgment order that vacated the grant of a new sentencing hearing." (See
§ 1237, subd. (b) [stating that an appeal may be taken "[f]rom any order made after
judgment, affecting the substantial rights of the party"].) We agree.
"[A]n order granting a petition for writ of habeas corpus is an appealable order
analogous to a final judgment." (Jackson, supra, 189 Cal.App.4th at p. 1064.)
Therefore, the trial court's January 23, 2018 order vacated a prior order that was
"analogous to a final judgment." (Ibid.) Further, the trial court's January 23, 2018 order
stated that Berg's original sentence remained in effect, as modified by the change in the
law effectuated by Senate Bill No. 394. Thus, the trial court's January 23, 2018 order
13
 III.

DISCUSSION

The trial court lacked jurisdiction to reconsider its prior order granting Berg's petition
for writ of habeas corpus after our unqualified affirmance of the court's prior order

Berg claims that the trial court "lacked jurisdiction on remand to vacate the

previous order granting the writ of habeas corpus." (Capitalization & boldface omitted.)

A. Governing law

1. Griset II

In Griset II, supra, 25 Cal.4th 688, the Fair Political Practices Commission

(FPPC) instituted administrative enforcement action proceedings against a political

candidate (Griset) and two entities that Griset controlled (collectively "plaintiffs") based

on allegations that plaintiffs had violated Government Code section 84305. That statute

requires "candidates for public office, and individuals or groups supporting or opposing a

candidate or ballot measure, to identify themselves on any mass mailings they send to

prospective voters." (Griset II, supra, at p. 692.) Plaintiffs filed an action against the

FPPC in which they challenged the constitutionality of Government Code section 84305

and sought to enjoin the administrative proceedings. (Griset II, at p. 692.) After the trial

court denied plaintiffs' motion for a preliminary injunction, the FPPC fined plaintiffs in

the administrative proceedings. (Id. at p. 693.)

Plaintiffs subsequently filed an amended and supplemental complaint that

modified the original judgment sentencing Berg to LWOP. Accordingly, we conclude
that the January 23, 2018 order constitutes a postjudgment order substantially affecting
Berg's rights, and therefore is appealable. (See § 1237, subd. (b).)
14
included a cause of action seeking a writ of administrative mandate against the FPPC.

(Griset II, supra, 25 Cal.4th at p. 693.) In addition, plaintiffs brought three other related

causes of action for declaratory and injunctive relief. (Ibid.) All of plaintiffs' causes of

action were based on the premise that Government Code section 84305 was

unconstitutional. (Griset II, supra, at p. 693.) Plaintiffs filed motions seeking a

peremptory writ of mandate with respect to their first cause of action, for summary

adjudication as to the other causes of action, and for summary judgment. (Ibid.)

The trial court issued an order denying the petition for writ of mandate and

denying plaintiffs' motions for summary adjudication and summary judgment. (Griset II,

supra, 25 Cal.4th at pp. 693–694.) The Court of Appeal affirmed the trial court's ruling

denying the petition for writ of mandate. (Id. at p. 694.) The California Supreme Court

granted plaintiffs' petition for review and affirmed the judgment of the Court of Appeal in

Griset v. Fair Political Practices Com. (1994) 8 Cal.4th 851, 855 (Griset I). (Griset II,

supra, at p. 694.) On December 29, 1994, the California Supreme Court issued its

remittitur in Griset I. The United States Supreme Court denied plaintiffs' certiorari

petition on April 24, 1995. (Griset II, at p. 694.)

In August 1995, plaintiffs " 'renewed' " (Griset II, supra, 25 Cal.4th at p. 694) their

motions for summary adjudication and summary judgment with respect to the causes of

action for declaratory and injunctive relief on the ground that an intervening change in

the law rendered Government Code section 84305 unconstitutional. (Griset II, supra, at

15
p. 694.) The trial court granted summary judgment in favor of the FPPC.13 (Id. at p.

694.) Plaintiffs appealed from the ensuing judgment, and the Court of Appeal reversed

the judgment for the FPPC based on the intervening change in the law. (Id. at p. 695.)

The California Supreme Court granted the FPPC's petition for review. (Ibid.)

The Griset II court first concluded that the trial court's decision in Griset I had

been an appealable judgment because it "disposed of all causes of action framed by the

pleadings, leaving no substantive issue for future determination." (Griset II, supra, 25

Cal.4th at p. 700.) The Griset II court then considered whether, after its prior decision

became final in Griset I, the trial court and the Court of Appeal had jurisdiction to

reconsider the merits of the case, including the constitutionality of Government Code

section 84305.

As to this issue, the Griset II court explained that the scope of a trial court's

jurisdiction after a decision from a reviewing court is contained in the remittitur:

"The order of the reviewing court is contained in its remittitur, which
defines the scope of the jurisdiction of the court to which the matter
is returned. 'The order of the appellate court as stated in the
remittitur, "is decisive of the character of the judgment to which the
appellant is entitled. The lower court cannot reopen the case on the
facts, allow the filing of amended or supplemental pleadings, nor
retry the case, and if it should do so, the judgment rendered thereon
would be void." ' [Citations.]" (Griset II, supra, 25 Cal.4th at p.
701; accord Snukal v. Flightways Manufacturing, Inc. (2000) 23
Cal.4th 754, 774 ["the terms of the remittitur define the trial court's

13 The Griset II court explained that the trial court granted summary judgment in
favor of the FPPC on the basis of a former local rule of court that "allowed a trial court to
grant summary judgment in favor of a party opposing a motion for summary judgment
even though that party had not itself moved for summary judgment." (Griset II, supra,
25 Cal.4th at p. 695, fn. 2.)
16
 jurisdiction to act"].)

The Griset II court then examined the scope of the trial court's jurisdiction upon

the issuance of the remittitur from Griset I as follows:

"In Griset I, supra, 8 Cal.4th at page 867, we affirmed without
directions the judgment of the Court of Appeal, which in turn had
rendered an unqualified affirmance of the superior court's judgment.
An unqualified affirmance 'ordinarily sustains the judgment and ends
the litigation.' [Citation.] Once our decision in Griset I became
final, the superior court did not have jurisdiction to reopen or retry
the case, which the court purported to do when it allowed plaintiffs
in 1995 to 'renew[ ]' their 1991 motions for summary adjudication
and summary judgment. Therefore, the superior court's later
judgment was void insofar as it encompassed or rested upon a
redetermination of the merits of the litigation." (Griset II, supra, 25
Cal.4th at p. 701.)

The Griset II court also explained that the Court of Appeal had erred in relying on

the " 'intervening change in controlling law' " (Griset II, supra, 25 Cal.4th at p. 701)

exception in the law of the case doctrine and a similar exception to the doctrines of res

judicata and collateral estoppel to reverse the judgment of the trial court, reasoning:

"Our decision in Griset I, once it became final, terminated this
litigation as to all causes of action in plaintiffs' complaint. Because
plaintiffs thereafter did not commence a separate lawsuit, but instead
improperly sought to revive this litigation after its final conclusion,
there was no pending legal proceeding to which the above
mentioned doctrines or their exceptions properly could be applied."
(Griset II, supra, at p. 702.)

Finally, the Griset II court explained that when reviewing a trial court's void

ruling, "the reviewing court's jurisdiction is limited to reversing the trial court's void

acts." (Griset II, supra, 25 Cal.4th at p. 701.) Accordingly, the Griset II court directed

the Court of Appeal to "reverse as void," the trial court's judgment issued after the

17
issuance of the remittitur in Griset I. (Griset II, supra, at p. 702.)

2. The law governing petitions for habeas corpus

a. Relevant statutory provisions

Statutory procedures governing habeas corpus proceedings are outlined in sections

1473 through 1509.1.14 Section 1506 governs the appeal of a final order on a petition for

writ of habeas corpus and provides in relevant part:

"An appeal may be taken to the court of appeal by the people from a
final order of a superior court made upon the return of a writ of
habeas corpus discharging a defendant or otherwise granting all or
any part of the relief sought, in all criminal cases. . . . If the people
appeal from an order granting the discharge or release of the
defendant, or petition for hearing in either the court of appeal or the
Supreme Court, the defendant shall be admitted to bail or released
on his own recognizance or any other conditions which the court
deems just and reasonable, subject to the same limitations, terms,
and conditions which are applicable to, or may be imposed upon, a
defendant who is awaiting trial. If the order grants relief other than a
discharge or release from custody, the trial court or the court in
which the appeal or petition for hearing is pending may, upon
application by the people, in its discretion, and upon such conditions
as it deems just stay the execution of the order pending final
determination of the matter."

Courts interpreting section 1506 have stated that a court's order staying execution

of a final habeas order under this statute operates during the pendency of the appeal. For

example, in People v. Huff (1975) 46 Cal.App.3d 361, 365 (Huff), the Court of Appeal

interpreted the stay provision of section 1506 as providing that "if an appeal is taken, and

14 California Rules of Court, rules 4.550–4.552 prescribe the procedures governing
petitions for habeas corpus in the trial court. California Rules of Court, rule 8.388
governs appeals from an order granting a petition for writ of habeas corpus. Neither the
parties nor our own research has uncovered any provisions within these rules that is
relevant to the issues in this appeal.
18
a request for a stay of the order is made and granted, then the order is stayed pending

appeal . . . ." (Italics added.) Similarly, in People v. Bilbrey (2018) 25 Cal.App.5th 764,

774 (Bilbrey), the Court of Appeal observed that a stay issued pursuant to section 1506

operates "during the pendency of the appeal," (italics added) and observed that "a

defendant who is granted partial relief—something short of release or discharge—may

benefit from execution of the favorable order pending the People's appeal unless the trial

or appellate court exercises its discretion to grant a stay requested by the People," (italics

omitted).)

b. Relevant case law

In Jackson, supra, 189 Cal.App.4th 1051, the Court of Appeal considered the

scope of a trial court's authority and jurisdiction to reconsider and vacate an order

granting a petition for writ of habeas corpus during the period within which the People

could file an appeal from the order. (Jackson, supra, at pp. 1056–1057.) The Jackson

court began its analysis by explaining the nature of a habeas corpus proceeding as

follows:

" 'The Legislature has labeled [a habeas corpus proceeding] a
"Special Proceeding[ ] of a Criminal Nature" [citation], but the label
is not dispositive. [Citations.] It is not itself a criminal case, and it
cannot result in added punishment for the petitioner. Rather, it is an
independent action the defendant in the earlier criminal case
institutes to challenge the results of that case. [Citation.]' (In re
Scott (2003) 29 Cal.4th 783, 815.) In Scott, our Supreme Court held
that a habeas corpus proceeding is civil in nature for purposes of
deciding how the petitioner may assert the privilege against self-
incrimination. (Ibid.) However, the court stated that it 'need not,
and [did] not, decide whether a habeas corpus proceeding is civil or
criminal for other purposes. [Citation.] It is a special proceeding
and not entirely analogous to either category. [Citation.]' (Id. at p.

19
 816, fn. 6; but see In re Barnett (2003) 31 Cal.4th 466, 478, fn. 10
['habeas corpus proceedings like the one before us are properly
viewed as civil actions designed to overturn presumptively valid
criminal judgments and not as part of the criminal process itself'].)"
(Id. at p. 1063.)

The Jackson court stated that an order granting a habeas petition is "analogous to a

final judgment" (Jackson, supra, 189 Cal.App.4th at p. 1064), explaining:

" 'An "order on writ of habeas corpus" is the court's order granting or
denying the relief sought by the petitioner.' [Citation.] No appeal
lies from an order denying a petition for writ of habeas corpus.
[Citations.] However, the People may file an appeal from an order
granting a petition for writ of habeas corpus even if the order does
not discharge a prisoner from custody. [Citations.] Therefore, an
order granting a petition for writ of habeas corpus is an appealable
order analogous to a final judgment." (Ibid.)

Ultimately, the Jackson court concluded that, in light of the trial court's broad

" 'inherent powers,' " (Jackson, supra, 189 Cal.App.4th at p. 1065) to reconsider

" 'interim rulings' " (ibid., quoting People v. Castello (1998) 65 Cal.App.4th 1242, 1246

(Castello)), a trial court may "reconsider and vacate an order granting a petition for writ

of habeas corpus within the 60–day time period for the People to file an appeal from the

order, as long as no appeal has yet been filed." (Jackson, supra, at pp. 1056–1057.)

However, the Jackson court was careful to explain that the trial court's authority to

reconsider its rulings ended when the trial court lost jurisdiction of the matter due to

finality or the filing of an appeal. In this regard, the Jackson court stated:

"[T]he court had the inherent power to reconsider its order granting
the petition for writ of habeas corpus, and that power would only end
with its loss of jurisdiction. [Citation.] The loss of jurisdiction for
purposes of reconsideration of the ruling would occur when the
order became final and binding, or when the People filed a notice of
appeal from the order." (Jackson, supra, 189 Cal.App.4th at p.

20
 1067, italics added.)

The Jackson court's conclusion that an order granting a petition for writ of habeas

corpus is "analogous to a final judgment" (Jackson, supra, 189 Cal.App.4th at p. 1064) is

in accord with case law. For example, an order granting habeas relief constitutes a "final

judgment" (Crow, supra, 4 Cal.3d at p. 616), for purposes of the doctrine of res judicata.

(Id. at p. 623.) The Crow court explained:

"The social policies which underlie the doctrine of res judicata and
the high purpose of the writ of habeas corpus also conjoin in barring
a governmental attempt to relitigate the grant of relief in habeas
corpus. The writ of habeas corpus affords an efficacious means of
vindicating an individual's fundamental rights. [Citation.] The
doctrine of res judicata prevents the relitigation of issues determined
by a final judgment in a prior action between the same parties or
those in privity with the original parties. [fn. omitted.] [Citation.]
A final order or judgment granting relief to a petitioner on habeas
corpus is a conclusive determination that he is illegally held in
custody; it is res judicata of all issues of law and fact necessarily
involved in that result." (Crow, supra, at p. 623; see In re Ditsch
(1984) 162 Cal.App.3d 578 [applying law of the case doctrine in
habeas proceeding].)

21
 Similarly, in Gregory, supra, 129 Cal.App.4th 324, the Court of Appeal explained

that a final order granting a habeas petition is not interlocutory or interim in nature and

that the " ' "one final judgment" ' rule" (Gregory, supra, at p. 330) applies to such

orders.15 (See id. at pp. 330–331 ["This rule [(i.e., the one final judgment rule)] does not

change simply because habeas corpus proceedings are involved, and because the statute

authorizing an appeal therein refers to a 'final order' instead of a 'final judgment.'

(§ 1506.)"].) Further, the Gregory court explained that after a decision of a reviewing

court in a 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.' " (Id. at p. 331.)

B. Application

Griset II makes clear that a trial court does "not have jurisdiction to reopen or retry

[a] case" after "unqualified affirmance" of a prior final judgment. (Griset II, supra, 25

Cal.4th at p. 701.) Griset II is consistent with well-established principles of finality

(People v. DeLouize (2004) 32 Cal.4th 1223, 1231 ["judicial error in the making of a

15 "The ' "one final judgment" ' rule is 'a fundamental principle of appellate practice
that prohibits review of intermediate rulings by appeal until final resolution of the case.
[Citation.] The theory underlying the rule " 'is that piecemeal disposition and multiple
appeals in a single action would be oppressive and costly, and that a review of
intermediate rulings should await the final disposition of the case.' " [Citation.]' "
(Gregory, supra, 129 Cal.App.4th at p. 330.)

22
final order or judgment 'may not be corrected except pursuant to statutory procedures'16

or on the limited grounds available for a collateral attack"]) and remains good law. (See

People v. Picklesimer (2010) 48 Cal.4th 330, 337 (Picklesimer) ["Following appellate

affirmance of a trial court judgment and issuance of a remittitur, 'the trial court is revested

with jurisdiction of the case, but only to carry out the judgment as ordered by the

appellate court' "]; Ducoing Management, Inc. v. Superior Court (2015) 234 Cal.App.4th

306, 313 [citing Griset II for proposition that "trial court may not reopen case after

appellate court's unqualified affirmance"]; Safaie v. Jacuzzi Whirlpool Bath, Inc. (2011)

192 Cal.App.4th 1160, 1173 [citing Griset II for proposition that "trial court had no

jurisdiction to rule on a renewed motion after an appeal because the entire case had been

effectively disposed of by a final judgment"].)

Further, courts have concluded that an order granting a petition for writ of habeas

corpus is "analogous to a final judgment" (Jackson, supra, 189 Cal.App.4th at p. 1064;

Crow, supra, 4 Cal.3d at p. 616 [describing an order granting a petition for writ of habeas

corpus as a "final judgment"].) In addition, the Jackson court's description of a trial

court's jurisdiction to reconsider habeas rulings is fully consistent with an application of

Griset II in this context. (See Jackson, supra, at p. 1067 ["The loss of jurisdiction for

purposes of reconsideration of the ruling would occur when the order became final and

16 We are unaware of any statutory authority authorizing a trial court to reconsider a
final order granting a petition for writ of habeas corpus on remand after the unqualified
affirmance of the order.
23
binding, or when the People filed a notice of appeal from the order."])17 Further, courts

in the habeas context have applied generally applicable doctrines of finality (see e.g.,

Crow, supra, at p. 623; Gregory, supra, 129 Cal.App.4th at p. 331), and have stated that

such proceedings are designed to provide an "efficacious means of vindicating an

individual's fundamental rights." (Crow, at p. 623.) Indeed, if anything, section 1506

evinces a Legislative intent for the timely execution of orders granting petitions for

habeas corpus since, unlike "the general jurisdiction rule,"18 absent a stay, the trial court

has jurisdiction to execute a habeas order during the pendency of the People's appeal

from that order. (Bilbrey, supra, 25 Cal.App.5th at p. 776.)19 In addition, the People

have not cited any authority, in any context, in which a trial court may reexamine a final

ruling akin to a final judgment after that ruling has been affirmed by a reviewing court.20

17 In this case, the People did file a notice of appeal from the trial court's 2015 order
granting Berg's petition.

18 " 'The general rule is that " ' "[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" [citation], thereby divesting the trial court of jurisdiction
over anything affecting the judgment. [Citations.]' " ' [Citations.]" (Bilbrey, 25
Cal.App.5th at p. 771, italics omitted.) In the habeas context, however, this rule does not
apply and a trial court has jurisdiction to execute its order despite a pending appeal,
absent the issuance of a stay by the issuing or reviewing court under section 1506.
(Bilbrey, supra, at p. 776.)

19 Historically, orders granting petitions for writ of habeas corpus were imbued with
an even greater attribute of finality in that the People had no right of appeal from such
orders. (See Bilbrey, supra, 25 Cal.App.5th at p. 772.)

20 As noted in part I, ante, the Griset II court expressly distinguished the doctrines of
law of the case, res judicata, and collateral estoppel, each of which has exceptions for
24
 The People's attempts to carve out a special exception to the Griset II rule of

finality for habeas corpus proceedings are not persuasive.21 The People's primary

argument appears to be that the trial court should be able to exercise jurisdiction after the

remittitur in Berg I to rule on their request to reconsider the merits of Berg's petition due

to the change in the law, because a habeas petitioner may raise anew a claim rejected on

direct appeal in a habeas petition " 'when there has been a change in the law affecting the

petitioner.' " (Citing In re Reno (2012) 55 Cal.4th 428, 478 (Reno).) This exception to

the ordinary bar against such relitigation,22 permits a habeas petitioner to file a new

proceeding; it does not extend jurisdiction in a concluded proceeding. This distinction is

intervening changes in the law, from the limitations on a trial court's jurisdiction on
remand from an unqualified affirmance. (See Griset II, supra, 25 Cal.4th at p. 702
["Because plaintiffs thereafter did not commence a separate lawsuit, but instead
improperly sought to revive this litigation after its final conclusion, there was no pending
legal proceeding to which the above mentioned doctrines [(i.e., law of the case, res
judicata, and collateral estoppel)] or their exceptions [(i.e., intervening change in
controlling law] properly could be applied"].)

21 We also are not persuaded by the People's contention that Griset II bears only a
"fleeting resemblance" to this case and that Griset II is not "on point" because Griset II
involved an appeal after a final judgment, and Berg's "judgment stood intact and
unchallenged for more than a decade." As discussed in the text, we find Griset II
applicable in considering the scope of the trial court's jurisdiction after the unqualified
affirmance of its prior final order granting Berg's habeas petition, which is "analogous to
a final judgment." (Jackson, supra, 189 Cal.App.4th at p. 1064.) We are not applying
Griset II to the judgment in the underlying criminal case.

22 The Reno court described this bar as follows, "There may be no more venerable a
procedural rule with respect to habeas corpus than what has come to be known as the
Waltreus [(In re Waltreus (1965) 62 Cal.2d 218, 225)] rule; that is, legal claims that have
previously been raised and rejected on direct appeal ordinarily cannot be reraised in a
collateral attack by filing a petition for a writ of habeas corpus." (Reno, supra, 55 Cal.4th
at p. 476.)
25
significant, for under the People's reasoning, the trial court could exercise its jurisdiction

indefinitely to reconsider previously final rulings upon a change in the law. A legal

action must come to an end at some clear point, and Griset II defines that end point.

For example, in this case, the remittitur in Berg I issued on August 2, 2017 and the

law at issue did not change until January 1, 2018. While the People suggested in their

brief in the trial court that the trial court could reconsider its ruling because the "court has

not executed its order," we are aware of no authority that would support the proposition

that a final ruling becomes subject to reconsideration merely because it has not been

executed by the trial court.23 To adopt such a rule would leave the finality of the trial

court's ruling dependent upon the whims of the trial court's discretion to execute the

ruling. Such a result would also be in contravention of the well-established law that,

upon the issuance of the remittitur of an unqualified affirmance, the trial court's

jurisdiction is limited to that necessary to " 'carry out the judgment as ordered by the

appellate court.' " (Picklesimer, supra, 48 Cal.4th at p. 337; see also ibid. [observing that

" '[i]n most cases, after the judgment has become final, there is nothing pending to which

a [postjudgment] motion may attach' "].)

23 The People do not contend on appeal that the trial court's July 2015 order granting
Berg's petition for writ of habeas corpus remained stayed pursuant to section 1506 after
the issuance of our remittitur in Berg I, or that section 1506 permits a trial court to
continue to stay the execution of an order granting habeas relief after the unqualified
affirmance of that order. (See Bilbrey, supra, 25 Cal.App.5th at p. 775 [" 'if an appeal is
taken, and a request for a stay of the order is made and granted, then the order is stayed
pending appeal' " (italics added), quoting Huff, supra, 46 Cal.App.3d at p. 365].)
26
 We are not persuaded by the People's contention, raised in the trial court, that the

trial court had "inherent power[s]" to reconsider a final ruling. The law is clear that a

trial court's inherent power[s] " 'end[ ] . . . with the loss of jurisdiction.' " (Castello,

supra, 65 Cal.App.4th at p. 1248; Jackson, supra, 189 Cal.App.4th at pp. 1067–1068.) A

court's inherent powers do "not create jurisdiction; rather, the existence of jurisdiction is

the premise for [their] application." (Picklesimer, supra, 48 Cal.4th at p. 338 [rejecting

argument that statute broadly authorizing court to use " 'all the means necessary' " to

effectuate jurisdiction provided jurisdiction for trial court to consider postjudgment

motion filed after finality of judgment].)

In their principal brief, the People echo the trial court's reasoning that the trial

court had jurisdiction to reconsider the merits of the case because our remittitur in Berg I

did not contain " 'specific directions,' " within the meaning of Dutra. (See Dutra, supra,

145 Cal.App.4th at p. 1366 ["Where a reviewing court reverses a judgment with

directions to enter judgment for the plaintiff, the trial court is bound by the directions

given. Its authority is limited wholly and solely to following the directions of the

reviewing court. [Citation.] Any judgment rendered contrary to such specific directions

would be void"].) The People contend that the trial court properly determined that since

our decision in Berg I " 'simply affirmed the granting of the petition,' " the trial court was

free to reconsider the merits of that petition upon the resumption of its jurisdiction over

the case after the issuance of the remittitur in Berg I. Griset II makes clear that this is not

27
correct. (Griset II, supra, 25 Cal.4th at p. 701 [trial court did "not have jurisdiction to

reopen or retry the case" after "unqualified affirmance" of prior judgment]; see

Picklesimer, supra, 48 Cal.4th at p. 337 ["Following appellate affirmance of a trial court

judgment and issuance of a remittitur, 'the trial court is revested with jurisdiction of the

case, but only to carry out the judgment as ordered by the appellate court,' " quoting

Dutra, supra, at p. 1366 (first italics added, second italics in original)].)

Finally, the People raise what might be thought of as a "fairness" argument,

arguing that "there is no reason to bind [the People] . . . to a habeas ruling that has been

undermined by a later change in the law . . . simply because this change occurred after an

appeal." To this we can say only that timing often matters in the law. The fact that the

Legislature did not provide a remedy for the unconstitutionality of Berg's sentence until

2018, after our unqualified affirmance of the trial court's order granting his petition for

writ of habeas corpus, is not a basis for contorting well-established law to vest the trial

court with jurisdiction where none exists. In any event, while we are aware that our

decision might provide Berg with a result different from those who are subject to the

changed law, we cannot expand the trial court's jurisdiction beyond legal limits. (See

Dutra, supra, 145 Cal.App.4th at p. 1362 [stating that trial court was required to follow

remittitur even though "the result gives Dutra more protections than other defendants . . .

that does not equate to a miscarriage of justice for her or the People"].)

28
 IV.

DISPOSITION

The trial court's January 23, 2018 order is reversed as void.

AARON, J.

WE CONCUR:

NARES, Acting P. J.

GUERRERO, J.

29