P. v. Jones























Filed 4/25/13 P. v. Jones CA2/4













NOT TO BE PUBLISHED IN THE OFFICIAL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opinion has not been certified for publication or ordered published for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 FOUR






>

THE PEOPLE, Plaintiff and Respondent, v. SPENCER JONES, Defendant and Appellant.

B233588 (Los Angeles County Super. Ct. No. TA111994)

APPEAL from an order of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Arthur M. Lew, Judge.
Dismissed.

John Doyle, under
appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney
General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters,
Assistant Attorney General, Linda C. Johnson and Gary A. Lieberman, Deputy
Attorneys General, for Plaintiff and Respondent.



FACTUAL AND PROCEDURAL BACKGROUND

A. Pretrial
Proceedings and Plea

On
June 24, 2010, appellant Spencer Jones was charged by information with the
crime of failing to register as a sex offender following an address change
(Pen. Code, § 290, subd. (b)) and failing to update registration annually
(§ 290.012, subd. (a).)href="#_ftn1"
name="_ftnref1" title="">[1]

In May 2010,
shortly after his arrest, appellant had been given permission to represent
himself in accordance with Faretta v.
California (1975) 422 U.S. 806 (Faretta). During his period
of self-representation, he demurred
and filed a motion to set aside the information under section 995, a motion to
dismiss, two writ petitions, and a motion
to disqualify a judge. On October
22, 2010,
after denying appellant’s motion to disqualify, the court found appellant had been
disruptive in the courtroom and deceptive with respect to a ruling received
from the Court of Appeal on one of his writ petitions, revoked his pro se
status, and appointed an attorney to represent him. As soon as his appointed counsel appeared,
appellant requested a Marsden
hearing, contending they had a conflict.href="#_ftn2" name="_ftnref2" title="">[2] The court denied the request.

In October
27, 2010,
appellant pled nolo contendere to one count of failure to register under
section 290, subdivision (b), and was sentenced to three years. He was given credit for time served and
placed on probation. During the hearing
on the plea and sentence, he made no reference to self-representation or
conflicts with his appointed attorney.

B. Motion
to Vacate

Following
appellant’s release in October 2010, he failed to fulfill the probation
requirement of registering within five days.
In January 2011, appellant appeared in court and provided proof of
registration. His probation was revoked
and reinstated.

On April 27,
2011, appellant filed a motion to vacate his plea, contending, among other
things, that he had been very ill in September 2010 due to “overmedication,
lack of medication, and abuse”; that he had signed the pro per policy memo
“under extreme duress” without being given an opportunity to read, research and
review the document; that the revocation of his pro se status and appointment
of counsel on October 22, 2010 had been over his “repeated, strenuous
objections”; that he had pled to the charge “because of imminent danger to
[his] health and life”; and that the court lacked “competent jurisdiction” over
him and the subject matter “because no complaint was ever signed by any
complaining witness, endorsed by any magistrate and filed with the court, as
required by . . . § 806.” (Capitalization
altered.) Appellant further contended
that his case was transferred from one department to another “without
jurisdiction or authority” and that the presiding judge was “without
jurisdiction or authority” to rule on a disqualification motion directed at
himself. The court set a hearing on the
motion for May 27, 2011.

On May
24, 2011,
appellant filed a motion to continue the hearing on the motion to vacate,
contending he needed transcripts of all the prior hearings to “substantiat[e]
[the] allegations” of the motion.href="#_ftn3"
name="_ftnref3" title="">[3]

On May
27, 2011,
the court denied the motion for
continuance and heard and denied the motion to vacate. Appellant filed a notice of appeal and
request for a certificate of probable cause, seeking to challenge the validity
of his plea and the denial of his motion to vacate. He contended, among other things, that the
court lacked jurisdiction over him. The
court denied the request for a certificate of probable cause.



C. Motion
to Dismiss Appeal

After
appellant filed his opening brief,
respondent moved to dismiss on the grounds that (1) appellant had raised
matters pertaining to alleged violation of his Faretta and Marsden
rights that should have been raised in an appeal from the final judgment of
conviction;href="#_ftn4" name="_ftnref4"
title="">[4] and (2) appellant had
failed to obtain the certificate of probable cause required by section 1237.5
following a guilty or nolo contendere plea.href="#_ftn5" name="_ftnref5" title="">[5] Appellant opposed, contending that as the
appeal had been taken from the denial of a motion to vacate, it required no
certificate of probable cause; that the court had erred in refusing his request
for a continuance to obtain transcripts of proceedings, denying him a
“reasonable opportunity” to support his motion to vacate; and that he had
raised or intended to raise issues pertaining to a fundamental jurisdictional
defect. By order dated September
26, 2012, we
denied the motion to dismiss.href="#_ftn6"
name="_ftnref6" title="">[6]

>

>DISCUSSION

Appellant
contends the trial court revoked his pro se status without good cause and
violated his right of self-representation
as set forth in Faretta, >supra, 422 U.S. 806. Because we conclude that the alleged
violation of appellant’s Faretta
rights could have been raised on appeal from the judgment and that such
violation, even if it occurred, does not undermine the court’s fundamental
jurisdiction, we do not address the merits.

A criminal
defendant may appeal from “‘a final judgment of conviction’” (>People v. Gallardo (2000) 77 Cal.App.4th
971, 980 (Gallardo); § 1237, subd.
(a); § 1466 subd. (b)(1)) or from an “‘order made after judgment, affecting the
substantial rights of the party.” (>Gallardo, supra, at p. 980; § 1237, subd. (b); § 1466, subd. (b)(2).) An order denying a motion to vacate a
judgment would seem to qualify as an “‘an[] order made after judgment,
affecting [the party’s] substantial rights.’”
(§ 1237, subd. (b); § 1466, subd. (b)(2); see Gallardo, supra, at p.
980.) However, it is firmly established
that such an order is not appealable “when the appeal would merely bypass or
duplicate appeal from the judgment itself.”
(Id. at p. 981; accord, >People v. Totari (2002) 28 Cal.4th 876,
882; People v. Thomas (1959) 52
Cal.2d 521, 527.) “In such a situation
. . . allowance of an appeal from the order denying the href="http://www.fearnotlaw.com/">motion to vacate would virtually give
defendant two appeals from the same ruling and, since there is no time limit[]
within which the motion may be made, would in effect indefinitely extend the
time for appeal from the judgment.” (>People v. Thomas, supra, at p. 527.)

There are
situations, however, when a motion to vacate rather than a direct appeal may be
appropriate. Among these are cases where
the record on appeal would not have shown the error, or the judgment is void
due to a fundamental jurisdictional defect.
(People v. Totari, >supra, 28 Cal.4th at p. 882; >Gallardo, supra, 77 Cal.App.4th at p. 981; People v. Thomas, supra, 52 Cal.2d at p. 528; 6 Witkin &
Epstein, Cal. Criminal Law (4th ed. 2012) Criminal Appeal, §§ 66-67, pp.
342-343.) The denial of a motion to
vacate in these situations is appealable, creating a conundrum for the appellate
court because its determination of appealability requires it to delve into the
merits of the appeal. (See >ibid.; People v. Thomas, supra,
at p. 529.) “[I]f, after
consideration, the court determines the issue against the appellant, it
necessarily decides that the order was not appealable.” (6 Witkin & Epstein, supra, Criminal Appeal, § 69, p. 344; accord, >People v. Thomas, supra, at p. 529 [“When the question of jurisdiction is presented
by motion to vacate and by appeal from the order of denial, the appellate
court’s determination as to the appealability of the order will ordinarily
depend upon its decision of the merits of the appeal, i.e., upon its
determination whether there was indeed a jurisdictional defect.”].) Where it is clear after review of the entire
record and full consideration of the issues that the underlying motion raised
no fundamental jurisdictional defect, that the judgment is not void on its
face, and that the errors, if any, are not such as to render the judgment void,
“the appeal from the order denying the motion to modify is unauthorized and
must be dismissed.” (>People v. Cantrell (1961) 197 Cal.App.2d
40, 44-45.)

Here, the
alleged improper revocation of appellant’s pro se status could have formed the
basis of an appeal after the court entered judgment in October 2010. (See, e.g., People v. Marlow (2004) 34 Cal.4th 131, 146-147 [contention on
appeal that trial court erred in denying Faretta
motion not forfeited by defendant’s plea of guilty on advice of subsequently
appointed counsel]; People v. Robinson
(1997) 56 Cal.App.4th 363, 370 [“[A] claimed Faretta violation may . . . properly be raised in an appeal from a
guilty plea or plea of no contest.”].)
Appellant did not file a timely appeal of the judgment of
conviction. He contends, however, that
the appeal of the denial of his motion to vacate falls within the exceptions to
the requirement of direct appeal because the alleged Faretta error created a fundamental or structural jurisdictional
defect rendering the judgment void, and because records needed to prove his
case would not have been available on appeal.href="#_ftn7" name="_ftnref7" title="">[7] We address these contentions in turn.

“Our Supreme
Court has explained that ‘jurisdictional errors are of two types. “Lack of jurisdiction in its most fundamental
or strict sense means an entire absence of power to hear or determine the case,
an absence of authority over the subject matter or the parties.” [Citation.]’
[Citation.] The term ‘lack of
jurisdiction’ may also be applied when the court possesses jurisdiction over
the subject matter and parties in the fundamental sense but ‘“has no
‘jurisdiction’ (or power) to act except in a particular manner, or to give
certain kinds of relief, or to act without the occurrence of certain procedural
prerequisites.” [Citation.]’ [Citation.]
‘When a court lacks jurisdiction in a fundamental sense, an ensuing
judgment is void, and “thus vulnerable to direct or collateral attack at any
time.” [Citation.]’ [Citation.]
By contrast, when a court has fundamental jurisdiction to act but acts
in excess of jurisdiction, its actions are merely voidable, ‘[t]hat is, its act
or judgment is valid until it is set aside, and a party may be precluded from
setting it aside by “principles of estoppel, disfavor of collateral attack or
res judicata.” [Citation.]’ [Citation.]”
(People v. Ramirez (2008) 159
Cal.App.4th 1412, 1422, italics omitted, quoting People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653,
660-661.) An error which does not reach
the power of the court to act, but concerns instead a mistaken application of
law may not be collaterally attacked. (>Armstrong v. Armstrong (1976) 15 Cal.3d
942, 950; see also People v. Cantrell,
supra, 197 Cal.App.2d at p. 43
[“Where a judgment is not void on its face and has been regularly entered the
court has no authority to modify or set it aside except in the mode provided by
law, such as a motion for a new trial or appeal.”]; Hollywood Circle, Inc. v. Dept. of Alcoholic Beverage Control
(1961) 55 Cal.2d 728, 731 [“‘“[J]urisdiction [over the subject], being the
power to hear and determine, implies power to decide a question wrong as well
as right.”’”].)

The
distinction between a lack of jurisdiction over the cause and an act in excess
of jurisdiction was discussed in People
v. Ramirez, where the defendant admitted a probation violation in 2004 and
the court allowed him to remain on probation but increased his previously
imposed sentence. (People v. Ramirez, supra,
159 Cal.App.4th at p. 1417.) Two
years later, following a subsequent violation, the court terminated his
probation and ordered him to serve the longer sentence, at which time he
appealed, contending the court lacked the authority to increase his sentence in
2004. (Ibid.) The Court of Appeal
agreed that the trial court “exceeded its jurisdiction,” but concluded that
appellant was entitled to no relief. (>Ibid.)
“[B]y failing to heed the statute that precluded it from modifying
appellant’s sentence [citation], the court merely exceeded its jurisdiction but
did not lack jurisdiction in any fundamental sense over appellant or the
subject matter.” (Id. at p. 1427.) Because
“objections to acts in excess of a court’s jurisdiction may be subject to bars
including waiver (the intentional relinquishment of a known right) and
forfeiture (the loss of a right through failure of timely assertion),”
appellant’s claim failed because, among other things, he “forfeited his
challenge to the . . . 2004 order by failing to seek a timely appeal from that
order.” (Ibid.)

While a >Faretta violation represents structural
constitutional error, requiring reversal on appeal (People v. Robinson, supra,
56 Cal.App.4th at p. 373), appellant cites no authority for the proposition
that a Faretta violation renders an
ensuing judgment of conviction void.href="#_ftn8" name="_ftnref8" title="">[8] We discern no basis for concluding such error
affected the court’s fundamental jurisdiction.
Were we to so hold, we would be inviting criminal defendants to
challenge their convictions long after judgment was entered, when the chances
of a successful new prosecution were minimized.
Even assuming the court’s decision to revoke appellant’s pro se status
was not supported, the trial court’s error was a legal one, not one that
reached its power to act. Appellant’s
motion to vacate thus represented a collateral attack on his conviction, based
on an issue that could have been, but was not, raised in a timely direct
appeal.

Appellant
alternatively suggests that the document on which the trial court relied in
accusing him of deception -- an order from this court denying appellant’s writ
petition in case No. B227535 -- was not available in the superior court’s
records.href="#_ftn9" name="_ftnref9" title="">[9] Following the filing of the href="http://www.fearnotlaw.com/">reply brief, appellant’s counsel filed a
motion to augment the record, stating that the subject order had been found in
the record of the proceedings below, and providing a copy to include in the
record on appeal. As this document was
available and appellant identifies no other information important to
appellant’s case that might be missing from the record, we reject his
intimation that direct appeal would not have been an adequate remedy.

>

>DISPOSITION

The appeal is
dismissed.

NOT TO BE PUBLISHED
IN THE OFFICIAL REPORTS









MANELLA,
J.



We concur:









EPSTEIN, P. J.









SUZUKAWA, J.