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               NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SECOND APPELLATE DISTRICT

                                                DIVISION FOUR



THE PEOPLE,                                                          B233588
                                                                     (Los Angeles County
         Plaintiff and Respondent,                                   Super. Ct. No. TA111994)

         v.

SPENCER JONES,

         Defendant and Appellant.


         APPEAL from an order of the Superior Court of 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).)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.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.


1
      Appellant had been convicted of first degree rape in 1981 in Washington state.
Undesignated statutory references are to the Penal Code.
2
       People v. Marsden (1970) 2 Cal.3d 118.



                                           2
      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.3



3
       Appellant also filed a motion for change of venue and a motion to disqualify the
presiding judge.

                                            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;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.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




4
      Section 1237, subdivision (a) provides that “an order granting probation . . . shall
be deemed to be a final judgment . . . .”
5
        Section 1237.5 provides: “No appeal shall be taken by the defendant from a
judgment of conviction upon a plea of guilty or nolo contendere . . . except where . . . [¶]
(a) The defendant has filed with the trial court a written statement, executed under oath or
penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds
going to the legality of the proceedings[;] [¶] (b) The trial court has executed and filed a
certificate of probable cause . . . .”

                                             4
fundamental jurisdictional defect. By order dated September 26, 2012, we denied
the motion to dismiss.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 motion to vacate would virtually give defendant

6
       An order denying a motion to dismiss an appeal is not law of the case, and does
not preclude later full consideration of the issues raised following review of the entire
record and the opportunity for oral argument. (Kowis v. Howard (1992) 3 Cal.4th 888,
900; Delmonico v. Laidlaw Waste Systems, Inc. (1992) 5 Cal.App.4th 81, 83; In re
Christopher A. (1991) 226 Cal.App.3d 1154, 1161.)

                                             5
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.
                                            6
(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.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
7
       Appellant‟s contentions were made in his reply brief, filed after denial of the
motion to dismiss the appeal. Following denial of the motion to dismiss, appellant
essentially abandoned his claim of Marsden error by failing to raise any argument that the
alleged Marsden error led to the type of jurisdictional defect that rendered the judgment
void, or that the records necessary to establish the alleged Marsden error would not have
been available on appeal.

                                            7
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
                                            8
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.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




8
       In People v. Kim (2009) 45 Cal.4th 1078, 1095, the Supreme Court stated that
claims of constitutional error, including an unconstitutional sentence, double jeopardy
and ineffective assistance of counsel, were not cognizable in a petition for writ of error
coram nobis, a procedure similar to a motion to vacate. (See Gallardo, supra, 77
Cal.App.4th at p. 982 [terms “„motion to vacate‟” and “„petition for writ of error coram
nobis‟” often used interchangeably and “are similar in scope and effect”].)

                                             9
records.9 Following the filing of the 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.



9
       Appellant also contends the trial court erred in denying his motion to continue so
that he could obtain transcripts of all the prior proceedings. He identifies nothing in those
transcripts -- currently included in the record on appeal -- that would have supported the
myriad claims asserted in his motion to vacate.

                                             10
