APPEAL from the judgment of the Superior Court of Los Angeles County. Stephen A. Marcus, Judge. Reversed and remanded. (Los Angeles County Super. Ct. No. BA100685).
The opinion of the court was delivered by: Flier, J.
CERTIFIED FOR PUBLICATION
Appellant Arthur Vasilyan was charged by the Los Angeles County District Attorney in 1994 with three counts of a violation of Penal Code section 422.7 (section 422.7). He pleaded nolo contendere to two counts; the third count was dismissed. Appellant was placed on probation on the conditions that he would serve 39 days in county jail, pay a fine, and spend 80 hours of community service. No appeal was taken from the judgment of conviction.
On June 21, 2007, appellant, through his counsel, filed a motion to vacate the judgment and for leave to withdraw his guilty plea. Alternatively, the motion sought relief in terms of petitions for writs of coram nobis, habeas corpus, and audita querela. In large part, the motion relied on People v. Wallace (2003) 109 Cal.App.4th 1699 (Wallace), which held that section 422.7 is only a penalty provision; we set forth the entirety of section 422.7 in the margin.*fn1 An amended motion, much to the same effect as the original motion, was filed on December 7, 2007. The motion was denied. This appeal is from the denial of the motion entered on December 12, 2007. We agree with appellant that the judgment entered in 1994 is void. We vacate appellant‟s plea of nolo contendere and remand with directions to amend or dismiss the information, as appears appropriate.
1. The Facts Underlying the Plea of Nolo Contendere
Our summary of the facts is based on the transcript of the preliminary hearing held on September 12, 1994.
Kiger Hansen and his friend Jason Bane were on Santa Monica Boulevard in Los Angeles when, at approximately 2:00 a.m. on August 28, 1994, a group of four or five men began abusing them verbally by calling them ""fags‟" and physically attacked Hansen and Bane. Hansen was hit on the jaw, knocking a tooth loose, and he was also hit on the side of his head. Hansen identified appellant as one of the men who beat Bane. All five attackers continued to yell outrageous taunts intended to demean Hansen and Bane. They also challenged Hansen and Bane to fight, but the two men managed to get away.
Appellant and his cohorts were almost immediately arrested; the attack took place at what Hanson testified was a "hot spot" with a lot of people about and a Los Angeles County Sheriff‟s Department station across the street. Hansen and Bane identified their attackers within 15 minutes of the attack.
2. The Consequences of the Plea of Nolo Contendere
Appellant was 20 years old in August 1994. He was represented by retained counsel in the proceedings that led to his pleas. One of his contentions in support of the motion to vacate the judgment is that his counsel did not advise him of the immigration law consequences of his pleas.
Appellant currently resides in Yerevan City in Armenia. He entered the United States in 1988 with his family and became lawfully a permanent resident. He was deported in 2004 because of the pleas of nolo contendere in 1994. According to a declaration by an immigration law specialist submitted in support of the motion to vacate the judgment, his pleas in 1994 subjected appellant to three immigration law consequences. They are deportation, exclusion from admission to the United States, and denial of naturalization as a United States citizen.
1. Wallace, supra, 109 Cal.App.4th 1699
In Wallace, supra, 109 Cal.App.4th 1699, 1701-1702, the defendant was charged with assault, robbery and battery. It was also alleged that the crimes were hate crimes in terms section 422.75 and that the assault and robbery charges constituted serious felonies for purposes of sentence enhancement. Pursuant to a negotiated disposition, the prosecution amended the information to allege a violation of section 422.7. The defendant pleaded nolo contendere to this charge, in exchange for which the remaining counts were dismissed; the defendant did not plead to any other charge or charges. The sentence was suspended, the defendant was placed on felony probation for three years, and he served 60 days in county jail. Unlike in the case before us, the defendant appealed from the judgment, contending that section 422.7 "is merely a penalty provision for which he cannot be punished in the absence of a conviction on a related substantive offense." (Wallace, supra,109 Cal.App.4th at p. 1701.)
After noting that in In re M.S. (1995) 10 Cal.4th 698, 725, the California Supreme Court characterized section 422.7 as a penalty enhancement provision (Wallace, supra,109 Cal.App.4th at p. 1702), the Wallace court found that section 422.7 does not "identify any particular substantive crime" but rather elevates certain crimes from misdemeanors to felonies, which makes section 422.7 "plainly a penalty provision." (Wallace, at pp. 1702-1703.) The court went on to analyze section 422.7 from perspectives that we need not repeat here; suffice it to say that this analysis only confirmed the conclusion that section 422.7 is a penalty provision and that section 422.7 does not identify or establish a substantive crime.
The court then turned to the question of the appropriate remedy. We set forth this part of the court‟s opinion in full:
"Having concluded that section 422.7 is a penalty provision, we now turn to the question of the appropriate remedy to be applied. Wallace contends that his conviction should be reduced to a misdemeanor violation of section 422.6. The People, by contrast, assert that Wallace‟s conviction and sentence should be affirmed because his plea was knowing, voluntary and intelligent. Neither position is persuasive. First, Wallace is not entitled to have his conviction reduced to a misdemeanor because his sentence reflects his understanding that he was pleading to a felony. As the People correctly note, to reduce Wallace‟s sentence under the circumstances would unfairly compromise the negotiated settlement upon which the parties had agreed. (People v. Bean (1989) 213 Cal.App.3d 639, 645.) Second, we cannot affirm a conviction and sentence imposed for a crime that does not exist, notwithstanding the defendant‟s consent. (See People v. Soriano (1992) 4 Cal.App.4th 781, 785 ["where fundamental jurisdiction is lacking, it cannot be conferred by consent or estoppel‟].) Because Wallace‟s plea to a violation of section 422.7 is a legal nullity, the judgment must be reversed." (Wallace, supra, 109 Cal.App.4th at p. 1704.)
Significantly, the appellate court‟s order in Wallace was to vacate the defendant‟s plea, to order the dismissed counts reinstated, and to remand the matter "for plea or trial, as appropriate." (Wallace, supra,109 Cal.App.4th at p. 1704.)
2. The Judgment Convicting Appellant of Violations of Section 422.7 Must Be Vacated
(a) The Statutory Framework
"No person can be punished for a public offense, except upon a legal conviction in a Court having jurisdiction thereof." (Pen. Code, § 681.) "A crime or public offense is an act committed or omitted in violation of a law forbidding or commanding it, and to which is annexed, upon conviction, either of the following punishments: [¶] 1. Death; [¶] 2. Imprisonment; [¶] 3. Fine; [¶] 4. Removal from office; or, [¶] 5. Disqualification to hold and enjoy any office of honor, trust, or profit in this State." (Pen. Code, § 15.) In relevant part, Penal Code section 6, enacted in 1872, provides: "No act or omission, commenced after twelve o‟clock noon of the day on which this Code takes effect as a law, is criminal or punishable, except as prescribed or authorized by this Code . . . ." ""There is no criminal common law in California. All public offenses or crimes are statutory, and unless there is in force at the time of the commission or omission of a particular act a statute making it a crime or a public offense, no one can be adjudged to suffer punishment for its commission or omission.‟" (In re Harder (1935) 9 Cal.App.2d 153, 155.)
(b) The Statutory Framework Explained
The subject matter jurisdiction of a California court presiding over a criminal prosecution is predicated on the offense. "To constitute jurisdiction in a criminal case there must be two elements, namely, jurisdiction of the person, and jurisdiction of the subject matter or, as it is sometimes called, of the offense." (Burns v. Municipal Court (1961) 195 Cal.App.2d 596, 599.) "The most important is jurisdiction of the subject matter. "No person can be punished for a public offense, except upon a legal conviction in a court having jurisdiction thereof.‟ (P.C. 681.) In other words, the court in a criminal trial, like the court in a civil proceeding, must have jurisdiction of the subject matter (in criminal cases, the offense)." (4 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Jurisdiction and Venue, § 1, p. 86, citing, inter alia, Burns v. Municipal Court, supra, 195 Cal.App.2d 596, 599.)
"Section 15 of the Penal Code defines a crime: "A crime or public offense is an act committed or omitted in violation of a law forbidding or commanding it, and to which is annexed, upon conviction, either of the following punishments: [listing various punishments].‟ There must then exist both prohibited or commanded acts and punishment for violation thereof; without both, there is no crime." (People v. Crutcher (1968) 262 Cal.App.2d 750, 754.) That there must be a substantive crime and a punishment for that crime in order to constitute a criminal offense has been long recognized. (E.g., People v. McNulty (1892) 93 Cal. 427, 437.)
It follows that if there is no crime, the court lacks subject matter jurisdiction. This conclusion is compelled not only by the statutes and cases interpreting those statutes, this conclusion comports with fundamental principles of justice. The notion that a person can be punished under the criminal law for committing an act that is not a crime is entirely outside our system of jurisprudence. This is not to say that appellant may very well have committed a crime or crimes such as assault and battery under circumstances that are particularly offensive and blameworthy. Nonetheless, the fact remains that the act with which he was charged is not a crime.
The foregoing principles validate the conclusions of the court in Wallace that the court lacked subject matter jurisdiction, that a court "cannot affirm a conviction and sentence imposed for a crime that does not exist" (Wallace, supra, 109 Cal.App.4th at p. 1704) and that the plea in that case was a "legal nullity."
(c) A Void Judgment Is Subject to Collateral Attack
It is fundamental and it cannot be questioned that a judgment that is void for lack of subject matter jurisdiction is subject to collateral attack. "Moreover, lack of jurisdiction will render the judgment void, and subject not only to reversal on appeal but to collateral attack, motion to vacate, or extraordinary writ. (See 2 Cal. Proc. (4th), Jurisdiction, §387; 8 Cal. Proc. (4th), Attack on Judgment in Trial Court, §6 et seq.; 8 Cal. Proc. (4th), Extraordinary Writs, §§39, 50; 6 Cal. Crim. Law (3d), Criminal Writs, §85.)" (4 Witkin & Epstein, Cal. Criminal Law, supra, Jurisdiction and Venue, § 1, p. 86.) Lack of jurisdiction in its most fundamental sense means an entire absence of power to hear or determine the case, i.e., an absence of authority over the subject matter or the parties. When a court lacks jurisdiction in a fundamental sense, an ensuing judgment is void, and such a judgment is vulnerable to direct or ...