People v. King

77 Cal.App.5th 629

292 Cal.Rptr.3d 731

The PEOPLE, Plaintiff and Respondent,

v.David Jerome KING, Defendant and Appellant.

B315265

Court of Appeal, Second District, Division 2, California.

Filed April 18, 2022

Richard B. Lennon, Los Angeles, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Scott A. Taryle and Rene Judkiewicz, Deputy Attorneys General, for Plaintiff and Respondent.

LUI, P. J.

David Jerome King appeals the order denying his motion to vacate and correct an unauthorized sentence.

King was charged with multiple sex offenses, all committed against a single victim on one day in 1985. In 1986, a jury convicted him on four counts of forcible rape ( Pen. Code,¹ § 261, former subd. (2), now subd. (a)(2); counts I, XI, XII, XIII), four counts of forcible rape with a true finding that King voluntarily acted in concert with others within the meaning of section 264.1 ( §§ 261, former subd. (2), 264.1; counts II, III, IV, V), one count of sodomy (§ 286, subd. (d); count VI), two counts of oral copulation (former § 288a, subd. (d);² counts VII,³ VIII), one count of kidnapping (§ 207, subd. (a); count IX), one count of grand theft auto (former § 487, subd. (3), now § 487, subd. (d)(1); count X), and two counts of robbery (§ 211; counts XIV, XV). The jury also found true several firearm enhancement allegations. (§§ 12022.3, 12022.5.)

King was sentenced to a determinate term of 105 years in state prison, which included a six-year middle term on count III, forcible rape in concert. ( §§ 261, former subd. (2), 264.1.) The sentencing court imposed the upper term of nine years for each of the three other counts of forcible rape in concert (counts II, IV, V).

In 2021, King filed a motion to vacate an unauthorized sentence on the ground that the sentencing triad for forcible rape with a true in-concert finding is five, seven or nine years, making the imposition of a six-year middle term on count III an unauthorized sentence.⁴ The superior court denied the motion, concluding that the original sentence was correct. In so ruling, the superior court failed to recognize that the jury's in-concert finding increased the sentencing range from three, six, or eight years for forcible rape under section 261 to five, seven, or nine years under section 264.1.

King appealed. Although King correctly contends that the sentence on the rape-in-concert conviction on count III was unauthorized, we conclude that the trial court had no jurisdiction to entertain King's motion to vacate his sentence, and therefore this court has no appellate jurisdiction to entertain the appeal. (See In re G.C. (2020) 8 Cal.5th 1119, 1129–1134, 258 Cal.Rptr.3d 595, 458 P.3d 70 ( G.C. ) [the unauthorized sentence rule is an exception to the waiver doctrine that permits a defendant to challenge an unauthorized sentence on appeal even if they failed to object below; to invoke the rule the court must first have jurisdiction over the judgment]; People v. Moore (2021) 68 Cal.App.5th 856, 865–866, 283 Cal.Rptr.3d 754 ( Moore ) ["the unauthorized sentence rule constitutes a narrow exception to the forfeiture doctrine [citation], ‘ "not to the jurisdictional requirement of a timely notice of appeal" ’ or other means of properly challenging the judgment of conviction"]; People v. Torres (2020) 44 Cal.App.5th 1081,1084–1085, 258 Cal.Rptr.3d 307 ( Torres ) [because a trial court lacks jurisdiction to vacate or modify sentence after judgment once execution of the sentence has begun, an order denying such a motion by a trial court without jurisdiction is nonappealable].)

DISCUSSION

The Trial Court's Order Denying King's Motion to Correct an Unauthorized Sentence is Not Appealable

As we must, we first consider whether we have jurisdiction to decide this appeal. ( Jennings v. Marralle (1994) 8 Cal.4th 121, 126, 32 Cal.Rptr.2d 275, 876 P.2d 1074.) We conclude that we do not.

King filed his motion to correct his sentence more than 30 years after he had begun serving it. The general rule is that "once a judgment is rendered and execution of the sentence has begun, the trial court does not have jurisdiction to vacate or modify the sentence." ( Torres, supra, 44 Cal.App.5th at p. 1084, 258 Cal.Rptr.3d 307 ; People v. Howard (1997) 16 Cal.4th 1081, 1089, 68 Cal.Rptr.2d 870, 946 P.2d 828 ; People v. Karaman (1992) 4 Cal.4th 335, 344, 14 Cal.Rptr.2d 801, 842 P.2d 100 ( Karaman ); People v. Hernandez (2019) 34 Cal.App.5th 323, 326, 246 Cal.Rptr.3d 87 ; People v. Amaya (2015) 239 Cal.App.4th 379, 384, 191 Cal.Rptr.3d 13 ( Amaya ).) And, "[i]f the trial court does not have jurisdiction to rule on a motion to vacate or modify a sentence, an order denying such a motion is nonappealable, and any appeal from such an order must be dismissed." ( Torres , at p. 1084, 258 Cal.Rptr.3d 307 ; People v. Chlad (1992) 6 Cal.App.4th 1719, 1725, 8 Cal.Rptr.2d 610 ( Chlad ).)

King relies on a doctrine that has sometimes been described as an exception to this general rule; that is, the "venerable notion" that an unauthorized sentence may be corrected "at any time." ( People v. Scott (1994) 9 Cal.4th 331, 354, 36 Cal.Rptr.2d 627, 885 P.2d 1040 ( Scott ).) Among the many cases that cite the principle, most assume that a court always has jurisdiction to correct an unlawful sentence, no matter when or how the issue arises. (See, e.g., People v. Picklesimer (2010) 48 Cal.4th 330, 338, 106 Cal.Rptr.3d 239, 226 P.3d 348 ; Torres, supra, 44 Cal.App.5th at p. 1085, 258 Cal.Rptr.3d 307 ; People v. Jinkins (2020) 58 Cal.App.5th 707, 712, 272 Cal.Rptr.3d 659 ; People v. Littlefield (2018) 24 Cal.App.5th 1086, 1089–1090, 235 Cal.Rptr.3d 195 ; Amaya , supra , 239 Cal.App.4th at p. 385, 191 Cal.Rptr.3d 13 ; People v. Turrin (2009) 176 Cal.App.4th 1200, 1205, 98 Cal.Rptr.3d 471 ; People v. Jack (1989) 213 Cal.App.3d 913, 915, 261 Cal.Rptr. 860 ( Jack ).)

In G.C. , supra , 8 Cal.5th 1119, 258 Cal.Rptr.3d 595, 458 P.3d 70, our Supreme Court rejected this assumption. The court explained that the "unauthorized sentence" rule is an exception to the waiver doctrine, not to the requirement that a court must have jurisdiction before it may act. ( G.C. , at p. 1129, 258 Cal.Rptr.3d 595, 458 P.3d 70.) Thus, under the unauthorized sentence rule, a party does not forfeit the right to argue that a sentence is unlawful by failing to object in the trial court. ( Ibid. ; see also Scott , supra , 9 Cal.4th at p. 354, 36 Cal.Rptr.2d 627, 885 P.2d 1040 ["the ‘unauthorized sentence’ concept constitutes a narrow exception to the general requirement that only those claims properly raised and preserved by the parties are reviewable on appeal"]; People v. Hester (2000) 22 Cal.4th 290, 295, 92 Cal.Rptr.2d 641, 992 P.2d 569 [the rule generally permits a defendant to "challenge an unauthorized sentence on appeal even if they failed to object below"].) Such a sentence may be challenged at any time, even after a judgment of conviction has become final, and even if the judgment has already been affirmed on appeal. ( G.C. , at p. 1130, 258 Cal.Rptr.3d 595, 458 P.3d 70.) However, "to invoke this rule the court must have jurisdiction over the judgment." ( Ibid. )

Our Supreme Court has observed that "[i]n a system of separated powers, courts observe jurisdictional limits and focus scarce judicial resources on deciding cases within the scope of their authority." ( People v. Chavez (2018) 4 Cal.5th 771, 779, 231 Cal.Rptr.3d 634, 415 P.3d 707.) The term " ‘jurisdiction,’ " however, has two distinct meanings: "[o]ne refers to ordinary acts in excess of jurisdiction," while the other denotes "so-called fundamental jurisdiction, the quality that dictates whether a court has any power at all to resolve a case. [¶] Fundamental jurisdiction is, at its core, authority over both the subject matter and the parties." ( Id . at p. 780, 231 Cal.Rptr.3d 634, 415 P.3d 707 ; see also People v. Ford (2015) 61 Cal.4th 282, 286, 187 Cal.Rptr.3d 919, 349 P.3d 98 ["A court lacks jurisdiction in a fundamental sense when it has no authority at all over the subject matter or the parties, or when it lacks any power to hear or determine the case"].) "When a court lacks fundamental jurisdiction, its ruling is void." ( Chavez , at p. 780, 231 Cal.Rptr.3d 634, 415 P.3d 707.)

In G.C. , the court held that it did not have jurisdiction to consider a minor's claim that the trial court had erred in failing to designate the minor's offenses as felonies or misdemeanors as it was statutorily required to do when considering so-called "wobbler" offenses. ( G.C., supra, 8 Cal.5th at pp. 1125, 1127–1129, 258 Cal.Rptr.3d 595, 458 P.3d 70.) The minor had not appealed from the dispositional orders in which the alleged error occurred. ( Id. at p. 1126, 258 Cal.Rptr.3d 595, 458 P.3d 70.) Rather, the minor attempted to raise the issue in an appeal from a subsequent order concerning a new offense. ( Id. at p. 1124, 258 Cal.Rptr.3d 595, 458 P.3d 70.) Our Supreme Court concluded that the minor's failure to file a notice of appeal from the original dispositional orders deprived the court of jurisdiction to rule on the issue in a subsequent appeal from an unrelated order. The conclusion followed from the general principle that a timely notice of appeal is " ‘ "essential to appellate jurisdiction." ’ " ( Id. at p. 1127, 258 Cal.Rptr.3d 595, 458 P.3d 70, quoting People v. Mendez (1999) 19 Cal.4th 1084, 1094, 81 Cal.Rptr.2d 301, 969 P.2d 146.)

The court in G.C. rejected the unauthorized sentence doctrine as a vehicle to create jurisdiction to consider the trial court's error in the prior proceedings. The court noted that "there was no correlation" between the trial court's prior unappealed error in failing to designate the wobbler offenses and the judgment that was currently on appeal. ( G.C., supra, 8 Cal.5th at p. 1130, 258 Cal.Rptr.3d 595, 458 P.3d 70...