Opinion
E067674
12-21-2017
THE PEOPLE, Plaintiff and Respondent, v. RUBIEN EARL BRANDON, Defendant and Appellant.
Conrad Petermann, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Arlene A. Sevidal and Elizabeth M. Kuchar, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FWV1303353) OPINION APPEAL from the Superior Court of San Bernardino County. Barbara Ann Buchholz and Stephan G. Saleson, Judges. Affirmed. Conrad Petermann, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Arlene A. Sevidal and Elizabeth M. Kuchar, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
In this appeal, defendant and appellant Rubien Earl Brandon challenges the trial court's recent order, which reverses a previous order that had granted him relief under Proposition 47, the Safe Neighborhoods and Schools Act. Brandon's sole contention on appeal is that the trial court lacked jurisdiction to set aside its previous order; he does not contest the merits of the trial court's determination that it had erred by designating his felony conviction for residential burglary as a misdemeanor.
We affirm the trial court's order correcting its earlier error.
II. BACKGROUND
In October 2013, Brandon pleaded no contest to one count of residential burglary (Pen. Code, § 459).
Further undesignated statutory references are to the Penal Code. --------
In June 2015, Brandon filed a petition requesting that his burglary conviction be designated as a misdemeanor pursuant to Proposition 47. The People's response indicated that Brandon had completed his sentence and was entitled to have the conviction designated as a misdemeanor. On June 9, 2015, the trial court granted the petition.
On January 17, 2017, over Brandon's objection, the trial court reversed its June 9, 2015, ruling. The court characterized the June 2015 order as a "mistake," because the conviction offense was not properly reduced to a misdemeanor under Proposition 47. It found the June 9, 2015, order to be void, and ordered the offense "changed back to a felony." The change had immediate consequences for Brandon; he was in custody on a new alleged offense, and the presence of the felony conviction on his record would increase his potential sentence if he were to be convicted.
III. DISCUSSION
Brandon has not argued that he was in fact entitled to have his residential burglary conviction designated as a misdemeanor under Proposition 47, and correctly so. Proposition 47 added section 459.5, redefining certain offenses previously charged as burglary under section 459 to be the new misdemeanor offense of "shoplifting." (§ 459.5, subd. (a).) Section 459.5, however, does not encompass residential burglaries. (Id. [defining "shoplifting" as "entering a commercial establishment with intent to commit larceny . . . "].) The People's response to Brandon's petition, conceding him to be entitled to relief under Proposition 47, was therefore mistaken, and the trial court's June 2015 order granting the petition was erroneous.
The only issue in this appeal, therefore, is whether the trial court had jurisdiction to issue its January 2017 order, correcting its June 2015 error. It did. The term "in excess of jurisdiction" refers to "'a case where, though the court has jurisdiction over the subject matter and the parties in the fundamental sense, it 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.'" (People v. Mendez (1991) 234 Cal.App.3d 1773, 1781-1782 (Mendez) [quoting Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 288].) The trial court's June 2015 order was in excess of its jurisdiction because, as discussed above, it had no power to reduce Brandon's felony conviction to a misdemeanor under Proposition 47 (or any other provision of law). An order or judgment that is in excess of jurisdiction is "subject to being set aside at any time by the court which rendered [it]." (People v. Glimps (1979) 92 Cal.App.3d 315, 325.)
Brandon asserts, without citation to authority, that the trial court was not "invest[ed] . . . in perpetuity with jurisdiction to act on its own motion years later and reverse its decision to reduce [Brandon's] conviction to a misdemeanor." Brandon is incorrect: "The power of a court to vacate a judgment or order void upon its face is not extinguished by lapse of time, but may be exercised whenever the matter is brought to the attention of the court." (People v. Davis (1904) 143 Cal. 673, 675.)
To be sure, "appellate courts have repeatedly allowed acts in excess of jurisdiction to stand when the acts were beneficial to all parties and did not violate public policy . . . ." (In re Marriage of Jackson (2006) 136 Cal.App.4th 980, 989.) Not so, however, in circumstances similar to those of the present case, where "the irregularity was too great or when the act violated a comprehensive statutory scheme or offended public policy." (Ibid.; see Mendez, supra, 234 Cal.App.3d at pp. 1778-1785 [directing trial court to vacate order in excess of jurisdiction that erroneously reduced felony conviction to a misdemeanor and sealed conviction record].)
IV. DISPOSITION
The order appealed from is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
P.J. SLOUGH
J.