Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Nos. RIF148160, RIF142742, Larrie R. Brainard, Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.).
Cindy Brines, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton, Sabrina Y. Lane-Erwin and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Codrington, J.
I
INTRODUCTION
Defendant Deshante Leon McDaniel appeals judgment entered following a jury conviction for corporal injury on a spouse, with a previous domestic violence conviction (Pen. Code, § 273.5, subd. (e)(1)). Defendant admitted his alleged priors, which included assault with a firearm and felony domestic violence. The trial court dismissed the great bodily injury special allegation (§ 12022.7, subd. (e)) after the jury deadlocked on the allegation. The trial court sentenced defendant to nine years in state prison.
All statutory references are to the Penal Code unless otherwise indicated.
Defendant contends the trial court lacked jurisdiction to proceed with the refiled case against defendant once the prosecution appealed the dismissal of the original case. Therefore defendant’s conviction must be reversed.
We disagree. While the prosecution was required to elect, within a reasonable time, between appealing the judgment in the first case and prosecuting the refiled charges in the second case, there was no loss of subject matter jurisdiction in the second case. The prosecution ultimately made an election of remedies by moving to dismiss its appeal, and defendant failed to object to the prosecution’s delay in electing remedies in the trial court. The appeal was not pending during the retrial leading to defendant’s conviction.
Defendant alternatively contends that, if this court concludes he forfeited the jurisdictional issue by not raising it in the trial court, his trial attorney provided ineffective assistance of counsel in failing to do so. We reject this contention since we do not conclude defendant forfeited his jurisdiction challenge and have decided the jurisdictional issue on the merits. We affirm the judgment.
II
FACTS
The facts concerning the charged offenses are only briefly summarized since they are not dispositive of the jurisdictional issue raised in this appeal.
During the evening of April 15, 2008, defendant and his wife, Tesha McDaniel (Tesha), got into a verbal and physical altercation at their apartment. Tesha testified at trial that, as defendant was leaving, she followed him outside to retrieve the apartment keys and called defendant a “sorry ass bastard.” Defendant threw the keys at Tesha, and then hit her in the face three times and broke her nose. Defendant left. Tesha, who had a bloody nose, called 911.
Diamond McDaniel, defendant and Tesha’s daughter, who was seven years old, testified that when she was six years old, she heard Tesha say bad words to defendant and saw defendant hit Tesha in the mouth and nose. Defendant then left.
Deputy Pierson, formerly Flores, (Pierson) was dispatched to defendant’s apartment. Pierson testified that, when she arrived, Tesha was crying and had blood on her hands. Tesha told her what had happened. Pierson also spoke with defendant about the incident at defendant’s grandmother’s home. Defendant told Pierson that Tesha had become upset with him and grabbed him by the neck. Defendant then swung Tesha to the floor so he could leave. Tesha followed defendant outside. When she asked him for the keys, defendant pushed her aside and left. Defendant denied punching Tesha in the face.
Tesha testified that, after the incident, she visited defendant in jail and talked to him on the phone. Defendant told her to write a letter to the court and district attorney stating that everything in the police report was false. Defendant wrote the letter, and Tesha copied it in her own handwriting and gave it to the court.
Tesha testified that in 2002, defendant physically threw her out of the house after a fight and defendant was charged with domestic violence. Tesha then wrote a letter to the court to help out defendant, stating that defendant did not throw her out.
Ernest Franklin (Franklin) and Clifford Oliver (Oliver), two of defendant’s friends, whom defendant had known for many years, testified on defendant’s behalf. Both Franklin and Oliver had felony convictions and misdemeanor convictions for domestic battery. Franklin testified that Tesha told him that her mother and sister pushed her to lie to the police about the incident on April 15, 2008, because Tesha’s mother and sister disliked defendant. Oliver testified that in 2008, he saw Tesha hit defendant in the face and break defendant’s nose at a party because Tesha saw defendant dancing with another woman.
III
SUBJECT MATTER JURISDICTION
Defendant contends the trial court lacked subject matter jurisdiction to proceed with the refiled case after the People appealed from the judgment of dismissal of the original case. The People argue the trial court maintained jurisdiction because the prosecution moved for dismissal of the first appeal within a reasonable time.
A. Procedural Background
On January 27, 2009, the trial court dismissed the original criminal charges under section 1382 for failure to try the case within the statutory time limit, due to the unavailability of a courtroom.
On the same day, the People refiled the same charges.
On March 23, 2009, defendant was arraigned on the refiled charges in the second case.
On April 2, 2009, the prosecution filed a notice of appeal from the judgment of dismissal in the original criminal case.
On May 13, 2009, the jury trial in the second case began.
On May 20, 2009, midway through the first trial, the People moved to dismiss their appeal from the dismissal judgment in the first case. The trial court granted the motion the following day. This occurred before appellate briefs were filed by either party, and only about three weeks after appellate counsel was appointed for defendant.
On May 26, 2009, the jury deadlocked and the court declared a mistrial. The case was reset for trial.
Retrial began on August 11, 2009. On August 18, 2009, the jury found defendant guilty of corporal injury on a spouse, having previously been convicted of corporal injury on a spouse (§ 273.5, subd. (e)(1)). The court sentenced defendant on September 25, 2009, to an aggregate term of nine years in state prison. The instant appeal is to judgment entered in the second case on September 25, 2009.
B. Discussion
Relying on Anderson v. Superior Court (1967) 66 Cal.2d 863 and People v. Alanis (2008) 158 Cal.App.4th 1467, defendant contends this court is required to reverse his conviction because the court did not have subject matter jurisdiction over the refiled criminal proceedings due to the People unreasonably delaying dismissal of their appeal.
In Anderson v. Superior Court, supra, 66 Cal.2d at page 864, the court held the prosecution cannot simultaneously appeal from dismissal of a criminal pleading and prosecute the refiled charges and proceed to trial. Right after the dismissal order of the indictment under section 995, the People in Anderson, supra, filed a notice of appeal from the order setting aside the indictment. (Ibid.) Two and a half weeks later, while the appeal was pending, the court held a preliminary examination to determine if an information could be filed against the defendant. The defendant was held to answer, an information was filed against him, and the matter was set for trial. (Ibid.) During juror voir dire, the trial court inquired as to whether it had subject matter jurisdiction over the case due to the pending appeal. (Ibid.)
The defendant filed a writ petition seeking a determination of the jurisdictional issue. The defendant argued that he should not be compelled to defend the appeal and simultaneously prepare for trial. The People argued they were not barred from simultaneously pursuing both remedies. (Anderson v. Superior Court, supra, 66 Cal.2d at p. 865.) The Anderson court agreed in part, rejecting the holding in People v. Owens (1945) 71 Cal.App.2d 831, 833, to the contrary. The court in Anderson stated that “the People may simultaneously file an appeal from the dismissal of the first pleading and seek a new accusation.” (Anderson, at p. 864.)
The court added, however, that the People must elect between the two remedies “to foreclose the possibility of harassment of the defendant, and to that end the People should elect as soon as feasible between maintaining the appeal or proceeding under the new accusatory pleading. At the latest, this election should occur either when the new accusatory pleading withstands a motion under section 995 or at the time of arraignment for plea, whichever first occurs. We thereby assure the People an opportunity to obtain a valid accusatory pleading on which to go to trial, yet also guarantee that the defendant will not be called upon to defend an appeal and at the same time a trial on the basis of a second accusation, both resulting from the same alleged crime.” (Anderson, at p. 867.) But this suggested time frame is dicta to the extent in Anderson the issue was not when must an election be made but, rather, whether an election must be made at all. In Anderson, the court held an election was required. It then added somewhat gratuitously a suggested time frame for making an election.
Because the Anderson court concluded the prosecution was required to elect between appealing and prosecuting the new criminal charges, the Anderson court granted a peremptory writ prohibiting trial of the new criminal proceedings unless the People dismissed their appeal within 10 days from the date of the Anderson opinion. The Anderson court did not hold there was no subject matter jurisdiction. The court also did not address the issue raised here of whether a judgment of conviction must be reversed due to delay in electing between pursuing an appeal and prosecuting refiled charges. In Anderson, there had not yet been a conviction on the criminal charges when the Anderson court granted the peremptory writ requiring the prosecution to make an election of remedies.
In the instant case, the People did not make an election of remedies until midtrial, but the appeal had not been pending for long, with neither party having filed appellate briefs. Furthermore, after the appeal was dismissed, the trial of the refiled charges ended in a mistrial and the case was retried. Thus the appeal was not pending during the retrial leading to defendant’s conviction. In addition, defendant never objected in the lower court to the People’s delay in making an election, perhaps because of the possibility the case would once again be dismissed due to the unavailability of a courtroom. Defendant has not cited any persuasive authority holding that under such circumstances the People’s delay constitutes reversible error, rendering the entire prosecution of the refiled charges, including the conviction, void.
As defendant acknowledges, under Anderson, the People can both appeal a dismissal judgment and refile charges. The trial court thus had subject matter jurisdiction over the second case, even though the prosecution was required to elect between the two proceedings within a reasonable period of time so as not to burden the defendant with defending both proceedings simultaneously. Anderson suggested the election “should” be made “either when the new accusatory pleading withstands a motion under section 995 or at the time of arraignment for plea, whichever first occurs, ” but this suggested time frame is dicta to the extent in Anderson the issue was not when must an election be made but, rather, whether an election must be made at all. In Anderson, the court held an election must be made and it must be made as soon as possible, which turns on the particular factual circumstances of the case. (Anderson v. Superior Court, supra, 66 Cal.2d at p. 867.)
Here, the People did not comply with the suggested time frame in Anderson of making an election “either when the new accusatory pleading withstands a motion under section 995 or at the time of arraignment for plea, whichever first occurs.” (Anderson v. Superior Court, supra, 66 Cal.2d at p. 867.) But, then, defendant also did not object to the delay, and ultimately the People requested dismissal of their appeal from the judgment of dismissal. Defendant fails to cite any authority for the proposition that, if the People fail to make an election within the “suggested” time frame proposed in Anderson, the trial court loses subject matter jurisdiction over the second case, even when, as in the instant case, an election ultimately is made before judgment is entered in the second case. There being no such authority for such proposition, we conclude the trial court was not divested of its jurisdiction over the proceedings in the second case.
Relying on Anderson v. Superior Court, supra, 66 Cal.2d at page 867, the defendant in People v. Franc (1990) 218 Cal.App.3d 588, argued that the People could not simultaneously appeal the trial court’s ruling, striking a special circumstance allegation, and proceed to trial on the remaining criminal allegations. (Franc, at p. 591.) The information in Franc charged the defendant with murder and robbery, and included a special circumstance allegation, which the trial court ordered stricken under section 995. (Ibid.) About two months later, the People filed a notice of appeal from the order striking the special circumstances allegation. While the appeal was pending, defendant was tried on the remaining criminal charges and found guilty. (Ibid.)
The Franc court noted that it was distinguishable from Anderson since in Franc, the trial court only tried the allegations that were not affected by the trial court’s section 995 ruling. (People v. Franc, supra, 218 Cal.App.3d at p. 592.) The Franc court concluded Anderson did not bar the People from appealing the dismissal of the special circumstance allegation while proceeding to trial on the remaining allegations. The trial court retained jurisdiction to try the counts not affected by the appeal. (Ibid.) According to Franc, Anderson only prevented the People “from pursuing its right to appeal and proceeding to trial on the same charges simultaneously, and requires the People to make an election.” (Ibid.)
While factually distinguishable from the instant case, Franc supports the proposition that the trial court retained jurisdiction to try the refiled charges after dismissing the prosecution’s appeal since the appeal was never decided and therefore the refiled charges were unaffected by the aborted appeal.
Citing People v. Cunningham (2001) 25 Cal.4th 926, defendant argues that once prosecution filed its appeal of the judgment of dismissal, the trial court was divested of subject matter jurisdiction. Quoting Anderson v. Superior Court, supra, 66 Cal.2d at page 865, the court in Cunningham, supra, noted that, “as a general rule, ‘an appeal from an order in a criminal case removes the subject matter of that order from the jurisdiction of the trial court.’” (Cunningham, at p. 1044, italics added.) While this is generally true, this well established principle is not dispositive of the instant case since the appeal from the dismissal in the instant case was from an order in an entirely separate case from the subsequent case in which defendant was convicted of the refiled charges.
Defendant’s reliance on People v. Alanis, supra, 158 Cal.App.4th 1467, is likewise misplaced. In Alanis, after the trial court denied the defendant’s motions for pretrial discovery, defendant pled guilty to criminal charges. The defendant’s plea was conditional upon being allowed to challenge on appeal denial of the discovery motions. (Id. at p. 1471.) After defendant filed a notice of appeal from the judgment, the trial court and parties determined that most likely the defendant’s discovery claims were not cognizable on appeal because defendant had pled guilty. (Ibid.) The defendant was therefore permitted to withdraw his guilty plea, the case was tried, and defendant was found guilty. (Id. at p. 1472.) The defendant filed a second notice of appeal from the new judgment, challenging the rulings on the defendant’s discovery motions. (Ibid.) About three weeks later, the defendant abandoned his first appeal and the court dismissed it. (Ibid.)
The Alanis court concluded in the second appeal that the judgment, entered following a bench trial and finding of guilt, was void for lack of jurisdiction. (People v. Alanis, supra, 158 Cal.App.4th at p. 1476.) The Alanis court explained that a valid notice of appeal vests jurisdiction in the appellate court until determination of the appeal and issuance of the remittitur. (Id. at p. 1472.) An appeal thus stays all further trial court proceedings related to the appeal so as to preserve the status quo until the appeal is decided. (Ibid.) “Because an appeal divests the trial court of subject matter jurisdiction, the court lacks jurisdiction to vacate the judgment or make any order affecting it.” (Ibid.) Any action by the trial court while the appeal is pending is null and void. (Id. at p. 1473.)
The Alanis court noted there are exceptions to this general rule. One such exception is that, “notwithstanding the pendency of the appeal, ‘[t]he trial court is allowed to vacate a void – but not voidable – judgment.’” (People v. Alanis, supra, 158 Cal.App.4th at p. 1473, quoting People v. Malveaux (1996) 50 Cal.App.4th 1425, 1434.) A judgment is void, as opposed to voidable, if the trial court lacked subject matter jurisdiction. (Alanis, at p. 1473.)
In Alanis, the court concluded the first judgment was not void on its face since the trial court had subject matter jurisdiction over the defendant’s initial criminal prosecution. (People v. Alanis, supra, 158 Cal.App.4th at pp. 1473-1474.) Rather, the trial court, in effect, attempted “to vacate its initial judgment and enter a second judgment while an appeal from the first judgment was pending.” (Id. at p. 1474.) The second judgment thus was void because the trial court lacked jurisdiction during pendency of the appeal of the first judgment, to withdraw the original judgment and enter a new judgment. (Id. at p. 1476.) The Alanis court further held that, because the second judgment was void, the proper procedure was to reverse it. (Id. at p. 1477.)
Alanis is distinguishable in that in the instant case the trial court did not set aside the first judgment while an appeal from the first judgment was pending. Here, the prosecution refiled charges in a new separate case and then filed an appeal from the dismissal of the original charges in the first case. The trial court thus lost jurisdiction over the first case, in which the appeal was filed, but there was no loss of jurisdiction under Alanis in the second case. The problem in Alanis, on the other hand, was that the trial court set aside the first judgment and replaced it with a new judgment when there was no trial court jurisdiction to do so because the first judgment had been appealed.
Here, the People made an election of remedies by requesting dismissal of their appeal. The People’s delay in doing so does not constitute reversible error, particularly since defendant did not object to the delay in dismissing the appeal of the first case, there was no loss of subject matter jurisdiction in the refiled case, and there is no showing of prejudice. We accordingly reject defendant’s contention that the judgment on the refiled charges was void for lack of jurisdiction.
IV
DISPOSITION.
The judgment is affirmed.
We concur: Ramirez, P.J., Richli, J.