Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. Nos. FCR196885, FCR211302 & FCR 226451
Ruvolo, P. J.
I. Introduction
Appellant Dennis James Silva appeals from a judgment entered after the superior court revoked his probation following a contested hearing and imposed a sentence of three years in the county jail. He advances one argument on appeal––that in antecedent probation revocation proceedings, the trial court failed to suspend proceedings and conduct a competency hearing when it found he was not competent to waive his right to counsel under Faretta v. California (1975) 422 U.S. 806, 819 (Faretta). We find his challenge is untimely and dismiss this appeal.
The Sixth Amendment to the United States Constitution gives a defendant in a criminal case the right to represent himself or herself at trial. (Faretta, supra, 422 U.S. at p. 819.) So long as a defendant is mentally competent to make a knowing and intelligent choice whether to proceed in propria persona, it does not matter whether he or she will be effective in that role. (Godinez v. Moran (1993) 509 U.S. 389, 398-400 (Godinez).)
Because we confine our discussion to whether or not appellant’s appeal is cognizable, we state only the procedural history of this case, and we omit the factual basis for the numerous probation revocation proceedings conducted in this matter.
Case No. FCR196885
On March 28, 2002, an amended complaint was filed in case number FCR196885 alleging that appellant committed assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1) , exhibited a deadly weapon (§ 417, subd. (a)(1)), and battered a person with whom he had a dating relationship (§ 243, subd. (e)(1)). On May 7, 2002, a jury acquitted appellant of assault with a deadly weapon but found him guilty of the lesser charge of misdemeanor assault (§ 240)). The jury also convicted appellant of exhibiting a deadly weapon and battering a person with whom he had a dating relationship. The court suspended imposition of sentence and placed appellant on three years summary probation, with the condition that he serve 30 days in jail.
All subsequent undesignated statutory references are to the Penal Code.
Appellant filed a timely notice of appeal from his convictions. The court stayed appellant’s jail sentence pending the outcome of his appeal. On March 9, 2005, the Appellate Department of the Solano County Superior Court reversed appellant’s conviction for battering a person with whom he had a dating relationship and affirmed his other convictions. Once again, appellant was placed on probation.
Case No. FCR211302
An information was filed in case number FCR211302 on October 30, 2003, charging appellant with making criminal threats (§ 422), battery (§ 242), battery on the parent of a common child (§ 243, subd. (e)(1)), and child endangerment (§ 273a, subd. (b)). On May 14, 2004, a jury found appellant guilty of child endangerment and acquitted him of the remaining charges. On October 4, 2004, the court suspended imposition of sentence and placed appellant on formal probation for four years subject to a number of terms and conditions including, among other things, that he spend 231 days in county jail, that he participate in mental health, anger management, and child abuse counseling, and that he not have any unsupervised contact with his minor son.
On September 10, 2004, based on this new criminal conviction, the court found appellant in violation of his probation in case number FCR196885. On October 4, 2004, the court modified appellant’s probation, converting it into three years formal probation.
Case No. FCR226451
On August 24, 2005, a complaint was filed in case number FCR226451 alleging appellant had committed two counts of vandalism (§ 594, subd. (b)(1)), four counts of disobeying a court order (§ 166, subd. (a)(4), and resisting, obstructing or delaying a peace officer (§ 148, subd. (a)(1)). Appellant pleaded no contest to resisting, obstructing, or delaying a peace officer and the remaining charges were dismissed. Pursuant to a plea agreement, the trial court placed appellant on three years probation, subject only to the condition that he obey all laws.
On September 14, 2005, appellant admitted that his new conviction also violated his probation in case numbers FCR196885 and FCR211302. The court continued his probation.
On February 16, 2006, the court revoked probation in all three cases following a hearing in which it found appellant was “technically” in violation of his probation by challenging an acquaintance to a fight in a public place. The court once again continued appellant’s probation.
Case No. FCR230518
A felony complaint was filed in Solano County on February 22, 2006, charging appellant with being a felon in possession of a firearm (§ 12021, subd. (a)(1)). On March 6, 2006, the trial court permitted the prosecution to amend the complaint by adding a charge of unlawful firearm activity (§ 12021, subd. (c)(1)).
On April 24, 2006, appellant moved for an order prohibiting the county probation department from compelling him to submit any specimens, samples, or print impressions pursuant to section 296. On June 14, 2006, the trial court denied appellant’s request. Appellant filed a timely appeal from the trial court’s order, which is consolidated Appeal No. A114583.
Nowhere in his opening brief does appellant make any argument as to the court’s order requiring appellant to provide a DNA sample. Appellant has therefore relinquished any opportunity to challenge this order because a party’s failure to raise an issue in his opening brief constitutes a waiver. (Nemarnik v. Los Angeles Kings Hockey Club (2002) 103 Cal.App.4th 631, 638-639, fn. 3.)
Appellant was convicted in FCR230518. He appealed from the final judgment and sentence on June 20, 2007. Subsequently, that appeal, No. A119007, was voluntarily dismissed.
Revocation of Probation in FCR196885, FCR211302, and FCR226451
Following a contested hearing on August 8, 2006, the trial court found appellant had violated the terms of his probation in all three cases, FCR196885, FCR211302, and FCR226451. On August 21, 2006, the trial court sentenced appellant to a total term of three years in the county jail.
Appellant informs this court that he has already served the sentence imposed by the court and is no longer in custody or on probation.
On September 21, 2006, appellant timely appealed from the revocation of probation and imposition of sentence. This is consolidated Appeal No. A115323. At appellant’s request, Appeal Nos. A114583 and A115323 were consolidated for purposes of briefing, oral argument, and decision. (Order, Nov. 21, 2006, Ruvolo P. J.)
III. Discussion
On appeal, appellant makes the sole contention that the “trial court’s failure to conduct a competency hearing even though it clearly believed the evidence raised substantial doubt about appellant’s competency violated his right to the due process of law.” Appellant alleges that there were two different times during these protracted proceedings where the court’s reasons for denying appellant the right of self-representation called into question appellant’s competency to stand trial.
The first instance was on September 8, 2005, when the following exchange took place during proceedings to appoint defense counsel:
“[Defense Counsel]: I talked to [appellant] and he said that yesterday he tried to submit a Faretta.
“The Court: Yes, but physiologically [sic] there’s a report here that would not allow me to entertain that motion because of the report.
“[Defense Counsel]: So you’re saying his Faretta motion is denied.
“The Court: He’s not mentally capable of representing himself, so I’m appointing you to represent him.”
The report the court referred to was likely appellant’s psychological evaluation by Dr. Kathleen O’Meara, which was filed on December 9, 2004, in connection with case FCR196885. The report concluded that appellant was “quite emotionally and cognitively impaired” with “perceptual distortions that border on psychosis.”
A week later, appellant pleaded no contest to resisting arrest in FCR226451 and admitted violating his probation in FCR211302 and FCR196885. Pursuant to a plea agreement, the trial court suspended imposition of sentence, and placed appellant on informal probation for three years.
The next time that appellant invoked his right to self-representation was on February 16, 2006, when appellant moved for new counsel under People v. Marsden (1970) 2 Cal.3d 118 (Marsden). During the Marsden hearing, appellant asked to represent himself. The trial court denied the motion, indicating that “I’ve already ruled that it would not be appropriate to let him represent himself based upon the findings of those doctors. In fact, his rambling on today even––convinces me even more.” On February 16, 2006, the trial court, after denying appellant’s Marsden motion and his second Faretta motion, revoked and then reinstated probation in all three cases.
Appellant contends that the same evidence that led the trial court to conclude that he was incapable of representing himself due to his impaired mental functioning should have led it to declare a doubt as to his competency and to conduct proceedings under section 1368. In so arguing appellant emphasizes that the competence necessary to waive representation by counsel is the same level of mental competence necessary to stand trial. (Godinez, supra, 509 U.S. at pp. 400-410, & fn. 12; People v. Welch (1999) 20 Cal.4th 701, 732; People v. Hightower (1996) 41 Cal.App.4th 1108, 1115-1116.) Relying on this authority, appellant claims “[t]he trial court denied appellant the due process of law when it nevertheless took his plea and admissions instead of suspending proceedings and conducting a competency hearing.”
“As a matter of due process, the trial court is required to conduct a section 1368 hearing to determine a defendant’s competency whenever substantial evidence of incompetence has been introduced. [Citations.]” (People v. Frye (1998) 18 Cal.4th 894, 951-952.)
In reply, respondent argues, among other things, that this challenge is untimely and should not be heard. Respondent points out that appellant’s argument that the court erred in failing to initiate competency proceedings pertains to events which took place when the court denied appellant’s Faretta motions on September 8, 2005, and February 16, 2006. Respondent claims that appellant should have raised his complaint that the trial court was required to suspend proceedings and inquire into his competency in appeals taken from the sentencing orders entered after those proceedings. Instead, appellant has waited to raise this issue until his appeal from a contested probation revocation hearing held on August 8, 2006, when he was sentenced to serve three years in the county jail based on a new criminal violation.
When a court grants probation and suspends the imposition of sentence, “such an order granting probation is ‘deemed to be a final judgment’ for the limited purpose of taking an appeal therefrom [citation] . . . .” (People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 796.)
The persuasive force of respondent’s argument has been bolstered by this district’s recent opinion in People v. Ramirez (2008) 159 Cal.App.4th 1412 (McGuiness, P. J.). In Ramirez, the defendant attempted to challenge an increased sentence that was imposed in 2004 as part of a plea agreement that allowed him to remain on probation. However, he waited to make that challenge until 2006, when the court terminated his probation based on a new violation, and ordered him to serve the prison term that had been imposed but suspended in 2004. The Ramirez court found that the defendant was precluded from seeking relief because he had failed to raise this sentencingerror in a timely appeal from the original imposition of sentence in 2004. In a passage with applicability to the case before us, the Ramirez court held “a defendant who elects not to appeal an order granting or modifying probation cannot raise claims of error with respect to the grant or modification of probation in a later appeal from a judgment following revocation of probation. [Citations.]” (Id. at p. 1421.) We find this reasoning persuasive, and hold that the appellant has forfeited his claim on appeal by failing to timely assert it.
Appellant argues that he is nevertheless entitled to raise this issue at any time because the trial court’s failure to hold a competency hearing “rendered void all of the criminal proceedings that followed, including its ultimate decision to revoke probation and impose sentence.” Of course, when a court lacks jurisdiction in a fundamental sense, because there is an absence of power to hear the case, any resulting judgment is void and may be attacked at any time. (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660.) However, in other situations, the court may have jurisdiction over the subject matter and the parties, but lack “ ‘jurisdiction’ . . . 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.]” (Id. at p. 661.) In such a case, the court has exceeded its jurisdiction, making any resulting judgment merely voidable, rather than void. (Ibid.) As summarized in Ramirez, “[w]hereas a lack of fundamental jurisdiction may be raised at any time, a challenge to a ruling in excess of jurisdiction is subject to forfeiture if not timely asserted. [Citation.]” (Ramirez, supra, 159 Cal.App.4th at p. 1422.)
In People v. Superior Court (Marks) (1991) 1 Cal.4th 56, the court addressed whether failure to comply with section 1368 by holding a formal competency hearing effected a “fundamental loss of jurisdiction” or represented an act in excess of authority. (Id. at p. 66.) The court concluded that “the trial court does not lose subject matter jurisdiction when it fails to hold a competency hearing, but rather acts in excess of jurisdiction by depriving the defendant of a fair trial. [Citation.]” (Id. at p. 70.) Thus, appellant’s claim that this issue cannot be waived is incorrect. Because this alleged error did not implicate the trial court’s fundamental jurisdiction, appellant’s failure to raise it in a timely manner prevents him from raising it in this appeal.
IV. DISPOSITION
The appeal is dismissed.
We concur: Reardon, J., Rivera, J.