People v. Djekich

• Decision Date: 02 May 1991
• Docket Number: No. D010824,D010824
• Citation: 280 Cal.Rptr. 824,229 Cal.App.3d 1213
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Ratko DJEKICH, Defendant and Appellant.

Page 824

280 Cal.Rptr. 824

229 Cal.App.3d 1213

The PEOPLE, Plaintiff and Respondent, v. Ratko DJEKICH, Defendant and Appellant.

No. D010824.

Court of Appeal, Fourth District, Division 1, California.

May 2, 1991.

[229 Cal.App.3d 1216] Richard R. Muir, San Diego, for defendant and appellant.

Edwin L. Miller, Jr., Dist. Atty., Thomas F. McArdle and Karen I. Tripp, Deputies Dist. Atty., for plaintiff and respondent.

WORK, Acting Presiding Justice.

Following a plea of nolo contendere to 10 misdemeanor counts of violating San Diego County Zoning Ordinance (Zoning Ordinance) section 1006(a) (using land or building zoned single-family residential for a different purpose), Ratko Djekich was placed on probation after imposition of sentence was suspended. Among other conditions, he was ordered to pay a $1,000 fine for each count. After unsuccessfully trying to have the fine probation condition modified by staying nine fines pursuant to PENAL CODE SECTION 654¹, Djekich appealed to the Appellate Department of the Superior Court. That court affirmed the judgment and certified transfer to this court pursuant to California Rules of COURT, RULE 63², to settle a question of law it phrased as: "Does San Diego County Zoning Ordinance § 7703a, and similar ordinances, providing for successive punishment for each day of a continuing violation of the zoning laws, ³ run afoul of Penal Code § , prohibiting multiple punishment for the same act or omission?" We ordered transfer and requested supplemental briefing regarding potentially dispositive issues. Because the legislative body has expressly declared each day of designated continuous criminal conduct may be separately punished, we conclude Djekich was properly convicted of and punished for multiple offenses under the ordinance without violating section 654. Accordingly, we deny the relief prayed for by Djekich.

I FACTUAL AND PROCEDURAL BACKGROUND

On October 8, 1986, Djekich purchased a single family dwelling and workshop situated on property zoned R-1 for single family residences. By December, both the dwelling and the workshop were rented as residences for $475 per month. A few months later, the San Diego County Department of Planning and Land Use (County) found both buildings had been illegally converted into duplexes. These violations were explained to Djekich and he was asked to correct them. He did not. On May 13, a notice of continuing violations was sent to Djekich giving him time to correct them. Djekich continued to ignore the County's warnings and to collect rent for each of the four units at $475 per month (totaling $1,900 monthly). Djekich was again notified on October 8 that citations for violations would be given if immediate corrective action was not taken. On October 26, Djekich purportedly sold the property to Rista Krulevich. Although Djekich was cited for the zoning violations on October 27, he did not mention the sale of the property. In fact, he continued to rent the units, collect rent and request repairs for the property. ⁴ It is estimated that between December 6, 1986 and August 1988, Djekich collected rents totaling between $9,000 and $11,000.

On January 6, 1988, a complaint was filed in the San Diego County Municipal Court charging Djekich with 28 counts of zoning ordinance violations: 14 odd-numbered counts charging violations of Zoning Ordinance section 4310(a) (maintaining dwelling units in excess of the permitted single, detached, one dwelling unit per lot); and 14 even-numbered counts charging violations of Zoning Ordinance section 1006(a) (using land or building zoned for single-family residential for another use). Daily violations of each section were charged for April 23, April 24, May 27, June 23, June 29, July 7, July 8, July 28, August 10, August 21, August 26, September 15, October 8, and October 26, 1987.

Pursuant to a plea bargain Djekich, acting as his own attorney, pled nolo contendere to 10 counts of violating Zoning Ordinance section 1006(a) and executed a Harvey ⁵ waiver agreeing the underlying facts of the dismissed charges could be considered at sentencing. The change of plea form stated the People would seek a $10,000 fine, but would not request a jail term. ⁶ As agreed, the People dismissed the remaining 18 counts. On August 17, Djekich was placed on probation on condition he pay a $1,000 fine per count, totaling $10,000. Djekich later appeared with counsel and moved to modify, arguing the consecutive fines violated section 654. The motion was denied on October 25. Over the opposition of the People, the trial court granted Djekich's request to have the judgment entered as of that date and stay the balance of the payments pending appeal ($9,000). Djekich filed his notice of appeal on November 23.

II THIS COURT HAS JURISDICTION TO HEAR THIS APPEAL

Before the Appellate Department of the Superior Court, the People challenged the court's jurisdiction because Djekich failed to file a timely notice of appeal. Because the Municipal Court's judgment was entered August 17, 1988, the notice of appeal had to be filed within 30 days of that date. (Rule 182(a).) The People correctly assert the trial court exceeded its jurisdiction by granting Djekich's motion to deem the judgment entered as of October 25 in an attempt to resuscitate the time within which to file a notice of appeal. Although Djekich's notice of appeal was untimely, we conclude the issue posed and certified here is reviewable by writ of habeas corpus vesting the Appellate Department of the Superior Court and this court with jurisdiction to treat this matter as a writ of habeas corpus.

Pursuant to rule 182, a notice of appeal in a criminal case from a judgment or appealable order of the municipal court must be filed within 30 days after the rendition of the judgment or the making of the order. "If the notice of appeal is not filed within the time prescribed, the appeal shall be void and of no effect." (Rule 182(a).) Although rule 186(b) expressly excepts the failure to file a timely notice of appeal from its authorization of the superior court to relieve a party from default occasioned by the failure to comply with the rules upon a showing of good cause, the courts recognize certain circumstances will excuse failure to file a timely notice of appeal. (See People v. Riley (1977) 73 Cal.App.3d Supp. 1, 3-6, 141 Cal.Rptr. 16, and cases cited therein.) Where no exception applies a trial court is without power to allow the filing of a belated notice of appeal. (People v. Leftwich (1979) 97 Cal.App.3d Supp. 6, 8, 158 Cal.Rptr. 758.) It follows that if a trial court lacks the power to permit filing of a belated notice of appeal, it is without the authority to "reenter the judgment" at a later date solely to avoid the sanctions of rules 182 and 186(b).

Relying on section 1466 and People v. Woods (1978) 84 Cal.App.3d 149, 154, 148 Cal.Rptr. 312, Djekich alternatively asserts the October 25 order may be construed as an "order made after judgment affecting his or her substantial rights" pursuant to section 1466, subdivision (b)(2), in that the court's order denied his motion to modify his "sentence" to conform with section 654 and reimpose the original sentence as of that date. We are unpersuaded. His reliance on Woods is misplaced. There, this court held that a probation revocation order affected the substantial rights of the defendant and thus was appealable, under section 1466. Here, Djekich's motion to modify was denied. Because the order granting probation was appealable, Djekich's failure timely to do so precludes this belated attempt to appeal from an order denying modification. To hold otherwise would condone extending the jurisdictional time limit for filing appeals through bootstrapping. (People v. Lynn (1978) 87 Cal.App.3d 591, 592-593, 151 Cal.Rptr. 562.)

However, a defendant who accepts probation may seek relief from the restraint of any alleged invalid probation condition on appeal from the order granting probation or on habeas corpus. (In re Bushman (1970) 1 Cal.3d 767, 776, 83 Cal.Rptr. 375, 463 P.2d 727, disapproved on other grounds in People v. Lent (1975) 15 Cal.3d 481, 486, fn. 1, 124 Cal.Rptr. 905, 541 P.2d 545.)

"Although habeas corpus cannot serve as a substitute for appeal to review a determination of fact made on conflicting evidence [citations], it may be used to review the validity of a sentence or order of probation that can be corrected without the redetermination of any questions of fact. [Citations.]" (In re Bushman, supra, 1 Cal.3d at p. 776, 83 Cal.Rptr. 375, 463 P.2d 727.)

Accordingly, mindful a denial of habeas corpus is not appealable by the petitioner, but may be filed anew in a higher court (Gardner v. California (1969) 393 U.S. 367, 368, 89 S.Ct. 580, 581, 21 L.Ed.2d 601; Loustalot v. Superior Court (1947) 30 Cal.2d 905, 913, 186 P.2d 673; People v. Brotherton (1966) 239 Cal.App.2d 195, 199, 48 Cal.Rptr. 513), we elect to treat this matter as a writ of habeas corpus as a matter of judicial economy and efficiency.

III WHETHER SECTION 654 PROHIBITS THE IMPOSITION OF THE MULTIPLE FINES

Djekich contends punishing him separately for each day he violated the Zoning Ordinance as literally authorized by section 7703(a) of that Zoning Ordinance violates section 654, because his offenses were committed during an indivisible course of conduct having a single objective. Accordingly, he contends the court erred in failing to stay the fines on all but one count.

Section 654 provides:

"An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one; an acquittal or conviction and sentence under either one bars the prosecution for the same act or omission under any other."

Section 654's sentencing limitation applies to penal provisions of other codes (In re Farr (1976) 64 Cal.App.3d 605, 613, 134 Cal.Rptr. 595; ...