People v. Vasilyan, B205679.
| Decision Date | 28 May 2009 |
| Docket Number | No. B205679.,B205679. |
| Citation | 174 Cal.App.4th 443,94 Cal. Rptr. 3d 260 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. ARTHUR VASILYAN, Defendant and Appellant. |
Appellant Arthur Vasilyan was charged by the Los Angeles County District Attorney in 1994 with three counts of a violation of Penal Code section 422.7 (section 422.7). He pleaded nolo contendere to two counts; the third count was dismissed. Appellant was placed on probation on the conditions that he would serve 39 days in county jail, pay a fine, and Serve 80 hours of community service. No appeal was taken from the judgment of conviction.
On June 21, 2007, appellant, through his counsel, filed a motion to vacate the judgment and for leave to withdraw his guilty plea. Alternatively, the motion sought relief in terms of petitions for writs of coram nobis, habeas corpus, and audita querela. In large part, the motion relied on People v. Wallace (2003) 109 Cal.App.4th 1699 (Wallace), which held that section 422.7 is only a penalty provision; we set forth the entirety of section 422.7 in the margin.1 An amended motion, much to the same effect as the original motion, was filed on December 7, 2007. The motion was denied. This appeal is from the denial of the motion entered on December 12, 2007. We agree with appellant that the judgment entered in 1994 is void. We vacate appellant's plea of nolo contendere and remand with directions to amend or dismiss the information, as appears appropriate.
Our summary of the facts is based on the transcript of the preliminary hearing held on September 12, 1994.
Kiger Hansen and his friend Jason Bane were on Santa Monica Boulevard in Los Angeles when, at approximately 2:00 a.m. on August 28, 1994, a group of four or five men began abusing them verbally by calling them "`fags'" and physically attacked Hansen and Bane. Hansen was hit on the jaw, knocking a tooth loose, and he was also hit on the side of his head. Hansen identified appellant as one of the men who beat Bane. All five attackers continued to yell outrageous taunts intended to demean Hansen and Bane. They also challenged Hansen and Bane to fight, but the two men managed to get away.
Appellant and his cohorts were almost immediately arrested; the attack took place at what Hanson testified was a "hot spot" with a lot of people about and a Los Angeles County Sheriff's Department station across the street. Hansen and Bane identified their attackers within 15 minutes of the attack.
Appellant was 20 years old in August 1994. He was represented by retained counsel in the proceedings that led to his pleas. One of his contentions in support of the motion to vacate the judgment is that his counsel did not advise him of the immigration law consequences of his pleas.
Appellant currently resides in Yerevan City in Armenia. He entered the United States in 1988 with his family and became lawfully a permanent resident. He was deported in 2004 because of the pleas of nolo contendere in 1994. According to a declaration by an immigration law specialist submitted in support of the motion to vacate the judgment, his pleas in 1994 subjected appellant to three immigration law consequences. They are deportation, exclusion from admission to the United States, and denial of naturalization as a United States citizen.
In Wallace, supra, 109 Cal.App.4th 1699, 1701-1702, the defendant was charged with assault, robbery and battery. It was also alleged that the crimes were hate crimes in terms of Penal Code section 422.75 and that the assault and robbery charges constituted serious felonies for purposes of sentence enhancement. Pursuant to a negotiated disposition, the prosecution amended the information to allege a violation of section 422.7. The defendant pleaded nolo contendere to this charge, in exchange for which the remaining counts were dismissed; the defendant did not plead to any other charge or charges. The sentence was suspended, the defendant was placed on felony probation for three years, and he served 60 days in county jail. Unlike in the case before us, the defendant appealed from the judgment, contending that section 422.7 "is merely a penalty provision for which he cannot be punished in the absence of a conviction on a related substantive offense." (Wallace, supra, 109 Cal.App.4th at p. 1701.)
(1) After noting that in In re M.S. (1995) 10 Cal.4th 698, 725 [42 Cal.Rptr.2d 355, 896 P.2d 1365], the California Supreme Court characterized section 422.7 as a penalty enhancement provision (Wallace, supra, 109 Cal.App.4th at p. 1702), the Wallace court found that section 422.7 does not "identify any particular substantive crime" but rather elevates certain crimes from misdemeanors to felonies, which makes section 422.7 "plainly a penalty provision." (Wallace, at pp. 1702-1703.) The court went on to analyze section 422.7 from perspectives that we need not repeat here; suffice it to say that this analysis only confirmed the conclusion that section 422.7 is a penalty provision and that section 422.7 does not identify or establish a substantive crime.
(2) The court then turned to the question of the appropriate remedy. We set forth this part of the court's opinion in full: (Wallace, supra, 109 Cal.App.4th at p. 1704.)
Significantly, the appellate court's order in Wallace was to vacate the defendant's plea, to order the dismissed counts reinstated, and to remand the matter "for plea or trial, as appropriate." (Wallace, supra, 109 Cal.App.4th at p. 1704.)
(3) "No person can be punished for a public offense, except upon a legal conviction in a Court having jurisdiction thereof." (Pen. Code, § 681.) (Pen. Code, § 15.) In relevant part, Penal Code section 6, enacted in 1872, provides: "No act or omission, commenced after twelve o'clock noon of the day on which this Code takes effect as a law, is criminal or punishable, except as prescribed or authorized by this Code . . . ." " " (In re Harder (1935) 9 Cal.App.2d 153, 155 .)
(4) The subject matter jurisdiction of a California court presiding over a criminal prosecution is predicated on the offense. "To constitute jurisdiction in a criminal case there must be two elements, namely, jurisdiction of the person, and jurisdiction of the subject matter or, as it is sometimes called, of the offense." (Burns v. Municipal Court (1961) 195 Cal.App.2d 596, 599 .) (4 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Jurisdiction and Venue, § 1, p. 86, citing, inter alia, Burns v. Municipal Court, supra, 195 Cal.App.2d 596, 599.)
(5) (People v. Crutcher (1968) 262 Cal.App.2d 750, 754 .) That there must be a substantive crime and a punishment for that crime in...
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... ... Pryor (1906) 150 ... Cal. 1, 5 ( Dollenmayer ); People ex rel. Allstate ... Ins. Co. v. Weitzman (2003) 107 Cal.App.4th 534, 545-546 ... ( itzman ); People v. Vasilyan (2009) 174 ... Cal.App.4th 443, 450 ( Vasilyan )), a trial court also ... lacks ... ...