Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 197498.
RUSHING, P.J.
In this third appellate chapter of what has become an epic post-conviction procedural saga, defendant Charles Fordjour challenges the judgment of conviction which the trial court reinstated in his absence when he failed to appear at a hearing on his motion to withdraw his plea. At the urging of the prosecutor, who stated that he was acting on the advice of the Attorney General’s office, the court ordered the motion off calendar and reinstated the judgment without making any attempt to secure defendant’s attendance, even though it knew that his absence was the result of his having been turned over to federal immigration authorities. The success of this prosecution strategy has cast this court yet again onto previously uncharted procedural waters. We have concluded that the court’s actions violated defendant’s statutory and constitutional rights to be present during proceedings against him, as well as this court’s prior mandate, and thus compel us once again to reverse the judgment, even though it may now be impossible to reinstate it.
Background
We described the original history of this matter in People v. Fordjour (Feb. 9, 2006, H027293) [nonpub. opn.] (Fordjour I): “It appears that in February 1996, defendant used another person’s name and credentials to secure a technical position, for which he was not qualified, with Toshiba America Electronic Component, Inc. (Toshiba). Toshiba paid him a $3,000 hiring bonus as well as $9,096 in moving expenses he claimed to have incurred in transferring himself and his family from Arizona to California. After paying him another $10,048 in salary, Toshiba discharged him for absenteeism. Subsequent investigation revealed not only that defendant had applied under another person's name, but that his claim for moving expenses had been based upon falsified documents. In fact he had never moved to California, but had continued to reside in Arizona throughout the time he remained on Toshiba's payroll.
“Based on these events, an information was filed on July 3, 19[9]7, charging defendant with obtaining money by false pretenses in violation of Penal Code section 532. On July 7, 19[9]7, defendant entered a plea of not guilty.... [¶] On September 22, 1997, defendant changed his plea to guilty....” (Fordjour I, supra, H027293 [p. 2].)
Defendant secured repeated continuances of his sentencing hearing, ultimately failing to appear because he had begun serving a prison sentence in Arizona. (Fordjour I, supra, H027293 [p. 3].) While so incarcerated he filed “many motions, petitions, and applications in this action.” (Ibid.) These included a motion, apparently submitted in 1998 or 1999, to withdraw his guilty plea. (Id., [p. 4].) In January 2004, after completing his Arizona sentence, he was again brought before the court below. At that time his retained counsel brought the plea-withdrawal motion to the court’s attention, noting that it had apparently never been addressed, but expressing reluctance to present it given his impression that his own advice to defendant might bear on the validity of the plea. The trial court therefore appointed a deputy public defender to represent defendant for the limited purpose of the plea-withdrawal motion and such matters as might appear connected with it.
Before appointed counsel could appear on the merits on the motion, defendant filed a motion seeking to replace her under People v. Marsden (1970) 2 Cal.3d 118, (Marsden), or to represent himself under Faretta v. California (1975) 422 U.S. 806. When the plea-withdrawal motion came on for hearing, appointed counsel pronounced it meritless and the court denied it—but without addressing defendant’s Marsden motion or his Faretta request. That omission led us in Fordjour I to reverse the judgment with directions to address these matters and, if either request was granted, to entertain the plea-withdrawal motion on the merits. (Fordjour I, supra, H027293 [at p. 27] as mod. Mar. 9, 2006.)
On remand the trial court denied both the Marsden motion and the Faretta request. (See People v. Fordjour, No. H030466, opn. filed Oct. 3, 2007, at p. 15 (Fordjour II).) We upheld the Marsden ruling upon concluding that no deficiency had been shown in appointed counsel’s performance and that any procedural errors committed in hearing the motion were harmless. (Id., [pp. 26-27].) However we were once again compelled to reverse in light of our conclusions that the Faretta request was timely, that the trial court therefore had no discretion to deny it, and that the error in doing so was structural and reversible without regard to prejudice. (Id., [pp. 28, 32, 33].) Accordingly, we issued the following disposition: “The judgment is reversed with instructions to permit defendant to present his motion to withdraw his plea in propria persona. If that motion is denied, the judgment shall be reinstated. If it is granted, the court shall permit defendant to withdraw his plea and proceed as if the plea had not been entered.” (Id., [p. 37], fn. omitted.)
In a footnote we observed, “We lament the expenditure of judicial resources represented by this appeal and by the further proceedings we are now compelled to direct. Remand could have been avoided, and indeed this appeal itself might have been obviated, had the trial court, after denying defendant's Marsden motion, simply granted the Faretta request and heard defendant's motion to withdraw his plea, which appears to have lacked any persuasive factual basis. But we are constrained to honor a timely Faretta request, and to require trial courts to do likewise, even if the result appears preordained. If the case has a moral, it may be that a court will rarely go astray by erring on the side of patience and solicitude for the rights of litigants, even and perhaps especially those deemed less deserving.” (Id., [p. 37, fn. 11].)
We issued our remittitur in that matter on October 3, 2007. Apparently steps were taken to comply with our directive, but defendant was transferred to custody in Kings County before the plea-withdrawal motion could be heard. This at any rate was the report of a staff attorney at the Sixth District Appellate Project, who wrote to the trial court on March 16, 2009, stating that defendant had by then been returned to custody in Santa Clara County and requesting that a new hearing date be set, as defendant was “now able to attend the hearing.” About a week earlier, defendant himself had written to the court with an “emergency motion” that his matter be placed on calendar and that he be released from custody on his own recognizance. He appeared in court on March 13, at which time the court set a further hearing date of March 27.
On March 18 the court scheduled March 25 for a hearing on a motion “for supplies.” Defendant appeared on that date, asking the court to “reinstate [his] pro per status, ” apparently so that he could obtain access to the jail library and office supplies. After reviewing our 2007 opinion the court confirmed that defendant was asking to be allowed to represent himself and for access to supplies for that purpose. Defendant completed a “Faretta” form and the court admonished him concerning the risks of self-representation. Defendant also asked the court to appoint a “private investigator” to “investigat[e] the issues I am willing to raise.” The court granted the self-representation request, but declined to rule on the request for appointment of an investigator, stating, “If that’s something you think is important based on the further research that you do, you can make that motion at a later time.”
Meanwhile, on March 24, 2009, the court had received a letter from the federal Bureau of Immigration and Customs Enforcement (ICE) requesting certified copies of specified “Conviction Documents” in this case including the complaint, the abstract of judgment, and any minute orders reflecting the judgment. The letter bore the prominent legends “PLEASE RUSH!!!” and “Subject in Custody!!!!!!!!” In the body of the letter were the statements, “He may be released soon from custody. Deportation from the U.S. is pending these documents.”
On April 1, 2009, defendant filed a written motion for appointment of an investigator. On April 3, with defendant present, the court set June 26, 2009, as the date for a hearing on defendant’s motion to withdraw his plea. The order contained the notation, “No continuances.”
Defendant again came before the court on April 29, 2009, in support of a request for specific supplies, which the court largely granted. Defendant also supported his request for an investigator by stating that one had previously been appointed, but had been unable to complete his work before defendant was removed to another county. The court granted that request up to a specified level of expense. The court then discussed with defendant his motion to withdraw his plea, calendared for June 26, 2009. The court asked defendant whether he had yet written his motion, to which he replied that he had not: “[T]he motion also involves calling some witnesses for the hearing. It’s going to be, like, for a mini trial; and then during that motion, because a witness—this case goes back to 1996, and there are witnesses that I need to present during the motion here before judge by the 27th.” The court replied that defendant had to be “ready on June 26th to do your motion.”
Defendant then suggested that he should be “release[d] on my own recognizance” because “Judge Lisk” had determined on March 27, 2008, that “I cannot do any more time.” He acknowledged that he was being detained under a “civil hold, ” which he explained meant “an I.C.E. hold from the department.” He stated that he was challenging that hold by writ in federal court. The court appeared to agree with his characterization of the 2008 order, which is not included in the present record. The court stated that defendant was “not in custody on this case” or “on this docket, ” but added that Judge Lisk “didn’t have any authority to release you from an I.C.E. hold.” Defendant replied that he wanted the court to make an order for his release so that “when I receive my order from the federal court, I will immediately be released into the motion back to this court, for the court to issue the order for me to be released.” The court replied that “The only thing holding you is the I.C.E. hold. So if you get that released, then they will let you out.” The court reminded him that, if he was released, “you remember June 26th, nine o’clock.” The court also expressed some doubt about defendant’s entitlement to various “pro per” materials in view of his being “not in custody on this case.”
Defendant was apparently referring to a March 27 minute order concerning proceedings before Judge Bryan, which contains the notation “NIC on this.” We surmise that “NIC” means “not in custody, ” such that the notation as a whole means the present charges were not a basis for detaining defendant. The record also contains a minute order concerning proceedings before Judge Lucas (which might have become “Lisk” through fault of memory or transcription), but that order is dated March 25, not 27, and contains no reference to defendant’s custody status except “Status remains.”
The court’s minute order of April 29, 2009, recites that defendant was “on ICE hold.”
On May 12, 2009, the court issued a formal order appointing Ed Anderson as defendant’s investigator, with jail visitation rights. The order authorized a budget in a specified amount for time and costs.
On May 15 and 19, 2009, defendant filed written motions seeking funds to acquire a digital audio player to assist in his defense. He appeared at a hearing on that matter on May 27 and at another hearing on June 3 concerning a request for additional supplies and phone calls.
On June 9, 2009, investigator Anderson wrote to the court stating in part, “On or about 6-5-09 it became apparent that the defendant was no longer incarcerated in Santa Clara County. According to jail personnel, INS / ICE took custody of him sometime around that date.... I have no idea where he is or when he might be returned, if at all.... [¶] In light of these circumstances, defense investigative efforts will be suspended. Please call, write or email if you have any questions.”
The record does not include a transcript of the proceedings on June 26, 2009, when the court was scheduled to hear defendant’s motion to withdraw his plea. According to the minute order, however, defendant was absent and investigator Anderson “inform[ed]” the court that “ICE took Fordjour into custody.” The order further recites that a bench warrant in the amount of $5,000 was “ordered” but “stayed.” No other action was taken, and the matter was continued to July 10, 2009.
On July 10, defendant was again absent and the court addressed the prosecutor as follows: “All right, Mr. Kwok, you were going to look into some suggested solutions on how to get Mr. Fordjour back to our court.” (Italics added.) Mr. Kwok saw the matter somewhat differently: “I think that what I was doing was possibly to figure out a solution as to what we could do with Mr. Fordjour not being here.” (Italics added.) He said that he had discussed the matter with the Deputy Attorney General “involved in the original appeal, ” and had reached the conclusion that the court had adequately complied with this court’s directive by permitting or allowing defendant to make the plea-withdrawal motion; that defendant had “the ability at least to write to the court or contact the court”; that the burden was on defendant to prosecute the motion; and that the court should therefore vacate the hearing date on the plea-withdrawal motion and reinstate the judgment. By way of background, Mr. Kwok reported that he heard the previous week that defendant “was in San Francisco” at the federal immigration office and was not being held incommunicado, so far as Mr. Kwok knew.
The court then described some of the unreported proceedings from the June 26 hearing. The court said, “I indicated that I was going to issue a bench warrant for Mr. Fordjour to allow—not a no-bail bench warrant, but some type of bench warrant in order to allow the mechanism to have him brought back to the court. [¶].... [¶].... And you objected to that. And I believe it was with good basis, and that was because you said he had fulfilled his sentence in his [sic] entirety.” (Italics added.)
Mr. Kwok concurred in this description and added, “I think the People’s position is, as to the warrant, the People would request the court not issue the warrant because he has served his entirety of the sentence that was imposed by Judge Taylor. [¶] Therefore I do not believe—at least the People do not believe, he should be—if he does come back to the United States at some point in time, he be placed in custody, and, again, judgment should be reinstated, and just let it be as it is.” (Italics added.)
The court agreed that this was “a very good point, ” adding, “Mr. Fordjour is very prolific, has been very prolific in terms of his letters to the court. I know I received several letters from him, and they are all contained in the court file, as have other judges. And I have not heard from him since his deportation or since his last court appearance. [¶] So, accordingly, the motion is ordered off calendar, and judgment in this matter is reinstated. And perhaps we’ll hear from him in the future.”
On July 23 defendant wrote to the clerk of the superior court as follows: “Please be advised that I am hereby requesting for a copy of the minute order and Ruling of Hon. Judge Bryan Dept #27 on June 26, 2009. [¶] For the record, I was scheduled for a court Hearing before Hon. Judge Andrea V. Bryan on June 26, 2009[, ] but I could not appear due to transfer of custody on June 05, 2009 before my court date. [¶] This constitutes my second request with no response to date. I am specifically seeking to preserve my Appellate Rights and Any Related Appeal issues. [¶] Please respond ASAP....” (Underlining in original.)
On August 10 defendant filed a notice of appeal from the order of July 10, 2009. It was accompanied by a request for certificate of probable cause stating in part, “This case was scheduled for Court Hearing on June 26, 2009 but on June 05, 2009 defendant was transferred to Federal Custody at Yuba County Jail. Defendant never waived his Right to Any Court Appearances and his Defense and therefore the Judgment Reinstatement by the court was involuntary and improper, and must be set aside and vacated.” (Underlining in original.) The trial court granted the request on August 13, 2009.
Discussion
I. Statutory Violation
The reinstatement of the judgment in defendant’s absence was unquestionably a violation of statute. A defendant charged with a felony “shall be personally present at... all... proceedings unless he or she shall... execute... a written waiver of his or her right to be personally present....” (Pen. Code, § 977, subd. (b)(1); see Cal. Const., art. I, § 15.) The court may proceed in the defendant’s absence in noncapital cases so long as the absence is voluntary. (Pen. Code, § 1043, subd. (b)(2); see, e.g., People v. Connolly (1973) 36 Cal.App.3d 379, 384, 387.) As the court below knew, however, defendant was not absent of his own volition. He had been turned over to federal authorities. Proceeding in his absence was, on its face, a clear violation of his statutory right to be present.
Nor does it appear that the court complied with this court’s directive in Fordjour II, supra, H030466 [p. 37], that it “permit defendant to present his motion to withdraw his plea in propria persona, ” and that “[i]f that motion is denied, the judgment shall be reinstated.” (Id., [p. 37] fn. omitted, italics.) The prosecutor argued that the court adequately complied with the first part of this directive by allowing defendant an opportunity to file a written motion, and that his subsequent inability to attend the court in order to prosecute the motion placed no obligation on the court. But the code clearly directs otherwise where a defendant’s attendance is necessary to give effect to an appellate judgment: “Where it is necessary to obtain personal jurisdiction of the defendant in order to carry the judgment into effect, upon a satisfactory showing that other means such as contact by mail, phone, or notification by means of the defendant’s counsel have failed to secure the defendant’s appearance, the court to which the certificate has been remitted may issue a bench warrant.” (Pen. Code, § 1265, subd. (b) (§ 1265(b)), italics added.)
This power does not depend, as the prosecutor told the court below, on the defendant’s already being in custody, or subject to custody, for some other cause. It does not require that there be time remaining to be served on any underlying sentence. It depends only on (1) the failure of other attempts to secure his attendance, and (2) his presence being necessary to carry the appellate judgment into effect. Thus if a defendant’s presence is necessary to effectuate an appellate mandate, and he fails or refuses to appear voluntarily, a bench warrant may be issued to compel him to appear. If he is willing to appear but is prevented from doing so because he is being detained by another sovereign, a bench warrant may be issued to provide a basis for seeking the delivery of his person by the other sovereign—as the court below said, “to allow the mechanism to have him brought back to the court.”
Here the trial court’s initial instinct was to do exactly this. That instinct was sound. Presumably a bench warrant would have been honored by federal authorities. If not, and if other avenues for securing his delivery were unsuccessful, the record would at least show due diligence by agents of the state to secure his presence and provide the hearing directed by our previous judgment.
Unfortunately, however, the prosecutor prevailed upon the court not to follow its instinct. He told the court that he had consulted with the state’s appellate counsel in this matter. Both of them seemed to conclude that the court was powerless to issue a bench warrant if defendant had fully served his sentence in this matter. That contradicts not only the statute just cited but common sense. Courts always have the power to compel the attendance of persons within their territorial jurisdiction whose presence is necessary to carry out their jurisdiction over matters properly vested in them. The statute merely confirms that this power remains available after an appellate remand.
The prosecutor also seemed to suggest that even if the court had the power toissue a bench warrant, it was under no obligation to do so. That premise reflects, at best, the same parsimonious approach to defendant’s procedural rights that has already produced two appellate reversals in this matter. Both of those reversals were compelled not because we discerned any substantive merit in defendant’s motion to withdraw his plea—we have repeatedly acknowledged serious doubts on that point—but because his basic procedural rights had been violated so egregiously that we were compelled to reverse the judgment for correction of these errors.
II. Constitutional Violation—Critical Stage
In addition to his statutory rights, it appears that the dismissal of defendant’s motion and reinstatement of the underlying conviction violated his federal constitutional right to be present during criminal proceedings against him. That right extends to “any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure.” (Kentucky v. Stincer (1987) 482 U.S. 730, 745.) Defendant contends that the “reinstatement of a criminal judgment” and a “decision to forego a hearing on a motion to withdraw [a] plea, ” are critical stages for purposes of this rule. We fail to discern any colorable basis on which to disagree. The questions whether to permit defendant to withdraw his plea, and whether to reinstate the judgment, were certainly “ ‘ “critical to [the] outcome” ’ ” of the case. (People v. Santos (2007) 147 Cal.App.4th 965, 973 (Santos), quoting People v. Waidla (2000) 22 Cal.4th 690, 741–742.) With respect to the plea withdrawal motion, defendant’s presence would certainly “contribute to the fairness of the procedure[]”; indeed, since he was representing himself, the motion could not be presented in his absence. And since his absence was the sole reason for reinstating the judgment, it can hardly be questioned that his presence would have altered that outcome, at least until the motion to withdraw the plea could be heard. In short, the direct and immediate result of the court’s actions was that defendant lost his case. It is difficult to conceive of a stage of prosecution that could bear more directly on its “outcome.”
Respondent does not attempt to address the constitutional criteria but instead marshals a host of citations in the apparent hope of lending a semblance of substance to a contrary view. (See Belyeu v. Johnson (5th Cir. 1996) 82 F.3d 613, 615 [expressing “doubt that a prisoner has the constitutional right to be present when a state trial judge sets the date for execution” of capital judgment]; Trussell v. Bowersox (8th Cir. 2006) 447 F.3d 588, 592 [no settled right “to be present for the non-discretionary correction of a mistake in a judgment...”]; Floyd v. Alexander (6th Cir. 1998) 148 F.3d 615, 619 [amendment of sentence to impose consecutive sentences mandated by state law]; United States v. Barragan-Devis (9th Cir. 1998) 133 F.3d 1287, 1289 [defendant “may not have had” right to be present when juror’s note to judge considered, though he “did have the Sixth Amendment right to be represented by his attorney at such a conference”]; People v. Shabazz (1985) 175 Cal.App.3d 468, 473-474 [defendant’s presence not necessary when judgment amended to delete presentence credits erroneously allowed]; People v. Scott (1946) 74 Cal.App.2d 782, 784 (Scott) [defendant not entitled to be present for probation revocation and issuance of bench warrant, so long as he was present when court pronounced sentence]; Ex parte Spagnoli (1924) 193 Cal. 472, 473 [presence not required for “reimposition” of sentence after affirmance of judgment of death; order was “nothing more than the fixing of a date for carrying into execution of that judgment”]; People v. McCoy (2005) 133 Cal.App.4th 974 [neither defendant nor counsel was entitled to be present when testimony was read back to the jury].) None of these authorities furnishes a principled ground to conclude that a hearing in which a court orders a plea-withdrawal off calendar and reinstates a judgment of conviction is not a critical stage for purposes of a defendant’s constitutional entitlement to attend proceedings against him.
Respondent’s citation of Scott may be a drafting error. This at any rate is suggested by the précis of that case in respondent’s brief, which seems to describe not Scott but In re Ralph (1946) 27 Cal.2d 866. The latter decision, however, is no more germane than the former; it concerned the defendant’s right to be present for the reinstatement of an underlying conviction after the Youth Authority exercised its discretion to reject the defendant for placement.
In lieu of any coherent argument on this point respondent quotes the entire analysis of the parallel question in Santos, supra, 147 Cal.App.4th 965, 972-974. That case held that a jury’s request to leave the courthouse through a private exit after rendering its verdict, and the court’s decision to approve that request, were not critical stages of the proceeding at which the defendant had a constitutional right to be present. Respondent makes no attempt to draw any parallel between a jury’s exit from a courthouse and a court’s entry of judgment against the defendant without carrying out an appellate directive to hear his motion to withdraw his plea. Indeed respondent’ purpose in quoting virtually the entire legal analysis in the case eludes us entirely. We conclude that the hearing from which the present orders arose was indeed a critical stage at which defendant was constitutionally entitled to be present.
III. Forfeiture
Respondent suggests that defendant “forfeited” any claim of error because “[he] did not appear” and “made no communication to the court requesting a continuance, assistance in appearing, or a new date for the hearing.” Respondent cites cases holding, in respondent’s words, that “[a] right to presence may be forfeited by the defendant’s knowing absence” and that “[a] claim based on the right to presence may be forfeited by failure to object in the trial court.”
These statements raise two distinct arguments. The first is that defendant, by his “knowing” absence, forfeited the substantive right to be present. So isolated, the premise virtually refutes itself. Defendant would have also been “knowingly” absent if he had been left in a holding cell in the courthouse basement, or handcuffed to a bench outside the courtroom, but that would hardly empower the court to proceed in his absence. To the extent a defendant’s “knowledge” is relevant to a forfeiture of the right of presence, it can only be to limit the preclusive effect of his voluntary absence. That is, the voluntary nature of an absence might not be enough to effect a forfeiture if the defendant is justifiably ignorant of the occasion for his attendance. Certainly if a defendant is excusably ignorant that there is a hearing to attend, a finding that he forfeited his right by failing to attend would be very difficult to justify. But this does not mean that his knowledge of an occasion to attend, by itself, can sustain the imposition of a forfeiture. He must be absent of his own volition and with knowledge, or at least reasonable notice, of the occasion for attendance. Here defendant certainly knew of the original hearing date on his motion to withdraw his plea. But since his absence was involuntary—since he was prevented from attending, in part, by the state’s own action in surrendering his person to another sovereign—that knowledge is immaterial.
Whether he knew of the continued hearing date, at which the court made the orders now under scrutiny, is another question. Nothing in the record shows any attempt to give him notice, and the likelihood that he got notice is cast in doubt by the prosecution’s apparent ignorance, at any given time, of his actual location. His letter of July 23, 2009, reflects an apparent supposition on his part that an order on the merits of his motion had been made on the original hearing date of June 26—perhaps a reasonable inference, but an erroneous one, suggesting that he did not know of the continuance to July 10.
Respondent’s second claim of forfeiture is predicated on the familiar premise that a defendant may forfeit an appellate claim of error by failing to assert an appropriate objection in the trial court. But we agree with defendant’s appellate counsel that to impose a forfeiture on this ground in the present context would bear more resemblance to the fiction of Franz Kafka than to any ordered system of honest legal principles. Respondent’s authority on this point is Santos, supra, 147 Cal.App.4th 965, 972, where the defendant failed to raise the constitutional point in a post-trial motion. The theory of the motion was that by denying counsel the opportunity to attempt to speak to jurors, the court prevented the defense from determining whether there might have been juror misconduct. As a remedy, the defense sought the jurors’ private identifying information. The trial court denied the motion. On appeal the defendant argued for the first time that the trial court’s actions had violated his right to be present at critical stages of the proceeding. The reviewing court rejected this contention on multiple grounds, one of which was that he had forfeited the point by failing to present it to the trial court.
As with its oblique attempt to establish that the hearing below was not a critical stage, respondent leaves us to guess how the cited case is thought to furnish useful precedent here. Certainly there was a failure to object in both cases. Beyond that no obvious similarity appears; instead, material distinctions abound. First, in Santos the possibility that the trial court’s action might implicate the defendant’s right to presence was inobvious, to say the least. The purpose of a predicate objection is to apprise the trial court of a potential defect in the proceeding in order to provide it with an opportunity to correct the defect and avert an appellate reversal. Thus in People v. Scott (1994) 9 Cal.4th 331, 353, the court adopted a rule of “waiver” of certain sentencing errors on the rationale that “[r]outine defects... are easily prevented and corrected if called to the court's attention” and that the rule would “reduce the number of errors committed in the first instance and preserve the judicial resources otherwise used to correct them.” But when a court imposes judgment on a defendant it knows is involuntarily absent from the proceeding, the possibility that it is infringing the defendant’s right to be present is obvious. The court here obviously suspected that this presented a defect in the proceeding, which it proposed to address by issuing a bench warrant. The prosecutor dissuaded it from doing so. No objection from defendant was necessary to bring the issue to the court’s attention.
Second, in Santos the defendant might be seen to have had a reasonable opportunity to raise the objection when he moved to unseal the juror information. The court apparently found that it was his failure to do so that effected the forfeiture of his constitutional objection. The motion to unseal apparently served as the “meaningful opportunity to object” on which any rational holding of appellate forfeiture must rest. (People v. Scott, supra, 9 Cal.4th 331, 356; People v. Gonzalez (2003) 31 Cal.4th 745, 748, 751.)
Respondent identifies no comparable opportunity to object here, and we discern none. Certainly there is no basis to conclude that defendant had any opportunity to object at the hearing since, through no act of his own, he was not there. Nor does the record show that he had a meaningful opportunity to object before the hearing. There is no evidence that he was able to communicate with the court at all between the time of his transfer to federal custody and either the original hearing date of June 26, 2009, or the continued date of July 10, 2009, when the court actually made the orders under review. Apparently, the only information before the court concerning his ability to communicate was what the prosecutor said at the July 10 hearing: “[E]ven though he’s not here today, or he’s in custody, perhaps, of the Homeland Security for probably deportation process, he is not held without any outside contact. He has the ability, I believe—it’s the People’s position is that he has the ability at least to write to the court or to contact the court.” (Italics added.) But nothing resembling factual support was offered for this “position, ” and the prosecutor seemed to have no real idea whether defendant was able to communicate with the court or not. Indeed he did not even know whether defendant was in the country, as reflected in his comments that, “Unfortunately, Mr. Fordjour was deported, or I.N.S., the federal government, has taken him away, ” and, “Last week, I heard he was in San Francisco, the I.N.S. Homeland Security office. Again he would have the process of before he was deported to let the court know that he was still interested. That’s assuming at this point he’s already deported to whatever his home country is.” (Italics added.)
The record does establish that, some two weeks after the hearing, defendant was able to contact the court in writing. Thus on July 23, 2009, he wrote to the court requesting a copy of its order. The letter’s return address is the Yuba County Jail. But this does not show where he was prior to that time, let alone that he could have written to the court at any other time. As noted, the prosecutor reported having “heard” that defendant had been “in San Francisco” some time earlier. If the prosecution could not even say with any definiteness where defendant was, it is impossible to credit its “position” that he was able to communicate with the court.
Furthermore, for a party to have a fair opportunity to object, he must receive timely knowledge, or at least notice, that the court has taken, or intends to take, an objectionable action—“timely” meaning, with sufficient time to lodge an objection and seek to avert or correct that action. (See, e.g., People v. Kennedy (2008) 168 Cal.App.4th 1233, 1241, fn. 3; People v. Ross (2007) 155 Cal.App.4th 1033, 1048.) Here there is no suggestion that defendant knew the court was contemplating a dismissal of his motion, let alone a reinstatement of the judgment, while he was in federal custody and involuntarily prevented from attending. Prior to the court’s taking those actions he would have been eminently justified in supposing that the court would seek to use its processes to secure his attendance so as to carry out this court’s mandate. At a minimum he might expect that the court would exercise its power to issue a bench warrant under section 1265(b) and see if federal authorities would honor it. It does not appear that the court itself knew what it might do—other than issue a bench warrant—until the prosecutor made his proposal during the hearing of July 10. There is no evidence that defendant was ever given notice of that proposal, let alone of the court’s intention to adopt it. It is therefore impossible to see how he could have been required to object to it in writing before it ripened into a fait accompli.
Nor does respondent point to anything in the record suggesting that there was something defendant might have said, in a letter, that would have had any influence on the proceeding. Perhaps he might have asked the court to issue a bench warrant, but the record shows that the court considered such a step on its own motion, and was apparently dissuaded by the prosecutor from taking it on the basis that defendant “had fulfilled his sentence in his [sic] entirety.” That objection would presumably have been just as persuasive, however unsound, if the warrant had been requested by defendant rather than contemplated by the court on its own motion.
Respondent also seems to suggest, with extreme indirectness, that defendant should have sought relief in the trial court after it reinstated the judgment and ordered his motion off calendar. Thus respondent observes that after the offending order was made, defendant filed a notice of appeal rather than a “request to set aside the judgment and recalendar the motion in the trial court.” Later respondent states that “a reinstated judgment may be set aside by the trial court upon a proper showing, ” and that the reinstatement here did not “preclude[e] a motion to set aside the judgment for fraud, coercion, or mistake, ” combined with “recalendar[ing] the motion to withdraw the plea.” The relevance of these assertions, and the authorities cited to support them, is tenuous at best unless they are intended to imply that defendant could and should have brought a motion to vacate the judgment in the trial court, and that his failure to do so effected a forfeiture of his constitutional objections. Respondent’s failure to straightforwardly assert that proposition is understandable, however, because it is extravagantly unsound.
Respondent’s ostensible purpose in making these assertions is to establish that “[t]he steps taken by the trial court here had far less significance than that found non-critical in Santos.” We fail to see how the entry of a judgment of conviction against a defendant can be rationally viewed as “less significan[t]” than a jury’s departure from the courthouse. Respondent may mean to imply that the former is less “critical” because in some circumstances it can be remedied, i.e., some judgments can be vacated or reversed on appeal. But the trial court’s actions in Santos could also have been remedied—most obviously, by releasing the juror information sought by the defense.
A court certainly has the power, in a pending case, to reinstate a motion it has taken off calendar. Therefore, had the court stopped with ordering the plea-withdrawal motion off calendar, defendant certainly would have been able to seek its return to the calendar and, in the course of so doing, to raise his objections to the previous order. But the court did not merely order defendant’s motion off calendar. It reinstated, i.e., entered the judgment of conviction. The court had no power to set aside that judgment on any ground asserted here by defendant.
As the case cited by respondent points out, the law recognizes a nonstatutory motion to vacate a criminal judgment, which is substantially equivalent to the common law writ of error coram nobis. (People v. Carty (2003) 110 Cal.App.4th 1518, 1526; see People v. Hyung Joon Kim (2009) 45 Cal.4th 1078, 1096 (Hyung Joon Kim).) But this is a “remedy of narrow scope.” (People v. Mendez (1956) 144 Cal.App.2d 500, 502-503; see Hyung Joon Kim, supra, at p. 1093 [noting “narrowness of the remedy”]; id. at p. 1091 [grounds for relief narrower than for habeas corpus]; id. at p. 1104 [declining to extend remedy beyond “traditionally narrow limits of the writ”].) It is available in this state only when the defendant shows, among other things, that “ ‘some fact existed which... was not presented to the court..., and which if presented would have prevented the rendition of the judgment.’ ” (Id. at p. 1093, quoting People v. Shipman (1965) 62 Cal.2d 226, 230.) Thus, “ ‘[t]he remedy does not lie to enable the court to correct errors of law.’ ” (Ibid., quoting People v. Banks (1959) 53 Cal.2d 370, 378.) Moreover, the remedy “is unavailable when a litigant has some other remedy at law, ” which includes “ ‘a remedy by (a) appeal or (b) motion for a new trial’ ” of which the defendant “ ‘failed to avail himself.’ ” (Ibid., quoting People v. Blalock (1960) 53 Cal.2d 798, 801.)
Obviously, if a motion to vacate the judgment is not available where the defendant has a right to appeal, his failure to make such a motion cannot furnish the basis for holding that he has forfeited his right to appeal. To the extent respondent may be understood to suggest otherwise, we emphatically reject the suggestion.
Disposition
The judgment is reversed. If it appears that the court can secure defendant’s attendance, it shall do so and shall recalendar his motion to withdraw his plea. Until that time the judgment shall stand vacated.
WE CONCUR: PREMO, J., ELIA, J.