Opinion
C042714.
11-20-2003
THE PEOPLE, Plaintiff and Respondent, v. ANDEN JAMES KISAMORE, Defendant and Appellant.
Defendant Anden James Kisamore appeals from a November 18, 2002, order modifying his sentence. The original dispositional order of probation was affirmed in a prior related appeal. (Case No. C040822.) We conclude the November 18, 2002, order was void as an act in excess of the trial courts jurisdiction. We will reverse the order.
Defendants request for judicial notice of this courts file in case No. C040822 is granted. (Evid. Code, §§ 452, subd. (d), 459.)
BACKGROUND
Defendant Anden James Kisamore entered a negotiated plea of no contest to one count of unlawful sexual intercourse with a minor more than three years younger than the perpetrator. (Pen. Code, § 261.5, subd. (c).) On March 25, 2002, the trial court sentenced defendant to four years probation with various conditions including a requirement that "pursuant to [section] 290," defendant register as a sex offender with the local police agency for the period of probation. Defense counsel objected to the registration as a condition of probation at the sentencing hearing and, in case No. C040822, argued on appeal that it was error to impose such a condition.
Further undesignated statutory references are to the Penal Code.
On appeal in case No. C040822, the People conceded that the trial court incorrectly required defendant to register as a sex offender as a condition of his probation and specifically requested that this court modify the judgment by striking the registration requirement from the dispositional order. We modified the judgment accordingly and affirmed as modified. The opinion was issued on December 10, 2002, and is now final. (Cal. Rules of Court, rule 24(b)(1).)
However, while the appeal in case No. C040822 was pending and after the People conceded the issue and requested this court modify the judgment by striking the registration requirement, the People moved the trial court for a modification in the judgment by asking the trial court to impose the registration requirement under a different provision. Defendant repeatedly objected and maintained the trial court did not have jurisdiction to modify the judgment then pending on appeal in this court.
Nevertheless, on November 18, 2002, the trial court made the additional findings of fact that defendant committed the offense as a result of sexual compulsion and for the purpose of sexual gratification. In accordance with those findings, the court ordered defendant to register as a sex offender under section 290 during the term of his probation. Defendants request for reconsideration based on the courts lack of jurisdiction to modify the probation order was denied.
DISCUSSION
The trial courts original order that defendant register as a sex offender was error because section 290 mandates registration with the chief of police in any city in which a person resides who has been convicted of certain enumerated offenses. Defendant, however, was convicted of the non-included offense of violation of section 261.5, subdivision (c). Thus, absent a statutory obligation to register, the trial court lacked the power to require registration as a term of probation. (See In re Bernardino S. (1992) 4 Cal.App.4th 613, 621-624; see also People v. Tye (1984) 160 Cal.App.3d 796, 803; People v. Brun (1989) 212 Cal.App.3d 951, 954-955 [addressing similar narcotics user registration statute].)
At the Peoples urging, the trial court modified defendants sentence while his original sentence was pending appeal. The People argued that the trial court could reaffirm the section 290 registration requirement by making factual findings to conform with section 290, subdivision (a)(2)(E), which provides for registration of "[a]ny person ordered by any court to register pursuant to this section for any offense not included specifically in this section if the court finds at the time of conviction or sentencing that the person committed the offense as a result of sexual compulsion or for purposes of sexual gratification." Section 290, subdivision (a)(2)(E), further provides: "The court shall state on the record the reasons for its findings and the reasons for requiring registration." The trial court had made no such findings at the time of defendants conviction or March 25, 2002, sentencing.
Accepting the Peoples argument, however, the trial court made the necessary factual findings at the post-judgment modification hearing and found that the offense was "the result of sexual compulsion and finds that the purpose of the offense was sexual gratification." The court then reimposed the section 290 registration requirement.
Defendant maintains in this appeal that the trial court did not have jurisdiction to impose the new sentence. We agree.
Because we agree that the trial court lacked jurisdiction and vacate the November 10, 2002, modification order, we do not address defendants remaining arguments regarding the invalidity of the modification order.
"`"The filing of a valid notice of appeal vests jurisdiction of the cause in the appellate court until determination of the appeal and issuance of the remittitur" (People v. Perez (1979) 23 Cal.3d 545, 554 []), thereby divesting the trial court of jurisdiction over anything affecting the judgment. (People v. Lockridge (1993) 12 Cal.App.4th 1752, 1757 []; People v. Schulz (1992) 5 Cal.App.4th 563, 570 [].)" (People v. Flores (2003) 30 Cal.4th 1059, 1064.)
For example, in People v. Malveaux (1996) 50 Cal.App.4th 1425, the "minor" had appealed from a judgment committing him to the Youth Authority after he was adjudged a ward of the court under Welfare and Institutions Code section 602. In post-judgment proceedings taken while the appeal was pending, the juvenile court determined that the "minor" was in fact an adult and not within the jurisdiction of the juvenile court and that the "minor" had lied to the court about his age. The juvenile court therefore vacated its judgment. (Id. at pp. 1434-1435.) The appellate court held that because the defect was not apparent from the face of the record, the juvenile court was without jurisdiction to vacate its judgment while the matter was on appeal.
"Judicial error (as well as an exercise of judicial discretion) in rendering judgment cannot be corrected by the trial court once jurisdiction has expired, unless the judgment is void on the face of the record." (People v. Karaman (1992) 4 Cal.4th 335, 345-346, fn. 11, orig. emphasis, limited on other grounds in People v. Howard (1997) 16 Cal.4th 1081, 1095.) Where, however, "the judgment is void on the face of the record" (People v. Karaman, supra, 4 Cal.4th 335, 345-346, fn. 11), the judgment may be corrected by the trial court at any time, i.e., notwithstanding the pendency of an appeal. (See Ibid.; People v. Cunningham (2001) 25 Cal.4th 926, 1044-1045; Wilson v. Superior Court (1980) 108 Cal.App.3d 816, 817-819; People v. Blume (1960) 183 Cal.App.2d 474, 476-478.) It is upon this principle that the People mistakenly seek to defend the trial courts actions.
First, although the People rely on the theory that the sentence was unauthorized and, therefore, correctable by the trial court, they take a contrary position when explaining their reasoning. A sentence is "unauthorized" and void when the sentence "could not lawfully be imposed under any circumstance in the particular case." (People v. Scott (1994) 9 Cal.4th 331, 354.) Yet, the People argue that defendant could be required to register as a sex offender pursuant to section 290, subdivision (a)(2)(E). The People cannot take both positions simultaneously; either the sentence was unauthorized and therefore could not be imposed under any circumstances in this case, or it was authorized and therefore not subject to trial court correction while pending on appeal. In any event, contrary to the Peoples claim, defendant could not have been ordered to register pursuant to subdivision (a)(2)(E) because the trial court did not make the requisite factual findings at the time of conviction or sentencing. Absent those factual findings, the imposition of the registration requirement was judicial error.
Moreover, whether or not the trial court retained authority to strike the improper portion of defendants sentence while that very issue was pending before this court in case No. C040822 (which would have rendered the appeal moot), it certainly did not retain authority under these principles to hold a new sentencing hearing and make new factual findings on the matter, under the guise of "correcting" the otherwise improper sentence. The reason the court may vacate an unauthorized sentence whenever it is brought to the attention of the court is that, in such a case, the court lacks jurisdiction and the sentence, or at least its unlawful part, is void. (Wilson v. Superior Court, supra, 108 Cal.App.3d at pp. 818-819.)
Here, the imposition of the registration requirement in the absence of the requisite factual findings was unauthorized and beyond the trial courts jurisdiction. Absent the factual findings, that portion of the order is void and must be stricken. However, other than to strike the void portion of the judgment, the trial court had no jurisdiction to make any orders otherwise affecting the judgment then pending on appeal. (See People v. Flores, supra, 30 Cal.4th at p. 1064; In re Johannes (1931) 213 Cal. 125, 129-130; People v. Kirkpatrick (1991) 1 Cal.App.4th 538, 543.)
Finally, the People are estopped from requesting the registration requirement be imposed as a condition of defendants probation. A partys request for or consent to action, even if that action is beyond the courts statutory power, may be estopped to question it when "`[t]o hold otherwise would permit the parties to trifle with the courts." (In re Griffin (1967) 67 Cal.2d 343, 348.)
We would be hard pressed to think of a better example of trifling with the courts than where a party specifically concedes error on appeal and requests this court take a certain action to remedy that error, all the while making an entirely different argument and request in the superior court.
The People were represented on appeal in case No. C040822. They conceded in their respondents brief that "The trial court erred in requiring [defendant] to register as a sex offender as a condition of probation." They expressly agreed with defendant that this court should strike the sex offender registration requirement since defendant was convicted of a non-included offense. They specifically concluded "this Court should order the registration requirement stricken." If the People wished to argue that the registration requirement was permissible under section 290, subdivision (a)(2)(E), or wished this court to remand for further proceedings, they were free to do so on appeal in case No. C040822. They did not. We will not permit the People to trifle with the courts by attempting to circumvent their concession and request through the manipulation of procedures in the superior court.
DISPOSITION
The November 18, 2002, order modifying the judgment by requiring defendant to register as a sex offender is reversed.
We concur: SCOTLAND, P. J., ROBIE, J.