In re CHARLES HARRIS on Habeas Corpus
No. S022130
Supreme Court of California
July 29, 1993
813
Fern M. Laethem, State Public Defender, Michael Tanaka and Kent Barkhurst, Deputy State Public Defenders, for Petitioner.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Acting Assistant Attorney General, Marc E. Turchin and Stephen M. Kaufman, Deputy Attorneys General, for Respondent.
OPINION
LUCAS. C. J.-Charles Harris was convicted of second degree murder (
Facts2
Petitioner was born on October 21, 1968. The homicide-related crimes for which he was convicted occurred on October 20, 1984, the day before his
In superior court, petitioner was convicted of the charged crimes and sentenced to a term of 15 years to life plus a determinate term of 7 years, said term to be served in state prison. On appeal, he renewed the contention that the superior court lacked jurisdiction over him based on his age when the homicide-related crimes were committed. The Court of Appeal rejected the claim as to the murder and attempted murder counts and affirmed that part of the judgment. The appellate court reversed petitioner‘s two robbery convictions, however, because they were committed on October 5, 1984, and, thus, when petitioner was only fifteen years old. This court denied a petition for review on November 12, 1987. (People v. Harris (Aug. 28, 1987) B020567 [nonpub. opn.].)
Petitioner then filed the present petition for a writ of habeas corpus with this court, again raising the question of his age. We issued an order to show cause and directed the parties to address the follоwing two questions: “(1) whether petitioner is entitled to raise the issue of his age in a petition for a writ of habeas corpus, such issue having been raised and rejected on direct appeal, and (2) whether petitioner had not yet attained the age of 16 at the time of his crime, thereby divesting the trial court of subject matter jurisdiction.”
Discussion
A. Availability of Relief on Habeas Corpus
Petitioner contends the trial court that convicted him lacked subject matter jurisdiction over him because he was only 15 years old when the offenses were committed. Because he raised that precise issue on direct appeal, however, we must decide initially whether a writ of habeas corpus is available under these circumstances.
1. The Waltreus Rule
The right to file a petition for a writ of habeas corpus is guaranteed by the state Constitution (
Waltreus in turn cites and relies on In re Winchester (1960) 53 Cal.2d 528. In that case, the petitioner was convicted of willfully failing to provide for his child; he was ultimately incarcerated for a probation violation. He unsuccessfully argued on appeal that the judgment should be overturned because three jurors were permitted by the bailiff to make unsupervised telephone calls during a break in deliberations. The petitioner also claimed a partisan atmosphere pervaded the courtroom during his trial. After the judgment was affirmed on appeal, he filed a petition for a writ of habeas corpus with this court, raising the same issues he raised on appeal.
Before addressing the merits, we explained the limited grounds for relief in such situations. “Habeas corpus has become a proper remedy in this state to collaterally attack a judgment of conviction which has been obtained in violation of fundamental constitutional rights. [Citations.] The denial of a fair and impartial trial amounts to a deniаl of due process of law [citation] and is a miscarriage of justice within the meaning of that phrase as used in section 4, article VI, of the Constitution of this state. [Citations.] Fundamental jurisdictional defects, like constitutional defects, do not become irremediable when a judgment of conviction becomes final, even after affirmance
Although we thus held a habeas corpus petitioner could raise jurisdictional and constitutional issues to collaterally attack a final judgment, we further clarified that the grounds for obtaining relief were quite limited. We explained that the writ would not lie to review questions concerning the admissibility of evidence or to correct “mere errors of procedure,” where the trial court acted within its jurisdiction. (In re Winchester, supra, 53 Cal.2d at p. 532.) Of particular importance to the present case, we opined that habeas corpus “will not lie ordinarily as a substitute for an appeal ... nor as a second appeal.” (Ibid.)
This latter rule is now firmly established and often repeated without much explication. (In re Foss, supra, 10 Cal.3d at p. 930; In re Terry, supra, 4 Cal.3d at p. 927; Waltreus, supra, 62 Cal.2d at p. 225; In re Spears (1984) 157 Cal.App.3d 1203, 1208; In re Wagner (1981) 119 Cal.App.3d 90, 102.) As with many rules of law, multiple repetitions over time may tend to obscure the original purpose of the rule. (See People v. Superior Court (Mendella) (1983) 33 Cal.3d 754, 759, quoting Hyde v. United States (1912) 225 U.S. 347, 391 (dis. opn. of Holmes, J.) [“‘ideas becоme encysted in phrases and thereafter for a long time cease to provoke further analysis.’ “].) With the large number of petitions for writs of habeas corpus filed in the courts of this state4 and the concomitant burden on the judiciary to evaluate the hundreds of petitions ultimately barred on procedural grounds, it is important to reexamine and reiterate the purpose of the Waltreus rule.
A review of earlier cases reveals the Waltreus rule evolved from pronouncements that a litigant could not forgo a direct appeal in favor of seeking relief on habeas corpus. Thus, we explained that habeas corpus is not a “substitute for a writ of error” (In re Bell (1942) 19 Cal.2d 488, 492), and that “It is well settled that a writ of habeas corpus
The wisdom of the judicially created Waltreus rule is manifest: the Legislature has established an elaborate appellate system in which a criminal defendant may present his or her claims for relief from alleged trial court errors. (
Two examples illustrate the point. The California Rules of Court provide that an appellate court on direct appeal be provided with a record of the trial proceedings sufficient to rule on an appellant‘s claim. (Cal. Rules of Court, rules 33-36 [specifying the content of the record on criminal appeal].) Failure to provide for the timely preparation of the record on appeal will result in dismissal. (Cal. Rules of Court, rules 10(c) [dismissal rule] and 30 [applying civil rules to criminal cases unless “express provision is made to the contrary“]; Constantelos v. Rice (1954) 123 Cal.App.2d 765, 766.) By contrast, one seeking relief on habeas corpus need only file a petition for the writ alleging facts which, if true, would entitle the petitioner to relief. (See In re Clark, ante, p. 750 [hereafter Clark]; see also
In addition, fairness to the prevailing party at trial requires the losing side to prosecute an appeal in timely fashion. (See Cal. Rules of Court, rules 2 [time for filing appeal] and 30.) Failure to file a notice of appeal in timely fashion is fatal and requires dismissal of the appeal. (See Cal. Rules of Court, rule 31(a); People v. McBride (1953) 122 Cal.App.2d 409 [case dismissed under rule 31(a)]; but see People v. Chapman (1971) 5 Cal.3d 218, 225 [“‘Doubts should be resolved in favor of the right to appeal.’ “]; Vibert v. Berger (1966) 64 Cal.2d 65, 67
Habeas corpus may thus provide an avenue of relief to those unjustly incarcerated when the normal method of relief-i.e., direct appeal-is inadequate.6 Unlike review on direct appeal, habeas corpus does not simply inquire into the correctness of the trial court‘s judgment. The scope of habeas corpus is more limited. Although the writ of habeas corpus is directed against the custodian of one who is illegally confined, it will reach out to correct errors of a fundamental jurisdictional or constitutional type only. (In re Winchester, supra, 53 Cal.2d at p. 531.) The specialized nature of the remedy itself compels the conclusion that-absent unusual circumstances-the aggrieved party should first appeal before resorting to habeas corpus.7 In this way, habeas corpus is preserved as an avenue of relief to those for whom the standard appellate system failed to operate properly.
The corollary of the rule in Dixon, supra, 41 Cal.2d 756, is, of course, the Waltreus rule, i.e., that in the absence of strong justification, any issue that was actually raised and rejected on appeal cannot be renewed in a petition for a writ of habeas corpus. Courts will thus presume that the elaborate appellate system established by the state Constitution and the Legislature was sufficient to allow a person to present adequately his or her grievances for judicial review. (See In re Sterling (1965) 63 Cal.2d 486, 488-489.)
Petitioner recognizes the force of the Waltreus rule and admits he unsuccessfully raised the issue of his age on appeal. Nevertheless, he contends he may renew his claim in a postconviction petition for a writ of habeas corpus because his case falls within recognized exceptions to the Waltreus rule. We thus turn to an examination of limited situations in which a petitioner may renew a claim on habeas corpus despite denial of the claim on direct appeal.
2. Exceptions to the Waltreus Rule
A number of exceptions to the Waltreus rule have developed over the years. Because some of them may apply to petitioner‘s сase, we treat the question in some depth in order to provide needed guidance to the bench and bar.
a. Fundamental Constitutional Error
In years past, we have recognized an exception to the Waltreus rule when the habeas corpus petitioner claims a violation of his or her fundamental constitutional rights. Thus, in In re Winchester, supra, 53 Cal.2d 528, we opined that “Habeas corpus has become a proper remedy in this state to
We emphasize, however, that no statutory requirement directs us to permit relitigation of certain issues in a postconviction petition for a writ of habeas corpus where the matter has been duly considered on appeal. Rather, the judicially created Waltreus rule, and the similarly created exceptions to the rule, are simply manifestations of this court‘s resolve to balance the state‘s weighty interest in the finality of judgments in criminal cases with the individual‘s right-also significant-to a fair trial under both the state and federal Constitutions.
How to achieve the proper balance has not, however, always been clear. Certainly not all alleged constitutional defects warrant the opportunity to relitigate the issue on habeas corpus. Thus, for example, the question whether evidence was admitted at trial in violation of the Fourth Amendment is not cognizable on habeas corpus. (In re Sterling, supra, 63 Cal.2d at p. 487; In re Lessard (1965) 62 Cal.2d 497, 503; see also Stone v. Powell (1976) 428 U.S. 465 [same rule in federal court].) Chief Justice Traynor supplied the rationale for the court in In re Sterling, supra: “If the violation of a petitioner‘s constitutional rights by the use of illegally seized evidence had any bearing on the issue of his guilt, there should be no doubt that habeas corpus would be available. Unlike the denial of the right to counsel, the knowing use of perjured testimony or suppression of evidence, [or] the use of an involuntary confession, . . . the use of illegally seized evidence carries with it no risk of convicting an innocent person. The purpose of the exclusionary rule is not to prevent the conviction of the innocent, but to deter unconstitutional methods of law enforcement. [Citations.] That purpose is adequately served when a state provides an orderly procedure for raising the question of illegally obtained evidence at or before trial and on appeal. The risk that the deterrent effect of the rule will be compromised by an occasional erroneous decision refusing to apply it is far outweighed by the disruption of the orderly administration of justice that would ensue if the issue could be relitigated over and ovеr again on collateral attack.” (In re Sterling, supra, 63 Cal.2d at pp. 487-488, italics added, quoting In re Harris (1961) 56 Cal.2d 879, 883-884 (conc. opn. of Traynor, J.).)
It is between these polar extremes that a line must be drawn. We begin with the state‘s powerful interest in the finality of its judgments. This interest is particularly strong in criminal cases, for “[w]ithout finality, the criminal law is deprived of much of its deterrent effect.” (Teague v. Lane (1989) 489 U.S. 288, 309; see also Clark, supra, ante, at p. 766; In re McInturff (1951) 37 Cal.2d 876, 880; cf. Adoption of Alexander S., supra, 44 Cal.3d at p. 868 [state‘s interest in finality in child-custody disputes is “unusually strong” in view of the importance of a stable child-parent relationship].)
We thus agree wholeheartedly with Justice Harlan‘s trenchant comment that “‘No one, not criminal defendants, not the judicial system, not society as a whole is benefited by a judgment providing a man shall tentatively go to jail today, but tomоrrow and every day thereafter his continued incarceration shall be subject to fresh litigation.‘” (Mackey v. United States (1971) 401 U.S. 667, 691 (Harlan, J., conc. in part and dis. in part), quoted in Teague v. Lane, supra, 489 U.S. at p. 309.) Clearly, the state and society have an interest in having the matter settled once and for all.
Balanced against this strong interest is the interest an individual has in vindicating his or her constitutional rights. In the past, we balanced the two interests by declaring that the opportunity for a third judicial review (trial, appeal, postappeal habeas corpus) of a claim was appropriate only where the litigant made a colorable showing that a “fundamental” constitutional right was violated. Thus, we explained that a constitutional issue would not be cognizable on a postappeal petition for a writ of habeas corpus unless the petition could show “the defect so fatally infected the regularity of the trial and conviction as to violate the fundamental aspects of fairness and result in a miscarriage of justice.” (In re Winchester, supra, 53 Cal.2d at p. 532.)
Although maintaining an avenue to permit the presentation of legitimately significant constitutional claims remains important today, the modern development of the doctrine of ineffective assistance of counsel may diminish the need to retain such a broad “fundamental constitutional error” exception to the Waltreus rule. As we explained in People v. Pope, supra, 23 Cal.3d 412 at pages 421-426, the right to effective counsel was initially defined in terms of the due process clause of the federal Constitution. Thus, we initially held that in order for a litigant to obtain relief for ineffective assistance of counsel, “‘[i]t must appear that counsel‘s lack of diligence or competence reduced the trial to a “farce or a sham.“’ [Citations.]” (Pope, supra, at p. 421, quoting People v. Ibarra (1963) 60 Cal.2d 460, 464.)
The “farce or sham” standard gave way to the modern view, based on the Sixth Amendment, that in order to gain relief for ineffective assistance of counsel, a litigant “must show that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates [and that] counsel‘s acts or omissions resulted in the withdrawal of a potentially meritorious defense.” (Pope, supra, 23 Cal.3d at p. 425.)
This modern standard is now well established in both this state and in the federal courts. We recently summarized the law in People v. Wharton (1991) 53 Cal.3d 522: “A criminal defendant is guaranteed the right to the assistance of counsel by both the state and federal Constitutions. (
Similar concepts have been used to measure the performance of appellate counsel. (In re Banks (1971) 4 Cal.3d 337, 343 [93 Cal.Rptr. 591, 482 P.2d 215]; In re Smith (1970) 3 Cal.3d 192, 202 [90 Cal.Rptr. 1, 474 P.2d 969] [inexcusable failure of appellate counsel to raise crucial assignments of error that arguably could have resulted in reversal deprived defendant оf effective assistance of appellate counsel].)
Since its inception, this court has applied the standard in numerous cases. Recently, we reversed a judgment imposing the death penalty, where the record showed a defendant‘s trial counsel had not adequately investigated evidence for the penalty phase of the trial, thereby depriving the defendant of his Sixth Amendment right to counsel. (In re Marquez (1992) 1 Cal.4th 584 [3 Cal.Rptr.2d 727, 822 P.2d 435].) Similarly, we vacated the entire judgment of conviction in a case where the record showed the trial attorney had not adequately investigated the evidence of the defendant‘s diminished capacity. (In re Sixto, supra, 48 Cal.3d 1247.) And, most recently, we vacated both the guilt and penalty judgments for ineffective assistance of counsel for failing to object to statements elicited from the defendant in violation of his rights as established in Massiah v. United States (1964) 377 U.S. 201 [12 L.Ed.2d 246, 84 S.Ct. 1199]. (In re Wilson (1992) 3 Cal.4th 945 [13 Cal.Rptr.2d 269, 838 P.2d 1222].)
Experience with recent cases reveals that in the vast majority of cases, claims of “fundamental” constitutional error come to this court clothed in “ineffective assistance of counsel” raiment. Indeed, approaching the issue in this manner is apparently a conscious choice among litigants, possibly because it frees the litigant from having to demonstrate that the underlying issue is one involving “fundamental aspects of fairness . . . result[ing] in a miscarriage of justice.” (In re Winchester, supra, 53 Cal.2d at p. 532.) So
By recounting this history, we do not intend to question the wisdom of the evolution of the doctrine of ineffective assistance of counsel. Given its existence, however, we do question the necessity of maintaining a wide-ranging “fundamental constitutional rights” exception to the Waltreus rule. Presumably most erroneous deprivations of an accused‘s constitutional rights that occur at trial will be corrected on appeal. Many that are not corrected on appeal are the result of the ineffective assistance of either trial or appellate counsel. As such, those claims would be cognizable in a postappeal habeas corpus petition under the ineffective counsel rubric, and there would be no need to resort to the amorphous, ill-defined “fundamental constitutional rights” exception.
Balanced against the state‘s considerable interest in ensuring the finality of its criminal judgments, we conclude that the “fundamental constitutional rights” exception to the Waltreus rule, discussed in In re Winchester, supra, 53 Cal.2d 528, and invoked in subsequent cases, is inappropriately broad. Instead, a narrower exception, one that accounts for the evolution of the ineffective assistance of counsel doctrine and its provision for increased postappeal cognizability of constitutional issues, more appropriately reflects the proper balance betwеen the state‘s interest in finality and the individual‘s interest in vindicating his or her constitutional rights.
Thus, courts will presume that a litigant received sufficient review of his or her legal claims, both constitutional and otherwise, on direct appeal. Where an issue was available on direct appeal, the mere assertion that one has been denied a “fundamental” constitutional right can no longer justify a postconviction, postappeal collateral attack, especially when the possibility exists of raising the issue via the ineffective assistance of counsel doctrine. Only where the claimed constitutional error is both clear and fundamental, and strikes at the heart of the trial process, is an opportunity for a third chance at judicial review (trial, appeal, postappeal habeas corpus) justified. (Cf. Arizona v. Fulminante (1991) 499 U.S. 279, 309 [113 L.Ed.2d 302, 331, 111 S.Ct. 1246] [only errors amounting to a structural defect in the trial mechanism are deserving of automatic reversal rule] (maj. opn. by Rehnquist, C. J.).)8 The state‘s paramount interest in the finality of its criminal judgments demands no less.
We thus turn to petitioner‘s arguments that his case falls outside the Waltreus rule. He claims that because he was only 15 years old when he committed his crimes, the superior court that tried him lacked jurisdiction over him, and his trial therefore denied him 2 of his fundamental constitutional rights.9 He first contends his trial in adult court when he was only 15 years of age violated his due process right to a fair trial. Contrary to petitioner‘s argument, we see nothing that undermined the relative “fairness” of petitioner‘s trial. As petitioner was tried in adult court, he was simply the beneficiary of an additional procedural option—trial by jury—that was not available in juvenile court. We note that many states permit juveniles less than 16 years old to be tried as adults (see, e.g., State v. Thieszen (1989) 232 Neb. 952 [442 N.W.2d 887] [15-year-old tried for murder]; People v. Sanchez (1987) 129 A.D. 2d 816 [513 N.Y.S.2d 521] [15-year-old tried for robbery]; Ashing v. State (1986) 288 Ark. 75 [702 S.W.2d 20] [14-year-old tried for murder]; Winters v. State (Miss. 1985) 473 So.2d 452 [15-year-old tried for rape]), and our research has not revealed that such treatment per se violates the due process clause of the
Petitioner also argues his right to due process was violated because he was not tried in a court of “competent” jurisdiction. In support, he cites Ex parte Giambonini (1897) 117 Cal. 573 [49 P. 732]. In that case, this court held the police court that tried the defendant had been unconstitutionally constituted and therefore we granted habeas corpus relief. Giambonini is inapposite inasmuch as petitioner makes no claim that the superior court that tried him was unconstitutionally constituted. (Cf. In re Horton (1991) 54 Cal.3d 82 [284 Cal.Rptr. 305, 813 P.2d 1335] [defendant claimed he was denied fundamental right to trial by regularly elected or appointed superior court judge when he was tried by court commissioner].) Inasmuch as the superior court had jurisdiction over felony trials and was properly constituted, it was a competent court.
Petitioner also suggests his trial in adult court denied him equal protection of the laws because other offenders of his age are tried only by the juvenile court. We reject the suggestion that he has been deniеd a fundamental constitutional right sufficient to come within the narrow exception to the Waltreus rule. First, to the extent he is claiming he is the victim of a discriminatory prosecution (see Murgia v. Municipal Court (1975) 15 Cal.3d 286, 296 [124 Cal.Rptr. 204, 540 P.2d 44]), we note there is nothing in the
Inasmuch as petitioner fails to establish a due process or equal protection violation, we need not decide whether such violations, if shown, would fall within the “fundamental constitutional error” exception to the Waltreus rule. We recognize the possibility that in rare situations, there may be some clear and fundamental constitutional violation striking at the heart of the trial process that should have been raised or was unsuccessfully raised on appeal, and that cannot be remedied by resort to the doctrine of ineffective assistance of counsel. Such a fundamental breakdown in the appellate process may present an exception to the Waltreus rule. We need not now define the exact boundaries of any such surviving exception, for petitioner has not demonstrated he falls within its perimeter.
b. Lack of Fundamental Jurisdiction
Historically, habeas corpus provided an avenue of relief fоr only those criminal defendants confined by a judgment of a court that lacked fundamental jurisdiction, that is, jurisdiction over the person or subject matter. (See Ex parte Long (1896) 114 Cal. 159 [45 P. 1057].) Although this strict jurisdictional view of habeas corpus has changed over the years, it is clear that a true lack of fundamental jurisdiction in the strict sense of the phrase results in a void judgment, for the court was entirely without power over the subject matter or the parties. (See People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 66 [2 Cal.Rptr.2d 389, 820 P.2d 613]; Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 288 [109 P.2d 942, 132 A.L.R. 715].) A judgment rendered by a court wholly lacking jurisdiction may be challenged at any time. Petitioner asserts his case comes within this “classic” exception to the Waltreus rule. As we explain, we conclude the trial
Petitioner contends that because he was not yet 16 years old on the day the crimes were committed, the juvenile court had exclusive jurisdiction over the offenses. “[T]he Welfare and Institutions Code provides that the juvenile courts exercise exclusive jurisdiction over all minors under the age of 16; these children cannot otherwise be tried as criminal offenders.” (In re Gladys R. (1970) 1 Cal.3d 855, 862 [83 Cal.Rptr. 671, 464 P.2d 127]; see In re James G. (1985) 165 Cal.App.3d 462, 466 [211 Cal.Rptr. 611].)
Nevertheless, even if we assume petitioner did not turn 16 years old until his 16th birthday (see discussion, post, p. 844 et seq.), his assertion that the superior court lacked subjеct matter jurisdiction to try him under general, adult law is incorrect. Whether a case should proceed in juvenile or adult court “does not involve an issue of subject matter jurisdiction.” (People v. Nguyen (1990) 222 Cal.App.3d 1612, 1619 [272 Cal.Rptr. 523].) There is but one superior court in a county, though it is divided into different departments. (See 2 Witkin, Cal. Procedure (3d ed. 1985) Courts, § 184, pp. 208-209.) Because petitioner was charged with a felony, the superior court had subject matter jurisdiction. If he was under 16 years of age, however, the criminal department of the superior court lacked jurisdiction to act, and its trial of petitioner thus constituted an excess of jurisdiction, not a lack of fundamental jurisdiction. (See id., Courts, § 185 at pp. 209-210.)
Because a lack of fundamental jurisdiction may not be waived, this view is consistent with the many cases holding that the right to trial in the proper department of the superior court may be waived. “[I]t is well settled that a
This general rule applies in cases, as here, when the accused fails to timely object, on the basis of his or her age, to the adult court‘s assumption of jurisdiction. For example, in People v. Oxnam (1915) 170 Cal. 211 [149 P. 165], overruled on other grounds in In re Ramon M. (1978) 22 Cal.3d 419, 429 [149 Cal.Rptr. 387, 584 P.2d 524], footnote 12, this court, interpreting the predecessor Juvenile Court Act, held the accused‘s failure to raise the matter of his age prior to his appeal foreclosed the argument on appeal that he was too young to be tried in adult court. (People v. Oxnam, supra, at pp. 219-220.)
People v. Navarro (1963) 212 Cal.App.2d 299 [27 Cal.Rptr. 716] is to the same effect. In that case, the defendant raised, for the first time on appeal, the claim that he was only 17 at the time of the crime. The Court of Appeal rejected the claim, explaining that “[i]f in fact he was under 18 years of age, it was his duty or the duty of his attorney to call this fact to the attention of the court, and failure to do so is a waiver of any rights thus granted.” (Id. at p. 303.)
It follows the superior court did not lack subject matter jurisdiction over petitioner, and he is not excepted from the Waltreus rule on that ground.
c. Acting in Excess of Jurisdiction
As discussed above, the narrow view that habeas corpus addressed only strict jurisdictional issues has changed over the years. “California decisions make clear that the concept of fundamental jurisdictional error, for the purpose of a writ of habeas corpus, is no longer strictly limited to cases in which the trial court wholly lacks jurisdiction over the person of the defendant or the subject matter of the proceeding; the concept encompasses any error of sufficient magnitude that the trial court may be said to have acted in excess of jurisdiction.” (In re Sands (1977) 18 Cal.3d 851, 856-857 [135 Cal.Rptr. 777, 558 P.2d 863], italics added.)12 As we explained in In re Zerbe (1964) 60 Cal.2d 666 [36 Cal.Rptr. 286, 388 P.2d 182]: “Habeas corpus is available in cases where the court has acted in excess of its
This aspect of habeas corpus jurisprudence has been invoked in the past by this court to review claims that a criminal defendant was sentenced to serve an illegal sentence. Thus, for example, where a defendant was sentenced to an indeterminate term when the law provided for a determinate term, habeas corpus was available. (In re Lee (1918) 177 Cal. 690 [171 P. 958].) The writ was likewise available to review a claim that the sentencing court acted in excess of its jurisdiction by imposing a sentence on the petitioner that was longer than that permitted by law. (Neal v. State of California (1960) 55 Cal.2d 11, 16-17 [9 Cal.Rptr. 607, 357 P.2d 839]; see also In re Estrada (1965) 63 Cal.2d 740, 750 [48 Cal.Rptr. 172, 408 P.2d 948] [denial of parole consideration based on wrong statute].)
More recently, we confronted a habeas corpus petitioner who claimed that, being a mentally disordered sex offender formerly confined in a treatment center, he was entitled to conduct or participation credits against a subsequent prison term for time spent in the center. The trial court denied the credits and the Court of Appeal affirmed that judgment. Although we ultimately rejected the substantive claim, we concluded the petitioner was entitled to renew the issue in a petition for a writ of habeas corpus because his claim, if true, resulted in a sentence ” ‘in excess of the time allowed by law.’ ” (In re Huffman (1986) 42 Cal.3d 552, 555 [229 Cal.Rptr. 789, 724 P.2d 475].)
We again invoked this rule in a case in which a habeas corpus petitioner claimed two enhancement provisions were improperly applied to lengthen his overall sentence. (In re Harris (1989) 49 Cal.3d 131 [260 Cal.Rptr. 288, 775 P.2d 1057].) Although the petitioner in Harris had raised the issue unsuccessfully on direct appeal, we ruled he was entitled to renew the claim on habeas corpus because a misinterpretation of the penal statute would result in a longer sentence than was permitted by law, and imposition of the sentence was therefore in excess of the trial court‘s jurisdiction. (Id. at p. 134, fn. 2.)
Petitioner has not expressly contended that his case falls within the “excess of jurisdiction” exception to the Waltreus rule. Nevertheless, as explained above, because the superior court that tried and sentenced him may have acted in excess of its jurisdiction in doing so, we conclude he may raise the issue in a postappeal petition for a writ of habeas corpus.
In this case, petitioner contends he was only 15 years old at the time of his crimes. If so, he could not be sentenced to serve a term in state prison for his misdeeds, and was instead subject to only the various dispositional options available to the juvenile court, such as placement in the California Youth Authority. The state took the position that petitioner turned 16 years old on the day of the homicide-related crimes. This argument, accepted by the juvenile court, the sentencing court, and the Court of Appeal, resulted in a lengthy state prison term for petitioner. If he is correct that he was only 15 years old on the day of the crimes, it is manifest that the trial court exceeded its jurisdiction by sentencing petitioner to prison, for that dispositional choice was not available under any circumstances for those offenders less than 16 years old.
Although we thus conclude that petitioner‘s claim falls within the “excess of jurisdiction” exception to the Waltreus rule, we emphasize the narrowness of this exception. In entertaining such claims in collateral challenges to final judgments, past cases have suggested it was significant that “there [was] no material dispute as to the facts” (In re Zerbe, supra, 60 Cal.2d at p. 668), or that the judgment may be corrected “without the redetermination of any facts.” (Neal v. State of California, supra, 55 Cal.2d at p. 17.)
Viewed in the light of the state‘s strong interest in finality, this consideration makes sense. A rule providing for the postappeal review of legal issues that requires an appellate court to reopen factual issues already sifted,
In sum, we reiterate that a claim a court acted in excess of its jurisdiction, where such issue was raised and rejected on direct appeal (or could have been raised on appeal), may be entertained despite the Waltreus rule, provided a redetermination of the facts underlying the claim is unnecessary.
In this case, there is no dispute over the facts. The People do not question the accuracy of the evidence showing petitioner was born on October 21, 1968. Likewise, petitioner does not dispute that he committed the crimes in question on the day before his 16th birthday, October 20, 1984. Presented with a pure question of law which may demonstrate the trial court acted in excess of its jurisdiction, we conclude petitioner is not barred by the Waltreus rule from presenting the claim on his postappeal petition for a writ of habeas corpus.
d. Change in the Law
A fourth exception to the Waltreus rule, established by case law, has permitted a petitioner to raise in a petition for writ of habeas corpus an issue previously rejected on direct appeal when there has been a change in the law affecting the petitioner. (See In re Terry, supra, 4 Cal.3d at p. 916 [new United States Supreme Court decision justifies postappeal habeas corpus petition]; In re King (1970) 3 Cal.3d 226, 229, fn. 2 [90 Cal.Rptr. 15, 474 P.2d 983] [new United States Supreme Court cases justify raising issue on habeas corpus even though petitioner failed to appeal]; In re Jackson, supra, 61 Cal.2d 500 [new California Supreme Court decision justified postappeal habeas corpus petition].) Petitioner claims Johnson v. Superior Court (1989) 208 Cal.App.3d 1093 [256 Cal.Rptr. 651] (hereafter Johnson), a Court of Appeal decision filed after his appeal was final, effected a change in the law thereby justifying his postappeal habeas corpus petition.
We reject the argument at the threshold because, as we explain, post, at page 843 et seq., the question regarding the proper method of age calculation was unsettled in prior cases, and no uniform rule had emerged. Because Johnson, supra, 208 Cal.App.3d 1093, simply added to the division in authority on this issue, it did not create a new rule of law. This “new-rule-of-law” exception to the Waltreus rule is, therefore, inapplicable on these facts.
1. Delay
Respondent arguеs relief in this case is procedurally barred because petitioner has not explained the delay in raising the issue of his age in this collateral attack. The rule requiring a habeas corpus petitioner to justify any substantial delay in raising a claim, however, is inapplicable to a claim, as here, of sentencing error amounting to an excess of jurisdiction. An appellate court may “correct a sentence that is not authorized by law whenever the error comes to the attention of the court.” (In re Ricky H. (1981) 30 Cal.3d 176, 191 [178 Cal.Rptr. 324, 636 P.2d 13].) We thus reject respondent‘s argument.
2. Waiver
Respondent next contends petitioner‘s failure to seek pretrial writ relief following the fitness hearing certifying him to adult court requires that we find he waived the issue. In support, respondent relies on People v. Chi Ko Wong (1976) 18 Cal.3d 698 [135 Cal.Rptr. 392, 557 P.2d 976] (hereafter Chi Ko Wong). As we explain, although that case set forth the general rule, it does not control this case.
On the question of the proper challenge to a juvenile certification order, Chi Ko Wong, supra, 18 Cal.3d 698, sets forth the general rule that a minor must challenge a fitness determination by pretrial writ or “be deemed to have waived any challenge to the propriety of the certification.” (Id. at p. 714.) By establishing this general rule, however, we did not create an inevitable obstacle to judicial review. Instead, we merely announced that “a certification order may normally be challenged only by extraordinary writ.” (Id. at p. 714, italics added.)
Thus, for example, we went on to explain that in creating the rule that a minor must challenge a fitness detеrmination by way of pretrial writ on pain of waiver, we did not “purport to foreclose the right of an accused . . . to assert in a proper case by petition for the writ of habeas corpus a challenge to his detention on the ground of a fundamental jurisdictional defect [citation] or, as here, a challenge to a defect which may have been waived but which, unlike the present case, the accused nevertheless preserved by timely if unsuccessful action.” (Chi Ko Wong, supra, 18 Cal.3d at p. 716.)
A comparison between the present case and Chi Ko Wong compels the conclusion that petitioner did not waive the issue. The juvenile there did not
For the aforementioned reasons, we find Chi Ko Wong, supra, 18 Cal.3d 698, is not controlling on the facts presented in this case. Accordingly, on the particular facts of this case, we reject respondent‘s contention that petitioner waived the issue of his age by failing to seek a pretrial writ.
3. Law of the Case
Respondent further argues that petitioner is procedurally barred from raising the issue of his age because the previous Court of Appeal decision rejecting his lack of jurisdiction claim is law of the case. (See generally, People v. Shuey (1975) 13 Cal.3d 835 [120 Cal.Rptr. 83, 533 P.2d 211].) The rule discussed above that one may renew on habeas corpus certain challenges to a final judgment even after unsuccessfully raising the issue on direct appeal, however, presupposes that no law of the case barrier exists. (See In re Reed (1983) 33 Cal.3d 914, 918, fn. 2 [191 Cal.Rptr. 658, 663 P.2d 216].) None of the cases respondent cites contradicts this basic proposition nor applies the law of the case doctrine to prohibit an excess of jurisdiction challenge on habeas corpus. Accordingly, we reject the argument.
There being no procedural bar to considering the merits of the petition, we next turn to whether petitioner was 16 years old at the time of the homicide-related offenses and thus properly subject to a finding of unfitness and trial as an adult.
C. Computation of Petitioner‘s Age
It is undisputed that petitioner committed the charged offenses on October 20, 1984, the day before his 16th birthday. Because the juvenile court retains exclusive jurisdiction over minors less than 16 years old (In re Gladys R., supra, 1 Cal.3d at p. 862), we thus must determine whether petitioner turned 16 years old on the day preceding his 16th birthday.
The subject is controlled in California by
The statutory language of
In reality, 18 years from the first minute of life would expire—that is, the 19th year would begin—at that same minute on a person‘s 18th birthday, i.e., the day “corresponding” to the day of birth. Because a person is deemed
This interpretation is bolstered by the notation following
Further еvidence is provided by the Legislature‘s short-lived amendment to the code 29 years later. Around the turn of the century,
Although the legislative history of
The issue reappeared 23 years later in Ex parte Wood (1907) 5 Cal.App. 471 [90 P. 961]. In Wood, a complaint was filed in superior court on March 16, 1907, to confine applicant Julia Wood to a state reform school due to her alleged incorrigibility. The school in question was authorized to admit girls between the ages of eight and eighteen. Wood argued she was ineligible for commitment to the school because she had already turned 18, her 18th birthday being March 17, 1907, the day after the complaint was filed. The Court of Appeal agreed. Citing
Additional light was shed on the matter in People v. Dudley (1942) 53 Cal.App.2d 181 [127 P.2d 569]. In that case, the defendant was charged with violating
More recently, the Court of Appeal confronted the question of age calculation on facts very similar to those in the present case. In People v. Valladares (1984) 162 Cal.App.3d 312 [208 Cal.Rptr. 604], the defendant contended on appeal that the superior court lacked jurisdiction to try him for the charged felony offenses because the crimes were allegedly committed the day before his 18th birthday, and thus when he was only 17. The appellate court rejected the claim, relying on People v. Dudley, supra, 53 Cal.App.2d 181, to hold that the common law rule prevailed. Although the defendant contended Dudley had been wrongly decided, the Valladares court rejected the claim.
The final decision to speak on the issue was in Johnson, supra, 208 Cal.App.3d 1093. In that case, the petitioner was charged with an offense allegedly committed on August 12, 1988. When it was discovered that the petitioner‘s 18th birthday was August 13, 1988, he was transferred to juvenile court but was ultimately transferred back to adult court on the ground that he was not a minor when the offense was committed. The petitioner then sought a writ from the Court of Appeal.
That court granted relief, holding that the petitioner did not attain majority until the day of his 18th birthday. In choosing to “follow the Supreme Court‘s interpretation of [Civil Code] section 26 in Ganahl v. Soher, supra, 2 Cal.Unrep. 415,” the Johnson court acknowledged that the court in People v. Dudley, supra, 53 Cal.App.2d 181, believed Ganahl‘s reasoning was “dictum.” (Johnson, supra, 208 Cal.App.3d at p. 1097.) The Johnson court, however, disagreed with that characterization. It reasoned that “If plaintiff [in Ganahl] had reached his majority on April 10th [the day before his
As the history of this issue in California courts makes clear, although there is strong support for the “birthday rule,” there is also support for the common law rule of calculating age. A survey of our sister states finds a similar split, although a majority of states follow the common law rule. (For cases following the common law rule, see Thomas v. Couch (1930) 171 Ga. 602 [156 S.E. 206]; Erwin v. Benton (1905) 120 Ky. 536 [87 S.W. 291]; Gouldsboro v. Sullivan (1934) 132 Me. 342 [170 A. 900]; Nelson v. Sandkamp (1948) 227 Minn. 177 [34 N.W.2d 640, 5 A.L.R.2d 1136]; Totton v. Murdock (Mo. 1972) 482 S.W.2d 65; In re Edward (R.I. 1982) 441 A.2d 543; Pate v. Thompson (Tex.Civ.App. 1944) 179 S.W.2d 355; see generally, Annot., supra, 5 A.L.R.2d at p. 1147.)
The modern trend, however, is to reject the common law rule in favor of the more commonsense rule that the controlling day is one‘s birthday. (Patterson v. Monmouth Regional High School Bd. of Education (1987) 222 N.J. Super. 448 [537 A.2d 696]; State v. Alley, supra, 594 S.W.2d 381; United States v. Tucker (D.C.App. 1979) 407 A.2d 1067; People v. Stevenson (1966) 17 N.Y.2d 682 [269 N.Y.S.2d 458]; Bynum v. Moore (1923) 101 Okla. 128 [223 P. 687].) The Pennsylvania Supreme Court recently joined this group. (Com. v. Iafrate (Pa. 1991) 594 A.2d 293, overruling Firing v. Kephart (1976) 466 Pa. 560 [353 A.2d 833].)
In arguing for a contrary result, the Attorney General begins with his apparent concession of the issue in Johnson, supra, 208 Cal.App.3d 1093. In an informal opposition filed in that case (see Cal. Rules of Court, rule 60), he agreed that
The Legislature, however, “is free to exercise its judgment in fixing the age limits of minority for particular purposes.” (In re Herrera (1943) 23 Cal.2d 206, 213 [143 P.2d 345], disapproved on other grounds, People v. Olivas (1976) 17 Cal.3d 236, 257 [131 Cal.Rptr. 55, 551 P.2d 375].)17 Although the Attorney General thus argues his concession in Johnson, supra, concerned only attainment of the age of 18 because that is the only true age of “majority,” his argument fails.
It is clear that calculation of age is a question that cuts across the laws of California, affecting myriad statutes and regulations. (See, e.g.,
It would seem absurd to calculate each of these ages in a different manner, resulting in a mosaic of various age calculation methods. The law demands more certainty. Accordingly, absent an expression of a contrary legislative intent, we hold
The Attorney General also relies on the reasoning of People v. Valladares, supra, 162 Cal.App.3d 312, that “right or wrong, the decision in [Dudley, supra, 53 Cal.App.2d 181] was binding on the trial court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [20 Cal.Rptr. 321, 369 P.2d 937].)” (Valladares, supra, at p. 318.) This reasoning, however, fails to recognize that Ganahl was a California Supreme Court case.18 Thus, the Valladares court‘s conclusion that Dudley was “binding” on the
trial court is inaccurate. The existence of Ganahl also undermines the Attorney General‘s further argument that we may infer Dudley accurately interpreted legislative intent because the Legislature has not acted to amend
Accordingly, we conclude that the Legislature—by enacting
Conclusion
Because the claim raised by petitioner, if meritorious, would establish that the trial court had acted in excess of its jurisdiction, we find petitioner may raise the issue of his age in this collateral proceeding despite having unsuccessfully raised the issue on direct appeal. Moreover, the crimes for which petitioner was convicted occurred the day before his 16th birthday. Under
The particular factual setting of this case justifies an unusual disposition. First, although the superior court acted in excess of its jurisdiction by trying petitioner under the general criminal law, petitioner makes no claim, and the record does not reveal, that his trial was unfair, or that the determination of the facts of the crime was inaccurate or unreliable. As we explained, ante, the superior court possessed subject matter jurisdiction over the case.
Second, petitioner‘s crimes occurred in 1984. Holding a new “trial,” (i.e., a jurisdictional hearing in juvenile court), after so long would surely be a burden on the People and would serve no meaningful purpose inasmuch as we have no reason to doubt the accuracy of the superior court‘s adjudication of petitioner‘s criminal responsibility in this matter. Mоreover, petitioner is no longer a juvenile; we note this court was informed at oral argument that petitioner is now 24½ years old.
The Penal Code thus contemplates that a court, faced with a meritorious petition for a writ of habeas corpus, should consider factors of justice and equity when crafting an appropriate remedy. It is clear that discharge of the prisoner is not required in a circumstance where, as here, he does not challenge the correctness of the factual determinations made by the court that tried him. Had the juvenile court calculated his age correctly, it would have retained jurisdictiоn over him and fashioned a disposition more appropriate to his status as a juvenile. Thus, had this case not gone awry in that early stage in the proceedings, the only difference now would be petitioner would be subject to a juvenile disposition rather than serving a lengthy term in state prison.
Under the facts of this case, we conclude petitioner is not entitled to a new trial (or hearing) on the merits. Instead, the petition for a writ of habeas corpus is granted, petitioner‘s adult criminal convictions are deemed to be findings of jurisdiction under
Panelli, J., Kennard, J., Arabian, J., Baxter, J., and George, J., concurred.
MOSK, J., Concurring and Dissenting.—I concur in the result.
I agree with the majority that petitioner is entitled to relief on habeas corpus. He collaterally attacks a judgment of conviction and sentence entered by the superior court on a jury‘s verdict. He claims that the superior court was without jurisdiction. Persuasively so. “[T]he juvenile courts exercise exclusive jurisdiction over all minors under the age of 16; these children
In other respects, however, I dissent.
First, I disagree with the majority‘s analysis. The “substantive” discussion is flawed. As stated, the superior court was without jurisdiction.2 It did not merely act in excess of jurisdiction. The “procedural” discussion is also open to question. On its very face, it is obiter dictum, seeing that petitioner‘s lack-of-jurisdiction claim is not subject to any “procedural bar.” Worse still, it is mischievous, since it may be read to elevate the legitimate interest of the state in the finality of a criminal judgment over the altogether compelling interest of both the state and the individual in the legality of the underlying adjudication.
Second, I disagree with the majority‘s disposition. The superior court was without jurisdiction. Hence, it could not have “tried [petitioner] as [a] criminal offender[].” (In re Gladys R., supra, 1 Cal.3d at p. 862.) Therefore, the trial that it actually conducted was a nullity. So too was the jury‘s verdict returned in its course. It is neither “just” nor “equitable” to attempt to salvage a determination of guilt that is devoid of legal significance. True, the superior court would have had jurisdiction if it had been sitting as the juvenile court. But it was not. The state must shoulder all the consequences of the superior court‘s lack of jurisdiction. Certainly, petitioner should bear
For the reasons stated above, I would grant the petition for writ of habeas corpus and vacate the judgment of the superior court.
Petitioner‘s application for a rehearing was denied September 30, 1993, and the opinion was modified to read as printed above. Mosk, J., was of the opinion that the application should be granted.