P. v. Jackson

Filed 10/19/06 P. v. Jackson CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

On December 9, 2002, Julius Lee Jackson was convicted of felony assault and sentenced under the Three Strikes law to a term of 25 years to life in prison. He appealed, and in May 2004 we affirmed the judgment in an unpublished opinion. (People v. Jackson (May 25, 2004, A101103) [nonpub. opn.].) Among several other claims raised on appeal, Jackson relied on Apprendi v. New Jersey (2000) 530 U.S. 466 to argue that he was erroneously denied a jury trial on the question of whether a prior conviction was based on serious felony conduct. We rejected this challenge based on binding Supreme Court authority. (People v. Jackson, supra, A101103 at pp. 24-27 [discussing People v. Kelii (1999) 21 Cal.4th 452 and People v. Epps (2001) 25 Cal.4th 19].)

On October 11, 2005, the superior court received a pro se motion from Jackson seeking to strike his prior strike convictions based on the United States Supreme Court’s June 2004 decision in Blakely v. Washington (2004) 542 U.S. 296.[1] The court issued an order on October 17, 2005 stating it had “reviewed” Jackson’s submission but “decline[d] to exercise its powers under [Penal Code, section] 1385 to strike or dismiss the prior convictions.” Accordingly, the motion was denied. Jackson filed an appeal from this order denying his motion to strike.

The Attorney General now moves to dismiss this appeal on the grounds that: (1) the trial court lacked subject matter jurisdiction to consider Jackson’s motion; (2) this appeal from Jackson’s December 2002 judgment is untimely; and (3) the law of the case doctrine prevents Jackson from relitigating an issue decided against him in a previous appeal. We agree the appeal must be dismissed.

Jackson’s judgment of conviction became final on August 25, 2004, when the Supreme Court denied review of our May 25, 2004 decision. After the remittitur issued, the superior court’s jurisdiction was limited to making such orders as were necessary to enforce the judgment. (Pen. Code, §§ 1263, 1265.) A superior court does not have the power to vacate a judgment that was affirmed on appeal; thus, such motions or petitions for writ of error coram nobis must be brought in the appellate court that affirmed the judgment. (Pen. Code, § 1265.)

Because the judgment of conviction became final more than two years ago, the superior court lacked jurisdiction to entertain Jackson’s motion. “[T]he trial court has no authority to modify a judgment affirmed on appeal.” (6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Appeal, § 165, p. 412.) In essence, Jackson’s motion was an attempt to vacate the judgment that was entered in his case over three years ago. Although Jackson contends the order denying his motion may be appealed as an order after judgment affecting his substantial rights, it is settled that a ruling denying a motion to vacate judgment is not appealable under Penal Code, section 1237, subd. (b). (People v. Gallardo (2000) 77 Cal.App.4th 971, 980-982.) “ ‘In such a situation appeal from the judgment is an adequate remedy; allowance of an appeal from the order denying the motion to vacate would virtually give defendant two appeals from the same ruling and, since there is no time limit[] within which the motion may be made, would in effect indefinitely extend the time for appeal from the judgment.’ [Citation.]” (Id. at p. 981, quoting People v. Thomas (1959) 52 Cal.2d 521, 527.) This “ ‘no second appeal’ rule [citation] serves as a procedural device to discourage defendants from raising any postjudgment claim that could have been raised before imposition of judgment or by way of direct appeal from the original judgment. [Citation.]” (People v. Totari (2002) 28 Cal.4th 876, 886.)

Recognizing these deficiencies, Jackson asks us to deem both his motion below and his appellant’s opening brief as petitions for writ of habeas corpus. We decline to do so. Jackson’s argument that he was entitled to a jury trial to determine the existence of his prior strike convictions was rejected by this court on appeal. (People v. Jackson, supra, A101103 at pp. 24-27.) “[H]abeas corpus ordinarily cannot serve as a second appeal” with respect to arguments that have previously failed. (In re Waltreus (1965) 62 Cal.2d 218, 225; see also In re Harris (1993) 5 Cal.4th 813, 825 [“when a criminal defendant raises in a petition for a writ of habeas corpus an issue that was raised and rejected on direct appeal, this court usually has denied the petition summarily”].) Although his current motion and appeal rely upon new authority, Jackson raises the same claim we rejected in his first appeal. Under these circumstances, we will not exercise our discretion to construe his filings as requests for habeas relief so that we may review his argument yet again.

DISPOSITION

The appeal is dismissed.

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McGuiness, P.J.

We concur:

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Parrilli, J.

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Siggins, J.

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[1] The motion was received but apparently not filed.