People v. JENAN

Filed 3/23/07

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

STORY CONTINUED FROM PART I..

Once the prosecutor stated he had no other witnesses, the court asked if the Jenans wished to put on a defense. Roger replied: None needed. Thank you, though. When the prosecutor moved to hold the Jenans to answer, Roger stated, Id like to remind the court that the DA continues to dishonor the court, place you in jeopardy. And Im sure you have the answer at your fingertips. I hope youll exercise that.

The prosecutor directed the courts attention to the UCC-1 in evidence and stated that the law required the debtor to agree to and to have notice of the filing but that neither had occurred. Roger interjected, Is the DA testifying? Hes making an argument, the court answered. Sounds like hes testifying, Roger retorted.

After the prosecutor argued his case at length, the court asked the Jenans for comments. Rogers reply was that repeatedly the DA continues to dishonor this court and that the DA fully is aware that there is no controversy because they agreed to no controversy for the subject matter. Jurisdiction cannot possibly attach to this court.

With the preface, Let me give you a little lesson here, the court disparaged Alans and Rogers defense as nonsense:

THE COURT: The DAs office in any county in this state has the ability to file a criminal charge against someone, if in fact there is reasonable belief or probable cause to do the filing. The DA in this case obviously determined there was probable cause to file charges against both of you.

This court must respond by having both of you brought to court, apprised of the charges, given the opportunity to obtain an attorney in a felony case, such as this. The next step is to have a preliminary hearing. Once a preliminary hearing is had, the Peoples obligation is to put on the evidence to show that a crime has been committed and that the people charged are reasonably likely to have been the persons committing that crime. The standard is not the same as a trial. Its not beyond a reasonable doubt. Its just a reasonable suspicion.

The DA has come in here, has done that in this case, at least so far in my opinion, absent any defense. My obligation is, if that has been done, to hold both of you to answer for trial. What that entails is the fact that I would order the DAs office to file what we call an information, which is another form of pleading. And you would be arraigned on that information two weeks from today.

You come in to court on that date, you enter a plea of either guilty or not guilty. If you enter a plea of not guilty, then the judge at that time will set a trial date. Then you can have either a court trial or a jury trial. And thats the way we proceed.

All this other nonsense about abatement, all this, I dont even have any concept of what you are talking aboutbecause Im obligated under my commitment as a judge here to follow the rules set down by the State of California. Im doing exactly that.

Im giving you the opportunity here at this time to make any argument you wish to against [the prosecutors] argument that he feels theres probable cause to hold you to answer. If you dont want to do that, thats fine. If you do want to do it, Im willing to listen.

I do have some documents there that you have filed with the court indicating something about a notice to default a notice of default filed against me indicating that theres some treasonous acts. I dont know what those are. I assume, from my reading of this, that you are saying Ive committed a treasonous act if in fact I allow this proceeding to go any further than today and not dismiss it.

Well, Im acting under the laws Im obligated to uphold. Absent anything else, Im going to hold both of you to answer for trial. I dont know what you are planning to do against me or the DA or anybody else after this proceeding. But I would caution you that what you do may lead to further complications if, in fact, you commit any violations of the law, such as 115 of the Penal Code or 523 of the Penal Code.

After the court asked if the Jenans had any statements or arguments to make against what [the prosecutor] set forth, a dialogue among the court, the prosecutor, Alan, and Roger ensued:

DEFENDANT ALAN JENAN: Yes, your Honor. Without conceding jurisdiction, I bring the courts attention to criminal case number 01-79256, in which all the charges have already been heard. They have all been found in my favor. The DA has no case.

THE COURT: Im not on board with what that means.

DEFENDANT ALAN JENAN: All of the charges they have just made stem from that case in which I was found not guilty by a jury of filing a false UCC-1, claiming the bank and Boswell were indebted to me. The jury has declared me not guilty of that, filing a false form.

When I refiled it, thats what they are claiming, is I filed a false form by refilling one that a jury had already said was valid. They are I dont know where they are coming from. They have no claim. The issues have been heard by a jury and found in my favor.

THE COURT: Are you claiming double jeopardy?

DEFENDANT ALAN JENAN: I certainly am.

THE COURT: I dont have that evidence before me.

[PROSECUTOR]: I can explain to the court in a second. There is one thing I wanted to put on the record, I neglected to do so earlier. I would ask the witness [district attorneys investigator] how many years hes been a sworn officer.

THE COURT: Ill allow you to reopen.

[PROSECUTOR]: Just to clarify the record.

THE COURT: He is still under oath. How many years have you been a sworn peace officer?

THE WITNESS: Eighteen.

THE COURT: Any cross-examination on that issue?

DEFENDANT ROGER JENAN: No. Ive known him since he was a kid. I think he still is.

THE COURT: How about you, Mr. Alan Jenan, any cross-examination on that one question?

DEFENDANT ALAN JENAN: Not on that question, your Honor. But I would like him, as an investigator, to get a transcript of case number 01-79256.

[PROSECUTOR]: I can explain to the court what Mr. Roger Jenan is speaking about. Im sorry, Alan Jenan is speaking about. Mr. Alan Jenan filed a UCC-1 in 2001 on the same matters. But one of the things I did, I put in the court documents that were filed all in 2002. I refiled charges against him.

That case as to the UCC-1 that was filed in 2001 went to jury trial and the jury did not find there was evidence beyond a reasonable doubt. Im not exactly sure what the issue was, but there was not evidence beyond a reasonable doubt as to his guilt on that 2001 UCC-1 filing. We are not prosecuting him for the 2001 UCC filing.

DEFENDANT ALAN JENAN: Thats totally false.

PROSECUTOR: We are prosecuting him for the filing of the December 9 UCC-1 of 2003 and the UCC3 or 5 UCC5 that was filed on February 18, 2004, as well as the newsletter, the letter to the bank and the letter to the Department of Financial Institutions.

THE COURT: If I understand right, were talking about the same UCC, its just different filing dates. The first filing date being in 01. He or they were both charged with that case, went through the process, they were found not guilty on that issue itself, that

[PROSECUTOR]: On that document.

THE COURT: On the 01 filing. That case is dead and buried. We come down to 03 and 04 and that same UCC is again filed. Is that basically it?

DEFENDANT ALAN JENAN: That is correct.

[PROSECUTOR]: It wasnt the same document.

DEFENDANT ALAN JENAN: It was exactly the same document.

[PROSECUTOR]: The UCC-1 is a standard form. If you want to file a lien on a debtor because that debtor says, I acknowledge I owe this debt, that gives a secured interest in that debtor, you can file a UCC-1 with the Secretary of State. They filed a UCC-1 standard claim in 2001. They now filed a UCC-1 in 2003, a separate UCC-1.

THE COURT: Without the confirmation

[PROSECUTOR]: Exactly. The claimed debtor did not acknowledge and in fact was not given notice at the time of filing. And they filed a correction, a UCC5, on February 18 of this year.

DEFENDANT ALAN JENAN: Your Honor, is he testifying?

THE COURT: Hes going over the facts.

Alan asked for time to refer to a law book with which to counter the prosecutors request that the court hold him and his brother to answer:

DEFENDANT ALAN JENAN: Can you wait one minute until I get a book to settle some of his problems. Its right there.

THE COURT: Well do that.

[PROSECUTOR]: While hes getting his book, perhaps this would be analogous to taking a shot at somebody and getting found not guilty in 2001, taking another shot at them in 2003, theres a new case.

THE COURT: I understand.

DEFENDANT ALAN JENAN: Theres no new case. Its the same issue. Wait a minute.

Will counsel read this section right here, starting right here, number two.

THE COURT: What are we reading out of?

DEFENDANT ALAN JENAN: Parkers Company 1999 copy of Uniform Commercial Codes for California.

[PROSECUTOR]: The problem

THE COURT: Lets make a good record here. What section?

[PROSECUTOR]: 9402. He was pointing out paragraph two. The book hes talking about is the 1999 Uniform Commercial Codes by Lexis. Specific reference for the court, it states, Financing statement which otherwise complies with subdivision one is sufficient when it is signed by the secured party debtor if it is filed per a security interest in or as a fixture filing covering any of the following

However, they have to be a valid debt. Thats the issue. The bankruptcy court said theres no valid debt repeatedly.

THE COURT: It requires the debtors agreement?

DEFENDANT ALAN JENAN: It doesnt if theres a valid debt but theres no debt value. It goes on to state, Any proceeds under 9306, which is proceeds from the sale of property, and I certainly have those.

THE COURT: I dont have any evidence here there is a valid debt. The only evidence I have is whats reflected in the various documents that have been marked and admitted into evidence.

DEFENDANT ALAN JENAN: In the court case, the jury found it was a valid debt. I have the case here.

THE COURT: I dont have that before me, and I think you are misinterpreting what a jury is to decide. They are deciding guilt or non-guilt.

DEFENDANT ALAN JENAN: He has no idea what a UCC-1 really is.

At that juncture, the court cut off Alans effort to counter the prosecutors argument and held him and his brother to answer:

THE COURT: Im afraid you all will have to fight this out at a later time. If you really feel that way, I think you need to have an attorney represent you.

With the evidence I have before me, Im going to make a finding that the crimes as charged have been committed, that the two defendants named are responsible for those crimes, and you are ordered to appear.

After Roger informed the court of the appropriate action that he and Alan were going to take, the court warned that the alternative to keeping quiet was the initiation of mental competence proceedings:

DEFENDANT ROGER JENAN: Just to reiterate again, we have witnesses here that have witnessed you violate your oath. We will take appropriate action.

THE COURT: I can only advise you again, dont do something that might result in another filing against you.

DEFENDANT ROGER JENAN: We asked you to do the same thing. You didnt do it today.

THE COURT: Im not concerned with you taking me before the United States Supreme Court within ninety days, having this matter heard by Congress, because I dont think thats going to happen. I dont know who the United States whatever you call it California Republic Court is.

I assume that court, if there is such a thing that you have, is going to render some sort of a judgment. And I would just caution you as to a judgment against me, [the prosecutor] or anyone else connected with this case. I would just advise you to be very careful what you file, where you file things, and how you proceed.

You can have all the judgments you want to. Doing things such as filing in violation of 115 of the Penal Code and/or sending threatening letters, pursuant to 523 of the Penal Code, are crimes which, Im sure youre well aware

MR. ROGER JENAN: Crimes in this state, correct?

THE COURT: Correct.

MR. ROGER JENAN: Were not in this state.

THE COURT: If you file anything or send anything through the mail, you are in this state.

DEFENDANT ROGER JENAN: Youre talking about the corporation?

THE COURT: Im not threatening. Im just advising.

MR. ROGER JENAN: Are you talking about the State of California corporation?

THE COURT: Im talking about the State of California.

DEFENDANT ROGER JENAN: Corporation. It is a corporation, right, it has an ID number.

THE COURT: Mr. Jenan, 1368 may well apply if you dont keep quiet. (Italics added.)

Roger uttered only two words Good luck and then kept quiet. Alan kept entirely quiet. At that moment, the proceedings ended abruptly.

Our analysis and application of the governing law will be as brief as the record is eloquent on the issues before us. As a defendant who is mentally incompetent cannot understand the nature of the criminal proceedings or assist counsel in the conduct of a defense in a rational manner, so he or she cannot be tried or adjudged to punishment. ( 1367, subd. (a)^[1]; see Drope v. Missouri (1975) 420 U.S. 162, 171.) The doubt as to mental competence that arose in the courts mind at the preliminary hearing imposed on the court the duty to appoint counsel to represent Alan on that issue at that time: If a doubt arises in the mind of the judge as to the mental competence of the defendant, he or she shall state that doubt in the record and , [i]f the defendant is not represented by counsel, the court shall appoint counsel. ( 1368, subd. (a); italics added.^[2]) The court failed to do so.

The United States Supreme Court has held that the failure to observe procedures adequate to protect a defendants right not to be tried or convicted while incompetent to stand trial deprives him [or her] of his [or her] due process right to a fair trial. (Drope v. Missouri, supra, 420 U.S. at p. 172, citing Pate v. Robinson (1966) 383 U.S. 375, 385.) Congruently, the California Supreme Court has held that the court does not lose subject matter jurisdiction when it fails to hold a competency hearing, but rather acts in excess of jurisdiction by depriving the defendant of a fair trial. (People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 70.) The record there established reversible error because the trial court failed to hold a competency hearing in compliance with section 1368, subdivision (b)[^[3]], after expressing a doubt as to defendants ability to proceed with the guilt phase. (Id. at p. 62, citing People v. Marks (1988) 45 Cal.3d 1335, 1338-1339 (collectively the Marks cases).)

The standard of mental competence to stand trial is the same as the standard of mental competence to waive the assistance of counsel. (See, e.g., Godinez v. Moran (1993) 509 U.S. 389, 399-401 (Godinez); People v. Stewart (2004) 33 Cal.4th 425, 513, citing Godinez, supra, at pp. 396, 399, 401, fn. 12; People v. Welch (1999) 20 Cal.4th 701, 732; cf. Faretta v. California (1975) 422 U.S. 806, 835 (Faretta).) By denying Alan appointed counsel and by forcing self-representation on him at a time when his mental competence was at issue, the courts dereliction of statutory duty likewise denied him his right to counsel.

In the Marks cases, the court expressed a doubt about mental competence and ordered a hearing but never held one. Here, not once, but twice, the court expressed a doubt about mental competence and warned of a hearing but never ordered one. That is a distinction without a difference. Here, the courts failure to appoint counsel at the preliminary hearing compels reversal of the judgment.

DISPOSITION

The judgment is reversed.^[4]

_____________________

Gomes, J.

WE CONCUR:

_____________________

Vartabedian, Acting P.J.

_____________________

Cornell, J.

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^[1]Section 1367, subdivision (a) provides: A person cannot be tried or adjudged to punishment while that person is mentally incompetent. A defendant is mentally incompetent for purposes of this chapter if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.

^[2]Section 1368, subdivision (a) provides: If, during the pendency of an action and prior to judgment, a doubt arises in the mind of the judge as to the mental competence of the defendant, he or she shall state that doubt in the record and inquire of the attorney for the defendant whether, in the opinion of the attorney, the defendant is mentally competent. If the defendant is not represented by counsel, the court shall appoint counsel. At the request of the defendant or his or her counsel or upon its own motion, the court shall recess the proceedings for as long as may be reasonably necessary to permit counsel to confer with the defendant and to form an opinion as to the mental competence of the defendant at that point in time.

^[3]Section 1368, subdivision (b) provides: If counsel informs the court that he or she believes the defendant is or may be mentally incompetent, the court shall order that the question of the defendant's mental competence is to be determined in a hearing which is held pursuant to Sections 1368.1 and 1369. If counsel informs the court that he or she believes the defendant is mentally competent, the court may nevertheless order a hearing. Any hearing shall be held in the superior court.

^[4]In light of our holding, we will address none of the other issues on appeal.