Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County. Ct. No. VCF071764-01, Patrick J. O’Hara, Judge.
Charles M. Bonneau for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Janet E. Neeley, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Wiseman, Acting P.J.
Procedural Historyand Factual Summary
On July 19, 2001, appellant Brian Robert Boyette entered a plea of no contest to two counts of violating Penal Code section 286, subdivision (b)(2), sodomy with a minor under the age of 16 years when the defendant is over the age of 21 years. The victim was Boyette’s then 14-year-old stepson. The sexual relationship lasted approximately six months.
All further references are to the Penal Code unless otherwise noted.
When Boyette was sentenced he was statutorily subject to a lifetime sex offender registration requirement. (§ 290.) After his release from prison, the California Supreme Court decided People v. Hofsheier (2006) 37 Cal.4th 1185 (Hofsheier), which held that, because the offense of sexual intercourse with a minor did not require lifetime sex offender registration, requiring lifetime registration for the offense of oral copulation with a minor violated the equal protection clause. The reasoning given was that the different sex acts involved did not justify treating defendants similarly situated differently by imposing lifetime registration for the act of oral copulation but not for the act of sexual intercourse. The rationale has been held to apply equally to sodomy. (People v. Thompson (2009) 177 Cal.App.4th 1424, 1432.)
Boyette filed a postjudgment motion in Tulare County Superior Court seeking relief from the mandatory lifetime registration requirement. The prosecution conceded that the reasoning of Hofsheier applied and that Boyette should be relieved from mandatory lifetime registration. The trial court agreed. The trial court, however, at the request of the prosecution, considered whether Boyette should be required to register under the discretionary sex offender registration provision in section 290.006. There was a full hearing on the issue. The trial court, exercising its discretion, ordered that Boyette continue to register as a sexual offender under the discretionary registration statute. The trial court gave its reasons as that there was a 19-year age disparity between Boyette and his victim; that Boyette, as the stepfather, held a position of trust over the minor; and that Boyette violated this trust even after being sent to the California Rehabilitation Center on drug charges by sending letters to the victim with the intent of reestablishing the sexual relationship after Boyette’s release.
There is a discrepancy between the clerk’s transcript, which records the court’s order as a denial of the motion and an order that the defendant “continue PC290 lifetime registration.” However, the reporter’s transcript shows that the order was that the defendant continue lifetime registration pursuant to section 290.006, not section 290. The court stated, “This is discretionary registration.” Where there is a discrepancy between the clerk’s transcript and the reporter’s transcript, the reporter’s transcript controls unless the circumstances dictate a different result. (People v. Smith (1983) 33 Cal.3d 596, 599; In re Maribel T. (2002) 96 Cal.App.4th 82, 86.)
Discussion
Boyette filed his notice of appeal from the postjudgment order. Both parties concede that, under California Supreme Court authority, People v. Picklesimer (2010) 48 Cal.4th 330 (Picklesimer), decided after the trial court’s postjudgment order, the trial court had no jurisdiction to consider Boyette’s request for relief in the postjudgment motion filed long after the trial court had lost jurisdiction of the case. Both parties ask that this court review the issues raised in the appeal by way of deeming the appeal an original proceeding in mandamus.
Although we acknowledge the procedural uniqueness of this case, we decline to grant the parties’ request to deem the appeal as a writ of mandate. Instead, for the following reasons, we will reverse the trial court’s order, restore the status quo (placing the parties back where they were before the postjudgment motion was filed), and give directions to the trial court to deem the original postjudgment motion as a writ of mandate and to conduct further proceedings.
Although the trial court acted prior to the decision in Picklesimer, the law now is clear: The trial court lacks jurisdiction to act in a postjudgment motion seeking correction of a sentence where jurisdiction previously has been lost. The court in Picklesimer specifically holds that the trial court has no jurisdiction to consider a postjudgment motion such as the one filed by Boyette. (Picklesimer, supra, 48 Cal.4th 330, 337-340.) Most courts considering the issue prior to Picklesimer recognized that there was a jurisdictional problem in considering a postjudgment motion so long after the court had lost jurisdiction in the case. (See Lewis v. Superior Court (2008) 169 Cal.App.4th 70, 77-78.) The primary reason for acting in these cases was that, after the decision in Hofsheier, not acting would leave the out-of-custody defendant with a wrong but no remedy, something the law generally does not permit. (Lewis v. Superior Court, supra, at pp. 77-78.) However, in Picklesimer, the court clarified the issue and provided out-of-custody defendants such as Boyette with the correct procedural vehicle for seeking Hofsheier relief. In order to seek review of his registration requirement, a defendant such as Boyette must file a petition for writ of mandate in the trial court. This is not a new rule of law, but a clarification of the existing law. The trial court’s jurisdiction and power to correct a judgment ends after the time of appeal has expired. (Picklesimer, supra, at pp. 337-340; People v. Alanis (2008) 158 Cal.App.4th 1467, 1476.)
When a court has no jurisdiction to act, the subsequent order is void. (People v. Bankers Ins. Co. (2010) 182 Cal.App.4th 1377, 1383 [when court lacks jurisdiction in fundamental sense, ensuing judgment is void and vulnerable to attack at any time]; People v. Ramirez (2008) 159 Cal.App.4th 1412, 1422 [same]; Airlines Reporting Corp. v. Renda (2009) 177 Cal.App.4th 14, 20 [parties cannot confer jurisdiction by consent; judgment rendered in absence of fundamental jurisdiction is nullity].) This does not mean that we lack jurisdiction over the appeal. “An appeal from a void judgment is not the same as an appeal from a nonappealable order, in which case the appeal must be dismissed. [Citations.] Rather, … the proper procedure [where appeal is from judgment entered without jurisdiction] is to reverse the void judgment rather than dismiss the appeal. [Citations.]” (People v. Alanis, supra, 158 Cal.App.4th at pp. 1476-1477, fn. omitted.) We cannot affirm any part of a void order.
Recognizing the problem, both Boyette and the Attorney General have asked that we deem Boyette’s appeal from the postjudgment motion an original petition for writ of mandate and to review the issues raised in the appeal on the merits. Both parties contend that the record is sufficient for review as a writ despite the case’s procedural posture.
Picklesimer approved the use of this procedure in the appropriate case. The court in Picklesimer cited Lewis v. Superior Court, supra, 169 Cal.App.4th 70, 77-78, with approval. In Lewis, the trial court denied a postjudgment motion to relieve the defendant of the registration requirement despite the decision in Hofsheier, ordering that the defendant must register under the discretionary provisions of section 290.006. But, the record before the court in Lewis provided no justification for continued registration under either section 290 or section 290.006. The Lewis court stated “[s]ince Lewis has made an adequate showing of his right to relief and no plain, speedy alternative remedy, and since neither the prosecutor nor the Attorney General have objected to our consideration of the merits, we shall treat Lewis’s appeal as petition for writ of mandate directing the superior court to strike the registration order.” (Lewis v. Superior Court, supra, at pp. 77-78.) Although approving the procedure in Lewis, the court in Picklesimer refused to follow the same procedural course because it concluded the record before it was not sufficient for relief from the registration requirement. (Picklesimer, supra, 48 Cal.4th at p. 346; see also In re Stier (2007) 152 Cal.App.4th 63, 84.)
Key to the Lewis and Picklesimer analyses is the ability of the reviewing court to determine that the defendant should be relieved of all registration requirements. In Hofsheier, the court made it clear that, where its constitutional holding with respect to mandatory registration was applied to a given case, this was not the end of the analysis. In each case where a defendant was entitled to relief from mandatory registration, there remained the issue of whether the defendant should be compelled to register under the discretionary registration provisions. “[W]here mandatory registration violates the equal protection clause, the proper remedy is to hold a hearing to determine whether [the] defendant should be subject to discretionary registration as a sex offender.…” (People v. Garcia (2008) 161 Cal.App.4th 475, 478-479, overruled on other grounds by Picklesimer, supra, 48 Cal.4th at p. 338, fn. 4; see also People v. Thompson, supra, 177 Cal.App.4th at p. 1431; People v. Hernandez (2008) 166 Cal.App.4th 641, 652, also overruled on other grounds by Picklesimer, supra, at p. 338, fn. 4.)
We cannot say that Boyette should be relieved of all registration requirements. Whether the record before us is complete or not, we believe the discretionary call dictated by section 290.006 belongs to the trial court. The trial court must consider the nature of the underlying offense and whether the defendant is likely to reoffend. The defendant’s behavior since the time of original sentencing is relevant to this determination as are the facts surrounding the offense. (See People v. Garcia, supra, 161 Cal.App.4th at pp. 484-485.) The purpose of the sexual offender registration requirement is to assure that persons likely to reoffend are readily available for police surveillance in order to reduce the likelihood of future victims. (Ibid.) This analysis is one that trial courts are particularly adept at performing during the sentencing process and requires a balancing of the factors and evidence presented by both the defendant and the prosecution.
We recognize that the trial court in this case has already gone through this balancing process. However, because the trial court had no jurisdiction to act, its order is void, and if this court were to deem the current appeal a petition for writ of mandate, we would be required to do the balancing ourselves and determine whether Boyette should be relieved of all registration requirements. The writ would be an original proceeding in this court; we would not be reviewing the trial court’s action in any respect. This is something the parties have failed to appreciate since their briefing focuses on review of the trial court’s actions. As we have already said, we cannot review on the merits a decision of the trial court that is void for lack of jurisdiction.
As a result, we believe the best resolution of this admitted procedural quagmire is to remand the matter to the trial court with directions to the trial court to consider Boyette’s postjudgment motion as a petition for writ of mandate in the trial court. The court may order the parties to supplement the original filings as needed to comply with the requirements of a writ proceeding in superior court. In doing so, we make no judgment on the adequacy of the underlying filings. (See Picklesimer, supra, 48 Cal.4th at pp. 340-341 [assuming pleading filed meets or can be amended to meet prerequisite for petition for writ of mandate, court may treat motion as mislabeled petition for writ of mandate].) The parties may then proceed to a hearing on the merits of the issues raised. If the parties desire, they may stipulate to have the matter heard on the record filed in this court, or they may wish to introduce additional information relevant to the discretionary registration requirement. We offer no opinion on the correctness of the trial court’s previous ruling or the appropriateness of a discretionary registration requirement. The original mandatory registration requirement remains in full force and effect until the trial court rules.
We also recognize that the remand will result in duplication on the part of the parties and the trial court, in essence, a “do over.” Given the trial court’s lack of jurisdiction over the postjudgment motion, however, and the need for a discretionary call, we conclude there is no way to avoid remand for a new hearing.
DISPOSITION
The order of the trial court is reversed for lack of jurisdiction and the matter is remanded with the following instructions:
1. The trial court shall deem the original postjudgment motion to be a petition for writ of mandate.
2. The parties shall be given an opportunity to correct any deficiencies in the original filing that might result in a finding that the petition was not adequate as a writ of mandate.
3. The parties shall have the opportunity to submit the matter on the current record or to present new evidence in an appropriate form for a writ proceeding.
4. The trial court shall bring the matter to hearing within a reasonable time and consider the merits of Boyette’s request that he be relieved of all sex offender registration requirements.
5. The mandatory registration requirement originally imposed at sentencing will remain in full force and effect until the court rules at the close of the proceedings directed by this opinion.
WE CONCUR: Kane, J., Poochigian, J.