Bonnie Merrick's List: SUBJECT MATTER JURISDICTION

• which held that section 422.7 is only a penalty provision; we set forth the entirety of section 422.7
• We agree with appellant that the judgment entered in 1994 is void.
• Pursuant to a negotiated disposition, the prosecution amended the information to allege a violation of section 422.7. The defendant pleaded nolo contendere to this charge, in exchange for which the remaining counts were dismissed
• before us, the defendant appealed from the judgment, contending that section 422.7 "is merely a penalty provision for which he cannot be punished in the absence of a conviction on a related substantive offense.
• any crime which is not made punishable by imprisonment in the state prison shall be punishable by imprisonment in the state prison or in a county jail not to exceed one year, by a fine not to exceed ten thousand dollars ($10,000), or by both that imprisonment and fine

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• We agree
• although we reject Wallace's argument that his conviction should be reduced to a
• misdemeanor.
• Accordingly, we reverse.
• Because the only issue on appeal is a question of law, we need not recite the facts in detail.
• The California Supreme Court has recognized, however, that statutory provisions which are not "enhancements" in the strict sense are nevertheless "penalty provisions" as opposed to substantive offenses where they are "separate from the underlying offense and do[] not set forth elements of the offense or a greater degree of the offense charged
• [distinguishing statutes that "articulate[] a penalty provision" from those that create "a substantive crime
• [concluding that § 667.7, although not an "enhancement," is a penalty provision that does not create a substantive offense
• [recognizing that "Penal Code section 422.6 defines a criminal offense" while "Penal Code section 422.7 is a penalty enhancement provision"
• In any event, we conclude that section 422.7 is a penalty provision and not a substantive offense.
• To reach this conclusion, we first look to the statutory language to determine whether section 422.7 "`focus[es] on an element of the commission of the crime or the criminal history of the defendant which is not present for all such crimes and perpetrators and which justifies a higher penalty than that prescribed for the offenses themselves
• does not identify any particular substantive crime
• (See People v. Soriano (1992) 4 Cal.App.4th 781, 785, 6 Cal. Rptr.2d 138 ["where fundamental jurisdiction is lacking, it cannot be conferred by consent or estoppel"].) Because Wallace's plea to a violation of section 422.7 is a legal nullity, the judgment must be reversed.

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• Rather, the distinction the Ellis court made was that where fundamental jurisdiction is lacking, it cannot be conferred by consent or estoppel, whereas consent or estoppel can supply jurisdiction for an act undertaken by the trial court merely in excess of its statutory power. (People v. Ellis, supra, 195 Cal. App.3d at p. 343.)

• The doctrine of estoppel by record precludes a party from denying the issues adjudicated by a court of competent jurisdiction (Collateral Estoppel) or any matter spelled out in a judicial record (judicial estoppel)
• Collateral estoppel, sometimes known as estoppel by judgment, prevents the re-argument of a factual or legal issue that has already been determined by a valid judgment in a prior case involving the same parties.

• In People v. Garrett (1987) 192 Cal. App.3d 41 [237 Cal. Rptr. 305] we recently discussed the difference between an act of a trial court undertaken without "jurisdiction in the fundamental sense" (a complete absence of authority with respect to the subject of the dispute) and an act undertaken "in excess of jurisdiction, i.e. beyond statutory authority." (P. 49.) We explained that where fundamental jurisdiction was lacking, it could not be conferred by consent or estoppel, whereas consent or estoppel could supply jurisdiction for an act undertaken by the trial court merely in excess of its statutory power. (Ibid.)
• Here, it is clear the trial court's error is premised on an excess of jurisdiction, not on a lack of fundamental jurisdiction
• We concluded the trial court's act was undertaken in excess of its statutory authority, because, "When an information is properly filed the superior court clearly has subject matter jurisdiction to hear and determine the case."
• The trial court acted in excess of its statutory jurisdiction but not in excess of its fundamental jurisdiction
• "Whether [a defendant] shall be estopped depends on the importance of the irregularity not only to the parties but to the functioning of the courts and in some instances on other considerations of public policy.
• On the other hand waiver of procedural requirements may not be permitted when the allowance of a deviation would lead to confusion in the processing of other cases by other litigants
• It would be unconscionable to hold a defendant bound by a plea made under such significant and excusable misapprehension of the law."
• Since Crumpton does not control the question, we turn to questions of policy.
• Plainly the law has a strong interest in insuring that a defendant is convicted and punished only if he has done an
• The diverse statutes comprising the criminal law are there for a reason; they are not like tools above a workbench to be selected by the parties to a criminal case according to their utility in getting rid of pending cases and without regard to a defendant's conduct.
• act proscribed by a criminal statute
• The law also has an interest in insuring that, even where a defendant has committed some criminal act, his criminal conduct matches up with a statute that proscribes the conduct
• the law has no interest in punishing defendants more severely than has been ordained by the Legislature
• he law also has a strong interest in seeing to it that defendants do not unfairly manipulate the system to obtain punishment far less than that called for by the statutes applicable to their conduct
• the petition is denied

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