THE PEOPLE v. KIRELL FRANCIS TAYLOR (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

and Appellant.

Appellant filed a petition for writ of habeas corpus on May 28, 2010, claiming that his right under Penal Code section 859b to a preliminary hearing within 10 court days of his arraignment was violated.   The superior court denied appellant's petition, stating that “[a]n alleged denial of a speedy preliminary hearing is reviewable only by pretrial writ and prejudice must be shown.   [Citations.]”

On the same date, appellant filed a motion to set aside the complaint, orders, and judgment as void, on the basis that the complaint filed on August 20, 1999 was not verified as required by Penal Code sections 806 and 859.   The superior court denied the motion, reasoning that any defects in the complaint must be raised prior to the preliminary hearing, and that appellant did not allege any prejudice from the lack of verification.   Appellant filed a timely notice of appeal from the orders denying his habeas petition and his motion to set aside the judgment.

After review of the record, appellant's court-appointed counsel filed an opening brief requesting this court to review the record independently pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441.

On January 13, 2011, we advised appellant that he had 30 days within which to submit any contentions or issues that he wished us to consider.   On January 25, 2011, appellant filed a supplemental brief, again raising the alleged deficiencies in his preliminary hearing and in the complaint.   On January 28, 2011, appellant filed a request to have appointed counsel augment the record with the transcripts of the August 27, 1999 preliminary hearing, and a request for an evidentiary hearing regarding the motion to augment the record.   On February 4, 2011, appellant filed a supplement to his January 25 supplemental brief, reiterating his claims regarding the preliminary hearing and raising issues regarding self-representation, a motion to suppress evidence, the destruction of evidence, and proceedings in federal court.

Counsel asserts in the Wende brief that the denial of the habeas petition and the denial of the motion to vacate the judgment are appealable orders within the meaning of Penal Code section 1237, subdivision (b).  We disagree with counsel's assertion and conclude that neither order is appealable.

First, although the People may appeal the grant of a habeas petition, “[n]o appeal lies from an order denying a petition for writ of habeas corpus.   [Citations.]”  (Jackson v. Superior Court (2010) 189 Cal.App.4th 1051, 1064;  see Pen.Code, § 1506;  Cal. Rules of Court, rule 8.388.)   The appeal of the order denying appellant's habeas petition accordingly is not appealable.

Second, the denial of appellant's motion to set aside the complaint, orders, and judgment is not an appealable order.  “ ‘[A]n order ordinarily is not appealable when the appeal would merely bypass or duplicate appeal from the judgment itself.’  [Citation.]”  (People v. Totari (2002) 28 Cal.4th 876, 882.)   The issue appellant raises regarding the August 1999 complaint clearly should have been raised in earlier proceedings.   Although there is an exception to the general rule of nonappealability when the final judgment is void, the exception applies where the judgment is void for a “[f]undamental jurisdictional defect[ ].”  (People v. Thomas (1959) 52 Cal.2d 521, 528;  People v. Totari, supra, 28 Cal.4th at p. 882.)   The exception does not apply here.   Moreover, the denial of appellant's motion is, in essence, a denial of his habeas petition and as such is not appealable.

Even if we were to deem the orders appealable, appellant's habeas petition raised issues regarding his preliminary hearing.  “In [People v.] Pompa-Ortiz [ (1980) ] 27 Cal.3d [519, 529], the Supreme Court held that illegalities in criminal preliminary hearings that are not ‘jurisdictional in the fundamental sense’ are not reversible per se on an appeal following the subsequent trial.   Rather, such illegalities must be reviewed ‘under the appropriate standard of prejudicial error and shall require reversal only if defendant can show that he was deprived of a fair trial or otherwise suffered prejudice as a result of the error at the preliminary examination.’   [Citation.]”  (In re Ronje (2009) 179 Cal.App.4th 509, 517.)

Appellant has not alleged any prejudice that resulted from the alleged error.  Penal Code section 859b “provides that with reference to in-custody defendants, the complaint must be dismissed if the preliminary examination is not held within 10 days of arraignment, except that the hearing may be continued with the consent of the defendant or if the prosecution establishes good cause for a continuance.”  (People v. Standish (2006) 38 Cal.4th 858, 866.)   Appellant does not claim that the outcome of his case would have been different had the preliminary hearing been held within the requisite 10-day period.   Moreover, we note that the preliminary hearing appellant challenges was held on August 27, 1999, but an amended information was filed on March 1, 2000.   Appellant therefore cannot show prejudice from the failure to dismiss the original complaint.

Appellant's claims regarding the denial of his motion to vacate the complaint, orders, and judgment also would fail, if the order were appealable.  Penal Code section 960 provides that “[n]o accusatory pleading is insufficient, nor can the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form which does not prejudice a substantial right of the defendant upon the merits.”

Appellant has not established any prejudice from the alleged deficiencies in the complaint.

The other issues raised in appellant's supplement to his supplemental brief regarding his right to self-representation, his motion to suppress evidence, and the destruction of evidence are not appealable because they would bypass or duplicate his initial appeal.  (See People v. Totari, supra, 28 Cal.4th at p. 882.)   We have no jurisdiction over his federal proceedings.

We have examined the entire record and are satisfied that no arguable issues exist, and that appellant has, by virtue of counsel's compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case.   (Smith v. Robbins (2000) 528 U.S. 259, 278;  People v. Kelly (2006) 40 Cal.4th 106, 112-113.)

DISPOSITION

The appeal is dismissed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

MANELLA, J. SUZUKAWA, J.