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Filed 8/29/24 P. v. Allen CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent,

v. PAMELA MARIA ALLEN, Defendant and Appellant. A167971
(San Mateo County Super. Ct. No. SC035484A)

MEMORANDUM OPINION 1 In 1994, defendant Pamela Maria Allen stabbed her sister and
shot two men for no apparent reason. ( People v. Allen (Feb. 7, 2005, A105804) [nonpub. opn.] ( Allen I ) at * 2

. ) 2 She was subsequently diagnosed with paranoid schizoaffective disorder. ( People v. Allen (Jan. 24, 2022, A162774) [nonpub. opn.] ( Allen II ) at * 2 ; Allen I

, supra, A105804, at * 2 .)

1 This appeal is appropriately resolved by memorandum opinion in accordance with California Standards of Judicial Administration, section 8.1.

2 We take judicial notice on our own motion of our prior opinions in defendant’s appeals from orders extending her commitment to the Department of State Hospitals. (Evid. Code , §§ 452, subd. (a), 459 .)2

The following year, defendant entered into a negotiated disposition to resolve the charges against her

— two counts of attempted first degree murder, two counts of assault with a firearm, and three counts of assault with a deadly weapon. She pleaded nolo contendere to two counts of assault with a firearm and two counts of assault with a deadly weapon. The remaining counts were dismissed. T he trial court then found her not guilty by reason of insanity (NGI) and committed
her to the Department of State Hosp itals for the agreed

- upon maximum of 13 years 4 months , with 209 days of custody credit. Defendant was housed in the most restrictive unit. ( Allen II
, supra, A162774, at * 2 ; Allen I , supra , A105804, at * 2 .) She verbally threatened and physically assaulted staff and patients, behaved in a sexually inappropriate manner, refused medication, and violated rules. ( Allen II, supra , A162774, at *3

. ) The trial court has five time s extended her commitment, finding her “still a danger” and she “cannot be successfully treated in the community.” ( Id. , at * 5 .) In February 2023, 28 years after enter ing into the negotiated disposition that resolved the criminal charges against her, defendant filed a motion to withdraw her nolo contendere plea , arguing it was not
authorized under the plea statute , specifically Penal Code section 1016

a s elucidated in People v. John (2019) 36 Cal.App.5th 168 ( John ). The
trial court denied the motion. DISCUSSION Making an amalgam of forfeiture and estoppel arguments, t he Attorney General maintains defendant has waited too long to challenge the validity of her plea

. We agree , concluding defendant is estopped3

from seeking to withdraw her plea and overturning the negotiated disposition to which she agreed nearly three decades ago. Indeed, one of the cases defendant includes in her opening brief

— acknowledg ing that “[i]n the absence of exceptional circumstances, a party has no right to attack a voidable judgment long after it is final” ( People v. Ramirez ( 2008) 159 Cal.App.4 th 1412 ( Ramirez ) )

— illustrates why estoppel should bar her belated attack on her plea.
In Ramirez, the defendant entered into a plea agreement to
resolve numerous pending charges. In accordance therewith, the trial court imposed, but suspended execution of, a midterm, four

- year sentence and placed him on probation. ( Ramirez, supra,
159 Cal.App.4th at p. 1418.) After violating probation a second time,

t he defendant entered into a second negotiated disposition to resolve the probation matter. Th is disposition included increasing the suspended sentence to the upper term of five years . ( Id. at pp. 1419

– 1420.) After a third violation, the trial court revoked probation and imposed the upper term sentence. ( Id. at p. 1419.)
The C ourt of A ppeal rejected the defendant’s argument that the
trial court lacked “

jurisdiction ” to extend the sentence and therefore he
could challenge it at any time. The appellate court explained :

“ ‘ [J] urisdictional errors are of two types. “ Lack of jurisdiction in its most fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties. ” [Citation.] ’ [Citation.] The term ‘ lack of jurisdiction ’ may also be applied when the court possesses jurisdiction over the subject matter and parties in the fundamental sense but ‘ “ has no ‘ jurisdiction ’ (or power) to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites.” [Citation .] ’ [Citation.] ‘ When a4

court lacks jurisdiction in a fundamental sense, an ensuing judgment is void , and “thus vulnerable to direct or collateral attack at any time .” [Citation.] ’ [ Citation .] By contrast, when a court has fundamental jurisdiction to act but acts in excess of jurisdiction, its actions are merely voidable , ‘ [t]hat is, its act or judgment is valid until it is set aside, and a party may be precluded from setting it aside by

“ principles of estoppel, disfavor of collateral attack or res judicata. ” [Citation.] ’ [Ci tation.] Whereas a lack of fundamental jurisdiction may be raised at any time, a challenge to a ruling in excess of jurisdiction is subject to forfeiture if not timely asserted. [ Citation .] In the absence of exceptional circumstances, a party has no right to attack a voidable judgment long after it is final. ” ( Ramirez, supra, 159 Cal.App.4th at p. 1422.)

The court went on to c onclude that while the trial court lacked

“ authority ” to increase the defendant’s sentence ( Ramirez, supra,
159 Cal.App.4th at p. 1425), it did not lack “fundamental jurisdiction”
to do so. “ [B] y failing to heed the statute that precluded it from modifying appellant’s sentence ( [Pen. Code,] § 1203. 2 , subd. (c)), the court merely exceeded its jurisdiction but did not lack jurisdiction in the fundamental sense over appellant or the subject matter

. ” ( Id. at

p. 1427 .)
Th e appellate court further conclude d the defendant not only “forfeited” his challenge to the exten sion of his sentence by failing to file a timely appeal , but he also was “estopped” from challenging the order because he “agreed to the five

- year sentence as part of a plea deal in which he admitted the probation violation.” ( Ramirez, supra,
159 Cal.App.4th at pp. 1427

– 1428.) With respect to the latter point, the Ramirez court explained, “The rationale justifying application of estoppel is that ‘defendants who have received the benefit of their bargain should not be allowed to trifle5

with the courts by attempting to better the bargain through the appellate process.’ ( People v. Hester (2000) 22 Cal.4th 290, 295

. ) In exchange for agreeing to increase his suspended sentence by one year, appellant received the benefit of being reinstated on probation and released from custody. Having accepted the benefits of his plea, he should not now be able to better the bargain by scaling back the increased sentence that was a fundamental component of the plea deal. [¶] Whether a defendant is estopp ed to complain about an act in excess of jurisdiction ‘ 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. ’ [ Citation .] We discern no public policy that would be served by allowing appellant to challenge his sentence after he had already enjoyed the benefits of the plea bargain giving rise to his sentence.” ( Ramirez, supra, 159 Cal.App.4th at p. 1428 ; see also People v. Miller ( 2012) 202 Cal.App.4th 1450, 1452

– 1453 [ the defendant , who entered into negotiated disposition in 2005
but made no objection to his plea and conviction until April 2010, was estopped from seeking to withdraw his plea; “ [ a ] lthough . . . there was error in charging and accepting the plea

. . . , for reasons of public policy, ” the defendant was “ estopped from vacating his plea and modifying his conviction by his consent to the plea agreement”]; People v. Couch (1996) 48 Cal .App.4th 1053, 1057 [“that a defendant has received a benefit in return for agreeing to accept a specified sentence is itself sufficient to estop that defendant from later seeking to unfairly supplement this benefit by mounting an appellate attack on the trial

court ’ s imposition of the specific sentence which the defendant agreed to accept”] ; People v. Superior Court ( Wagner ) ( 1989) 210 Cal.App.3d6

1146, 1149 [holding in habeas appeal the “defendant waived the defect in his 1983 NGI plea by his unexcused delay in challenging that plea until he reaped the full benefit of preferable hospital confinement and avoided the possibility of prison and attendant parole period ”].) The reasoning of these cases is ap posite here. There is no question the trial court had personal jurisdiction over defendant and
had subject matter jurisdiction to hear the criminal case against her. Accordingly, the court had fundamental jurisdiction to accept her plea
and impose the commitment order defendant now seeks to collaterally challenge, regardless of whether her plea was statutorily authorized. ( See People v. Hester , supra, 22 Cal.4th at p. 295 ( Hester ) [where a defendant has “ pleaded guilty in return for a specified sentence, appellate c ourts will not find error even though the trial court acted in excess of jurisdiction in reaching that figure, so long as the trial court
did not lack fundamental jurisdiction ”].)
The re is also no question the trial court accepted defendant’s plea
and ordered her commitment pursuant to a negotiated disposition
which secured a significant benefit for her

— psychiatric treatment , instead of incarceration in a state prison. ( See Wagner , supra, 210 Cal.App.3d at p. 1149 .) To quote Ramirez , “[w]e discern no public policy that would be served” by allowing defendant to withdraw her plea and overturn the negotiated disposition long after she has “already enjoyed the benefits of the plea bargain

. ” ( Ramirez, supra, 159 Cal.App.4th at p. 1428 .) Defendant urges that People v. Prudholme (2023) 14 Cal.5th 961 ( Prudholme ) and John , supra, 36 Cal.App.5th 168 , sanction her effort7

to invalidate the negotiated disposition to which she agreed nearly 30 years ago. Neither case does so.
In Prudholme, the trial court, pursuant to a negotiated disposition, imposed a three

- year probationary period. ( Prudholme , supra , 14 Cal.5th at p. 964.) The d efendant timely appealed, and while his appeal was pending, the Legislature enacted A ssembly B ill
No. 1950 ( 2019

– 2020 Reg. Sess.) , which reduced most felony probation to two years. ( Prudholme , at p. 966.) The issue before our Supreme Court was whether this ameliorative legislation applied retroactively to nonfinal cases. The court held that it did and modified the judgment to
reduce the probation ary period to two years. ( Id. at pp. 979

– 980.) Thus, Prudholme involved an entirely different procedural posture

— a timely, direct appeal from a negotiated disposition . It does not remotely call into question the high court’s decision in Hester and other estoppel cases. In John, the defendant moved to withdraw her guilty plea less than five months after the trial court, in accordance with a negotiated disposition, ordered her committed to a state hospital. ( John , supra , 36 Cal.App.5th at p. 171.) The trial court ruled her motion was untimely. On appeal, the Attorney General conceded the trial court
was in error

. ( Ibid. ) Th e C ourt of A ppeal not only agree d the defendant’s appeal was timely but went on to conclude the plea deal did not comport with the statutes governi ng guilty pleas . ( Id. at pp. 174

– 175.) It further concluded the appropriate disposition was to reverse and remand, allowing the defendant to enter a new plea. ( Id. at

p. 176.) N ot surprisingly, given the relative ly short period that elapsed before the defendant sought to withdraw her guilty plea, the Attorney8

General did not raise the issue of estoppel, nor did the appellate court consider it. In sum, given th e nearly 30 years that have elapsed since defendant ’s nolo contendere plea to the serious charges against her, she is estopped from seeking to withdraw her plea and overturning the negotiated disposition to which she agreed. DISPOSITION The order denying defendant’s motion to withdraw her plea is
AFFIRMED

.

BANKE, J.

WE CONCUR:

HUMES, P. J.

LANGHORNE WILSON, J.

( People v. Allen ; A167971)