Skip to content
Name: People v. Vasilyan
Case #: B205679
Court: CA Court of Appeal
District 2 DCA
Division: 8
Opinion Date: 05/28/2009

A judgment that is void for lack of subject matter jurisdiction, such as when a defendant is convicted of a crime that does not exist, is subject to collateral attack. For a court in California to have jurisdiction in a criminal case it must have jurisdiction over the person and the subject matter, with subject matter jurisdiction being predicated on the offense. In 1994, appellant, a lawful permanent resident, pled no contest to two of the three charged counts of Penal Code section 422.7 and was placed on probation. The action stemmed from an attack by appellant and several other men on two men whom they verbally abused (calling the victims “fags”) and physically assaulted. Appellant did not appeal from the judgment of conviction. In 2004, he was deported to Armenia as a result of the convictions. But because section 422.7 is a penalty provision rather than an offense, appellant was not actually convicted of an offense. (In re M.S. (1995) 10 Cal.4th 698.) As the trial court lacked subject matter jurisdiction, then, the judgment was void and subject to collateral attack. Accordingly, the appellate court granted appellant’s motion to vacate the judgment and remanded with direction to either amend or dismiss the information, as appropriate.