In Re Harris

¶1I concur in the result.

¶2I agree with the majority that petitioner is entitled to relief on habeas corpus. He collaterally attacks a judgment of conviction and sentence entered by the superior court on a jury’s verdict. He claims that the superior court was without jurisdiction. Persuasively so. “[T]he juvenile courts exercise exclusive jurisdiction over all minors under the age of 16; these children *852cannot otherwise be tried as criminal offenders.” (In re Gladys R. (1970) 1 Cal.3d 855, 862 [83 Cal.Rptr. 671, 464 P.2d 127]; accord, e.g., T.N.G. v. Superior Court (1971) 4 Cal.3d 767, 784 [94 Cal.Rptr. 813, 484 P.2d 981].) Petitioner committed the offenses in question when he was 15 years of age. As a result, the superior court lacked jurisdiction. The defect “render[s] the judgment void . . . .” (4 Witkin & Epstein, Cal. Criminal Law (2d ed. 1989) Jurisdiction and Venue, § 1822, p. 2159.) It “cannot be waived . . . .” (6 Witkin & Epstein, Cal. Criminal Law, supra, Extraordinary Writs, § 3349, p. 4153.)1 It “can always be attacked by habeas corpus . . . .” (6 Witkin & Epstein, op. cit. supra, at p. 4153.) Put differently, it can never be “procedurally barred.”

¶3In other respects, however, I dissent.

¶4First, I disagree with the majority’s analysis. The “substantive” discussion is flawed. As stated, the superior court was without jurisdiction.2 It did not merely act in excess of jurisdiction. The “procedural” discussion is also open to question. On its very face, it is obiter dictum, seeing that petitioner’s lack-of-jurisdiction claim is not subject to any “procedural bar.” Worse still, it is mischievous, since it may be read to elevate the legitimate interest of the state in the finality of a criminal judgment over the altogether compelling interest of both the state and the individual in the legality of the underlying adjudication.

¶5Second, I disagree with the majority’s disposition. The superior court was without jurisdiction. Hence, it could not have “tried [petitioner] as [a] criminal offender[].” (In re Gladys R., supra, 1 Cal.3d at p. 862.) Therefore, the trial that it actually conducted was a nullity. So too was the jury’s verdict returned in its course. It is neither “just” nor “equitable” to attempt to salvage a determination of guilt that is devoid of legal significance. True, the superior court would have had jurisdiction if it had been sitting as the juvenile court. But it was not. The state must shoulder all the consequences of the superior court’s lack of jurisdiction. Certainly, petitioner should bear *853none. On more than one occasion, he timely claimed that the juvenile court had exclusive jurisdiction. Each time, he was rebuffed.

¶6For the reasons stated above, I would grant the petition for writ of habeas corpus and vacate the judgment of the superior court.

¶7Petitioner’s application for a rehearing was denied September 30, 1993, and the opinion was modified to read as printed above. Mosk, J., was of the opinion that the application should be granted.