Opinion
NOT TO BE PUBLISHED
Los Angeles County Super. Ct. No. A467606
THE COURT:Lamont Gentry Falls (appellant) appeals from an order denying his “demand for disposition pursuant to interstate Agreement on Detainers” (demand) in case No. A467606 and, in the alternative, his motion to dismiss for lack of prosecution in the same case (motion).
In appellant’s demand, he explained that he entered a guilty plea on June 4, 1986, to a violation of Health and Safety Code section 11351 in case No. A467606. On July 8, 1986, he received “a sentence of one year in county jail and three years of probation.” “[E]xecution of sentence” was stayed pending an appeal bond hearing. On July 10, 1986, appellant was granted bond during the pendency of his appeal. This court affirmed his conviction on March 29, 1987, and the remittitur was issued on July 21, 1987 (appellant’s exh. C). Appellant contended he was never informed of the outcome of his appeal. In his demand, appellant requested a final disposition of his case, asserting that disposition is still pending due to the imposed sentence (365 days in jail) never being executed. He requested that he be permitted to withdraw his guilty plea, that the verdict or finding of guilt be set aside, and that a plea of not guilty be entered and a trial date set. In the alternative, he requested dismissal of the action with prejudice for failure to execute the sentence in a timely manner.
In his motion, appellant asked for dismissal of case No. A467606 with prejudice in the interest of justice and equity for lack of prosecution. In addition to the procedural history recited in the demand, appellant stated that an order exonerating the appeal bond was filed and granted on July 31, 1991, although “no execution of sentence was made.” He added that, on July 24, 2008, he filed a motion requesting that a final disposition be entered, or the case dismissed. Appellant asserted that a defendant has a due process right to a speedy sentencing and to serve the sentence promptly. This prevents the state from keeping a defendant on tenterhooks while the state waits to execute the sentence. Due to the failure by the state to diligently pursue the execution of his sentence, appellant requested that case No. A467606 be dismissed with prejudice for failure to prosecute.
In its order of August 6, 2009, the trial court stated that its review of the court records retrieved from the archives showed that appellant entered a guilty plea on June 4, 1986, after his suppression motion was denied. He was granted probation on July 8, 1986, with a jail sentence that was stayed pending appeal. The trial court noted that, on July 2, 1987, we affirmed the judgment. The trial court cited a probation officer’s report prepared for a hearing on July 22, 1987, which indicated that appellant had been arrested on April 28, 1987 (before issuance of the remittitur in his appeal), and charged with a violation of former Penal code section 487, subdivision (3), grand theft auto. (Stats. 1987, ch. 599, § 1, p. 1932.) The probation report further stated that appellant had reported to probation as instructed; had submitted to “anti-narcotic” drug tests on the average of twice monthly since November 12, 1986; and was paying $20 per month on his restitution.
Appellant has submitted a photocopy of the transcript of the taking of his guilty plea in case No. A467606 as exhibit A attached to his supplemental brief.
All further references to statutes are to the Penal Code unless stated otherwise.
The trial court also noted that on April 22, 1998, appellant signed a petition for writ of error coram nobis in the superior court. His petition was denied on July 27, 1998. On August 30, 2000, this court affirmed the July 27, 1998 order denying the petition. Without further comment, the trial court stated that, after considering the motions and the records and files in appellant’s case, it denied the motion and the demand for disposition because both requests were without merit.
The appeal from the denial of appellant’s petition for writ of error coram nobis in case No. A467606 was appellate court case No. B128265.
We appointed counsel to represent appellant on this appeal. After examination of the record, counsel filed an “Opening Brief” containing an acknowledgment that he had been unable to find any arguable issues. On February 17, 2010, we advised appellant that he had 30 days within which to personally submit any contentions or issues that he wished us to consider. After receiving an extension, appellant filed a supplemental brief on July 20, 2010. He attached a photocopy of the transcript of the taking of his guilty plea (exh. A); a copy of the supplemental probation report submitted on July 16, 1987 (the report noted by the trial court) (exh. B); a copy of the remittitur affirming his conviction filed July 21, 1987 (exh. C); a copy of the minute order entered July 8, 1986, in case No. A467606 (exh. D); and a copy of a letter from appellant to the clerk of the superior court dated December 15, 1997, in which he asked about the status of his case, No. A467606, because he had not been notified as to the outcome of his appeal (exh. E). According to this last exhibit, appellant was complaining that said case was being used against him as a prior offense to enhance his sentence in an unrelated case.
Appellant contends in his supplemental brief that his jail sentence was never executed, nor was the trial court’s stay-of-sentence order vacated. He contends that his conviction should be vacated or the matter should be remanded for an evidentiary hearing to resolve the issue of whether his sentence was actually executed.
We conclude that appellant’s premise is invalid and, taking at face value his assertion that he did not serve 365 days in jail, the remedies he seeks for this omission are not warranted. It is true that the interstate Agreement on Detainers (Agreement), which is codified in California in section 1389, allows for the expeditious disposition of charges brought against individuals who are already in custody in a different state where both states involved are parties to the Agreement. A prisoner in one such state with a pending “untried indictment, information or complaint” in another party state must be brought to trial within 180 days after written notice of his or her request for a final disposition is delivered to the prosecuting officer and the court having jurisdiction of the matter. (§ 1389, art. III, subd. (a), italics added.) Case No. A467606, however, is not an untried indictment, information, or complaint. The information was filed, appellant pleaded guilty, and his conviction was affirmed.
With respect to appellant’s argument that the state’s lack of interest in effecting his incarceration in a timely manner has violated his constitutional right to due process and his Sixth Amendment right to speedy sentencing, we find these arguments also without merit. (See Pollard v. United States (1957) 352 U.S. 354, 361 [assuming arguendo that the sentence is part of the trial for purposes of the Sixth Amendment right to speedy trial and stating that the issue of whether delay in sentencing rises to an unconstitutional deprivation of rights depends on the circumstances].) Appellant did not receive a prison sentence, suspended or otherwise. Appellant received a grant of probation, and one of his conditions of probation was to serve 365 days in county jail.
We first note that appellant’s claim that he did not know his conviction was affirmed is not credible. In 1987, former California Rules of Court, rule 24 provided, “All decisions of the reviewing courts shall be filed with the clerk, who shall forthwith transmit a copy of the opinion to the lower court or tribunal and to the parties.” Former rule 25, subdivision (e) provided, “Forthwith upon issuance of the remittitur, the clerk of the reviewing court shall mail notice to the parties that it has been issued.” Clerks of the court are presumed to perform their official duties. A clerk is a public officer, and solemn acts done in the discharge of official duty cannot be set aside except upon a showing that they have been incorrectly performed. (Evid. Code, § 664; People v. Jackson (1996) 13 Cal.4th 1164, 1213; People v. McAlister (1976) 54 Cal.App.3d 918, 926; People v. Robinson (1955) 134 Cal.App.2d 430, 432.) Thus, it is to be presumed that appellant and/or appellant’s counsel on appeal received a copy of the opinion affirming his conviction and a copy of the remittitur. There is no evidence before this court that appellant’s failure to file an appeal to the California Supreme Court or to file a writ of habeas corpus was not due to his own decision or inaction. Furthermore, the instant trial court stated that the records of appellant’s case showed that he complied with his probation conditions of reporting, submitting to drug testing, and paying restitution. There is no evidence that appellant ceased to comply with the other conditions of his probation, which implies an awareness on appellant’s part that his conviction was upheld.
All further references to rules are to the California Rules of Court unless stated otherwise.
The provisions of former rules 24 and 25 are currently contained in rule Nos. 8.264(a)(1) and 8.272(b)(1)(B) and (d)(1), respectively.
Appellant’s exhibit B is presumably a copy of this probation report.
It is also to be presumed that the court that took appellant’s guilty plea received a copy of the opinion affirming appellant’s conviction. For some unknown reason, neither the superior court nor the probation department sought or initiated enforcement of appellant’s condition of probation requiring jail time. Appellant was committed to the supervision and care of a probation officer, and it is the probation officer’s duty to report probation violations to the court. (§§ 1202.8, 1202.12.) The record shows that appellant violated probation by committing the grand theft auto offense during the pendency of his appeal, and the record also shows a handwritten note that a hearing on the violation of probation was continued to August 5, 1987, and then to September 18, 1987, well after the opinion was filed and the remittitur issued in appellant’s appeal. It would have been appropriate to bring up appellant’s condition requiring jail time at his violation hearing. This is especially true since the probation officer who wrote the report following appellant’s grand theft auto offense recommended that probation be reinstated and modified to include a suitable amount of time in custody, with all other terms and conditions to remain the same. There is no information regarding appellant’s probation revocation hearing in the record provided to this court. Needless to say, any failure to enforce the jail-time condition accrued to appellant’s benefit.
In sum, we conclude that appellant has failed to show he was not aware that his conviction was affirmed on appeal and to show that his ignorance of the outcome of the appeal was the cause of his failure to appeal his conviction to the California Supreme Court and to file a petition for writ of habeas corpus. We conclude that the failure to enforce appellant’s condition of probation requiring him to serve 365 days of jail time did not prejudice appellant and did not constitute a failure to sentence him in violation of his right to speedy sentence.
Finally, we have examined the entire record and are satisfied that appellant’s attorney has fully complied with his responsibilities and that no arguable issues exist. (People v. Wende (1979) 25 Cal.3d 436, 441.)
The order under review is affirmed.