Opinion
NOT TO BE PUBLISHED
Super. Ct. No. MFE037144
CANTIL-SAKAUYE, J.
Defendant, John Thomas Jackson, appeals from his prison sentence asserting that the court erred in denying his request to be sentenced pursuant to his Penal Code section 1203.2a motion. The court, however, did not deny his request--it never ruled on it because his purported motion did not meet the requirements of that section and thus the issue was never tendered to the court.
While on formal probation for crimes committed in California, defendant was convicted of crimes in Arizona for which he was imprisoned in Indiana. While incarcerated in Indiana, defendant sent a motion to the California court requesting “sentence to time served in absentia concurrent to state prison term.” (Italics added & capitalization changed.) Thereafter, defendant admitted violating the terms and conditions of his probation. The California court denied defendant’s motion and sentenced him to six years in state prison. Having originally imposed a $200 restitution fine (Pen. Code, § 1202.4) at the time defendant was placed on probation, the court imposed new fees and fines, including a $1,200 restitution fine (§ 1202.4) and a $1,200 parole revocation fine (§ 1202.45).
Hereafter, undesignated statutory references are to the Penal Code.
On appeal, defendant contends the trial court erred when it denied his motion for in absentia sentencing and, in doing so, divested itself of jurisdiction to sentence him after revocation of probation pursuant to Penal Code section 1203.2a. Defendant also contends the court erred when it imposed restitution and parole revocation fines in excess of those originally imposed when defendant was placed on probation.
The People concede the court’s error in imposition of the fines. We will accept the People’s concession and direct the trial court to modify the judgment accordingly. In all other respects, we will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2004, defendant pled guilty in Mono County, California to assault by means of force likely to cause great bodily injury (§ 245, subd. (a)(1)) and admitted inflicting great bodily injury (§ 12022.7, subd. (a)(1)). The court suspended imposition of sentence and placed defendant on three years’ formal probation. The court imposed specified fees and fines, including a $200 restitution fine (§ 1202.4).
A petition for violation of probation was filed in October 2005, alleging defendant violated probation as a result of his arrests in Arizona and California (Yuba County and Marysville) and his failure to notify probation of his current address and to report to probation as required.
In February 2007, defendant pled guilty in the Superior Court of Maricopa County, Arizona to aggravated assault on a police officer, and was sentenced to 18 months in state prison.
Defendant served his Arizona prison sentence at the New Castle Correctional Facility (NCCF) in New Castle, Indiana.
In September 2007, defendant sent a letter to the Mono County Superior Court informing the court of his Arizona prison commitment and enclosing a “Motion to Quash Warrants and Fines or in the Alternative Sentence to Time Served in Absentia Concurrent to State Prison Term.” (Capitalization changed.) The motion requests that the Mono Court “sentence the Defendant to time served, in absentia, concurrent to his state prison term, in this matter.” It further notes that “the interests of justice would best be served, by allowing the defendant to move forward without the additional burden of a probation sentence in a state he no longer resides in, namely the sentence imposed in this matter.” The letter and motion were both signed by the defendant. Attached to the motion is a one-page copy purporting to be a “time computation” regarding defendant’s incarceration for the Arizona conviction.
Defendant’s motion was placed on the Mono County Superior Court’s calendar at the district attorney’s request and, in September 2007, the court appointed counsel for defendant for purposes of the hearing.
In November 2007, defendant filed a written admission to the probation violation, waiving his right to be personally present and requesting that he be sentenced on the probation violation in absentia. The document was signed by defendant but not endorsed by a representative of the New Castle Correctional Facility.
The probation violation hearing was held in November 2007, on the same day defendant filed his written admission to the violation of probation, referenced above. At the hearing defendant, by and through his appointed counsel, admitted “violation of probation on Count(s) 2 [Yuba County arrest].” Sentencing was set for a later date.
Defendant completed his Arizona prison commitment in March 2008. He was thereafter returned to Mono County on an outstanding arrest warrant.
In June 2008, at a second probation violation hearing, defendant was present with counsel and admitted three of the five alleged probation violations (i.e., the Arizona conviction for assaulting a police officer, the failure to notify probation of his current address, and the failure to report to probation as ordered). Sentencing was continued to July 2008.
At the July 2008 sentencing hearing, defendant’s counsel raised the issue of defendant’s motion, which counsel referred to as a “[section] 1381” motion. Referring to defendant’s September 2007 “Motion to Quash warrants and fines or in the alternative sentence to time served in absentia concurrent to state prison term” (capitalization changed), counsel requested that the court dismiss the probation violation. The court denied the motion and sentenced defendant to the middle term of three years, plus three years for the great bodily injury enhancement, for an aggregate sentence of six years in state prison. The court ordered defendant to pay a $1,200 restitution fine (§ 1202.4) and a $1,200 parole revocation fine (§ 1202.45).
Defendant filed a timely notice of appeal.
DISCUSSION
I.
Request for In Absentia Sentencing
Defendant contends the trial court erred by denying his request to sentence him in absentia pursuant to section 1203.2a. We disagree.
Section 1203.2a provides, in pertinent part, as follows: “If any defendant who has been released on probation is committed to a prison in... another state for another offense, the court which released him or her on probation shall have jurisdiction to impose sentence, if no sentence has previously been imposed for the offense for which he or she was granted probation, in the absence of the defendant, on the request of the defendant made through his or her counsel, or by himself or herself in writing, if such writing is signed in the presence of the warden of the prison in which he or she is confined or the duly authorized representative of the warden, and the warden or his or her representative attests both that the defendant has made and signed such request and that he or she states that he or she wishes the court to impose sentence in the case in which he or she was released on probation, in his or her absence and without him or her being represented by counsel. [¶] The probation officer may, upon learning of the defendant’s imprisonment, and must within 30 days after being notified in writing by the defendant or his or her counsel, or the warden or duly authorized representative of the prison in which the defendant is confined, report such commitment to the court which released him or her on probation. [¶] Upon being informed by the probation officer of the defendant’s confinement, or upon receipt from the warden or duly authorized representative of any prison in this state or another state of a certificate showing that the defendant is confined in prison, the court shall issue its commitment if sentence has previously been imposed. If sentence has not been previously imposed and if the defendant has requested the court through counsel or in writing in the manner herein provided to impose sentence in the case in which he or she was released on probation in his or her absence and without the presence of counsel to represent him or her, the court shall impose sentence and issue its commitment, or shall make other final order terminating its jurisdiction over the defendant in the case in which the order of probation was made.... If the case is one in which sentence has not previously been imposed, the court is deprived of jurisdiction over defendant if it does not impose sentence and issue its commitment or make other final order terminating its jurisdiction over defendant in the case within 30 days after defendant has, in the manner prescribed by this section, requested imposition of sentence. [¶]... [¶] In the event the probation officer fails to report such commitment to the court or the court fails to impose sentence as herein provided, the court shall be deprived thereafter of all jurisdiction it may have retained in the granting of probation in said case.”
While imprisoned in Indiana on an 18-month sentence, defendant sent three documents to the Mono County Superior Court: (1) a letter dated August 29, 2007, notifying the court of his status as a prisoner in New Castle, Indiana, and enclosing a motion; (2) a “Motion to Quash Warrants and Fines or in the Alternative Sentence to Time Served in Absentia Concurrent to State Prison Term” (capitalization changed) dated August 29, 2007; and (3) a document entitled a “Written Entry to Admission of Probation Violation; Waiver of Personal Presence and Request to be Sentenced in Absentia 1203.2(a)PC” (capitalization changed) dated October 25, 2007. None of the documents comport with the requirements of section 1203.2a, thus the court had no duty to impose sentence. We explain.
The letter is signed by defendant only and makes no mention of defendant’s desire for in absentia sentencing.
The motion states defendant is serving a prison term in the Arizona Department of Corrections and requests a “sentence to time served in absentia concurrent to state prison term” in his California case. The motion does not, however, reflect that it was signed in the presence of the warden of the Arizona or Indiana prisons or the warden’s duly authorized representative, nor does it contain that individual’s attestation that defendant prepared and signed the motion. The motion attaches a document which purports to be a “time computation” regarding defendant’s Arizona sentence; however, that document is not certified or in any other way authenticated.
The written admission is similarly defective. That document admits “a violation of probation,” waives defendant’s right to be present at the court hearing and requests in absentia sentencing. However, it is signed by defendant only, despite that the form contains a section entitled “Jailer’s Endorsement” with space for information to be provided regarding defendant’s sentence, date of commitment and date of release, and a line for the jailer’s signature.
None of these documents satisfies even the first paragraph of section 1203.2a. Defendant asserts that his request for imposition of sentence was proper under People v. Wagner (2007) 154 Cal.App.4th 81, 89 because he waived his right to be present and to have counsel represent him at the hearing. Notwithstanding that Wagner was depublished prior to defendant filing his appellant’s opening brief, defendant’s argument has no merit. The motion states defendant is acting “in pro-per.” The written admission requests sentencing in absentia and expressly waives personal presence at the probation violation hearing. Neither document makes any mention of defendant’s waiver of his right to be represented by an attorney at the hearing.
Review granted November 28, 2007, S156537; affirmed in part, superseded and remanded by People v. Wagner (2009) 45 Cal.4th 1039.
Defendant argues his failure to strictly comply with section 1203.2a should be excused given that his motion stated “he was ready to comply with any order of the court and requested the court to instruct the clerk to notify him of any orders that might be issued by the court,” and that he is “not an attorney.” Not so. Defendant’s motion specifically requested “time served... concurrent to state prison.” The request is ambiguous. He did not simply request to be sentenced in absentia. He requested to be sentenced only to time served concurrent to the state prison sentence he was then serving in Indiana. The court was not required to clarify what exactly the defendant intended by this request. Further, the inference defendant would apparently have us draw from this statement in the motion is that the clerk of the trial court can and should provide nonlawyer defendants with legal advice on compliance with statutory requirements. Defendant provides no authority for that proposition, other than the oft-cited opinion that section 1203.2a is not “a model of clarity.” (In re Hoddinott (1996) 12 Cal.4th 992, 1003, fn. 7 (Hoddinott); People v. Holt (1991) 226 Cal.App.3d 962, 965-966.) The trial court is under no such compulsion, nor is it compelled, as defendant suggests, to notify a defendant or his counsel that a section 1203.2a request is “procedurally defective.” The court received the documents, set the matter for hearing, and appointed counsel for defendant. No more was required. Defendant was absent from the November 2007 probation violation hearing, but was represented by counsel, who entered admissions on defendant’s behalf. Counsel made no mention of defendant’s section 1203.2a motion, and sentencing was continued to a later date. Because neither the motion nor the subsequent written admission complied with the requirements of section 1203.2a, neither of those documents triggered a duty on the part of the trial court to sentence defendant in absentia under that statute.
Defendant claims the trial court and the prosecutor both knew defendant wanted in absentia sentencing, and that they received the letter and the motion, placed the matter on the court’s calendar and appointed counsel for defendant, then “did nothing” with regard to sentencing. However, there is nothing in the language of section 1203.2a which states that notice to the court or the prosecution is a substitute for strict compliance with the requirements of section 1203.2a by the defendant. Moreover, as we explained previously defendant’s sentencing request was unclear and under the circumstances, the court was under no duty to do more.
Defendant notes that “neither the probation officer, the prosecutor, nor the court raised any objections to the substance of [defendant’s] letter or to the manner in which he requested in absentia sentencing,” thus forfeiting the right to assert that claim on appeal. (People v. Tillman (2000) 22 Cal.4th 300, 303; People v. Scott (1994) 9 Cal.4th 331, 353.) Again, the court was not compelled to act pursuant to section 1203.2a; the documents it received from defendant did not contain the proper attestations or any indication that defendant was waiving his right to counsel at the hearing. Likewise, neither the prosecution nor probation is seeking relief here. As such, they need not have objected below. (People v. Saunders (1993) 5 Cal.4th 580, 590.)
Defendant was present and represented by counsel for a second probation violation hearing in June 2008. At that time, defendant admitted the alleged violations. Section 1203.2a was not discussed. Instead, defendant’s counsel requested dismissal of the matter pursuant to section 1381. The court concluded section 1381 did not apply to probation violations and denied defendant’s motion. Because defendant does not take issue with the court’s conclusions related to the application of section 1381, that issue is not before us.
Section 1381 provides: “Whenever a defendant has been convicted, in any court of this state, of the commission of a felony or misdemeanor and has been sentenced to and has entered upon a term of imprisonment in a state prison or has been sentenced to and has entered upon a term of imprisonment in a county jail for a period of more than 90 days or has been committed to and placed in a county jail for more than 90 days as a condition of probation... and has entered upon his or her term of commitment, and at the time of the entry upon the term of imprisonment or commitment there is pending, in any court of this state, any other indictment, information, complaint, or any criminal proceeding wherein the defendant remains to be sentenced, the district attorney of the county in which the matters are pending shall bring the defendant to trial or for sentencing within 90 days after the person shall have delivered to said district attorney written notice of the place of his or her imprisonment or commitment and his or her desire to be brought to trial or for sentencing unless a continuance beyond the 90 days is requested or consented to by the person, in open court, and the request or consent entered upon the minutes of the court in which event the 90-day period shall commence to run anew from the date to which the consent or request continued the trial or sentencing. In the event that the defendant is not brought to trial or for sentencing within the 90 days the court in which the charge or sentencing is pending shall, on motion or suggestion of the district attorney, or of the defendant or person confined in the county jail or committed to the custody of the Director of Corrections or his or her counsel, or of the Department of Corrections, or of the Department of the Youth Authority, or on its own motion, dismiss the action. If a charge is filed against a person during the time the person is serving a sentence in any state prison or county jail of this state... it is hereby made mandatory upon the district attorney of the county in which the charge is filed to bring it to trial within 90 days after the person shall have delivered to said district attorney written notice of the place of his or her imprisonment or commitment and his or her desire to be brought to trial upon the charge, unless a continuance is requested or consented to by the person, in open court, and the request or consent entered upon the minutes of the court, in which event the 90-day period shall commence to run anew from the date to which the request or consent continued the trial. In the event the action is not brought to trial within the 90 days the court in which the action is pending shall, on motion or suggestion of the district attorney, or of the defendant or person committed to the custody of the Director of Corrections or to a county jail or his or her counsel, or of the Department of Corrections, or of the Department of the Youth Authority, or on its own motion, dismiss the charge. The sheriff, custodian, or jailer shall endorse upon the written notice of the defendant’s desire to be brought to trial or for sentencing the cause of commitment, the date of commitment, and the date of release.”
In a footnote, defendant cites Strickland v. Washington (1984) 466 U.S. 668 [80 L.Ed.2d 674] and People v. Cunningham (2001) 25 Cal.4th 926, and again summarily in his reply brief, that any failure of strict compliance with section 1203.2a or forfeiture of any issue raised in his appeal was the result of ineffective assistance of trial counsel, urging there “was no tactical or strategic reason for trial counsel not to ensure strict compliance with section 1203.2a.”
Defendant has not properly raised his claim of ineffective assistance of counsel, nor has he properly requested leave of court to supplement his brief, and his claim is therefore forfeited. (Cal. Rules of Court, rule 8.204(a)(1)(C); Heavenly Valley v. El Dorado County Bd. of Supervisors (2000) 84 Cal.App.4th 1323, 1346; Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830, fn. 4.) In any event, the claim is meritless.
The California Supreme Court has “repeatedly emphasized that a claim of ineffective assistance is more appropriately decided in a habeas corpus proceeding.” (People v. Michaels (2002) 28 Cal.4th 486, 526.) If the record fails to shed any light on why counsel acted or failed to act in the manner challenged, a claim of ineffective assistance of counsel must be rejected on appeal “‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.’” (People v. Wilson (1992) 3 Cal.4th 926, 936, citing People v. Pope (1979) 23 Cal.3d 412, 426.) Unless the record affirmatively discloses that counsel had no tactical purpose for his act or omission, “the conviction will be affirmed and the defendant relegated to habeas corpus proceedings at which evidence dehors the record may be taken to determine the basis, if any, for counsel’s conduct or omission.” (People v. Fosselman (1983) 33 Cal.3d 572, 581-582; accord, People v. Hinds (2003) 108 Cal.App.4th 897, 901.)
Here, defense counsel was not asked for an explanation as to why he did not assure strict compliance with section 1203.2a. Were we to speculate regarding whether there was a tactical reason for his failure to do so, we would conclude that there was one. As previously discussed in this opinion, it is unclear what defendant was requesting. Nonetheless, it is abundantly clear defendant did not understand the nature of his prison exposure in the California case. Defendant received an 18-month sentence for his Arizona conviction. Defendant was on probation in California for assault by means of force likely to cause great bodily injury and inflicting great bodily injury. For that serious and violent felony, defendant was exposed to a maximum of seven years and a minimum of five years in state prison. Under either sentencing scenario, it would have been impossible for defense counsel to obtain the result defendant apparently desired, i.e., to complete or finish his California prison sentence while he served his Arizona prison time.
Because the record does not show that trial counsel lacked a tactical reason for not assuring strict compliance with section 1203.2a, and because we are unable to say that there could be no satisfactory explanation for not doing so, we affirm the judgment.
II.
Imposition of Restitution and Parole Revocation Fines
At the time defendant was granted formal probation, the trial court imposed a $200 restitution fine pursuant to section 1202.4, subdivision (b). When the court revoked probation and sentenced defendant to six years in state prison, the court imposed a $1,200 restitution fine pursuant to section 1202.4, subdivision (b) and a parole revocation fine in the same amount pursuant to section 1202.45, stayed pending successful completion of parole. Defendant contends the trial court erred when it increased the restitution fine to $1,200 and imposed the $1,200 parole revocation fine after revocation of defendant’s probation. (See People v. Chambers (1998) 65 Cal.App.4th 819, 822; People v. Barrera (1999) 70 Cal.App.4th 541, 556.) The Attorney General concedes that defendant’s contention is correct, and we agree. The restitution fine imposed pursuant to Penal Code section 1202.4 is hereby reduced to $200 and the parole revocation fine imposed pursuant to Penal Code section 1202.45 is also reduced to $200.
DISPOSITION
The judgment is modified to reduce the fines imposed pursuant to Penal Code sections 1202.4 and 1202.45 to $200 each. As modified, the judgment is affirmed. The trial court shall prepare an amended abstract of judgment and forward a certified copy of the same to the Department of Corrections and Rehabilitation.
We concur RAYE, Acting P. J., BUTZ, J.