Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for writ of mandate Nos. RIF145161 & RIM499815. Gordon R. Burkhart, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Petition granted
Gary Windom, Public Defender, and Joseph J. Martinez, Deputy Public Defender, for Petitioner.
No appearance for Respondent.
Rod Pacheco, District Attorney, and Matt Reilly, Deputy District Attorney, for Real Party in Interest.
OPINION
GAUT, J.
Petitioner seeks writ review of the denial of his motion to terminate probation on the ground that the trial court did not sentence him within the time allowed under Penal Code section 1203.2a. We agree that the superior court lost jurisdiction because it did not act within the requisite time limit and, accordingly grant the petition for mandate.
The court has read and considered the petition for mandate and the informal response filed by the District Attorney of Riverside County. The district attorney concedes that the petition for writ of mandate should be granted. Accordingly, we have determined that resolution of the matter involves the application of settled principles of law, and that issuance of a peremptory writ in the first instance is therefore appropriate. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)
BACKGROUND
On July 3, 2007, petitioner pled guilty to a misdemeanor charge of driving under the influence. Proceedings were suspended and summary probation granted.
On August 13, 2008, petitioner pleaded guilty to a felony, possession of a controlled substance for sale and a misdemeanor count of delaying a police officer. The minute order again shows that proceedings were suspended and formal probation for three years was granted.
Both the above cases are Riverside cases.
In October 2008, petitioner was sentenced in an unrelated federal case to federal prison for nine months.
On February 6, 2009, petitioner filed a request for disposition of probation, waiver of appearance, and right to attorney pursuant to Penal Code section 1203.2a in each of the Riverside cases. The requests were served on the superior court clerk.
On March 16, 2009, petitioner moved to terminate probation in both cases because he had not been sentenced within 30 days as required under Penal Code section 1203.2a.
At the hearing, the court concluded it had 60 days to act on the theory that it had imposed sentence when it ordered probation in each case. It proceeded to sentence petitioner to 16 months in the first case to run concurrent to the federal term and the other to 30 days county jail time also to run concurrent to the federal term.
DISCUSSION
When a defendant released on probation is committed to prison on another offense and requests that he or she be sentenced in the case in which he is on probation, the court must either sentence the prisoner or make a final judgment terminating the case. (Pen. Code, § 1203.2a.)
“[S]ection 1203.2a provides for 3 distinct jurisdictional clocks: (1) the probation officer has 30 days from the receipt of written notice of defendant’s subsequent commitment within which to notify the probation-granting court (2d par.); (2) the court has 30 days from the receipt of a valid, formal request from defendant within which to impose sentence, if sentence has not previously been imposed (3d par., 4th sentence); and (3) the court has 60 days from the receipt of notice of the confinement to order execution of sentence (or make other final order) if sentence has previously been imposed (3d par., 3d sentence). Failure to comply with any one of these three time limits divests the court of any remaining jurisdiction. (5th par.)” (In re Hoddinott (1996) 12 Cal.4th 992, 999.)
The crucial question in this case is whether sentence was previously imposed in the two cases. The trial court believed it had been so that it had 60 days to order the execution of the sentence. Petitioner argues sentence was not imposed so that the court only had 30 days and, thus, lost jurisdiction in both cases.
Respondent concedes that the trial court lost jurisdiction under Penal Code section 1203a. We agree. In neither case did the court sentence petitioner to any term and suspend execution of sentence. Rather it suspended proceedings and placed petitioner on probation. By suspending proceedings, it suspended imposition of sentence. This is the distinction that is generally drawn in determining whether sentence has been imposed; that is, whether a particular term has been pronounced but execution suspended or whether sentence has not been imposed. (People v. Murray (2007) 155 Cal.App.4th 149, 155 (Murray).) An order placing a defendant on probation following suspension of proceedings does not constitute an imposition of sentence. Because the superior court did not act within the time limits of Penal Code section 1203.2a, it had no authority to sentence petitioner. (Murray, at p. 158.)
DISPOSITION
Let a peremptory writ of mandate issue directing the Superior Court of Riverside County to set aside its order denying petitioner’s motion to terminate probation and to issue a new order granting this motion.
Petitioner is directed to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.
We concur: RAMIREZ, P. J., RICHLI, J.