Opinion
Carl W. Till, court appointed counsel, Sacramento, for petitioner.
Thomas C. Lynch, Atty. Gen., by Daniel Kremer and Marjory Parker, Deputy Attys. Gen., Sacramento, for respondent.
BRAY, Associate Justice assigned.
Petitioner, now confined in the California Conservation Center, applies for a writ of habeas corpus on the ground that his detention is illegal, in that the San Diego County Superior Court in his absence, on March 10, 1965, revoked his probation on a conviction of petty theft with a prior felony and sentenced him to state prison, his sentence to be served consecutively to one he was then serving, and that, in any event, the court was without power to provide that the sentence run consecutively.
His prior application to the Lassen County Superior Court for writ of habeas corpus on the identical ground of his application was denied January 24, 1969.
In the 'Points and Authorities' accompanying his petition, petitioner makes the bald statement, 'Petitioner did not by word, act or deed waive his state and federal rights to be present in person with his counsel, during such proceedings conducted against him.' Petitioner is trifling with the court. He nowhere mentions the fact that, as the record shows, on February 18, 1965, he signed a statement which was sent the same day by the Records Officer of San Quentin Prison, where petitioner was then confined, to the Chief Probation Officer of San Diego County and was presented to the San Diego Superior Court on March 10. This statement is directed to the San Diego County Superior Court and referred to his having been granted probation on conviction of violation of section 667 of the Penal Code, and states that he is now confined in San Quentin as a parole violator under a Los Angeles County conviction for 'the offense of Possession of Narcotics'; that it is to his advantage that all offenses of which he had been convicted be dealt with by the Department of Corrections and the Adult Authority at one time, 'and I therefore respectfully request the above Superior Court to impose its sentence, heretofore withheld. I know that I am entitled to be present in court at the time sentence is pronounced against me, and I do specifically authorize such sentence to be imposed against me for the offense of Violation of Section 667 of the Penal Code (Petty Theft with prior felony conviction), in my absence.' Nor does petitioner anywhere inform the court of the fact, as appears by the record, that his counsel was present at Section 1203.2a of the Penal Code authorizes the court under circumstances such as in this case to sentence a defendant in his absence if he sends a writing to the court stating 'that he wishes the court to impose sentence in the case in which he was released on probation, in his avsence and without his being represented by counsel.'
The request signed by petitioner did not strictly comply with section 1203.2a. It did not waive the presence of his attorney. It apparently was petitioner's wish to be represented by his attorney at the time of sentence, but he did not wish to be present. The sentence was imposed in the presence of his attorney.
Section 1203.2a contemplates that the request be 'signed in the presence of the warden or superintendent of the prison in which he is confined or the duly authorized representative of the warden or superintendent,' and that such official 'attests both that the defendant has made and signed such request and that he states that he wishes the court to impose sentence in the case in which he was released on probation, in his absence and without being represented by counsel.' Defendant's consent was not signed in the presence of such an official nor was there such attestation on it. However, it was witnessed, and petitioner does not contend that he did not sign it and cause it to be sent to the probation officer. It was sent by the prison records officer. Certainly, because the document was signed by defendant, was witnessed and defense counsel was in court at sentencing, the failure to include the formal attestation is of no moment.
This case differs from In re Perez (1966) 65 Cal.2d 224, 53 Cal.Rptr. 414, 418 P.2d 6, in that although the consent sent by Perez was similar to that sent by petitioner here, Perez's attorney was not present at the sentencing. The court held that under section 1203.2a a waiver of the presence of the one to be sentenced was not enough to enable his being sentenced without the presence of his attorney. To accomplish such result, the waiver must include the absence of the attorney.
In the instant case, in view of the presence of his counsel at sentencing and his having waived his right to be personally present, the court had full jurisdiction to sentence petitioner.
Petitioner further contends that the court had no power to provide that the sentence be served consecutively to the one which he was then serving because the granting of his probation was subsequent to his prior conviction of another offense. Petitioner's contention has merit.
In 1959 petitioner was convicted in Los Angeles County Superior Court of a felony (violation of Health & Saf.Code, § 11500) and released on parole thereon in 1961. On February 6, 1964, while on parole, petitioner was convicted in San Diego County Superior Court of a felony (violation of Pen.Code, § 667). Imposition of sentence was suspended and probation was granted on March 3, 1964. (It will be noted that the probation with which we are now concerned was granted in spite of petitioner's prior Los Angeles conviction.) In January 1965 petitioner's parole on the Los Angeles conviction was revoked and he was returned to prison as a parole violator. February 18, 1965, petitioner wrote the letter asking that the sentence withheld on his San Diego 1964 conviction be imposed. On March 10, 1965, the San Diego Superior Court revoked petitioner's probation, sentenced him to prison, such sentence to run consecutively with any prior incomplete sentence.
In re Ramey (1965) 234 Cal.App.2d 459, 460, 44 Cal.Rptr. 473, after quoting the portion of section 1203.2a which states, 'Upon imposition of sentence hereunder the commitment shall be dated as of the date upon which probation was granted and if the defendant is then in a state prison for an offense committed subsequent to the one upon which he has been on probation, the term of imprisonment of such defendant under a commitment issued hereunder shall The facts in Ramey were somewhat similar to those in the case at bench. In 1960, in San Diego County, Ramey committed certain felonies. Later that year he engaged in similar offenses in Los Angeles County. In 1964 he pled guilty in San Diego to the 1960 felonies. The probation report enumerated the Los Angeles offenses. He was granted probation. While on probation he was convicted of the Los Angeles offenses and sent to prison. He then, under section 1203.2a, requested the San Diego court to sentence him on the 1964 conviction. This the court did, making the sentence run consecutively to the sentence on the Los Angeles conviction. Ramey contended that section 1203.2a required that the commitment of the San Diego court should be dated as of the date probation was granted; that the Los Angeles offenses, although occurring after those in San Diego, occurred before the San Diego probation order was made and were known and considered by the San Diego Superior Court at the time it granted probation; that the offenses for which section 1203.2a permits consecutive sentencing are only those committed after probation is granted. The court held that this contention had merit and that the commitment under the San Diego sentence ran from the date upon which probation was
Our case differs from Ramey only in that in the subject case there was a conviction prior to the one upon which probation was granted, while in Ramey there were prior offenses, the conviction for which came after the one upon which probation was granted.
In re Nafe (1965) 237 Cal.App.2d 809, 47 Cal.Rptr. 457, was a case with circumstances similar to those here. There the court after revocation of probation granted on conviction of a subsequent offense made the sentence run consecutively to a sentence imposed upon a prior conviction. The court held that section 1203.2a prohibited making such a sentence run consecutively to the prior section.
In re Wimbs (1966) 65 Cal.2d 490, 55 Cal.Rptr. 222, 421 P.2d 70, is not contrary to Ramey and Nafe for the reason that there the revocation of probation and pronouncing of sentence was upon a conviction prior to a sentence on conviction of an offense subsequent to the one on which probation had been granted. It is the situation covered by Ramey's statement: 'The apparent purpose of the consecutive sentencing provisions of the statute is to permit greater punishment for a crime committed after probation has been granted.' (Emphasis ours.) (234 Cal.App.2d at p. 460, 44 Cal.Rptr. at p. 474.)
As to the judgment in the case at bench, 'Although we cannot deal directly with the judgment by amending it we can ascertain and declare its meaning and effect.' In re Ramey, supra, at p. 460, 44 Cal.Rptr. at p. 474.) In respect to the sentence of March 10, 1965, we hold that the commitment under that sentence runs from the date upon which probation was granted.
The petition for habeas corpus is denied. Having served its function, the order to show cause is discharged.
PIERCE, P. J., and REGAN, J., concur.