Opinion
A096827.
10-31-2003
THE PEOPLE, Plaintiff and Respondent, v. RICKY D. ARMSTRONG, Defendant and Appellant.
Ricky D. Armstrong appeals from three judgments entered after the superior court confirmed the summary revocation of his probationary terms and sentenced him to a total term of six years in state prison for possession of cocaine base for sale (2 counts) and possession of methamphetamine. Appellant contends that the superior court erred in denying his motion to dismiss the probation revocation proceedings because he was denied a prompt formal revocation hearing. We agree, and accordingly, we reverse and remand the matter to the superior court for an evidentiary hearing and new determination on appellants motion to dismiss.
I. FACTS
On December 8, 1993, appellant pleaded no contest to a charge of possession of cocaine base for sale in Solano County. The Solano County Superior Court suspended imposition of sentence and placed appellant on three years probation. Thereafter, on January 14, 1994, appellant pleaded no contest to another charge of possession of cocaine base for sale in Solano County. The court again suspended imposition of sentence and placed appellant on three years probation. Appellant violated probation in both cases on a number of occasions over the next four years; however, in each instance, the court reinstated and extended the periods of probation. Then, on April 9, 1998, appellant pleaded no contest to a third felony for possession of methamphetamine in Solano County. On May 15, 1998, the court suspended sentence and placed appellant on three years probation in that case. The court also revoked and reinstated the probationary terms in the earlier two cases.
The following year, appellant admitted that he violated his probationary terms by failing to remain in a residential drug treatment program he had been ordered to complete as a condition of probation, by testing positive for drugs, and by failing to maintain contact with his probation officer. On May 7, 1999, the Solano County Superior Court revoked and then reinstated probation in all three cases, again directing appellant to participate in a residential drug treatment program as a condition of probation.
At the May 7, 1999, hearing, the court warned appellant that if he again violated his probationary terms, he would be sentenced to six years in prison.
Two months later, in July 1999, appellant was arrested for possession of cocaine base for sale in Contra Costa County. Appellant told his Solano County probation officer of his arrest and incarceration in the Contra Costa county jail. Solano County Deputy Probation Officer Terrell Watkins filed with the Solano County court a "request for warrant and order thereon," based upon appellants Contra Costa arrest and his failure to complete the mandated residential drug treatment program. Watkins recommended that appellants probation be revoked in all three Solano County cases, that a bench warrant be issued, and that the matter be referred to "D.A. Office for NCIC warrant consideration." On July 14, 1999, the Solano County Superior Court summarily revoked appellants probation in all three cases and directed the issuance of an arrest warrant. The July 14, 1999, order indicates that a copy of the order was sent to Watkins and the public defenders office.
In October 1999, appellant was convicted of the possession of methamphetamine charge in Contra Costa County and sentenced to two years in state prison. On August 21, 2000, appellant was paroled from state prison after serving 10 months. He remained free of custody for eight months until April 2001, when he was arrested and subsequently brought before the Solano County Superior Court for violating his probation in the three cases pending in that court.
On June 15, 2001, after a hearing, the Solano County Superior Court confirmed the summary revocation of appellants probationary terms based upon his drug offense conviction in Contra Costa County. Before sentencing on the three outstanding cases, appellant moved to dismiss the probation revocation proceedings on the ground the People had unreasonably delayed the formal probation revocation hearing for two years. After a hearing at which appellant and Probation Officer Watkins testified, the court agreed with the People that dismissal was not required because appellant had not properly notified his probation officer that he wanted the court to dispose of the pending probation revocation proceedings. The court sentenced appellant to a total term of six years in state prison on the three cases, to be served concurrently with the prison term previously imposed by the Contra Costa court, and the court gave appellant two years custody credit.
II. DISCUSSION
Under section 1203.2a of the Penal Code ," a defendant who has been placed on probation and is thereafter incarcerated for another offense may request imposition of sentence or some other final order terminating the probationary courts jurisdiction. [Citations.] [¶] The purpose of section 1203.2a is to provide a mechanism advising the probationary court of the subsequent confinement, thereby permitting the probationary court to consider imposing a concurrent sentence if that is the courts decision. [Citations.] Although the opportunity for concurrent sentences is one of the factors supporting a `speedy trial right for convicts [citation], and certainly the main factor underlying section 1203.2a [citations], section 1203.2a is not a speedy trial statue. Rather, section 1203.2a is a legislative recognition that the probationary court may inadvertently deny the probationer an opportunity for a concurrent sentence if not made aware of the probationers incarceration. As such, section 1203.2a is a corollary to section 669, directing the trial court to determine whether terms of imprisonment are to run concurrently or consecutively and providing that terms are to run concurrently if the trial court fails to make the required determination. [Citation.]" (People v. Broughton (2003) 107 Cal.App.4th 307, 320-321, footnote omitted.) "Under section 1203.2a, the sanction for failing to revoke probation and impose sentence . . . within the prescribed time period, is not `dismissal of the action but, appropriately, the deprivation of the probationary courts further jurisdiction in the matter. In effect, section 1203.2a tells the probationary court, act on defendants demand that you terminate your jurisdiction, . . . through imposition of sentence . . . or lose jurisdiction by operation of this statute." (Id. at p. 322.)
Section 1203.2a provides, in relevant part: "If any defendant who has been released on probation is committed to a prison in this 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 . . . 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 defendants imprisonment, and must within 30 days after being notified in writing by the defendant or his or her counsel, . . . report such commitment to the court which released him or her on probation. [¶] Upon being informed by the probation officer of the defendants confinement . . . 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, . . . 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 . . . 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."
All further unspecified statutory references are to the Penal Code.
Nevertheless, we agree with appellant that the superior courts finding that he did not comply with section 1203.2a, standing alone, does not end the inquiry regarding his motion to dismiss. Even in the absence of a statutory right to a prompt probation revocation hearing, appellant may still claim a violation of constitutional due process based upon an unreasonable delay in the probation revocation proceedings. (People v. Broughton, supra, 107 Cal.App.4th at p. 320, fn. 14 ["There are no statutory time limits on when a probation revocation hearing must be held. [However,] [d]ue process requires that any delay not be `unreasonable "]; see People v. Vickers (1972) 8 Cal.3d 451, 458 [minimal constitutional due process standards apply to state probation revocation proceedings]; see also People v. Martinez (2000) 22 Cal.4th 750, 766 [constitutional due process right is broader than statutory speedy trial provision].) As noted by appellant, the superior court did not rule on any aspect of his due process claim, which included his contention (supported by his testimony and Watkinss testimony in part) that his failure to comply with section 1203.2a should be excused because despite his contacts with probation department officers and state prison officials, he was not given notice that his probationary terms had been summarily revoked or that an arrest warrant had been issued by the Solano County court.
Consequently, we remand the matter to the superior court for a new evidentiary hearing on appellants motion to dismiss. (People v. Young (1991) 228 Cal.App.3d 171, 181-182.) In rendering its decision, the superior court should assess the validity of appellants contention that his failure to comply with section 1203.2a is excusable, whether the People had legitimate reasons for any of the delay, whether appellant suffered any prejudice because of the delay, and "such other circumstances as may be relevant" based upon the evidence. (Ibid.) We express no opinion on the merits of appellants motion to dismiss.
III. DISPOSITION
The judgments are reversed and the matter is remanded to the superior court for an evidentiary hearing and determination of appellants motion to dismiss the probation revocation proceedings in case numbers VC 36098, VC36102, and VC45756.
We concur: Corrigan, J., and Parrilli, J.