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People v. Butler

California Court of Appeals, First District, Third Division
Jul 8, 2008
No. A119946 (Cal. Ct. App. Jul. 8, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. DAVID CHARLES BUTLER, Defendant and Appellant. A119946 California Court of Appeal, First District, Third Division July 8, 2008

NOT TO BE PUBLISHED

Solano County Super. Ct. No. FCR220856

Pollak, J.

Defendant David Charles Butler appeals from an order revoking his probation and sentencing him to two years four months in prison. His appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 and, after being advised of his right to do so, defendant filed no supplemental brief. Following the court’s independent review of the record, counsel were directed to submit supplemental briefing on five questions concerning the propriety of the sentence. While we harbor significant concerns regarding the jurisdiction of the court to have imposed sentence when it did, on the record now before us there is no basis to grant relief. Accordingly, we affirm the judgment, leaving further issues for potential consideration upon application for habeas corpus relief.

FACTUAL AND PROCEDURAL HISTORY

In June 2005 in Solano County, defendant pled no contest to second degree burglary (Pen. Code, § 459) and admitted a prior prison term enhancement (§ 667.5, subd. (b)). Imposition of sentence was suspended and defendant was placed on probation. Because defendant was living in Oakland, his probation was supervised by the Alameda County Probation Department as a courtesy to the Solano County Probation Department. In July 2006, the probation department in Solano County obtained a bench warrant for defendant’s arrest based on defendant’s failure to report to the probation department in Alameda County.

All statutory references are to the Penal Code.

On August 22, 2007, while in custody in Alameda County on a separate offense, defendant signed a request for disposition of his probation on the Solano County offense pursuant to section 1203.2a. The record does not reflect the date on which the Solano County Probation Department received defendant’s request, but the request was marked received by the Solano County Superior Court on September 10, 2007.

Defendant’s request for disposition of probation under section 1203.2a was submitted on a form provided by the Department of Corrections and Rehabilitation. Defendant filled in the information regarding his Solano County conviction and the expected date of his release from his current term of confinement under his Alameda County conviction. He checked the box that provided, “In accordance with the provisions of [section] 1203.2a, this is to notify you of my present imprisonment and to request the court to: [¶] . . . Make disposition of my probation as required by law in the event I was previously granted probation and imposition of my sentence was suspended . . . .” Following an admonition on the form that defendant had the right to be personally present and represented by an attorney at his sentencing, defendant checked and initialed next to the boxes that indicated that he did not waive those rights. The warden or his duly authorized representative attested that defendant “made and signed this request in [his] presence and that [he] states that [he] wishes the court to . . . make disposition of his . . . probation as required by law in [his] absence and without [his] being represented by an attorney at law in the case in which [he] was released on probation.”

Defendant’s prison commitment in the Alameda County case terminated on October 1, 2007. On October 4, with defendant and his attorney present in the courtroom, the court in Solano County summarily revoked his probation. His section 1203.2a request came on for hearing on October 10, and was continued to October 17, at which time defendant completed a waiver of rights form and admitted being in violation of probation based on his failure to report. The waiver form states, “The maximum punishment which the court may impose for my violation of probation is: pursuant to PC 1170.1, 1/3 midterm conseq.” On October 22, however, the court informed defendant that there was an error on the admission form in that it indicates that “the maximum punishment would be one-third the midterm consecutive, and I don’t think, in this situation that’s correct.” Defendant’s attorney disagreed and the matter was put over for further briefing. Thereafter, defendant submitted a brief arguing among other things that the court had been “deprived of all jurisdiction pursuant to [section] 1203.2a because the probation officer failed to report defendant’s prison commit[ment] of March 2007 to the court within 30 days.” He explained, “Defendant was sentenced to prison in March 2007 to a term of two years. Probation had been transferred via a courtesy supervision (PC 1203.9) to Alameda County and Alameda County probation was aware of defendant’s prison commit[ment] as well as this case . . . . Additionally, this information of defendant’s prison commit[ment] was passed along to Solano County and in March 2007, Solano County placed a hold on defendant.” In response, the People argued, “even if the defendant is correct in all his factual assertions, the probation officer’s obligation to inform the court of the defendant’s prison commitment did not accrue until the officer received written notice sometime after August 17, 2007. The probation officer then complied with section 1203.2a’s requirements by informing the court within 30 days.”

On October 30, 2007, the court denied defendant’s section 1203.2a request. The court did not address defendant’s jurisdictional argument but explained, “The court has carefully reviewed his 1203.2a request, and he checked the box that he did not give up his right to be represented by counsel, and he did not give up his right to be personally present at the proceedings. So, this 1203.2a request doesn’t comply with the situation outlined in . . . 1203.2a, in that he didn’t ask to be sentenced in absentia.” The court sentenced defendant to the low term of 16 months on the original commercial burglary offense plus an additional one-year term for the prior prison term enhancement. The court explained that it “chose the mitigated term given the circumstance with his 1203.2a being prepared in such a fashion that had he done it correctly, he could have gotten at least some relief.” Defendant filed a timely notice of appeal.

DISCUSSION

Section 1203.2a provides in relevant part, “If any defendant who has been released on probation is committed to a prison in this state or 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.” Section 1203.2a continues: “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 imposition of sentence hereunder the commitment shall be dated as of the date upon which probation was granted. If the defendant is then in a state prison for an offense committed subsequent to the one upon which he or she has been on probation, the term of imprisonment of such defendant under a commitment issued hereunder shall commence upon the date upon which defendant was delivered to prison under commitment for his or her subsequent offense. Any terms ordered to be served consecutively shall be served as otherwise provided by law.” (Italics added.) Section 1203.2a concludes, “In the event the probation officer fails to report such commitment to the court . . ., the court shall be deprived thereafter of all jurisdictions it may have retained in the granting of probation in said case.”

The third paragraph of section 1203.2a provides: “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.” This second 30-day period is not applicable in the present action because, as discussed post, defendant did not waive his rights as required for a valid request for sentencing in absentia.

In In re Hoddinott (1996) 12 Cal.4th 992, 1005, our Supreme Court held that “[t]he probation officer’s 30-day reporting requirement is jurisdictional and applies once the defendant or other specified person has notified the probation officer in writing of the probationer’s subsequent state prison commitment, even though the written notice may not be a valid request for absentee sentencing.” (See also People v. Murray (2007) 155 Cal.App.4th 149, 155 [letter from Department of Corrections advising probation officer of defendant’s incarceration sufficient to trigger 30-day time limit].) The court explained, “We recognize that the 30-day deadline for notice to the court by the probation officer does not, in itself, require the court to sentence an unsentenced defendant. Indeed, under the terms of the statute, if imposition of sentence was suspended when probation was granted, the court cannot impose sentence in absentia until it receives from the defendant an adequate written request for absentee sentencing. Thus, a timely report of the probationer's incarceration does not start the jurisdictional clock running for imposition of sentence. The second 30-day jurisdictional clock begins to run only upon receipt of a valid request for absentee sentencing. Nevertheless, the probation officer’s communication of the fact of confinement at least makes timely revocation and sentencing possible. As the Court of Appeal below explained, ‘The goal of triggering a probation revocation hearing is accomplished by requiring a report to the court by the probation officer so that written notice of defendant’s incarceration given to the probation officer will not simply languish in the officer’s in-box.’ ” (In re Hoddinott, supra, at p. 1001.) Although no showing of prejudice is required under section 1203.2a, the court offered an illustration of the type of “prejudice that can occur when the probation officer does not timely report a confinement.” (Id. at p. 1005.) “[I]n petitioner’s case, due in part to the probation officer’s omission, ‘the machinery to sentence the defendant’ [citation] did not start running until June of 1989, when probation was finally revoked, almost a full year after defendant wrote his probation officer. Petitioner then made a formal request for sentencing in absentia on September 14, 1989. By the time the Marin County court attempted to impose a concurrent sentence, in October of 1989, petitioner had finished serving his San Francisco term, and petitioner therefore was required to serve a consecutive sentence.” (Id. at pp. 1004-1005, fn. omitted.)

Here, it appears that the probation departments in both Alameda and Solano Counties had knowledge of defendant’s incarceration as of March 2007, but neither advised the Solano County Superior Court of this fact until September 10. However, there is no evidence in the record that establishes how the probation departments acquired that knowledge. Although a formal request for sentencing is not required to trigger the probation department’s obligation to advise the court of the defendant’s incarceration on another offense, section 1203.2a requires the probation officer to be “notified in writing” of defendant’s incarceration before the 30-day period commences. Defense counsel’s assertion that “probation knew” and was “aware” of the imprisonment, even if true, is insufficient. The statute requires written notice. (§ 1203.2a; In re Hoddinott, supra, 12 Cal.4th at p. 1005.) If such written notice was in fact provided, defendant’s right to relief can be enforced in habeas corpus proceedings (People v. Walsh (1996) 49 Cal.App.4th 1096), but the present record does not establish that the court lacked jurisdiction when it sentenced defendant in October 2007.

Other related issues that are presented in connection with defendant’s sentencing provide no basis for reversal. The Attorney General suggests that the court correctly determined that defendant’s “non-waiver [of his rights to counsel and to be present at the sentencing] precluded sentencing under Penal Code section 1203.2a.” We question the assertion that the court is not required to impose sentence within 30 days of being advised of the defendant’s request for sentencing when the defendant has not waived his rights to be present and to be represented by counsel but is in fact present and represented by counsel within the time provided by the statute. (See In re White (1969) 1 Cal.3d 207, 213 [court had jurisdiction to sentence petitioner in absentia under section 1203.2a even though petitioner had not expressly waived right to be represented by counsel because petitioner’s counsel was present when the court imposed sentence].) However, we need not decide the issue because—unfortunately for defendant—his request for sentencing, although calendared within the 30-day period prescribed by section 1203.2a, was not heard until after his prison commitment in the Alameda County case had expired.

Because defendant was no longer serving another sentence when being sentenced on the Solano County offense, the trial court properly imposed a full low-term sentence. Had defendant been sentenced before his commitment in the Alameda County case expired, he might have received a concurrent sentence or, if the court decided to impose a consecutive sentence, he would have received only one-third of the midterm under section 1170.1. (People v. Scott (1993) 17 Cal.App.4th 1383, 1385-1386 [“Ordinarily, a sentencing court may characterize a subsequent conviction as the new principal offense and subordinate any previous convictions to it, even if the defendant has already been sentenced on those convictions. [Citations.] This results in reducing the length of what had been previously a principal term to the ‘one-third of the midterm’ length of a subordinate conviction”].) After October 1, however, there was no other incomplete term for the court to designate as the principal or subordinate term.

Section 1170.1, subdivision (a) provides: “Except as otherwise provided by law, and subject to Section 654, when any person is convicted of two or more felonies, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same or by a different court, and a consecutive term of imprisonment is imposed under Sections 669 and 1170, the aggregate term of imprisonment for all these convictions shall be the sum of the principal term, the subordinate term, and any additional term imposed for applicable enhancements for prior convictions, prior prison terms, and Section 12022.1. The principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any term imposed for applicable specific enhancements. The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses.” Section 669 provides: “When any person is convicted of two or more crimes, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same judge or by different judges, the second or other subsequent judgment upon which sentence is ordered to be executed shall direct whether the terms of imprisonment or any of them to which he or she is sentenced shall run concurrently or consecutively. . . . [¶] . . . Upon the failure of the court to determine how the terms of imprisonment on the second or subsequent judgment shall run, the term of imprisonment on the second or subsequent judgment shall run concurrently. [¶] The Department of Corrections shall advise the court pronouncing the second or other subsequent judgment of the existence of all prior judgments against the defendant, the terms of imprisonment upon which have not been completely served.”

Finally, while defendant was incorrectly advised regarding the maximum possible sentence prior to entering his plea, the trial court corrected the mistake and defendant did not move to withdraw his plea. Thus, any error with respect to the erroneous advice regarding the penal consequences of his plea was harmless. (People v. McClellan (1993) 6 Cal.4tth 367, 377-378.)

DISPOSITION

The judgment is affirmed.

We concur: McGuiness, P. J., Siggins, J.


Summaries of

People v. Butler

California Court of Appeals, First District, Third Division
Jul 8, 2008
No. A119946 (Cal. Ct. App. Jul. 8, 2008)
Case details for

People v. Butler

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. DAVID CHARLES BUTLER, Defendant…

Court:California Court of Appeals, First District, Third Division

Date published: Jul 8, 2008

Citations

No. A119946 (Cal. Ct. App. Jul. 8, 2008)