Opinion
NOT TO BE PUBLISHED
San Benito County Super. Ct. No. CR0401047
OPINION
Premo, J.
Defendant George Cabrera pled guilty to possession of methamphetamine (Health & Saf. Code, § 11377) on July 8, 2004; was placed on Proposition 36 drug probation (Pen. Code, §§ 1210, 1210.1) with imposition of sentence suspended for three years; was imprisoned in another case around November 2004 and failed to report or participate in the program. He notified the probation officer of his confinement, but the probation officer did not notify the court. Two years later, when the prison sentence was served, the probation officer recommended that defendant’s probation be revoked and a state prison commitment be imposed. Defendant was arrested; he moved to terminate probation but the motion was denied and he was sentenced to two years in state prison. He challenges the jurisdiction of the court on appeal.
Further statutory references are to the Penal Code unless otherwise stated.
BACKGROUND
When defendant was on parole in San Benito County, his parole agent brought him in for drug testing on June 15, 2004, and found him in possession of methamphetamine. He was placed on drug probation under Proposition 36, the Substance Abuse and Crime Prevention Act of 2000, Health and Safety Code section 11999.4. Shortly thereafter, he was convicted for violating Vehicle Code section 2800.2 in Sacramento County and was sent to state prison for two years.
On December 5, 2004, defendant notified probation officer Raymond J. Salcido that he had received a two-year sentence for “[Vehicle Code section] 2800.2 high speed evasion” and that he wanted to finish his “Prop. 36 sentence . . . into a live in drug program after [his] new commitment sentence of two years.” He stated he would be sending a section 1381 demand for trial to the court in Hollister in case a warrant for his arrest had been issued, but, he cautioned, he would have to wait until he arrived in state prison to file it.
No section 1381 demand was filed because defendant was told by prison officials that since there was no warrant, he could not file the demand.
The probation department stamped the letter “received” on December 8, 2004. Salcido did not inform the court that defendant was starting a prison commitment because he believed defendant was not asking for sentencing but wanted “a second chance at Prop. 36 treatment.”
In December 2005, defendant was released from prison on the second case and placed on parole, which he violated a month later. He was returned to prison where, once again, he was told he could not file a section 1381 demand because there was no warrant from the San Benito County court. In March 2006, defendant was released. On July 25, 2006, defendant was arrested for a violation of section 148 and another violation of parole. He was still on probation in the instant case. On August 20, 2006, defendant wrote the district attorney prosecuting this case, informing him or her of his prison location and requesting to “please be brought before the court to resolve this matter.” On September 29, 2006, defendant filed a section 1381 demand in which he reported he was in the custody of the Department of Corrections for a parole violation and he sought to be transported to San Benito County Superior Court. On November 8, 2006, the court issued a transportation order. On November 27, defendant’s prison term was completed.
On August 20, 2006, defendant wrote “Mr./Mrs. District Attorney” that he was “in prison here at Tracy D.V.I. on a violation for absconding my parole. I still have not got my release date for this violation but I figure it to be mid December, being that I got 8 months with half time eligibility and I’ve been incarcerated since July 25, 2006.” Defendant asked that he be allowed to continue “my Prop. 36.” He explained that he had been receiving death threats from gang members in Hollister for dropping out of a prison gang, so he “ended up running from both my probation and parole something I’ll never do again.” He hoped probation and parole would be transferred to Sacramento County to get away from problems in Hollister.
The Department of Corrections is now known as the Department of Corrections and Rehabilitation. (See § 5000 et seq.; People v. Salas (2006) 37 Cal.4th 967, 974, fn. 4.)
On December 4, 2006, Salcido sent a memo to the court recommending defendant be found not amenable to drug treatment and be sentenced to the term prescribed by law. No mention was made of defendant’s December 2004 letter. On December 13, 2006, defendant admitted the violation of probation and waived his right to request dismissal under section 1381 on condition he serve no more than 120 days in jail. At the sentencing hearing on January 10, 2007, the trial court indicated that it would not comply with the agreement after receipt of the probation report recommending three years in state prison. At the continued sentencing hearing, defendant withdrew his admission and a contested violation of probation hearing was scheduled.
Defendant moved to terminate probation for lack of jurisdiction pursuant to section 1203.2a because no action was taken on his December 4, 2004 letter to the probation department. The motion was denied on March 28, 2007. The court reasoned that because defendant requested to be allowed to continue probation upon his release from prison, his letter did not request that the matter be brought to the court’s attention. Consequently, there was no duty on the probation department to report the situation to the court under section 1203.2a.
On the day set for the contested hearing, defendant admitted the violation with the proviso that two issues--that the filing of the violation of probation was untimely and violated defendant’s right to a speedy trial and that he was entitled to credits for the time that he was on parole and parole was violated based on a section 211 (robbery) charge--were not waived. The trial court sentenced defendant to two years in state prison. This appeal ensued.
ISSUES ON APPEAL
Defendant contends the trial court lacked jurisdiction to revoke probation in 2006 after the probation department’s failure to act on his 2004 letter informing it that he was committed to prison on another matter. Second, upon revoking probation, the court could not punish defendant for events occurring after he was last placed on probation. Finally, the restitution fine cannot be increased when probation is revoked. The People concede this point and state the second restitution fine must be stricken.
JURISDICTION
“The probation officer . . . must within 30 days after being notified in writing by the defendant or his or her counsel, . . . report such [prison] commitment to the court which released him or her on probation. . . .” (§ 1203.2a.) “Pursuant to the plain language of the statute, if a probation officer fails to notify the probationary court after receiving written notice of the probationer’s subsequent commitment, that court loses jurisdiction to impose sentence on the original offense.” (In re Hoddinott (1996) 12 Cal.4th 992, 998 (Hoddinott).)
Here, the trial court concluded that the probation officer had no duty under the statute if the defendant did not request to be sentenced. The People concede that this position was erroneous. A defendant need not request sentencing. “The 30-day deadline for reporting the probationer’s new commitment to the superior court permits the court to act on the grant of probation in a timely manner, regardless of whether the defendant has submitted a formal request for sentencing pursuant to the first paragraph of section 1203.2a.” (Hoddinott, supra, 12 Cal.4th at p. 1000.)
Nevertheless, on the principle that an appellate court reviews the correctness of a decision, not the correctness of the rationale (People v. Brown (2004) 33 Cal.4th 892, 901), the People argue that the trial court’s ruling should be upheld. The People assert that defendant’s “letter did not merely fail to request sentencing; rather [defendant] expressly requested that he be permitted to complete his San Benito Prop. 36 probation upon his release from prison, and he stated he would demand sentencing in San Benito County under Penal Code section 1381 only if that county issued a warrant for his arrest. . . . [¶] This view is supported by [defendant’s] subsequent inaction until he learned of the San Benito County arrest warrant, at which time [defendant] made a . . . section 1381 demand and he was then returned to San Benito County for sentencing. . . . It was only after [the 120-day] plea bargain was refused by the court that [defendant], for the first time, invoked . . . section 1203.2a.”
These arguments are foreclosed by Hoddinott. Defendant did not need to request sentencing to invoke the protections of section 1203.2a, and once the time for action by either the probation officer or the court was up, the court lost jurisdiction. One of the primary purposes of section 1203.2a, paragraph 2 is prompt revocation of the probation of an erring probationer, thereby allowing an opportunity for concurrent sentencing to “ ‘preclude[] inadvertent imposition of consecutive sentences by depriving the court of further jurisdiction over the defendant’ when the statutory time limits are not observed.” (Hoddinott, supra, 12 Cal.4th at p. 999.) The court stated there were “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.); . . . 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) . . . (3d par., 3d sentence). Failure to comply with any one of these three time limits divests the court of any remaining jurisdiction. (5th par.)” (Id. at p. 999.)
Defendant notified the probation officer of his confinement in 2004; the probation officer did not notify the court. By 2006 when probation was revoked, and 2007 when defendant was sentenced, the court had lost jurisdiction.
DISPOSITION
The order revoking probation, sentencing defendant to state prison, imposing $400 in restitution, a $400 restitution fine, a $165 lab fee and a $465 drug program fee, is vacated. Probation is ordered reinstated on the original terms and conditions and terminated. The clerk of the court is ordered to prepare an abstract of judgment reflecting this outcome and to forward a certified copy to the Department of Corrections and Rehabilitation.
WE CONCUR: Rushing, P.J., Elia, J.