Opinion
NOT TO BE PUBLISHED
San Benito County Super. Ct. No. CR0242211
Mihara, J.
Following revocation of probation, the trial court sentenced defendant Raul Fernandez to three years in state prison. On appeal, defendant contends: (1) the trial court lacked jurisdiction to extend his probationary period; (2) the trial court lost jurisdiction when it failed to comply with his sentencing request pursuant to Penal Code section 1203.2; and (3) he was deprived of the effective assistance of counsel. For the reasons stated below, the judgment is affirmed.
All further statutory references are to the Penal Code unless otherwise stated.
I. Statement of the Case
On May 2, 2002, defendant pleaded no contest to possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) and possession of drug paraphernalia (Health & Saf. Code, § 11364). The trial court placed defendant on probation for three years and set the matter for hearing on May 30, 2002.
A week later, however, defendant violated parole in another case and was sentenced to state prison. When defendant failed to appear on May 30, 2002, a bench warrant was issued.
In August 2002, defendant appeared in court. The trial court released him on his own recognizance, ordered him to report to the probation department for enrollment pursuant to Proposition 36, and to return to court in October 2002.
In January 2005, the probation department filed a notice to show cause and petition to revoke probation alleging that defendant was terminated from his substance abuse program in October 2002 for failing to keep scheduled appointments and was convicted of resisting arrest (§ 148, subd. (a)(1)) in April 2004. The petition also alleged that defendant had been convicted of three counts of burglary (§ 459) and possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) in June 2004, and was currently serving a 28-month term in state prison.
On February 10, 2005, the trial court summarily revoked probation and issued a bench warrant. In August 2005, defendant appeared with counsel for arraignment. In September 2005, defendant failed to appear and there was a notation that defendant was “in custod[y] in Santa Rita.” In October 2005, defendant failed to appear.
The videotape of the arraignment has been lost.
On December 8, 2005, defendant filed a request that he be sentenced within 30 days pursuant to section 1203.2a. The request referred to case No. CR-05-01552. On December 28, 2005, a hearing was held for “review per PC 1203.2a.” After the prosecutor informed the trial court that the charges in case No. CR-05-01552 were pending and it appeared the section 1203.2a request related to the present case (case No. CR-02-42211), the trial court continued the hearing to January 17, 2006. On that date, defendant appeared with counsel and waived time for sentencing. On February 7, 2006, defendant failed to appear and a bench warrant was issued. Three days later, defendant appeared with counsel, the bench warrant was recalled, and the matter was continued. However, defendant failed to appear for the next hearing and a bench warrant was issued. A few days later, defendant appeared with counsel and the bench warrant was recalled.
No court reporter was present at this hearing.
On March 8, 2006, defendant appeared with counsel for sentencing. Defense counsel indicated that he did not have a probation report and “would continue to waive time.” On March 28, 2006, the probation department filed a memorandum indicating that defendant’s last contact was in September 2002 and he had been convicted of three counts of burglary and one count of possession of methamphetamine in June 2004. The probation department also recommended that the Proposition 36 probation be revoked.
On March 29, 2006, defendant appeared with counsel for sentencing and the matter was continued. Two weeks later, when defendant appeared with counsel for sentencing, his counsel declared a conflict, alternate counsel was appointed, and newly-appointed counsel requested a continuance. Defendant again waived time for sentencing.
In May 2006, defense counsel appeared and informed the trial court that defendant’s mother was ill. The matter was continued one week, however, defendant failed to appear for sentencing and a bench warrant was issued.
On June 7, 2006, defendant appeared with counsel. Defendant explained that he had failed to appear for sentencing because he was caring for his seriously ill mother. On that same date, defendant pleaded no contest in case No. CR-05-01552 to second-degree burglary (§ 459) and two counts of failure to appear (§ 853.7). He pleaded no contest in case No. CR-03-00642 to disorderly conduct (§ 647, subd. (h)), presenting a false identification to a peace officer (§ 148.9), resisting arrest (§ 148, subd. (a)(1)), assault on a parking control officer (§ 241, subd. (b)), and two counts of failure to appear (§ 853.7). Defendant acknowledged that his plea in these cases could constitute violations of probation or parole and result in revocation. The trial court also stated that the present case (case No. CR-02-42211) was “actually here for sentencing” and that the sentence for all three cases would be 180 to 210 days and felony probation.
In July 2006, defendant appeared with counsel for sentencing and the matter was continued. Meanwhile, the probation department filed a memorandum stating that defendant had failed to keep two appointments and requested a continuance. When defendant appeared with counsel, the trial court ordered him to meet with the probation department by July 21, 2006. On July 28, 2006, the probation department recommended that defendant be sentenced to three years in state prison with sentence suspended and he be placed on probation for three years.
On August 2, 2006, the trial court sentenced defendant to a three-year term in the present case (case No. CR-02-42211), suspended execution of sentence, and placed him on probation on condition that he serve 180 days in county jail.
On September 15, 2006, the probation department filed a notice to show cause and petition to revoke probation alleging that defendant failed to enter a drug rehabilitation program as ordered as a condition of his probation. Twelve days later, defendant failed to appear and a bench warrant was issued.
In January 2007, defendant admitted a violation of probation and probation was reinstated on condition that he serve 90 days in county jail.
In June 2007, the probation department filed a notice to show cause and petition to revoke probation alleging that defendant left his drug rehabilitation program. In July 2007, defendant admitted a violation of probation, and the trial court ordered him to enter the Salvation Army drug rehabilitation program.
In November 2007, the probation department filed a notice to show cause and petition to revoke probation alleging that defendant was terminated from his drug rehabilitation program and he failed to report to his probation officer. A week later, defendant failed to appear and a bench warrant was issued.
In November 2008, defendant appeared with counsel and the matter was continued. The matter was subsequently continued several more times. In February 2009, defendant filed a motion to terminate probation on the ground that probation was improperly extended on August 2, 2006. The trial court denied the motion.
On April 1, 2009, following a contested hearing, the trial court found that defendant had violated his probation. On that same day, the trial court sentenced defendant to prison for the previously imposed three-year term with presentence credit for 453 days. Defendant then filed a timely notice of appeal.
II. Discussion
Defendant contends that the trial court lacked jurisdiction to extend his probationary period on August 2, 2006, because the record does not establish that his probation had ever been formally revoked. The People argue that the record indicates that defendant admitted a probation violation which occurred before the probationary period expired. Alternatively, the People contend that defendant is estopped from denying the probation violation.
A court may not modify or revoke probation after the probationary period has expired. (In re Daoud (1976) 16 Cal.3d 879, 882.) However, “[t]he revocation, summary or otherwise, shall serve to toll the running of the probationary period.” (§ 1203.2, subd. (a).) “Because of this tolling, the hearing on the violation, the court’s ruling, and the imposition of sentence may all occur even after the probationary period would otherwise have expired.” (People v. Burton (2009) 177 Cal.App.4th 194, 199.)
Defendant’s three-year probationary period began on May 2, 2002. The summary revocation of his probation on February 10, 2005 was within the probationary period. On December 8, 2005, defendant filed a request for disposition pursuant to section 1203.2a in case No. CR-05-01552. A hearing was then held on December 28, 2005. After it was determined that the request referred to the present case (case No. CR-02-42211), the matter was continued until January 17, 2006, when defendant appeared with counsel and waived time for sentencing.
After several more continuances and failures to appear, defendant appeared with counsel on June 7, 2006. At that time, defense counsel announced that defendant had accepted the prosecutor’s offer. The trial court then stated that defendant had been charged with three misdemeanors in case No. CR-05-01552 and six misdemeanors in case No. CR-03-00642. Regarding the present case (case No. CR-02-42211), the following exchange occurred: “THE COURT: [¶]... [¶] Case 42211, you’re on probation for Prop 36, and I believe this would be the last violation. [¶] Mr. Salcido [the probation officer]? [¶] MR. SALCIDO: I believe so. [¶] THE COURT: And he would be off the ability to go onto Prop 36 anymore. [¶] MS. HOOPER [the prosecutor]: Judge, there’s already been an admission on that one. This matter is trailing. [¶] THE COURT: That’s actually here for sentencing. [¶] MS. HOOPER: Thank you. [¶] THE COURT: So that’s -- but that’s the whole thing you’re here for. Do you understand that? [¶] THE DEFENDANT: Yes, your Honor.” After waiving his rights, defendant entered pleas of no contest to the new charges. The trial court then referred the matter to the probation department for “a limited presentence report for the felony matter [case No. CR-02-42211] since it’s not going to be rereferred for Prop 36.” The trial court also indicated that the sentence for all three cases would be 180 to 210 days and felony probation. Pursuant to the negotiated disposition, on August 2, 2006, the trial court sentenced defendant to a three-year prison term, suspended execution of sentence, and placed him on probation on condition that he serve 180 days in county jail.
As defendant correctly points out, there are no reporter’s transcripts or superior court minutes in the record on appeal to support the prosecutor’s statement that defendant had already admitted the probation violation that was the basis of the February 10, 2005 summary revocation. However, we conclude that defendant is estopped from denying the probation violation.
In re Griffin (1967) 67 Cal.2d 343 (Griffin) provides guidance. In Griffin, the defendant appeared without counsel at a probation revocation hearing and sought a month’s continuance to obtain counsel, which the trial court granted. (Griffin, at p. 345.) Following a contested hearing, the trial court revoked the defendant’s probation. (Griffin, at p. 345.) Defense counsel subsequently informed the trial court that the probation revocation hearing had been held after the defendant’s probation had expired and thus the trial court had lost jurisdiction to revoke probation. (Griffin, at p. 345.) Our high court held that the defendant was estopped from claiming that the trial court acted in excess of its jurisdiction. (Griffin, at p. 348.) The court explained: “When, as here, the court has jurisdiction of the subject, a party who seeks or consents to action beyond the court’s power as defined by statute or decisional rule may be estopped to complain of the ensuing action in excess of jurisdiction. [Citations.] Whether he shall be estopped depends on the importance of the irregularity not only to the parties but to the functioning of the courts and in some instances on other considerations of public policy. A litigant who has stipulated to a procedure in excess of jurisdiction may be estopped to question it when ‘to hold otherwise would permit the parties to trifle with the courts.’ [Citation.] On the other hand, waiver of procedural requirements may not be permitted when the allowance of a deviation would lead to confusion in the processing of other cases by other litigants. [Citation.] Substantive rules based on public policy sometimes control the allowance or disallowance of estoppel.” (Griffin, at pp. 347-348.)
Noting that there were no policies that precluded estoppel, the Griffin court reasoned that the defendant’s conduct led the trial court to act in excess of its jurisdiction. “By seeking a continuance to a time beyond the end of the probationary term petitioner asked the court to do in a manner that was in excess of jurisdiction what it could have done properly by immediately revoking probation and continuing the matter for a hearing and determination as to the alternatives of reinstatement of probation or imposition of sentence. The court could have revoked probation without affording petitioner the opportunity to obtain counsel; indeed it could have made the order of revocation ex parte. [Citations.] It could then have continued the matter to a suitable time for hearing, for when imposition of sentence has been suspended judgment can be pronounced at any time after the timely revocation of probation.” (Griffin, supra, 67 Cal.2d at pp. 348-349.)
Similarly, here, there are no substantive or procedural policies that preclude estoppel. When the parties entered into the negotiated agreement on June 7, 2006, the trial court had jurisdiction to formally revoke defendant’s probation and extend it based on the February 10, 2005 summary revocation. At the June hearing, however, neither defendant nor his counsel objected to the prosecutor’s statement that defendant had already admitted the probation violation. In fact, immediately after the prosecutor’s statement, the trial court informed defendant “that’s the whole thing you’re here for, ” and defendant stated that he understood. Under the circumstances of this case, including defendant’s agreements to continuances, time waivers, and resolution of the three cases in exchange for a sentence of 180 to 210 days and felony probation, defendant is estopped from claiming that he did not admit the probation violation.
Defendant argues that the probation department’s recommendation of probation on July 28, 2006, indicates that he had not been promised probation in exchange for his admission. This argument is refuted by the trial court’s explicit statement that the “indicated sentence for all three of these cases was 210 days, felony probation, ” and its subsequent correction “[m]aximum, I should say. So it’s 180 to 210.”
Relying on In re Dupper (1976) 57 Cal.App.3d 118 (Dupper), defendant also claims that there is nothing to suggest that he “was trifling with the courts when he agreed to the continuances.” In Dupper, the defendant consented to a continuance beyond the expiration of probation. (Dupper, at p. 124.) The court held that estoppel did not apply because the defendant was not represented by counsel, he was unaware of the consequences of his consent, and the trial court gave him the option of waiting for his counsel. (Dupper, at p. 124.) In contrast to Dupper, here, defendant was represented by counsel.
Defendant next contends that the trial court lost jurisdiction when it failed to comply with his request for sentencing pursuant to section 1203.2a.
On December 8, 2005, the court received a letter from defendant, which was signed and attested to by the authorities at San Quentin State Prison. Citing section 1203.2a, defendant requested disposition of probation in case No. CR-05-01552 and waived his rights both to counsel and to be personally present. However, the computer printout attached to the letter referred to the present case (case No. CR-02-42211).
On December 28, 2005, the trial court held a hearing on the request in case No. CR-05-01552. The prosecutor noted that this “case hasn’t gone to dispo. That is a case that [defendant] disappeared on at the arraignment stage.... It appears that a 1203.2(a) demand would be more appropriate for case number [CR-02-]42211, I believe.” The prosecutor also noted that defendant had been released from custody on December 22, 2005. The trial court then construed the request for disposition as applying to the present case (case No. CR-02-42211) and continued the matter to January 17, 2005. At that hearing, defendant appeared with counsel and waived time for sentencing.
“For a defendant placed on probation with imposition of sentence suspended who is subsequently incarcerated for a second offense, section 1203.2a provides that the court that granted probation ‘shall have jurisdiction to impose [the suspended] sentence’ if the probationer asks the probationary court to impose sentence ‘in his or her absence and without him or her being represented by counsel.’ (§ 1203.2a.) Once the court receives a section 1203.2a request in a situation ‘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 orders 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.’ [Citation.]” (People v. Wagner (2009) 45 Cal.4th 1039, 1045 (Wagner).) A request pursuant to section 1203.2a must strictly comply with the requirements of that section. (Wagner, at p. 1054.)
Though defendant acknowledges that the request cited the wrong case, defendant points out that the computer printout attached to the letter referred to the correct case. He also argues that his request could only have applied to the present case because he was not convicted in case No. CR-05-01552 until June 7, 2006. However, defendant did not strictly comply with section 1203.2a because he failed to correctly identify the case number to which his request for sentencing applied. The confusion created by defendant’s error was not resolved until the hearing on December 28, 2005, which then began the 30-day period in which the trial court had jurisdiction to sentence defendant. Before that period ended, however, defendant appeared with counsel and waived time for sentencing. Accordingly, we reject defendant’s contention that the trial court lost jurisdiction.
Defendant also contends that he was deprived of the effective assistance of counsel when counsel failed to move for dismissal pursuant to section 1203.2a on January 17, 2006.
“In order to demonstrate ineffective assistance, a defendant must first show counsel’s performance was deficient because the representation fell below an objective standard of reasonableness under prevailing professional norms. [Citation.]” (People v. Williams (1997) 16 Cal.4th 153, 214-215.)
Here, defendant has failed to show his counsel’s performance was deficient. As previously discussed, defendant’s request for sentencing under section 1203.2a was deficient. However, when the trial court learned that his request related to the present case, it set the matter for hearing within 30 days. Accordingly, counsel did not render ineffective assistance by failing to bring a motion to dismiss that had no merit.
III. Disposition
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P. J. Duffy, J.