Opinion
NOT TO BE PUBLISHED
Humboldt County Super. Ct. No. CR031909
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
This is an appeal from a judgment following the conviction of appellant Aaron K. Gabel for a drug-related offense and the issuance of an order executing a previously-imposed 6-year prison sentence against him. Both parties agree the trial court lacked jurisdiction to issue the order executing the previously-imposed sentence, and that such order must therefore be reversed. We agree.
FACTUAL AND PROCEDURAL BACKGROUND
On May 21, 2003, appellant was convicted in Humboldt County after pleading guilty to one count of sale of a controlled substance. Appellant also admitted an enhancement allegation charging him with a prior drug-related conviction. The Humboldt County Superior Court (trial court) thereafter imposed a 6-year suspended sentence, and placed appellant on probation for 5 years.
On March 7, 2006, appellant was arrested in Del Norte County for several drug-related and other offenses. In response, the District Attorney of Humboldt County (District Attorney) filed on March 28, 2006 a Notice of Probation Violation and Court Action in the trial court, alleging that appellant had violated certain terms of his probation and had been arrested for the above-described offenses. Appellant was later convicted and sent to state prison for the offenses.
In November 2006, appellant sent notice of his conviction and imprisonment and a request for disposition of probation to the trial court, which the trial court received on December 4, 2006 and promptly sent on to the District Attorney and the Probation Department. Appellant’s request for disposition of probation stated, among other things, that he wished to exercise his rights under Penal Code section 1203.2a (section 1203.2a) to appear in person at any hearing on the alleged probation violation, and that he was not waiving “the 30-day and 60-day limitation period [under section 1203.2a] for either making disposition of my probation or to execute my previously suspended sentence, respectively.” An initial hearing on the notice and request was held December 8, 2006.
Between January 5 and February 5, 2007, several hearings (at least five) were held with respect to appellant’s alleged probation violation and request for disposition of probation. Appellant and his attorney were both present for at least two of those hearings, but each time the matter of his disposition of probation was continued for further proceedings.
On February 7, 2007, 65 days after the trial court received notice of appellant’s conviction and imprisonment in Del Norte County, appellant moved to dismiss this matter on the ground that the trial court had lost jurisdiction pursuant to section 1203.2a by failing to timely order execution of the previously-imposed 6-year sentence. The trial court denied the motion and found appellant in violation of the terms of his probation based on the Del Norte County conviction, and thus set March 7, 2007 as the resentencing date.
On March 21, 2007, the trial court executed the previously-imposed 6-year prison sentence. This appeal followed.
DISCUSSION
The sole issue on appeal is whether the trial court lost jurisdiction in this matter by failing to order execution of appellant’s previously-imposed prison sentence within the time limits prescribed by section 1203.2a. The statute 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.
“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 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 previously been imposed, the court shall be deprived of jurisdiction over defendant if it does not issue its commitment or make other final order terminating its jurisdiction over defendant in the case within 60 days after being notified of the confinement. 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. [¶] . . . [¶]
“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.” [Emphasis added.]
Doubt about the proper interpretation of section 1203.2a has, at least for the most part, been put to rest by our California Supreme Court, which has succinctly described the statute as follows: “[A]s presently written, section 1203.2a provides for 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.); (2) the court has 30 days from the receipt of a valid, formal request from defendant within which to impose sentence, if sentence has not previously been imposed (3d par., 4th sentence); 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) if sentence has previously been imposed (3d par., 3d sentence). Failure to comply with any one of these three time limits divests the court of any remaining jurisdiction. (5th par.)” (In re Hoddinott (1996) 12 Cal.4th 992, 999 [emphasis added].)
Section 1203.2a “was intended to provide a mechanism by which the probationary court could consider imposing a concurrent sentence, and 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. [Citation].” (In re Hoddinott, supra, 12 Cal.4th at p. 999.) However, for the statute’s time limits to apply, no showing of specific prejudice to the defendant is necessary. (Id. at p. 1005.)
Here, the undisputed record shows the trial court received written notice from the Probation Department of appellant’s prison confinement following his conviction for the Del Norte County offenses on or about December 4, 2006. The trial court nonetheless failed to execute on appellant’s previously-imposed sentence until March 21, 2007 – outside the 60-day time limit prescribed for such action under section 1203.2a. As such, as the People concede, under the plain language of the statute, the trial court was “deprived of jurisdiction over [appellant].” (§ 1203.2a; see also In re Hoddinott, supra, 12 Cal.4th at p. 999.)
In denying appellant’s motion to dismiss the matter for lack of jurisdiction pursuant to section 1203.2a, the trial court acknowledged failing to act within the statute’s prescribed 60-day time limit, but reasoned that jurisdiction nonetheless remained because appellant had not waived his right to be present at proceedings involving his request for disposition of probation and his alleged probation violation. Both parties agree the trial court’s reasoning finds no support in the statute’s plain language or other California law, and that the order executing the previously-imposed sentence must therefore be reversed. We agree.
As our California Supreme Court held in rejecting a related argument in In re Hoddinott, supra: “As written, . . . the statute does not require a formal request for sentencing or waivers for a court to issue its commitment order if sentence has previously been imposed. In such cases, the 30-day limit of paragraph two ensures prompt notice from the probation officer to the court, which then has 60 days within which to revoke probation and to order the judgment in effect or to make any other order as to disposition.” (In re Hoddinott, supra, 12 Cal.4th at p. 1003; see also People v. Murray (2007) 155 Cal.App.4th 149, 156-157.) In so holding, the California Supreme Court cautioned courts not to rewrite the statute by reading into its language requirements not otherwise stated: ‘ “[I]n construing the statutory provisions a court is not authorized to insert qualifying provisions not included and may not rewrite the statute to conform to an assumed intention which does not appear from its language.” ’ [Citations.]” (In re Hoddinott, supra, at p. 1002.) We thus reject the trial court’s attempt to read into section 1203.2a’s language any additional requirements based on appellant’s refusal to waive his right to be present at future proceedings in deciding whether the jurisdictional clock began running.
Unlike here, the trial court in In re Hoddinott, supra, had suspended imposition of appellant’s sentence. Upon his conviction in another county, appellant then made an informal request that the sentence be imposed in his absence. (12 Cal.4th at p. 995.) In rejecting appellant’s later claim that the trial court lost jurisdiction over the matter by failing to comply with section 1203.2a’s time limits, the trial court read into the statute a requirement that the defendant make a formal request for imposition of sentence in absentia to start the jurisdictional clock. (In re Hoddinott, supra, at p. 996.)
Accordingly, for the reasons stated, we agree with both parties that the trial court lacked jurisdiction to order execution of the 6-year sentence previously imposed against appellant, and thus that the order must be reversed.
DISPOSITION
The trial court’s March 21, 2007 order executing the previously-imposed 6-year prison sentence is reversed. The 6-year prison sentence appellant is currently serving as a result of that order is vacated, and the original 6-year sentence with execution suspended and grant of probation is reinstated. (People v. Murray, supra, 155 Cal.App.4th at pp. 151-152 [where trial court lacked jurisdiction to order execution of a previously-imposed sentence, “the error has the effect of reinstating the original sentence (grant of probation with execution of sentence suspended), because the execution of sentence is void”].)
We concur: Pollak, Acting P. J., Siggins, J.