Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. 04-5992, 06-1918
DAVIS, J.
Defendant Jacob Curtis Henson contends that, by operation of Penal Code section 1203.2a, the Yolo County Superior Court lacked jurisdiction to impose sentence on his previously suspended prison term in case No. 06-1918. The People concede the court acted without jurisdiction. We agree and shall order reinstatement of the original sentence--a grant of probation with execution of sentence suspended.
Hereafter, undesignated section references are to the Penal Code.
Background
In March 2007, defendant pleaded no contest in Yolo County case No. 06-1918 to petty theft with a prior conviction. The trial court imposed an upper term sentence of three years in prison, suspended execution of sentence, and placed defendant on five years’ probation, subject to various terms and conditions, including placement in a residential substance abuse treatment program. The following month, defendant was transported to San Bernardino County, where he was sentenced on July 11, 2007 (all further date references are to dates in 2007), to two years in state prison for failure to appear in case No. FMB006836.
In the same proceeding, defendant was sentenced to 10 days in jail in case No. 04-5992, for misdemeanor driving under the influence.
On July 20, the Yolo County Probation Officer sent written notice to the Yolo County Superior Court in connection with case Nos. 04-5992 and 06-1918 that “[i]n accordance with Penal Code section [1203.2a], the court is being informed that on July 11, 2007, [defendant] was sentenced in San Bernardino County Superior Court to serve two years in prison. He will be incarcerated at the California Institution for Men, located in Chino, California.”
The following month, defendant filed a request with the Yolo County Superior Court, citing section 1203.2a, requesting that the court impose sentence in case No. 06-1918.
After the hearing, which was initially scheduled for October 4, was continued to determine defendant’s custody credits, the Yolo County Superior Court ultimately ruled on December 14, denying defendant reinstatement of probation in case No. 06-1918, and sentencing him to state prison for one-third the midterm, or eight months, to run consecutively to his two-year sentence in the San Bernardino County matter.
Discussion
Section 1203.2a, which governs the sentencing of a probationer who is committed to state prison for another offense and is set forth in full in the margin, “is not a model of clarity.” (People v. Murray (2007) 155 Cal.App.4th 149, 154 (Murray).)
Section 1203.2a states: “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.
As the California Supreme Court has explained, 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 (2nd 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 (3rd 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 (3rd par., 3rd 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 (Hoddinott), italics added [holding that the probation officer’s 30-day reporting requirement is jurisdictional (see id. at p. 1005)].)
The purpose of section 1203.2a is “to provide a mechanism by which the probationary court [can] 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.]” (Hoddinott, supra, 12 Cal.4th at p. 999.)
Here, the court failed to comply with the last of the statute’s three jurisdictional time limits: the record shows it received timely notice of defendant’s confinement from the probation department on July 23. Accordingly, the 60-day “jurisdictional clock[]” of section 1203.2a, paragraph three, began to run, and expired no later than September 20. But the court failed to order execution of defendant’s sentence until December 14. The defendant contends, and the People concede, that expiration of the time limit set forth in section 1203.2a deprived the court of jurisdiction to sentence defendant in case No. 06-1918; we agree.
Because the issue has not been raised or briefed, we offer no opinion as to the extent the superior court retains jurisdiction with regard to the reinstated sentence. (Murray, supra, 150 Cal.App.4th at p. 158.)
Disposition
The Yolo County trial court’s December 14, 2007, order imposing an eight-month prison sentence in case no. 06-1918, to be served consecutively to his two-year sentence in the San Bernardino County matter, is reversed, and defendant’s original three-year sentence with execution suspended and grant of probation is reinstated. (Murray, supra, 155 Cal.App.4th at p. 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”].)
The trial court is directed to prepare an amended abstract of judgment in accordance with this opinion and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: SIMS, Acting P. J. HULL, J.
“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.
“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.
“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.”