Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County No. 06CM4323 Louis F. Bissig, Judge.
Gene E. Vorobyov, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Charles A. French, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Cornell, J. and Kane, J.
Defendant Michael Wayne Todd appeals from the judgment revoking probation and sentencing him to a term of five years in state prison. Relying on Penal Code section 1203.2a, he challenges the jurisdiction of the trial court to impose sentence. For the reasons set forth below, we affirm the judgment. In addition, we determine defendant is not entitled to conduct credits pursuant to section 4019.
All future code references are to the Penal Code.
I. Facts and Procedural Background
In 2006, defendant was stopped and found to be in possession of heroin. He pleaded guilty to one count of possession of heroin and admitted that he had served two prior prison terms. On January 9, 2007, imposition of sentence was suspended and he was granted Proposition 36 probation.
He was incarcerated in state prison on another matter when he filed a request for disposition of probation in this case pursuant to section 1203.2a. The form had two items listed under “understanding my rights.” There is a “yes” box, and a “no” box to be checked and initialed next to each right. The first was that defendant waives and gives up his right to be represented by an attorney. Defendant checked and initialed the “no” box. The second box was that defendant waives and gives up his right to be personally present at the proceedings. Defendant checked and initialed the “yes” box.
Section 1203.2a requires an attestation from the warden of the prison or a duly authorized representative of the warden. This was signed, and it stated that defendant “signed this request in my presence and that he/she states that he/she wishes the Court to execute sentence, or make disposition of his/her probation as required by law in his/her absence and without his/her being represented by an attorney at law in the case in which he/she was released on probation.”
Defendant’s request for disposition of probation was received by the superior court on April 20, 2009. On May 20, 2009, a hearing was held on defendant’s request for disposition of his probation status. Defendant was not present, but he was represented by counsel. It was the court’s view that it needed to conduct a sentencing hearing in order to make the requisite findings in conjunction with the imposition of sentence. The court was not prepared to proceed, notwithstanding defendant’s request, and it ordered defendant to be transported for a sentencing hearing. The court stated it was setting the matter for June 23, 2009. The court directed the probation department to prepare a report and recommendation. At the conclusion of this statement, the court asked defense counsel if he was in agreement. Defense counsel stated he was in agreement.
The envelope containing the request is date stamped as being received on April 21, 2009.
On June 23, 2009, the court sentenced defendant to a term of three years for the possession of heroin conviction and added one year each for the two prior prison term enhancements, for a total term of five years. The sentence was ordered to be served concurrent to any other sentence defendant was presently serving.
II. Application of Section 1203.2a
Section 1203.2a provides in 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 her or her absence and without him or her being represented by counsel.”
The time limit applicable to defendant is the time limit applicable to a case in which sentence has not previously been imposed. In this situation “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.” (§ 1203.2a)
Defendant contends the trial court acted in excess of its jurisdiction when it imposed sentence more than 30 days after he filed his section 1203.2a demand for summary imposition of sentencing. While acknowledging that the form requesting imposition of sentence shows that defendant checked off the box declining to waive his right to counsel, defendant argues that the form is ambiguous because the warden signed the form stating defendant was waiving his right to counsel. In addition, defendant argues that any ambiguity is irrelevant because he was represented by counsel and, having satisfied the other criteria of section 1203.2a, the court should have proceeded to summary imposition of sentence. Defendant asserts the trial court’s failure to proceed in the 30-day time period divested the court of jurisdiction and his prison sentence must be vacated and his probation should be terminated.
“[R]equests for sentencing pursuant to section 1203.2a must be in strict compliance with that section.” (People v. Willett (1993) 15 Cal.App.4th 1, 7.) The “30-day jurisdictional clock begins to run only upon receipt of a valid request for absentee sentencing.” (In re Hoddinott (1996) 12 Cal.4th 992, 1001.) “Loss of jurisdiction over a convicted felon is a severe sanction which courts have been unwilling to apply unless the sentencing court’s jurisdiction has been ousted by strict compliance with the statute.” (People v. Como (1975) 49 Cal.App.3d 604, 609.)
“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.’” (People v. Murray (2007) 155 Cal.App.4th 149, 157, brackets in original.)
Defendant failed to meet the strict requirements of section 1203.2a. He clearly checked and initialed the “no” box under the portion of the form that asks if defendant waives his right to be represented by counsel. The protections of section 1203.2a are designed to aid a defendant. If the defendant is not willing to strictly comply with the statute, then he is taken out of the protection afforded to him by the statute. To allow a defendant’s case to fall under section 1203.2a without strict compliance could encourage gamesmanship on the part of a defendant. We will not sanction such a possibility.
Defendant argues that because he was represented by counsel at the hearing, his failure to appropriately waive his right to counsel should have no effect. While it is true that the court cannot pronounce judgment in the absence of a proper waiver because it would violate the defendant’s right to the assistance of counsel (People v. Willett, supra, 15 Cal.App.4th at p. 7), the presence of counsel should not relieve the defendant of his burden of absolute compliance with the statute in making his request. There is no authority for the proposition that substantial compliance with the statute is sufficient to offer defendant the very beneficial protections of the statute.
In any event, we find that defense counsel waived the protections of section 1203.2a. At the hearing on May 20, 2009, the court outlined that it was going to set the matter over for a full sentencing hearing to be held at a later date. Defense counsel agreed to this continuance and thus waived, on behalf of defendant, any protections offered by section 1203.2a.
The trial court had jurisdiction to impose sentence outside of the 30-day period set forth in section 1203.2a.
Defendant contends the People may not raise noncompliance with section 1203.2a on appeal, because the prosecutor failed to raise this issue in the trial court. While matters not raised below are ordinarily forfeited, defendant’s section 1203.2a argument is nonwaivable because it challenges the court’s jurisdiction to impose any sentence on him. (People v. Blanchard (1996) 42 Cal.App.4th 1842, 1847.)
III. Section 4019 Conduct Credits
The Legislature amended section 4019 effective January 25, 2010, to provide that any person who is not required to register as a sex offender, and is not being committed to prison for, or has not suffered a prior conviction of, a serious felony as defined in section 1192.7 or a violent felony as defined in section 667.5, subdivision (c), may accrue conduct credit at the rate of four days for every four days of presentence custody.
This court, in its “Order Regarding Penal Code section 4019 Amendment Supplemental Briefing” of February 11, 2010, ordered that in pending appeals in which the defendant is arguably entitled to additional conduct credit under the amendment, we would deem raised, without additional briefing, the contention that prospective-only application of the amendment violates the intent of the Legislature and equal protection principles. We deem these contentions raised here.
That amendment is not presumed to operate retroactively and does not violate equal protection under law. Defendant is, therefore, not entitled to additional conduct credit under the amendment to section 4019. (People v. Rodriguez (2010) 183 Cal.App.4th 1.)
IV. Disposition
The judgment is affirmed.