Opinion
G053825
09-29-2017
THE PEOPLE, Plaintiff and Respondent, v. DEAN MICHAEL WILLS, Defendant and Appellant.
Lewis A. Wenzell, under appointment by the Court of Appeal, for Defendant and Appellant. Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Anthony DaSilva and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13NF1764) OPINION Appeal from a judgment of the Superior Court of Orange County, Nick A. Dourbetas, Judge. Affirmed. Lewis A. Wenzell, under appointment by the Court of Appeal, for Defendant and Appellant. Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Anthony DaSilva and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
Penal Code section 1203.2a contains jurisdictional time limits for sentencing a criminal defendant after he has been committed to prison for another offense while on probation. The idea behind the statute is to afford the defendant the opportunity to obtain concurrent sentences in his two cases. In this case, appellant was deprived of that opportunity because his probationary court in Orange County failed to act in a timely manner after learning he was incarcerated in Los Angeles for a new offense. Recognizing that, the Orange County court refrained from imposing a previously stayed prison term and simply reinstated appellant on probation. Appellant contends the court lacked the jurisdiction even to do that, but we disagree and affirm the court's decision.
All further statutory references are to the Penal Code. --------
FACTUAL AND PROCEDURAL BACKGROUND
In May 2014, appellant pleaded guilty to drug-related charges in Orange County Superior Court and was sentenced to 14 years in prison. However, the court suspended execution of sentence and placed appellant on five years' probation subject to various terms and conditions.
Two months later, appellant was arrested for car theft in Los Angeles. While he was in custody on that case, he wrote the trial judge in his Orange County case and told him about his situation. Appellant indicated he was thinking about taking a three-year plea offer in his Los Angeles case but was worried about the 14-year sentence that was hanging over his head in Orange County. He asked the trial judge for leniency, so he would not be too old to turn his life around once he got out of prison.
Meanwhile, appellant's probation in his Orange County case was summarily revoked and a warrant was issued for his arrest. The basis for these actions was appellant's failure to maintain contact with his probation officer.
Appellant subsequently pleaded guilty in his Los Angeles case, and on January 23, 2015, he was sentenced to three years in jail. In February 2015, and then again in April of that year, appellant wrote a letter to his Orange County probation officer informing her of his incarceration in Los Angeles. In the letters, appellant stated he was taking various classes in jail to prove he was "amenable to rehabilitation and to probation."
Roughly one year later, on April 22, 2016, appellant filed a motion to dismiss his probation violation and terminate his probation in Orange County for lack of jurisdiction pursuant to section 1203.2a. Appellant asserted the letters he sent to his probation officer provided notice under that section that he was seeking to be sentenced on his Orange County case. He also claimed his probation officer failed to timely inform the trial court of his incarceration in Los Angeles, and therefore the court lost jurisdiction to revoke his probation and sentence him on his Orange County crimes.
At the motion hearing, the prosecutor stipulated the probation officer received appellant's letters and that the letters were sufficient to trigger the time limits set forth in section 1203.2a for sentencing appellant on his Orange County case. The prosecutor also admitted those time limits were not met in this case and that consequently, the trial court lost jurisdiction to order execution of the 14-year sentence it had originally imposed. However, the prosecutor argued the failure to comply with section 1203.2a did not prevent the court from reinstating appellant on probation. The trial court agreed. Although it dismissed appellant's probation violation, thereby obviating the immediate threat of the 14-year prison term, it ordered appellant to comply with all of the terms and conditions that were set forth in his original grant of probation.
DISCUSSION
Appellant contends the trial court lacked jurisdiction to reinstate him on probation. However, for the reasons explained below, we do not believe that to be the case.
Section 1203.2a is a cumbersome statute. It provides:
"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.
"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." (§ 1203.2a.)
Section 1203.2a is intended "'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.]' [Citation.]" (People v. Murray (2007) 155 Cal.App.4th 149, 157.) From a procedural standpoint, the statute recognizes probation may be granted either by imposing sentence and suspending execution thereof, or suspending imposition of sentence altogether. (People v. Martinez (1975) 46 Cal.App.3d 736, 741.) Depending on which option is chosen, "section 1203.2a provides for separate and distinct methods of disposition of an earlier order of probation where the probationer is later sentenced to state prison for a subsequent offense. [Citations.] Only in the second circumstance, where imposition of judgment was suspended, does section 1203 .2a provide for a written waiver by an absentee probationer." (Ibid., italics added.)
Undeterred by this distinction - and contrary to the position they took in the trial court - the People contend appellant's letters to his probation department were insufficient to trigger the time requirements contained in section 1203.2a because he did not request sentencing in his Orange County case or waive his personal appearance and the appearance of counsel at that proceeding. However, since those requirements apply only when imposition of sentence was suspended, and here only execution of sentence was suspended, those omissions are immaterial. (§ 1203.2a, 1st par.; In re Hoddinott (1996) 12 Cal.4th 992, 1003; People v. Martinez, supra, 46 Cal.App.3d at p. 741.) For purposes of section 1203.2a, it is sufficient that appellant's letters stated he was currently imprisoned for a new offense. Based on this information, the probation officer had 30 days to report appellant's imprisonment to the court that released him on probation, i.e., the Orange County Superior Court. (§ 1203.2a, 2d par.) By failing to do so, the probation officer "divested the [Orange County] Superior Court of jurisdiction. [Citation.]" (People v. Murray, supra, 155 Cal.App.4th at p. 157, fn. omitted.)
So, what does that mean? Appellant argues it amounted to a complete divestiture of jurisdiction over him or his case, and therefore the Orange County Superior Court was without authority to reinstate him on probation. That might be true if the court had originally suspended imposition of sentence altogether, i.e., failed to exercise its jurisdictional authority to impose sentence in the first place. (See In re Hoddinott, supra, 12 Cal.4th 992.) It seems a Draconian remedy but it might be the one the Legislature chose.
Fortunately, we do not have to decide that. The court in our case imposed a 14-year sentence and merely ordered execution of that sentence suspended. Under those circumstances, the subsequent divestiture of jurisdiction pursuant to section 1203.2a prevented the court from ordering execution of the 14-year term, but it did not affect the underlying grant of probation, which would, "in effect, [be] reinstated." (People v. Murray, supra, 155 Cal.App.4th at p. 158; cf People v. Wagner (2009) 45 Cal.4th 1039, 1046 [where the trial court fails to comply with the time limits contained in section 1381 after a probationer who reoffends demands to be sentenced in his original case, the remedy is to dismiss the pending revocation proceeding but not the conviction underlying the original probation grant].)
This result fully comports with the intent of the statute, which, as stated above, is to avoid the inadvertent imposition of consecutive sentences. (People v. Murray, supra, 155 Cal.App.4th at p. 157.) Since the trial court dismissed appellant's probation violation, there was no danger of appellant having to serve back-to-back prison terms.
In arguing against this result, appellant relies on In re Mancillas (2016) 2 Cal.App.5th 896. The defendant in that case was given a three-year prison term, but execution of sentence was suspended and he was placed on probation for three years. After affirming the defendant's underlying conviction, the appellate court took up his habeas petition and ruled the trial court lacked jurisdiction to impose the three-year sentence following the defendant's imprisonment for a subsequent offense because it failed to comply with the time limits in section 1203.2a. (Id. at pp. 908-910.) With regard to the remedy for that statutory violation, the appellate court vacated the three-year sentence but it did not place the defendant back on probation for the simple reason his three-year probation period had already expired and there was "no remaining period of probation that [could] be reinstated." (Id. at p. 911; see generally In re Barber (Sept. 14, 2017, B284060) ___ Cal.App.5th ___, ___ ["once probation expires, a court loses jurisdiction to make an order revoking or modifying an order suspending the imposition of sentence or execution thereof and admitting the defendant to probation."].)
Here, in contrast, appellant's five-year probationary period has yet to run out. Therefore, the trial court properly reinstated him on probation. There is no basis for disturbing the court's decision in that regard.
DISPOSITION
The judgment is affirmed.
BEDSWORTH, J. WE CONCUR: O'LEARY, P. J. THOMPSON, J.