Opinion
G042065 No. 08NF1729 G042879
06-30-2010
THE PEOPLE, Plaintiff and Respondent, v. THOMAS PERRY, JR., Defendant and Appellant.
Lizabeth Weis, under appointment by the Court of Appeal, for Defendant,Appellant and Petitioner.Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief AssistantAttorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton, Eric A.Swenson and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
Lizabeth Weis, under appointment by the Court of Appeal, for Defendant, Appellant and Petitioner.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton, Eric A. Swenson and Marissa Bejarano, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
O P I N I O N
MOORE, ACTING P. J.
Appeal from a judgment of the Superior Court of Orange County, Robert R. Fitzgerald, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Original proceedings; petition for a writ of habeas corpus, after judgment of the Superior Court of Orange County. Petition granted.
***
Defendant Thomas Perry, Jr., appeals from a judgment finding him in violation of probation. We appointed counsel to represent him on appeal. Counsel did not argue against her client, but advised the court she could find no issues to argue on defendants behalf. We provided defendant 30 days to file his own written argument. That period has passed, and we have received no communication from him.
Defendants appellate counsel subsequently filed a petition for a writ of habeas corpus in this court alleging the superior court violated defendants right to be sentenced within 90 days of his Penal Code section 1381 demand. We issued an order to show cause and granted defendants request to consolidate his appeal and habeas corpus petition. We affirm the judgment on appeal because the appellate record does not support any meritorious issue on appeal. We grant the relief requested in defendants habeas corpus petition because the court revoked his probation and sentenced him outside the 90-day period mandated by section 1381.
All statutory references are to the Penal Code unless otherwise stated.
I
FACTS
A. Facts in the Appellate Record
On July 15, 2008, defendant pled guilty to possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a)), heroin (Health & Saf. Code, § 11350, subd. (a), and a hypodermic syringe (Bus. & Prof. Code, § 4140), and admitted he served two separate terms in state prison (§ 667.5, subd. (b).) The court placed defendant on formal probation for three years pursuant to section 1210.
By way of a petition dated December 4, 2008, the probation department requested the court to revoke defendants probation and to issue a warrant for his arrest based upon his admitted use of heroin, which resulted in his arrest by his parole officer. On December 8, 2008, the court summarily revoked probation.
Defendant wrote a letter dated January 11, 2009 to the superior court requesting to be put on calendar "to clear this [warrant] up." The court issued an order on March 2, 2009, directing the sheriff to transport defendant from the California Institution for Men in Chino to court for a March 17, 2009 arraignment on the probation violation. On March 25, when defendant again was not transported, the court ordered a bench warrant for defendants arrest issued and held until March 30, 2009.
Defendant was brought to court on March 30, and appeared with counsel. The court recalled the warrant and continued the matter on its own motion to April 7, 2009. Defendant was not transported to court on the new date and the court ordered another bench warrant for defendants arrest issued and held until April 15, 2009.
Defendant was transported to court on April 15, 2009. He admitted his probation violation and the court sentenced him to two years in state prison. When the court asked for defendants credits, defense counsel stated, "Actually two differing. Probation has 38 actual and 19 good time/work time for 57, and from the defense perspective, [defendant] did file a 1381, just for the record, on November 18 of [2008]." The court responded, "That is an improper application to receive credits. [¶] The credits are 38 plus 19 for 57." Defendant subsequently filed a timely notice of appeal.
B. Additional Facts in the Habeas Corpus Proceeding
On December 2, 2008, the same day he was taken into custody by his parole officer, defendant mailed in a section 1381 demand for a speedy trial/sentencing on the probation violation matter. The district attorney received the section 1381 demand on December 10, 2008. On December 17, 2008, a deputy district attorney wrote to defendant confirming the existence of the warrant on the pending probation violation, informing defendant section 1381 does not apply to probation violation matters, and stating that any request to resolve the probation violation matter must be directed to the court, not the district attorney.
Apparently in response to that letter, defendant sent the January 11, 2009 letter to the court. It appears the letter was also sent or forwarded to the district attorney, as two days later another deputy district attorney sent defendant a second letter containing the same one-paragraph response sent by the first deputy district attorney.
II
DISCUSSION
The Appeal
Defendant was charged with violating his felony probation by using narcotics. He admitted the violation and the court sentenced him to two years in state prison. Thereafter, Appellate Defenders, Inc. filed a notice of appeal on defendants behalf.
Appellate counsel fairly set forth the facts in the appellate record and was unable to find an arguable issue on appeal. (See People v. Wende (1979) 25 Cal.3d 436.) Counsel was also unable to assist this court in its independent review of the appellate record by suggesting possible appellate issues pursuant to Anders v. California (1967) 386 U.S. 738.
We independently reviewed the appellate record and found no arguable issues on appeal. According to the clerks minutes, the defendant was advised of his constitutional rights prior to admitting his violation. He was represented by counsel and there is no reason to believe his admission was anything but freely and voluntarily made. The sentence imposed by the court was lawful. There are no meritorious issues on appeal. Additionally, defendant did not request, and the trial court did not issue, a certificate of probable cause (§ 1237.5), so we may not consider any challenge to his admission. (People v. Johnson (2009) 47 Cal.4th 668, 677.)
The Habeas Corpus Proceeding
"Section 1381 provides, in pertinent part, that a state prisoner may demand to be brought for sentencing within 90 days of giving appropriate notice to the district attorney where any other indictment, information, complaint, or any criminal proceeding wherein the defendant remains to be sentenced is currently pending.... In the event that the defendant is not brought to trial or for sentencing within the 90 days the court in which the charge or sentencing is pending shall... dismiss the action. [Citation.]" (People v. Wagner (2009) 45 Cal.4th 1039, 1045 (Wagner).) When a court suspends imposition of sentence and places a defendant on probation, the defendant "remains to be sentenced" for purposes of section 1381. (Id. at p. 1056.)
Defendant was imprisoned on a parole violation for the very conduct that served as the basis of the instant probation violation. He was entitled to invoke section 1381 and to be sentenced on the probation violation within 90 days of an appropriate demand upon the district attorney. (Wagner, supra, 45 Cal.4th at p. 1053.) The Attorney General concedes the section 1381 90-day period expired on March 10, 2009, and defendant was sentenced in clear violation of section 1381. Notwithstanding the violation, the Attorney General argues defendant is not entitled to relief because: defendant failed to object when the probation violation was continued beyond the 90-day period; defense counsel raised the issue in an untimely fashion after defendant entered his admission, forfeiting the section 1381 claim; and, assuming the trial court exceeded its jurisdiction in sentencing defendant, he cannot establish prejudice.
In People v. Lenschmidt (1980) 103 Cal.App.3d 393 (Lenschmidt), a case decided by Division Four of the First District, the defendant was in jail in San Mateo County and filed a section 1381 demand on charges pending in Santa Clara County. (Id. at p. 394.) On what was arguably day 49 of the section 1381 90-day period, he was arraigned in Santa Clara Superior Court and trial was set for a date within the 60-day period permitted by section 1382, but was day 98 for purposes of section 1381. (Id. at p. 395.) The trial court granted the defendants section 1381 motion approximately three weeks after the original trial date. (Id. at p. 396.) The appellate court reversed, concluding defendant was required to inform the court the date the court selected for trial was outside the 90-day period of section 1381. (Id. at p. 397.)
Lenschmidt is not controlling here. At the time Lenschmidt appeared in court and set a trial date, the court had a 41-day window in which to begin his trial in compliance with section 1381. Thus, it was appropriate to require him to alert the court that the date selected for trial was beyond the statutory period, rather than permit him to remain silent, wait until his 90 days expired, and then bring a section 1381 motion to dismiss. "[W]here a case is set for trial, as in the present case, in the presence of the defendant and his counsel, and no objection is made to the date being beyond the [section 1381] statutory period, the objection is deemed waived. [Citation.]" (Lenschmidt, supra, 103 Cal.App.3d 393, 396-397, italics omitted.) Here, on the other hand, defendant was brought to Orange County only after the section 1381 90-day period had already expired. The court could not set the matter for hearing on any date within the already expired time period. As Division One of the First District accurately observed, "[T]he rationale of [Lenschmidt] that a defendant should be required to warn the court so that it will have an opportunity to advance the case for timely trial has no application where, at the time of trial setting, the section 1381 period has already expired." (Vukman v. Superior Court (1981) 116 Cal.App.3d 341, 348, disapproved on another ground in People v. Cuevas (1995) 12 Cal.4th 252, 275, fn. 5.)
The 90-day time period having expired before defendant was brought to court, a finding defendant waived his rights by silence when the probation violation arraignment was continued a number of times because he had not yet been transported to Orange County, or once on the courts own motion after defendant was finally brought to court, "would not be in accord with the policy of [section 1381]." (Vukman v. Superior Court, supra, 116 Cal.App.3d at p. 349.) Thus, we find defendant has not waived his section 1381 rights.
The Attorney General contends defendant forfeited the issue by failing to seek dismissal in the superior court pursuant to section 1381. We find no forfeiture.
Defendant did not move to dismiss the probation violation petition on March 30, 2009, when he was finally brought to Orange County on his section 1381 demand, 20 days after expiration of the 90-day time period. He entered his admission to the probation violation on April 15, 2009, his second appearance. According to the clerks minute order, defendant made a motion to dismiss the probation violation pursuant to section 1385. The reporters transcript of the April 15, 2009 appearance does not reflect any such motion.
That section authorizes a court to dismiss an action "in the furtherance of justice." (§ 1385, subd. (a).)
"As a general rule, a record that is in conflict will be harmonized if possible. [Citation.] If it cannot be harmonized, whether one portion of the record should prevail as against contrary statements in another portion of the record will depend on the circumstances of each particular case. [Citation.]" (People v. Lawrence (2009) 46 Cal.4th 186, 194, fn. 4.) The reporters transcript appears to begin in the midst of a calendar call in the superior court. Immediately after defendants attorney and the deputy district attorney announced their appearances, the court asked, "Mr. Perry, did you violate probation?" Upon receiving defendants admission, the court sentenced defendant. The clerks minutes contain the admission and sentence. They also include three additional facts: (1) defendant made, and the court denied, a motion to dismiss pursuant to section 1385, (2) the court recalled the bench warrant for defendants arrest, issued on the previous court date when defendant was not transported to court, and (3) defendant was advised of his constitutional rights. We relied upon the latter entry in affirming the judgment on appeal. (Ante, p. 5.) We conclude therefore, defendant made a motion to dismiss the probation violation, albeit under section 1385 rather than section 1381, the proper section.
The fact defendant chose the wrong statutory provision as authority for his motion to dismiss is irrelevant. In Wagner, instead of seeking dismissal pursuant to section 1381, the defendant argued dismissal was required under section 1203.2a. (Wagner, supra, 45 Cal.4th at pp. 1047-1048.) Nevertheless, the Supreme Court upheld the Court of Appeals order voiding the probation revocation based upon a violation of section 1381. (Id. at p. 1061.) Accordingly, we conclude defendants probation was revoked and he was sentenced in violation of section 1381.
The prison commitment imposed after the section 1381 violation prejudiced defendant. The court sentenced defendant to two years in state prison. However, had the court imposed the sentence within the statutory period, defendant would have started upon that sentence earlier, started earning credit against that sentence earlier and, as a result, he would be released from prison earlier than he will under the courts present order.
At oral argument the Attorney General asserted defendant was not prejudiced by the violation because the award of credits had the same effect as if defendant had been sentenced earlier, within the statutory period. In truth, he received no credit for any time spent in prison and was awarded less credits than he was entitled to as of the date he entered his guilty plea to the original charge.
Additionally, while the court ordered defendants sentence to run concurrently with any other sentence, that benefit may be illusory as the record does not indicate he was serving any sentence other than the parole violation. We note the court could not have ordered defendants sentence to run consecutively to that commitment. (People v. Penner (1980) 111 Cal.App.3d 168, 172 [a term being served on a parole violation is not a sentence for purposes of the Determinate Sentencing Law]; People v. Mathews (1980) 102 Cal.App.3d 704, 713 [person paroled and subsequently returned to prison on a parole violation is not serving a sentence for purposes of the consecutive sentence provisions of the Penal Code]; § 669.) Therefore, the judgment finding defendant in violation of probation and committing him to prison must be vacated, and the probation violation petition dismissed.
The Attorney General argues dismissal may not be the final word in this matter because section 1387 permits the petition to be refiled once during defendants probationary term. (Wagner, 45 Cal.4th at pp. 1059-1061.) We take no position on the merits of any refiling in this matter.
Section 1387, subdivision (a) provides in pertinent part: "An order terminating an action pursuant to this chapter... is a bar to any other prosecution for the same offense if it is a felony... and the action has been previously terminated pursuant to this chapter...."
III
DISPOSITION
The judgment is affirmed on appeal. Defendants petition for a writ of habeas corpus is granted, the judgment against him in Orange County Superior Court case No. 08NF1729, finding him in violation of probation and committing him to prison is hereby vacated, and the superior court is directed to dismiss the probation violation petition file-stamped December 8, 2008. The order to show cause, having served its purpose, is discharged.
MOORE, ACTING P. J.
WE CONCUR:
ARONSON, J.
FYBEL, J.