Ct.App. 3 C052049 Yolo County Super. Ct. No. CRF 03-6456 Judge: Stephen L. Mock.
The opinion of the court was delivered by: Chin, J.
In this case we construe the statutory speedy sentencing provisions contained in Penal Code sections 1203.2a and 1381*fn1 with regard to defendants who are placed on probation with the imposition of sentence suspended for one offense and who, while still on probation, are convicted of an unrelated misdemeanor or felony and imprisoned in either county jail or state prison on the unrelated offense. We also consider how the two statutes relate to each other.
For a defendant placed on probation with imposition of sentence suspended who is subsequently incarcerated for a second offense, section 1203.2a provides that the court that granted probation "shall have jurisdiction to impose [the suspended] sentence" if the probationer asks the probationary court to impose sentence "in his or her absence and without him or her being represented by counsel." (§ 1203.2a.) Once the court receives a section 1203.2a request in a situation "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 orders 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." (Ibid., italics added.)
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. (Italics added.) "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." (Ibid., italics added.)
We first consider whether section 1203.2a was the exclusive sentencing procedure available to defendant David Eric Wagner, when he was subsequently incarcerated after having been placed on probation with imposition of sentence suspended, or whether he "remain[ed] to be sentenced" under section 1381 and therefore properly asked to be brought to the original trial court "for sentencing" within the time constraints of section 1381. As to this issue, we shall hold that defendant had a choice to request speedy sentencing based on his probation violation under either section 1203.2a or section 1381.
We next consider whether, when a trial court fails to comply with the 90-day time requirement of section 1381 after an incarcerated probationer has made a proper section 1381 demand for sentencing, the court must dismiss the conviction underlying the original grant of probation or simply dismiss the pending probation revocation proceeding. As to this issue, we shall conclude that, when the trial court fails to comply with the 90-day time requirement of section 1381, it must dismiss the pending probation revocation proceeding, not the conviction underlying the original grant of probation.
On October 31, 2003, in Yolo County, defendant pleaded no contest to unlawfully transporting methamphetamine (Health & Saf. Code, § 11379, subd. (a)), and he admitted he had a prior conviction involving a controlled substance. (Health & Saf. Code, § 11370.2.) The trial court placed defendant on probation for three years under the provisions of Proposition 36, requiring participation in a drug treatment program. The court then suspended the imposition of sentence. On June 7, 2004, the 2003 grant of probation was summarily revoked. On October 29, 2004, defendant waived a hearing on formal revocation and admitted the alleged violation. The court reinstated probation that same day.
On February 2, 2005,*fn2 in an unrelated case in Sacramento County, defendant was convicted of receiving stolen property (§ 496, subd. (a)) and possessing a controlled substance. (Health & Saf. Code, § 11377, subd. (a).) That trial court sentenced him to 16 months in state prison. The Yolo County probation office then filed a petition to revoke defendant's probation based on the new felony convictions on July 12, and on July 19 the Yolo Superior Court summarily revoked defendant's probation and issued a bench warrant for his arrest.
On July 19, a prison counselor advised defendant that a detainer had been filed against him, that he was wanted by the West Sacramento Police Department "on charges of [Health and Safety Code section] 11379 (a)," and that he could ask for a disposition of "untried charges in accordance with Section 1381 [Penal Code]."*fn3 On July 22, defendant mailed a section 1381 trial and sentencing notice and demand regarding his "Violation Prop 36 Case" to the Yolo County District Attorney. He signed a printed form, which referenced the instant case and demanded "a hearing and trial of said criminal action as prescribed by section 1381." The demand was stamped as received by the Yolo County District Attorney Office on July 26.
In response to defendant's section 1381 demand, the Yolo Superior court filed an order for removal ordering the sheriff to bring defendant from state prison to court to appear on the pending criminal proceeding. Defendant appeared in court on October 6, and requested that the probation matter be set for hearing and a preadmission report. The prosecutor in open court then mistakenly stated that her office had received defendant's section 1381 demand on July 28. Based on that statement, the court clerk calculated section 1381's 90-day deadline as October 26, rather than the correct date, which was October 24. Accordingly, the court set the probation revocation hearing for October 25, the 91st day after the receipt of defendant's section 1381 demand.
On October 25, defense counsel informed the court defendant had completed his prison sentence and was being held in custody only on the probation violation. Defense counsel noted a potential section 1381 or section 1203.2a timeliness issue and asked for time to file a "brief to dismiss because of the lack of jurisdiction" because sections "1203.2[a] and 1381 have time requirements." The following day, defense counsel reiterated that "[t]his is the 1381 case." On October 26, counsel entered a prospective time waiver to brief the timeliness issue after the prosecutor agreed it would not affect whether "the time has expired" to proceed with the probation violation.
At the hearing on December 2, defense counsel did not brief or orally argue the motion to dismiss under section 1381. Instead, after defendant testified that the prison counselor "decides whether you need a 1381" and instructs on how to proceed with the request, defense counsel claimed defendant's section 1381 demand must be deemed a section 1203.2a request and that the more stringent "30-day clock" of section 1203.2a had run by the time of the scheduled September 8 hearing.*fn4 Counsel claimed due process required dismissal because defendant sent a notice as instructed by a state employee and should not have been penalized for any defect in the notice.
The Yolo Superior Court rejected these arguments, reasoning that defendant had not made a demand to be sentenced within 30 days as required by section 1203.2a. Defendant then admitted the probation violation, and the court revoked probation and imposed a five-year prison sentence for defendant's 2003 conviction and accompanying enhancement.
The Court of Appeal reversed. It reasoned (1) the speedy sentencing rights provided by both sections 1381 and 1203.2a apply to a probation revocation proceeding where imposition of sentence had been suspended, (2) the Yolo Superior Court sentenced defendant in the probation revocation proceeding beyond the 90-day time period mandated by section 1381, (3) "[b]ecause counsel was ineffective in failing to timely move to dismiss, the revocation proceeding must be voided (as it should have been dismissed on this jurisdictional basis) and the sentence imposed at that proceeding must be vacated," and (4) "under section 1387 the People may refile the probation revocation proceeding, obtain a summary revocation of probation, and seek a revocation order and sentence (which accounts for all time served) before defendant's tolled probationary period ends on November 9, 2007."
Defendant and the Attorney General separately petitioned for review. We granted their petitions.