IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo)
December 30, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
DAVID GEORGE TAYLOR, DEFENDANT AND APPELLANT.
(Super. Ct. No. 091769)
The opinion of the court was delivered by: Cantil-sakauye, J.
P. v. Taylor
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Pursuant to a plea agreement, defendant was convicted of vehicle theft (Veh. Code, § 10851) and receiving stolen property (Pen. Code, § 496) in Yolo County; imposition of sentence was suspended and he was granted probation.*fn1 Subsequently, he was convicted of vehicle theft in Sacramento County and sentenced to prison. From prison, defendant wrote several times to both the Yolo County District Attorney and the Yolo County Probation Department, informing them of his incarceration, recognizing its effect on his probation, and demanding a hearing and trial pursuant to section 1381. The Yolo County Superior Court issued a removal order to transfer defendant to Yolo County, but the matter was delayed while defendant was transferred to Placer County for sentencing on a matter there for which he had been granted probation. Eventually, defendant appeared with counsel and the trial court terminated his probation and sentenced him to a consecutive term of eight months on each count consecutive to his two-year eight-month sentence on the Placer County charges.
On appeal defendant contends his sentence on the Yolo County charges must be vacated because the court lost jurisdiction. He contends the provisions of section 1203.2a apply and the court lost jurisdiction when the probation officer failed to notify the court of defendant's imprisonment within 30 days after defendant gave the probation department notice. We find the jurisdictional time limits of section 1203.2a do not apply where the defendant has already chosen the alternative speedy sentencing procedure of section 1381 by making a section 1381 demand. We further conclude defendant is entitled to an additional day of presentence credit under recent amendments. We modify the judgment to add the additional day credit and, as modified, affirm.
On April 10, 2009, defendant was found in West Sacramento driving a stolen Ford F-150; he was also in possession of stolen credit cards. Pursuant to a plea agreement, defendant pled no contest to vehicle theft and receiving stolen property in exchange for the promise of no state prison at the outset. Three other charges were dismissed. The court granted defendant probation and suspended imposition of sentence.
On December 15, 2009, defendant executed a form that was sent to the Yolo County District Attorney. In it, defendant gave notice that he had been convicted of vehicle theft in Sacramento County and had been sentenced to two years in state prison on October 7, 2009. Thereafter, Yolo County filed a "hold" or notice of pending criminal action against him with the warden of High Desert State Prison. Defendant demanded a hearing and trial of that criminal action pursuant to section 1381.
In response, the district attorney sought to have defendant removed from prison to the Yolo County Superior court for a hearing on February 8, 2010. In early January of 2010, an order for removal of defendant was issued.
Perhaps unaware of these actions, defendant continued to provide Yolo County with notice of his incarceration and to demand resolution of his pending probation matter pursuant to section 1381. He sent a letter to the probation department, which was received January 14, 2010. He sent another letter to the probation department, which was received January 26, 2010. This letter indicated it was defendant's third attempt to notify the Probation Department of his incarceration. Having received no response, defendant said he would now file a request for dismissal.
The district attorney received defendant's motion to dismiss and noted on the motion that there was an order to transfer defendant to the court on February 8, 2010. That transfer did not occur because Placer County had picked up defendant on January 21, 2010, pursuant to an intervening removal order.
In March of 2010, the Yolo County Superior Court issued a second order to remove defendant to that court on April 12, 2010.
At the hearing on April 15, the court indicated the matter was before it on defendant's section 1381 demand. Defendant's attorney, for the first time, indicated it was also a section 1203.2a demand. The defense argued the court had lost jurisdiction due to the probation department's failure to comply with the jurisdictional requirements of section 1203.2a. After reviewing the documents in the file, the court determined defendant had made a section 1381 demand and section 1203.2a did not apply.
Defendant was sentenced to one-third the midterm or eight months on each of the Yolo County counts. These terms were consecutive to each other and to the two-year eight-month sentence on the Placer County counts. The aggregate sentence was four years.
The Jurisdictional Time Limits of Section 1203.2a Do Not Apply Where
Defendant Demanded Sentencing under Section 1381
A probationer who is subsequently convicted of and sentenced to
prison for another offense may request speedy sentencing on the
offense or offenses on which he was earlier granted probation. The
advantage of speedy sentencing is to provide defendants with certainty
as to the length of their sentence and to permit defendants the
advantage of concurrent sentences if the sentencing court agrees.
(People v. Wagner (2009) 45 Cal.4th 1039, 1049 (Wagner); In re
Hoddinott (1996) 12 Cal.4th 992, 999 (Hoddinott).)
Where imposition of sentence was suspended when probation was granted, the now incarcerated defendant may request speedy sentencing under either section 1203.2a or 1381. (Wagner, supra, 45 Cal.4th at p. 1055.) Section 1203.2a permits court to sentence defendant in absentia, provided the defendant properly makes a "valid, formal" request. (Hoddinott, supra, 12 Cal.4th at p. 999.) The second paragraph of section 1203.2a provides: "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." This provision provides a jurisdictional time clock; "the probation officer has 30 days from receipt of the written notice of defendant's subsequent commitment within which to notify the probation-granting court." (Hoddinott, supra, at p. 999.)
"The 30-day deadline for reporting the probationer's new commitment to the superior court permits the court to act on the grant of probation in a timely manner, regardless of whether the defendant has submitted a formal request for sentencing pursuant to the first paragraph of section 1203.2a. Once the probation officer timely reports a defendant's commitment on a subsequent felony conviction, the court can exercise its discretion in a variety of ways: the court can revoke probation summarily; the court can order defendant produced so that probation can be formally revoked and sentence imposed; the court can order the sentence in full force and effect if judgment was previously pronounced; or the court can continue defendant on probation. [Citations.]" (Hoddinott, supra, 12 Cal.4th at p. 1000.)
The final paragraph of section 1203.2a states: "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." The failure to comply with the 30-day time limit of the second paragraph "divests the court of any remaining jurisdiction." (Hoddinott, supra, 12 Cal.4th at p. 999.)
Section 1203.2a provides one procedure, "but not a mandatory or exclusive procedure, for a defendant placed on probation with the imposition of sentence suspended and then incarcerated to request speedy sentencing on his or her original offense." (Wagner, supra, 45 Cal.4th at p. 1055.)
A second procedure for speedy sentencing is set forth in section 1381. In relevant part, section 1381 provides: "Whenever a defendant has been convicted, in any court of this state, of the commission of a felony . . . and has been sentenced to and has entered upon a term of imprisonment in a state prison . . . and at the time of the entry upon the term of imprisonment . . . there is pending, in any court of this state, . . . any criminal proceeding wherein the defendant remains to be sentenced, the district attorney of the county in which the matters are pending shall bring the defendant . . . for sentencing within 90 days after the person shall have delivered to said district attorney written notice of the place of his or her imprisonment . . . and his or her desire to be brought . . . for sentencing . . . . 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, on motion or suggestion of the district attorney, or of the defendant . . . , or on its own motion, dismiss the action. . . ."
Section 1381 applies to incarcerated probationers facing a probation revocation based on the subsequent conviction that led to the current incarceration. "[T]he plain meaning of the phrase 'there is pending . . . any criminal proceeding wherein the defendant remains to be sentenced' (§ 1381) includes a probation revocation proceeding in which the imposition of sentence was suspended when probation was granted." (Wagner, supra, 45 Cal.4th at p. 1056.)
Here, defendant clearly and repeatedly requested--indeed demanded--sentencing under section 1381. Once the Yolo County District Attorney received notice of defendant's section 1381 demand, the process of bringing defendant to court for revocation of probation and sentencing began. The court promptly issued a removal order. The process was delayed because Placer County acted first and had defendant transferred from prison to its court for sentencing on the probationary offenses committed there. In cases of simultaneous demands for speedy dispositions, the 90-day period prescribed by section 1381 is tolled while defendant is unavailable for transfer. (People v. Garner (1990) 224 Cal.App.3d 1363, 1372; People v. Boggs (1985) 166 Cal.App.3d 851, 855-856.) The record does not show how long defendant was unavailable while in Placer County. In any event, he does not contend his sentencing was untimely under section 1381.
Instead, defendant contends the court lost jurisdiction over him under section 1203.2a. Reading the second and last paragraphs of section 1203.2a in isolation, and without regard to his section 1381 demand, defendant contends the court lost jurisdiction because the probation officer failed to notify the superior court after defendant gave the probation department written notice of his incarceration.
Defendant's argument ignores that he had made a choice between the two available speedy sentencing procedures. There are substantive differences between sections 1203.2a and 1381. "'Under section 1203.2a, a defendant may request imposition of sentence only if he waives the right to be present and have counsel represent him at the hearing; in other words, speedy sentencing under section 1203.2a is sentencing in absentia. In contrast, section 1381 gives the defendant an opportunity to appear before the court with counsel, so that he may defend against the probation revocation charges, the sentence, or both. [Citations.]'" (Wagner, supra, 45 Cal.4th at p. 1056.) In making a section 1381 demand, defendant had chosen to retain the right to appear with counsel.
Defendant correctly argues that the 30-day jurisdictional time limit of the second paragraph of section 1203.2a (notice from probation officer to court) applies regardless of whether defendant makes a valid and formal request for sentencing in absentia under section 1203.2a. (Hoddinott, supra, 12 Cal.4th at p. 1000.) The court in Hoddinott did not address the situation where a defendant had made a section 1381 demand. In Wagner, the court made clear the two statutory provisions are separate and alternative procedures. (Wagner, supra, 45 Cal.4th at pp. 1046, 1055.)
In interpreting a statute, "[t]he words of the statute must be construed in context, keeping in mind the statutory purpose, and statutes or statutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible." (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387.) By considering the purpose of the jurisdictional time limit of section 1203.2a, we determine the jurisdictional time limit does not apply where the defendant has already chosen the alternative speedy sentencing procedure of section 1381 by making a section 1381 demand.
The purpose of the 30-day notice from the probation officer to the court under section 1203.2a is to "permit the court to act on the grant of probation in a timely manner." (Hoddinott, supra, 12 Cal.4th at p. 1000.) If the court decides to revoke probation, the defendant will receive notice and can then decide whether to request sentencing in absentia. (Ibid.)
Where defendant has already made a section 1381 demand and the trial court thus has notice of his current status, the purpose of section 1203.2a is not furthered by requiring, in order for the court to retain jurisdiction, the probation officer to give the court notice within 30 days of receiving written notice of defendant's imprisonment. Rather, such second notice is superfluous. Here, by the time defendant notified his probation officer of his incarceration, he had already made a section 1381 demand on the district attorney. The district attorney, in turn, had notified the court by seeking an order to remove defendant. Thus, the court was well aware of defendant's situation and the process for resolving the previous grant of probation on a timely basis had already begun. Additional notice from the probation officer was not required because "[t]he law neither does nor requires idle acts." (Civ. Code, § 3532.)
Defendant Is Entitled to an Additional Day of Presentence
On September 28, 2010, as an urgency measure effective on that date,
the Legislature enacted Senate Bill No. 76 (SB No. 76), which amended
sections 4019 and 2933. The amendment gives qualifying prisoners with
presentence credit calculated at one day of presentence credit for
every day of the prisoner's actual presentence confinement. (§ 2933,
subds. (e)(1), (e)(2), (e)(3); Stats. 2010, ch. 426, § 1, SB No. 76.)
It also eliminates the loss of one day of presentence conduct credit
under the rate specified by Senate Bill 18 when the person served an
odd number of days in presentence custody, and it eliminates the
directive in Penal Code section 4019 that no presentence conduct days
are to be credited for commitments of fewer than four days. (SB No.
76, § 1; § 4019, subd. (g).)
The amendment does not state that it is to be applied prospectively only. Thus, we conclude it applies retroactively to all appeals pending as of September 28, 2010. (See In re Estrada (1965) 63 Cal.2d 740, 745 [amendment to statute lessening punishment for crime applies "to acts committed before its passage provided the judgment convicting the defendant of the act is not final"]; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [applying the rule of Estrada to amendment allowing award of custody credits]; People v. Doganiere (1978) 86 Cal.App.3d 237 [applying Estrada to amendment involving conduct credits].)*fn2
As defendant does not have present or prior convictions for a violent or serious felony and is not subject to registration as a sex offender, he is entitled to the additional accrual of credit. (§ 2933, subd. (e)(1); Stats. 2010, ch. 426, § 1; § 4019, former subds. (b)(2), (c)(2); Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50.) Defendant was sentenced in April 2010 and was given presentence credit of 77 actual days and 76 days of goodtime/work credit under section 4019, as amended effective January 25, 2010. As a result of the new amendments in SB No. 76, defendant, having served 77 days of actual presentence custody, is entitled to 77 days of conduct credit rather the previously awarded 76 days of conduct credit. (§ 2933, subd. (e)(1); Stats. 2010, ch. 426, § 1.) He is entitled to one additional day of credit under SB No. 76.
The judgment is modified to award defendant one additional day of presentence credit. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting the additional day of presentence credit and to forward it to the Department of Corrections and Rehabilitation.
We concur: NICHOLSON, Acting P. J. HULL , J.