California Court of Appeals, Fourth District, First Division
from an order of the Superior Court of San Diego County, No.
SCN316868-1 Michael J. Popkins, Judge. Appeal dismissed.
Yeager, under appointment by the Court of Appeal, for
Defendant and Appellant.
D. Harris, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, Eric A. Swenson, Kristine A. Gutierrez,
Lynne G. McGinnis and Lacy Britton, Deputy Attorneys General,
for Plaintiff and Respondent.
HUFFMAN, Acting P. J.
case presents the question of whether sentencing judges, in
cases where the state sentence is ordered to run concurrently
with a foreign sentence, must issue an order directing the
Department of Corrections and Rehabilitation (Department) to
comply with its statutory duty to make the prisoner available
for transfer to the foreign jurisdiction. Statutes and case
law provide the Department has a clear and independent duty
to make prisoners available so that, if the foreign
jurisdiction will take them, the prisoners will be able to
gain the benefit of concurrent sentences. We hold, however,
that the sentencing judge is not required to independently
order the Department to perform its established legal
responsibility. If the Department fails or refuses to carry
out its duties the prisoner may resort to administrative
review within the corrections system, and ultimately review
by the courts by way of a petition for writ of habeas corpus.
Accordingly, we will reject appellant's claim that trial
courts, at the time of sentencing, must issue a preemptive
order to the Department to do its job.
will explain below, this record contains no information
regarding any actions, or refusal to act by the Department.
This is the second appeal from the original sentence, but the
record remains devoid of any information regarding the
actions of the Department. It would be entirely premature for
trial judges to be required to issue orders to the executive
branch directing it to properly perform its established
duties where the executive branch has not yet been called on
to act and there is no evidence the executive branch will not
Alberto Antonio pled guilty to one count of residential
robbery (Pen. Code,  §§ 211, 212.5). He also
admitted to the use of a firearm during the robbery (§
12022.5, subd. (a)). Pursuant to a plea agreement, the
parties stipulated that Antonio would be sentenced to an
eight-year prison term. The remaining counts and allegations
court sentenced Antonio in accordance with the plea
agreement. However, the court later recalled the sentence
when it learned of a federal case in which Antonio had
previously been sentenced to 110 months in federal prison.
The court chose not to alter the initial eight-year state
sentence. Antonio appealed from that decision contending the
trial court erred in failing to determine whether the state
sentence should be served concurrently or consecutively to
the federal sentence. This Court agreed and remanded the
case, directing the trial court to make a concurrency
remand, the trial court ordered the state sentence to run
concurrent with the federal sentence. Antonio requested the
court sign an order directing the Department to have
"Antonio transferred... to the Federal Bureau of Prisons
[(BOP)] to have a federal facility designated as the place to
serve the federal and California sentences [citations], thus
fulfilling th[e] court's duty to make the prisoner
available to the foreign authorities." The trial court
denied Antonio's request to sign the order.
appeals, contending the trial court erred in failing to issue
the order and thereby giving effect to its concurrent
sentencing order. Antonio acknowledges that the Department
has a statutory duty to make him available to the BOP for
transfer. However, he contends that a trial court's
decision to order a concurrent sentence, without ordering the
Department to perform its duties, is not sufficient to comply
with the trial court's duty to impose a term to be served
concurrently with the federal sentence.
People argue that this appeal is premature because Antonio
has provided no evidence indicating that the Department has
failed in its duty to make him available to the BOP.
reject Antonio's arguments and conclude that the trial
court properly declined to separately order the Department to
carry out its existing statutory duty to make Antonio
available to the BOP for transfer.
facts of the underlying offense are not relevant to any of
the issues raised in this appeal. The probation report shows
that Antonio and another entered a house, robbed the