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People v. Antonio

California Court of Appeals, Fourth District, First Division

April 18, 2017

THE PEOPLE, Plaintiff and Respondent,
v.
JOSE ALBERTO ANTONIO, Defendant and Appellant.

         APPEAL from an order of the Superior Court of San Diego County, No. SCN316868-1 Michael J. Popkins, Judge. Appeal dismissed.

          Daniel Yeager, under appointment by the Court of Appeal, for Defendant and Appellant.

          Kamala 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.

         This 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.

         As we 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 act properly.

         Jose Alberto Antonio pled guilty to one count of residential robbery (Pen. Code, [1] §§ 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 were dismissed.

         The 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 determination.

         On 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.

         Antonio 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.

         The 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.

         We 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.

         STATEMENT OF FACTS

         The 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 ...


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