Filed 4/27/18 P. v. Blake CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO



THE PEOPLE,

Plaintiff and Respondent,

v.

IVREE MONET BLAKE,

Defendant and Appellant.


E068631

(Super.Ct.No. RIF1506422)

OPINION


APPEAL from the Superior Court of Riverside County. Samuel Diaz, Jr., Judge. Affirmed.
Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
In this appeal, we consider whether the trial court lacked jurisdiction pursuant to Penal Code section 1203.2a to terminate probation and impose sentence on a defendant who requested a disposition of her probation in absentia. The matter is being considered with a habeas corpus petition involving the same issues. We affirm.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant Ivree Monet Blake (defendant) pleaded guilty to section 594, subdivision (b)(1), felony vandalism over $400. On November 9, 2015, the court suspended imposition of a sentence, and placed defendant on probation for three years, with 90 days served as straight time in the county jail because of an outstanding hold in another county.
On September 23, 2016, defendant filed a request for disposition of probation pursuant to section 1203.2a. Defendant mistakenly checked the box for executing a sentence previously imposed, rather than the box requesting disposition of probation where imposition of sentencing had been suspended. Defendant checked “no” in the waiver of rights boxes and initialed to indicate that she did not waive her right to appear in court or her right to counsel. The request contained a warden’s attestation confirming defendant’s incarceration and stating that defendant’s expected release date was March 3, 2018. Defendant submitted a letter with the request asking for her sentence to run concurrently with the sentence she was serving.
Before the original request was heard in court, defendant attempted to file a second request dated September 27, 2016. Appellant did not indicate that she intended the second request to amend or replace the first request. The court clerk date-stamped the second request on October 13, 2016, but the date stamp was subsequently stricken through. In the waiver section, defendant had checked “yes” and signed next to the boxes indicating that she waived her right to appear and right to counsel. However, the “yes” box and defendant’s signature next to the waiver of her right to appear were crossed out with several horizontal lines. In addition, there was no attestation by the warden. On October 14, 2016, the clerk’s office returned the second request to defendant with a note stating, “Your request has already been filed on 9/23/2016. This request is being returned to you as a duplicate copy.” On October 24, 2016, the court denied defendant’s first motion requesting disposition, and continued probation because defendant had not waived her right to appear and her right to counsel.
On April 13, 2017, defendant filed a third request for disposition which contained the appropriate waivers but no warden’s attestation. On April 28, 2017, at a hearing on the third request, the district attorney told the court that defendant had committed a domestic violence offense with a weapon (section 273.5), and recommended an eight-month sentence to be run consecutively. The court granted the request for disposition, terminated probation and imposed the recommended eight-month consecutive sentence for the vandalism charge. Defendant appealed the April 28, 2017 order on June 26, 2017.
III.
DISCUSSION
Section 1203.2a provides a way for defendants on probation in one case who are subsequently sent to prison in another case to request summary termination of probation and concurrent sentencing. (In re Hoddinott (1996) 12 Cal.4th 992, 999-1000 (Hoddinott).) Defendants filing a section 1203.2a request must waive their right to appear in court and their right to be represented by an attorney in the matter so a court may enter a sentence in their absence. (Id. at p. 999.) Section 1203.2a does not guarantee concurrent sentencing. Courts retain the discretion to order consecutive sentences where the circumstances warrant, pursuant to section 669. (Id. at p. 1000.)
To afford defendants prompt relief, the statute divests the probationary court of further jurisdiction over a defendant if any of three “jurisdictional clocks” are not met. (Hoddinott, supra, 12 Cal.4th at p. 999.) First, a probation officer who receives written notice of a defendant’s subsequent commitment has 30 days within which to notify the probation-granting court. Second, after receipt of a “valid, formal request from defendant” where no prior sentence has been imposed, the court has 30 days to impose sentence. Third, if sentence was previously imposed but has not been executed, the court has 60 days after receiving notice of a defendant’s confinement within which to order execution of the sentence. (Hoddinott, at p. 999.) The probationary court’s jurisdiction over a defendant is terminated if any of the three deadlines are not met. (Ibid.) Courts require strict compliance with the statute before applying such a severe sanction. (People v. Hall (1997) 59 Cal.App.4th 972, 981.)
In this case, the court suspended sentencing of defendant when it imposed probation, and the only issue raised by defendant on appeal is whether the trial court lost jurisdiction to sentence defendant because the court failed to act within 30 days of receiving defendant’s second request for disposition on October 13, 2016. Thus, our discussion is limited to whether the second jurisdictional time limit was met in this case, and whether defendant strictly complied with the statute.
The Supreme Court has reviewed section 1203.2a in depth and concluded that when granting probation, if a court suspends sentencing, it cannot later impose sentence in a defendant’s absence unless it receives from the defendant a valid request for absentee sentencing. (Hoddinott, supra, 12 Cal.4th at p. 1001.) To be valid, a request must contain an effective waiver of a defendant’s right to be present and right to counsel. (People v. Willett (1993) 15 Cal.App.4th 1, 7, disapproved of on other grounds in Hoddinott, at p. 1005.) A defendant must strictly comply with section 1203.2a’s waiver requirements when requesting to be sentenced in absentia because the rights being waived are constitutionally protected. (People v. Mendoza (2015) 241 Cal.App.4th 764, 796 (Mendoza).) The 30-day jurisdictional clock does not start running until the court receives a request from defendant containing valid waivers. (In re Brown (1971) 19 Cal.App.3d 659, 667, disapproved on other grounds in Hoddinott, at p. 1005.) A request is not invalidated by the lack of a warden’s attestation. (Mendoza, at p. 797.) However, the fact that a warden’s attestation is typically required by section 1203.2a highlights the importance of ensuring that a defendant actually waived the right to appear and right to counsel. (Mendoza, at p. 796.)
Defendant’s second request, received by the clerk on October 13, 2016, did not contain a valid waiver of defendant’s right to be present. Although defendant initially indicated her intent to waive the right by checking “yes” and signing her name next to the waiver, those affirmative indications of waiver were apparently revoked because several lines were drawn though the signature. Defendant contends that she did not draw the lines, and suggests the court clerk struck out the waiver.
There is a presumption that court clerks regularly perform their duties. (In re Walters (1995) 39 Cal.App.4th 1546, 1557, disapproved on other grounds in Hoddinott, supra, 12 Cal.4th at p. 1005; Evid. Code, § 664.) Defendant carries the burden of proof, and she must overcome this presumption and prove her position by a preponderance of the evidence. (People v. Ruster (1974) 40 Cal.App.3d 865, 874 (Ruster), disapproved on other grounds in Hoddinott, at p. 1005; Evid. Code, §§ 110, 115.) Nothing in the record on appeal support’s defendant’s allegations.
Defendant contends that the court clerk mistakenly struck the filing of the second request as duplicative and therefore, the presumption that the court clerk has regularly performed her duties has been overcome. Contrary to defendant’s contention, a purported mistake by the clerk does not “ipso facto” overcome the presumption that the clerk was regularly performing official duties. (People v. Jackson (1996) 13 Cal.4th 1164, 1213 (Jackson).) In Jackson, a transcript of a recording was redacted to prevent the jury from seeing objectionable testimony. Both the original and redacted versions of the transcript were entered as evidence, and separately numbered. The court clerk inadvertently transposed the numbers of the two exhibits. Later, the jury asked for the transcript, and there was no record as to which version of the transcript the clerk provided. On appeal, the court held that the clerk’s mistake did not rebut the presumption that she carried out her duty to provide the jury with the correct exhibits. (Ibid.) Similarly, here, it appears the clerk mistakenly file-stamped the second request before realizing a prior request had been filed. Defendant’s second request did not indicate that it was an amended version. The clerk’s line-through of the date and return of the document to defendant does not in any way suggest that the clerk intentionally altered the second request by crossing out defendant’s signature on the waiver, particularly when such an action would violate Government Code section 6200 and potentially subject the clerk to jail time.
In the absence of any independent evidence by defendant that the waiver was intact when she sent it to the court, we must presume that defendant’s second request contained an obliterated waiver and was invalid when it was received by the clerk. As a result, the request failed to trigger section 1203.2a’s 30-day jurisdictional clock because it did not strictly comply with the statute’s waiver requirement. The court had no constitutional power to impose sentence in defendant’s absence without a valid waiver of her right to be present. (People v. Broughton (2003) 107 Cal.App.4th 307, 323, abrogated on another ground in People v. Wagner (2009) 45 Cal.4th 1039, 1056-1059.)
We need not reach the question of whether the second request should have been construed as amending the first request rather than returned as a duplicate. Even if the second request was filed as an amended request, the court could not have acted on it without a valid waiver. Thus, any error would be harmless and not grounds for reversal. (Jackson, supra, 13 Cal.4th at pp. 1213-1214 [error is not reversible unless a defendant can show a more favorable outcome would have resulted in absence of error].)
The only valid request for disposition of probation containing effective waivers of defendant’s right to appear and right to counsel was filed on April 13, 2017. Defendant was sentenced on April 28, 2017, within section 1203.2a’s 30-day window. The court therefore had jurisdiction, and sentence was properly imposed.
IV.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ
P. J.
We concur:



MILLER
J.



CUNNISON
J.*