P. v. Blan

Filed 8/29/06 P. v. Blan CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant Jeffrey C. Blan appeals a judgment entered after the court revoked his probation. At issue in this appeal is whether the trial court had jurisdiction over defendant at the time it revoked probation. We conclude the court effectively revoked probation, and maintained jurisdiction over defendant. Therefore, we affirm the judgment.

Statement of the Case

The present case on appeal arises from Santa Cruz County Superior Court case No. S9-90532. There are three additional cases by the superior court, No. F10007, F10328, and F10542 that relate to the present case, and are also discussed below.

In September 1999, in case No. S9-09532, defendant was charged in Santa Cruz County with unlawful possession of cocaine base for sale. (Health & Saf. Code, § 11351.5). The complaint also alleged that defendant had served three prior prison terms. (Pen. Code, § 667.5, subd. (b).) Defendant pleaded no contest to the charge and admitted the prison priors. On December 3, 1999, the court dismissed one of the prison priors, suspended imposition of sentence, and placed defendant on five years of formal probation.

On August 19, 2004, the court held a hearing to arraign defendant on the violation of probation, and continued the matter to September 2, 2004, to trial a preliminary hearing in case No. F10007 The court stated: “Okay. So probation is revoked, I believe in . . . .” To which defense counsel stated “The S9 case.” The court then stated: “[T]he S9 case, subject to a hearing. And violation is denied?”

On September 2, 2004, defendant pleaded no contest to possession of cocaine (Health & Saf. Code, § 11350, subd. (a)), and possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), in case No. F10007. The court placed defendant on probation for three years. Based on the plea in that case, the court also found defendant in violation of probation in case No. S9-09532, and reinstated probation.

On November 8, 2004, in case No. F10328, defendant pleaded no contest to opening or maintaining unlawful places for the purpose of unlawfully selling, giving away, or using a controlled substance. (Health & Saf. Code, § 11366.) The court suspended imposition of sentence, and placed defendant on three years of probation with a condition that he complete a drug treatment program.

On November 23, 2004, in case No. F10542, the Santa Cruz County District Attorney charged defendant with possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)), and disobeying a court order (Penal Code, § 166, subd. (a)(4)). The complaint also alleged defendant had suffered three prior prison commitments. (Pen. Code, § 667.5, subd. (b).)

On November 24, 2004, the court addressed case No. F10542, appointed the public defender to represent defendant in this matter, and set it for preliminary hearing on December 6, 2004. On the record, the court stated that the probation violations would trail to the date of the preliminary hearing. ~(RT 510)~

The clerk’s minute order dated November 24, 2004 for case Nos. F10328, F10007 and S9-09532 states that probation is revoked in those matters; however, other than to state that the probation violation matters are to trail case No. F10542, the reporter’s transcript does not contain any action by the court revoking defendant’s probation in the other three cases.

On December 6 and 9, 2004, the court held a probation violation hearing, and found defendant had violated his probation by failing to turn himself into authorities on November 9, 2004, in case No. F10328, using a controlled substance, and being in possession of a controlled substance.

At the conclusion of the probation violation hearing on December 9, 2004, the district attorney stated: “Your Honor, the court is still tolling probation?” to which the defendant attorney stated, “yes.” The Court then stated: “It’s in a tolled status, revoked status.” The court then continued the matter to December 21, 2004, for sentencing.

On December 21, 2004, in case No. S9-09532, the trial court committed defendant to prison for a term of six years. Pursuant to the district attorney’s motion in case No. F10542, the trial court dismissed the charges. In the remaining cases, Nos. F10007 and F10328, the court reinstated and terminated probation.

Defendant filed a timely notice of appeal in case No. S9-09532.

Discussion

The sole issue in this case is whether the trial court had jurisdiction over defendant on December 21, 2004, when it sentenced him to six years in state prison for a violation of his probation in case No. S9-09532.

The revocation order must be made within the period of probation. (Pen. Code, §§ 1203.2, subd. (a) & 1203.3, subd. (a); In re Daoud (1976) 16 Cal.3d 879, 882.) A trial court has no jurisdiction to modify or revoke probation after the term of probation has expired (see In re Griffin (1967) 67 Cal.2d 343, 347 (Griffin); People v. Amsbary (1975) 51 Cal.App.3d 75, 78-79), but trial courts have broad authority to modify probation “at any time during the term of probation . . . .” (Pen. Code, § 1203.3, subd. (a); see also, Pen. Code, § 1203.2, subd. (b).) However, a party who “seeks or consents to action beyond the court’s power as defined by statute or decisional rule may be estopped to complain of the ensuing action in excess of jurisdiction.” (Griffin, supra, 67 Cal.2d at p. 347.)

In this case, defendant was granted five years of probation in case No. S9-09532 on December 3, 1999; therefore, probation was due to expire on December 2, 2004. However, during that time, on August 19, 2004, the court revoked defendant’s probation, and reinstated it September 2, 2004, thereby extending defendant’s period of probation by 14 days. The extended expiration date for defendant’s probation became December 16, 2004.

The question is whether the trial court had jurisdiction over defendant when it committed him to state prison in case No. S9-09532 on December 21, 2004. Specifically at issue is whether the trial court revoked defendant’s probation on November 24, 2004, thereby tolling the period of probation beyond December 16, 2004, and giving the trial court the necessary jurisdiction on December 21, 2004.

Compounding the problem in this case is the fact that the clerk’s transcript contains a minute order for case No. S9-09532 dated November 24, 2004, stating that probation was revoked, yet the reporter’s transcript for that same date does not contain a statement by the trial court specifically revoking defendant’s probation.

We note that at the November 24, 2004 hearing, the court addressed all of defendant’s pending matters, including remanding him into custody and setting his new case (No. F10542) for preliminary hearing, and trailing the other three probation violation cases, including case No. S9-09532 to the preliminary hearing date. By bringing defendant before the court on his probation violation in case No. S9-09532, coupled with the court’s remanding defendant on his new charges that constituted a violation of probation, the court effectively revoked defendant’s probation in case No. S9-09532. (People v. Ham (1975) 44 Cal.App.3d 288, 294, [holding “jurisdiction to sentence defendant attached as soon as defendant was brought before the court on the probation revocation charge and the court found probable cause to believe that defendant was in violation”].) Moreover, the clerk’s transcript contains the minute order for case No. S9-09532, and proceedings on November 24, 2004. The minute order specifically states that “[p]robation is revoked.” n Notations by a clerk on a minute order are “entitled to a presumption of regularity and must be deemed to speak the truth. . . .” (People v. Anderson (1991) 1 Cal.App.4th 318, 322-323).

Here, based on the record before us, we find the trial court did in fact revoke defendant’s probation in case No. S9-09532 during the probationary period, thereby giving it jurisdiction to sentence defendant to prison on the probation violation on December 21, 2004.

However, even assuming the court erred and did not effectively revoke defendant’s probation before it expired on December 16, 2004, we find defendant is estopped from asserting lack of jurisdiction on appeal. (Griffin, supra, 67 Cal.2d 343.) In Griffin, the defendant was placed on probation for three years and did not perform well while on probation. Approximately 18 days before the 3-year period was to expire, the defendant appeared before the court on a charge of violating his probation. Appearing at the hearing on the violation of probation, the defendant asked for a one-month continuance so that he could obtain private counsel. The court continued the matter beyond the three-year period. No one mentioned that the probation period was about to expire. Thereafter, following revocation of probation, defendant moved through new counsel to dismiss on the ground that the court had lost jurisdiction when the probationary period had expired. The trial court rejected this claim, and the California Supreme Court affirmed the trial court’s determination that the defendant was estopped from challenging the absence of jurisdiction in that case because “[b]y seeking a continuance to a time beyond the end of the probationary term petitioner asked the court to do in a manner that was in excess of jurisdiction what it could have done properly by immediately revoking probation and continuing the matter for a hearing and determination as to the alternatives of reinstatement of probation or imposition of sentence.” (Griffin, supra, 67 Cal.2d at pp. 348-349, emphasis added.)

Here, defendant’s actions in relation to the S9-09532 case prevent him from asserting lack of jurisdiction by the trial court. Specifically, defendant agreed to the dismissal of case No. F10542 in view of the sentence he received in case No. S9-09532, and his probation in his other two cases was terminated in light of his prison commitment. In addition, defendant’s counsel requested a sentencing date on the probation violation case beyond the December 16, 2004 expiration date, so that he could look into sentencing alternatives.

The record is clear that defendant and all other parties to this case were proceeding on the understanding that defendant’s probation was revoked in case No. S9-09532, that he would be sentenced on a probation violation, and that his other pending cases and probation violations would be disposed of as a result. The court, the district attorney and defense counsel all stated at various times on the record that probation was revoked and/or was tolled. At no time did defendant object to the sentencing date or the dispositions of the other matters on the ground that the court lacked jurisdiction in S9-09532.

Disposition

The judgment is affirmed.

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RUSHING, P.J.

WE CONCUR:

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PREMO, J.

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ELIA, J.

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