Filed 9/19/18 P. v. McDevon CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIRST APPELLATE DISTRICT
DIVISION THREE
| THE PEOPLE, Plaintiff and Respondent, v. CORBIN MCDEVON, Defendant and Appellant. |
A150955
(City & County of San Francisco Super. Ct. No. SCN217458)
|
Corbin McDevon contends the San Francisco Superior Court lost jurisdiction to revoke his mandatory supervision and order him to serve the remainder of his sentence in county jail pursuant to the Criminal Justice Realignment Act of 2011 (Realignment Act) because, he maintains, it had failed to act on a request for speedy sentencing he filed while incarcerated for a subsequent offense in San Mateo County. The statutory provisions McDevon invokes do not apply to mandatory supervision under the Realignment Act, so we affirm.
BACKGROUND
McDevon has a substantial criminal history. In February 2012 he pleaded guilty to four felonies and five misdemeanors and admitted having served a prior prison term. The San Francisco Superior Court sentenced him under Penal Code section 1170, subdivision (h)(5)(B)[1] to a four-year split sentence consisting of 180 days in county jail with the balance on mandatory supervision. McDevon was required to enter and complete a residential treatment program as a condition of mandatory supervision. He absconded from the program and a bench warrant issued.
McDevon was arrested on a new offense in San Mateo County in February 2014 for which he was sentenced to 998 days in county jail. In August 2014, while serving his sentence in San Mateo, he filed a section 1381[2] demand with the San Francisco District Attorney to have his sentence in this case run concurrent to the San Mateo sentence. The district attorney’s office did not act on the demand. On what appears to be an internal worksheet, a handwritten notation in the area for “DA Recommendation” states “DNR - ∆ on mandatory supervision. Keep BW outstanding.” McDevon remained in custody in San Mateo until September 2014, when he was transported to San Diego County in relation to another offense. He was released from custody in San Diego in April 2016, and arrested on the outstanding San Francisco bench warrant not long afterward.
In January 2017 McDevon filed a motion “to modify probation” in his San Francisco case, asking the court to terminate or dismiss his mandatory supervision (1) “[i]n light of the time [he] spent in custody and his compliance with the other elements of his probation”; and (2) because the district attorney’s office had failed to timely act on his section 1381 demand for speedy sentencing. The People argued that section 1381 does not apply to split sentences like McDevon’s, assessed under the Realignment Act, and that McDevon did not qualify for relief under the applicable statutory bases for modifying or revoking mandatory supervision. The trial court agreed. It ruled that section 1381 does not apply to mandatory supervision. It retained its jurisdiction, denied McDevon’s motion to modify or terminate, found he had violated mandatory supervision and ordered that he serve the remainder of his sentence in custody.
This appeal is timely.
DISCUSSION
McDevon contends the court lost jurisdiction to adjudicate his violation of mandatory supervision after the San Francisco District Attorney’s Office failed to act on his 2014 section 1381 sentencing request within 60 days of notice of his incarceration in San Mateo County. Although he no longer claims entitlement to relief under section 1381,[3] he asserts his request substantially complied with the applicable speedy trial statute, section 1203.2a, and therefore the court lost jurisdiction when it failed to act within the statutory period. He is mistaken.
Section 1203.2a provides procedures for service of sentences by probationers incarcerated for a subsequent offense.[4] But McDevon had been given a split sentence, not probation. “Under the Realignment Act, qualified persons convicted of nonserious and nonviolent felonies are sentenced to county jail instead of state prison. [Citation.] Trial courts have discretion to commit the defendant to county jail for a full term in custody, or to impose a hybrid or split sentence consisting of county jail followed by a period of mandatory supervision.” (People v. Catalan (2014) 228 Cal.App.4th 173, 178.) “A split sentence is a hybrid sentence in which a trial court suspends execution of a portion of the term and releases the defendant into the community under the mandatory supervision of the county probation department. Such sentences are imposed pursuant to Penal Code section 1170, subdivision (h)(5)(B)(i), a provision originally adopted as part of the ‘2011 Realignment Legislation addressing public safety.’ ” (People v. Camp (2015) 233 Cal.App.4th 461, 464, fn. 1.)
Even were we to construe section 1203.2a to apply to defendants sentenced to mandatory supervision, the Realignment Act itself expressly sets forth, and limits, the means by which mandatory supervision may be revoked or modified and does not include section 1203.2a among them. Under section 1170, subdivision (h)(5)(B), “The portion of a defendant’s sentenced term that is suspended pursuant to this paragraph shall be known as mandatory supervision, and, unless otherwise ordered by the court, shall commence upon release from physical custody or an alternative custody program, whichever is later. During the period of mandatory supervision, the defendant shall be supervised by the county probation officer in accordance with the terms, conditions, and procedures generally applicable to persons placed on probation, for the remaining unserved portion of the sentence imposed by the court. The period of supervision shall be mandatory, and may not be earlier terminated except by court order. Any proceeding to revoke or modify mandatory supervision under this subparagraph shall be conducted pursuant to either subdivisions (a) and (b) of Section 1203.2 or Section 1203.3.” (Italics added.) By its express terms, then, the Realignment Act precludes McDevon’s claim that he could invoke the procedures generally available through section 1203.2a to terminate or modify his mandatory supervision.
McDevon nonetheless asserts we should construe section 1203.2a to apply to defendants sentenced to split sentences because “a sentence to county jail under section 1170(h) is the functional equivalent of a state prison sentence.” We may not. “In construing any statute, ‘[w]ell-established rules of statutory construction require us to ascertain the intent of the enacting legislative body so that we may adopt the construction that best effectuates the purpose of the law.’ [Citation.] ‘We first examine the words themselves because the statutory language is generally the most reliable indicator of legislative intent. [Citation.] The words of the statute should be given their ordinary and usual meaning and should be construed in their statutory context.’ [Citation.] If the statutory language is unambiguous, ‘we presume the Legislature meant what it said, and the plain meaning of the statute governs.’ ” (Whaley v. Sony Computer Entertainment America, Inc. (2004) 121 Cal.App.4th 479, 484-485; People v. Manzo (2012) 53 Cal.4th 880, 885.) Here the Legislature unambiguously limited the statutory mechanisms by which mandatory supervision may be revoked or modified, and we may not disregard that express directive. For the same reason, we reject McDevon’s suggestion that broad language in an uncodified section of the Realignment Act[5] declaring the Legislature’s intent to provide a uniform supervision revocation process for probation, mandatory supervision, post release community supervision and parole supports his conclusion that section 1203.2a can be used to terminate mandatory supervision despite the clear statutory language. (See People v. Canty (2004) 32 Cal.4th 1266, 1280, citing People v. Allen (1991) 21 Cal.4th 846, 860-861 [uncodified legislative statements may provide guidance in construing a statute but do not confer power, determine rights or enlarge the scope of a measure].)[6]
People v. Mendoza (2015) 241 Cal.App.4th 764, on which McDevon relies, says nothing to the contrary. Mendoza was on probation for one offense when she committed another crime for which she was given a split sentence with mandatory supervision. While serving the county jail portion of her sentence she filed a section 1203.2a request for speedy sentencing in her probation case. (Id. at pp. 773-774.) The primary issue on appeal was whether section 1203.2a is available to probationers who are later sentenced to county jail under the Realignment Act or, alternatively, applies only to probationers sentenced on a subsequent offense to state prison. (Id. at p. 774.) The court of appeal held the benefits of section 1203.2a properly extend to defendants sentenced under the Realignment Act. (Id. at p. 794.) Because Mendoza involved a probationer who sought sentencing in her probation case, not in the case for which she was sentenced to mandatory supervision, neither section 1170, subdivision (h)(B)(5)’s limiting language nor section 1203.2a’s restriction to probationers was at issue. Mendoza, therefore, does not inform the analysis here.
In sum, McDevon did not qualify for section 1203.2a, so the District Attorney’s decision not to act on his sentencing request did not cause the court to lose jurisdiction. We therefore need not consider whether, as McDevon asserts, his section 1381 notice “substantially complied with the appropriate formalities” for seeking relief under section 1203.2a.
DISPOSITION
The judgment is affirmed.
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Siggins, P.J.
We concur:
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Pollak, J.
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Jenkins, J.
People v. McDevon, A150955
[1] Further statutory citations are to the Penal Code.
[2] Under section 1381, “Whenever a defendant has been convicted, in any court of this state, of the commission of a felony or misdemeanor and has been sentenced to and has entered upon a term of imprisonment . . . and at the time of the entry upon the term of imprisonment or commitment there is pending, in any court of this state, any other indictment, information, complaint or 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 to trial or 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 or commitment and his or her desire to be brought to trial or 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 . . . dismiss the action.”
[3] Correctly, as section 1381 authorizes a demand for speedy sentencing if the defendant serving a prison commitment “remains to be sentenced” in a prior pending case. Accordingly, only in that situation is dismissal required if the People fail to bring the defendant to trial or for sentencing within 90 days after appropriate notice. McDevon had been sentenced to a split four-year term, so he did not “remain[] to be sentenced.”
[4] Section 1203.2a provides: “If any defendant who has been released on probation is committed to a prison in this state or another state for another offense, the court which released him or her on probation shall have jurisdiction to impose sentence, if no sentence has previously been imposed for the offense for which he or she was granted probation, in the absence of the defendant, on the request of the defendant made through his or her counsel, or by himself or herself in writing . . . . [¶] . . . [¶] Upon being informed by the probation officer of the defendant’s confinement . . . the court shall issue its commitment if sentence has previously been imposed. If sentence has not been previously imposed . . . the court shall impose sentence and issue its commitment, or shall make other final order terminating its jurisdiction over the defendant in the case in which the order of probation was made. If the case is one in which sentence has previously been imposed, the court shall be deprived of jurisdiction over defendant if it does not issue its commitment or make other final order terminating its jurisdiction over defendant in the case within 60 days after being notified of the confinement. If the case is one in which sentence has not previously been imposed, the court is deprived of jurisdiction over defendant if it does not impose sentence and issue its commitment or make other final order terminating its jurisdiction over defendant in the case within 30 days after defendant has . . . requested imposition of sentence.” (§ 1203.2a, italics added.)
[5] “Section 2 of Stats.2012, c. 43 (S.B. 1023), provides: [¶] ‘SEC. 2. The Legislature finds and declares all of the following: [¶] “(a) It is the intent of the Legislature in enacting this act to provide for a uniform supervision revocation process for petitions to revoke probation, mandatory supervision, post release community supervision, and parole.” [¶] “(b) By amending subparagraph (b) of paragraph (5) of subdivision (h) of Section 1170 [and other provisions] to apply to probation revocation procedures under Section 1203.2 of the Penal Code, it is the intent of the Legislature that these amendments simultaneously incorporate the procedural due process protections held to apply to probation revocation procedures under Morrissey v. Brewer (1972) 408 U.S. 471, and People v. Vickers (1972) 8 Cal.3d 451, and their progeny.” ’ ” (Historical and Statutory Notes, 50C West’s Ann. Pen. Code (2015 ed.) foll. § 1170, p. 231.)
[6] If section 1203.2a was inadvertently excluded from section 1170, subdivision (h)(5)(B) in the Realignment Act, that oversight can be corrected by the legislature.
