P. v. Ragan

Filed 9/11/07 P. v. Ragan CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Siskiyou)

----

About 9:00 a.m. on July 20, 2003, defendant Zachary James Ragan drove a stolen car at 91 miles per hour on Interstate 5. When a highway patrol officer tried to stop defendant, defendant increased his speed to 110 miles per hour, passed cars on the shoulder and center divider and eventually crashed. He ran from the crash scene but was found in the Shasta River. His eyes were bloodshot and glazed. The car was severely damaged.

On August 5, 2003, defendant entered a negotiated plea of guilty to felony evading (Veh. Code,  2800.2), unlawful driving or taking a vehicle, as amended to a misdemeanor (Veh. Code, 10851, subd. (a)), and driving under the influence, a misdemeanor (Veh. Code,  23152, subd. (a)) in exchange for dismissal of the remaining counts--receiving stolen property, a felony; resisting an officer, a misdemeanor; driving without a license, a misdemeanor; being under the influence of a controlled substance, a misdemeanor; speeding at more than 100 miles per hour, an infraction; failure to provide evidence of financial responsibility, an infraction--and felony local disposition with referral to behavioral health.

On September 2, 2003, the court suspended imposition of sentence and granted probation for a term of three years subject to certain terms and conditions including 120 days in county jail, $3,590 in victim restitution, a $1,682 fine, a $200 restitution fine, $340 for the preparation of the probation report, a $148 booking fee and $210 for counsels fees. In the event of revocation of probation, the court ordered that the 120 days would count toward the sentences on the misdemeanor offenses which would run consecutive to the felony evading.

An affidavit for a warrant for defendants arrest filed February 2, 2004, alleged that defendant violated probation in that he failed to report to probation since his release from county jail on October 3, 2003. Defendant admitted violating probation. The court reinstated probation.

An order to show cause with respect to a second probation violation issued September 21, 2004, for failure to pay the fine and victim restitution and set a hearing date of October 15, 2004. Defendant failed to appear at the hearing and probation was summarily revoked. A warrant was issued. Defendant was in state prison on conviction(s) from another county, the Siskiyou County warrant was returned and the hold was dropped.

An order to show cause with respect to a third probation violation issued March 9, 2006, for failure to pay the fine and restitution and set a hearing date of April 6, 2006. Defendant failed to appear at the hearing, probation was summarily revoked and a bench warrant issued. On or about April 20, 2006, defendant was transferred to Siskiyou County jail after having completed a term in Butte County jail. At a hearing on May 2, 2006, defense counsel stated that he planned to file a motion raising a violation of defendants speedy trial rights and his rights under Penal Code section 1381 (hereafter section 1381). The prosecutor claimed that section 1381 did not apply to a violation of probation and could not apply to a future hold. The prosecutor added that defendant had several new offenses.

A petition to revoke probation filed May 16, 2006, alleged that defendant failed to obey all laws in that he was convicted of violating Penal Code section 664/Vehicle Code section 10851 on January 21, 2004, Penal Code section 12021, subdivision (a) on December 21, 2004, Health and Safety Code section 11364 on July 20, 2004, Health and Safety Code section 11377, subdivision (a) on July 20, 2004, and Penal Code section 242 on May 5, 2004.

At the hearing on May 16, 2006, the court summarily revoked probation, noting that defendants nonappearance was due to his custody status in Butte County jail on a parole hold.

At arraignment on June 7, 2006, defendant was ordered to appear on July 12, 2006, for a trial readiness hearing. Defendant failed to appear and a bench warrant was issued.

At the contested probation violation hearing on September 21, 2006, the prosecutor submitted documentation without objection from defense counsel reflecting defendants convictions cited in the May 16, 2006 petition. Defense counsel conceded that defendant was in violation of probation. Defense counsel did not file a motion concerning a violation of defendants speedy trial rights and rights under section 1381. Defense counsel sought reinstatement on probation based on an equities argument, submitting documentation in support of his request. In chronological order, the documentation reflects the following. On April 11, 2005, Siskiyou County District Attorney William Cornell notified defendant who was incarcerated at the Sierra Conservation Center in Jamestown that his notice and demand for trial (CDC 643) dated March 25, 2005, was defective and unenforceable because it had not been endorsed by a custodian or jailer at the California Correctional Center. On May 2, 2005, defendant signed an inmate notification of detainer receipt reflecting that defendant was wanted in Siskiyou County and a detainer was filed on January 20, 2005. Defendant was notified that if he wished to request a disposition of untried charges pursuant to section 1381, he should direct a written request to his[] institution records office. The receipt reflected that defendant was scheduled for release on January 22, 2006. Defendants copy of a letter dated June 8, 2005, from Sierra Conservation Center to Siskiyou County Sheriffs Department reflects that the sheriffs department requested that the warrant be returned and that a notation in corrections records would reflect that defendant was no longer wanted. The prosecutor stated that the defense documentation related to a violation of probation for failure to pay the fines and restitution and that the county elected not to transport defendant. The prosecutor claimed section 1381 did not apply and even if it did, the violation of probation could be refiled. Further, the prosecutor stated that a violation of probation based on defendants new convictions was not filed until he had been released and he never filed a section 1381 notice with respect to them. The prosecutor requested preparation of an updated sentencing report. Finding defendant in violation of probation by committing the new offenses, the court referred the matter for an updated sentencing report.

The probation officer recommended the low term of 16 months for the felony evading. The court denied continued probation and imposed 16 months for felony evading. Over defense objection, the court declined to reconsider its September 2, 2003 order making credits applicable to the misdemeanors. The court ordered credit for time served on the two misdemeanor counts. The court noted it had previously ordered defendant to pay a $200 restitution fine and $3,590 in victim restitution and added a $200 parole revocation restitution fine. The court found defendant had no ability to pay the $340 previously ordered for preparation of the presentence report. The court awarded 104 days (70 actual, 34 conduct) of presentence custody credit, declining to award credit towards the felony evading for the time defendant spent in jail from July 20, 2003 through October 3, 2003.^[1]

Defendant appeals. He did not obtain a certificate of probable cause (Pen. Code,  1237.5).

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief.

Defendant filed a supplemental brief. He claims that there had been a warrant for his arrest in this case while he was serving time in prison on another matter, that he filed a motion pursuant to section 1381, and the warrant was dropped. In January 2006, defendant states that he was released from prison and subsequently arrested on the probation violation in this matter. When he was sentenced to prison for 16 months, he claims the trial court denied credit for 114 days which is not fair in that he had been doing well in the community after his release in January 2006. We interpret defendants statements as challenging the trial courts implied ruling that his rights under section 1381 were not violated and the trial courts calculation of credits.

With respect to the credits, defendant entered a negotiated plea of guilty to felony evading, unlawful driving or taking a vehicle, as amended to a misdemeanor, and driving under the influence, a misdemeanor, in exchange for dismissal of the remaining six counts and felony local disposition. When he was granted probation on September 2, 2003, the court ordered that in the event of revocation of probation, the 120 days in jail imposed as a condition of probation would count towards the sentences on the misdemeanor offenses which would run consecutive to the felony evading. Defendant stated that he understood and accepted the terms and conditions of probation. Neither he nor defense counsel objected to the condition when it was imposed. When defendant was sentenced to state prison, the court reaffirmed its order, over defense objection, making credits applicable to the misdemeanors and declined to award credit towards the felony evading for the time defendant spent in jail from July 20, 2003 through October 3, 2003 (76 actual days and 38 conduct days for a total of 114 days). When defendant was originally granted probation, he accepted the terms and conditions of probation which included the courts order that the credits were applicable to the misdemeanors. He forfeited any objection and cannot be heard now to complain. (People v. Welch (1993) 5 Cal.4th 228, 234-235, 237.)

With respect to defendants claim pursuant to section 1381, the prosecutor argued that section 1381 was inapplicable to a violation of probation. People v. Broughton (2003) 107 Cal.App.4th 307 (Broughton) concluded two to one that Penal Code section 1381.5, applicable to a state probationer in federal custody, did not apply to a probation revocation proceeding but instead to a person awaiting trial or an initial sentencing hearing. (Broughton, supra, at pp. 316-317.) The Broughton majority rejected contrary authority which concluded that Penal Code sections 1381.5 or 1381 (applicable to a state prisoner) was available to a probationer because he or she remain[ed] to be sentenced (Broughton, supra, at p. 315; see People v. Johnson (1987) 195 Cal.App.3d 510, 514, disapproved on other grounds in In re Hoddinott (1996) 12 Cal.4th 992, 1005 (Hoddinott); Boles v. Superior Court (1974) 37 Cal.App.3d 479, 484; Rudman v. Superior Court (1973) 36 Cal.App.3d 22, 26-27); Broughton found the contrary authority employed an overly technical interpretation of section 1381 and section 1381.5 that is inconsistent with the statutes overall language and purpose and leads to anomalous consequences. (Broughton, supra, at pp. 315-316.)

We need not decide whether section 1381 is applicable. Assuming it is applicable, a defendant must strictly comply with section 1381, which requires a prisoner to give the district attorney written notice of his location of imprisonment and demand to be brought to trial. (People v. Clark (1985) 172 Cal.App.3d 975, 980-981.) Here, the record does not include defendants demand but the record does reflect that there were problems. The prosecutor notified defendant who was incarcerated at the Sierra Conservation Center in Jamestown that his notice and demand for trial dated March 25, 2005, was defective and unenforceable because it had not been endorsed by any custodian or jailer at the California Correctional Center. The record does not reflect that defendant ever corrected the problem. Further, the Siskiyou County warrant was withdrawn and the violation of probation dropped while defendant was serving time on convictions from another county. The prosecutor was free to file another violation of probation unless defendant shows actual prejudice. (Crockett v. Superior Court (1975) 14 Cal.3d 433, 437-442.) People v. Lowe (2007) 40 Cal.4th 937 concluded that a defendant cannot meet his initial burden of establishing prejudice from delay by showing only that the delay cost him concurrent sentencing in the current case to that already being served in another case. (Id. at pp. 942-943, 946, fn. 3, overruling People v. Martinez (1995) 37 Cal.App.4th 1589, 1594-1597.) Defense counsel never filed a motion to dismiss on grounds of a violation of section 1381 but instead, in support of his argument for reinstatement on probation, cited defendants attempts while incarcerated to resolve the violation of probation. While the court never specifically referred to defendants documentation, we can infer that the trial court concluded that there was no violation of section 1381. Simply put, defendant made no showing otherwise.

While section 1381 may or may not be applicable, [t]he second paragraph of [Penal Code] section 1203.2a provides: The probation officer may, upon learning of the defendants imprisonment, and must within 30 days after being notified in writing by the defendant or his or her counsel, or the warden or duly authorized representative of the prison in which the defendant is confined, report such commitment to the court which released him or her on probation. (Italics added.) This rule requires that a notice of probation revocation petition be given within a reasonable time after the alleged violation so that an incarcerated probationer may seek a prompt disposition of the earlier offense. [Citation.] (People v. Madrigal (2000) 77 Cal.App.4th 1050, 1053.)

Again, the record does not include defendants demand which appears to have been made under section 1381. The record does not include a demand for concurrent sentencing under Penal Code section 1203.2a which requires waiver of his right to counsel and his right to attend the proceeding. Even without such waivers, if a demand under section 1381 is construed as a demand under Penal Code section 1203.2a, the probation officer has a duty to advise the court if notified in writing of defendants confinement. (Pen. Code,  1203.2a; Hoddinott, supra, 12 Cal.4th at p. 1000; Broughton, supra, 107 Cal.App.4th at p. 323.) The record does not reflect that defendants demand under section 1381 was given to his probation officer. Therefore, we find defendant did not invoke his rights under Penal Code section 1203.2a.

Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.

DISPOSITION

The judgment is affirmed.

HULL, J.

We concur:

SIMS , Acting P.J.

BUTZ , J.

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^[1] The court awarded credit for the following time spent in Siskiyou County jail: March 24, 2004 through April 4, 2004, April 19, 2006 through May 2, 2006, and August 30, 2006 through October 10, 2006.