P. v. Stickney
Filed 9/15/06 P. v. Stickney CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
| THE PEOPLE, Plaintiff and Respondent, v. TY G. STICKNEY, Defendant and Appellant. | D047124 (Super. Ct. No. SCN079655) |
APPEAL from a judgment of the Superior Court of San Diego County, Joan P. Weber, Judge. Dismissed.
Ty G. Stickney entered a negotiated guilty plea to possessing methamphetamine (Pen. Code, § 11377, subd. (a)). On September 11, 1998, the court suspended imposition of sentence and placed him on three years' probation.
There was no further action in the case until September 20, 2001. On that date, the court entered an order summarily revoking probation for a "alleged new violation [that] occurred while [Stickney] was on [active] felony probation" and issued a bench warrant.
There was no further action in the case until June 21, 2004. On that date, the court found that the bench warrant had been cleared by arrest, again ordered that probation be summarily revoked, and remanded Stickney to the custody of the sheriff. On July 1, he admitted violating probation and the court formally revoked and reinstated probation. On October 15, it summarily revoked probation. On December 6, Stickney admitted violating probation and the court formally revoked and reinstated probation. On June 16, 2005, he admitted violating probation and the court formally revoked probation and remanded him to custody. On July 7, it reinstated probation and remanded him to custody. In August, it summarily revoked and reinstated probation and remanded him to custody.
On September 6, 2005, Stickney filed a timely (Cal. Rules of Court, rule 30.1(d)) notice of appeal from the July 7 order. In his appellant's opening brief filed on April 24, 2006, Stickney contends the court lacked jurisdiction to reinstate probation or order time in custody because the period of probation expired on September 10, 2001.
On April 25, 2006, the trial court referred to the "docket dated [September 20, 2001], nunc pro tunc and [found] that [Stickney] was not in violation of probation as probation expired on [September 10, 2001]." On June 20, 2006, Stickney's appellate counsel sent a letter to the trial court, saying the parties had agreed to a proposed order with the following language: "Probation terminated on September 10, 2001. Any court orders issued after September 10, 2001, that purported to reinstate, extend or revoke probation, or that reflect an admission to a violation of probation, are null and void." The letter explained: "The parties seek this order in recognition that the probation in this case terminated on September 10, 2001, and to clarify the multiple orders issued in the case following that termination date, and for the purpose of then requesting dismissal of the appeal now pending." On June 20, 2006, the court issued an order with the language proposed in the letter. On June 27, Stickney's appellate counsel sent a copy of the June 20 order to this court, along with a letter saying: "In view of the attached order, and its impact on the continuing viability or mootness of the appeal and the single issue raised on appeal, I request direction from the Court as to whether additional briefing is required." In a letter brief filed on July 17, Respondent conceded the trial court lacked jurisdiction to reinstate probation. Stickney has not asked this court to dismiss his appeal.
Because the probationary term expired on September 10, 2001, the September 20 order summarily revoking probation is void, as are all of the ensuing orders that were based on the presumption that Stickney was still on probation. (In re Daoud (1976) 16 Cal.3d 879, 882; People v. Tapia (2001) 91 Cal.App.4th 738.) Despite the pendency of this appeal, the trial court had jurisdiction to vacate the void orders. (People v. Blume (1960) 183 Cal.App.2d 474, 477, cited in People v. Karaman (1992) 4 Cal.4th 335, 346, fn. 11.) This it did, in essence, in its orders of April 25 and June 20, 2006. This appeal is therefore moot. (People v. Blume, supra, 183 Cal.App.2d at p. 478.)
DISPOSITION
The appeal is dismissed.
O'ROURKE, J.
WE CONCUR:
HALLER, Acting P. J.
IRION, J.
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