PEOPLE v. WAGNER







Filed 3/9/09






IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE, )
)
Plaintiff and Respondent, )
) S156537
v. )
) Ct.App. 3 C052049
DAVID ERIC WAGNER, )
) Yolo County
Defendant and Appellant. ) Super. Ct. No. CRF 03-6456
__________________________________ )

In this case we construe the statutory speedy sentencing provisions contained in Penal Code sections 1203.2a and 1381^[1] with regard to defendants who are placed on probation with the imposition of sentence suspended for one offense and who, while still on probation, are convicted of an unrelated misdemeanor or felony and imprisoned in either county jail or state prison on the unrelated offense. We also consider how the two statutes relate to each other.
For a defendant placed on probation with imposition of sentence suspended who is subsequently incarcerated for a second offense, section 1203.2a provides that the court that granted probation “shall have jurisdiction to impose [the suspended] sentence” if the probationer asks the probationary court to impose sentence “in his or her absence and without him or her being represented by counsel.” (§ 1203.2a.) Once the court receives a section 1203.2a request in a situation “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 orders terminating its jurisdiction over defendant in the case within 30 days after defendant has, in the manner prescribed by this section, requested imposition of sentence.” (Ibid., italics added.)
Section 1381 provides, in pertinent part, that a state prisoner may demand to be brought “for sentencing within 90 days” of giving appropriate notice to the district attorney where “any other indictment, information, complaint, or any criminal proceeding wherein the defendant remains to be sentenced” is currently pending. (Italics added.) “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.” (Ibid., italics added.)
We first consider whether section 1203.2a was the exclusive sentencing procedure available to defendant David Eric Wagner, when he was subsequently incarcerated after having been placed on probation with imposition of sentence suspended, or whether he “remain[ed] to be sentenced” under section 1381 and therefore properly asked to be brought to the original trial court “for sentencing” within the time constraints of section 1381. As to this issue, we shall hold that defendant had a choice to request speedy sentencing based on his probation violation under either section 1203.2a or section 1381.
We next consider whether, when a trial court fails to comply with the 90-day time requirement of section 1381 after an incarcerated probationer has made a proper section 1381 demand for sentencing, the court must dismiss the conviction underlying the original grant of probation or simply dismiss the pending probation revocation proceeding. As to this issue, we shall conclude that, when the trial court fails to comply with the 90-day time requirement of section 1381, it must dismiss the pending probation revocation proceeding, not the conviction underlying the original grant of probation.

I. FACTUAL AND PROCEDURAL BACKGROUND

On October 31, 2003, in Yolo County, defendant pleaded no contest to unlawfully transporting methamphetamine (Health & Saf. Code, § 11379, subd. (a)), and he admitted he had a prior conviction involving a controlled substance. (Health & Saf. Code, § 11370.2.) The trial court placed defendant on probation for three years under the provisions of Proposition 36, requiring participation in a drug treatment program. The court then suspended the imposition of sentence. On June 7, 2004, the 2003 grant of probation was summarily revoked. On October 29, 2004, defendant waived a hearing on formal revocation and admitted the alleged violation. The court reinstated probation that same day.
On February 2, 2005,^[2] in an unrelated case in Sacramento County, defendant was convicted of receiving stolen property (§ 496, subd. (a)) and possessing a controlled substance. (Health & Saf. Code, § 11377, subd. (a).) That trial court sentenced him to 16 months in state prison. The Yolo County probation office then filed a petition to revoke defendant’s probation based on the new felony convictions on July 12, and on July 19 the Yolo Superior Court summarily revoked defendant’s probation and issued a bench warrant for his arrest.
On July 19, a prison counselor advised defendant that a detainer had been filed against him, that he was wanted by the West Sacramento Police Department “on charges of [Health and Safety Code section] 11379 (a),” and that he could ask for a disposition of “untried charges in accordance with Section 1381 [Penal Code].”^[3] On July 22, defendant mailed a section 1381 trial and sentencing notice and demand regarding his “Violation Prop 36 Case” to the Yolo County District Attorney. He signed a printed form, which referenced the instant case and demanded “a hearing and trial of said criminal action as prescribed by section 1381.” The demand was stamped as received by the Yolo County District Attorney Office on July 26.
In response to defendant’s section 1381 demand, the Yolo Superior court filed an order for removal ordering the sheriff to bring defendant from state prison to court to appear on the pending criminal proceeding. Defendant appeared in court on October 6, and requested that the probation matter be set for hearing and a preadmission report. The prosecutor in open court then mistakenly stated that her office had received defendant’s section 1381 demand on July 28. Based on that statement, the court clerk calculated section 1381’s 90-day deadline as October 26, rather than the correct date, which was October 24. Accordingly, the court set the probation revocation hearing for October 25, the 91st day after the receipt of defendant’s section 1381 demand.
On October 25, defense counsel informed the court defendant had completed his prison sentence and was being held in custody only on the probation violation. Defense counsel noted a potential section 1381 or section 1203.2a timeliness issue and asked for time to file a “brief to dismiss because of the lack of jurisdiction” because sections “1203.2[a] and 1381 have time requirements.” The following day, defense counsel reiterated that “[t]his is the 1381 case.” On October 26, counsel entered a prospective time waiver to brief the timeliness issue after the prosecutor agreed it would not affect whether “the time has expired” to proceed with the probation violation.
At the hearing on December 2, defense counsel did not brief or orally argue the motion to dismiss under section 1381. Instead, after defendant testified that the prison counselor “decides whether you need a 1381” and instructs on how to proceed with the request, defense counsel claimed defendant’s section 1381 demand must be deemed a section 1203.2a request and that the more stringent “30-day clock” of section 1203.2a had run by the time of the scheduled September 8 hearing.^[4] Counsel claimed due process required dismissal because defendant sent a notice as instructed by a state employee and should not have been penalized for any defect in the notice.
The Yolo Superior Court rejected these arguments, reasoning that defendant had not made a demand to be sentenced within 30 days as required by section 1203.2a. Defendant then admitted the probation violation, and the court revoked probation and imposed a five-year prison sentence for defendant’s 2003 conviction and accompanying enhancement.
The Court of Appeal reversed. It reasoned (1) the speedy sentencing rights provided by both sections 1381 and 1203.2a apply to a probation revocation proceeding where imposition of sentence had been suspended, (2) the Yolo Superior Court sentenced defendant in the probation revocation proceeding beyond the 90-day time period mandated by section 1381, (3) “[b]ecause counsel was ineffective in failing to timely move to dismiss, the revocation proceeding must be voided (as it should have been dismissed on this jurisdictional basis) and the sentence imposed at that proceeding must be vacated,” and (4) “under section 1387 the People may refile the probation revocation proceeding, obtain a summary revocation of probation, and seek a revocation order and sentence (which accounts for all time served) before defendant’s tolled probationary period ends on November 9, 2007.”
Defendant and the Attorney General separately petitioned for review. We granted their petitions.

II. DISCUSSION

A. Background

1. The Relevant Statutes.

a. Section 1381.

As originally enacted in 1931, section 1381 provided that a state prisoner may demand to be brought to trial within 90 days of giving appropriate notice to the district attorney where any other indictment or information was currently pending. (Stats. 1931, ch. 486, § 1, p. 1060.)
In 1971, section 1381 was amended to “[p]romote the speedy disposition of pending sentencings for defendants imprisoned in this state,” and to “[a]id in the rehabilitation of such defendants by providing a means . . . to determine the length of their imprisonment on charges for which sentencing has not been accomplished.” (Cal. Public Defender Assn., dig. of Sen. Bill No. 1508 (1971 Reg. Sess.) as introduced Apr. 16, 1971, p. 2; Assem. Com. on Criminal Justice, analysis of Sen. Bill No. 1508 (1971 Reg. Sess.) as introduced Apr. 16, 1971 [incorporating same].) That same year, the sanction for violating section 1381 was changed from dismissal of the “charge” to dismissal of the “action.” (Stats. 1971, ch. 1556, § 1, p. 3079.) With the 1971 amendments to section 1381 and to its counterpart, section 1381.5 (for those incarcerated in federal custody), the Legislature intended to conform the two sections to the decision in People v. Brown (1968) 260 Cal.App.2d 745, 751, which found that “the imposition of sentence is an essential part of the speedy trial guaranteed to all accused.” (Quoted by Cal. Public Defender Assn., dig. of Sen. Bill No. 1508 (1971 Reg. Sess.) as introduced Apr. 16, 1971, p. 2, italics added.)
In relevant part, section 1381 now provides: “Whenever a defendant has been convicted, in any court of this state, of the commission of a felony . . . and has been sentenced to and has entered upon a term of imprisonment in a state prison . . . and at the time of the entry upon the term of imprisonment . . . there is pending, in any court of this state, . . . 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 . . . 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 . . . and his or her desire to be brought . . . 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, on motion or suggestion of the district attorney, or of the defendant . . . , or on its own motion, dismiss the action.”
b. Section 1203.2a
When a defendant is placed on probation, the trial court has two options. It may choose to select a particular sentence, within the available sentencing range, that would go into effect if the grant of probation is subsequently revoked and not reinstated. The court revoking probation under those circumstances must impose the sentence previously imposed at the time of the grant of probation. This option is referred to as suspending the execution of sentence. Alternatively, the court granting probation may choose not to set a particular sentence that would be imposed if the grant of probation is subsequently revoked and not reinstated. In that case, the court grants probation and then suspends the imposition of sentence. The court revoking probation and imposing sentence may choose any term of confinement within the statutory range based upon the convictions and enhancements underlying the original grant of probation. This option is referred to as suspending the imposition of sentence.
Since it was enacted in 1941, section 1203.2a has provided speedy sentencing procedures for probationers incarcerated for another offense. It provides one set of procedures for probation with the imposition of sentence suspended and other procedures for probation with the execution of sentence suspended.^[5] As relevant here, section 1203.2a provides that, “[i]f any defendant who has been released on probation is committed to a prison in this 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 counsel, or by himself or herself in writing, if . . . the defendant . . . states that he or she wishes the court to impose sentence in the case in which he or she was released on probation, in his or her absence and without him or her being represented by counsel. [¶] The probation officer may, upon learning of the defendant’s imprisonment, and must within 30 days after being notified in writing . . . , report such commitment to the court which released him or her on probation. [¶] . . . If sentence has not been previously imposed, and if the defendant has requested the court . . . to impose sentence . . . in his or her absence and without the presence of counsel to represent him or her, 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 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, in the manner prescribed by this section, requested imposition of sentence. [¶] Upon imposition of sentence hereunder the commitment shall be dated as of the date upon which probation was granted. If the defendant is then in a state prison for an offense committed subsequent to the one upon which he or she has been on probation, the term of imprisonment of such defendant under a commitment issued hereunder shall commence upon the date upon which defendant was delivered to prison under commitment for his or her subsequent offense. [¶] In the event the probation officer fails to report such commitment to the court or the court fails to impose sentence as herein provided, the court shall be deprived thereafter of all jurisdiction it may have retained in the granting of probation in said case.” (Italics added.)

2. The Conflict in our Appellate Courts

There currently exist two conflicts in our appellate courts regarding these two statutes. One court has held that a defendant placed on probation with the imposition of sentence suspended must proceed under section 1203.2a , while others have held that a defendant may choose to request speedy sentencing under section 1381 or its counterpart for federal prisoners, section 1381.5.^[6] With regard to the second conflict, assuming a defendant placed on probation with the imposition of sentence suspended may request speedy sentencing under section 1381 or section 1381.5, some courts have assumed that the “dismiss the action” consequence of failing to sentence such a defendant within the 90-day statutory limit requires dismissal of the probation violation proceedings, while one court has assumed that it requires dismissal of the convictions underlying the grant of probation. This opinion will address and resolve both conflicts.

3. The Relevant Case Law

Two years after section 1381 was amended to include speedy sentencing rights for a defendant serving a state prison commitment who has pending a criminal proceeding wherein he or she “remains to be sentenced,” an appellate court considered the case of defendant Rudman, who, while on felony probation in Orange County with imposition of his sentence suspended, was convicted of a felony in another county and was imprisoned as a result of that felony conviction. (Rudman v. Superior Court (1973) 36 Cal.App.3d 22, 24.) Rudman requested a hearing on his probation revocation in Orange County within 90 days under section 1381, but he did not get one. (Rudman, at pp. 23-25.) Rejecting the People’s claim that the defendant was required to comply with section 1203.2a instead of section 1381, Rudman reasoned that “a defendant now has the option as to which procedure he wishes to follow. Under section 1381, he may demand sentencing at which he may appear and defend, in person and with counsel. Under the provisions of section 1203.2a, he may choose to waive his right to be present and represented by counsel and allow the court to impose sentence in his absence and without his being represented by counsel.” (Rudman, at p. 27.) Rudman explained that, although “both sections contemplate speedy sentencing,” they do not conflict with each other because they “ ‘were designed for different purposes.’ ” (Ibid.) It concluded that, “[s]ince Rudman was not given a hearing under section 1381 within 90 days of his demand and he did not consent to any delay, the violation of probation hearing must be dismissed.” (Ibid.) The court issued a writ of mandate compelling the superior court to set aside its order revoking probation. (Id. at pp. 27–28.)
Since Rudman, most appellate cases considering the issue have agreed that a defendant placed on probation with imposition of sentence suspended and then incarcerated on a second charge may demand speedy sentencing in a pending probation revocation proceeding under either section 1381 or section 1203.2a. (See, e.g., People v. Johnson (1987) 195 Cal.App.3d 510, 514 [“section 1381 provides an alternative procedure [to section 1203.2a] under which a probationer imprisoned for a subsequent offense may assert a right to prompt disposition of the earlier offense”] and People v. Ruster (1974) 40 Cal.App.3d 865 [same], both disapproved on other grounds in In re Hoddinott (1996) 12 Cal.4th 992, 1005.)
The majority in People v. Broughton (2003) 107 Cal.App.4th 307 (Broughton) disagreed with Rudman when it considered whether probationer Broughton was entitled to demand speedy sentencing under section 1381.5. While on felony probation with the imposition of sentence suspended in state court on two cases, Broughton violated her probation and began serving a federal commitment. While in federal custody, she filed with the district attorney a request for speedy sentencing under section 1381.5. Once she was released from federal custody, she moved to dismiss her state criminal actions based on the district attorney’s failure to comply with section 1381.5. The trial court denied the motion and reinstated its previous orders of probation with a county jail condition. The Court of Appeal majority affirmed, holding that the speedy sentencing provisions of section 1381.5 apply “only to defendants who have not been . . . afforded an initial sentencing hearing following conviction, not probationers awaiting a probation revocation hearing.” (Broughton, at p. 311, italics added.) The majority acknowledged that, “if the trial court at a sentencing hearing suspends imposition of sentence and places the defendant on probation, the defendant has not yet been sentenced” (ibid.), but it reasoned that section 1381.5 was intended to apply only to persons whose cases never had been reduced to a “final, appealable order.” (Broughton, at p. 322.) Noting that an order granting probation is deemed to be “ ‘a final judgment “ ‘ from which an appeal may be taken (id. at p. 320), Broughton concluded that “a defendant who has been placed on probation has already been brought before the court ‘for sentencing,’ ” (id. at p. 317) and does not remain “to be sentenced” within the meaning of section 1381 or section 1381.5. (Broughton, supra, 107 Cal.App.4th at pp. 319–320.)
In defendant’s case, the Court of Appeal agreed with Rudman and criticized the reasoning of Broughton’s majority. For the reasons stated below, we agree with the Court of Appeal and with Rudman that (1) a defendant placed on probation with imposition of sentence suspended who is subsequently imprisoned on another charge may opt to demand speedy sentencing under section 1381 rather than under section 1203.2a, and (2) the consequence for the probationary court’s failure to meet the 90-day time limit set forth in section 1381 is only dismissal of the probation revocation proceedings, and not the dismissal of the convictions underlying the grant of probation.

TO BE CONTINUED AS PART II….

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