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
__________________________________ )

STORY CONTINUE FROM PART I….

B. Analysis

1. Section 1203.2a is not the Exclusive Speedy Sentencing Procedure Available to Incarcerated Probationers

We find nothing in section 1203.2a’s language or legislative history that mandates it is the exclusive speedy sentencing procedure available to a defendant placed on probation with imposition of sentence suspended and then incarcerated for another offense.

“The purpose of section 1203.2a is to prevent inadvertent consecutive sentences which would deprive defendant of the benefit of section 669, providing that sentence shall be concurrent unless the court expressly orders otherwise. [Citations.]” (People v. Ruster, supra, 40 Cal.App.3d at p. 870.) Unlike section 1381’s speedy sentencing procedure under which the incarcerated probationer asks to be brought to court to litigate the probation revocation and sentencing proceeding with representation of counsel, section 1203.2a requires an incarcerated probationer to give up the right to appear in court and the right to counsel during the probation revocation and sentencing proceeding. Section 1203.2a provides incentives for giving up the right to a personal appearance and representation by counsel, including, for example, the right to obtain sentencing more quickly than under the speedy sentencing time requirements set forth in section 1381, and the right to have any term of imprisonment imposed thereunder “commence upon the date upon which defendant was delivered to prison under commitment for his or her subsequent offense.” (§ 1203.2a.)
“[R]equests for sentencing pursuant to section 1203.2a must be in strict compliance with that section. [Citations.] . . . [I]f the court pronounces judgment in the absence of such a request and waiver, it violates the defendant’s constitutional rights to have the assistance of and to be personally present with counsel. (People v. Ruster, supra, 40 Cal.App.3d at p. 871.)” (People v. Willett (1993) 15 Cal.App.4th 1, 7.) “Under section 1203.2a, there is no prescribed time limit within which the probation officer and the court must act when imposition of sentence was previously suspended and there is no request for sentence, waiving personal appearance, by the probationer. . . . In a case where imposition of sentence was suspended, section 1203.2a permits a probationer to waive personal appearance and to request sentencing in his absence, which request initiates a 30-day period in which the court must act. [Citation.]” (People v. Johnson, supra, 195 Cal.App.3d at p. 515, italics added.)
Nothing in the language of section 1203.2a precludes the Legislature from providing an alternative procedure in which an incarcerated probationer may demand speedy sentencing while retaining his or her right to be present with counsel when sentence is imposed. Section 1381 now provides that an incarcerated defendant can demand to be brought to any court in which he or she has pending “any criminal proceeding wherein the defendant remains to be sentenced.” The plain language of section 1381 encompasses a defendant placed on probation with imposition of sentence suspended and subsequently incarcerated for another offense because, “if the trial court at a sentencing hearing suspended imposition of sentence and places the defendant on probation, the defendant has not yet been sentenced.” (Broughton, supra, 107 Cal.App.4th at p. 311.) Moreover, it would make sense for the Legislature to give incarcerated probationers the choice between the quick and easy procedure of section 1203.2a, or the slower procedure of section 1381 under which the probationer retains the right to appear with counsel.
As argued by defendant in rebuttal to the People’s oral argument, an incarcerated probationer serving a lengthy term of imprisonment on an unrelated case may wish to waive the right to counsel and his or her personal appearance at sentencing on a probation violation when the maximum prison sentence that could be imposed on the violation is less than the sentence being served. Alternatively, an incarcerated probationer who is serving a minimal prison sentence but faces a potentially much longer prison term on a probation violation, may wish to assert his or her right to appear in court with counsel in order to argue for a mitigated term or the striking of an enhancement in addition to requesting a concurrent sentence.
As discussed further below, we find no reason not to give effect to the plain language of both section 1203.2a and section 1381. Moreover, “[o]ur common practice is to ‘construe[] statutes, when reasonable, to avoid difficult constitutional questions.’ (LeFrancois v. Goel (2005) 35 Cal.4th 1094, 1105.)” (In re Smith (2008) 42 Cal.4th 1251, 1269.) Consistent with that practice, we construe section 1203.2a to provide one procedure, but not a mandatory or exclusive procedure, for a defendant placed on probation with the imposition of sentence suspended and then incarcerated to request speedy sentencing on his or her original offense.

2. Section 1381 Also Applies to Incarcerated Probationers

Nothing in either section 1203.2a or section 1381 suggests that an incarcerated probationer must waive counsel and the right to appear in order to receive speedy sentencing. Instead, “where probation has been granted and the proceedings have been suspended without entry of judgment [the probationer] is subject to no disabilities whatsoever except those specifically declared by some other provision of law or affirmatively prescribed by the court as terms or conditions of probation. The probationer in [this] case still retains his ordinary civil rights, unless the court has restricted them, among them being as a matter of law the right to a hearing and arraignment, with counsel, before judgment [and imposition of sentence] in the event that he is charged with a violation of the terms of his probation order. (In re Levi (1952), supra, 39 Cal.2d 45-46.)” (People v. Banks (1959) 53 Cal.2d 370, 386-387; see also Boles v. Superior Court, supra, 37 Cal.App.3d at pp. 483-484.)
By its plain language, section 1381 appears to apply to incarcerated probationers facing a probation revocation based on the subsequent conviction that led to the current incarceration. It applies to any pending “criminal proceeding wherein the defendant remains to be sentenced.” (Ibid.) We see no reason not to give effect to this plain language.
“Under settled canons of statutory construction, in construing a statute we ascertain the Legislature’s intent in order to effectuate the law’s purpose. (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1386-1387.) We must look to the statute’s words and give them their usual and ordinary meaning. (DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 601.) The statute’s plain meaning controls the court’s interpretation unless its words are ambiguous.” (Green v. State of California (2007) 42 Cal.4th 254, 260.)
As the Court of Appeal noted, “the principal purpose ‘of section 1381 “is to permit a defendant to obtain concurrent sentencing at the hands of the court in which the earlier proceeding is pending, if such is the court’s discretion.” ’ ”
Here, the plain meaning of the phrase “there is pending . . . any criminal proceeding wherein the defendant remains to be sentenced” (§ 1381) includes a probation revocation proceeding in which the imposition of sentence was suspended when probation was granted. We note that even the Broughton majority, while ultimately interpreting this phrase to mean the “initial sentencing hearing” rather than the sentencing hearing following probation revocation, conceded that, “if the trial court at a sentencing hearing suspended imposition of sentence and places the defendant on probation, the defendant has not yet been sentenced.” (Broughton, supra, 107 Cal.App.4th at p. 311.)^[1]
Nothing in the plain language of section 1381 or 1381.5 suggests that the sections were intended to exclude defendants who were placed on probation with the imposition of sentence suspended. The Broughton majority based the exclusion of such defendants, in part, on the existence of section 1203.2a’s speedy sentencing procedures for situations in which the imposition or the execution of sentence was suspended. Again, we agree with the Court of Appeal that “the Broughton majority failed to account for substantive distinctions between sections 1381 and 1203.2a. [Citation.] Under section 1203.2a, a defendant may request imposition of sentence only if he waives the right to be present and have counsel represent him at the hearing; in other words, speedy sentencing under section 1203.2a is sentencing in absentia. In contrast, section 1381 gives the defendant an opportunity to appear before the court with counsel, so that he may defend against the probation revocation charges, the sentence, or both. [Citations.]” Applying the plain meaning doctrine to the relevant portion of section 1381, we conclude that, “[d]uring the period that the imposition of judgment and sentence is suspended a defendant ‘remains to be sentenced’ within the contemplation of section 1381. [Citation.]” (People v. Ruster, supra, 40 Cal.App.3d at p. 872.)

3. Dismissal of Pending Probation Revocation Proceeding is the Consequence for Failing to Comply with Section 1381

Broughton reached a different conclusion than the Rudman court. The Broughton majority believed that section 1381.5 entitled a defendant “to be ‘brought . . . for sentencing’ within the time constraints of section 1381.5, with the consequence of the failure to do so dismissal of the underlying conviction.” (Broughton, supra, 107 Cal.App.4th at p. 316, italics added.)^[2] After acknowledging that any statutory construction analysis “begin[s] by examining the language of the statute,” Broughton relied on the “ ‘ “principle of statutory interpretation that language of a statute should not be given a literal meaning if doing so would result in absurd consequences which the Legislature did not intend.” [Citations.]’ ” (Broughton, supra, 107 Cal.App.4th at p. 317.) The Broughton majority stated that, “[i]f sections 1381 and 1381.5 were to apply to probation revocation hearings, the ‘action,’ not the pending proceeding, must be dismissed if the defendant is not brought to hearing in the manner prescribed by those sections. Such a dismissal would lead to the peculiar result that a probationer could have a conviction dismissed under a ‘speedy trial’ statute months or even years after the conclusion of his or her trial and appearance at a timely sentencing hearing at which imposition of sentence was waived in favor of probation. [¶] In tacit recognition that [the Legislature could not have intended such a result, the Rudman court] simply ignored the express statutory command to dismiss ‘the action’ and, without any analysis or explanation, directed the trial court to dismiss only the probation violation charge. [Citation.] A far more reasonable construction of the statute is to limit its application to defendants awaiting an initial sentencing hearing.” (Broughton, supra, 107 Cal.App.4th at p. 317.) In this statement, in the course of reaching its conclusion that section 1381 applies only to “defendants awaiting an initial sentencing hearing,” the Broughton majority simply assumed, without significant analysis, that the sanction for violating the 90-day rule of section 1381 is dismissal of the original conviction. That assumption is not entitled to much weight because the “summary and conclusory nature of [a] decision . . . , virtually devoid of reasoning, undermines its status as substantial authority.” (City of Berkeley v. Superior Court (1980) 26 Cal.3d 515, 533.)
In any event, we conclude that Broughton’s statutory interpretation may “ ‘lead to absurd results’ ” that “ ‘are to be avoided.’ ” (People v. Loeun (1997) 17 Cal.4th 1, 9.) The language at issue includes the 1971 amendments to section 1381 and reads, in pertinent part, as follows: “Whenever a defendant has been convicted . . . [of a felony or misdemeanor], . . . and at the time of entry upon the term of imprisonment 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, . . . . [i]n 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.” (§ 1381, italics added.)
In this context, the phrase “dismiss the action” refers back to the action that is pending, in this case, the probation revocation proceeding. (§ 1381.) The 1971 addition of the phrases “any criminal proceeding wherein the defendant remains to be sentenced” and “or for sentencing” necessitated a concomitant modification of the consequence for failure to meet the 90-day requirement from “dismiss the charge,” which would apply if there is pending an “indictment, information, complaint,” to a word that would encompass both dismissal of the charges and dismissal of “any criminal proceeding wherein the defendant remains to be sentenced.” (Ibid.) As the Court of Appeal aptly noted, “Black’s Law Dictionary defines ‘action’ broadly as a ‘civil or criminal judicial proceeding,’ (Black’s Law Dict. (7th ed. 1999) p. 28.) Under this definition, a probation revocation proceeding is an action.” Reading the above language as the Broughton majority suggests would mean that the failure to abide by the 90-day time requirement of section 1381 could force a court to dismiss the charges against a defendant who years earlier had either admitted the charges by a plea of guilty or no contest or was found guilty by trial. We conclude that the Legislature would not have intended such an absurd result when it expanded the speedy trial provisions in section 1381 to include “any proceeding wherein the defendant remains to be sentenced.” (§ 1381, italics added.)^[3]
We also disagree with Broughton’s claim that the “fundamental policies advanced by speedy trial statutes such as section 1381.5—avoiding prolonged imprisonment, limiting anxiety attendant to an unresolved criminal charge, reducing the effect of lapse of time on trial witnesses and providing the opportunity for imposition of concurrent sentence,” are not “similarly implicated” by a probationer.” (Id. at p. 319.) As noted above, one “purpose of section 1203.2a is to prevent inadvertent consecutive sentences” (People v. Ruster, supra, 40 Cal.App.3d at p. 870), thereby avoiding prolonged imprisonment and limiting anxiety attendant to an unresolved criminal matter.

3. Defendant’s Probation has not Terminated in this Case

In pertinent part, subdivision (a) of section 1387 provides that “[a]n order terminating an action pursuant to this chapter [which includes section 1381,] . . . is a bar to any other prosecution for the same offense if it is a felony . . . and the action has been previously terminated pursuant to this chapter . . . .”
We agree with the Court of Appeal that section 1387 allows the People “an opportunity to refile the probation revocation proceeding within defendant’s probationary period” after a dismissal of the revocation proceedings under section 1381. Section 1387 refers to an “action that has been previously terminated pursuant to this chapter” (§ 1387, subd. (a)), and actions to revoke probation that are dismissed under section 1381 for a violation of the 90-day rule are terminated under the same chapter (i.e., 8) as section 1387. While section 1387 does not by its terms say anything about the refiling of actions to revoke probation, we read the term “any other prosecution” as encompassing a second filing of an action to revoke probation. We have concluded that the “action” to be dismissed in case of a prisoner who was placed on probation with imposition of sentence suspended and was subsequently incarcerated on another charge who has sought but not received speedy sentencing under section 1381 is the proceeding to revoke probation and impose sentence. That holding could be unfair to prisoners if the only consequence of noncompliance with the 90-day requirement of section 1381 were the dismissal of the proceeding to revoke probation. Under such a rule, after a prisoner demanded sentencing under section 1381, the People or the court could neglect to act, the action could be dismissed after 90 days, and this cycle could occur repeatedly until the opportunity for concurrent sentencing was lost though the passage of time. Such an interpretation of the interplay between section 1381 and section 1387 would eviscerate section 1381 as a procedural protection and would frustrate the Legislature’s intent to “[p]romote the speedy disposition of pending sentencings” for imprisoned defendants. (Assem. Com. on Criminal Justice, analysis of Sen. Bill No. 1508 (1971 Reg. Sess.) as introduced Apr. 16, 1971.) Because section 1387 permits a single refiling of the petition to revoke probation at any time during a defendant’s probationary period, we consider whether defendant’s probation has terminated in this case.
The Court of Appeal concluded the actual date defendant’s probation would end was November 9, 2007. It first noted that defendant’s probation began on October 31, 2003, and that, absent any tolling, the People “would have lost the opportunity to refile the probation revocation proceeding under section 1387 after October 31, 2006, because a probation revocation order must naturally be made within the probationary period.” Noting that summary revocation of probation tolls the running of the probationary period (§ 1203.2, subd. (a).), the Court of Appeal then reasoned, “However, defendant’s probation was summarily revoked on two occasions during that three-year period, . . . from June 7, 2004, until October 29, 2004, when defendant was reinstated on probation, . . . [and] from July 12, 2005, to February 27, 2006, when defendant was sentenced to the five years in prison for the offenses underlying his Yolo County probation. The total period of tolling was 374 days.”
The People contend probation was never reinstated after it was summarily revoked on July 12, 2005. They count October 31, 2003 as “day one” of the three-year probationary period, or “1,095 days.” They argue “day 221 of that period elapsed 220 days later, on June 7, 2004. [¶] On June 7, 2004, probation was summarily revoked. . . . . [B]y statute [§ 1203.2, subd. (a),] the running of the period was tolled on the days between (but not including) June 7 and October 29. . . . [C]ounting October 29, 2004, as day 222 of the probationary period, it follows that day 478 of that period elapsed 256 days later, on July 12, 2005. [¶] On July 12, 2005, probation was again summarily revoked. Probation was never reinstated. Instead: (1) on February 17, 2006, [defendant] admitted he violated the conditions of probation; (2) on February 27, 2006, the court found [defendant] unsuitable for probation and denied his request for release on probation; and (3) on February 27, 2006, the court terminated its jurisdiction over [defendant] by committing him to state prison for the 2003 conviction. [¶] . . . [M]ore than 600 days remained of the three-year probationary period when the running of the period was tolled on July 12, 2005, and that period never resumed running.”
“The revocation, summary or otherwise, shall serve to toll the running of the probationary period.” (§ 1203.2, subd. (a).) Although we conclude that the probation revocation proceeding that was pending when defendant requested speedy sentencing must be dismissed under section 1381, the trial court did not have the benefit of hindsight. Probation was summarily revoked on July 12, 2005. On October 25, 2005, the trial court properly denied the motion to dismiss based on the section 1203.2a motion before it. The court’s decision, on February 27, 2006, not to reinstate probation and to sentence defendant to five years in state prison constituted a formal revocation that tolled the probationary period. (§ 1203.2, subd. (a).) As the People correctly point out, this is true because “the trial court’s probationary jurisdiction did not survive the commitment of [defendant] into the custody of the executive branch for incarceration. (People v. Karaman (1992) 4 Cal.4th 335, 344-345.)” In any event, in this case, where there is no statutory exception, “ ‘[t]he filing of a valid notice of appeal vests jurisdiction of the cause in the appellate court until determination of the appeal and issuance of the remittitur [citation] and deprives the trial court of jurisdiction to make any order affecting the judgment. [Citation.]” (People v. Lockridge (1993) 12 Cal.App.4th 1752, 1757.) The People are correct that, “even assuming the probationary period had continued to run between July 12, 2005, and March 1, 2006, the result would merely be that day 710 of the probationary period elapsed on March 1, 2006 (the date of the filing of the notice of appeal).^[4] That would still leave more than a year on the probationary period, to commence running once there was issuance of the remittitur.” We agree.^[5]

III. DISPOSITION

The judgment of the Court of Appeal is affirmed to the extent that it ordered Yolo County Superior Court to void the challenged probation revocation and sentencing proceeding (as it should have been dismissed on jurisdictional grounds) and vacate the sentence imposed at that proceeding. Defendant’s probation has been tolled, at a minimum, between June 7, 2004, and October 29, 2004, and from the date of his notice of appeal (March 1, 2006) until the appellate process is final and the remittitur issues. The matter is remanded to the Court of Appeal for further proceedings consistent with this decision.
CHIN, J.
WE CONCUR:


GEORGE, C.J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
MORENO, J.
CORRIGAN, J.

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Wagner
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 154 Cal.App.4th 81
Rehearing Granted

__________________________________________________________________________________

Opinion No. S156537
Date Filed: March 9, 2009
__________________________________________________________________________________

Court: Superior
County: Yolo
Judge: Stephen L. Mock

__________________________________________________________________________________

Attorneys for Appellant:

John Doyle, under appointment by the Supreme Court, for Defendant and Appellant.




__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer and Edmund G. Brown, Jr., Attorney General, Mary Jo Graves and Dane R. Gillette, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Charles A. French, Angelo S. Edralin, Brian G. Smiley and David Andrew Eldridge, Deputy Attorneys General, for Plaintiff and Respondent.








Counsel who argued in Supreme Court (not intended for publication with opinion):

John Doyle
Pier 29 Annex
San Francisco, CA 94111
(415) 397-7660

David Andrew Eldridge
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 324-6291




Publication Courtesy of California attorney referral.
Analysis and review provided by Vista Property line Lawyers.
San Diego Case Information provided by www.fearnotlaw.com

---