P. v. Cardenas

Filed 6/3/08 P. v. Cardenas CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

Brandon Joseph Cardenas appeals from a judgment imposing a previously suspended sentence on his conviction of possession of methamphetamine for sale (Health & Saf. Code,  11378) and selling methamphetamine (Health & Saf. Code,  11379, subd. (a)). He contends that the trial court erred in imposing a prison sentence because it failed to comply with Penal Code section 1203.2a. The Attorney General concedes the error. We vacate the prison sentence.

I. FACTUAL BACKGROUND

On August 10, 2004, defendant pled guilty to possessing methamphetamine for sale and selling methamphetamine. On October 19, 2004, the court sentenced defendant to the term of two years in state prison on the sale offense and to 16 months on the possession count. The court suspended execution of sentence and placed defendant on probation for a term of three years.

On January 12, 2007, the California Substance Abuse Treatment Facility and State Prison at Corcoran (Corcoran) informed the Del Norte County Probation Department that defendant was incarcerated at the prison on an unrelated case. The probation department received the notification on February 1, 2007, but did not notify the court of the incarceration until May 10, 2007.

On July 24, 2007, defendant argued that the court had no jurisdiction to sentence him because the probation department failed to comply with Penal Code section 1203.2a, which required it to notify the court of his subsequent incarceration within 30 days. The court disagreed and sentenced defendant to serve the previously suspended sentence of two years on the methamphetamine sale offense and imposed a concurrent 16-month term on the methamphetamine possession count. The court further ordered that the sentence be served concurrently with the sentence defendant was serving on the unrelated case from Yolo County.

II. DISCUSSION

Penal Code section 1203.2a provides in relevant part: 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. [] . . . 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. The statute provides a mechanism to permit the probationary court to consider the imposition of a concurrent sentence and to  preclude[] inadvertent imposition of consecutive sentences by depriving the court of further jurisdiction over the defendant when the statutory time limits are not observed. (In re Hoddinott (1996) 12 Cal.4th 992, 999.)

In In reHoddinott, supra, 12 Cal.4th 992 at page 998, our Supreme Court held that [p]ursuant to the plain language of the [Penal Code section 1203.2a], if a probation officer fails to notify the probationary court after receiving written notice of the probationers subsequent commitment, that court loses jurisdiction to impose sentence on the original offense. The court further held that [t]he probation officers 30-day reporting requirement is jurisdictional and applies once the defendant or other specified person has notified the probation officer in writing of the probationers subsequent state prison commitment . . . . (Id. at p. 1005.)

Here, the record reflects that the probation department received Corcorans notification of defendants prison commitment on February 1, 2007. The court, however, was not notified that defendant was in prison until May 10, 2007, well beyond the 30-day reporting requirement set forth in Penal Code section 1203.2a. Due to the probation departments failure to comply with Penal Code section 1203.2a, the court was without jurisdiction to impose the sentence in the present case. (Hoddinott, supra, 12 Cal.4th at p. 998.) The Attorney General concedes the error. We therefore vacate the sentence imposed.

III. DISPOSITION

The courts July 24, 2007 judgment is vacated.

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RIVERA, J.

We concur:

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RUVOLO, P.J.

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SEPULVEDA, J.

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