P. v. LeFever









Filed 11/16/10 P. v. LeFever 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE, Plaintiff and Respondent, v. JAMES MITCHELL LeFEVER, Defendant and Appellant.

A125308 (Sonoma County Super. Ct. Nos. MCR-428341, MCR-434938, TCR-438487)

Defendant James Mitchell LeFever (appellant) was sentenced to seven years in state prison following the revocation of his probation. Pursuant to Penal Code section 1203.2a, he contends the trial court lacked jurisdiction to order execution of the previously imposed and suspended prison term. We reject the contention and affirm.
BACKGROUND
Since this appeal involves only issues regarding sentencing, a detailed recitation of background facts is unnecessary.
In October 2003, appellant pled no contest in Sonoma Superior Court case No. MCR-428341 (LeFever 1) to unlawful driving or taking a vehicle without the owner's permission (Veh. Code, § 10851, subd. (a)) in exchange for the dismissal of the remaining charges in that case, the dismissal of case No. MCR-429017 (LeFever 2) with a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754, 758), and a grant of probation. In December, the court suspended imposition of sentence and placed him on three years' probation with conditions including successful completion of a drug treatment program. Pursuant to the plea bargain, the remaining charges in LeFever 1 and LeFever 2 were dismissed.
On February 5, 2004, the probation department requested that the court summarily revoke appellant's probation in LeFever 1 for failing to obey all laws and failing to complete the previously ordered drug treatment program. Also on February 5, a complaint was filed in case No. MCR434938 (LeFever 3) charging appellant with taking a car without the owner's permission with a prior conviction for that offense (Veh. Code, § 10851, subd. (a); Pen. Code, § 666.5), receiving stolen property (Pen. Code, § 496d, subd. (a)), and misdemeanor driving without a valid license (Veh. Code, § 12500, subd. (a)). Appellant admitted violating his probation in LeFever 1 and pled guilty in LeFever 3 to taking a car without the owner's permission with a prior conviction for that offense (Veh. Code, § 10851, subd. (a); Pen. Code, § 666.5.) In exchange, it was agreed that the other charges in LeFever 3 would be dismissed and appellant would be placed on probation after suspending execution of a four-year prison term.
In March 2004, a complaint was filed in case No. TCR-438487 (LeFever 4) charging appellant with taking a car without the owner's permission with a prior conviction for that offense (Veh. Code, § 10851, subd. (a); Pen. Code, § 666.5). Appellant pled guilty to those charges. In exchange, it was agreed he would receive a one-year sentence consecutive to the sentences in LeFever 1 and LeFever 3, with execution suspended on the condition that he participate in residential drug treatment.
In June 2004, appellant was sentenced to five years eight months in state prison as follows: the upper four-year term in LeFever 3, plus a one-year term (one-third the midterm) in LeFever 4 plus an eight-month term in LeFever 1. Execution of sentence was suspended and appellant was placed on three years' probation on conditions including that he serve 12 months in jail and then be placed in residential treatment.
In August 2005, the probation department twice requested that the court summarily revoke appellant's probation due to his August 7 arrest for violating probation and failing to abstain from drugs and alcohol. On August 30, he admitted violating his probation by testing positive for methamphetamine and marijuana.
In October 2005, the court extended appellant's probation to five years and reinstated it, and appellant waived all past, present and future credits in LeFever 1, LeFever 3 and LeFever 4.
In January 2009, the court granted the probation department's request that the court summarily revoke appellant's probation on the ground that appellant was in custody in Yolo County and had been convicted of first degree burglary committed in December 2008 in Yolo County case No. 08-06727 (Yolo County conviction).[1] On April 30, the Sonoma Superior Court ordered appellant's temporary removal from Yolo County to Sonoma County.
On June 16, 2009, the court found appellant in violation of his probation in LeFever 1, LeFever 3 and LeFever 4 in light of his Yolo County conviction. He was sentenced to seven years in state prison as follows: the upper four-year term in LeFever 3, plus one year (one-third the midterm) in LeFever 4, plus eight months (one-third the midterm) in LeFever 1. In addition, appellant was resentenced on the Yolo County conviction to a consecutive 16-month term (one-third the midterm).
Appellant filed timely appeals from the execution of sentence in LeFever 1, LeFever 3 and LeFever 4.
DISCUSSION
Appellant contends the trial court lost jurisdiction under Penal Code section 1203.2a (hereafter, section 1203.2a) to order execution of sentence for his convictions in LeFever 1, LeFever 3 and LeFever 4.[2]
Section 1203.2a permits a defendant who is on probation and is later committed to prison on another offense, to ask the trial court that originally placed him on probation, to revoke probation and impose sentence. â€