P. v. Strickland




Filed 11/1/11 P. v. Strickland CA1/2




NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, Plaintiff and Respondent, v. MARK SCOTT STRICKLAND, Defendant and Appellant.

A130961 (Sonoma County Super. Ct. No. MCR446500)

Penal Code section 1203.2a (section 1203.2a) details various procedures for sentencing a probationer who has been committed to state prison for another offense. The draconian consequence of non-compliance with the time limits for action specified in section 1203.2a is the loss of subject matter jurisdiction by the court. Defendant Mark Scott Strickland contends he was sentenced in violation of section 1203.2a because those deadlines had long expired. We agree and reverse.
BACKGROUND
Defendant having entered a plea of no contest to a charge of robbery on September 30, 2004, the Sonoma County Superior Court sentenced him to state prison for the middle term of three years. Execution of that sentence was suspended, and defendant was admitted to probation upon specified conditions.
In May 2007, defendant’s probation was summarily revoked.
In March 2008, defendant sent the Sonoma County Superior Court a form headed “Request For Imposition Of Sentence In Absentia (Pen. Code § 1203.2a).” Dated March 4, 2008 and signed by defendant “In Pro. Per.,” it reads: “Defendant Mark Scott Strickland, In Pro. Per., respectfully requests pursuant to the provisions of Penal Code § 1203.2a that the court impose sentence in the above-entitled case. [¶] Defendant was released on probation in this matter on or about 10-04-04, and after that date, on 12‑28‑07, was committed to prison in case number YA069903 by the Superior Court of the State of California for the County of Los Angeles. [¶] Therefore, defendant requests that the court impose sentence in the above-entitled case in his absence, and without the presence of counsel to represent him.”[1]
The Sonoma County Superior Court summarily denied defendant’s request. On April 2, 2008, the court signed an order reading in relevant part: “A Penal Code section 1203.2a request for sentencing in absentia, made by defendant in pro per, must be signed in the presence of the warden of the prison in which he or she is confined or the duly authorized representative of the warden, and the warden or his or her representative must attest both that the defendant has made and signed such request and the defendant states he wishes the court to impose sentence in the case in which he was released on probation. Penal Code section 1203.2a. Defendant’s request does not comply with these statutory requirements.” The proof of service for the order recites that as copy was sent to defendant by United States mail, and to the district attorney and the public defender “Via Inter-Office Courier.”
On May 15, the court received another communication from defendant, this time headed “Request For Disposition Of Probation, Waiver Of Appearance And Right To Attorney [P.C. § 1203.2a].”[2] Its substance was substantially identical to defendant’s earlier request, but it included the following:
“ATTESTATION:
“I, H. Aguilera, certify that I am the . . . (duly authorized representative of the Warden or Superintendant) and ATTEST that Strickland, Mark Scott made and signed this request in my presence, and that he states that he wishes the Court to execute sentence, or make disposition of his probation as required by laws in his absence, and without his being represented by an attorney at law in the case in which he was released on probation.
“Signature in Full [signature] Date 04-11-08
“Official Title Correctional Counselor [¶] . . . [¶]
“I hereby certify under penalty of perjury that the foregoing is true and correct. Executed this 11th day of April 2008, at CTF-South in Soledad California
“[Signature] Defendant, In Pro Per.”
The form also advised that “defendant’s expected date of release from his current term of confinement is currently set at . . . 05-03-08.”
On June 3, 2008, the court filed an order that “defendant’s request, pursuant to Penal Code section 1203.2a, for sentencing in absentia in MCR-446500, is denied without prejudice.” This time copies were sent to defendant, the district attorney, the public defender, and the probation officer.
On June 20, 2008, the Sonoma County Superior Court received another request for sentencing, again on the form headed “Department of Corrections,” again with the attestation of “H. Aguilera . . . Correctional Counselor,” but this time placing his expected date of release at “12-11-08.” [3]
On July 16, 2008, the court denied defendant’s third request, again without prejudice. The court augmented its denial with this reasoning: “Defendant’s motion is attested to by ‘H. Aguilera,’ a ‘Correctional Counselor.’ The motion fails to demonstrate that ‘H. Aguilera’ is the warden or the duly authorized representative of the warden. Defendant’s request does not comply with the statutory requirements.” Copies of this order were sent to defendant, the district attorney, the public defender, and the probation officer.
On the next two days, July 17 and 18, the court held two reported hearings. The public defender initially made an oral request for action under section 1203.2a. The public defender, who was formally appointed to represent defendant, advised the court that “We would be submitting that he’s violated his probation. . . . based on his new law violation.” The court responded, “Based upon that, . . . I’ll find him in violation of probation.” The district attorney suggested referring the matter to the probation officer, who “may have some insight as to whether or not jurisdiction is still retained.” The court limited the scope of the referral solely to “simply a calculation of credits” in anticipation of sentencing.
On September 18, 2008, the court formally revoked defendant’s probation and ordered execution of the three-year sentence imposed in 2004. It then imposed consecutive terms of eight months and four months for the Los Angeles offenses, producing an aggregate term of four years.
On January 11, 2011, in response to a letter from Division of Adult Institutions Legal Processing Unit in the Department of Corrections and Rehabilitation, the court acknowledged that the four-month sentence imposed for one of the Los Angeles charges should have been eight months. In addition, the number of custody credits was improperly computed. Therefore, the court decided “that the sentence imposed by this Court was illegal,” would now be “recall[ed] . . . in its entirety,” and defendant would be resentenced. Defendant, who was not present, was thereupon sentenced to an aggregate term of four years and four months. Eight days later, defendant filed a notice of appeal.
REVIEW
Defendant comes before us with a single contention, which he frames as follows: “The sentencing court did not commit appellant to state prison within sixty days of receiving notice from probation that he was confined in the state penitentiary and thus lost jurisdiction.”
Section 1203.2a[4] “sets forth sentencing procedures for persons who, while on probation for one offense, are committed to state prison for another offense.” (In re Hoddinott (1996) 12 Cal.4th 992, 994.) The statute “was intended to provide a mechanism by which the probationary court could consider imposing 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.” (Id. at p. 999.) No showing of specific prejudice to the probationer is necessary to deprive the probation court of jurisdiction. (People v. Murray (2007) 155 Cal.App.4th 149, 157
The issue of those time limits is crucial. In the most important decision elucidating section 1203.2a, our Supreme Court held that the statute “provides for 3 distinct jurisdictional clocks: (1) the probation officer has 30 days from the receipt of written notice of defendant’s subsequent commitment within which to notify the probation-granting court (2d. par.); (2) the court has 30 days from receipt of a valid, formal request from defendant within which to impose sentence, if sentence has not previously been imposed (3d par., 4th sentence); and (3) the court has 60 days from the receipt of notice of the confinement to order execution of sentence (or make other final order) if sentence has previously been imposed (3d par., 3d sentence). Failure to comply with any of these three time limits divests the court of any remaining jurisdiction (5th par.).” (In re Hoddinott, supra, 12 Cal.4th 992, 999.)
Defendant explicates his contention as follows: “On June 20, 2008, appellant filed a request under section 1203.2a with the court asking to be sentenced on the case in Sonoma County. . . . [A]ppellant also served a copy of his request on the probation officer. On that same date of June 20, 2008, the probation officer in turn delivered a memo to the appropriate judge of the Sonoma court, stating that appellant had been sentenced to the Department of Corrections on the two Los Angeles cases. . . . With the clock running from the day of the memo, the sixty-day limit set by section 1203.2a expired on August 19, 2008. However, the court did not issue its prison commitment until September 19, 2008, one month beyond the sixty-day jurisdictional limit.”
The Attorney General disputes none of this. Her sole response is that defendant’s claim was forfeited by reason of his “failure to raise the statutory claim at sentencing on September 18, 2008” or by his failure to appeal from the judgment produced on that date. Neither point is sound.
The first point is simply incorrect—defendant did raise the issue of section 1203.2a at the September 18 hearing. Although the subject’s appearance did appear more or less pro forma, that can be explained by the fact that only a month earlier the court had denied defendant’s habeas corpus petition that was based exclusively on section 1203.2a.
As for the second point, what the Attorney General does not seem to appreciate is that noncompliance with section 1203.2a deprives the court of subject matter jurisdiction, which makes any action void—not merely voidable—“and ‘thus vulnerable to direct or collateral attack at any time.’ ” (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660; accord, People v. Vasilyan (2009) 174 Cal.App.4th 443, 450.) Even if defendant had appealed in 2008, and even if we had affirmed, the enduring defect of nonexistent jurisdiction could be examined on this appeal at this time. (See Bank of Italy v. Cadenasso (1929) 206 Cal. 436, 437 [“affirmance of a void judgment . . . imparts no validity to the judgment”]; People v. Flohr (1939) 30 Cal.App.2d 576, 578 [“ ‘a void judgment [is] not rendered valid by its affirmance and . . . is subject to attack, direct or collateral, at any time.’ ”].) Put another way, our Supreme Court has made it clear that a violation of section 1203.2a is “ ‘sentencing error amounting to an excess of jurisdiction. An appellate court may “correct a sentence that is not authorized by law whenever the error comes to the attention of the court.” ’ ” (In re Hoddinott, supra, 12 Cal.4th 992, 995-996, fn. 2.) This principle is particularly apposite, given that the Attorney General is maintaining that defendant ought to have appealed from what even the trial court treated as an illegal sentence.
The Attorney General’s decision not to contest defendant’s factual narrative discloses the fundamental misapprehension under which the trial court operated. Because the probation officer learned of defendant’s incarceration, and so advised the court, the matter of defendant’s requests for sentencing that he addressed directly to the court becomes academic. “Upon being informed by the probation officer of the defendant’s confinement, . . . the court shall issue its commitment if sentence has previously been imposed. . . . 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.” (§ 1203.2a, (3d par.).)
Because the probation officer was involved, and because defendant had already been sentenced, the court had to race the clock regardless of anything defendant did or did not do. Because defendant had already been sentenced, there was no need for what the Supreme Court termed “a valid, formal request” for sentencing, for such a request is required only “if sentence has not previously been imposed.” (In re Hoddinott, supra, 12 Cal.4th 992, 999.) Even before our Supreme Court addressed the issue, it had long been accepted that “the requirement for a properly attested request, and any necessary waiver, applicable to unsentenced defendants . . . did not apply to petitioner upon whom sentence had been previously imposed with execution stayed in conjunction with the grant of probation.” (Pompi v. Superior Court (1982) 139 Cal.App.3d 503, 507-508 and decisions cited; accord, People v. Murray, supra, 155 Cal.App.4th 149, 155‑156.) Thus, for the Supreme Court, it was a settled proposition that section 1203.2a “does not require a formal request for sentencing . . . if sentence has previously been imposed.” (In re Hoddinott, supra, at p. 1003.)
Even if this analysis did not control, and defendant was required to submit “a valid, formal request,” we could not agree with the trial court that defendant’s second and third requests were insufficient. The most comprehensive explanation of why the court rejected those requests is set out in the order denying defendant’s application for relief in habeas corpus: Both requests were “attested to by ‘H. Aguilera’, a ‘Correctional Counselor.’ The form application used by defendant required defendant to specify whether ‘H. Aguilera’ was either the Warden, the Superintendent, or a duly authorized representative of the Warden or Superintendent. (The form application instructed defendant to ‘delete those that do not apply’. No Designation was made in the application. Thus, contrary to defendant’s claim, the request did not demonstrate that it was certified by the Warden’s duly authorized representative. The request failed to comply with the statutory requirements.”
The trial court’s reasoning might be sound as a matter of literal compliance with form directives, but it is ultimately unpersuasive. By identifying himself/herself as a “Correctional Counselor,” Aguilera was obviously not claiming to be either the Warden or the Superintendent. The opportunity for misapprehending Aguilera’s status was nil. To reject defendant’s requests solely because the words “Warden” and “Superintendant” were not crossed-out “would be to force resort to an arid ritual of meaningless form.” (Staub v. City of Baxley (1958) 355 U.S. 313, 320.)
Because it failed to act within the period specified in section 1203.2a, the trial court lacked subject matter jurisdiction to impose a single sentence covering both the Sonoma and Los Angeles convictions. (In re Hoddinott, supra, 12 Cal.4th 992, 1005.) However, before it lost jurisdiction, the court had already summarily revoked defendant’s probation. The court retained the jurisdiction to order execution of the robbery sentence previously imposed. It may do so when our remittitur is filed with the court. (See People v. Murray, supra, 155 Cal.App.4th 149, 158.)
DISPOSITION
The order/judgment of January 11, 2011 is reversed. The trial court is directed to recall the abstract of judgment filed on January 19, 2011.

_________________________
Richman, J.


We concur:


_________________________
Kline, P.J.


_________________________
Haerle, J.

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