People v. Ruster

• Decision Date: 22 July 1974
• Docket Number: Cr. 7279
• Citation: 115 Cal.Rptr. 572,40 Cal.App.3d 865
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Gary Donald RUSTER, Defendant and Appellant.

Page 572

115 Cal.Rptr. 572

40 Cal.App.3d 865

The PEOPLE of the State of California, Plaintiff and Respondent, v. Gary Donald RUSTER, Defendant and Appellant.

Cr. 7279.

Court of Appeal, Third District, California.

July 22, 1974.

Evell J. Younger, Atty. Gen., by Garrick Chock, Deputy Atty. Gen., Sacramento, for plaintiff and respondent.

Glendalee Garfield, Fair Oaks, for defendant and appellant.

PUGLIA, Associate Justice.

Defendant was convicted of felony violation of section 529 of the Penal Code ¹ (false personation) by plea of guilty entered January 8, 1971. On January 26, 1971, the imposition of judgment and sentence was suspended for a period of three years during which period defendant was placed on probation subject to the condition among others that he not violate any laws, state, federal or local. On September 12, 1973, probation was revoked and defendant sentenced to the state prison for the term prescribed by law. Defendant timely filed a notice of appeal purporting to appeal from the 'judgment revoking probation.' When entered before the imposition of sentence the order revoking probation is non-appealable. (People v. Robinson (1954) 43 Cal.2d 143, 145, 271 P.2d 872.) However, we treat the instant appeal as from the judgment entered after order revoking probation in which appeal the validity and merits of the order are reviewable. (People v. Smith (1970) 12 Cal.App.3d 621, 624, 90 Cal.Rptr. 811.)

On appeal defendant raises two contentions:

(1) That the trial court lacked jurisdiction to revoke probation and consequently to impose sentence; and,

(2) That delay in the revocation proceedings effectively deprived him of due process of law. For the reasons set forth herein we reject both of defendant's contentions and affirm the judgment.

On October 17, 1972, the probation officer filed with the trial court a request for revocation of probation alleging a violation thereof in that on June 7, 1972, in Santa Clara County defendant committed the crimes of forgery (§ 470) and grand theft (§ 484). On the same day the trial court issued a bench warrant ordering defendant to be brought before the court to show cause why his probation should not be revoked. On November 20, 1972, the bench warrant was lodged against defendant as a hold, presumably with the Santa Clara County authorities. On November 21, 1972, defendant was convicted in Santa Clara County Superior Court of grand theft (§ 484) and multiple counts of forgery (§ 470) for which offenses he was on or about November 28, 1972, sentenced to state prison. On December 14, 1972, while confined in prison, defendant directed a letter to the Yolo County Probation Department in which he recited the Santa Clara convictions and sentence and, referring to the warrant lodged against him for probation violation, demanded 'a Court hearing within 60 days or dismissal of said hold.' ² The letter was received in due course by the probation department but was not then brought to the attention of the court or the district attorney, each of whom was unaware of defendant's subsequent conviction, place of confinement and demand for hearing. Accordingly, no action was taken on the demand. On August 8, 1973, the clerk received a document executed by defendant in state prison purporting to be a notice of appeal 'from the plea of guilty entered on or about February 1971.' This document, of no legal effect, came to the attention of the district attorney and served to inform him of the defendant's confinement in state prison on a subsequent offense. As a result the district attorney caused the defendant to be returned to court for hearing on the alleged violation of probation. After a series of hearings commencing August 23, 1973, in which defendant asserted lack of jurisdiction in the trial court, defendant's claim was rejected and he was found in violation of probation which was then revoked. Defendant was sentenced to the state prison, the sentence to run concurrently with any other prior incompleted sentences then being served and defendant to be given credit for time served from 60 days after December 14, 1972.

The defendant first contends that the trial court lost jurisdiction by failure to act seasonably on the defendant's demand for hearing of December 14, 1972. During the probationary period the court shall have the authority 'at any time' to revoke its order of suspension of imposition of sentence (§ 1203.3). The order of revocation here occurred prior to the expiration of the three-year probationary term. Absent some superseding consideration, the order is within the jurisdiction of the court.

The provisions of section 1203.3 notwithstanding, the trial court may lose jurisdiction if the defendant invokes the provisions of section 1203.2a and the court does not respond thereto in a timely manner. Section 1203.2a provides in pertinent part as follows: 'If any defendant who has been released on probation is committed to a prison in this State for another offense, the court which released him on probation shall have jurisdiction to impose sentence, if no sentence has previously been imposed for the offense for which he was granted probation, in the absence of the defendant, on the request of the defendant . . . in writing, if such writing is signed in the presence of the warden or superintendent of the prison in which he is confined or the duly authorized representative of the warden or superintendent, and such warden or superintendent or his representative attests both that the defendant has made and signed such request and that he states that he wishes the court to impose sentence in the case in which he was released on probation, in his absence and without his being represented by counsel. (I)f sentence has not been previously imposed and if the defendant has requested the court . . . in writing in the manner herein provided to impose sentence in the case in which he was released on probation in his absence and without the presence of counsel to represent him, 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.'

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. (In re White (1969) 1 Cal.3d 207, 212, 81 Cal.Rptr. 780, 460 P.2d 980; People v. Davidson (1972) 25 Cal.App.3d 79, 85, 101 Cal.Rptr. 494.) When the state has provided a means to enable an incarcerated defendant to preserve his right to concurrent sentences, it is not improper to preserve the jurisdiction of the court until it has been ousted by strict compliance with the terms of the statute, or until such time as the defendant has been prejudiced by errors or omissions of some agent of the state. (In re Brown (1971) 19 Cal.App.3d 659, 666, 97 Cal.Rptr. 71.)

It is immediately apparent that the defendant's letter of December 14, 1972, is not in strict compliance with the provisions of section 1203.2a. It did not request imposition of sentence and was neither signed in the presence of the warden or superintendent or his representative nor was it accompanied by the required attestation of that official.

Section 1203.2a further provides that the probation officer 'must within 30 days after being notified in writing by the defendant . . . of the prison in which (he) is confined, report such commitment to the court which released him on probation.' It is uncontradicted that the probation officer failed to comply with this provision. However, the trial court is powerless to impose sentence in absentia or without representation of defendant by counsel unless defendant has waived his rights to appear and defend in person and with counsel by requesting the court in writing to proceed as provided in section 1203.2a. A Judgment pronounced in absence of such request and waiver is violative of the defendant's constitutional rights to have the assistance of and to be personally present with counsel (Cal.Const., art. I, § 13) and is accordingly void (In re Perez (1966) 65 Cal.2d 224, 229, 53 Cal.Rptr. 414, 418 P.2d 6).

Thus, it can be seen that the failure of the probation officer to report to the court the place of defendant's confinement is of no significance in relation to the jurisdictional issue raised herein and furthermore resulted in absolutely no prejudice to the defendant.

In similar manner the failure of the trial court timely to comply with a proper notice and request made under section 1381 may also deprive it of jurisdiction. That section provides in pertinent part: 'Whenever a defendant has been convicted, in any court of this state . . . 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 such 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 such matters are pending shall bring the same defendant . . . for sentencing within 90 days after such person shall have delivered to said district attorney written notice of the place of his imprisonment . . . and his desire to be brought . . . for sentencing . . .. In the event that the defendant is not brought . . . for sentencing with the 90 days as herein provided the court in which such . . . sentencing is pending must, on motion or...