People v. Walsh

• Decision Date: 01 October 1996
• Docket Number: D025722,Nos. D024713,s. D024713
• Citation: 57 Cal.Rptr.2d 214,49 Cal.App.4th 1096
• Court: California Court of Appeals Court of Appeals
• Parties: , 96 Cal. Daily Op. Serv. 7357, 96 Daily Journal D.A.R. 12,045 The PEOPLE, Plaintiff and Respondent, v. James Carey WALSH, Defendant and Appellant. In re James Carey WALSH, on Habeas Corpus.

Page 214

57 Cal.Rptr.2d 214

49 Cal.App.4th 1096, 96 Cal. Daily Op. Serv. 7357,

96 Daily Journal D.A.R. 12,045

The PEOPLE, Plaintiff and Respondent, v. James Carey WALSH, Defendant and Appellant.

In re James Carey WALSH, on Habeas Corpus.

Nos. D024713, D025722.

Court of Appeal, Fourth District, Division 1, California.

Oct. 1, 1996.

Review Denied Jan. 22, 1997.

[49 Cal.App.4th 1098] Susan K. Milliken, under appointment by the Court of Appeal, San Diego, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Garrett Beaumont and Robert M. Foster, Deputy Attorneys General, for Plaintiff and Respondent.

KREMER, Presiding Justice.

Defendant James Carey Walsh appeals a judgment imposing a prison sentence after revocation of probation. Walsh contends the court erred in not making express findings justifying the upper term and in not ordering a supplemental probation report. Walsh also seeks habeas corpus, asserting the government's failure to comply with statutory time requirements deprived the court of jurisdiction to sentence him. We grant Walsh's petition for habeas corpus and dismiss his appeal as moot.

I INTRODUCTION

While on probation for assault with a deadly weapon plus two prison priors (PEN.CODE, §§ 245¹, subd. (a)(1), 667.5, subd. (b)), Walsh was imprisoned for another crime. The prison warden notified the probation department of Walsh's prison commitment. However, the probation department did not timely comply with statutory requirements to report such commitment to the probationary court. (§ 1203.2a.) Ultimately, the court revoked Walsh's probation and sentenced him to prison. Walsh appealed.

During pendency of Walsh's appeal, the Supreme Court held that a probation officer's failure to comply with section 1203.2a's mandatory time requirements divested the probationary court of any remaining jurisdiction. (In re Hoddinott (1996) 12 Cal.4th 992, 50 Cal.Rptr.2d 706, 911 P.2d 1381 (Hoddinott ).) Walsh then petitioned us for habeas corpus. We issued an order to show cause. Answering the order to show cause, the People assert Hoddinott's holding should operate prospectively only and is thus inapplicable here. However, since Hoddinott resolved a conflict between appellate court interpretations of section 1203.2a, its holding is not limited to prospective application. (Donaldson v. Superior Court (1983) 35 Cal.3d 24, 196 Cal.Rptr. 704, 672 P.2d 110.)

II FACTUAL AND PROCEDURAL BACKGROUND

On September 13, 1993, Walsh waved a knife at his former girlfriend.

On March 14, 1994, the People charged Walsh by information with assault with a deadly weapon. The information also alleged Walsh suffered two prison priors.

On April 27, 1994, Walsh pleaded guilty to assault with a deadly weapon and admitted the two prison priors.

On May 25, 1994, the court suspended imposition of sentence and placed Walsh on probation for five years.

III CHALLENGED PROCEEDINGS

While on probation in the assault case, Walsh was convicted and sentenced to prison for 16 months in another case. On March 23, 1995, Walsh began serving his prison term in that other case at Sierra Conservation Center (Sierra).

On May 5, 1995, Walsh mailed the San Diego probation department a request for disposition of probation, waiving his rights to representation by counsel and to appear personally at the proceedings. (§ 1203.2a.) ²

On May 14, 1995, Walsh wrote a letter to the probation department stating he was currently serving a 16-month term at Sierra. ³

On May 30, 1995, Sierra's warden wrote the probation department that Walsh had been received at Sierra on March 23, 1995, under commitment to state prison, with an expected parole release date of January 19, 1996. Noting Walsh had been given probation in the assault case in May 1994, the warden's letter asked the probation department to indicate the disposition. ⁴

On September 7, 1995, the superior court received notice from Walsh that he was currently imprisoned for burglary, possessing a controlled substance and battery. Walsh requested disposition of his probation, waiving his rights to representation by counsel and to On September 12, 1995, the court revoked Walsh's probation and sentenced him in absentia to a total term of six years consisting of a four-year upper term for assault plus one year for each prison prior. The sentence was made nunc pro tunc as of May 25, 1994, and ordered to be served concurrently with any prior incomplete sentence.

appear in person at the proceedings. (§ 1203.2a.)

On October 17, 1995, Walsh filed a notice of appeal.

On March 25, 1996, the Supreme Court filed its decision in Hoddinott.

On April 1, 1996, Walsh petitioned us for habeas corpus.

On June 20, 1996, we issued an order to show cause and later held oral argument.

IV DISCUSSION

Citing Hoddinott in his petition for writ of habeas corpus, Walsh asks us to vacate the prison sentence imposed after probation revocation. Walsh contends the superior court was deprived of jurisdiction to sentence him since the probation department did not comply with the time requirements of section 1203.2a. ⁵ Specifically, Walsh asserts the probation department did not notify the court of his incarceration within 30 days after receiving Sierra's warden's letter of May 30, 1995.

THE LAW

A writ of habeas corpus is appropriate to vacate a sentence imposed in excess of the trial court's jurisdiction. (In re Estrada (1965) 63 Cal.2d 740, 750, 48 Cal.Rptr. 172, 408 P.2d 948; In re May (1976) 62 Cal.App.3d 165, 168, 133 Cal.Rptr. 33.) Alleged noncompliance with section 1203.2a may be reviewed on petition for habeas corpus. (People v. Young (1991) 228 Cal.App.3d 171, 179, 278 Cal.Rptr. 784.)

"[S]ection 1203.2a 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 the receipt of a valid, formal request from defendant within which to impose sentence, if sentence has not previously been In Hoddinott the Supreme Court concluded: "Pursuant to the plain language of the statute, if a probation officer fails to notify the probationary court after receiving written notice of the probationer's subsequent commitment, that court loses jurisdiction to impose sentence on the original offense." (Hoddinott, supra, 12 Cal.4th at p. 998, 50 Cal.Rptr.2d 706, 911 P.2d 1381.) Noting "this interpretation is also consistent with the statute's history of amendment and its legislative purposes[,]" the Supreme Court stated "section 1203.2a 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. [Citation.] The statute's second and final paragraphs, interpreted according to their plain language, do serve these purposes." (Id. at pp. 998-1000, 50 Cal.Rptr.2d 706, 911 P.2d 1381.) The Supreme Court also stated: "The probation officer's 30-day reporting requirement is jurisdictional and applies once the defendant or other specified person has notified the probation officer in writing of the probationer's subsequent state prison commitment, even though the written notice may not be a valid request for absentee sentencing. [Citation.]" (Id. at p. 1005, 50 Cal.Rptr.2d 706, 911 P.2d 1381, fn. omitted.)

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 one of these three time limits divests the court of any remaining jurisdiction. (5th par.)" (Hoddinott, supra, 12 Cal.4th at p. 999, 50 Cal.Rptr.2d 706, 911 P.2d 1381.)

As noted, the Supreme Court decided Hoddinott while Walsh's appeal was pending. Hence, as we shall explain, Hoddinott's interpretation of section 1203.2a applies here since such decision is not limited to prospective operation only.

HODDINOTT IS NOT LIMITED TO PROSPECTIVE APPLICATION

In Hoddinott the Supreme Court did not discuss the issue whether its holding was fully retroactive, partially retroactive, or prospective only. Asserting law enforcement authorities relied on earlier appellate court opinions disapproved in Hoddinott, the People argue for prospective application of its holding--apparently to only those cases where a probation officer learns after the filing of the decision in Hoddinott that a probationer is imprisoned. (People v. Bustamante (1981) 30 Cal.3d 88, 102, 177 Cal.Rptr. 576, 634 P.2d 927, abrogated on another point by constitutional amendment as stated in People v. Johnson (1992) 3 Cal.4th 1183, 1222-1223, 14 Cal.Rptr.2d 702, 842 P.2d 1; cf. People v. Edelbacher (1989) 47 Cal.3d 983, 1003, 254 Cal.Rptr. 586, 766 P.2d 1.) ⁶

" 'As a rule, judicial decisions apply "retroactively." [Citation.] Indeed, a legal system based on precedent has a built-in presumption of retroactivity.' [Citation.]" (People v. Guerra (1984) 37 Cal.3d 385, 399, 208 Cal.Rptr. 162, 690 P.2d 635.) "In determining whether a decision should be given retroactive effect, the California courts undertake first a threshold inquiry, inquiring whether the decision established new standards or a new rule of law. If it does not establish a new rule or standards, but only elucidates and enforces prior law, no question of retroactivity arises. [Citations.] Neither is there any issue of retroactivity when we resolve a conflict between lower court decisions, or address an issue not previously presented to the courts. In all such cases the ordinary assumption of retrospective operation [citations] takes full effect."...