People v. Young

• Decision Date: 07 March 1991
• Docket Number: No. F012908,F012908
• Citation: 228 Cal.App.3d 171,278 Cal.Rptr. 784
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Anthony William YOUNG, Defendant and Appellant.

Page 784

278 Cal.Rptr. 784

228 Cal.App.3d 171

The PEOPLE, Plaintiff and Respondent, v. Anthony William YOUNG, Defendant and Appellant.

No. F012908.

Court of Appeal, Fifth District, California.

March 7, 1991.

[228 Cal.App.3d 174] Arturo E. Ocampo, Stockton, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Edgar A. Kerry and Garrick W. Chock, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

MARTIN, Acting Presiding Justice.

Appellant Anthony William Young was charged with felony burglary in violation of section 459 of the Penal Code. ¹ A preliminary hearing was held on July 2, 1986, after which appellant pleaded guilty to the offense charged on the condition that the prosecutor recommend at sentencing that the court make an "unusual case" finding and grant probation with a condition of a six-month jail term. The case was certified to the superior court.

At sentencing, on August 5, 1986, the trial court, accepting the probation department's recommendations, granted appellant 5 years probation with a condition that he be confined in the county adult detention facility for 360 days, was given appropriate time credits and charged a fine of $500.

On March 12, 1987, appellant was released from jail. He reported to the probation office in April of that year. He moved to San Joaquin County and, in June of 1987, the San Joaquin County Probation Office accepted courtesy probation supervision of appellant.

On May 4, 1989, a probation revocation hearing was held in appellant's absence in Stanislaus County from which the court found probable cause to believe appellant was in violation of probation. Probation was revoked and a warrant issued for his arrest. At the time, appellant was serving time in state prison for another offense committed in San Joaquin County and a hold was placed on him for purposes of the probation revocation. He was brought to Stanislaus County after he finished his state prison sentence. He was arrested on the warrant on August 2, 1989. On August 4, 1989, appellant appeared before the Stanislaus County Superior Court and a public defender was appointed to represent him. On August 11, 1989, appellant admitted the alleged violations of probation. On August 16, 1989, appellant was sentenced to a midterm of four years for the violation of section 459. He was given 257 days of custodial credit and 128 days of section 4019 credit. Appellant filed a timely notice of appeal.

Appellant does not contest his conviction of violating section 459 by way of his guilty plea entered on July 2, 1986, or his admission of the violations of probation on August 11, 1989. Therefore, a statement of facts is not necessary.

DISCUSSION

I. NOTICE REQUIREMENTS OF SECTION 1203.2a

Section 1203.2a requires that notice be given to a probationer incarcerated for a subsequent offense so that he may seek prompt disposition of the earlier offense. A prisoner is entitled to reasonably prompt notice of the pending charges. (People v. Cave (1978) 81 Cal.App.3d 957, 963, 147 Cal.Rptr. 371.)

" 'The purpose of section 1203.2a is to prevent a defendant from inadvertently being denied the benefit of section 669 requiring that sentences be concurrent unless the court exercises its discretion to order that a subsequent sentence be consecutive to a prior sentence.' " (People v. Johnson (1987) 195 Cal.App.3d 510, 514, 240 Cal.Rptr. 748, quoting In re White (1969) 1 Cal.3d 207, 211, 81 Cal.Rptr. 780, 460 P.2d 980.)

It has been held that where the prisoner is not promptly notified of the pending charges, and the state did not meet its burden of justifying the delay, the violation of the defendant's Sixth Amendment right to a speedy trial requires dismissal of the action. (People v. Cave, supra, 81 Cal.App.3d 957, 966, 147 Cal.Rptr. 371; People v. Vila (1984) 162 Cal.App.3d 76, 87, 208 Cal.Rptr. 364.)

Appellant contends this case must be dismissed on the basis that the lower court had no authority to make any order on the probation revocation petition since the notice requirements of section 1203.2a were not met.

Respondent contends the issue is waived on several grounds but does not address the merits of the issue.

Initially, we review respondent's claim that appellant waived the issue for failure to raise the objection below. Respondent argues two prongs to the waiver issue. The first is that appellant failed to object on the basis of section 1203.2a, citing People v. Gonzales (1986) 188 Cal.App.3d 586, 590, 233 Cal.Rptr. 204, and, secondly, that " 'the "jurisdiction" referred to in Penal Code § 1203.2a, is jurisdiction over the person which can be conferred by acquiescence, silence, waiver or estoppel [citations].' (People v. Davidson (1972) 25 Cal.App.3d 79, 85 ....)" Thus, respondent claims the appellant failed to raise the objection and failed to challenge the court's jurisdiction over his person and therefore may not raise the issue for the first time on appeal. Respondent argues, in accordance with this theory, had appellant objected below, the prosecutor would have had the opportunity to rebut appellant's claim.

However, appellant counters in his reply brief that appellant did object below.

On August 4, 1989, at the hearing on the probation officer's supplemental report, appellant made the following statement:

"Your Honor, could I say something? I don't mean to interrupt. [p] I've been in prison for the past year. CDC never told me I had a hold on me or anything, or I could have filed a 1381."

The court completely ignored this statement. Later the appellant asked if he could give the judge a piece of paper that had been handed to him. Upon receiving permission to do so, appellant stated:

"I contacted I guess the lady that handled that case right there that put the hold on me, Darleen Newlin. She said to come in here and tell you my situation and tell you you can call her to come in and ask you to run my time with the time I just served."

The Honorable Frank S. Pierson, Judge, responded by appointing the public defender to represent appellant and told him to show the piece of paper to the lawyer.

Again, on August 7, 1989, at a hearing on the probation officer's supplemental report before the judge, appellant again tried to raise the issue stating:

"Okay. I've already been in prison. I've already been locked up, incarcerated for 14 months. I'm eager to get out. I was never aware of any kind-- see, my probation officer knew where I was the whole time. I was never aware--"

The court interrupted stating:

"Those are matters, you see, that you should relate to your attorney, give him an opportunity--"

"THE DEFENDANT: I've told him."

The matter was put over until August 9, 1989, when appellant again tried to raise the point, at which time the matter was again continued.

On August 16, 1989, the sentencing hearing was held and a deputy public defender appeared on behalf of appellant and Darleen Newlin, a deputy probation officer, was personally present. The matter came before Judge Azevedo.

The allegations of the probation violation having been admitted, reinstatement of probation was denied and the court ordered appellant be committed to state prison for the midterm of four years. He was given 257 days credit for time served and 128 good-time/work-time credits. The deputy public defender, on behalf of appellant, stated: "Mr. Young would also request the Court to make this sentence concurrent with the time that he has spent on the cases that are alleged in the petition." Appellant made the following statement:

"Your Honor, I never had a chance to file a 1381 in this matter, because I was only aware of the warrant 10 days before I was to parole. Not only that, but this warrant was, wasn't issued until a whole year later, until my time was up. The violation was in 1986, when these [sic ] happened. I mean, violation was in 1988 when this happened, and then I was incarcerated all that time, without ever being aware that I had a warrant out for a probation violation. If I was aware of that, I could have filed a 1381 form."

Then the following exchange occurred:

"THE COURT: Not on a probation violation, not that I'm aware of.

"[Defense counsel]: Under some circumstances, he could perhaps have filed a 1381. The problem here was he was on a courtesy supervision from Stockton. When he was sentenced in, I believe, May or June of '88 on the cases that are alleged in the petition, the San Joaquin Probation Office terminated their courtesy supervision, but it's my understanding they did not notify Stanislaus County Probation Department as to why they were terminating. They certainly did not indicate that there was any additional convictions, it's my understanding. And they did not find out about these convictions till sometime in mid-February of 1989.

"So, part of the problem was this transfer back from San Joaquin County to Stanislaus County. He was in custody at the time and that's why there were failures to appear at the probation department here in Stanislaus County. They had not been advised by probation in San Joaquin County that in fact, Mr. Young was in custody. And that's part of the reason why Mr. Young would like to have part of that time run concurrent with the Court's sentence today.

"THE COURT: I can understand his request. But the request is going to be denied. Let me point out to you that he was on probation when he committed the new violations. I'm not disposed to give him double credit under those conditions.

"So that request will be denied. The order will stand."

In light of all the attempts appellant personally made to raise the substantive grounds of this issue, we conclude that the issue was not waived even though the precise code section was not cited. ²

Respondent also asserts that appellant also failed to satisfy the requirements of section...