Walters, In re, C020240

• Decision Date: 09 November 1995
• Docket Number: No. C020240,C020240
• Citation: Walters, In re, 47 Cal.Rptr.2d 279, 39 Cal.App.4th 1546 (Cal. App. 1995)
• Court: California Court of Appeals
• Parties: , 95 Cal. Daily Op. Serv. 8682, 95 Daily Journal D.A.R. 14,996 In re the MATTER OF Kenneth WALTERS on Habeas Corpus.

Page 279

47 Cal.Rptr.2d 279

39 Cal.App.4th 1546, 95 Cal. Daily Op. Serv. 8682,

95 Daily Journal D.A.R. 14,996

In re the MATTER OF Kenneth WALTERS on Habeas Corpus.

No. C020240.

Court of Appeal, Third District, California.

Nov. 9, 1995.

Mark E. Cutler, Cool, and Elizabeth M. Campbell, Tarzana, under appointment by the Court of Appeal, for petitioner.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistant Attorney General, Shirley A. Nelson, Supervising Deputy Attorney General, Alison Elle Smith, Deputy Attorney General, for respondent.

PUGLIA, Presiding Justice.

Petitioner seeks a writ of habeas corpus vindicating his claim the Sacramento Superior Court lacked jurisdiction to sentence him in absentia under Penal Code section 1203.2a. ¹ We hold that under section 1203.2a the superior court must impose sentence within 30 days of receipt of a prisoner's request to be sentenced in absentia, failing which, the superior court loses jurisdiction. As a consequence of our holding, petitioner is entitled to a writ.

I

On January 27, 1994, the superior court suspended imposition of judgment and sentence on petitioner's plea of no contest to possession of a controlled substance (Health & Saf.Code, § 11377, subd. (a)) and granted petitioner probation. On March 31, 1994, petitioner was committed to state prison following the revocation of his parole on an unrelated Yolo County felony conviction.

On July 28, 1994, petitioner and a representative of the warden of the prison in which he was incarcerated prepared and signed a request under section 1203.2a for sentencing in absentia after revocation of probation due to prison commitment. The request was mailed to the superior court. The request was on a form provided for that purpose by the California Department of Corrections. The form identifies the number of the case in which petitioner is on probation and the date of conviction, and requests imposition of sentence. Petitioner initialed the form to indicate he waived his right to be present for sentencing and to be represented by an attorney, but expressly did not waive his right to be sentenced within the statutory time period.

The request for sentencing in absentia was filed in the Sacramento Superior Court on August 19, 1994. On September 15, 1994, the superior court sentenced petitioner in absentia to two years in the state prison, to be served concurrently with the parole violation term he was already serving. ²

After petitioner unsuccessfully sought a writ in the superior court challenging the jurisdiction of that court to pronounce sentence, he filed the instant habeas corpus petition in this court. We issued an order to show cause on May 26, 1995, and appointed counsel for petitioner.

Upon receipt of respondent's return and petitioner's traverse, it became apparent that an issue of fact exists regarding the date the superior court received petitioner's request for sentencing in absentia. Petitioner declared that even though the superior court filed his request for sentencing in absentia on August 19, 1994, the court actually received the request six days earlier, on August 13, 1994, a Saturday. ³ However, respondent declared the request was filed and received on August 19, 1994. Because the date of receipt of the request is decisive on the question of jurisdiction, on July 6, 1995, we appointed the Honorable Ronald B. Robie, Judge of the Sacramento Superior Court, as referee to resolve the factual dispute. (In re O'Malley (1950) 101 Cal.App.2d 80, 224 P.2d 488; see People v. Bailey (1969) 1 Cal.3d 180, 81 Cal.Rptr. 774, 460 P.2d 974.)

After conducting an evidentiary hearing, the referee submitted his findings to this court on October 4, 1995. As relevant, the referee found that petitioner's request for sentencing in absentia was received on (Saturday) August 13, 1994, by a reserve Sacramento County Sheriff's Deputy acting as an agent authorized by the Sacramento Superior Court to receive mail for certain departments of the superior court, including Department 32; that "[i]n the normal course of business, petitioner's [request for sentencing in absentia] should have been received in Department 32 on Monday, August 15, 1994;" and that the request for sentencing in absentia therefore was received on August 15, 1994. ⁴

The referee's "determinations resolve[ ] mixed questions of fact and law, and are subject to independent review by this court. [Citation.]" (In re Fields (1990) 51 Cal.3d 1063, 1068, 275 Cal.Rptr. 384, 800 P.2d 862.) We have made an "independent examination of the evidence taken before the referee" (In re Hochberg (1970) 2 Cal.3d 870, 874, fn. 2, 87 Cal.Rptr. 681, 471 P.2d 1), and hereby adopt the referee's findings that the request for sentencing in absentia was in fact received by an authorized agent of the Sacramento Superior Court on Saturday, August 13, 1994, and that in the normal course of business the request should have been received in department 32 on the next business day, Monday, August 15, 1994.

Moreover, we conclude, as did the referee, that as a matter of law the Sacramento Superior Court received the request for sentencing in absentia on Monday, August 15, 1994. With exceptions not relevant here, "the courts shall be closed for the transaction of judicial business on judicial holidays...." (Code Civ.Proc., § 134, subd. (a).) Saturdays and Sundays are judicial holidays. (Code Civ.Proc., § 135; Gov.Code, § 6700, subd. (a).) Because the Sacramento Superior Court's authorized agent in fact received the request for sentencing in absentia on a judicial holiday, when the court was not authorized to transact judicial business, the request will be deemed to have been received by the Sacramento Superior Court on the next business day, Monday, August 15, 1994.

II

Petitioner contends the 30-day period in section 1203.2a in which a trial court must impose sentence in absentia on an unsentenced probationer begins to run on the court's receipt of a request for sentencing in absentia, and thus the Sacramento Superior Court had lost jurisdiction when it sentenced petitioner on September 15, 1994, 31 days after receiving his request. We agree.

"Penal Code section 1203.2a permits a defendant who has been released on probation and subsequently committed to a state prison for another offense, to request the trial court that granted probation to revoke probation and impose sentence." (In re White (1969) 1 Cal.3d 207, 210, 81 Cal.Rptr. 780, 460 P.2d 980.) "Recognizing that probation may be granted either by (1) imposing judgment and sentence and suspending execution thereof or (2) suspending imposition of judgment and sentence, section 1203.2a provides for separate and distinct methods of disposition of an earlier order of probation where the probationer is later sentenced to state prison for a subsequent offense. [Citations.] Only in the second circumstance, where imposition of judgment was suspended, does section 1203.2a provide for a written waiver by an absentee probationer. In the [first] circumstance, the statute provides for an ex parte and summary revocation of probation without waiver...." (People v. Martinez (1975) 46 Cal.App.3d 736, 741, 120 Cal.Rptr. 362.) In either event, if the trial court fails timely to revoke probation under section 1203.2a, the court loses jurisdiction to do so. (§ 1203.2a.) ⁵ "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. [Citations.]" (People v. Ruster (1974) 40 Cal.App.3d 865, 870, 115 Cal.Rptr. 572.)

Section 1203.2a provides a convoluted, dimly penetrable description of the procedure to be followed when an unsentenced probationer, incarcerated on other charges, requests to have his probation revoked and sentence imposed in absentia. ⁶ Our reading of the statute indicates, and appellate decisions recognize, that such a probationer may either deliver his request for sentencing in absentia directly to the trial court (see, e.g., In re White, supra, 1 Cal.3d at p. 210, 81 Cal.Rptr. 780, 460 P.2d 980; In re Perez (1966) 65 Cal.2d 224, 227, fn. 1, 53 Cal.Rptr. 414, 418 P.2d 6; People v. Mahan (1980) 111 Cal.App.3d 28, 31-33, 168 Cal.Rptr. 428; People v. Rogers (1967) 252 Cal.App.2d 1015, 1018, 61 Cal.Rptr. 48), or to the probation officer, who must then inform the trial court of the probationer's prison commitment (see, e.g., In re Wimbs (1966) 65 Cal.2d 490, 497-498, fn. 5, 55 Cal.Rptr. 222, 421 P.2d 70; People v. Willett (1993) 15 Cal.App.4th 1, 6, 18 Cal.Rptr.2d 603; People v. Ruster, supra, 40 Cal.App.3d at pp. 868-869, 115 Cal.Rptr. 572; People v. Ford (1966) 239 Cal.App.2d 944, 946, 49 Cal.Rptr. 283). ⁷

As to a probationer who has previously been sentenced but execution of whose sentence has been suspended, section 1203.2a is unambiguous in indicating when the trial court's statutory time within which to issue its commitment commences. "The probation officer may, upon learning of the defendant's imprisonment, and must within 30 days after being notified in writing by the defendant or his or her counsel, or the warden or duly authorized representative of the prison in which the defendant is confined, report such commitment to the court which released him or her on probation." The trial court's obligation to issue its commitment commences "[u]pon being informed by the probation officer of the defendant's confinement, or upon receipt from the warden or duly authorized representative of any prison in this state or another state of a certificate showing that the defendant is confined in prison.... 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...