Opinion
NOT TO BE PUBLISHED
Humboldt County Super. Ct. No. CR044302AS.
Richman, J.
INTRODUCTION
This case could be called a comedy of errors-if the stakes were not so high. Defendant, convicted of rape in Humboldt County, was granted probation after sentence was imposed with execution suspended. After absconding from probation supervision, he was convicted and sent to prison for failing to register as a sex offender in Shasta County. After being notified by the probation department of defendant’s subsequent prison commitment, the Humboldt County court ordered the previously imposed sentence into effect under the expedited disposition provisions of Penal Code section 1203.2a.
Undesignated statutory references are to the Penal Code.
However, through a multitude of errors by participants in every phase of the proceedings, the court failed to comply with that statute’s 60-day sentencing deadline, and its commitment order was therefore void. Reversing the commitment order, however, results in reinstatement of a pre-existing order summarily revoking probation. We therefore remand for any further proceedings the court might deem to be within its jurisdiction to move forward on the probation revocation petition.
FACTUAL AND PROCEDURAL BACKGROUND
On the night of August 23, 2004, defendant Michael Dean Clements and his then girlfriend (and mother of his newborn infant) invited a 19-year-old female friend to their home to watch videos. Defendant used a central nervous system stimulant, and all three drank alcohol. Ultimately the 19-year-old passed out. While she was unconscious, defendant raped her with the assistance of his girlfriend.
On August 27, 2004, a complaint was filed charging defendant with five crimes arising out of the incident. On October 13, 2004, defendant pled guilty to rape of a person known to be too intoxicated to resist, in violation of section 261, subdivision (a)(3), and the other charges were dismissed. As part of a negotiated plea, defendant was granted six years’ probation on October 28, 2004, with one year in county jail. An eight-year aggravated sentence was imposed, with execution suspended.
Defendant was also charged with unlawful intercourse with an unconscious person (§ 261, subd. (a)(4)); unlawful oral copulation of an unconscious person (§ 288a, subd. (f)), conspiracy to commit rape (§ 182, subd. (a)(1)), and unlawful use of a controlled substance (Health & Saf. Code, § 11550, subd. (a)).
Defendant remained in jail until January 3, 2005. In February, he met with his probation officer and registered as a sex offender. Defendant initially reported to his probation officer regularly, and on July 20, 2005, he updated his sex offender registration. In July 2005, defendant’s probation officer reported to the court that a compound bow (but no arrows) were found in defendant’s residence, as well as DVD covers with sexually explicit content (but no DVDs). At that time, defendant was allowed to remain on probation.
That registration was the last form filed by defendant in Humboldt County. On February 9, 2007, the district attorney filed a complaint in docket no. CR070651S for failure to register under section 290.010, alleging the prior rape conviction as a strike prior.
Defendant also participated in sex offender treatment as a condition of probation. In December 2005, however, the treatment program reported that defendant was not in compliance with the program and his whereabouts were unknown. Shortly thereafter, defendant was terminated from the program, and the probation officer also lost contact with him and concluded that he had absconded from supervision.
On January 11, 2006, the probation department notified the court that defendant had violated probation by failing to comply with his probation officer’s directions, failing to comply with the sex offender treatment program, and possessing sexually explicit material. The court summarily revoked probation and issued a no bail warrant on January 25, 2006.
In approximately August or September 2008, probation officer Morris Pratton learned that defendant had been arrested in Shasta County, and in November learned defendant had been committed to state prison for failure to register as a sex offender.
The Attorney General quotes testimony by probation officer Barbara Robie in his respondent’s brief. Robie’s testimony was utterly irrelevant to the issue upon which we requested briefing.
Defendant had been convicted in Shasta County on September 17, 2008. On October 1, 2008, he was sentenced to the mitigated term of 16 months in prison, doubled to 32 months, based on his prior strike conviction for rape (§ 261, subd. (a)(3)) in Humboldt County. (§ 1170.12, subd. (c)(1).)
On January 14, 2009, Pratton filed a request to calendar a hearing in Humboldt County on February 4, 2009, pursuant to section 1203.2a, which also asked the court to proceed on the earlier probation revocation matter. An amended request, substantially identical in content, was filed on February 6, 2009.
Defendant requested to be present for the proceeding, and he was transported to Humboldt County, where he first appeared on March 5, 2009. On March 18, 2009, 63 days after the court in Humboldt County was first advised of defendant’s subsequent imprisonment, the court conducted a probation revocation hearing on the petition filed in 2006, as well as a hearing regarding jurisdiction under section 1203.2a, and a preliminary examination on a new complaint.
The revocation hearing was combined with a preliminary examination on the failure to register charge that had been filed in February 2007. (See fn. 3, ante.) Although defendant was held to answer on that charge, it was subsequently dismissed after defendant was sentenced on the probation revocation matter.
Defense counsel argued that the court lacked jurisdiction under section 1203.2a because the probation department had failed to notify the court of defendant’s imprisonment within 30 days after learning of it. After taking evidence, the court found the probation officer had no mandatory duty to notify the court of defendant’s imprisonment because he had not received written notice from any of the sources listed in section 1203.2a (2d par.).
The court revoked defendant’s probation. After defense counsel pressed the court to declare whether it was proceeding under section 1203.2a or on the earlier petition to revoke probation, the court announced it was proceeding under section 1203.2a. It lifted the stay of execution of the eight-year sentence previously imposed and ordered that sentence to run concurrently with the Shasta County sentence. Defendant filed a timely notice of appeal, alleging as an issue “sentencing pursuant to Penal Code section 1203.2a.”
The Attorney General notes that the reporter’s transcript is less than clear because it designates the section “1203.2 subdivision (a).” While inaccurate, we believe the references, in context, were clearly to section 1203.2a.
Defendant’s appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. We requested briefing on whether the court acted in excess of jurisdiction by sentencing defendant after the 60-day period provided under section 1203.2a. We now address that issue.
DISCUSSION
I. The Court Erred in Lifting the Stay on the Previously Imposed Sentence Under Section 1203.2a More Than Sixty Days After the Probation Officer Filed Notice of Defendant’s Subsequent Prison Commitment
A. Section 1203.2a was originally intended to provide a speedy in absentia sentencing proceeding for probationers subsequently imprisoned on unrelated charges so that they could receive concurrent sentencing if the court were so inclined
Section 1203.2a, quoted in full in the margin, is “not a model of clarity.” (People v. Murray (2007) 155 Cal.App.4th 149, 154 (Murray).). Interpreting it has been called “an unenviable chore.” (People v. Holt (1991) 226 Cal.App.3d 962, 965.) “The statute reflects a disregard for careful drafting and contempt for the English language. Meandering clauses in which the subject and predicate are ruthlessly separated from one another, jumps in thought and logic, and a lack of organization make the going difficult.... [¶]... [¶] The first paragraph could be used as a device to drive surplus students out of law school. It consists of one sentence, one hundred seventy-seven words long.” (Id. at pp. 965-966; accord, In re Hoddinott (1996) 12 Cal.4th 992, 1003, fn. 7 (Hoddinott); In re Walters (1995) 39 Cal.App.4th 1546, 1553, fn. 6 (Walters), overruled on other grounds in Hoddinott, supra, at p. 1005; see also Murray, supra, 155 Cal.App.4th at p. 158, fn. 10 [recommending revision].) Despite this well-aimed criticism, section 1203.2a has not been amended since 1989.
Section 1203.2a reads as follows:
First enacted in 1941, the purpose of section 1203.2a was to provide a mechanism whereby a defendant who was granted probation on one offense and who, while still on probation, was convicted of a second felony and imprisoned for it, could compel the court to sentence him expeditiously on the first offense so he could serve the two sentences concurrently if the court were so disposed. (Hoddinott, supra, 12 Cal.4th at pp. 998-999.) The statute anticipated that the sentencing would occur in the defendant’s absence and without representation by counsel. (Ibid.;accord People v. Wagner (2009) 45 Cal.4th 1039, 1056 (Wagner).)
The statute continues to provide for in absentia sentencing of probationers whose sentencing was initially suspended with a grant of probation, but only if they waive presence and counsel. (§ 1203.2a, 1st & 3d par.) For probationers who were sentenced when probation was granted, with execution stayed, the statute “provides for an ex parte and summary revocation of probation without waiver....” (People v. Martinez (1975) 46 Cal.App.3d 736, 741.) However, despite this feature of the statute, by 1972 the courts had enlarged probationers’ procedural due process rights, holding that even a probationer who was previously sentenced with execution stayed is entitled to a hearing before probation is revoked and the earlier imposed sentence ordered into execution. (People v. Vickers (1972) 8 Cal.3d 451, 458-460; see also, Morrissey v. Brewer (1972) 408 U.S. 471, 482-488 [parolee].) In light of these developments, the courts have held-or at least assumed-that a previously sentenced defendant has a constitutional right to demand a hearing with counsel when his sentence is ordered into execution under section 1203.2a, while also holding that the sentencing must occur within 60 days after the court receives notice of the subsequent prison commitment. (People v. Timmons (1985) 173 Cal.App.3d 1000, 1007-1008; People v. Martinez, supra, 46 Cal.App.3d at pp. 741-742 [30-day sentencing period then in effect].)
To ensure speedy disposition, the statute sets time limits requiring government participants to move promptly in the probation revocation and sentencing process. “[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 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.)
Since defendant had already been sentenced with execution stayed, there was but one applicable time limit under section 1203.2a, namely, the court was required to issue its commitment within 60 days after being informed by the probation officer or receiving certification by an authorized prison representative of the defendant’s subsequent prison commitment. (§ 1203.2a, 3d par.; Walters, supra, 39 Cal.App.4th at p. 1554.)
If imposition of sentence was suspended at the time probation was granted, a probationer subsequently convicted of and imprisoned for a new offense may either (1) invoke the 30-day sentencing provision of section 1203.2a, but only if he waives personal presence and representation by counsel, or (2) assert his right to a probation revocation hearing with counsel within 90 days under section 1381. (Wagner, supra, 45 Cal.4th at pp. 1045-1046.) Thus, if the probationer insists upon an in-person hearing, he must submit to a longer time period for completion of the process. Wagner specifically declined to address whether the same options would be available to a defendant, like the one before us, who had received a specific sentence at the time probation was granted, with execution stayed. (Id. at p. 1050, fn. 5.)
B. History of errors that led to untimely sentencing under section 1203.2a
We outline here a series of missteps by participants in every phase of the probation revocation process that led to what we conclude is a void order. First, the probation officer apparently failed to serve the parties, including the district attorney’s office, when he filed the request to calendar a hearing under section 1203.2a on January 14, 2009, requesting that the case be heard on February 4, 2009.
What happened on February 4 cannot be determined from the record, but an amended request to calendar the section 1203.2a hearing was filed February 6, 2009, which was identical to the original notice, except it changed the requested hearing date to February 9, 2009.
On February 9, the public defender announced that defendant had “requested to return” to Humboldt County. (See fn. 9, ante.) When the prosecutor expressed confusion about the proceedings, the judge explained, “He needs to be sentenced or jurisdiction is going to be lost. It’s come to the notice of the probation officer that Mr. Clements is in custody, so [the probation officer has] noticed the court... of that fact....” The court made it clear, “The burden goes to the People to determine how they’re going to proceed and there’s time limits within the statute.” If those time limits were not met, the court warned, “jurisdiction expires.” The prosecutor was instructed to get a copy of the calendar request “from the probation officer.” Thus, the prosecutor knew this was a time sensitive matter in which noncompliance with the statutory deadline could result in loss of jurisdiction.
The court made no mention during the February 9 hearing that an earlier calendar request had been submitted. On the other hand, since the February 6 filing was called an “amended” request, it should have tipped off the prosecutor that there had been an earlier filing. And surely, having been essentially directed by the court to confer with the probation officer, the prosecutor should have inquired about the filing history. Failure to make sure the hearing was scheduled within the 60-day period was the second major error in this debacle.
On March 5 defendant was present in court, the public defender was appointed to represent him, and the probation revocation hearing was set for March 18. Again, the prosecutor missed an opportunity to insist that the matter be heard prior to the expiration of the 60-day deadline. (§ 1203.2a, 3d par.)
On March 18, when the matter came on for hearing, defense counsel asked if the court had received the “amended or first request to calendar hearing, ” which he said he had “received” on February 6, 2009. The court acknowledged it had that document. The court later noted, though no one seemed to pay much attention, “[t]he original request pursuant to section 1203.2a appears to have been filed on the 14th of January 2009.” This statement, again, should have triggered some recognition in the courtroom that the 60-day period for committing defendant to prison under section 1203.2a had expired. But none of the participants seemed to place any significance on that date.
The closest the prosecutor came to acknowledging the problem was in urging the court to proceed to sentencing on March 18, rather than referring the matter for a probation report, because “[t]here might be time limits running now as to when the court has to impose the sentence on the violation of probation.”
Although defense counsel challenged the court’s jurisdiction under section 1203.2a-based on a theory that the probation officer had delayed in reporting defendant’s incarceration (§1203.2a, 2d par.)-he did not challenge jurisdiction on the basis that more than 60 days had elapsed since the original calendar request had been filed. This appears to be attributable at least in part to the probation officer’s failure to serve the initial calendar request on the parties, as both counsel appear to have been under the impression that the February 6 calendar request was the initial filing.
The third paragraph of section 1203.2a, however, places a time limit directly on the court in the following words: “Upon 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, 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.” The fifth and final paragraph of section 1203.2a further provides: “In the event the probation officer fails to report such commitment to the court or the court fails to impose sentence as herein provided, the court shall be deprived thereafter of all jurisdiction it may have retained in the granting of probation in said case.” (See Hoddinott, supra, 12 Cal.4th at p. 999 [“Failure to comply with any one of [the] three time limits divests the court of any remaining jurisdiction.”].)
Thus, if the court was “informed” or “notified” of defendant’s confinement upon the filing of the first calendar request on January 14, 2009, its commitment order under section 1203.2a was untimely. More troubling still, the statute suggests that the court may have lost jurisdiction as a result of this error.
C. The 60-day period for the court to issue its commitment order began to run on January 14, 2009, when the first calendar request was filed by the probation officer
The Attorney General asks us not to treat the January 14 filing as triggering the 60-day time limit for disposition because the statute requires that the court be “informed” of defendant’s incarceration-which he equates with actual knowledge-before the court must act. He suggests the court was not “informed” of defendant’s incarceration until the February 9 hearing, when it acknowledged on the record having received a calendar request.
We cannot agree with such an interpretation. The operative language is “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., italics added.) The statute requires nothing more than notice, which surely was effectuated when the probation officer filed the first calendar request on January 14, 2009.
The Attorney General’s reliance on Walters, supra, 39 Cal.App.4th 1546 is unavailing. There, the question was whether a request for in absentia sentencing, sent by the defendant from prison, began the 30-day sentencing period from the time it was (a) sent from the prison (id. at pp. 1555-1556); (b) received by the court (id. at p. 1552); or (c) filed by the court (which was several days after its receipt) (id. at pp. 1550-1551, 1556-1558). Walters decided the 30-day period commenced upon the court’s receipt of the sentencing request, not upon its subsequent filing. (Id. at pp. 1551, 1556-1558.)
In Walters, the prisoner’s notice was signed for on a Saturday, when the court was closed, by a sheriff’s deputy authorized to receive mail on the court’s behalf. (Walters, supra, 39 Cal.App.4that p. 1551.) Since the court was not authorized to transact business on that day, the Court of Appeal held the 30-day sentencing period commenced on the following Monday, the next court business day, despite the fact that the document was not filed until the following Friday. There was no indication in the opinion that any judge or judicial employee had read the document on Monday, nor did the court place any emphasis on the actual reading of the document as the event which would trigger the statutory sentencing period. (Ibid.)
Walters held the 60-day mandatory sentencing period commences upon initial receipt by the court of notice of defendant’s incarceration, but it in no way supports the proposition that formal filing of a document with the clerk of the court fails to start the jurisdictional clock running. Under Walters, the statutory period may start to run before the actual filing of the document if filing is delayed, but nothing in Walters suggests that the period may be deemed to begin to run after the filing of appropriate notice.
To adopt the Attorney General’s interpretation would do violence to both the statutory language and the statutory intent. It would not only allow the court to delay indefinitely simply by failing to read filed documents, but it would require inquiry in every case as to when the judge first read each notice. Such a rule would be ineffective and unworkable.
Because the commitment order was not issued within 60 days after the filing of the probation officer’s initial notice on January 14, 2009, it was not timely under section 1203.2a, which was the statute specifically invoked by the trial court in ordering execution of the previously imposed eight-year sentence. We therefore reluctantly conclude that the court’s commitment order of March 18, 2009, was void and must be reversed. However, because the question of continuing jurisdiction has not been briefed by the parties, we will remand the case for further consideration of that issue.
D. The appropriate remedy
Section 1203.2a provides that “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, ” and if it fails to meet the statutory sentencing deadline, the court “shall be deprived thereafter of all jurisdiction it may have retained in the granting of probation in said case.” (§ 1203.2a, 3d & 5th par.)
Though the statute’s language seems to have sweeping implications, two distinctive aspects of this case caution us against issuing any order restricting the superior court’s jurisdiction to act further in this matter.
First, the failure to register in Shasta County was just one of the reasons asserted for revoking defendant’s probation. The calendar request under section 1203.2a also included allegations that defendant had two local felony arrest warrants, and it cross referenced a probation revocation petition alleging defendant had failed to comply with sex offender treatment and had possessed a deadly weapon and sexually explicit materials. In fact, it appears that defendant had absconded from the supervision of his probation officer long before his subsequent conviction in Shasta County.
Second, those earlier acts in Humboldt County had resulted in the summary revocation of defendant’s probation long before the Shasta County prison commitment. (§ 1203.2.) We seriously question whether the jurisdictional divestiture referred to in section 1203.2a was intended to apply to an incarcerated felon on whom sentence had already been imposed and stayed and whose probation had been summarily revoked before the subsequent conviction and sentence.
Neither party’s brief addressed the jurisdictional issue at any length. Defendant argued simply that the court’s order directing execution of the previously suspended eight-year prison term must be declared void, with the original suspended eight-year sentence reinstated and probation granted, citing Murray, supra, 155 Cal.App.4th at p. 158. We agree that the order was void, but the question remains what, if any, jurisdiction is retained by the court that granted-and later summarily revoked-defendant’s probation?
Murray, supra, 155 Cal.App.4th 149 is similar to this case in that the defendant had violated probation even before he committed the crime that led to his subsequent commitment. Convicted of a drug offense, Murray was sentenced to prison for seven years, with execution suspended during a five-year period of probation. (Id. at p. 152.) Murray entered a drug rehabilitation program (evidently as a condition of probation) and, like defendant here, was terminated from the program. He also failed to appear for an appointment with his probation officer shortly thereafter. (Ibid.)
Though the probation department was aware of this probation-violating conduct, it had not filed a petition to revoke probation before Murray committed another drug offense and was imprisoned for it. (Murray, supra, 155 Cal.App.4th at pp. 152-153.) Even after the probation officer was advised in writing of Murray’s subsequent incarceration, he neglected to inform the court while Murray was still in prison, mistakenly believing he was required to report a subsequent prison commitment only if the written notice complied with the waiver requirements of section 1203.2a, 1st paragraph. (Id. at pp. 153-154.) After Murray was released from prison, the probation officer filed a petition for revocation of probation based on Murray’s failure in the drug treatment program and his subsequent conviction. (Id. at p. 153.) The court revoked probation and lifted the prior stay of execution on the sentence originally imposed. (Id. at p. 154.)
The Court of Appeal had no choice but to reverse the commitment order, as it was clear the probation officer had received written notice of the subsequent conviction and prison commitment well over 30 days before reporting it to the court. (Murray, supra, 155 Cal.App.4th at pp. 156-158.) The opinion therefore focused primarily on the appropriate remedy. (Id. at p. 158 159.)Distinguishing Hoddinott on grounds that it dealt with a probationer who had not previously been sentenced, Murray reversed the commitment order, but reinstated the original sentence, with execution stayed and probation granted. (Ibid.) In other words, it restored the parties to the status quo ante.
Murray distinguished cases in which imposition of sentence had been suspended in the first case, where a violation of section 1203.2a would result in the court’s loss of jurisdiction “ ‘to impose sentence on the original offense, ’ ” from those in which sentence had originally been imposed with execution suspended, as here. (Murray, supra, 155 Cal.App.4th at p. 158, quoting Hoddinott, supra, 12 Cal.4th at p. 998 .) In the latter category of cases, “[w]hen it imposed sentence but suspended execution and placed appellant on probation, the superior court possessed the requisite jurisdiction. It follows that its subsequent divestiture of jurisdiction, pursuant to section 1203.2a, rendered its order directing execution of the previously suspended... prison term void, but did not affect the original sentence. That sentence is, in effect, reinstated.” (Murray, supra, 155 Cal.App.4th at p. at p. 158.)
Since the parties had not briefed the question of jurisdiction, Murray declined to decide “what, if any, jurisdiction the superior court retains over appellant with respect to the original terms of the reinstated sentence.” (Murray, supra, 155 Cal.App.4th at p. 158.) The core holding seems to be that a void order under section 1203.2a-at least in cases where sentence was imposed with execution suspended-simply reinstates the status quo ante, leaving valid prior orders intact.
In the present circumstances, we are even more reluctant to determine that jurisdiction has been lost by the court’s failure to meet the 60-day sentencing deadline, given that defendant’s probation had already been summarily revoked before the section 1203.2a notice was filed. Unlike Murray, defendant in this case was not actively on probation at the time he was apprehended and brought to trial in Shasta County. His probation had long since been revoked in Humboldt County and a warrant had been issued for his arrest.
In that sense, our case is closer to People v. Willett (1993) 15 Cal.App.4th 1, overruled on other grounds in Hoddinott, supra, 12 Cal.4th at p. 1005, in which probation had already been summarily revoked based on the defendant’s subsequent criminal conduct before she was convicted and imprisoned on the basis of that conduct. (Willett, supra, at p. 4.) Hoddinott distinguished Willett on the basis that “the probation-granting court had already revoked probation in the first case before the defendant was committed to state prison for the subsequent offense.” (Hoddinott, supra, 12 Cal.4th at p. 1002.) If this distinction was noteworthy in Willett, it is all the more so here, for the prior summary revocation was based on acts preceding and distinct from the conduct that led to defendant’s Shasta County conviction.
Indeed, one of the underlying assumptions of section 1203.2a seems to be that the reason for revoking probation is the subsequent felony conviction resulting in imprisonment. If that had been the only basis for revoking probation in this case, perhaps the court would have lost jurisdiction by failing to abide by the 60-day sentencing deadline. However, we seriously doubt that the Legislature intended to deprive the court of jurisdiction to proceed with a formal revocation hearing for a convicted rapist where probation had been summarily revoked before defendant’s subsequent conviction on the basis of conduct unrelated to that underlying the subsequent conviction. Some appellate opinions that have found a failure to abide by the time limits established in section 1203.2a have also included instructions to the trial court to terminate probation. (E.g., Walters, supra, 39 Cal.App.4th at p. 1560; Pompi v. Superior Court (1982) 139 Cal.App.3d 503, 508.) Without briefing on the issue, we are unwilling to make a jurisdictional decision that would amount to giving defendant a “get out of jail free” card.
Although we reverse the order of March 18, 2009, under the rationale of Murray, we reinstate the order of January 25, 2006, summarily revoking defendant’s probation. And like Murray, we decline to advise the superior court what, if any, jurisdiction it retains over defendant in the probation revocation matter.
DISPOSITION
The order of March 18, 2009, committing defendant to prison is reversed, and the eight-year sentence vacated. The sentence imposed, with execution stayed, on October 28, 2004, is reinstated, as is the order of January 25, 2006, summarily revoking probation. The cause is remanded to the superior court for a determination of its own jurisdiction to conduct further proceedings in this action.
We concur: Haerle, Acting P.J., Lambden, J.
“If any defendant who has been released on probation is committed to a prison in this state or another state for another offense, the court which released him or her on probation shall have jurisdiction to impose sentence, if no sentence has previously been imposed for the offense for which he or she was granted probation, in the absence of the defendant, on the request of the defendant made through his or her counsel, or by himself or herself in writing, if such writing is 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 attests both that the defendant has made and signed such request and that he or she states that he or she wishes the court to impose sentence in the case in which he or she was released on probation, in his or her absence and without him or her being represented by counsel.
“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.
“Upon 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, the court shall issue its commitment if sentence has previously been imposed. If sentence has not been previously imposed and if the defendant has requested the court through counsel or in writing in the manner herein provided to impose sentence in the case in which he or she was released on probation in his or her absence and without the presence of counsel to represent him or her, 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 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. 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.
“Upon imposition of sentence hereunder the commitment shall be dated as of the date upon which probation was granted. If the defendant is then in a state prison for an offense committed subsequent to the one upon which he or she has been on probation, the term of imprisonment of such defendant under a commitment issued hereunder shall commence upon the date upon which defendant was delivered to prison under commitment for his or her subsequent offense. Any terms ordered to be served consecutively shall be served as otherwise provided by law.
“In the event the probation officer fails to report such commitment to the court or the court fails to impose sentence as herein provided, the court shall be deprived thereafter of all jurisdiction it may have retained in the granting of probation in said case.”