Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Humboldt County Super. Ct. No. CR032592
Ruvolo, P. J.
I.
INTRODUCTION
Appellant, Dorrell Lashan Wesson, appeals from the judgment revoking probation and sentencing him to a term of three years in state prison. On appeal, he challenges the jurisdiction of the trial court to impose sentence, pursuant to Penal Code section 1203.2a. For the reasons set forth below, we affirm the judgment.
Unless otherwise noted, all undesignated statutory references hereafter are to the Penal Code.
II.
FACTS AND PROCEDURAL BACKGROUND
On May 13, 2003, a Humboldt County deputy sheriff found a wooden baseball bat wrapped with masking tape under the driver’s seat of appellant’s car. Appellant was charged with possession of a billy club (§ 12020, subd. (a)(1)). On May 23, 2003, appellant entered a plea of guilty to the charge, and on June 23, 2003, the court suspended sentence and placed appellant on three years probation.
On December 11, 2003, the probation department alleged appellant violated probation by failing to report, failing to seek or maintain employment, changing residence, failing to comply with all instructions of his probation officer, and failing to attend court-ordered counseling. Appellant’s probation was summarily revoked and a bench warrant issued on January 5, 2004.
On February 13, 2006, appellant sent a letter from a Nevada jail to his probation officer in Humboldt County requesting that his California probation run concurrent with his Nevada prison sentence. He explained that he had been sentenced to a 16 to 34-month prison term in Nevada and was awaiting transfer to a prison in Nevada; he also stated his desire not to return to Humboldt County. The probation officer notified the court which, in turn, denied appellant’s request after a hearing held on March 24, 2006.
We summarize appellant’s February 13, 2006 letter in relevant part only, as it was included in the confidential documents provided in the record on appeal (Gov. Code, § 6252, subd. (a); McGuire v. Superior Court (1993) 12 Cal.App.4th 1685, 1687), and was quoted in appellant’s reply brief. Respondent does not contest its existence or content.
After completing his Nevada sentence, appellant was extradited back to California. On March 7, 2007, appellant admitted the probation violation, and on April 4, 2007, he was sentenced to three years in state prison for violation of section 12020, subdivision (a)(1).
On April 10, 2007, appellant filed a timely notice of appeal from the sentence entered on April 4, 2007.
III.
DISCUSSION
Appellant contends the trial court lost jurisdiction under section 1203.2a to sentence him for the 2003 Humboldt County conviction. Section 1203.2a permits an individual, who is released on probation and who thereafter is committed to prison for another offense, to request the trial court in the first matter in which probation has been granted, to revoke probation and impose sentence. “The purpose of section 1203.2a is to prevent a defendant from inadvertently being denied the benefit of Penal Code section 669 that sentences be concurrent unless the court exercises its discretion to order that a subsequent sentence be consecutive to a prior sentence. Before section 1203.2a was enacted, if the court that granted probation was unaware of a defendant’s subsequent incarceration for another offense and had therefore failed to revoke probation, the defendant might serve the entire term for the other offense but still be subject, on revocation of probation, to serving the term for the offense for which he had been given probation.” (In re White (1969) 1 Cal.3d 207, 211, fn. omitted.)
Section 1203.2a provides as follows: “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 statute sets forth both the procedure for requesting sentencing and timelines that must be followed when a request is made. These procedures and deadlines differ depending on the procedural posture of the case, i.e., whether, as in this case, imposition of sentence was suspended and probation was granted, or where sentence was imposed but execution of the sentence was suspended and probation granted. As our Supreme Court has recognized, “section 1203.2a provides for [three] 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 . . .; (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 . . .; 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 . . . . Failure to comply with any one of these three time limits divests the court of any remaining jurisdiction.” (In re Hoddinott (1996) 12 Cal.4th 992, 999.)
Appellant asserts the trial court lacked jurisdiction in failing to comply with the second “jurisdictional clock” after it received timely notice of defendant’s written request from the probation officer, and failed to sentence him in absentia within 30 days.
“[R]equests for sentencing pursuant to section 1203.2a must be in strict compliance with that section. [Citations.]” (People v. Willett (1993) 15 Cal.App.4th 1, 7, disapproved on other grounds in In re Hoddinott, supra, 12 Cal.4th at pp. 1004-1005.) The “30-day jurisdictional clock begins to run only upon receipt of a valid request for absentee sentencing.” (In re Hoddinott, supra, 12 Cal.4th at p. 1001, italics added.) “Loss of jurisdiction over a convicted felon is a severe sanction which courts have been unwilling to apply unless the sentencing court’s jurisdiction has been ousted by strict compliance with the statute. [Citations.]” (People v. Como (1975) 49 Cal.App.3d 604, 609; see also Pompi v. Superior Court (1982) 139 Cal.App.3d 503, 507; People v. Davidson (1972) 25 Cal.App.3d 79, 84; In re Brown (1971) 19 Cal.App.3d 659, 666, disapproved on other grounds in In re Hoddinott, supra, 12 Cal.4th at p. 1005.)
To determine whether there has been strict compliance with the requirements of the statute, we start with the language of the statute itself. (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1386-1387.) In doing so, we must read paragraph one of the statute in conjunction with paragraph three. Paragraph three of section 1203.2a states that “[u]pon being informed by the probation officer of the defendant’s confinement . . . [i]f sentence has not been previously imposed and . . . the defendant has requested the court . . . in writing in the manner herein provided to impose sentence . . . in his or her absence . . ., the court shall impose sentence and issue its commitment . . . .” (§ 1203.2a, italics added.)
The only “manner herein provided” in section 1203.2a is set forth in paragraph one. Paragraph one states that a written request for in absentia sentencing is valid if “such a 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.” (Ibid.)
Appellant failed to meet the strict writing requirements of section 1203.2a in several important respects. First, appellant’s letter requested the Humboldt County court to order his probation to run concurrent with the Nevada sentence he was serving. He did not make a specific request for sentencing in absentia or waive his right to appear at sentencing. Appellant asks this court to infer a specific request from the letter’s context. However, “if the court pronounces judgment in the absence of such a request and waiver, it violates the defendant’s constitutional rights to have the assistance of and to be personally present with counsel. [Citation.]” (People v. Willett (1993) 15 Cal.App.4th 1, 7, disapproved on other grounds in In re Hoddinott, supra, 12 Cal.4th at p. 1002; People v. Ruster (1974) 40 Cal.App.3d 865, 871, also disapproved on other grounds in In re Hoddinott, supra, 12 Cal.4th at p. 1002.)
Drawing the inference appellant urges is not reasonable. Apparently, appellant was unaware that his probation had been revoked in January 2004, inasmuch as he requested only that his probation be ordered to run concurrent with his Nevada incarceration. In light of this, we simply are not able to conclude that appellant was actually making a request that he be sentenced in the Humboldt County matter, and that he was waiving his rights to be present with counsel at sentencing. Thus, while appellant expressed the wish not to return to Humboldt County, his letter reasonably cannot be interpreted as a waiver of his constitutional rights. Therefore, appellant’s letter was textually inadequate to constitute compliance with section 1203.2a.
We note that when appellant was sentenced on April 4, 2007, he appeared at sentencing with counsel, and his counsel argued for imposition of a mitigated term.
Secondly, appellant did not sign the letter in the presence of the warden or duly authorized representative of the warden or obtain the warden’s, or a duly authorized representative’s, attestation to appellant’s request, as required by section 1203.2a. This defect has itself been found to be sufficient cause to reject a defendant’s claim that the sentencing court lacked jurisdiction under section 1203.2a. (People v. Jones (1987) 189 Cal.App.3d 1453, 1456, disapproved on other grounds in In re Hoddinott, supra, 12 Cal.4th at p. 1002.)
Lastly, the letter failed to notify the court that, not only had he been sentenced to Nevada state prison, but that he had actually begun serving that sentence. (People v. Como, supra, 49 Cal.App 3d at p. 609.) In Como, the court found the document insufficient where it reported the sentence, but not the commitment or confinement. Similarly, in this case, appellant’s letter stated that he had been sentenced to 16 to 34 months in Nevada and was awaiting transfer to a state prison in Nevada. This hardly serves as notice that appellant had actually been committed, or begun his confinement in state prison.
Assuming noncompliance with section 1203.2a, appellant asks the court to disregard any statutory shortcomings and conclude that the letter was in substantial compliance with the statute. Appellant cites no authority supporting his conclusion that the substantial compliance rule is applicable to section 1203.2a. To the contrary, as noted above, courts interpreting section 1203.2a consistently have required a probationer’s written request to be in strict compliance with section 1203.2a. (People v. Como, supra, 49 Cal.App.3d at p. 609; see also Pompi v. Superior Court, supra, 139 Cal.App.3d at p. 507; People v. Davidson, supra, 25 Cal.App.3d at p. 84; In re Brown, supra, 19 Cal.App.3d at p. 666, disapproved on other grounds in In re Hoddinott, supra, 12 Cal.4th at p. 1005.) Even if a substantial compliance standard applied to section 1203.2a’s notice requirements, appellant’s letter is far from even substantial compliance with those requirements.
Finally, appellant argues that it is improper for respondent to raise noncompliance with section 1203.2a on appeal, because the prosecutor failed to raise this issue in the trial court. While matters not raised below ordinarily are waived, appellant’s section 1203.2a argument is nonwaivable because it challenges the court’s jurisdiction to impose any sentence on him. (People v. Blanchard (1996) 42 Cal.App.4th 1842, 1847.) Having raised the nonwaivable jurisdictional issue on appeal, we can only evaluate that claim of error by considering if the notice requirements of the statute were, in fact, met by appellant.
In any event, “whether the [waiver] rule shall be applied is largely a question of the appellate court’s discretion. [Citation.]” (Resolution Trust Corp. v. Winslow (1992) 9 Cal.App.4th 1799, 1810.) We exercise our discretion in favor of considering the issue of noncompliance. It would be particularly unfair to accept appellant’s waiver argument, when his own trial counsel admitted at sentencing that appellant had not strictly complied with the notice requirements. In fact, trial counsel instead asked the court to consider appellant’s attempt to give notice under section 1203.2a, as a mitigating factor in sentencing. Therefore, the prosecutor had no occasion to raise the noncompliance issue because appellant’s own counsel conceded it below.
IV.
DISPOSITION
The judgment is affirmed.
We concur: Reardon, J., Sepulveda, J.
“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 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.”