Filed 10/19/17

                 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                  SECOND APPELLATE DISTRICT

                            DIVISION SIX


THE PEOPLE,                             2d Crim. No. B279344
                                     (Super. Ct. No. 2010006420)
     Plaintiff and Appellant,             (Ventura County)

v.

GAVIN MICHAEL HAHN,

     Defendant and Respondent.



             In 2010, Gavin Michael Hahn was charged with
possession of a controlled substance. (Health & Saf. Code,
§ 11377, subd. (a).) Six years and 22 appearances later, the trial
court terminated Hahn’s probation and ordered him to serve 120
days in jail. Even though Hahn had failed to appear at seven
prior mandatory hearings, the court granted his request to report
at a later date to serve his jail term. Once again, Hahn failed to
appear. Following his arrest, the court determined it lacked
jurisdiction to order Hahn to serve the 120-day sentence. The
People appeal. We reverse with directions to order the sentence
executed.
                   PROCEDURAL BACKGROUND
              In 2010, Hahn pled guilty to felony possession of a
controlled substance (Health & Saf. Code, § 11377, subd. (a)) and
was placed on deferred entry of judgment for 24 months. Two
years later, deferred entry of judgment was revoked and Hahn
was placed on formal probation for a period of 36 months.
              On April 14, 2015, the trial court granted Hahn’s
petition for resentencing pursuant to Penal Code section 1170.1
and reduced his conviction to a misdemeanor. On the same day,
Hahn admitted a violation of probation. The court terminated
Hahn’s probation as unsuccessful and ordered him to serve 120
days in jail. At Hahn’s request, and notwithstanding his history
of failing to appear at scheduled hearings, the court permitted
him to be screened for work furlough and to report on May 4,
2015, to serve his jail term.
              In addition, Hahn pled guilty in another case to
misdemeanor possession of methamphetamine. (Health & Saf.
Code, § 11377, subd. (a).) The trial court sentenced Hahn to 120
days in jail, to be served concurrently with the 120 days ordered
in this case.
               Having sought and received the trial court’s
consideration in the hope that he would reform his behavior,
Hahn once again failed to comply with the court’s orders. He did
not report to serve his stayed jail term. On July 27, 2016, Hahn
was arrested on a warrant and brought to court. Hahn objected
when the court instructed him to serve the time previously
ordered. He claimed that because probation had been
terminated, the court was without power to remand him and
order that he serve his jail time. The court agreed, deleted the
jail time and discharged him from custody. The court stated:



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“[Hahn’s] probations were terminated in court on April [14,
2015]. He failed to appear or failed to remand in May. The Court
has no jurisdiction. He is discharged on both cases.”
                            DISCUSSION
              When the trial court terminated probation and
ordered Hahn to serve 120 days in jail, it stayed execution of the
sentence to allow Hahn time to be screened for work furlough. As
the People point out, “The court does not lose jurisdiction while a
stay is in effect, even where the sentence has been entered in the
minutes.” (People v. Gooch (1995) 33 Cal.App.4th 1004, 1007.)
Because “the execution of a judgment of conviction is the process
of carrying the judgment into effect” (People v. Karaman (1992)
4 Cal.4th 335, 344), a temporary stay of that execution does not
deprive the court of the ability to enforce the judgment.
              Code of Civil Procedure section 128, subdivision (a)(4)
is instructive.1 It provides that every court shall have the power
to “‘compel obedience to its judgments, orders, and process.’”
“This statute has codified the principle of ‘[t]he inherent power of
the trial court to exercise reasonable control over litigation before
it, as well as the inherent and equitable power to achieve justice
and prevent misuse of processes lawfully issued . . . .’ [Citation.]”
(Blueberry Properties, LLC v. Chow (2014) 230 Cal.App.4th 1017,
1021; see Code Civ. Proc., § 177, subd. (2) [a judge has the power
“[t]o compel obedience to his [or her] lawful orders”].) To carry


      1Code of Civil Procedure section 128 has been applied to
criminal as well as civil cases. (See People v. Superior Court
(Greer) (1977) 19 Cal.3d 255, 261, fn. 4, superseded by statute on
other grounds as stated in Stark v. Superior Court (2011) 52
Cal.4th 368, 416.)



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out this judicial power, “any suitable process or mode of
proceeding may be adopted which may appear most conformable
to the spirit of this Code.” (Code Civ. Proc., § 187.)2
             Here, the trial court believed it had no power to
enforce the sentence because probation had terminated. The
termination of probation, however, did not affect the court’s
power to enforce its lawful orders. That Hahn was not on
probation is irrelevant. The jail sentence was not imposed as a
term of probation, and the court was not asked to adjudge him to
be in violation of probation or to create or modify a probation
term. (See In re Bakke (1986) 42 Cal.3d 84, 89 [generally “a
probation order may be revoked or modified only during the
period of probation”].) The court was only asked to enforce a
prior lawful sentencing order. Hahn should have been required
to serve the 120-day sentence.
             As stated in In re Clark (1925) 70 Cal.App. 643, 647,
“‘It would be strange if, under such circumstances, the [trial]
court had no power to enforce the sentence.’” If that were the
case, the court, “‘after having, at [Hahn’s] request, stayed
proceedings . . . would be powerless to carry the judgment into
effect. The law does not contemplate any such absurdity.’”
(Ibid.)
             Indeed, if we were to uphold the trial court’s decision,
then a court may never grant a defendant’s request for a later
remand date without (1) imposing the additional burden of
retaining the defendant on probation or (2) creating an


      2Code of Civil Procedure section 187 also applies to
criminal cases. (People v. Walker (1948) 33 Cal.2d 250, 265-266;
People v. Hyde (1975) 49 Cal.App.97, 101; People v. Palermo Land
and Water Co. (1907) 4 Cal.App. 717, 722.)


                                  4
unenforceable order. As the People explain, “Returning a
recalcitrant defendant to probation yields no beneficial outcomes.
The defendant is subjected to additional terms, disobedience to
which will result in further violations and penalties. Court
resources will be tasked with reviewing the defendant’s
performance and adjudicating violations. The other alternative,
unenforceable orders, fosters gamesmanship and disrespect for
judicial orders.” We agree that neither of these options serves the
interests of justice.
             We also conclude that Hahn waived the right to
object to the trial court’s enforcement of the 120-day jail term
given that he requested that the sentence be stayed until May 4,
2015, and then failed to appear as scheduled. Hahn’s case is
similar to People v. Ham (1975) 44 Cal.App.3d 288, 294, in which
a probationer who appeared for a probation revocation hearing
requested a continuance to a date beyond the expiration of the
probation period. The Court of Appeal determined the trial court
retained the power to conduct the hearing and to revoke
probation as the probationer was estopped to complain that the
period had expired. (Ibid; accord In re Griffin (1967) 67 Cal.2d
343, 347; see In re Bakke, supra, 42 Cal.3d at p. 86 [trial court
retained jurisdiction to enforce jail term imposed as a condition of
probation because the defendant, in seeking a stay of the term
pending appeal, waived the right to object to its execution after
the probationary period had expired].) As in Ham, Griffin and
Bakke, Hahn is estopped to complain about the trial court’s
purported lack of jurisdiction given that his actions caused the
delay in enforcement of his sentence. (See Civ. Code, § 3517 [“No
one can take advantage of his own wrong”].)




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                          DISPOSITION
            The order deleting Hahn’s 120-day jail sentence and
discharging him from custody is reversed. The matter is
remanded to the trial court with directions to reinstate and
execute the 120-day jail sentence.
            CERTIFIED FOR PUBLICATION.




                                   PERREN, J.
We concur:



             YEGAN, Acting P. J.



             TANGEMAN, J.




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                Ferdinand D. Inumerable, Judge
               Superior Court County of Ventura
                ______________________________


           Gregory D. Totten, District Attorney, and Michelle J.
Contois, Deputy District Attorney, for Plaintiff and Appellant.
           Todd A. Howeth, Public Defender, and Russell L.
Baker, Senior Deputy Public Defender, for Defendant and
Respondent.




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