Filed 5/16/19
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                          DIVISION TWO



 THE PEOPLE,                               B291670

         Plaintiff and Respondent,         (Los Angeles County
                                           Super. Ct. No. NA100408)
         v.

 JOSEPH SMITH,

         Defendant and Appellant.


     APPEAL from a judgment of the Superior Court of Los
Angeles County. Jesse I. Rodriguez, Judge. Affirmed.

      Lori A. Quick, under appointment by the Court of Appeal,
for Defendant and Appellant.

      Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Zee Rodriguez, Supervising Deputy Attorney
General, Noah P. Hill and Stephanie C. Santoro, Deputy
Attorneys General, for Plaintiff and Respondent.
                            ******
       Under Penal Code section 1381, a criminal defendant who
is sentenced to a crime has a right to demand that he be brought
to trial and sentenced within 90 days in any other “pending . . .
criminal proceeding,” anywhere in the state, in which he
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“remains to be sentenced.” (Pen. Code, § 1381.) Does section
1381 apply to a proceeding in which the trial court imposed a
specific sentence on defendant, suspended execution of that
sentence, and placed defendant on probation? Our Supreme
Court left that question unanswered in People v. Wagner (2009)
45 Cal.4th 1039, 1050, fn. 5 (Wagner). We conclude that the
answer is “No.” Accordingly, we affirm the trial court’s identical
conclusion.
         FACTS AND PROCEDURAL BACKGROUND
I.     Facts
       A.    Underlying crime
       Joseph Smith (defendant) sold $13,800 in automotive
repair equipment to his landlord in lieu of paying unpaid back
rent, but absconded with that equipment when he vacated the
premises. The People charged defendant with grand theft of
personal property (§ 487, subd. (a)). In late 2015 and early 2016,
defendant pled no contest to the charge and was placed on formal
probation for three years, which included a requirement that he
make restitution to the landlord.
       In January 2017, the trial court found defendant in
violation of his probation and sentenced him to county jail for
three years, but suspended execution of that sentence and again
placed him on probation.


1     All further statutory references are to the Penal Code
unless otherwise indicated.




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       B.     The San Diego charges
       In July 2017, prosecutors in San Diego County charged
defendant with (1) assault with a deadly weapon (§ 245, subd.
(a)(1)), and (2) inflicting corporal injury upon a spouse or
cohabitant (§ 273.5). On August 22, 2017, defendant pled guilty
to making criminal threats (§ 422) and was sentenced to two
years in state prison.
       C.     Defendant’s section 1381 demand
       On August 28, 2017, defendant sent a letter to prosecutors
in Los Angeles County demanding, pursuant to section 1381, that
he be sentenced in the grand theft case within 90 days. On
September 6, 2017, the trial court revoked defendant’s probation
and issued a bench warrant for his arrest. On September 18,
2017, the People submitted to the court a proposed removal order
to bring defendant from his current custody placement to Los
Angeles County to resolve the pending probation matter; the trial
court signed the order the next day.
       For reasons undisclosed in the record, defendant was not
brought to Los Angeles until June 2018.
       Defendant moved the court to dismiss the probation
revocation proceeding for violating section 1381. The trial court
denied the motion on two grounds. First, the court ruled that
defendant did not “come[] within the purview of [section] 1381”
because that section applies to defendants who “remain[] . . . to
be sentenced” and defendant had already “been sentenced” in the
prior case. Second, and in the alternative, the court found that
the People had exercised sufficient “diligence” to comply with
section 1381’s mandate to bring defendant to trial or sentencing
within 90 days because the prosecutor had sought the removal
order.




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       After defendant admitted that he had violated his
probation by committing the crime in San Diego County, the
court terminated probation and sentenced defendant to three
years in county jail, but granted him 180 days of custody credit.
The court also rejected defendant’s further motion for
resentencing.
       Defendant timely appealed.
                            DISCUSSION
       Defendant argues that the trial court erred in denying his
motion to dismiss the probation revocation proceedings for
violating section 1381. Because the resolution of this question
turns on issues of statutory interpretation and the application of
the law to undisputed facts, our review is de novo. (People v.
Prunty (2015) 62 Cal.4th 59, 71 [statutory interpretation]; Boling
v. Public Employment Relations Bd. (2018) 5 Cal.5th 898, 912
[undisputed facts].)
       In pertinent part, section 1381 provides that “[w]henever a
defendant has been convicted, in any court of this state, of the
commission of a felony . . . and has been sentenced to and has
entered upon a term of imprisonment in a state prison or . . . in a
county jail for a period of more than 90 days,” and if “there is
pending, in any court of this state, any other indictment,
information, complaint, or any criminal proceeding wherein the
defendant remains to be sentenced, the district attorney of the
county in which the matters are pending shall bring the
defendant to trial or for sentencing within 90 days” after the
defendant “deliver[s] to said district attorney written notice”
demanding compliance with this provision. (§ 1381, italics
added.) The penalty for noncompliance is “dismiss[al of] the
action.” (Ibid.)




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       Does this language apply to a probation violation
proceeding in which the defendant was previously sentenced to a
specific term when execution of that sentence has been
suspended? We conclude that the answer is “no,” and do so for
two reasons.
       First, the plain text of section 1381 dictates that its
protections apply only when a defendant “remains to be
sentenced.” As our Supreme Court recently held in People v.
Scott (2014) 58 Cal.4th 1415 (Scott), “a defendant is ‘sentenced’
when a judgment imposing punishment is pronounced even if the
execution of the sentence is then suspended.” (Id. at pp. 1423,
1426.) Although Scott examined when a defendant was
“sentenced” for purposes of the Realignment Act of 2011, the
issue in Scott and the issue under section 1381 is the same one:
Has a defendant been “sentenced” when a court has imposed a
sentence but suspended its execution? As our Supreme Court
held as far back as the first day of the Battle of Gettysburg, “[i]f
the same words, in the same or similar contexts, have elsewhere
received a definite construction, the authority is entitled to the
same weight . . . .” (Cohen v. Wright (1863) 22 Cal. 293, 312;
Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753, 763
[same].) Not surprisingly, courts interpreting the phrase
“remains to be sentenced” under section 1381—as well as its
sister provision addressing pending matters in federal court,
section 1381.5—have interpreted the language “remains to be
sentenced” not to apply to a sentence that is imposed but whose
execution has been suspended. (Boles v. Superior Court (1974) 37
Cal.App.3d 479, 483 (Boles) [section 1381]; In re Flores (1983) 140
Cal.App.3d 1019, 1022 [section 1381.5].) Because the plain text




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of section 1381 provides the answer, our inquiry starts and ends
there. (Lee v. Hanley (2015) 61 Cal.4th 1225, 1232-1233.)
        Second, the primary purpose animating section 1381 is not
served by applying the statute where a defendant’s sentence has
been imposed and only its execution is stayed. The “‘principal
purpose’” of section 1381 is to “‘to permit a defendant’” the
opportunity “‘to obtain concurrent sentencing at the hands of the
court in which the earlier proceeding is pending . . .’ [Citation].”
(Wagner, supra, 45 Cal.4th at p. 1056.) Where, as here, “the
court has actually imposed sentence, and the defendant has
begun a probation term representing acceptance of that sentence,
then the court has no authority, on revoking probation, to impose
a lesser sentence at the precommitment stage.” (People v.
Howard (1997) 16 Cal.4th 1081, 1095 (Howard); § 1203.2, subd.
(c) [“[I]f the judgment has been pronounced and the execution
thereof has been suspended, the court may revoke the suspension
and order that the judgment shall be in full force and effect.”].)
Because a court that has previously imposed but suspended the
execution of a sentence is bound to impose that very same
sentence, that court lacks the power to alter that sentence to run
it concurrently with anything else; thus, section 1381’s raison
d’etre is simply not implicated. (Accord, Boles, supra, 37
Cal.App.3d at p. 484 [“If that court has already sentenced [a
defendant], it no longer has the power to specify whether the
sentence shall be concurrent with that imposed by the second
court.”].)
        Defendant resists this conclusion with five arguments.
        First, he argues that a defendant who is on probation
subject to a previously imposed sentence whose execution is
suspended still “remains to be sentenced” under section 1381




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because the trial court still retains its power, under section 1170,
subdivision (d), to “recall” that sentence “within 120 days of the
date of [the defendant’s] commitment” to custody and to
“resentence the defendant” to a new and lesser sentence. (§ 1170,
subd. (d).) We reject this argument because it overlooks that a
court’s power to recall and resentence under section 1170,
subdivision (d) does not come into being until a defendant is
sentenced and committed to custody, and thus does not grant any
resentencing discretion to a court at the time the defendant is
sentenced; in this latter situation, which is what is at issue here,
the court must impose a previously imposed but stayed sentence.
(Howard, supra, 16 Cal.4th at p. 1084; Scott, supra, 58 Cal.4th at
p. 1425.)
      Second, defendant contends that there are good policy
reasons why section 1381 should apply to all sentences imposed
whenever probation is terminated, including those previously
imposed but whose execution had been suspended. Drawing on
section 1381’s pedigree as a declaratory supplement to the
constitutional right to a speedy trial (Barker v. Municipal Court
of Salinas Judicial Dist. (1966) 64 Cal.2d 806, 812-813),
defendant cites several purposes served by the constitutional
guarantee and, by extension, section 1381: (1) “avoiding
prolonged imprisonment”; (2) “limiting anxiety attendant to an
unresolved criminal charge”; and (3) “reducing the effect of lapse
of time on trial witnesses and providing the opportunity for
imposition of concurrent sentence[s].” (Wagner, supra, 45 Cal.4th
at pp. 1058-1059.) We reject defendant’s policy-based contention
because it ignores the plain text of section 1381, which extends
the statute’s protections only to those defendants who “remain to
be sentenced.” It is not for us to decide whether it would have




                                 7
been better public policy for our Legislature to have gone further
than it did, and the line our Legislature drew is a rational one
given that several of the above cited concerns simply do not apply
when a fixed sentence has already been imposed. (Accord, Boles,
supra, 37 Cal.App.3d at pp. 484-485 [rejecting equal protection-
based challenge to section 1381’s inapplicability to persons
subject to sentences whose execution has been suspended].)
       Third, defendant urges that Boles is a relic of the past
because it was decided 37 years prior to Wagner and because our
Supreme Court in Wagner, rather than endorsing Boles, instead
chose to leave its holding unaddressed. Boles’s age is of no
concern because, as discussed above, its holding and rationale
still hold up today. And Wagner’s refusal to embrace Boles’s
holding was not a product of disdain or distrust so much as a
reflection of the Court’s decision to adhere to the jurisprudential
wisdom against reaching issues not squarely presented in a case.
Wagner addressed whether section 1381 applies to a sentence
whose imposition was stayed, while Boles addressed whether
section 1381 applies to a sentence whose execution was stayed.
Contrary to what defendant suggests, our Supreme Court’s
decision not to offer dicta on an issue not before it was not an
indictment of the lower court’s decision on that issue. (See
Santisas v. Goodin (1998) 17 Cal.4th 599, 620 [appellate
decisions are authority “only ‘for the points actually involved and
actually decided’”].)
       Fourth, defendant cites the rule of lenity and asserts that
any ambiguity in the meaning of section 1381 should be
construed in his favor. We reject this assertion because the
meaning of “remains to be sentenced” is, like the meaning of
“sentenced” at issue in Scott, not ambiguous; as such, the rule of




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lenity does not apply. (Scott, supra, 58 Cal.4th at p. 1426 [so
holding].)
       Lastly, defendant argues that section 1203.2, subdivisions
(a) and (b)(1), grant a court revoking probation broad discretion
to decide among a “a panoply of dispositions” including
modifying, reinstating or terminating probation. Because neither
subdivision distinguishes between cases where the imposition of
sentence is suspended rather than its execution, defendant
continues, nor should we. We reject this argument because it
ignores subdivision (c) of section 1203.2, which does draw a
distinction between cases where what is suspended is imposition
rather than execution and, as to execution, requires that the
court, upon termination of probation, “order that the [previously
imposed] judgment shall be in full force and effect.” (§ 1203.2,
subd. (c).)
       In light of our conclusion that section 1381 does not apply,
we have no occasion to decide whether the People complied with
its provisions in this case.




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                       DISPOSITION
     The judgment is affirmed.
              CERTIFIED FOR PUBLICATION.


                                     ______________________, J.
                                     HOFFSTADT

We concur:


_________________________, P. J.
LUI


_________________________, J.
ASHMANN-GERST




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