Filed 4/28/14 P. v. Ortega CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E058185

v.                                                                       (Super.Ct.No. RIF1104702)

JOSE ORTEGA, Jr.,                                                        OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.

Reversed and vacated.

         Sylvia Whatley Beckham, under appointment by the Court of Appeal, for

Defendant and Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Lynne G. McGinnis and Kristine

A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.

         Defendant Jose Ortega, Jr. appeals from the trial court’s judgment terminating his

probation and imposing a one-year sentence, to be served consecutive to a separate

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sentence imposed in San Bernardino County. Defendant contends the trial court lost

jurisdiction to impose the sentence when it failed to act within 30 days on his motion for

sentencing in absentia pursuant to Penal Code section 1203.2a.1 The People counter that

the statute does not apply to defendants whose probation has been summarily revoked.

As discussed below, we agree that the trial court lost jurisdiction and therefore vacate the

sentence.

                               PROCEDURAL BACKGROUND

       Plea and Sentence in Riverside Stalking Case (“Riverside Case”)

       On September 27, 2011, defendant pled guilty to one count of inflicting corporal

injury on a domestic partner (§ 273.5, subd. (e)(2)). On that date, the trial court

suspended imposition of judgment and granted defendant probation for three years. The

court ordered defendant to serve 240 days in custody, 180 days of which was to be in the

work release program. After credit for time served, defendant was remanded into

custody to serve 24 days in jail. Defendant was ordered not to annoy, harass, threaten or

disturb the victim and to comply with any domestic violence restraining order.




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


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       San Bernardino Stalking Case (“San Bernardino Case”) and Summary Probation

Revocation in Riverside Case

       On March 12, 2012, the probation officer filed a report alleging eight probation

violations. Defendant had failed to register for a domestic violence class and for

community service, according to a report from the provider dated December 16, 2011.

Defendant had completed only two days in the work release program as of January 25,

2012, according to a report dated February 16, 2012. Defendant was not living at the

address he had provided to probation. Defendant was arrested on February 15 after

attacking the same victim outside her Redlands home. In January, the victim had

reported to police that defendant approached her outside her home and then stole her

credit card and threatened to have someone hurt her. These two actions against the

victim violated the probation conditions that defendant obey all laws and court orders,

abide by domestic violence protective orders, and report any law enforcement contacts

within 48 hours. The probation officer concluded that “The defendant continues to act in

a reckless manner towards the victim even with the knowledge the victim maintains a

restraining order against the defendant. These actions by the defendant bring concern for

the safety of the victim at this time.” The probation officer recommended revoking

defendant’s probation, issuing a bench warrant for his arrest and sentencing him to the

mid-term in state prison. On March 12, 2012, the trial court summarily revoked

defendant’s probation and issued a bench warrant for his arrest. Defendant failed to

appear because he was in custody on the San Bernardino Case.




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        On May 3, 2012, defendant plead guilty in San Bernardino County to inflicting

corporal injury on a domestic partner (§ 273.5, subd. (a)) and received a low-term prison

sentence of two years.

        The Riverside court did not act further to impose a sentence for the Riverside

Case.

        On October 11, 2012, defendant executed a “Request for Disposition of Probation

and Right to Attorney Pursuant to Penal Code §1203.2a.”

        On November 1, 2012, a correctional counselor at Chuckawalla Valley State

Prison verified that defendant had been in the custody of the California Department of

Corrections since May 29, 2012, that the signature was that of defendant, and that

defendant “wishes the Court to impose sentence or make any other final order

terminating the court’s jurisdiction, on a pending probation matter in Riverside County,

pursuant to Cal. Penal Code § 1203.2a.”

        On November 5, 2012, the Riverside County Superior Court stamped the Request

“received.”

        On November 30, 2012, the Riverside County Superior Court stamped the Request

“filed.”

        On December 19, 2012, the Public Defender filed a “Notice of Motion and Motion

for Termination of Probation (Cal. Penal Code § 1203.2a).” Counsel argued that the

court had been deprived of jurisdiction to impose a sentence in the Riverside Case

because it failed to impose sentence within 30 days after receiving defendant’s Request

under section 1203.2a.


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       The hearing on the Request was set for December 28, 2012, but was continued to

January 31, 2013, so defendant could be present.

       At the hearing held on January 31, 2013, defense counsel reminded the court that

the case was on for “an expungement, termination of probation request.” Defendant had

executed a written waiver of his right to a contested violation of probation hearing.

Defendant admitted violating his probation, specifically the term that he “Violate no law

or ordinance.” Defendant agreed to the disposition. The court terminated defendant’s

probation and sentenced him to the agreed-to, one-year prison term for the Riverside

case, consecutive to the term for the San Bernardino case, with credit for 270 total days

of time served locally, including section 4019 credits. Defense counsel did not object on

section 1203.2a grounds.

       This appeal followed. Defendant has since been released on parole.

                                       DISCUSSION

       Defendant argues the superior court lost jurisdiction to sentence him in the

Riverside Case because it failed to act within 30 days after receiving his section 1203.2a

petition. The People counter that, because the court had already summarily revoked

defendant’s probation “on independent grounds” prior to the conviction in the San

Bernardino case, and thus defendant was not at that time “released on probation,” it did

not lose jurisdiction to sentence defendant even though it did not act within the 30-day

deadline imposed by section 1203.2a. As discussed below, we find no legal authority to

support the People’s interpretation of section 1203.2a, and find that such an interpretation

would be counter to the stated purposes of section 1203.2a.


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       Section 1203.2a provides that, when a defendant “who has been released on

probation” by a court is later committed to prison by another court for a subsequent

offense, he may petition the probationary court to sentence him “if no sentence has

previously been imposed” in the first case. The defendant must agree that the

probationary court may sentence him in his absence and without counsel. If the

defendant does so, the court must either impose a sentence or terminate its jurisdiction

within 30 days after receiving the petition. Failure to take action within 30 days deprives

the probationary court of jurisdiction over the defendant.2

       The plain language of this statute, which applies to a defendant who “has been

released on probation,” leans in favor of defendant’s stance in this appeal. This is

because the Legislature chose the terms “has been released on probation,” and “was

granted probation,” which can easily apply to someone who was previously granted and

released on probation but is no longer on probation, rather than terms that would more

specifically indicate that the defendant must still be on unrevoked probation at that time


       2    The relevant language of section 1203.2a is as follows: “If any defendant who
has been released on probation is committed to a prison . . . for another offense, the court
which released him . . . on probation shall have jurisdiction to impose sentence, if no
sentence has previously been imposed for the offense for which he . . . was granted
probation . . . , on the request of the defendant . . . in writing, if . . . the warden . . . or
[a] . . . representative . . . attests both that the defendant has made and signed such request
and that he . . . states that he . . . wishes the court to impose sentence in the case in which
he . . . was released on probation, in his . . . absence and without . . . being represented by
counsel. [¶] . . . [¶] . . . 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.”


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of sentencing on the new case. In addition, the lack of specificity on this point contrasts

with the statute’s specific language that it applies only to probationers upon whom “no

sentence has previously been imposed for the offense for which he . . . was granted

probation.”

       The People argue that the statute does not apply to defendant because he was not

“released on probation” at the time he was sentenced in the San Bernardino Case,

because his Riverside probation had been summarily revoked. However, in addition to

this interpretation not being supported by the plain language of section 1203.2a, the

People provide no direct legal authority for their assertion. Such a reading of the statute

would contravene the Legislature’s purpose in enacting the statute, which, as set forth

below, is to provide probationers who have been imprisoned on new convictions with a

speedy resolution of prior cases for which sentence has not yet been imposed.

       The Legislature enacted section 1203.2a to “provide a mechanism by which the

probationary court could consider imposing a concurrent sentence, and to ‘preclude[]

inadvertent imposition of consecutive sentences by depriving the court of further

jurisdiction over the defendant’ when the statutory time limits are not observed.” (In re

Hoddinott (1996) 12 Cal.4th 992, 999-1000, citing In re White (1969) 1 Cal.3d 207, 211.)

We note that the Riverside court made no move to sentence defendant after it revoked his

probation in March 2012, or even after he was convicted and sentenced in the San

Bernardino Case in May 2012, until he submitted his petition in November of 2012. The

fact that the probationary court did ultimately choose to sentence defendant to a




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consecutive sentence3 does not change the wording of the statute nor the reasons for its

enactment. A defendant sentenced in a subsequent case is at risk of receiving

consecutive sentences inadvertently if the probationary court does not get around to

imposing sentence until the defendant had already served all or most of the sentence in

the subsequent case. This risk, and the remedy the Legislature fashioned, is the same

whether the defendant’s probation has been summarily revoked or not, as long as the

probationary court has not yet imposed the sentence.

       Finally, the People argue that “one of the assumptions underlying section 1203.2a

is that the reason for revoking probation is the subsequent felony misconduct resulting in

imprisonment.” The People then state that this scenario is not present in this case

because “some” of the reasons the court summarily revoked defendant’s probation were

“completely unrelated” to the subsequent offense in the San Bernardino case. First, as

defendant points out in his responsive brief, section 1203.2a simply does not require that

the probation revocation be based solely on conduct that leads to the imprisonment in the

subsequent case. Second, although the probation department’s violation of probation

memo does list a number of probation violations, it is clear from this record, namely the

probation department’s memo and the court’s comments, that the main reason for

revoking defendant’s parole was the defendant’s continued attacks on the victim that

were part of the San Bernardino Case.


       3The court indicated at the hearing on December 12, 2012 that it would likely
impose a consecutive sentence because defendant was arrested in the San Bernardino
Case only five months after pleading guilty to reduced charges in the Riverside Case.


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       For the reasons stated, we conclude that the superior court lost jurisdiction to

impose sentence in the Riverside Case on or about December 5, 2012.

                                       DISPOSITION

       The sentence is vacated. The superior court is directed to recall the commitment,

terminate probation, and inform parole authorities that the sentence was vacated.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                RAMIREZ
                                                                                          P. J.


We concur:

McKINSTER
                          J.

KING
                          J.




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