Supreme Court of California Justia
Citation 45 Cal. 4th 1039, 201 P.3d 1168, 90 Cal. Rptr. 3d 26

People v. Wagner

Filed 3/9/09

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S156537
v.
Ct.App. 3 C052049
DAVID ERIC WAGNER,
Yolo
County
Defendant and Appellant.
Super. Ct. No. CRF 03-6456
___________________________________ )

In this case we construe the statutory speedy sentencing provisions
contained in Penal Code sections 1203.2a and 13811 with regard to defendants
who are placed on probation with the imposition of sentence suspended for one
offense and who, while still on probation, are convicted of an unrelated
misdemeanor or felony and imprisoned in either county jail or state prison on the
unrelated offense. We also consider how the two statutes relate to each other.
For a defendant placed on probation with imposition of sentence suspended
who is subsequently incarcerated for a second offense, section 1203.2a provides
that the court that granted probation “shall have jurisdiction to impose [the
suspended] sentence” if the probationer asks the probationary court to impose
sentence “in his or her absence and without him or her being represented by

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


counsel.” (§ 1203.2a.) Once the court receives a section 1203.2a request in a
situation “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 orders 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.” (Ibid., italics added.)
Section 1381 provides, in pertinent part, that a state prisoner may demand
to be brought “for sentencing within 90 days” of giving appropriate notice to the
district attorney where “any other indictment, information, complaint, or any
criminal proceeding wherein the defendant remains to be sentenced” is currently
pending. (Italics added.) “In the event that the defendant is not brought to trial or
for sentencing within the 90 days the court in which the charge or sentencing is
pending shall . . . dismiss the action.” (Ibid., italics added.)
We first consider whether section 1203.2a was the exclusive sentencing
procedure available to defendant David Eric Wagner, when he was subsequently
incarcerated after having been placed on probation with imposition of sentence
suspended, or whether he “remain[ed] to be sentenced” under section 1381 and
therefore properly asked to be brought to the original trial court “for sentencing”
within the time constraints of section 1381. As to this issue, we shall hold that
defendant had a choice to request speedy sentencing based on his probation
violation under either section 1203.2a or section 1381.
We next consider whether, when a trial court fails to comply with the 90-
day time requirement of section 1381 after an incarcerated probationer has made a
proper section 1381 demand for sentencing, the court must dismiss the conviction
underlying the original grant of probation or simply dismiss the pending probation
revocation proceeding. As to this issue, we shall conclude that, when the trial
court fails to comply with the 90-day time requirement of section 1381, it must
2
dismiss the pending probation revocation proceeding, not the conviction
underlying the original grant of probation.
I. FACTUAL AND PROCEDURAL BACKGROUND
On October 31, 2003, in Yolo County, defendant pleaded no contest to
unlawfully transporting methamphetamine (Health & Saf. Code, § 11379, subd.
(a)), and he admitted he had a prior conviction involving a controlled substance.
(Health & Saf. Code, § 11370.2.) The trial court placed defendant on probation
for three years under the provisions of Proposition 36, requiring participation in a
drug treatment program. The court then suspended the imposition of sentence.
On June 7, 2004, the 2003 grant of probation was summarily revoked. On
October 29, 2004, defendant waived a hearing on formal revocation and admitted
the alleged violation. The court reinstated probation that same day.
On February 2, 2005,2 in an unrelated case in Sacramento County,
defendant was convicted of receiving stolen property (§ 496, subd. (a)) and
possessing a controlled substance. (Health & Saf. Code, § 11377, subd. (a).)
That trial court sentenced him to 16 months in state prison. The Yolo County
probation office then filed a petition to revoke defendant’s probation based on the
new felony convictions on July 12, and on July 19 the Yolo Superior Court
summarily revoked defendant’s probation and issued a bench warrant for his
arrest.
On July 19, a prison counselor advised defendant that a detainer had been
filed against him, that he was wanted by the West Sacramento Police Department
“on charges of [Health and Safety Code section] 11379 (a),” and that he could ask
for a disposition of “untried charges in accordance with Section 1381 [Penal

2
All further calendar references are to the year 2005 unless otherwise
specified.
3


Code].”3 On July 22, defendant mailed a section 1381 trial and sentencing notice
and demand regarding his “Violation Prop 36 Case” to the Yolo County District
Attorney. He signed a printed form, which referenced the instant case and
demanded “a hearing and trial of said criminal action as prescribed by section
1381.” The demand was stamped as received by the Yolo County District
Attorney Office on July 26.
In response to defendant’s section 1381 demand, the Yolo Superior court
filed an order for removal ordering the sheriff to bring defendant from state prison
to court to appear on the pending criminal proceeding. Defendant appeared in
court on October 6, and requested that the probation matter be set for hearing and
a preadmission report. The prosecutor in open court then mistakenly stated that
her office had received defendant’s section 1381 demand on July 28. Based on
that statement, the court clerk calculated section 1381’s 90-day deadline as
October 26, rather than the correct date, which was October 24. Accordingly, the
court set the probation revocation hearing for October 25, the 91st day after the
receipt of defendant’s section 1381 demand.
On October 25, defense counsel informed the court defendant had
completed his prison sentence and was being held in custody only on the
probation violation. Defense counsel noted a potential section 1381 or section

3
In pertinent part, the form read as follows:
“YOU ARE HEREBY NOTIFIED (refer only to item(s) marked):

You may request disposition of untried charges in accordance with
Section 1381 [Penal Code]
You may request disposition of probation in accordance with
Section 1203.2a [Penal Code]”
There was a printed box to the left of each of the above request options. Only the
section 1381 request option was marked with an “X.” That X was part of the
standard form; it was not written by hand.
4


1203.2a timeliness issue and asked for time to file a “brief to dismiss because of
the lack of jurisdiction” because sections “1203.2[a] and 1381 have time
requirements.” The following day, defense counsel reiterated that “[t]his is the
1381 case.” On October 26, counsel entered a prospective time waiver to brief the
timeliness issue after the prosecutor agreed it would not affect whether “the time
has expired” to proceed with the probation violation.
At the hearing on December 2, defense counsel did not brief or orally argue
the motion to dismiss under section 1381. Instead, after defendant testified that
the prison counselor “decides whether you need a 1381” and instructs on how to
proceed with the request, defense counsel claimed defendant’s section 1381
demand must be deemed a section 1203.2a request and that the more stringent
“30-day clock” of section 1203.2a had run by the time of the scheduled September
8 hearing.4 Counsel claimed due process required dismissal because defendant
sent a notice as instructed by a state employee and should not have been penalized
for any defect in the notice.
The Yolo Superior Court rejected these arguments, reasoning that
defendant had not made a demand to be sentenced within 30 days as required by
section 1203.2a. Defendant then admitted the probation violation, and the court
revoked probation and imposed a five-year prison sentence for defendant’s 2003
conviction and accompanying enhancement.
The Court of Appeal reversed. It reasoned (1) the speedy sentencing rights
provided by both sections 1381 and 1203.2a apply to a probation revocation
proceeding where imposition of sentence had been suspended, (2) the Yolo

4
He argued the “clock” started either when the district attorney received
defendant’s section 1381 notice on July 26 or when the trial court issued an order
to produce defendant in court on August 3.
5


Superior Court sentenced defendant in the probation revocation proceeding
beyond the 90-day time period mandated by section 1381, (3) “[b]ecause counsel
was ineffective in failing to timely move to dismiss, the revocation proceeding
must be voided (as it should have been dismissed on this jurisdictional basis) and
the sentence imposed at that proceeding must be vacated,” and (4) “under section
1387 the People may refile the probation revocation proceeding, obtain a summary
revocation of probation, and seek a revocation order and sentence (which accounts
for all time served) before defendant’s tolled probationary period ends on
November 9, 2007.”
Defendant and the Attorney General separately petitioned for review. We
granted their petitions.
II. DISCUSSION
A. Background
1. The Relevant Statutes.
a. Section 1381.
As originally enacted in 1931, section 1381 provided that a state prisoner
may demand to be brought to trial within 90 days of giving appropriate notice to
the district attorney where any other indictment or information was currently
pending. (Stats. 1931, ch. 486, § 1, p. 1060.)
In 1971, section 1381 was amended to “[p]romote the speedy disposition of
pending sentencings for defendants imprisoned in this state,” and to “[a]id in the
rehabilitation of such defendants by providing a means . . . to determine the length
of their imprisonment on charges for which sentencing has not been
accomplished.” (Cal. Public Defender Assn., dig. of Sen. Bill No. 1508 (1971
Reg. Sess.) as introduced Apr. 16, 1971, p. 2; Assem. Com. on Criminal Justice,
analysis of Sen. Bill No. 1508 (1971 Reg. Sess.) as introduced Apr. 16, 1971
6
[incorporating same].) That same year, the sanction for violating section 1381 was
changed from dismissal of the “charge” to dismissal of the “action.” (Stats. 1971,
ch. 1556, § 1, p. 3079.) With the 1971 amendments to section 1381 and to its
counterpart, section 1381.5 (for those incarcerated in federal custody), the
Legislature intended to conform the two sections to the decision in People v.
Brown (1968) 260 Cal.App.2d 745, 751, which found that “the imposition of
sentence is an essential part of the speedy trial guaranteed to all accused.”
(Quoted by Cal. Public Defender Assn., dig. of Sen. Bill No. 1508 (1971 Reg.
Sess.) as introduced Apr. 16, 1971, p. 2, italics added.)
In relevant part, section 1381 now provides: “Whenever 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 . . . and at the time of the entry upon the term of imprisonment . . . there is
pending, in any court of this state, . . . 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 . . . for sentencing within 90 days
after the person shall have delivered to said district attorney written notice of the
place of his or her imprisonment . . . and his or her desire to be brought . . . for
sentencing . . . . In the event that the defendant is not brought to trial or for
sentencing within the 90 days the court in which the charge or sentencing is
pending shall, on motion or suggestion of the district attorney, or of the
defendant . . . , or on its own motion, dismiss the action.”
b. Section 1203.2a
When a defendant is placed on probation, the trial court has two options. It
may choose to select a particular sentence, within the available sentencing range,
that would go into effect if the grant of probation is subsequently revoked and not
reinstated. The court revoking probation under those circumstances must impose
7
the sentence previously imposed at the time of the grant of probation. This option
is referred to as suspending the execution of sentence. Alternatively, the court
granting probation may choose not to set a particular sentence that would be
imposed if the grant of probation is subsequently revoked and not reinstated. In
that case, the court grants probation and then suspends the imposition of sentence.
The court revoking probation and imposing sentence may choose any term of
confinement within the statutory range based upon the convictions and
enhancements underlying the original grant of probation. This option is referred
to as suspending the imposition of sentence.
Since it was enacted in 1941, section 1203.2a has provided speedy
sentencing procedures for probationers incarcerated for another offense. It
provides one set of procedures for probation with the imposition of sentence
suspended and other procedures for probation with the execution of sentence
suspended.5 As relevant here, section 1203.2a provides that, “[i]f any defendant
who has been released on probation is committed to a prison in this 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

5
The imposition of sentence was suspended when defendant was placed on
probation. We limit our discussion and analysis accordingly. When we refer to an
incarcerated probationer in this opinion, we are referring to a probationer placed
on probation with imposition of sentence suspended. We express no view as to
whether section 1381 applies to a defendant in a probation violation proceeding
who had received a specific prison sentence when placed on probation with
execution of that sentence suspended. We simply note that one appellate court has
held that probationers sentenced to a specific prison term and then placed on
probation with the execution of sentence suspended fall outside the scope of
section 1381.5, the speedy trial and sentencing statute for federal prisoners that is
analogous to section 1381. (Boles v. Superior Court (1974) 37 Cal.App.3d 479,
484.)
8


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 counsel, or by himself
or herself in writing, if . . . the defendant . . . 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 . . . , report such commitment to the
court which released him or her on probation. [¶] . . . If sentence has not been
previously imposed, and if the defendant has requested the court . . . to impose
sentence . . . 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 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. [¶] 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.” (Italics added.)
9
2. The Conflict in our Appellate Courts
There currently exist two conflicts in our appellate courts regarding these two
statutes. One court has held that a defendant placed on probation with the
imposition of sentence suspended must proceed under section 1203.2a , while
others have held that a defendant may choose to request speedy sentencing under
section 1381 or its counterpart for federal prisoners, section 1381.5.6 With regard
to the second conflict, assuming a defendant placed on probation with the
imposition of sentence suspended may request speedy sentencing under section
1381 or section 1381.5, some courts have assumed that the “dismiss the action”
consequence of failing to sentence such a defendant within the 90-day statutory
limit requires dismissal of the probation violation proceedings, while one court has
assumed that it requires dismissal of the convictions underlying the grant of
probation. This opinion will address and resolve both conflicts.
3. The Relevant Case Law
Two years after section 1381 was amended to include speedy sentencing
rights for a defendant serving a state prison commitment who has pending a
criminal proceeding wherein he or she “remains to be sentenced,” an appellate

6
Because section 1381.5 and section 1381 afford similar rights to federal
and state prisoners, respectively, cases interpreting one of these two sections are
persuasive authority for interpreting the other. (People v. Garcia (1985) 171
Cal.App.3d 1187, 1191.) Section 1381.5 permits federal prisoners with pending
criminal state actions to request to be brought to court for trial or for sentencing in
the state case. When the district attorney receives a defendant’s demand, he or she
“shall promptly inquire” of the federal warden “whether and when such defendant
can be released for trial or for sentencing” in the state case. (Ibid.) The district
attorney must bring the defendant to trial or for sentencing within 90 days of
receiving word from the federal authorities that defendant will be released for trial
or for sentencing. If the defendant is not brought to trial or for sentencing as
provided, section 1381.5 states, “the court in which the action is pending shall, on
motion or suggestion of the . . . defendant or his counsel, dismiss the action.”
10


court considered the case of defendant Rudman, who, while on felony probation in
Orange County with imposition of his sentence suspended, was convicted of a
felony in another county and was imprisoned as a result of that felony conviction.
(Rudman v. Superior Court (1973) 36 Cal.App.3d 22, 24.) Rudman requested a
hearing on his probation revocation in Orange County within 90 days under
section 1381, but he did not get one. (Rudman, at pp. 23-25.) Rejecting the
People’s claim that the defendant was required to comply with section 1203.2a
instead of section 1381, Rudman reasoned that “a defendant now has the option as
to which procedure he wishes to follow. Under section 1381, he may demand
sentencing at which he may appear and defend, in person and with counsel. Under
the provisions of section 1203.2a, he may choose to waive his right to be present
and represented by counsel and allow the court to impose sentence in his absence
and without his being represented by counsel.” (Rudman, at p. 27.) Rudman
explained that, although “both sections contemplate speedy sentencing,” they do
not conflict with each other because they “ ‘were designed for different purposes.’
” (Ibid.) It concluded that, “[s]ince Rudman was not given a hearing under
section 1381 within 90 days of his demand and he did not consent to any delay,
the violation of probation hearing must be dismissed.” (Ibid.) The court issued a
writ of mandate compelling the superior court to set aside its order revoking
probation. (Id. at pp. 27–28.)
Since Rudman, most appellate cases considering the issue have agreed that a
defendant placed on probation with imposition of sentence suspended and then
incarcerated on a second charge may demand speedy sentencing in a pending
probation revocation proceeding under either section 1381 or section 1203.2a.
(See, e.g., People v. Johnson (1987) 195 Cal.App.3d 510, 514 [“section 1381
provides an alternative procedure [to section 1203.2a] under which a probationer
imprisoned for a subsequent offense may assert a right to prompt disposition of the
11
earlier offense”] and People v. Ruster (1974) 40 Cal.App.3d 865 [same], both
disapproved on other grounds in In re Hoddinott (1996) 12 Cal.4th 992, 1005.)
The majority in People v. Broughton (2003) 107 Cal.App.4th 307
(Broughton) disagreed with Rudman when it considered whether probationer
Broughton was entitled to demand speedy sentencing under section 1381.5. While
on felony probation with the imposition of sentence suspended in state court on
two cases, Broughton violated her probation and began serving a federal
commitment. While in federal custody, she filed with the district attorney a
request for speedy sentencing under section 1381.5. Once she was released from
federal custody, she moved to dismiss her state criminal actions based on the
district attorney’s failure to comply with section 1381.5. The trial court denied the
motion and reinstated its previous orders of probation with a county jail condition.
The Court of Appeal majority affirmed, holding that the speedy sentencing
provisions of section 1381.5 apply “only to defendants who have not been . . .
afforded an initial sentencing hearing following conviction, not probationers
awaiting a probation revocation hearing.” (Broughton, at p. 311, italics added.)
The majority acknowledged that, “if the trial court at a sentencing hearing
suspends imposition of sentence and places the defendant on probation, the
defendant has not yet been sentenced” (ibid.), but it reasoned that section 1381.5
was intended to apply only to persons whose cases never had been reduced to a
“final, appealable order.” (Broughton, at p. 322.) Noting that an order granting
probation is deemed to be “ ‘a final judgment “ ‘ from which an appeal may be
taken (id. at p. 320), Broughton concluded that “a defendant who has been placed
on probation has already been brought before the court ‘for sentencing,’ ” (id. at
p. 317) and does not remain “to be sentenced” within the meaning of section 1381
or section 1381.5. (Broughton, supra, 107 Cal.App.4th at pp. 319–320.)
12
In defendant’s case, the Court of Appeal agreed with Rudman and criticized
the reasoning of Broughton’s majority. For the reasons stated below, we agree
with the Court of Appeal and with Rudman that (1) a defendant placed on
probation with imposition of sentence suspended who is subsequently imprisoned
on another charge may opt to demand speedy sentencing under section 1381 rather
than under section 1203.2a, and (2) the consequence for the probationary court’s
failure to meet the 90-day time limit set forth in section 1381 is only dismissal of
the probation revocation proceedings, and not the dismissal of the convictions
underlying the grant of probation.
B. Analysis
1. Section 1203.2a is not the Exclusive Speedy Sentencing Procedure
Available to Incarcerated Probationers
We find nothing in section 1203.2a’s language or legislative history that
mandates it is the exclusive speedy sentencing procedure available to a defendant
placed on probation with imposition of sentence suspended and then incarcerated
for another offense.
“The purpose of section 1203.2a is to prevent inadvertent consecutive
sentences which would deprive defendant of the benefit of section 669, providing
that sentence shall be concurrent unless the court expressly orders otherwise.
[Citations.]” (People v. Ruster, supra, 40 Cal.App.3d at p. 870.) Unlike section
1381’s speedy sentencing procedure under which the incarcerated probationer asks
to be brought to court to litigate the probation revocation and sentencing
proceeding with representation of counsel, section 1203.2a requires an
incarcerated probationer to give up the right to appear in court and the right to
counsel during the probation revocation and sentencing proceeding. Section
1203.2a provides incentives for giving up the right to a personal appearance and
representation by counsel, including, for example, the right to obtain sentencing
13
more quickly than under the speedy sentencing time requirements set forth in
section 1381, and the right to have any term of imprisonment imposed thereunder
“commence upon the date upon which defendant was delivered to prison under
commitment for his or her subsequent offense.” (§ 1203.2a.)
“[R]equests for sentencing pursuant to section 1203.2a must be in strict
compliance with that section. [Citations.] . . . [I]f the court pronounces judgment
in the absence of such a request and waiver, it violates the defendants
constitutional rights to have the assistance of and to be personally present with
counsel. (People v. Ruster, supra, 40 Cal.App.3d at p. 871.)” (People v. Willett
(1993) 15 Cal.App.4th 1, 7.) “Under section 1203.2a, there is no prescribed time
limit within which the probation officer and the court must act when imposition of
sentence was previously suspended and there is no request for sentence, waiving
personal appearance, by the probationer. . . . In a case where imposition of
sentence was suspended, section 1203.2a permits a probationer to waive personal
appearance and to request sentencing in his absence, which request initiates a 30-
day period in which the court must act. [Citation.]” (People v. Johnson, supra,
195 Cal.App.3d at p. 515, italics added.)
Nothing in the language of section 1203.2a precludes the Legislature from
providing an alternative procedure in which an incarcerated probationer may
demand speedy sentencing while retaining his or her right to be present with
counsel when sentence is imposed. Section 1381 now provides that an
incarcerated defendant can demand to be brought to any court in which he or she
has pending “any criminal proceeding wherein the defendant remains to be
sentenced.” The plain language of section 1381 encompasses a defendant placed
on probation with imposition of sentence suspended and subsequently incarcerated
for another offense because, “if the trial court at a sentencing hearing suspended
imposition of sentence and places the defendant on probation, the defendant has
14
not yet been sentenced.” (Broughton, supra, 107 Cal.App.4th at p. 311.)
Moreover, it would make sense for the Legislature to give incarcerated
probationers the choice between the quick and easy procedure of section 1203.2a,
or the slower procedure of section 1381 under which the probationer retains the
right to appear with counsel.
As argued by defendant in rebuttal to the People’s oral argument, an
incarcerated probationer serving a lengthy term of imprisonment on an unrelated
case may wish to waive the right to counsel and his or her personal appearance at
sentencing on a probation violation when the maximum prison sentence that could
be imposed on the violation is less than the sentence being served. Alternatively,
an incarcerated probationer who is serving a minimal prison sentence but faces a
potentially much longer prison term on a probation violation, may wish to assert
his or her right to appear in court with counsel in order to argue for a mitigated
term or the striking of an enhancement in addition to requesting a concurrent
sentence.
As discussed further below, we find no reason not to give effect to the plain
language of both section 1203.2a and section 1381. Moreover, “[o]ur common
practice is to ‘construe[] statutes, when reasonable, to avoid difficult constitutional
questions.’ (LeFrancois v. Goel (2005) 35 Cal.4th 1094, 1105.)” (In re Smith
(2008) 42 Cal.4th 1251, 1269.) Consistent with that practice, we construe section
1203.2a to provide one procedure, but not a mandatory or exclusive procedure, for
a defendant placed on probation with the imposition of sentence suspended and
then incarcerated to request speedy sentencing on his or her original offense.
2. Section 1381 Also Applies to Incarcerated Probationers
Nothing in either section 1203.2a or section 1381 suggests that an
incarcerated probationer must waive counsel and the right to appear in order to
15
receive speedy sentencing. Instead, “where probation has been granted and the
proceedings have been suspended without entry of judgment [the probationer] is
subject to no disabilities whatsoever except those specifically declared by some
other provision of law or affirmatively prescribed by the court as terms or
conditions of probation. The probationer in [this] case still retains his ordinary
civil rights, unless the court has restricted them, among them being as a matter of
law the right to a hearing and arraignment, with counsel, before judgment [and
imposition of sentence] in the event that he is charged with a violation of the terms
of his probation order. (In re Levi (1952), supra, 39 Cal.2d 45-46.)” (People v.
Banks (1959) 53 Cal.2d 370, 386-387; see also Boles v. Superior Court, supra, 37
Cal.App.3d at pp. 483-484.)
By its plain language, section 1381 appears to apply to incarcerated
probationers facing a probation revocation based on the subsequent conviction that
led to the current incarceration. It applies to any pending “criminal proceeding
wherein the defendant remains to be sentenced.” (Ibid.) We see no reason not to
give effect to this plain language.
“Under settled canons of statutory construction, in construing a statute we
ascertain the Legislature’s intent in order to effectuate the law’s purpose. (Dyna-
Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1386-
1387.) We must look to the statute’s words and give them their usual and ordinary
meaning. (DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 601.) The statute’s
plain meaning controls the court’s interpretation unless its words are ambiguous.”
(Green v. State of California (2007) 42 Cal.4th 254, 260.)
As the Court of Appeal noted, “the principal purpose ‘of section 1381 “is to
permit a defendant to obtain concurrent sentencing at the hands of the court in
which the earlier proceeding is pending, if such is the court’s discretion.” ’ ”
16
Here, the plain meaning of the phrase “there is pending . . . any criminal
proceeding wherein the defendant remains to be sentenced” (§ 1381) includes a
probation revocation proceeding in which the imposition of sentence was
suspended when probation was granted. We note that even the Broughton
majority, while ultimately interpreting this phrase to mean the “initial sentencing
hearing” rather than the sentencing hearing following probation revocation,
conceded that, “if the trial court at a sentencing hearing suspended imposition of
sentence and places the defendant on probation, the defendant has not yet been
sentenced.” (Broughton, supra, 107 Cal.App.4th at p. 311.)7
Nothing in the plain language of section 1381 or 1381.5 suggests that the
sections were intended to exclude defendants who were placed on probation with
the imposition of sentence suspended. The Broughton majority based the
exclusion of such defendants, in part, on the existence of section 1203.2a’s speedy
sentencing procedures for situations in which the imposition or the execution of
sentence was suspended. Again, we agree with the Court of Appeal that “the
Broughton majority failed to account for substantive distinctions between sections
1381 and 1203.2a. [Citation.] Under section 1203.2a, a defendant may request
imposition of sentence only if he waives the right to be present and have counsel
represent him at the hearing; in other words, speedy sentencing under section
1203.2a is sentencing in absentia. In contrast, section 1381 gives the defendant an
opportunity to appear before the court with counsel, so that he may defend against
the probation revocation charges, the sentence, or both. [Citations.]” Applying

7
In People v. Banks, supra, 53 Cal.2d at page 385, this court explained that
“[u]pon pronouncement of ‘sentence of imprisonment in a state prison for any
term less than life’ (Pen. Code, § 2600), the defendant acquires the legal status of a
person who has been both convicted of a felony and sentenced to such
imprisonment.”
17


the plain meaning doctrine to the relevant portion of section 1381, we conclude
that, “[d]uring the period that the imposition of judgment and sentence is
suspended a defendant ‘remains to be sentenced’ within the contemplation of
section 1381. [Citation.]” (People v. Ruster, supra, 40 Cal.App.3d at p. 872.)
3. Dismissal of Pending Probation Revocation Proceeding is the
Consequence for Failing to Comply with Section 1381
Broughton reached a different conclusion than the Rudman court. The
Broughton majority believed that section 1381.5 entitled a defendant “to be
‘brought . . . for sentencing’ within the time constraints of section 1381.5, with the
consequence of the failure to do so dismissal of the underlying conviction.”
(Broughton, supra, 107 Cal.App.4th at p. 316, italics added.)8 After
acknowledging that any statutory construction analysis “begin[s] by examining the
language of the statute,” Broughton relied on the “ ‘ “principle of statutory
interpretation that language of a statute should not be given a literal meaning if
doing so would result in absurd consequences which the Legislature did not
intend.” [Citations.]’ ” (Broughton, supra, 107 Cal.App.4th at p. 317.) The
Broughton majority stated that, “[i]f sections 1381 and 1381.5 were to apply to
probation revocation hearings, the ‘action,’ not the pending proceeding, must be
dismissed if the defendant is not brought to hearing in the manner prescribed by
those sections. Such a dismissal would lead to the peculiar result that a
probationer could have a conviction dismissed under a ‘speedy trial’ statute
months or even years after the conclusion of his or her trial and appearance at a
timely sentencing hearing at which imposition of sentence was waived in favor of

8
The People have adopted this interpretation, suggesting that an incarcerated
defendant could pursue speedy sentencing under section 1381, “while hoping for a
technical error . . . which might eliminate that same conviction.”
18


probation. [¶] In tacit recognition that [the Legislature could not have intended
such a result, the Rudman court] simply ignored the express statutory command to
dismiss ‘the action’ and, without any analysis or explanation, directed the trial
court to dismiss only the probation violation charge. [Citation.] A far more
reasonable construction of the statute is to limit its application to defendants
awaiting an initial sentencing hearing.” (Broughton, supra, 107 Cal.App.4th at p.
317.) In this statement, in the course of reaching its conclusion that section 1381
applies only to “defendants awaiting an initial sentencing hearing,” the Broughton
majority simply assumed, without significant analysis, that the sanction for
violating the 90-day rule of section 1381 is dismissal of the original conviction.
That assumption is not entitled to much weight because the “summary and
conclusory nature of [a] decision . . . , virtually devoid of reasoning, undermines
its status as substantial authority.” (City of Berkeley v. Superior Court (1980) 26
Cal.3d 515, 533.)
In any event, we conclude that Broughton’s statutory interpretation may
“ ‘lead to absurd results’ ” that “ ‘are to be avoided.’ ” (People v. Loeun (1997) 17
Cal.4th 1, 9.) The language at issue includes the 1971 amendments to section
1381 and reads, in pertinent part, as follows: “Whenever a defendant has been
convicted . . . [of a felony or misdemeanor], . . . and at the time of entry upon the
term of imprisonment 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, . . . . [i]n the event that the defendant is not
brought to trial or for sentencing within the 90 days the court in which the charge
or sentencing is pending shall . . . dismiss the action.” (§ 1381, italics added.)
In this context, the phrase “dismiss the action” refers back to the action that
is pending, in this case, the probation revocation proceeding. (§ 1381.) The 1971
addition of the phrases “any criminal proceeding wherein the defendant remains to
19
be sentenced” and “or for sentencing” necessitated a concomitant modification of
the consequence for failure to meet the 90-day requirement from “dismiss the
charge,” which would apply if there is pending an “indictment, information,
complaint,” to a word that would encompass both dismissal of the charges and
dismissal of “any criminal proceeding wherein the defendant remains to be
sentenced.” (Ibid.) As the Court of Appeal aptly noted, “Black’s Law Dictionary
defines ‘action’ broadly as a ‘civil or criminal judicial proceeding,’ (Black’s Law
Dict. (7th ed. 1999) p. 28.) Under this definition, a probation revocation
proceeding is an action.” Reading the above language as the Broughton majority
suggests would mean that the failure to abide by the 90-day time requirement of
section 1381 could force a court to dismiss the charges against a defendant who
years earlier had either admitted the charges by a plea of guilty or no contest or
was found guilty by trial. We conclude that the Legislature would not have
intended such an absurd result when it expanded the speedy trial provisions in
section 1381 to include “any proceeding wherein the defendant remains to be
sentenced.” (§ 1381, italics added.)9

9
In addition to the current language of section 1381 quoted above, the statute
provides, in relevant part, as follows: “If a charge is filed against a person during
the time the person is serving a sentence in any state prison . . . it is hereby made
mandatory upon the district attorney . . . to bring it to trial within 90 days after the
person shall have delivered to said district attorney written notice of the place of
his or her imprisonment . . . and his or her desire to be brought to trial upon the
charge, unless a continuance is requested or consented to by the person, . . . in
which event the 90-day period shall commence to run anew from the date to which
the request or consent continued the trial. In the event the action is not brought to
trial within the 90 days the court in which the action is pending shall, on motion or
suggestion of the district attorney, or of the defendant or person committed to the
custody of the Director of Corrections . . . , or on its own motion, dismiss the
charge
.” (Italics added.) Use of the word “charge” in this context leaves no doubt
that the entire criminal proceeding must be dismissed under these circumstances.
(Footnote continued on next page.)
20


We also disagree with Broughton’s claim that the “fundamental policies
advanced by speedy trial statutes such as section 1381.5—avoiding prolonged
imprisonment, limiting anxiety attendant to an unresolved criminal charge,
reducing the effect of lapse of time on trial witnesses and providing the
opportunity for imposition of concurrent sentence,” are not “similarly implicated”
by a probationer.” (Id. at p. 319.) As noted above, one “purpose of section
1203.2a is to prevent inadvertent consecutive sentences” (People v. Ruster, supra,
40 Cal.App.3d at p. 870), thereby avoiding prolonged imprisonment and limiting
anxiety attendant to an unresolved criminal matter.
3. Defendant’s Probation has not Terminated in this Case
In pertinent part, subdivision (a) of section 1387 provides that “[a]n order
terminating an action pursuant to this chapter [which includes section 1381,] . . . is
a bar to any other prosecution for the same offense if it is a felony . . . and the
action has been previously terminated pursuant to this chapter . . . .”
We agree with the Court of Appeal that section 1387 allows the People “an
opportunity to refile the probation revocation proceeding within defendant’s
probationary period” after a dismissal of the revocation proceedings under section
1381. Section 1387 refers to an “action that has been previously terminated
pursuant to this chapter” (§ 1387, subd. (a)), and actions to revoke probation that
are dismissed under section 1381 for a violation of the 90-day rule are terminated
under the same chapter (i.e., 8) as section 1387. While section 1387 does not by

(Footnote continued from previous page.)

On the other hand, the statute’s use of the phrase “dismiss the action” in the
circumstance at issue in this case suggests that, when the defendant only remains
to be sentenced, a less draconian sanction is contemplated.
21


its terms say anything about the refiling of actions to revoke probation, we read
the term “any other prosecution” as encompassing a second filing of an action to
revoke probation. We have concluded that the “action” to be dismissed in case of
a prisoner who was placed on probation with imposition of sentence suspended
and was subsequently incarcerated on another charge who has sought but not
received speedy sentencing under section 1381 is the proceeding to revoke
probation and impose sentence. That holding could be unfair to prisoners if the
only consequence of noncompliance with the 90-day requirement of section 1381
were the dismissal of the proceeding to revoke probation. Under such a rule, after
a prisoner demanded sentencing under section 1381, the People or the court could
neglect to act, the action could be dismissed after 90 days, and this cycle could
occur repeatedly until the opportunity for concurrent sentencing was lost though
the passage of time. Such an interpretation of the interplay between section 1381
and section 1387 would eviscerate section 1381 as a procedural protection and
would frustrate the Legislature’s intent to “[p]romote the speedy disposition of
pending sentencings” for imprisoned defendants. (Assem. Com. on Criminal
Justice, analysis of Sen. Bill No. 1508 (1971 Reg. Sess.) as introduced Apr. 16,
1971.) Because section 1387 permits a single refiling of the petition to revoke
probation at any time during a defendant’s probationary period, we consider
whether defendant’s probation has terminated in this case.
The Court of Appeal concluded the actual date defendant’s probation
would end was November 9, 2007. It first noted that defendant’s probation began
on October 31, 2003, and that, absent any tolling, the People “would have lost the
opportunity to refile the probation revocation proceeding under section 1387 after
October 31, 2006, because a probation revocation order must naturally be made
within the probationary period.” Noting that summary revocation of probation
tolls the running of the probationary period (§ 1203.2, subd. (a).), the Court of
22
Appeal then reasoned, “However, defendant’s probation was summarily revoked
on two occasions during that three-year period, . . . from June 7, 2004, until
October 29, 2004, when defendant was reinstated on probation, . . . [and] from
July 12, 2005, to February 27, 2006, when defendant was sentenced to the five
years in prison for the offenses underlying his Yolo County probation. The total
period of tolling was 374 days.”
The People contend probation was never reinstated after it was summarily
revoked on July 12, 2005. They count October 31, 2003 as “day one” of the three-
year probationary period, or “1,095 days.” They argue “day 221 of that period
elapsed 220 days later, on June 7, 2004. [¶] On June 7, 2004, probation was
summarily revoked. . . . . [B]y statute [§ 1203.2, subd. (a),] the running of the
period was tolled on the days between (but not including) June 7 and October
29. . . . [C]ounting October 29, 2004, as day 222 of the probationary period, it
follows that day 478 of that period elapsed 256 days later, on July 12, 2005. [¶]
On July 12, 2005, probation was again summarily revoked. Probation was never
reinstated. Instead: (1) on February 17, 2006, [defendant] admitted he violated the
conditions of probation; (2) on February 27, 2006, the court found [defendant]
unsuitable for probation and denied his request for release on probation; and (3)
on February 27, 2006, the court terminated its jurisdiction over [defendant] by
committing him to state prison for the 2003 conviction. [¶] . . . [M]ore than 600
days remained of the three-year probationary period when the running of the
period was tolled on July 12, 2005, and that period never resumed running.”
“The revocation, summary or otherwise, shall serve to toll the running of
the probationary period.” (§ 1203.2, subd. (a).) Although we conclude that the
probation revocation proceeding that was pending when defendant requested
speedy sentencing must be dismissed under section 1381, the trial court did not
have the benefit of hindsight. Probation was summarily revoked on July 12, 2005.
23
On October 25, 2005, the trial court properly denied the motion to dismiss based
on the section 1203.2a motion before it. The court’s decision, on February 27,
2006, not to reinstate probation and to sentence defendant to five years in state
prison constituted a formal revocation that tolled the probationary period.
(§ 1203.2, subd. (a).) As the People correctly point out, this is true because “the
trial court’s probationary jurisdiction did not survive the commitment of
[defendant] into the custody of the executive branch for incarceration. (People v.
Karaman (1992) 4 Cal.4th 335, 344-345.)” In any event, in this case, where there
is no statutory exception, “ ‘[t]he filing of a valid notice of appeal vests
jurisdiction of the cause in the appellate court until determination of the appeal
and issuance of the remittitur [citation] and deprives the trial court of jurisdiction
to make any order affecting the judgment. [Citation.]” (People v. Lockridge
(1993) 12 Cal.App.4th 1752, 1757.) The People are correct that, “even assuming
the probationary period had continued to run between July 12, 2005, and March 1,
2006, the result would merely be that day 710 of the probationary period elapsed
on March 1, 2006 (the date of the filing of the notice of appeal).10 That would
still leave more than a year on the probationary period, to commence running once
there was issuance of the remittitur.” We agree.11

10
We disapprove of language to the contrary in People v. Tapia (2001) 91
Cal.App.4th 738, 741.
11
We note that we cannot adopt defendant’s interpretation of the statutory
tolling provisions for the additional reason that it ignores the plain language of
section 1203, subdivision (a), and leads to an absurd result that the Legislature
could not have been intended. (See Green v. State of California, supra, 42 Cal.4th
at p. 260; People v. Shabazz (2006) 38 Cal.4th 55, 67-68; DaFonte v. Up-Right,
Inc
., supra, 2 Cal.4th at p. 601; Dyna-Med, Inc. v. Fair Employment & Housing
Com
. , supra, 43 Cal.3d at pp. 1386-1387.) Had defense counsel provided
effective assistance and properly moved for a dismissal based on section 1381, the
People would have had the opportunity to refile the petition to revoke probation at
(Footnote continued on next page.)
24


III. DISPOSITION
The judgment of the Court of Appeal is affirmed to the extent that it
ordered Yolo County Superior Court to void the challenged probation revocation
and sentencing proceeding (as it should have been dismissed on jurisdictional
grounds) and vacate the sentence imposed at that proceeding. Defendant’s
probation has been tolled, at a minimum, between June 7, 2004, and October 29,
2004, and from the date of his notice of appeal (March 1, 2006) until the appellate
process is final and the remittitur issues. The matter is remanded to the Court of
Appeal for further proceedings consistent with this decision.
CHIN,
J.
WE CONCUR:

GEORGE, C.J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
MORENO, J.
CORRIGAN, J.

(Footnote continued from previous page.)

that point, and the trial court would have retained the ability to revoke probation
and sentence defendant to state prison. Alternatively, under defendant’s analysis,
because defense counsel provided him ineffective assistance by failing to make the
motion to dismiss based on section 1381, the People are precluded from refiling
the petition to revoke probation. Under defendant’s interpretation of section
1203(a), defendant benefits from his counsel’s ineffective assistance, while the
People are penalized because the trial court sentenced defendant to state prison
based on the ineffective assistance of defendant’s trial counsel.

25


See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Wagner
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 154 Cal.App.4th 81
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S156537
Date Filed: March 9, 2009
__________________________________________________________________________________

Court:

Superior
County: Yolo
Judge: Stephen L. Mock

__________________________________________________________________________________

Attorneys for Appellant:

John Doyle, under appointment by the Supreme Court, for Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer and Edmund G. Brown, Jr., Attorney General, Mary Jo Graves and Dane R. Gillette, Chief
Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Charles A. French, Angelo S.
Edralin, Brian G. Smiley and David Andrew Eldridge, Deputy Attorneys General, for Plaintiff and
Respondent.


Counsel who argued in Supreme Court (not intended for publication with opinion):

John Doyle
Pier 29 Annex
San Francisco, CA 94111
(415) 397-7660

David Andrew Eldridge
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 324-6291


Document Outline

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Petition for review after the Court of Appeal voided a probation revocation proceeding and vacated the sentence imposed. This case includes the following issues: (1) Does Penal Code section 1381, which provides that a state prisoner may demand a trial or sentencing within 90 days of a written demand when "any other indictment, information, complaint, or any criminal proceeding wherein the defendant remains to be sentenced" is currently pending, apply to a pending probation revocation proceeding, or is Penal Code section 1203.2a, which provides for sentencing in absentia for probationers incarcerated on an unrelated offense, the exclusive means for an incarcerated probationer to receive concurrent sentencing? (2) Did the Court of Appeal properly calculate the end of defendant's probationary term for the purpose of calculating the last day upon which the prosecution may refile a probation revocation proceeding dismissed pursuant to Penal Code section 1381?

Opinion Information
Date:Citation:Docket Number:Category:Status:Cross Referenced Cases:
Mon, 03/09/200945 Cal. 4th 1039, 201 P.3d 1168, 90 Cal. Rptr. 3d 26S156537Review - Criminal Appealclosed; remittitur issued

PEOPLE v. DAVIS (S162400)
GONZALEZ v. S.C. (PEOPLE) (S167197)


Parties
1The People (Plaintiff and Respondent)
Represented by David Andrew Eldridge
Office of the Attorney General
P.O. Box 944255
1300 "I" Street, Suite 1101
Sacramento, CA

2Wagner, David Eric (Defendant and Appellant)
Deuel Vocational Institution
P.O. Box 600
Tracy, CA 95378

Represented by John Doyle
Attorney at Law
1301 N. Highway 99W, Suite 295
McMinnville, OR

3Wagner, David Eric (Defendant and Appellant)
Deuel Vocational Institution
P.O. Box 600
Tracy, CA 95378

Represented by Central California Appellate Program
2407 "J" Street, Suite 301
2407 "J" Street, Suite 301
Sacramento, CA


Disposition
Mar 9 2009Opinion filed

Dockets
Sep 24 20072nd petition for review filed
  David Eric Wagner, defendant and appellant by John Doyle, CA-appointed counsel
Sep 24 2007Petition for review filed
  The People, plaintiff and respondent David Andrew Eldridge, Deputy Attorney General - Sacramento
Sep 24 2007Record requested
 
Oct 3 2007Received Court of Appeal record
  one doghouse
Nov 8 2007Time extended to grant or deny review
  The time for granting or denying review in the above-entitled matter is hereby extended to and including December 21, 2007 or the date upon which review is either granted or denied.
Nov 28 2007Petition for review granted (criminal case)
  Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
Nov 28 2007Note:
  Both petitions for review have been granted.
Dec 10 2007Change of contact information filed for:
  for appellant and counsel John Doyle.
Dec 18 2007Counsel appointment order filed
  Upon request of appellant for appointment of counsel, John Doyle is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty (30) days from the date of this order.
Dec 20 2007Request for extension of time filed
  Respondent requests a 30-day extension to and including January 28, 2008, to file respondent's opening brief on the merits. The People, Respondent by David Andrew Eldridge, counsel
Dec 31 2007Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file respondent's opening brief on the merits is hereby extended to and including January 28, 2008.
Jan 17 2008Request for extension of time filed
  John Doyle counsel for appellant requesting to February 18 to file the opening brief on the merits (to court for permission to file)
Jan 24 2008Opening brief on the merits filed
  The People, Plaintiff and Respondent David Andrew Eldridge, Deputy Attorney General
Jan 29 2008Application filed
  By respondent, The People, to substitute respondent's opening brief on the merits. by David Andrew Eldridge, counsel
Jan 31 2008Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including February 18, 2008.
Feb 7 2008Order filed
  The application of respondent filed January 29, 2008, for permission to substitute respondent's opening brief on the merits is hereby granted.
Feb 20 2008Request for extension of time filed
  John Doyle counsel for appellant requesting to March 10 to file the opening brief on the merits (to court for permission to file)
Feb 21 2008Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including March 10, 2008.
Mar 10 2008Request for extension of time filed
  Atty Doyle counsel for appellant requesting to March 31 to file appllent's opening brief on the merits (to court for permission)
Mar 10 2008Request for extension of time filed
  Atty Doyle counsel for appellant requesting to March 31 to file answer brief on the merits (to court for permission)
Mar 12 2008Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including April 1, 2008.
Mar 12 2008Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including April 1, 2008.
Apr 1 2008Request for extension of time filed
  John Doyle counsel for appellant requesting to April 21 to file opening brief on the merits (to court for permission)
Apr 1 2008Request for extension of time filed
  John Doyle counsel for appellant requesting to April 21 to file answer brief on the merits (to court for permission)
Apr 10 2008Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file appellant's opening brief on the merits is hereby extended to and including April 21, 2008. No further extension is contemplated.
Apr 23 2008Opening brief on the merits filed
  David Eric Wagner, Defendant and Appellant John Doyle, counsel (CRC, rule 8.25(b) - priority mail)
Apr 23 2008Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including April 21, 2008.
Apr 23 2008Answer brief on the merits filed
  David Eric Wagner, Defendant and Appellant John Doyle, counsel (CRC, rule 8.25(b) - priority mail)
May 13 2008Reply brief filed (case not yet fully briefed)
  The People, David Andrew Eldridge, Deputy Attorney General
May 14 2008Compensation awarded counsel
  Atty Doyle
May 19 2008Answer brief on the merits filed
  The People, David Andrew Eldridge, Deputy Attorney General
Jun 10 2008Request for extension of time filed
  David Eric Wagner, defendant and appellant by John Doyle, counsel (requesting extension to June 16, 2008, to file appellant's reply brief on the merits)
Jun 11 2008Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file the appellant's reply brief on the merits is extended to and including June 16, 2008.
Jun 18 2008Reply brief filed (case fully briefed)
  David Eric Wagner, appellant - ** CRC 8.25(b), by John Doyle, Counsel
Dec 10 2008Case ordered on calendar
  to be argued on Thursday, January 8, 2009, at 1:30 p.m., in San Francisco
Dec 10 2008Order filed
  For purposes of oral argument, respondent will argue first and appellant will argue second. The parties may reserve time for rebuttal for the specific issue raised in their respective petitions for review. Respondent's rebuttal will precede appellant's. (See Cal. Rules of Court, rule 8.524(d).)
Jan 7 2009Received:
  from counsel for resp. faxed copy of additional authority.
Jan 9 2009Cause argued and submitted
 
Jan 22 2009Letter sent to:
  Mr. John Doyle, counsel for appellant. In the above-entitled case this court granted the petition for review of the People and the petition for review of defendant Wagner. The case was argued before this court on January 8, 2009. By order filed on December 10, 2008, this court authorized the People to argue first and authorized each party to reserve time for rebuttal at oral argument. At oral argument the court allowed the People to argue in rebuttal but inadvertently did not allow rebuttal by defendant's attorney. Accordingly, defendant Wagner's attorney may file a written rebuttal with this court by January 30, 2009. The written rebuttal should be limited to the response counsel would have made to the People's oral argument.
Feb 2 2009Filed:
  Written Rebuttal from John Doyle counsel for appellant David Eric Wagner
Mar 6 2009Notice of forthcoming opinion posted
 
Mar 9 2009Opinion filed: Affirmed in full with directions
  The judgment of the Court of Appeal is affirmed to the extent that it ordered Yolo County Superior Court to void the challenged probation revocation and sentencing proceeding (as it should have been dismissed on jurisdictional grounds) and vacate the sentence imposed at the proceeding. Defendant's probation has been tolled, at a minimum, between June 7, 2004, and October 29, 2004, and from the date of his notice of appeal (March 1, 2006) until the appellate process is final and the remittitur issues. The matter is remanded to the Court of Appeal for further proceedings consistent with this decision. Majority Opinion by: Chin, J. -----joined by: George, C.J., Kennard, Baxter, Werdegar, Moreno, and Corrigan, JJ.
Mar 26 2009Rehearing petition filed
  David Eric Wagner, appellant - CRC 8.25(b) by John Doyle, Counsel
Mar 27 2009Time extended to consider modification or rehearing
  The time for granting or denying rehearing in the above-entitled case is hereby extended to and including June 5, 2009, or the date upon which rehearing is either granted or denied, whichever occurs first.
Apr 15 2009Rehearing denied
 
Apr 20 2009Remittitur issued
 
Apr 21 2009Returned record
  to CA3
Apr 29 2009Received:
  Receipt for Remittitur of the Court of Appeal, Third Appellate District.
Jun 10 2009Compensation awarded counsel
  Atty Doyle

Briefs
Jan 24 2008Opening brief on the merits filed
 
Apr 23 2008Opening brief on the merits filed
 
Apr 23 2008Answer brief on the merits filed
 
May 13 2008Reply brief filed (case not yet fully briefed)
 
May 19 2008Answer brief on the merits filed
 
Jun 18 2008Reply brief filed (case fully briefed)
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
Mar 13, 2009
Annotated by diana teasland

Written by Alvaro M. Huerta

Case Summary
The case is a petition for review after the Court of Appeal for the Third District voided a probation revocation proceeding and vacated the sentence imposed. The issues before the Court were: (1) Does Penal Code § 1381, which provides that a state prisoner may demand a trial or sentencing within 90 days of a written demand when "any other indictment, information, complaint, or any criminal proceeding wherein the defendant remains to be sentenced" is currently pending, apply to a pending probation revocation proceeding, or is Penal Code section 1203.2a, which provides for sentencing in absentia for probationers incarcerated on an unrelated offense, the exclusive means for an incarcerated probationer to receive concurrent sentencing? (2) Did the Court of Appeal properly calculate the end of defendant's probationary term for the purpose of calculating the last day upon which the prosecution may re-file a probation revocation proceeding dismissed pursuant to Penal Code section 1381?

Disposition: Affirmed
Affirmed the judgment of the Court of Appeal to the extent that it ordered the Yolo County Superior Court to void the challenged probation revocation and sentencing proceeding (as it should have been dismissed on jurisdictional grounds) and vacate the sentence imposed at the proceeding.

Holding
A defendant who, after having been placed on probation with imposition of sentence suspended on an earlier conviction, is subsequently incarcerated for a new offense has a choice whether to invoke Penal Code section 1203.2a or Penal Code section 1381 to request a speedy sentencing. In addition, when the trial court fails to comply with the 90-day time requirement of section 1381, it must dismiss the pending probation revocation proceeding, not the conviction underlying the original grant of probation.

Indexed Points of Law

Criminal Law>Section 1381
• A state prisoner may demand to be brought to trial within 90 days of giving appropriate notice to the district attorney where any other indictment or information was currently pending

Criminal Law>Sentencing
• The imposition of sentence is an essential part of the speedy trial guaranteed to all accused

Criminal Law>Sentencing>Speedy Sentencing
• A defendant placed on probation with imposition of sentence suspended and then incarcerated on a second charge may demand speedy sentencing in a pending probation revocation

Criminal Law>Sentencing>Speedy Sentencing>Alternative Procedures
• The Legislature may provide an alternative procedure in which an incarcerated probationer may demand speedy sentencing while retaining his or her right to be present with counsel when sentence is imposed.

Statutory interpretation>Construction>Constitutional Avoidance
• The court must construe statutes, when reasonable, to avoid difficult constitutional questions

Statutory interpretation>Construction
• In construing a statute the court ascertains the Legislature’s intent in order to effectuate the law’s purpose.

Subsequent History
The matter was remanded to the Court of Appeal for further proceedings consistent with the decision.