IN RE: Robert HODDINOTT (1995)

Penal Code section 1203.2a ¹ establishes procedures for resolving the status of probationers who, while on probation for one offense, end up in state prison for another offense.   The section applies both to those on probation for an offense for which sentence was imposed and for those to whom probation was granted but no sentence was imposed.   In the matter before us we are presented with the latter situation:  Mr. Hoddinott was on probation for an offense committed in Marin County which had not imposed sentence upon him when he was subsequently sentenced to state prison for an offense committed in San Francisco.

On July 25, 1988, Mr. Hoddinott wrote to his Marin County probation officer advising her that he was “now [at] Susanville” and “should be released from here about December 88 or the latest January 23, 89.”   He also stated:  “I don't know what other information you require at this time but I have the probation papers enclosed and I am hoping to resolve (in the best way possible for all concerned) these matters in Marin.”   Although thus alerted to Hoddinott's incarceration at a state prison, the probation officer did not advise the Marin Superior Court of this fact.

A letter from Mr. Hoddinott's counsel was sent to the Marin County probation officer on November 22, 1988 advising:  “Robert Hoddinott, my client, is currently confined in the California State prison at Susanville.   This letter is a formal request that you notify the Marin County Superior Court of this fact and that the court impose its sentence in [this] case ․ under Penal Code § 1203.2a.”   The probation officer did not inform the court of this request.

After the Marin Superior Court revoked its grant of probation in June of 1989 and while he was still in prison Hoddinott submitted a signed request (in a format approved by the probation officer) for “sentencing pursuant to 1203.2a PC.”   The probation officer notified the court of this request on October 9, 1989.   Exactly three weeks later the Marin Superior Court sentenced Hoddinott to serve “the mid term of 2 years in State Prison ․ concurrent with the term now being served.” ²

In June of 1994 Mr. Hoddinott filed a petition for a writ of habeas corpus in the Marin Superior Court, claiming that at the time the court imposed the two-year sentence on him, it had no jurisdiction to impose any sentence because more than thirty days had elapsed following receipt by the probation officer of written notice of his incarceration and the probation officer had not met her statutory duty to inform the court within thirty days.   The superior court denied the petition, whereupon Mr. Hoddinott commenced this original proceeding for relief in habeas corpus.

Section 1203.2a provides quite specifically what a defendant must do in order to make a legally sufficient request for imposition of sentence.³  In order to be adequate such a request must not only be written, but must contain a specific declaration from the defendant to the effect that he or she wishes to have sentence imposed and agrees to have it imposed in his or her absence and without representation by counsel.   Courts have been zealous in requiring defendants to strictly comply with these requirements before treating a request as a legally adequate request for sentencing.  (People v. Jones (1987) 189 Cal.App.3d 1453, 1455–1456, 235 Cal.Rptr. 111 and decisions cited therein.)

Once defendant complies with the section's requirements, however, 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 been previously 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.”  (§ 1203.2a.)

The final paragraph of section 1203.2a reiterates the two events which will result in the loss of the court's jurisdiction.  “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.”  (Emphasis added.)

The question is whether the written notification to the probation officer of defendant's incarceration in state prison coupled with the probation officer's failure to report that fact to the Marin Superior Court within 30 days deprived the court of jurisdiction to impose sentence.   Mr. Hoddinott contends that it does, and we agree with him despite authority to the contrary.

 We hold that the plain language of the section requires that when a probation officer has been notified in writing of the commitment of the defendant a jurisdictional clock begins to run.   The officer must within 30 days report the fact of defendant's prison commitment to the court which granted probation or the court loses its jurisdiction to impose sentence.   Our reading of the statute is in accord with that of People v. Holt (1991) 226 Cal.App.3d 962, 277 Cal.Rptr. 323.

We find unsound the reasoning of People v. Willett (1993) 15 Cal.App.4th 1, 18 Cal.Rptr.2d 603 which ignores the plain language of the statute to conclude that no jurisdictional clock starts ticking until the defendant in strict compliance with the statute's requirements makes a formal request for sentencing.  Willett assumes that the 30–day time limit for loss of jurisdiction if the probation officer fails to report the fact of incarceration is the same 30–day period within which the court upon a proper request must sentence defendant or lose jurisdiction.   The Willett court argues that “[w]hen sentence has not been previously imposed, notice to the probation officer, which does not comply with the written request and waiver provisions of paragraph one, has no ultimate effect.   Even if the probation officer reports the imprisonment to the court, the court cannot impose sentence unless the defendant has requested sentencing in compliance with section 1203.2a.   It is illogical and contrary to legislative intent for the court to lose jurisdiction in that instance.”  (People v. Willett, supra, 15 Cal.App.4th at p. 7, 18 Cal.Rptr.2d 603.)   While Willett presents a cogent reason for its result, the illogic it finds in the language of the section is a consequence of its misreading of the statutory scheme.

We propose a reading of section 1203.2a which gives effect to all its provisions.   In summary, it is simply that the section provides for two events in the case of unsentenced defendants which can set the jurisdictional clock ticking.   The first of these is a written notice from defendant or his counsel or prison officials to the probation officer to the effect that the defendant is now in state prison.   Once such written notice of the defendant's imprisonment has been received by the probation officer, he or she has 30 days in which to report the fact of the commitment to the court which released the defendant on probation.  “In the event the probation officer fails to report such commitment to the court ․ the court shall be deprived thereafter of all jurisdiction it may have retained in the granting of probation in said case.”  (§ 1203.2a.)

The second type of event which will start a 30–day jurisdictional clock is a formal written request for sentencing made by the defendant.   Provided that the defendant complies with the formalities set out in the section for requesting sentence be imposed on the offense for which probation had been granted, the court must respond by sentencing and committing or issuing a final order terminating its jurisdiction within a 30–day period or lose its jurisdiction.

The question before us is whether the court loses jurisdiction in a situation where the probation officer having been informed in writing that defendant is now in state prison fails within 30 days to report that fact to the court, or whether as People v. Willett would have it, the 30–day clock does not start to run until the defendant also makes a procedurally adequate request to the court for sentencing.   As we read the section Willett conflates two separate 30–day periods.   One is triggered by written notice to the probation officer of the fact of defendant's imprisonment.   The other is triggered by a formal request for sentencing made by defendant.   While the two 30–day periods could be coincident, they need not be.   They might not overlap at all.   If on January 1 the probation officer is notified in writing of defendant's commitment and the probation officer reports that fact to the court on January 30 the court has not lost jurisdiction because the probation officer did, in the terms of the statute “within 30 days after being notified in writing by the defendant ․ report such commitment to the court.”   Defendant, however, may not actually make a request for imposition of sentence until February 1, which would give the court 30 days in which to impose sentence.

If either deadline is not met the court loses jurisdiction.   The occurrence of both events, however, is not required to begin a jurisdictional clock.   The statute's final paragraph makes this clear by stating that jurisdiction will lapse if the fact of imprisonment is not reported by the probation officer “or the court fails to impose sentence as herein provided.”   (Emphasis added.)

 The reason for the two separate jurisdictional triggers in the section is clear if we look at the purpose of the section.  In re White (1969) 1 Cal.3d 207, 211, 81 Cal.Rptr. 780, 460 P.2d 980, explains:  “[b]efore section 1203.2a was enacted, if the court that granted probation was unaware of a defendant's subsequent incarceration for another offense and had therefore failed to revoke probation, the defendant might serve the entire term for the other offense but still be subject, on revocation of probation, to serving the term for the offense for which he had been given probation.   Serving of any sentence after such revocation of probation could obviously not run concurrently with the sentence for the offense that had already been served.   By authorizing a defendant on probation ․ to request revocation of probation and imposition of sentence and by requiring his probation officer to notify the court of the subsequent commitment, section 1203.2a affords a procedure for requiring the court to consider imposing a concurrent sentence.   It also precludes inadvertent imposition of consecutive sentences by depriving the court of further jurisdiction over the defendant in the case in which probation was granted, if it fails to act within 30 days of being informed of the relevant facts.”

As White explains, the section carries two safeguards for defendants:  first, it provides that defendant's probation officer must report the fact of defendant's incarceration so that proceedings to revoke that probation can be instituted;  second, it provides that upon a legally sufficient request defendant can obtain a sentence which may run concurrently with the sentence he or she is already serving.   If the section is viewed solely as a vehicle for the defendant to obtain sentencing, the very purpose of the section as explained in White is lost.   The section operates in part as a speedy trial protection for probation revocation hearings.   It does that by requiring the probation officer to report the fact of defendant's incarceration and sanctioning an untimely report with loss of jurisdiction.

Section 1203.2a operates to give defendant an opportunity to serve concurrent sentences and to avoid being inadvertently subjected to consecutive sentences because his or her probation was never revoked.  (In re White, supra, 1 Cal.3d 207 at p. 211, 81 Cal.Rptr. 780, 460 P.2d 980.)   The goal of triggering a probation revocation hearing is accomplished by requiring a report to the court by the probation officer so that written notice of defendant's incarceration given to the probation officer will not simply languish in the officer's in-box.

 The fact that a timely report of incarceration has been made to the court, does not, however, start a second jurisdictional clock running for sentencing.   In order to trigger the second 30–day period a legally adequate request for imposition of sentence must be forthcoming.   Thus, the court is not placed in a time bind of a mere 30 days from initial written notice to the probation officer of the fact of incarceration in which the court must also sentence defendant, except in those cases where a written notice to the probation officer of incarceration coincides exactly with a request for imposition of sentence.

 Mr. Hoddinott was deprived of the prompt disposition benefit of section 1203.2a when his probation officer failed to report that fact to the Marin County Superior Court within 30 days of having been notified in writing by Hoddinott.   That court's jurisdiction having expired 30 days later, the sentence it subsequently imposed was void.⁴

The petition for a writ of habeas corpus is granted.   The sentence imposed in Marin County Superior Court case No. 10506 is vacated.

FOOTNOTES

1.   Penal Code section 1203.2a reads in its entirety as follows:  “If any defendant who has been released on probation is committed to a prison in this state or another state for another offense, the court which released him or her on probation shall have jurisdiction to impose sentence, if no sentence has previously been imposed for the offense for which he or she was granted probation, in the absence of the defendant, on the request of the defendant made through his or her counsel, or by himself or herself in writing, if such writing is signed in the presence of the warden of the prison in which he or she is confined or the duly authorized representative of the warden, and the warden or his or her representative attests both that the defendant has made and signed such request and that he or she states that he or she wishes the court to impose sentence in the case in which he or she was released on probation, in his or her absence and without him or her being represented by counsel.  [¶] The probation officer may, upon learning of the defendant's imprisonment, and must within 30 days after being notified in writing by the defendant or his or her counsel, or the warden or duly authorized representative of the prison in which the defendant is confined, report such commitment to the court which released him or her on probation.  [¶] Upon being informed by the probation officer of the defendant's confinement, or upon receipt from the warden or duly authorized representative of any prison in this state or another state of a certificate showing that the defendant is confined in prison, the court shall issue its commitment if sentence has previously been imposed.   If sentence has not been previously imposed and if the defendant has requested the court through counsel or in writing in the manner herein provided to impose sentence in the case in which he or she was released on probation in his or her absence and without the presence of counsel to represent him or her, the court shall impose sentence and issue its commitment, or shall make other final order terminating its jurisdiction over the defendant in the case in which the order of probation was made.   If the case is one in which sentence has previously been imposed, the court shall be deprived of jurisdiction over defendant if it does not issue its commitment or make other final order terminating its jurisdiction over defendant in the case within 60 days after being notified of the confinement.   If the case is one in which sentence has not previously been imposed, the court is deprived of jurisdiction over defendant if it does not impose sentence and issue its commitment or make other final order terminating its jurisdiction over defendant in the case within 30 days after defendant has, in the manner prescribed by this section, requested imposition of sentence.  [¶] Upon imposition of sentence hereunder the commitment shall be dated as of the date upon which probation was granted.   If the defendant is then in a state prison for an offense committed subsequent to the one upon which he or she has been on probation, the term of imprisonment of such defendant under a commitment issued hereunder shall commence upon the date upon which defendant was delivered to prison under commitment for his or her subsequent offense.   Any terms ordered to be served consecutively shall be served as otherwise provided by law.  [¶] In the event the probation officer fails to report such commitment to the court or the court fails to impose sentence as herein provided, the court shall be deprived thereafter of all jurisdiction it may have retained in the granting of probation in said case.”Unless otherwise indicated all further statutory references are to the Penal Code.

2.   Service of this sentence was completed in November of 1992, and Hoddinott was released on a parole scheduled to terminate in October of 1995.  (The reason that Hoddinott's two-year term was not completed for 35 months is that he had been released from prison at the time the sentence was imposed.   Prison authorities regained custody when Hoddinott was returned to prison for violating his parole on the San Francisco conviction.   Hoddinott then began serving time for the violation and for the longer period of the Marin court's sentence.)

3.   These requirements are set out in paragraph 1 of the section.

4.   In light of this conclusion there is no need to discuss whether the same result is compelled by the failure to impose sentence within 30 days following receipt of the November letter sent by Mr. Hoddinott's attorney to the probation officer.

POCHÉ, Acting Presiding Judge.

PERLEY and REARDON, JJ., concur.