PEOPLE v. VALDESPINO (1971)

Following a trial to the court in Santa Clara County, defendant George G. Valdespino was found guilty of grand theft, a felony, in violation of Penal Code sections 484 and 487, subd. 1. On January 13, 1967, imposition of sentence was suspended and he was placed on probation for two years. Conditions of probation were that he make restitution to the victim of his crime and that he serve 6 months in the county jail.

Ten months later, November 13, 1968, he was convicted of forgery (Pen.Code, § 470) in Los Angeles County, and was sentenced to serve one year in the county jail for that offense. Thereafter his Santa Clara County probation was revoked; the reason does not appear in the record but Valdespino admits that he was ‘guilty of the [probation] violation.’

On January 2, 1969, Valdespino wrote the District Attorney of Santa Clara County stating, as relevant:

‘I George Gene Valdespino, hereby give notice and make a formal Request to be Removed from the Los Angeles County Jail, Los Angeles California, to the Santa Clara County Jail, at Santa Clara California. That such Request is based upon the Applicable Statute of the Penal Code Regarding removal from one County to another where an Outstanding warrant and ‘Hold’ has been placed upon a prisoner. * * *

‘I the undersigned have been sentenced in the Los Angeles Matter and am presently serving one year * * * County jail term, * * * I feel in all fairness that Santa Clara County should bring me up to Santa Clara to get sentenced on the violation of probation as soon as possible. So That should the Judge sentence me to a prison term for the Violation of Probation it will eat up all the County jail sentence, /or should I receive a County jail sentence for Violation of probation, I could possibly get all the time to run together with the Los Angeles County jail term. I've been in custody since January 2, 1969.’

Valdespino's request was not honored. Upon his release from the Los Angeles County Jail and more than 90 days after receipt of the letter he was transferred to Santa Clara County for hearing on his probation violation. In the superior court of the latter county he made a motion to dismiss the grand theft information on which he had been found guilty and granted probation more than two years earlier. The motion was based on Penal Code section 1381; the stated ground was that he had been denied a speedy trial. Valdespino's motion to dismiss was denied. His probation was reinstated and extended for one year, and he was again ordered to make restitution to the victim of his grand theft.

The appeal is from the ‘order reinstating probation and extending the same for the period of one year.’ (The Attorney General concedes that such an order is appealable as an order made after judgment affecting the substantial rights of a party. (Pen.Code § 1237).) In its effect, however, the appeal is from the order denying Valdespino's section 1381 motion to dismiss the grand theft information on which he was found guilty and granted probation.

As relevant here Penal Code section 1381 provides:

‘Whenever a defendant has been convicted, in any court of this state, of the commission of a felony or misdemeanor and * * * has been sentenced to and has entered upon a term of imprisonment in a county jail for a period of more than 90 days * * * and at the time of the entry upon such term of imprisonment or commitment there is pending, in any court of this state, any other indictment, information, or complaint charging such person with the commission of any crime it is hereby made mandatory upon the district attorney of the county in which such charge is pending to bring the same to trial within 90 days after such person shall have delivered to said district attorney written notice of the place of his imprisonment or commitment and his desire to be brought to trial upon said charge * * *. In the event such action is not brought to trial within the 90 days herein provided the court in which such charge is pending must * * * dismiss such charge.’

Valdespino's contention is that he was entitled under section 1381 to have the outcome of his Santa Clara County probation revocation speedily resolved, so that in the event he was to be sentenced to jail or prison he might seek to have such time run concurrently with his los Angeles sentence. He relies on the language of section 1381 requiring, under certain circumstances, that a prisoner be ‘brought to trial’ on a charge other than that for which he is serving time. He insists that his ‘trial’ on the Santa Clara County grand theft change still continued and that it would not be completed until he was ‘sentenced’ on his probation violation.

The authority offered in support of Valdespino's contentions is People v. Brown, 260 Cal.App.2d 745, 67 Cal.Rptr.288. That case concerned Penal Code section 1381.5, a close counterpart of section 1381, affecting federal prisoners against whom state criminal charges are pending. Brown had pleaded guilty to a felony in the Los Angeles Superior Court. However, because of a federal arrest and prison sentence he was unable to appear for his state probation and sentence hearing. While in a federal prison he made a request of the Los Angeles District Attorney, as provided by section 1381.15, that he be ‘brought to trial’ on the state charge. No effort was made to comply with Brown's request. Some years later upon completion of the federal sentence he was returned to the superior court. A motion to dismiss the charge under section 1381.5 was made and denied, and he was granted probation. On appeal from the order granting probation the Court of Appeal held that the motion to dismiss should have been granted, stating (pp. 750–751, 67 Cal.Rptr. at p. 292):

‘Although in certain contexts the expression ‘brought to trial’ might possibly encompass only that portion of the criminal proceeding which results in a determination of the accused's guilt or innocence, it is clear that as used in section 1381.5 it includes the entry of a judgment or other final, appealable order. The imposition of sentence is an essential part of the speedy trial guaranteed to all accused. * * *'

We are asked to extend the holding of People v. Brown to the facts of Valdespino's case. We have concluded that we may not reasonably do so and that the order appealed from must be affirmed. Our reasons follow. $yInitially, we note the distinction between the two cases. In People v. Brown there had been neither sentence nor grant of probation following the conviction by guilty plea; there was ‘no judgment or other final appealable order.’ In the case at bench after conviction and upon arraignment for judgment Valdespino moved for probation. After a hearing an order granting him probation (a final appealable order—Pen.Code, § 1237) was made. Approximately two years later, admittedly for good cause, his probation was revoked.

We note also that section 1381 is a legislative implementation of the constitutional right of one charged with crime to a speedy trial. As pointed out in Barker v. Municipal Court, 64 Cal.2d 806, 812–813, 51 Cal.Rptr. 921, 415 P.2d 809, the purpose of the Constitution and of section 1381 is: (1) to protect the accused against prolonged imprisonment, (2) to relieve him of the anxiety and public suspicion attending an unresolved criminal charge, (3) to prevent his exposure to the hazards of a trial after a great lapse of time, with witnesses unavailable or their memories dulled, and (4) to avoid the possibility of concurrent sentences being denied him.

These considerations seem wholly inapplicable to Valdespino. His guilt on the earlier Santa Clara County charge has been conclusively determined. The anxiety and public suspicion attending an unresolved criminal charge and a lapse of time with attending problems of missing or forgetful witnesses could not concern him. Nor could he be prejudiced by the possibility of prolonged imprisonment or denial of the possibility of concurrent sentences. Upon completion of his Los Angeles sentence and appearance before the Santa Clara County Superior Court, that court, if so minded (as in fact it appears to have been), could consider the time served in southern California following the revocation of Valdespino's probation. Thus an opportunity to secure the equivalent of concurrent sentences was not denied him.

‘A trial is an examination before a competent tribunal, according to the law of the land, of the facts or law put in issue in a cause for the purpose of determining such issue.’ (Tregambo v. Comanche Mill and Mining Co., 57 Cal. 501, 505; Southern Pacific Co. v. Seaboard Mills, 207 Cal.App.2d 97, 102, 24 Cal.Rptr. 236; Smith v. City of Los Angeles, 84 Cal.App.2d 297, 301–302, 190 P.2d 943.) Ordinarily the trial ends with the verdict or other decision of the trier of fact. (Connolly v. Ashworth, 98 Cal. 205, 206, 33 P. 60; People v. Turner, 39 Cal. 370, 371; Haupt v. La Brea Heating etc. Co., 125 Cal.App.2d Supp. 888, 889, 270 P.2d 125; Reimer v. Firpo, 94 Cal.App.2d 798, 800, 212 P.2d 23; People v. Lopez, 43 Cal.App.2d Supp. 854, 865–866, 110 P.2d 140; People v. White, 5 Cal.App. 329, 340, 90 P. 471; People v. Stokes, 5 Cal.App. 205, 214, 89 P. 997.) And it has been held that a ‘hearing for revocation of probation is not a trial.’ (Emphasis added.) (People v. Blankenship, 16 Cal.App.2d 606, 609, 61 P.2d 352, 353; see also People v. Sweeden, 116 Cal.App.2d 891, 894, 254 P.2d 899.)

No authority has been presented to us, nor do we find any, holding that the ‘trial’ of a cause, criminal or civil, under any circumstances, extends beyond the limit set by People v. Brown, supra, 260 Cal.App.2d 745, at p. 751, 67 Cap.Rptr. 288, at p. 292, to wit, ‘the entry of a judgment or other final, appealable order.’

Furthermore, one convicted of crime and granted probation is ‘not entitled to a trial or even a formal hearing upon the revocation of his probation’ and the statute does not contemplate such a trial. (In re Young, 121 Cal.App. 711, 713, 10 P.2d 154, 155.) In re Davis, 37 Cal.2d 872, 873–874, 236 P.2d 579, 580, states: ‘[T]here is neither a constitutional nor a statutory right to notice and hearing preceding revocation of probation. The federal Constitution does not give such a right. * * * And we do not believe that section 13 of article I of our state Constitution should be held to give petitioner a greater right * * *.’ And it has been consistently held that a ‘probation proceeding is not part of a ‘prosecution.” (In re Levi, 39 Cal.2d 41, 44, 244 P.2d 403, 404; People v. Victor, 252 Cal.App.2d 531, 535, 60 Cal.Rptr. 638; People v. Wimberly, 215 Cal.App.2d 538, 550, 30 Cal.Rptr. 421.)

Certainly if no trial or prosecution occurs, or right to trial exists, on probation revocation proceedings, it may not reasonably be said that the ensuing judicial determination of penalty, if any, nevertheless constitutes a ‘trial’ of a criminal proceeding. And as we have indicated section 1381 implements and is grounded on the constitutional right to a speedy trial. Here there has been no denial of that, or any other apparent, constitutional right.

Nevertheless, although constitutional principles appear to be absent, the uncertain plight of a probationer who is imprisoned for another offense by a different court seems reasonably entitled to legislative consideration. This has been recognized by the Legislature in its 1941 enactment of Penal Code section 1203.2a. Section 1203.2a provides a procedure under which a ‘defendant who has been released on probation is committed to a prison in this State for another offense,’ may require the court which granted him probation to sentence him or make other ‘final order terminating its jurisdiction.’ (Emphasis added.) Failure of the court so to do within a stated time shall deprive the court ‘of any jurisdiction over the defendant in the case on which he was granted probation.'¹

It is noted that the Legislature, in enacting section 1203.2a, specifically refrained from extending its operation to probationers who are sentenced to a county jail for a subsequent offense. The probable reason: Such county jail prisoners would not be exposed to long prison terms before any additional sanction resulting from the first conviction could be fixed. Since a county jail term may not exceed one year (Pen.Code, § 19a) such a prisoner in ordinary course would have such a determination in a relatively short time. The Legislature may also have considered the disruption and expense to our judicial and penal systems, if each time a probationer of one or more jurisdictions is sentenced to a county jail term, of whatever length, he must on his demand be transported, perhaps great distances, back to other courts and counties. But in any event, applying the rule expressio unius est exclusio alterius (see Jones v. Robertson, 79 Cal.App.2d 813, 816, 180 P.2d 929), it must be concluded that the Legislature deliberately chose to exclude county jail prisoners from the application of section1203.2a.

It is further noted that if the Legislature intended section 1381 (enacted in 1931) to apply after trial and a final probation order (from which a right of appeal existed), then there could have been little reason for its subsequent and redundant enactment of section 1203.2a.

Since constitutional considerations are not involved—it follows that whether one in Valdespino's position should on his demand be returned to the court which placed him on probation for further sentencing procedure is a matter of legislative policy. Courts will not reverse a legislative determination merely because its wisdom or propriety may seem debatable. (Miller v. Board of Public Works, 195 Cal. 477, 490, 234 P. 381; Town of Atherton v. Templeton, 198 Cal.App.2d 146, 150–151, 17 Cal.Rptr. 680.)

The order is a affirmed.

I dissent.

In my opinion, People v. Brown (1968) 260 Cal.App.2d 745, 67 Cal.Rptr. 288, gave proper recognition to the principle, recognized in Barker v. Municipal Court (1966) 64 Cal.2d 806, 813, 51 Cal.Rptr. 921, 415 P.2d 809, that one of the purposes of a speedy trial is to protect the accused against prolonged imprisonment. (See, 260 Cal.App.2d at p. 751, 67 Cal.Rptr. 288.) It is true that in Brown, the accused was taken into Federal custody before any hearing could be had with respect to his sentencing, whereas in this case the accused has had one sentence hearing in which he was granted probation. The same considerations apply, however. In each case the accused is undergoing punishment from one jurisdiction, and is faced with the possibility that he may lose the opportunity to have another punishment, which is due from and may be imposed by a second jurisdiction, run concurrently.

The principle that the defendant whose probation has been revoked is entitled to prompt determination of his punishment is not of consequence or revocation of probation when sentence has been imposed and is executed automatically. (See, Pen.Code, § 1203.2.) It is important when imposition of sentence has been suspended. The Legislature in section 1203.2a of the Penal Code has expressly given the defendant committed to a state prison in this state the right to secure a prompt imposition of sentence when his probation for another offense is revoked under such circumstances. (See, In re White (1969) 1 Cal.3d 207, 211, 81 Cal.Rptr. 780, 460 P.2d 980.) These provisions have been held applicable to one committed to a state prison as a sexual psychopath (In re Perez (1966) 65 Cal.2d 224, 228, 53 Cal.Rptr. 414, 418 P.2d 6), and to one recommitted to prison as a parole violater (In re Klein (1961) 197 Cal.App.2d 58, 61–62, 17 Cal.Rptr. 71).

In Perez the court, in noting the purpose of section 1203.2a, stated: ‘That section precludes outstanding probationary orders against one confined in a state prison and the uncertainty that would prevail as to when and whether the court that granted probation will seek to impose sentence on the prisoner. Fairness to one committed to a state prison and proper administration by the prison officials and the Adult Authority require that such outstanding convictions be reduced to judgment or be otherwise finally disposed of by termination of the trial court's jurisdiction. These considerations apply to one committed to a state prison as a sexual psychopath who would not benefit by hospital care as well as to one sentenced to a prison as a convicted felon.’ (65 Cal.2d at p. 228, 53 Cal.Rptr. at pp. 416–417, 418 P.2d at pp. 8–9.) The same considerations apply to one who is sentenced to undergoing a lengthy county jail sentence. If he is promptly sentenced to state prison following revocation of probation on another charge he may serve the sentences concurrently. (See, Pen.Code, § 669; and People v. Floyd (1969) 71 Cal.2d 879, 885, 80 Cal.Rptr. 22, 457 P.2d 862.)

Section 1203.2a does not, however, cover the case of one, whom like defendant, is undergoing a county jail sentence for a second offense. In Perez and other cases the earlier provisions of section 1203.2a, which provided for sentence in absentia without any waiver of the defendant's presence or of his right to counsel, were found to be unconstitutional. In these cases it was indicated that there was no time limit for sentencing the defendant whose probation had been revoked. ‘Before the enactment of section 1203.2a, a court that had suspended imposition of sentence and granted probation to one who later found himself in the situation of this petitioner or of Klein, 197 Cal.App.2d 58, 17 Cal.Rptr. 71, or Fisherman, 237 Cal.App.2d 356, 47 Cal.Rptr. 33, did not lose jurisdiction to impose sentence because of lapse of time. If probation was timely revoked, judgment could be imposed at any time thereafter. (See People v. Williams (1944) 24 Cal.2d 848, 853, 151 P.2d 244; People v. Siegel (1965) 235 Cal.App.2d 522, 524, 45 Cal.Rptr. 530)’ (In re Perez, supra, 65 Cal.2d 224, 232, 53 Cal.Rptr. 414, 419, 418 P.2d 6, 11. In addition to the cases last cited, see also, In re Roberts (1953) 40 Cal.2d 745, 748, 255 P.2d 782; In re Levi (1952) 39 Cal.2d 41, 47, 244 P.2d 403; People v. Hubert (1962) 204 Cal.App.2d 617, 618–619, 22 Cal.Rptr. 450; and People v. Brown (1952) 111 Cal.App.2d 406, 408, 244 P.2d 702.)

In none of the cases, which indicate that there is no limit of time within which a defendant may be sentenced after his probation has been revoked, was there any mention of the provisions of section 1381 of the Penal Code, nor in any was there a demand by the defendant that he be sentenced. In fact, in each of those cases the defendant either had voluntarily absented himself from the control of his probation officer, or had involuntarily suffered incarceration by another jurisdiction. There is no compelling reason why the provisions of section 1203.2a should be considered the exclusive remedy.

In re Mugica (1968) 69 Cal.2d 516, 72 Cal.Rptr. 645, 446 P.2d 525 reviews a defendant's claims that he was denied a speedy trial because he was forced to undergo an existing county jail sentence before being arraigned on other pending charges. The court found the defendant's complaint to be unfounded (69 Cal.2d at p. 524, 72 Cal.Rptr. 645, 446 P.2d 525). Nevertheless, the opinion states, ‘The basic policy underlying the constitutional guarantee to a speedy trial is to protect the accused from having criminal charges pending against him an undue length of time. [Citations.] The constitutional right to a speedy trial protects every accused; a convict is not excepted. [Citation.]’ (Id., pp. 522–523, 72 Cal.Rptr. at p. 649, 446 P.2d at p. 529.) The court further noted that a prisoner's or a parolee's rights to a speedy trial on another felony charge were governed by the provisions of section 1381, and that even before 1968 amendments expressly made it so, the rationale of the section was equally appropriate to the inmates of county jails (id., p. 523, 72 Cal.Rptr. 645, 446 P.2d 525).

If the right to a speedy trial includes the right to be sentenced without untoward delay (see, People v. Brown, supra, 260 Cal.App.2d 745, 750–751, 67 Cal.Rptr. 288; and Pen.Code, § 1191), the incarcerated defendant who remains unsentenced because his probation has been revoked should have the same rights as the incarcerated defendant whose sentencing was interrupted by his detention in another jurisdiction. Section 1203.2 recognizes that there has been no ‘final disposition of the case’ until the defendant is discharged because of performance of the terms of probation, or because of the execution of a sentence.

It is true that in this case the defendant has suffered little prejudice because he was restored to his probationary status with only the burden of a longer term of probation. It may be that in many cases a similar result would ensue. It is also possible that he could have been sentenced to prison without ever having had an opportunity to have that sentence concurrent with the jail term he suffered under his second conviction. Anyone who reads the pleas of inmates questioning the powers and jurisdiction of the Adult Authority, can not help but be aware that one of a prisoner's prime concerns is the definiteness of the term of his punishment. The uncertainties breed dissatisfaction and revolt. To interpret the constitutional and statutory provisions as requiring prompt assessment and punishment in cases such as this does not impose a burden without some compensations.

I would reverse the judgment and order the discharge of the defendant for failure to arraign him for sentence within 90 days of his request.

FOOTNOTES

1.  In the judicial history of Penal Code section 1203.2a no court has suggested that it implements, or relates in any way to, the constitutionally guaranteed right to a speedy trial. (See In re White, 1 Cal.3d 207, 81 Cal.Rptr. 780, 460 P.2d 980; In re Perez, 65 Cal.2d 224, 232, 53 Cal.Rptr. 414, 418 P.2d 6: In re Osslo, 51 Cal.2d 371, 380, 334 P.2d 1; In re Roberts, 40 Cal.2d 745, 255 P.2d 782; People v. Williams, 24 Cal.2d 848, 151 P.2d 244; In re Morgan, 267 Cal.App.2d 438, 73 Cal.Rptr. 196; People v. Von Latta, 258 Cal.App.2d 329, 348, 65 Cal.Rptr. 651; People v. Rogers, 252 Cal.App.2d 1015, 1020–1021, 61 Cal.Rptr. 48; People v. Ford, 239 Cal.App.2d 944, 49 Cal.Rptr. 283; People v. Wendes, 237 Cal.App.2d 814, 47 Cal.Rptr. 310; People v. Fisherman, 237 Cal.App.2d 356, 362, 47 Cal.Rptr. 33; In re Ramey, 234 Cal.App.2d 459, 44 Cal.Rptr. 473; People v. Sogoian, 232 Cal.App.2d 430, 436, 42 Cal.Rptr. 736; People v. De Waele, 224 Cal.App.2d 512, 516, 36 Cal.Rptr. 825; In re Klein, 197 Cal.App.2d 58, 17 Cal.Rptr. 71; People v. Knight, 193 Cal.App.2d 248, 14 Cal.Rptr. 77; In re klein, 75 Cal.App.2d 600, 171 P.2d 471.)

ELKINGTON, Associate Justice.

MOLINARI, P. J., concurs.