P. v. Davis 3/10/08 CA3

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: C052803

Case Date: 06/18/2008

Preview:Filed 3/10/08

P. v. Davis CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yuba) ----

THE PEOPLE, Plaintiff and Respondent, v. KEVIN MICHAEL DAVIS, Defendant and Appellant.

C052803 (Super. Ct. No. CRF03-702)

In this appeal we conclude:

(1) the speedy sentencing

rights provided by Penal Code section 1381 apply to a probation revocation proceeding if imposition of sentence was originally suspended; (2) the trial court should have granted defendant Kevin Michael Davis's section 1381-based motion to dismiss his probation revocation proceeding for failing to sentence him within the 90-day period mandated by that section (and therefore that sentence must be vacated); and (3) under Penal Code 1 SEE DISSENTING OPINION

section 1387 the People may refile the probation revocation proceeding within defendant's period of probation.

BACKGROUND
On August 25, 2004, pursuant to a plea bargain, defendant pleaded guilty in Yuba County Superior Court case No. CRF03-702 to a single count of violating Health and Safety Code section 11379, subdivision (a) (transporting methamphetamine). On September 13, 2004, the Yuba County Superior Court suspended the imposition of sentence and placed defendant on probation for three years pursuant to Proposition 36 (drug treatment program). On October 12, 2004, the Yuba County Probation Office petitioned to revoke defendant's probation because he failed to report to his probation officer on September 16, 2004, as directed; defendant's probation was summarily revoked. After defendant failed to appear for a Yuba County Superior Court proceeding regarding this September 16 probation violation, the probation violation hearing was held on September 26, 2005, and defendant admitted that he failed to report on September 16, 2004. Defendant was ordered to return

on October 17, 2005, for judgment and sentencing, but he failed to appear on that date. On October 21, 2005, defendant was sentenced in Sutter County Superior Court case No. CRF-05-2182 to two years in state

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prison for violating Penal Code section 459 (first degree burglary).1 Just four days later, on October 25, 2005, at the request of the Yuba County District Attorney, the Yuba County Superior Court issued an Order for Removal of Prisoner. The order

specified that a criminal proceeding (case No. CRF03-702) was pending against defendant in the Yuba County Superior Court, and that defendant was to be brought to the Yuba court on November 7, 2005, at 9:00 a.m. The minute order for the

November 7 proceeding, described as an arraignment for probation violation, states, "Dropped--Active Warrant." On January 4, 2006, defendant served the Yuba County District Attorney with a preprinted form entitled "NOTICE AND DEMAND FOR TRIAL (P.C. SECTION 1381)." This notice provided the

specifics of defendant's Sutter County conviction, stated that defendant had reason to believe that a Yuba County criminal action for violation of probation was pending against him, and demanded a hearing of that criminal action as prescribed by section 1381. Based on this section 1381 demand, defendant, on April 4, 2006, moved to dismiss his Yuba County case (case No. CRF03-702; transporting methamphetamine) because he had not been heard within the 90-day period mandated by that section.

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Hereafter, undesignated section references will be to the Penal Code. 3

In late May 2006, the Yuba County Superior Court implicitly denied defendant's section 1381-based motion, finding the section inapplicable to an incarcerated probationer with a pending probation revocation proceeding. The Yuba court then

sentenced defendant on his Yuba County conviction (transporting methamphetamine) to a one-year sentence consecutive to his twoyear sentence on his Sutter County conviction (first degree burglary). Defendant has timely appealed from this Yuba County judgment.

DISCUSSION
1. Application of Section 1381 Defendant contends his Yuba County case (transporting methamphetamine) must be dismissed because the Yuba County Superior Court failed to sentence him within 90 days of the district attorney's receipt of his section 1381 demand for hearing regarding his pending probation violation proceeding. We conclude that defendant's Yuba County probation revocation (sentencing) proceeding should have been dismissed, and that the sentence imposed at that proceeding must be vacated. Section 1381 provides in pertinent part: "Whenever a

defendant has been convicted, in any court of this state, of the commission of a felony . . . and has entered upon a term of imprisonment . . . and at the time of the 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 4

sentenced, the district attorney of the county in which the matters are pending shall bring the defendant to trial or for sentencing within 90 days after the 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 or for sentencing unless a continuance beyond the 90 days is requested or consented to by the person, in open court . . . . 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 his or her counsel . . . or on its own motion, dismiss the action." (Italics added.)

As this court has 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.'" (People v. Boggs (1985) 166 Cal.App.3d 851, 855 (Boggs), quoting Boles v. Superior Court (1974) 37 Cal.App.3d 479, 484 (Boles); see also

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