P. v. Wagner 8/14/07 CA3

State: California

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

Docket No: C052049

Case Date: 11/28/2007

Preview:Filed 8/14/07

CERTIFIED FOR PUBLICATION

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

THE PEOPLE, Plaintiff and Respondent, v. DAVID ERIC WAGNER, Defendant and Appellant.

C052049 (Super. Ct. No. CRF 03-6456)

APPEAL from a judgment of the Superior Court of Yolo County, Stephen L. Mock, Judge. Reversed with directions. John Doyle, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Angelo S. Edralin, Deputy Attorneys General, for Plaintiff and Respondent.

In this appeal we conclude that the speedy sentencing rights provided by Penal Code sections 1381 and 1203.2a apply to a probation revocation proceeding where imposition of sentence was originally suspended. These two sections provide a

-1-

defendant with alternative methods for obtaining sentencing.1 Here, in a probation revocation proceeding, the trial court sentenced defendant beyond the 90-day time period mandated by section 1381. Because 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. Finally, we conclude that 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.

BACKGROUND
On October 31, 2003, defendant David Eric Wagner pleaded no contest in Yolo Superior Court case No. CRF 03-6456 to a single count of violating Health and Safety Code section 11379, subdivision (a) (unlawful transportation of a controlled substance), and admitted a prior conviction within the meaning of Health and Safety Code section 11370.2 (prior conviction involving a controlled substance). The trial court suspended

imposition of sentence and placed defendant on probation for three years pursuant to Proposition 36 (drug treatment program). On July 12, 2005, the Yolo County Probation Office petitioned to revoke defendant's probation. The petition

1

Hereafter, undesignated section references are to the Penal Code. -2-

alleged that defendant had violated his probation by being convicted in Sacramento Superior Court on February 2, 2005, of two felonies--(1) receipt of stolen property (

Download P. v. Wagner 8/14/07 CA3.pdf