People v. Mendoza

Opinion

Defendant and appellant Kimberly Mendoza admitted alleged violations of probation and the trial court continued her on probation. Defendant appealed, requesting a certificate of probable cause to challenge the validity of the plea/admission and continuation on probation. Defendant contends that the trial court failed to act on a demand for sentencing (Pen. Code, § 1203.2a) she had filed several months earlier, and the trial court therefore lacked jurisdiction to rule on the violation of probation allegations, or to impose sentence or reinstate probation. We reverse, and remand with directions to terminate defendant’s probation.

FACTS AND PROCEDURAL HISTORY

Defendant was charged in Riverside County with four drug-related offenses. The trial court suspended imposition of sentence and placed defendant on three years’ probation in connection with the Riverside case. Nearly two years later, defendant was convicted of a new felony in a different county, San Bernardino County. Defendant was sentenced to 16 months’ imprisonment, to be served in the county jail. (Pen. Code, § 1170, subd. (h).)

Defendant filed a request on January 8, 2013, in the Riverside case to terminate probation and to impose sentence in absentia under Penal Code section 1203.2a. Defendant asked for a disposition of her probation in the Riverside County case, and waived her right to be present and her right to an attorney. In the past, Penal Code section 1203.2a applied only to state prison inmates because inmates sentenced to “a prison in this state” could only have been sentenced to a state prison. Accordingly, a petition to impose sentence in absentia, when a prison sentence has been ordered to be served in the county jail, has never been expressly provided for by the terms of Penal Code section 1203.2a. In addition, the “petition” defendant filed lacked attestation by the prison warden, or the warden’s designate, as required under the statute. The trial court called the matter for hearing on March 27, 2013. The prosecutor

Several months later, in June 2013, defense counsel filed a motion in the Riverside case for termination of probation under Penal Code section 1203.2a, because of the court’s inaction. The People opposed the motion. The People contended that defendant’s petition was invalid because it lacked a warden’s attestation. The People also argued that terminating defendant’s probation would not be in the interest of justice. Defense counsel submitted a reply, including a declaration from a defense investigator. The investigator averred that the form was a California Department of Corrections and Rehabilitation (CDCR) form, which appeared to have been prepared by a correctional officer on defendant’s behalf, but not attested. Defendant’s reply argued that her rights under Penal Code section 1203.2a could not be defeated by the neglect and omissions of correctional officers, and the lack of attestation would, at most, affect only her waiver of the right to counsel at the sentencing hearing. It could not wholly invalidate an inmate’s demand for sentencing or her waiver of her right to be present.

A hearing on the alleged violation of probation in the Riverside case was held on July 9, 2013. Defense counsel’s motion to terminate probation had been continued to July 12. At the violation of probation hearing, defendant’s regular public defender (Daniel Yu) was not present; another deputy public defender (Trisha Luciano) appeared for purposes of the violation of probation hearing, but Luciano was not familiar with all the circumstances of the case. During a recess in the proceedings, defendant completed a form admitting the violation of probation and agreeing to be reinstated on Proposition 36 (substance abuse) probation. Attorney Luciano declined to join in defendant’s waivers and admissions because she felt that defendant was admitting the violations of probation merely to gain release from custody.

The trial court apparently viewed the motion to terminate probation as inconsistent with the plea agreement to admit violations of probation and to reinstate probation, and inquired whether counsel wished to take the motion to terminate probation off calendar. Attorney Luciano asked the court to consider giving defendant a release on her own recognizance so that she could attend the scheduled hearing on July 12, 2013, to consider her motion to terminate probation. The court still took the view that the admissions and reinstatement to probation would require taking the termination motion off calendar. Defendant wished to proceed with the agreed disposition on the violation of probation hearing. The court then remarked that defendant’s January request for immediate sentencing under Penal Code section 1203.2a

1. Commitment of Probationer/Defendant to Prison upon Notification to the Court by the Probation Officer

One set of circumstances requiring action by the court concerns notification of the probationer’s confinement in prison on a new offense, by the probation officer supervising the probationer. Under the second paragraph of Penal Code section 1203.2a, the probation officer supervising the

The third paragraph of Penal Code section 1203.2a provides that, when the court that released the defendant on probation receives the report of the defendant’s imprisonment from the probation officer, “the court shall issue its commitment if sentence has previously been imposed.” On the other hand, “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.” {Ibid.)

The fifth paragraph of Penal Code section 1203.2a provides: “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.”

2. Commitment of Probationer/Defendant to Prison upon Notification from Prison Warden

Another set of circumstances requiring action by the court supervising the probationer/defendant, also described in paragraph three of Penal Code section 1203.2a, is the “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.” Upon receipt of such notice from the prison, the court, again, “shall issue its commitment if sentence has previously been imposed.” {Ibid.) And, as in the case of notification by the probation officer, paragraph three of Penal Code section 1203.2a further provides: “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.”

3. Imposition of Sentence upon Request of Counsel or Defendant

Penal Code section 1203.2a also provides two additional alternative circumstances in which the court must respond to the probationer/defendant’s

The first paragraph of Penal Code section 1203.2a provides that, when a probationer who “is committed to a prison in this state or another state for another offense,” the court that released the probationer/defendant has jurisdiction to impose sentence, if no sentence had yet been imposed, “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.” When the defendant makes the request himself or herself, and not through counsel, Penal Code section 1203.2a prescribes the formalities of the defendant’s personal request in writing. The writing must be “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.” (Ibid.)

When the defendant has made such a request through counsel to be sentenced on the probation case, paragraph three of Penal Code section 1203.2a provides that “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.” The court imposes the sentence in the defendant’s absence, although the defendant is represented by counsel. When the defendant is not represented by counsel, however, and makes the request personally, “in writing in the manner herein provided,” the court is authorized to “to impose sentence in the [probation] case ... in his or her absence and without the presence of counsel to represent him or her.” (Ibid.) Once more, as in the circumstance of a request for sentencing from the defendant’s counsel, 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.” (Ibid.)

Paragraph three of Penal Code section 1203.2a makes a distinction between the circumstances in which sentence had previously been imposed, and the circumstances in which sentence had not been previously imposed. The court acts to commit the defendant to prison, if sentence was earlier imposed, upon the notifications of the probation officer or the prison warden. The court acts to impose sentence, if none was imposed earlier, on the defendant’s request for sentencing in absentia, either through counsel or by individual request. “If the case is one in which sentence has previously been

As noted earlier, paragraph five of Penal Code section 1203.2a provides: “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.”

4. Service of the Prison Commitment in the Probation Case

The fourth paragraph of Penal Code section 1203.2a provides that, when probation is revoked and sentence imposed, “the commitment [in the probation offense] shall be dated as of the date upon which probation was granted.” However, “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.” {Ibid.) Finally, the fourth paragraph provides that, “Any terms ordered to be served consecutively shall be served as otherwise provided by law.” {Ibid.)

5. Legislative Purpose: To Allow a Defendant the Possibility of Serving Time on Both Offenses Concurrently

“When the prisoner requests imposition of sentence under section 1203.2a he receives the benefit of the possibility of concurrent sentences. (In re White (1969) 1 Cal.3d 207 , 211 [ 81 Cal.Rptr. 780 , 460 P.2d 980 ].) The [probation-granting] trial court and its clerk and probation officer are afforded the convenience of closing their files in a case which otherwise might remain undisposed of for years. Moreover, the procedure seeks to give prisoners the benefit of prompt sentencing or other final disposition while avoiding the government’s expenditure of time and funds to produce imprisoned defendants for unnecessary court appearances. [Citations.]” (Hayes v. Superior Court (1971) 6 Cal.3d 216 , 222-223 [ 98 Cal.Rptr. 449 , 490 P.2d 1137 ] (Hayes).) There is no guaranty that a defendant will receive concurrent sentences, but “[t]he legislative purpose underlying section 1203.2a is to prevent the inadvertent denial of the benefit of concurrent sentencing under Penal Code section

“In 1943 the Legislature rewrote the statute, adding what are now the second and last paragraphs. Paragraph two provided: ‘The probation officer may, upon learning of such defendant’s imprisonment, and must within 30 days after being notified in writing by the defendant or his counsel, or the warden or superintendent or clerk of the prison in which the defendant is confined, report such commitment to the court which released the defendant on probation.’ (Stats. 1943, ch. 321, § 1, pp. 1316, 1317.) The last sentence of the final paragraph stated: ‘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.’ (Ibid.)

“Since 1943, section 1203.2a has been amended five times (most recently, in 1989). [Fn. omitted.] The most significant change occurred in 1963, when the statute was amended in response to case law requiring the defendant to waive presence and representation by counsel before a court could constitutionally impose sentence in his or her absence. (See In re Perez (1966) 65 Cal.2d 224 , 230, fn. 3 [ 53 Cal.Rptr. 414 , 418 P.2d 6 ]; In re Klein (1961) 197 Cal.App.2d 58 , 62-63 [ 17 Cal.Rptr. 71 ].) At that time, the Legislature added the first paragraph, establishing the procedures by which an unsentenced probationer can constitutionally request sentencing in absentia. (Stats. 1963, ch. 2079, § 1, p. 4345.) In 1976 the statute was amended to increase from 30 to 60 days the time within which the court must make its final order terminating jurisdiction over a previously sentenced defendant. (Stats. 1976, ch. 376, § 1, p. 1024; see also People v. Martinez (1975) 46 Cal.App.3d 736 , 741, fn. 2 [ 120 Cal.Rptr. 362 , 121 Cal.Rptr. 443 ].) In 1987, again in response to case law, the Legislature extended the right to request disposition under section 1203.2a to prisoners in other states and those committed to federal prison. (Stats. 1987, ch. 828, §76, pp. 2610-2611; see Hayes[, supra,] 6 Cal.3d 216 , 220 [ 98 Cal.Rptr. 449 , 490 P.2d 1137 ].) Yet, despite these amendments, the pertinent language of the second and final paragraphs has remained unchanged for more than 50 years, since 1943.

“Consequently, as presently written, section 1203.2a provides for 3 distinct jurisdictional clocks: (1) the probation officer has 30 days from the receipt of written notice of defendant’s subsequent commitment within which to notify the probation-granting court (2d par.); (2) the court has 30 days from

“As we have previously explained, section 1203.2a was intended to provide a mechanism by which the probationary court could consider imposing a concurrent sentence, and to ‘preclude^ inadvertent imposition of consecutive sentences by depriving the court of further jurisdiction over the defendant’ when the statutory time limits are not observed. (In re White[, supra,] 1 Cal.3d 207 , 211 [ 81 Cal.Rptr. 780 , 460 P.2d 980 ].) The statute’s second and final paragraphs, interpreted according to their plain language, do serve these purposes.” (In re Hoddinott, supra, 12 Cal.4th 992 , 999-1000, fn. omitted.)

a. Equal Protection Considerations Extend the Benefits of Penal Code Section 1203.2a to Out-of-state and Federal Prisoners

In 1944, the California Supreme Court stated in People v. Williams (1944) 24 Cal.2d 848 [ 151 P.2d 244 ] that Penal Code section 1203.2a did not apply to a probationer/defendant who had been committed to a state prison in another state. The defendant in Williams had been admitted to probation for an offense in California in 1937, and was thereafter convicted of a new crime in Arizona in 1938. The defendant served 18 months in the Arizona state prison. The defendant’s California probation was revoked in 1938, before the probationary period had expired, but sentencing on the California offense was placed off calendar because the defendant was in prison in Arizona. After the defendant’s release from the Arizona prison, the defendant also served a term in a federal prison. The defendant appeared in the California court in 1943, long after the probationary period had expired. The defendant claimed on appeal that the judgment imposed by the California court was invalid because it was not pronounced until after expiration of the probationary period.

The court held that the defendant’s probation was properly revoked within the probationary period, “but the defendant may be rearrested at any time until the final disposition of the case and brought before the court. There can be no final disposition of the case when probation is revoked until judgment is pronounced .... Generally, judgment must be pronounced in the presence of the defendant .... (Pen. Code, § 1193.) Under this section a defendant must be personally present, and if he is not the court cannot pronounce judgment unless a proper showing of diligence is made as required

In passing, the court also considered the possible applicability of Penal Code section 1203.2a, and stated, “Section 1203.2a is without application to this case for, as originally enacted in 1941 and clarified by amendment in 1943, it applies only to a probationer who is subsequently committed in this state.” (People v. Williams, supra, 24 Cal.2d 848 , 853.)

Later, however, as noted in In re Hoddinott, supra, 12 Cal.4th 992 , the California Supreme Court had occasion to reconsider the issue — i.e., applicability of Penal Code section 1203.2a to persons imprisoned in other states or in federal prison- — in light of an equal protection claim. (In re Hoddinott, at p. 999, citing Hayes, supra, 6 Cal.3d 216 , 220.) In Hayes, the defendant was placed on probation in 1968, for an offense committed in San Bernardino County in California. In 1969, while still on probation in California, the defendant violated probation by leaving the state and traveling to Nevada, and also by committing a robbery there. He was sentenced to 10 years in the Nevada state prison. In March 1969, one month after his Nevada conviction, the probation officer reported the defendant’s incarceration to the San Bernardino court. The San Bernardino court revoked the defendant’s probation ex parte, and issued a bench warrant for the defendant. The warrant was placed as a detainer on the defendant’s record with the Nevada prison authorities. (Ibid.) The detainer caused the Nevada authorities to assign the defendant to a maximum security facility, which in turn limited his opportunities to participate in educational or rehabilitative programs, and adversely affected his parole eligibility. (Ibid.)

Starting in May 1969, the defendant wrote a number of letters and motions, sent to the San Bernardino court, asking to recall the bench warrant and reinstate probation, or to produce the defendant in court for hearing and disposition of the California case. The San Bernardino court denied these requests. (Hayes, supra, 6 Cal.3d 216 , 220-221.)

Penal Code section 1203.2a provided a procedure for probationers who are committed to prison in California to “obtain relief from the harmful uncertainty of other outstanding California convictions as to which he has been granted probation with imposition or execution of sentence suspended. That procedure benefits both the prisoner and the state. ‘Fairness to one

In 1985, the First District Court of Appeal followed Hayes and also held that, under the equal protection clauses of the California Constitution and the United States Constitution, an out-of-state prisoner could not be denied the benefits of Penal Code section 1203.2a. (People v. Timmons (1985) 173 Cal.App.3d 1000 , 1005 [ 219 Cal.Rptr. 611 ] (Timmons).)

b. Equal Protection Did Not Require Extending the Benefits of Penal Code Section 1203.2a to Misdemeanants Serving Short Sentences in County Jail

On the other hand, in People v. Blanchard (1996) 42 Cal.App.4th 1842 [ 50 Cal.Rptr.2d 614 ] (Blanchard), the appellate court rejected a contention that equal protection considerations require that Penal Code section 1203.2a apply to probationers who are later committed to a county jail on a misdemeanor sentence, instead of to prison on a felony charge, for a subsequent offense. (Blanchard, at p. 1847.) “The ‘rational basis’ test applies to [the defendant’s] equal protection challenge, as the benefit afforded subsequently convicted probationers under section 1203.2a does not constitute a fundamental right and the statute is not ‘inherently invidious.’ We believe there is a rational basis for the Legislature’s decision to limit the benefits of section 1203.2a to probationers committed to prison. [¶] Probationers sentenced to county jail for a subsequent offense are not subject to a long term of imprisonment before an additional sentence (or other sanction) for the first conviction can be fixed. Since a county jail term may not exceed one year ([Pen. Code,] § 19.2) and is more often much shorter, a probationer sentenced to a county jail term typically would have such a determination in a relatively short time. Thus, the concurrent sentencing concerns underlying section 1203.2a are not sufficiently implicated in cases where probation is violated by a misdemeanor conviction to warrant application of the statute to such cases. [¶] Moreover, if section 1203.2a were judicially extended to encompass probationers sentenced to county jail, the minimal benefit the statute would afford such probationers would be outweighed by the increased burden on our judicial and penal systems. Subjecting probation officers to the reporting requirements of section 1203.2a in cases where the defendant’s subsequent offense is a misdemeanor resulting in county jail incarceration, in addition to cases involving felony convictions, would impose increased costs and burdens on probation departments. [¶] Furthermore, the state’s compelling interest in punishing probation violations and the underlying offenses giving rise to probation should not be thwarted by loss of jurisdiction under section 1203.2a where a defendant’s subsequent offense is a misdemeanor resulting in a relatively short period of incarceration. In such misdemeanor cases the state’s interest in punishing and deterring crime outweighs the defendant’s minimal interest in discretionary concurrent sentencing under section 669 through application of section 1203.2a. [¶] We conclude equal protection considerations do not mandate extension of the benefits of section 1203.2a to probationers who are sentenced to county jail.” (Id. at pp. 1847-1848.)

The benefit extended — the possibility of serving the probation sentence concurrently with the sentence on the subsequent offense — does not implicate a fundamental right. Only a rational basis is needed to justify declining to extend the benefit of Penal Code section 1203.2a to misdemeanor defendants. Twin reasons support the distinction made in Blanchard. The first reason is the length of the sentence to be served on the subsequent offense. Before the Realignment Act, the only sentences to be served in a county jail were short-term misdemeanor sentences. Misdemeanor sentences were, and are, a maximum of one year, and in many cases far less than one year. The potential to serve a sentence on the probation offense — in many cases a felony multi-year sentence — concurrently with a short-term misdemeanor sentence may rationally be viewed as too small a benefit to trigger the speedy-sentencing procedures of Penal Code section 1203.2a. Applying Penal Code section 1203.2a to misdemeanor subsequent sentences could result in the loss of jurisdiction over the probation offense; where the probation offense is a felony, the loss of the court’s ability to hold the probationer accountable for violations of probation, including imposition or execution of a felony-length prison term, can rationally be regarded as too high a price to pay for the minimal benefit afforded by Penal Code section 1203.2a to a probationer who commits a subsequent misdemeanor offense. Second, allowing Penal Code section 1203.2a to apply to short-term misdemeanor sentences becomes a case of the tail wagging the dog; the benefit (concurrent sentencing) is minuscule, while the increased burdens on the judicial and penal systems would be substantial. The state also retains a compelling interest in punishing probation violations, which could be thwarted by allowing a misdemeanant to petition for the benefit under Penal Code section 1203.2a.

The short length of misdemeanor sentences, coupled with the heavy burdens on the justice system caused by large numbers of newly eligible defendants, provides the rational basis for refusing to extend the benefit of Penal Code section 1203.2a to county jail misdemeanants. Accordingly, excluding misdemeanants from the application of Penal Code section 1203.2a does not violate equal protection.

The People argue that Penal Code section 1203.2a is inapplicable to realignment defendants serving time in the county jail, because such defendants are not serving time “in prison,” and some of them may not even be in custody. We disagree.

As we have stated above, the purpose of Penal Code section 1203.2a is to allow a defendant the possibility of serving concurrent sentences on the

Realignment defendants are serving felony sentences, i.e., sentences of over one year, and many times of multiple years. Their sentences are prison sentences, even if they are being served in a cell in a county jail rather than in a cell in a state prison. People v. Hul (2013) 213 Cal.App.4th 182 [ 152 Cal.Rptr.3d 319 ] instructs that realignment inmates in a county jail are subject to general rules also applicable to state prison inmates. In the course of deciding what presentence custody conduct credits should be awarded to a defendant sentenced to county jail under the Realignment Act, but who committed his crime before the operative date of the Realignment Act, the Hul court remarked, “[a]s two preeminent sentencing authorities have explained, ‘Except as to where the sentence is served, commitments under section 1170[, subdivision ](h), are being treated the same as state prison commitments.’ Accordingly, ‘[i]t would seem reasonable for the defendant to receive “state prison” [presentence conduct] credit . . . .’ (Couzens & Bigelow, Felony Sentencing After Realignment, Jan. 2013, p. 44, at <www. courts.ca.gov/partners/documents/felony_sentencing.pdf> [as of Jan. 29, 2013].) We agree.” (People v. Hul, supra, 213 Cal.App.4th 182 , 187.)

We also agree. Other amendments to the Penal Code after the Realignment Act have frequently reflected the legislative intent to treat felony sentences served in local facilities the same as felony sentences served in state prison: “Since passing the Realignment Act of 2011, the Legislature has amended the Penal Code in a number of ways to clarify how the new legislation is to be interpreted in conjunction with preexisting laws. For example, it was uncertain whether a county jail term under section 1170, subdivision (h) qualified as a prior prison term for purposes of the one-year enhancement provision in section 667.5, subdivision (b). Section 667.5 was amended to clarify that a county jail term with mandatory supervision is to be considered a prior prison term. (Sen. Bill No. 1023 (2011-2012 Reg. Sess.); Stats. 2012, ch. 43, § 22.) Further, the one-year prior prison term enhancement is not applicable if a defendant is released from custody on the prior prison commitment five years before the new offense. (§ 667.5, subd. (b).) There was no guidance in the Realignment Act as to when this five-year ‘washout’ period for felons sentenced to county jail was to begin to run: from the end of the custody portion of a split sentence, from when the sentence was imposed, or from when the full sentence was served. Section 667.5 was modified to clarify that the five-year washout period begins after a defendant completes his entire sentence. (Sen. Bill No. 1023 (2011-2012 Reg. Sess.); Stats. 2012, ch. 43, § 22.) Similarly, the original version of the realignment legislation made it

In Prescott, the issue was whether a Realignment Act defendant, ordered to serve a felony sentence in the county jail, was entitled to the same presumption applied to felons sentenced to state prison: a presumption that the person sentenced to state prison did not have the ability to pay for defense attorney fee costs. (Pen. Code, § 987.8, subd. (g)(2)(B) [“Unless the court finds unusual circumstances, a defendant sentenced to state prison shall be determined not to have a reasonably discernible future financial ability to reimburse the costs of his or her defense.”].) The Prescott court held that the language of Penal Code section 987.8 was unambiguous, and provided expressly that the presumption of inability to pay applied only to those persons “sentenced to state prison.” Because the defendant in Prescott had been sentenced to five years in the county jail under the Realignment Act, he was not entitled to the presumption applicable to state prison inmates. He was, however, entitled to notice and a hearing on his ability to pay, before an order to reimburse attorney fees could be entered.

In making its ruling, the Prescott court stated, “It is not the role of the judicial branch to amend legislation, even when a judge might think it is warranted. We respect that separation of powers and leave it to the Legislature to address whether the section 987.8, subdivision (g)(2)(B) presumption should apply to felons now realigned to county jails.” (People v. Prescott, supra, 213 Cal.App.4th 1473 , 1478.) The People urge this court also to defer to the Legislature to address whether or not Penal Code section 1203.2a

Drafting and enacting statutes are powers reserved to the Legislature, but deference to the Legislature’s role does not deprive or relieve the judicial branch of its role: the power, and indeed the obligation, to construe the statutes enacted by the Legislature. (See Fort Bragg Unified School Dist. v. Colonial American Casualty & Surety Co. (2011) 194 Cal.App.4th 891 , 909-910 [ 124 Cal.Rptr.3d 144 ] [“ ‘Crafting statutes to conform with policy considerations is a job for the Legislature, not the courts; our role is to interpret statutes, not to write them.’ ”]; see also Bodinson Mfg. Co. v. California E. Com. (1941) 17 Cal.2d 321 , 326 [ 109 P.2d 935 ] [“The ultimate interpretation of a statute is an exercise of the judicial power.”]; Golden v. City of Oakland (1975) 49 Cal.App.3d 284 , 288 [ 122 Cal.Rptr. 400 ] [“it is the duty of the courts within the framework of the statutes, to interpret them so as to make them workable and reasonable . . .”].) As in Prescott, we are called upon to interpret the language of the statute; unlike Prescott, the statutory language here is ambiguous.

The result in Prescott is affected by matters not present in the instant case. Notably, the statute at issue, Penal Code section 987.8, subdivision (g)(2)(B), expressly referred to “defendants] sentenced to state prison,” not to persons “committed to a prison in this state.” (Pen. Code, § 1203.2a.)

In addition, there was a rational basis for the distinction between felons sentenced to serve their sentences in state prison, and realignment felons sentenced to serve their sentences in a county jail. The Realignment Act permits a trial court to order that the defendant serve the full term of imprisonment in custody, or the court may impose a “split sentence,” where a defendant may serve part of the prison term in custody, and part of the term out of custody under mandatory supervision, similar to release on probation. The possibility of release from custody under mandatory supervision could allow a realignment felony defendant to work and earn money with which to pay an order to reimburse attorney fees. The difference in earning potential provided a reasonable basis for not presuming that realignment defendants sentenced to county jail were unable to pay court-ordered attorney fees. (People v. Prescott, supra, 213 Cal.App.4th 1473 , 1478.) In other words, the two classes of felony defendants were not similarly situated with respect to earning capability.

The People urge that the possibility of a split sentence, spent partly in custody and partly out of custody, renders the sentence under the Realignment Act analogous to the shorter term misdemeanor jail sentences to which Penal Code section 1203.2a was held not to apply in Blanchard, supra, 42

The Prescott court itself recognized the principle enunciated in People v. Hul, supra, 213 Cal.App.4th 182 , that for most purposes of felony sentencing, the main difference under the Realignment Act is where the defendant will serve his or her term. The court expressly acknowledged that, “It is true that the 2011 Realignment Act did not change the existing rules about felony probation eligibility, the length of any felony sentence, or how the sentence is to be calculated under sections 1170 and 1170.1. Instead, the Realignment Act changed only the place where certain less violent felons serve their sentences. (People v. Hul[, supra,] 213 Cal.App.4th 182 [ 152 Cal.Rptr.3d 319 ].)” (People v. Prescott, supra, 213 Cal.App.4th 1473 , 1478, fn. 2.) As to the particular defendant in Prescott, the court agreed that he had been “sentenced on a felony, to a term calculated under the felony sentencing law, to the same sentence that he would have received before realignment took effect. The only difference is that [the defendant] is now serving that felony sentence in a different correctional facility — county jail.” (Ibid.)

Even though the place of incarceration is different, the length of the sentence is the same. It is true that the sentence might be divided between a portion of time in custody, and a portion out of custody under mandatory supervision. However, the defendant might also spend the entire term, even a multi-year term, in custody. A split sentence could also call for a custody portion of over one year, a factor that is not present in a misdemeanor jail sentence. That some defendants sentenced under the Realignment Act might have the custody portion of their sentences set at less than one year does not make the sentence equivalent to a short-term misdemeanor sentence. Realignment Act defendants are responsible for serving a felony-length sentence, regardless of the manner in which it is served, and the interest of felony defendants in disposing of, and having the opportunity to serve other pending sentences concurrently, is not affected by the direction to serve the Realignment Act felony in a county jail. Realignment Act defendants, sentenced to serve a felony-length term in a county jail instead of in the state prison, also do not represent a new population of persons eligible to apply for expedited sentencing under Penal Code section 1203.2a. Had they been sentenced to state prison, as would have been the case before the Realignment Act, they would be eligible to apply for the benefit offered under Penal Code section 1203.2a. Realignment Act defendants do not implicate the same concerns with extra burdens on the judicial and probation systems as the misdemeanants in Blanchard, who could only be sentenced to short-term sentences in the county jail.

First, the original probation offense might be a misdemeanor. The sentence for a misdemeanor results in a short-term commitment to the county jail. Even when a realignment defendant receives a “split” sentence, we discover no particular conflict in serving the misdemeanor jail term concurrently with the new felony.

Second, the original probation offense might be a felony that is not eligible for realignment sentencing. If the probation offense requires a state prison sentence, then the realignment defendant will be housed in state prison on both felony sentences. Both sentences could be served concurrently.

Third, the probation offense could be a felony that is eligible for realignment sentencing. In that situation, the sentence on the probation offense will, like the new felony sentence, be served in the county jail (or possibly partly in the county jail and partly under mandatory supervision). Again, nothing in the circumstances precludes a realignment defendant from serving both sentences concurrently.

To preclude a realignment defendant from seeking relief under Penal Code section 1203.2a would cause the very harm Penal Code section 1203.2a was designed to prevent: the defendant would be required to wait until a felony-length sentence has been fully served before beginning service on the original probation offense. The two sentences could consist of multiple years each, and the defendant would have been forced to serve inadvertent consecutive sentences. A realignment defendant is committed to “a prison in this state,” even if it is “county prison.” (See People v. Martinez (2014) 226 Cal.App.4th 759 [ 172 Cal.Rptr.3d 320 ] [referring to a felony sentence to “county prison”].) The features of a prison sentence under the Realignment Act may differ somewhat from a straight sentence to state prison, but it is a felony prison sentence — or its functional equivalent — nonetheless.

Even if Penal Code section 1203.2a is deemed to refer only to “state prison” sentences, considerations of equal protection apply, just as they did to defendants serving prison sentences in other jurisdictions. The policies and benefits of Penal Code section 1203.2a are the same, whether a defendant serves a felony prison sentence in a state prison, or in a county jail “in this state.”

Notably, the California Supreme Court did not inquire into the specific details of prison sentences in other jurisdictions. A “state prison” sentence in another state might require a period of parole, or it might not. It might require service of all, or only a portion, of the term imposed. It might or might not include rehabilitative and reintegration programs, or differing levels of security in incarceration. The California Supreme Court applied Penal Code section 1203.2a, as a matter of equal protection, to “state prison” sentences in other states, without detailing the precise incidents of such a “state prison” sentence.

The reasoning in Hayes and Timmons leads to the same conclusion here. There is no legitimate public purpose to be served by precluding a realignment defendant, committed to a felony prison sentence (to be served in a county jail and/or time on mandatory supervision), from obtaining the opportunity for concurrent sentencing on the original offense for which he or she was released on probation. The original probation offense will be served (1) in county jail as a misdemeanor, together with the realignment felony county jail sentence, or (2) in a state prison (both the probation offense and

We conclude that the benefits of Penal Code section 1203.2a properly extended to defendant, as a person confined in “a prison in this state,” even though her prison sentence was ordered under the Realignment Act to be served in a county jail and/or on mandatory supervised release.

III. Defendant’s Request for Sentencing in Absentia Substantially Complied with the Appropriate Formalities

Having concluded that defendant was not precluded from applying for relief under Penal Code section 1203.2a, we turn next to the question whether the paper she submitted was sufficient to comply with the statutory requirements. The People argue that strict compliance with the statutory criteria is required, and that the failure to obtain an attestation from a prison warden was fatal to defendant’s request for sentencing in absentia.

Here, defendant appears to have had assistance from a jail employee in filling out a computerized form under Penal Code section 1203.2a. The form is entitled “Request for Disposition of Probation, Waiver of Appearance and Right to Attorney (P.C. 1203.2a).” The page is designated as CDCR form “616,” revised as of “09/08” (Sept. 2008). The form recites that “Section 1203.2a requires that the probation officer notify the Court within 30 days after being notified of the defendant’s commitment. Failure to do so will deprive the court of jurisdiction to act in any case in which the defendant is on probation.” Defendant’s form had printed check marks in boxes addressing the request both to the Riverside Superior Court and the Riverside County Probation Department. The form had typed entries for defendant’s probation conviction, and defendant’s true name and date of birth. Check marks had been printed in both boxes of paragraph 3, requesting the court to “a. Make disposition of my probation as requested by law in the event I was previously granted probation and imposition of my sentence was suspended, OR [¶] b. Execute sentence at this time in the event a sentence was previously imposed and execution thereof suspended.” Paragraph 4 recited defendant’s awareness of her right to be represented by counsel at the revocation and sentencing

On the succeeding page, printed check marks acknowledged in paragraph 6 that defendant wished to waive her right to be represented by an attorney, and she wished to waive her right to be personally present. Defendant handwrote her initials next to the “yes” boxes, indicating that she wished to waive her rights. Paragraph 7 was supposed to certify the address where defendant was institutionalized; defendant mistakenly handwrote the address of the criminal court building in Riverside. Defendant also placed her signature in the space required in paragraph 7, and dated the request. Under the signature line, the form advised in a parenthetical statement: “Pursuant to California Penal Code 1203.2a, the defendant’s request must be signed in the presence of the Warden of the prison in which the defendant is confined, or the duly authorized representative of the Warden.”

An attestation clause was printed on the form, averring: “I (Warden’s printed first, middle and last name)_certify that I am the (Warden)(duly authorized representative of the Warden)(delete those that do not apply) and ATTEST that (defendant’s printed name) KIMBERLY MENDOZA made and signed this request in my presence and that he/she states that he/she wishes the Court to execute sentence, or make disposition of his/her probation as required by law in his/her absence and without his/her being represented by an attorney at law in the case in which he/she was released on probation.” No prison or jail official signed the attestation clause. Rather, defendant signed and dated it herself. Defendant also failed to complete additional information “to assist in the processing of the defendant’s request,” namely, the defendant’s expected release date, and the date of commission of the crime “for which the defendant is currently undergoing sentence.”

The People note that defendant made several errors in completing her request form: (1) she mistakenly marked both boxes in paragraph 3, rather than specifying whether she had been released with imposition of sentence suspended, or execution of an imposed sentence suspended; (2) defendant mistakenly wrote the address of the Riverside Superior Court instead of the institution where she was incarcerated; (3) defendant failed to obtain an attestation by a representative of a prison warden; and (4) she failed to provide the additional information of her release date and the date of the crimes for which she was confined. The People assert that, “[o]f the four defects in [defendant’s] request for sentencing, the lack of attestation was fatal to it.” We disagree.

Because defendant made a demand for sentencing in absentia, and the trial court failed to act on that request, defendant’s motion to discharge her from probation should have been granted. It was only because the trial court refused to recognize the validity of defendant’s sentencing demand — based on its view that the lack of attestation was a fatal failure to comply with the statute — that defendant withdrew her motion to dismiss, and entered into the plea bargain reinstating her probation. Under the provisions of Penal Code section 1203.2a, however, the trial court’s failure to act on defendant’s petition for over 60 days after it was filed in January 2013 deprived the court of jurisdiction to impose any sentence or reinstate probation on the Riverside County probation offense. The trial court should have granted defendant’s motion to terminate her probation. (See Pompi v. Superior Court, supra, 139 Cal.App.3d 503 , 508.)

The trial court’s order reinstating defendant on probation must be reversed with directions to terminate defendant’s probation, and to discharge her from probation.

DISPOSITION

Defendant filed a demand for sentencing in absentia that substantially complied with the requirements of Penal Code section 1203.2a. Equal protection considerations mandate that Penal Code section 1203.2a applies to offenders sentenced to a “prison in this state,” albeit a “county prison” under the Realignment Act. The lack of attestation is not a condition precedent to the validity of a request under Penal Code section 1203.2a; the making of an attestation is not a matter within the defendant’s control, and is intended to ensure the defendant’s actual waiver of constitutional rights in requesting sentencing in absentia.

The trial court’s failure to act on defendant’s request within 30 or 60 days deprived the court of jurisdiction to sentence defendant with respect to the probation offense. Accordingly, the order reinstating probation (and requiring defendant to withdraw her motion for dismissal as a condition of her plea

Ramirez, P. J., and Hollenhorst, J., concurred.

A petition for a rehearing was denied November 20, 2015.