In re Walters

absentia under Penal Code section 1203.2a.^[1] We hold that under section 1203.2a the superior court must impose sentence within 30 days of receipt of a prisoner’s request to be sentenced in absentia, failing which, the superior court loses jurisdiction. As a consequence of our holding, petitioner is entitled to a writ.

On January 27, 1994, the superior court suspended imposition of judgment and sentence on petitioner’s plea of no contest to possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) and granted petitioner probation. On March 31, 1994, petitioner was committed to state prison following the revocation of his parole on an unrelated Yolo County felony conviction.

On July 28, 1994, petitioner and a representative of the warden of the prison in which he was incarcerated prepared and signed a request under section 1203.2a for sentencing in absentia after revocation of probation due to prison commitment. The request was mailed to the superior court. The request was on a form provided for that purpose by the California Department of Corrections. The form identifies the number of the case in which petitioner is on probation and the date of conviction, and requests imposition of sentence. Petitioner initialed the form to indicate he waived his right to be present for sentencing and to be represented by an attorney, but expressly did not waive his right to be sentenced within the statutory time period.

The request for sentencing in absentia was filed in the Sacramento Superior Court on August 19, 1994. On September 15, 1994, the superior court sentenced petitioner in absentia to two years in the state prison, to be served concurrently with the parole violation term he was already serving.^[2]

After petitioner unsuccessfully sought a writ in the superior court challenging the jurisdiction of that court to pronounce sentence, he filed the instant habeas corpus petition in this court. We issued an order to show cause on May 26, 1994, and appointed counsel for petitioner.

Upon receipt of respondent’s return and petitioner’s traverse, it became apparent that an issue of fact exists regarding the date the superior court

received petitioner’s request for sentencing in absentia. Petitioner declared that even though the superior court filed his request for sentencing in absentia on August 19,1994, the court actually received the request six days earlier, on August 13, 1994, a Saturday.^[3] However, respondent declared the request was filed and received on August 19, 1994. Because the date of receipt of the request is decisive on the question of jurisdiction, on July 6, 1995, we appointed the Honorable Ronald B. Robie, Judge of the Sacramento Superior Court, as referee to resolve the factual dispute. (In re O’Malley (1950) 101 Cal.App.2d 80 [ 224 P.2d 488 ]; see People v. Bailey (1969) 1 Cal.3d 180 [ 81 Cal.Rptr. 774 , 460 P.2d 974 ].)

After conducting an evidentiary hearing, the referee submitted his findings to this court on October 4, 1995. As relevant, the referee found that petitioner’s request for sentencing in absentia was received on (Saturday) August 13,1994, by a reserve Sacramento County Sheriff’s deputy acting as an agent authorized by the Sacramento Superior Court to receive mail for certain departments of the superior court, including department 32; that “[i]n the normal course of business, petitioner’s [request for sentencing in absentia] should have been received in department 32 on Monday, August 15, 1994”; and that the request for sentencing in absentia therefore was received on August 15, 1994.^[4]

The referee’s “determinations resolve[] mixed questions of fact and law, and are subject to independent review by this court. [Citation.]” (In re Fields (1990) 51 Cal.3d 1063 , 1068 [ 275 Cal.Rptr. 384 , 800 P.2d 862 ].) We have made an “independent examination of the evidence taken before the referee” (In re Hochberg (1970) 2 Cal.3d 870 , 874, fn. 2 [ 87 Cal.Rptr. 681 , 471 P.2d 1 ]), and hereby adopt the referee’s findings that the request for sentencing in absentia was in fact received by an authorized agent of the Sacramento Superior Court on Saturday, August 13, 1994, and that in the normal course of business the request should have been received in department 32 on the next business day, Monday, August 15, 1994.

Moreover, we conclude, as did the referee, that as a matter of law the Sacramento Superior Court received the request for sentencing in absentia on Monday, August 15, 1994. With exceptions not relevant here, “the courts shall be closed for the transaction of judicial business on judicial holidays . . . .” (Code Civ. Proc., § 134, subd. (a).) Saturdays and Sundays are judicial holidays. (Code Civ. Proc., § 135; Gov. Code, § 6700, subd. (a).) Because the Sacramento Superior Court’s authorized agent in fact received the request for sentencing in absentia on a judicial holiday, when the court was not authorized to transact judicial business, the request will be deemed to have been received by the Sacramento Superior Court on the next business day, Monday, August 15, 1994.

Petitioner contends the 30-day period in section 1203.2a in which a trial court must impose sentence in absentia on an unsentenced probationer begins to run on the court’s receipt of a request for sentencing in absentia, and thus the Sacramento Superior Court had lost jurisdiction when it sentenced petitioner on September 15, 1994, 31 days after receiving his request. We agree.

“Penal Code section 1203.2a permits a defendant who has been released on probation and subsequently committed to a state prison for another offense, to request the trial court that granted probation to revoke probation and impose sentence.” (In re White (1969) 1 Cal.3d 207 , 210 [ 81 Cal.Rptr. 780 , 460 P.2d 980 ].) “Recognizing that probation may be granted either by (1) imposing judgment and sentence and suspending execution thereof or (2) suspending imposition of judgment and sentence, section 1203.2a provides for separate and distinct methods of disposition of an earlier order of probation where the probationer is later sentenced to state prison for a subsequent offense. [Citations.] Only in the second circumstance, where imposition of judgment was suspended, does section 1203.2a provide for a written waiver by an absentee probationer. In the [first] circumstance, the statute provides for an ex parte and summary revocation of probation without waiver . . . .” (People v. Martinez (1975) 46 Cal.App.3d 736 , 741 [ 120 Cal.Rptr. 362 , 121 Cal.Rptr. 443 ].) In either event, if the trial court fails timely to revoke probation under section 1203.2a, the court loses jurisdiction to do so. (§ 1203.2a.)^[5]

“The purpose of section 1203.2a is to prevent inadvertent consecutive sentences which would deprive defendant of the benefit of section 669,

providing that sentence shall be concurrent unless the court expressly orders otherwise. [Citations.]” (People v. Ruster (1974) 40 Cal.App.3d 865 , 870 [ 115 Cal.Rptr. 572 ].)

Section 1203.2a provides a convoluted, dimly penetrable description of the procedure to be followed when an unsentenced probationer, incarcerated on other charges, requests to have his probation revoked and sentence imposed in absentia.^[6] Our reading of the statute indicates, and appellate decisions recognize, that such a probationer may either deliver his

request for sentencing in absentia directly to the trial court (see, e.g., In re White, supra, 1 Cal.3d at p. 210; In re Perez (1966) 65 Cal.2d 224 , 227, fn. 1 [ 53 Cal.Rptr. 414 , 418 P.2d 6 ]; People v. Mahan (1980) 111 Cal.App.3d 28 , 31-33 [ 168 Cal.Rptr. 428 ]; People v. Rogers (1967) 252 Cal.App.2d 1015 , 1018 [ 61 Cal.Rptr. 48 ]), or to the probation officer, who must then inform the trial court of the probationer’s prison commitment (see, e.g., In re Wimbs (1966) 65 Cal.2d 490 , 497-498, fn. 5 [ 55 Cal.Rptr. 222 , 421 P.2d 70 ]; People v. Willett (1993) 15 Cal.App.4th 1 , 6 [ 18 Cal.Rptr.2d 603 ]; People v. Ruster, supra, 40 Cal.App.3d at pp. 868-869; People v. Ford (1966) 239 Cal.App.2d 944 , 946 [ 49 Cal.Rptr. 283 ]).* *^[7]

As to a probationer who has previously been sentenced but execution of whose sentence has been suspended, section 1203.2a is unambiguous in indicating when the trial court’s statutory time within which to issue its commitment commences. “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.” The trial court’s obligation to issue its commitment commences “[u]pon 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 .... 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.” (§ 1203.2a, italics added.) The Legislature’s use of the terms “upon being informed,” “upon receipt,” and “after being notified” leaves no doubt that, as to a sentenced probationer, the Legislature intended the trial court issue its commitment within 60 days of receipt of information of the probationer’s subsequent prison commitment.

The legislative intent in section 1203.2a is not so clear in the case of an unsentenced probationer i.e. whether the trial court must impose sentence

relevant information. Since 1943, section 1203.2a has provided that the trial court becomes obligated to impose sentence upon being informed by the probation officer of the defendant’s confinement or upon receipt of a certificate showing confinement. (Stats. 1943, ch. 321, § 1, pp. 1316-1317.) Since its amendment in 1963, section 1203.2a has included language regarding the probationer’s “request” for sentencing in absentia. (Stats. 1963, ch. 2079, § 1, p. 4345.) Meanwhile, since 1963, the courts have repeatedly indicated, albeit without analysis, that the statutory time limits of section 1203.2a commence upon receipt of proper notification of the probationer’s commitment, or receipt of a probationer’s request for sentencing in absentia. (See, e.g., People v. Mahan, supra, 111 Cal.App.3d at pp. 32-33; In re Brown (1971) 19 Cal.App.3d 659 , 665 [ 97 Cal.Rptr. 71 ]; People v. Vasquez (1971) 16 Cal.App.3d 897 , 900 [ 94 Cal.Rptr. 389 ]; People v. Ford, supra, 239 Cal.App.2d at p. 946; People v. Fisherman (1965) 237 Cal.App.2d 356 , 358 [ 47 Cal.Rptr. 33 ].)^[8] Nevertheless, despite repeated amendments of section 1203.2a since 1963, the Legislature has never amended those portions of the statute described above. (Stats. 1976, ch. 376, § 1, p. 1024; Stats. 1980, ch. 1117, § 10, pp. 3599-3600; Stats. 1987, ch. 828, § 76, p. 2610; Stats. 1989, ch. 897, § 39, p. 3071; Stats. 1989, ch. 1420, § 2, p. 6288.) “ ‘Parts of an amended statute not affected by the amendment will be given the same construction that they received before the amendment.’ (Brailsford v. Blue (1962) 57 Cal.2d 335 , 339 [ 19 Cal.Rptr. 485 , 369 P.2d 13 ].) In such circumstances, the Legislature is presumed to have adopted the prior judicial interpretation of language unchanged by the amendment. [Citations.]” (Ladd v. Board of Trustees (1972) 23 Cal.App.3d 984 , 990 [ 100 Cal.Rptr. 571 ].)

We need not be concerned that our construction of section 1203.2a will impose unreasonable requirements on the trial court. Ordinarily, a presumption arises that a clerk of court has regularly performed his duty by filing a document on the date it was in fact presented to him for filing. (See, e.g., Estate of Crabtree (1992) 4 Cal.App.4th 1119 , 1125 [ 6 Cal.Rptr.2d 224 ].) Because the law both requires the clerk to file and presumes he will file the request for sentencing in absentia on the day it is received, there is only a slight risk of the delayed filing that occurred in this case.

Petitioner has made a prima facie showing rebutting the presumption of filing on presentation by submitting with his habeas corpus petition a certified mail receipt which indicates his request for sentencing in absentia

was actually received by the trial court six days before it was filed. Petitioner subsequently rebutted the presumption by presenting evidence before the referee establishing the date on which an authorized agent of the superior court received the request. As we have explained, we have deemed the request for sentencing in absentia to have been received by the superior court on August 15, 1994, 31 days before the court imposed sentence. The superior court thus had no jurisdiction to impose sentence on petitioner or to revoke his probation when it purported to do so on September 15, 1994.

By providing for the severe sanction of loss of jurisdiction in the rare case in which a trial court fails to impose sentence within 30 days of receipt of a request for sentencing in absentia, the Legislature placed on the trial court the onus of ensuring that probationers do not inadvertently receive consecutive sentences. Whatever our view of its wisdom, the imposition of such a sanction is within the Legislature’s power.

Ill

The Attorney General argues petitioner waived the statutory right to have sentence imposed within 30 days because the attorney who appeared at the sentencing hearing on September 15, 1994, failed to object to imposition of sentence. (See fn. 2, ante, p. 1550) This contention is unpersuasive.

The Attorney General relies on cases which hold that the failure to object to trial court action taken in violation of statutory provisions forfeits the right to challenge such action on appeal. (People v. Saunders (1993) 5 Cal.4th 580 , 589-590 [ 20 Cal.Rptr.2d 638 , 853 P.2d 1093 ] [failure to object to trial court’s erroneous discharge of jury prior to jury’s determination of truth of prior conviction allegations]; People v. Welch (1993) 5 Cal.4th 228 , 237 [ 19 Cal.Rptr.2d 520 , 851 P.2d 802 ] [failure to object to probation conditions]; People v. Walker (1991) 54 Cal.3d 1013 , 1029 [ 1 Cal.Rptr.2d 902 , 819 P.2d 861 ] [failure to object to fine]; In re John H. (1992) 3 Cal.App.4th 1109 , 1112 [ 6 Cal.Rptr.2d 25 ] [same].)^[9] Saunders and Welch both explain the purpose of finding a forfeiture from the failure to object is to encourage the parties to give the trial court the opportunity to correct the error. (People v. Saunders, supra, 5 Cal.4th at p. 590; People v. Welch, supra, 5 Cal.4th at p. 235.) Saunders also recognizes that the forfeiture doctrine applies only when the party had an opportunity to present his objection before the trial court. (People v. Saunders, supra, 5 Cal.4th at pp.