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Name: Gonzalez v. Superior Court Orange County
Case #: G039755
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 09/10/2008
Subsequent History: rev. granted 10/28/08, S167197

An incarcerated probationer with proceedings suspended without imposition of a sentence is entitled to speedy resolution of a probation violation under Penal Code section 1381. Petitioner, serving a prison sentence on an unrelated matter, was subject to a detainer based upon a violation of a probation order. He filed a demand in the superior court under Penal Code section 1381 for a hearing on the probation violation or dismissal of the action after 90 days, but the court denied the request. Weighing in on the issue of whether a probationer may avail himself of Penal Code section 1381 for resolution of an alleged probation violation, which is pending in the California Supreme court in People v. Wagner (review granted 11/28/07, S156537), the appellate court in this case agreed with the reasoning of Rudman v. Superior Court (1973) 36 Cal.App.3d 22, and rejected that of People v. Broughton (2003) 11107 Cal.App.4th 307. The court observed that section 1381 does not conflict with section 1203.2a, and a probationer has the option of pursuing relief under either statute. Resolution under section 1381 where a probationer is not afford the hearing within the 90 days does not result in dismissal of the underlying offense, but only dismissal of the probation violation proceedings. The petition for writ of mandate to compel the superior court to quash the warrant issued for the alleged violation of probation and to vacate the order for revocation of probation was granted.