Trial court is not required to issue an order directing Department of Corrections and Rehabilitation to make a defendant available to a foreign jurisdiction to serve a concurrent sentence. Antonio pleaded guilty to residential robbery (Pen. Code, §§ 211, 212.5) and admitted using a gun during the crime (Pen. Code, § 12022.5, subd. (a)), in exchange for a stipulated eight-year sentence. The agreed term was imposed but later recalled after the trial court learned that Antonio had previously been sentenced to serve a term in federal prison. The trial court did not alter the sentence. Antonio appealed the trial court’s failure to determine whether the state sentence would be served concurrently to the federal term. The Court of Appeal remanded the case, directing the trial court to make a concurrency determination. On remand the trial court ordered the state sentence to run concurrently to the federal term, but denied Antonio’s request to order the Department to transfer him to the Federal Bureau of Prisons (BOP). Antonio appealed. Held: Affirmed. A defendant ordered to serve a sentence concurrent to a foreign term is entitled to be transferred to the foreign jurisdiction if that foreign jurisdiction will not credit him for time served in California. (Pen. Code, § 2900, subd. (b)(2); In re Stoliker (1957) 49 Cal.2d 75.) It is presumed the Department will carry out its statutory duty to make Antonio available to the BOP. (See Evid. Code, § 664). Antonio provided no evidence the Department failed to discharge its duty to make him available to the BOP. He did not state that he has attempted any administrative procedure. Antonio must exhaust his administrative remedies before resorting to the courts.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/D070590.PDF