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Name: People v. Wagner
Case #: C052049
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 08/14/2007
Subsequent History: 11/28/07 review granted: S156537

Both Penal Code sections 1381 and 1203.2a provide a means by which a defendant granted probation with imposition of sentence suspended can obtain speedy sentencing; these two sections provide a defendant with alternative methods for obtaining sentencing (disagreeing with People v. Broughton (2003) 107 Cal.App.4th 307 and agreeing with Rudman v. Superior Court (1973) 36 Cal.App.3d 22 and its progeny).

Under section 1381, if a sentence is not imposed within 90 days of receipt of the demand, the probationer is entitled to dismissal of the probation revocation. However, under Penal Code section 1387, the prosecution can refile the probation revocation proceeding within the defendant’s probationary period. Under section 1203.2a, the probationer must comply with the exact requirements of the statute in order to obtain dismissal of the action. Appellant, incarcerated in prison on a separate matter, received notification that he was subject to a detainer for his Yolo County superior court probation case and filed a “1381” demand for sentencing. When appellant was brought back to Yolo County, the prosecutor mistakenly represented the receipt date of the demand so that sentencing was scheduled one day past the 90-day period specified in section 1381. As a result, the court lost jurisdiction over the probation revocation. A probation revocation proceeding is, in the words of section 1381, a “pending . . . criminal proceeding wherein the defendant remains to be sentenced.” The matter was remanded with directions to void the probation revocation sentencing proceeding and if the prosecution chose to do so, the matter could be refiled under section 1387 (for probation revocation proceedings) before the defendant’s probationary period ends. Appellant was not entitled to relief under section 1203.2a because he did not request sentencing in absentia.