¶1Opinion
¶2By order of this court filed October 24, 1974, defendant’s appeals in 3 Crim. 7746 (the first offense) and 3 Crim. 7680 (the second offense) were consolidated for hearing and decision.
¶3The first offense involved the sale of 1,000 amphetamine capsules in violation of section 11912 of the Health and Safety Code (now § 11379). Following conviction, defendant was sentenced to state prison for the term prescribed by law, but execution of the sentence was suspended and on February 23, 1973, defendant was placed on probation for three years.
¶4The second offense occurred on January 15, 1974, while defendant was on probation; he was booked into the Roseville jail (for being drunk in public—Pen. Code, § 647, subd. (f)) where a lawful search of his person uncovered 50 red capsules, later analyzed as barbiturates. He was then charged with violation of section 11377 of the Health and Safety Code, and after plea negotiation, pleaded guilty and admitted suffering the 1973 conviction. Judgment was entered on May 16, 1974; sentencing defendant to state prison for from 2 to 20 years.
¶5Thereafter, on June 26, 1974, defendant having signed a waiver of his right to appear, his probation on the first conviction was revoked, and the sentence earlier imposed (five years to life) was ordered executed, to run concurrently with his sentence on the second conviction.
¶6In his appeal relating to the first offense, defendant makes the following contentions:
I. He did not make a competent waiver of his right to appear and' be represented by counsel at the probation revocation proceedings, pursuant to section 1203.2a of the Penal Code.
*740II. Certain penal provisions of former section 11912 of the Health and Safety Code constitute cruel and unusual punishment.
¶7Defendant makes the following contentions in his appeal regarding the second offense;
• A. This court should hear his appeal notwithstanding the fact that no certificate of probable cause to appeal was issued.
B. Certain penal provisions of section 11377 of the Health and Safety Code constitute cruel and'unusual punishment.
C. He was not properly advised of the full penal effect of admitting the prior felony conviction.
D. He was not advised that his probation could be revoked as a consequence of his guilty plea.
¶8I
¶9After he was committed to state prison for the second offense, defendant was sent a form by the district attorney titled “Request for Disposition of Probation, Waiver of Appearance and Right to Attorney (P.Code, § 1203.2a),” which he signed and returned. The form stated that regarding the first offense, the defendant was requesting the superior court, in accordance with section 1203.2a of the Penal Code, to “make disposition of my probation as required by law.” It further provided, “I waive any and all rights that I may have to be present. . . and ... to' be represented by an attorney. ...”
¶10Pursuant to this signed request and waiver, the hearing of June 26, 1974, was held, at which time probation was revoked. Defendant was absent, but was represented by the public defender. He .contends that because of inappropriate wording of the signed form, he did not competently waive his right to appear and be represented by counsel under section 1203.2a of the Penal Code.
¶11 It is not necessary to rule upon this contention,
¶12On May 17, 1974, one day after defendant was sentenced in the second offense, the probation officer filed a report and petition to revoke probation, advising of the second conviction and sentence. On May 22, 1974, the court continued the matter to June 5, 1974, and directed the district attorney to write to the defendant fór a waiver. It is obvious that at this point the court had misconstrued section 1203.2a and did not realize that since it had already imposed sentence, a waiver under that section was inappropriate. On June 5, 1974, the minute order shows that the district attorney informed the court that defendant had agreed to execute a waiver; and the case was continued to June 19, 1974. The purported waiver was dated June 13, 1974, but was not filed until June 18, 1974. On June 19, 1974, the case was continued at the district attorney’s request to June 26, 1974. On June 26, 1974, probation was at last revoked.
¶13Both the court and the district attorney overlooked the 30-day limitation of section 1203.2a. No commitment or order was made within 30 days of May 17, 1974, and the court lost jurisdiction to revoke probation on the basis of the second offense. The order of revocation was therefore void.
¶14The 30-day limitation of section 1203.2a of the Penal Code may, of course, be waived (People v. Davidson (1972) 25 Cal.App.3d 79, 85 [101 Cal.Rptr. 494]), just as a probation revocation hearing may be waived (People v. Vickers, supra at p. 457). The question arises whether the defendant made such waivers by executing the waiver form of June 13, 1974 (a matter quite independent of the waiver specifically described and provided for in section 1203.2a, which as above noted is contemplated only where no sentence was imposed and is thus inapplicable here). We do not so construe the document.
¶15II
¶16Defendant claims that the punishment of from five years to life prescribed by former section 11912 (now § 11379) of the Health and Safety Code, and the provision thereof precluding parole consideration for three years constitute cruel and unusual punishment. In view of our holding as to the first contention, we need not consider this subject.
¶17A
¶18The Attorney General concedes, and we agree, that defendant’s appeal from his guilty plea should be heard notwithstanding his failure to seek or obtain a certificate of probable cause to appeal, as required by section 1237.5 of the Penal Code.
¶19On June 6, 1974, defendant wrote a letter to the county clerk which was filed June 11, 1974, stating: “I’m . . . trying to appeal my case before the California Appellate Court. But I need all my transcripts .... I need these paper [¿7"c] as to conduct my appeal on my own from here.”
¶20On June 13, 1974, the trial judge signed and filed a “minute order” stating: “The Court hereby treats the attached letter as a ‘Notice of Appeal’ and the Clerk and Court Reporter are directed to prepare the necessary transcripts.”
¶21This order is sufficient compliance with section 1237.5 of the Penal Code. By ordering the transcripts to be prepared, the trial judge in effect certified the defendant’s case for appeal. (People v. Herrera (1967) 66 Cal.2d 664, 665 [58 Cal.Rptr. 319, 426 P.2d 887].)
¶22B
¶23Defendant claims that section 11377 of the Health and Safety Code is unconstitutional with reference to its two-year minimum without parole consideration, on a second conviction. The contention is totally lacking in merit and is rejected. (See People v. Serna (1975) 44 Cal.App.3d 717 [118 Cal.Rptr. 904].)
¶25Defendant contends that he was advised of the penal effect of admitting the prior conviction in such a confusing manner that his plea, should be set aside. The contention is.based upon the following colloquy involving the court, the defendant, and Deputy District Attorney Iverson:
“Mr. Iversen: Do you admit or deny the prior conviction?
“Defendant Martinez: I.admit it.
“Mr. Iversen: One thing before the Judge enters that admission, .this increases your punishment for the main charge from two years in the State Prison to 20 years in State Prison, and you are not eligible for probation.
“Do you understand that?
“Defendant Martinez: (No response).
“The Court: Did I hear you, Mr. Martinez?
“Defendant Martinez: No. I was trying to think of what he said.
“The Court: All right.
“Defendant Martinez: Could you repeat that again?
“Mr. Iversen: It increases your punishment from two years to 20 years in the State Prison.
“Defendant Martinez: I don’t understand that.
“Mr. Iversen: By admitting the prior, the punishment thát you can receive for a violation of section 11377 is increased to a minimum of two years in the State Prison to 20 years in the State Prison.
“Do you understand that?
“The Court: Is that the maximum or the minimum?
“Mr. Iversen: Which is the maximum. 20 years is the maximum.
*745“Defendant Martinez: The minimum is two years?
“Mr. Iversen: Yes, it is.
“Defendant Martinez: O. K. I understand that then.
“The Court: Very well.
“Mr. Iversen: Having that in mind, do you reaffirm your admission of the prior?
“Defendant Martinez: Yes.”
¶26After some initial confusion, it is unmistakable that defendant understood that the prior conviction increased his minimum sentence from 1 to 2 years, and his maximum sentence from 10 to 20 years, and thus the requirements of In re Yurko (1974) 10 Cal.3d 857, 863-864 [112 Cal.Rptr. 513, 519 P.2d 561], were fulfilled.
¶27D
¶28Defendant argues that his plea of guilty to the second offense should be set aside because he was not advised that it could result in revocation of his probation on the first offense. Despite our holding regarding such revocation, we properly consider this contention.
¶29Defendant’s plea of guilty to the second offense and admission of the prior conviction were made pursuant to a plea bargain in which two other pending criminal cases were dismissed. As we have seen, defendant was advised that as a consequence of his plea, he faced a possible sentence of from 2 to 20 years in state prison on the second offense. There was no reference to the first offense and nothing to suggest that there would be no sanction imposed for violation of probation.
¶30As held in People v. Searcie (1974) 37 Cal.App.3d 204, 211 [112 Cal.Rptr. 267], a subsequent revocation of probation is a “collateral” rather than a “direct” consequence of the guilty plea, and thus defendant need not be advised of such consequences. As in Searcie, it is perfectly clear that defendant was not misled as to the plea bargain; “[A]t the time he entered his plea in each case, defendant personally was well aware of the pendency of the probation violation matter herein and an almost certain imposition of a state prison sentence.” (Searcie, supra at p. 211.) *746In the case at bench, appropriate and clear warnings had been given defendant in unequivocal terms at the time of sentence on the first offense; it would be utter nonsense to hold that such warnings counted for nothing and should have been repeated at the time of plea to the second offense.
¶31In 3 Crim. 7746 (Placer County Superior Court No. 38815) the order revoking probation is reversed, with directions to the superior court to enter an order vacating the judgment and to furnish the Department of Corrections with a certified copy of that order.
¶32In 3 Crim. 7680 (Placer County Superior Court No. 41393) the judgment is affirmed.
¶33Janes, Acting P. J., and Evans, J., concurred.
¶34A petition for a rehearing was denied on April 30, 1975, and the following opinion was then rendered:
¶35Nevertheless we note that the waiver form is not in compliance with the statute. Section 1203.2a of the Penal Code requires that the defendant request the court to impose sentence, also that the warden or superintendent or representative of the warden or superintendent “attests both that the defendant has made and signed such request and *741that he states that he wishes the court to impose sentence in the case in which he was released on probation, in his absence and without being represented by counsel.” Neither of these requirements was met. The defendant requested the court to “make disposition of my probation as required by law,” which is not the same as requesting the court to “impose sentence.” Also the waiver form was signed on a signature line below which is the word “witness,” by a person whose title is indicated as “Correctional Counselor I;” this is not the same as being attested by the warden or superintendent or the duly authorized representative of either. (See People v. Ruster (1974) 40 Cal.App.3d 865, 871 [115 Cal.Rptr. 572].) The language of section 1203.2a should have been much more carefully followed in the preparation of the waiver form.
¶36The summary revocation procedures of section 1203.2a have, of course, been now modified by Morrissey v. Brewer (1972) 408 U.S. 471 [33 L.Ed.2d 484, 92 S.Ct. 2593]; People v. Vickers (1972) 8 Cal.3d 451 [105 Cal.Rptr. 305, 503 P.2d 1313]; In re La Croix (1974) 12 Cal.3d 146 [115 Cal.Rptr. 344, 524 P.2d 816]; and In re Winn (1975) 13 Cal.3d 694 [119 Cal.Rptr. 496, 532 P.2d 144], In view of Vickers, at least one now anachronistic portion of the section requires attention by the Legislature. The 30-day requirement to either act or lose jurisdiction was reasonable when the statute was originally enacted and when it was later amended (see Historical Note to Pen. Code, § 1203.2a, West's Ann. Cal. Codes), because there was then no requirement of a revocation hearing. (In re Davis (1951) 37 Cal.2d 872, 873-874 [236 P.2d 579]; People v. Vickers, supra at p. 455.) Thus 30 days (after official and formal notice to the court) was a reasonable time within which the court might act, because the probationer (1) in the case where no sentence was imposed waived personal presence, and (2) in the case where sentence was suspended, had no right to a hearing and thus no right to personal presence. Under present law, there' is still no difficulty if no sentence was imposed, because it requires an appropriate waiver to trigger the 30-day period, a fortiori avoiding the need for a hearing, counsel, and defendant’s presence. But where sentence has been imposed and suspended, the defendant has the right to a hearing, to be present, and to counsel. Thirty days no longer appears to be a reasonable time in view of the many pressures currently on our trial courts.
¶37The dispositive portion of the document reads as follows: “This is to notify you, in accordance with the provisions of Section 1203.2a of the California Penal Code, on my present imprisonment and to request this Court to make disposition of my said Probation as required by law.
¶38“This is to further notify you that I waive any and all rights that I may have to be present ■ at any hearings in this matter, and I further waive any and all rights that I may have to be represented by an attorney at any and all stages of these proceedings.”