In Re Rodriguez

95 Cal. Rptr. 2d 808 (2000) 80 Cal. App. 4th 907

In re Gabriel Saul RODRIGUEZ on Habeas Corpus.

No. B138959.

Court of Appeal, Second District, Division Five.

May 15, 2000. Rehearing Denied May 30, 2000. Review Denied August 30, 2000.^[*]

California Appellate Project, Jonathan B. Steiner, Los Angeles, and Jill Ishida, for Petitioner.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, and Michael J. Wise, Deputy Attorney General, for Respondent.

WEISMAN, J.^[*]

INTRODUCTION

Petitioner Gabriel Saul Rodriguez has filed a petition for a writ of habeas corpus in which he asserts that his counsel was ineffective on July 10, 1998, when she made a motion to withdraw the plea of guilty petitioner had previously entered on June 17, 1998. Petitioner argues that because he had been sentenced to two years in state prison as part of a plea bargain immediately after his guilty plea on June 17, 1998, and since execution of that sentence had already commenced, the trial court was without jurisdiction on July 10, 1998, to reconsider the propriety of the plea bargain and to vacate the previously entered plea of guilty once it discovered that petitioner had two prior serious or violent felony convictions and should have been charged as a third strike defendant. Petitioner asserts that counsel should have been aware of this lack of jurisdiction, should have objected to any attempt to vacate the plea, and should not have affirmatively moved to withdraw the previously entered plea. He claims he was prejudiced by his attorney's conduct since he ultimately entered a plea of guilty as part of a new plea bargain on October 30, 1998, and was sentenced as a second strike defendant to a total term in prison of nine years instead of the two years to which he was sentenced following his original plea.

We find that petitioner has failed to demonstrate ineffective assistance of counsel because he was estopped on July 10, 1998, from asserting through counsel any objections to the trial court's jurisdiction to set aside his initial plea and sentence. The record demonstrates that petitioner chose to participate in a procedure where he would receive an immediate state prison sentence in order to begin accumulating half-time conduct credits earlier than would be possible if he waited for a presentencing report to be completed. The procedure contemplated that a post-sentencing report would instead be prepared, and petitioner would only be returned to court if there was an unfavorable report. In the case of an unfavorable report, further proceedings would be held in the trial court relating to the plea bargain. In such circumstances, we find that the trial court could enforce the terms and conditions of the plea bargain and could entertain a motion to vacate a judgment in the event of an unfavorable post-sentencing report. (People v. Collins (1996) 45 Cal. App. 4th 849, 862-865, 53 Cal. Rptr. 2d 367.) Since petitioner was aware of and participated in this procedure in order to more quickly obtain the benefit of half-time credits, he was estopped from asserting a lack of jurisdiction to vacate his plea and sentence when he appeared on July 10, 1998. (Id. at pp. 864-865, 53 Cal. Rptr. 2d 367.) His trial attorney's motion to withdraw the original plea was therefore consistent with the plea bargain procedures and did not constitute ineffective representation. Also, no prejudice resulted from the motion to withdraw the plea, since the trial court would have vacated the plea and sentence even if petitioner's trial attorney had not made the motion to withdraw. (Strickland v. Washington (1984) 466 U.S. 668, 687-696, 104 S. Ct. 2052, 80 L. Ed. 2d 674 [to establish ineffective assistance of counsel requiring reversal a defendant must establish that counsel's conduct was unprofessional and that but for counsel's errors the result of the proceeding would have been different in that a more favorable result for defendant would have occurred].)

PROCEDURAL BACKGROUND

Petitioner was charged with unlawfully taking and driving a vehicle, a felony, in violation of Vehicle Code section 10851, subdivision (a). It was further alleged that petitioner had suffered a prior felony conviction for attempted taking or driving of a vehicle and had previously served a prison term for that conviction (Pen.Code, § 667.5, subd. (b)). Petitioner appeared in the Citrus Municipal Court on June 17, 1998, and entered into a plea bargain pursuant to a procedure that was being utilized at that time by the Citrus Municipal Court and the East District (Pomona) of the Los Angeles Superior Court. This procedure was succinctly described in Cano v. Superior Court (1999) 72 Cal. App. 4th 1310, 1311-1312, 85 Cal. Rptr. 2d 774,^[1] as follows:

"Under an apparent arrangement between a municipal court, a district of the superior court, and local prosecutors and public defenders, a ``one stop' disposition program was initiated in the Citrus Municipal Court and the East District of [the Los Angeles Superior Court]. Under its provisions, a defendant could plead guilty at the felony preliminary hearing, upon which the magistrate would immediately certify the plea to the superior court. Then, wearing a superior court ``hat' as a cross-assigned judge, the same bench officer would accept the plea and, upon defendant's waivers, immediately sentence him to state prison. The defendant would begin to serve his prison term forthwith. At the same hearing, the case would be set on a nonappearance calendar, at which time a probation report would be reviewed and the trial court could call the defendant back, then set aside the plea and put the case back on track for trial and sentencing if the report turned up significant information not available when the original sentence was imposed. As the trial judge explained on the record in this case, everyone was happy with the program: the defendant, who could immediately begin to earn conduct credits at a higher rate than is available for precommitment custody; the prosecutor, who would not have to prosecute; the sheriff, who would be able to free up a jail cell; and the court, which would make a move toward clearing its docket."

Under the terms of the plea bargain entered into by petitioner, he would plead guilty as charged and admit the alleged prior prison term enhancement. In return he would be sentenced to state prison for two years and that term would run concurrently with any time imposed in a separate misdemeanor case. The maximum term possible on both the felony and misdemeanor cases in the absence of a plea bargain was six years in custody. The trial court explained to petitioner that under the procedures in effect at that time he would be sent to state prison immediately and a post-sentencing report would be ordered. The trial court explained that it anticipated a favorable post-sentencing report so petitioner would not be ordered back for the hearing on the post-sentencing report. The trial court further explained that this procedure would make petitioner immediately eligible for half-time credits. Petitioner indicated that he understood the procedure. Petitioner stated that he had discussed the case, his rights, and his plea with his attorney. He was asked if any promises had been made to him, and he noted that he was informed that he "would get half time." Petitioner then entered a plea of guilty and admitted the prior prison term enhancement.

The trial court informed petitioner that he had a right to a probation report before sentencing, but, based on the agreement they had, the court said it would sentence him immediately to state prison for two years and then order a post-sentencing report. Petitioner stated that he understood and agreed with that procedure, and petitioner's counsel joined in the agreement. The trial court imposed the two-year sentence and ordered a post-sentencing report. The trial court explained again to petitioner that he would not be ordered out for the hearing on the post-sentencing report.

The post-sentencing report was received by the trial court and it indicated that petitioner had suffered two prior serious or violent felony convictions that could be alleged as strikes under the Three Strikes law (Pen.Code, §§ 667, subds.(b)-(i), 1170.12, subds. (a)-(d)). The trial court then set a hearing on the matter for July 10, 1998, and petitioner was transported to court for the hearing. The trial court stated at the hearing that it had received the post-sentencing report and that the report indicated petitioner had suffered two prior strike convictions. The trial court noted that the two-year sentence agreement depended on a favorable report and pointed out that the "[t]wo residential burglaries ... preclude this court from giving [petitioner] two years in state prison." The trial court then inquired of defense counsel if there was a motion to withdraw the previously entered guilty plea and counsel responded, "Yes." Counsel then stated, "On behalf of [petitioner I] ask to withdraw the plea and set the matter for preliminary hearing." The motion to withdraw was granted and petitioner entered a plea of not guilty and denied the two prior strike conviction allegations set forth in the amended complaint. The preliminary hearing was then set for July 22, 1998.

The preliminary hearing was held on July 24, 1998, and petitioner was bound over for trial. Ultimately, on October 30, 1998, petitioner entered into a plea bargain and (1) pleaded guilty to the charge of unlawfully taking or driving a vehicle, (2) admitted the truth of the prior prison term allegation, and (3) admitted the truth of one of the prior strike convictions (residential burglary), thereby making the instant case a second strike case. Under the terms of the plea bargain, petitioner received a sentence of nine years in prison, consisting of a four-year high-term which was doubled to eight years due to the operation of the Three Strikes law, plus one additional year for the prior prison term enhancement. The People then asked the trial court to strike the other strike conviction allegation and that motion was granted.

Petitioner subsequently filed a petition for a writ of habeas corpus in the trial court, raising the issue of ineffective assistance of counsel as well as other issues directed at the validity of the procedure whereby his original plea and sentence were set aside and the case was allowed to proceed as a Three Strikes case. On June 18, 1999, the trial court denied the petition for a writ of habeas corpus. The instant petition for a writ of habeas corpus was filed in this court on February 10, 2000, raising the issue of ineffective assistance of counsel at the hearing on July 10, 1998, where petitioner's counsel allowed the original plea to be withdrawn and the original sentence to be vacated.

In the petition filed in this court, petitioner relies primarily on Cano v. Superior Court, supra, 72 Cal.App.4th at pages 1314-1315, 85 Cal. Rptr. 2d 774, which dealt with a situation similar to that, presented in the instant case, and followed the "general rule" that once a trial court sentences a defendant and execution of the sentence has begun, the trial court loses jurisdiction and is without "power" thereafter to order the plea withdrawn and a new plea entered. The court in Cano found that under this "general rule" the procedure utilized in the Citrus Municipal Court and the East District of the Los Angeles County Superior Court, where a defendant was sentenced immediately and a post-sentencing report was ordered, was improper because the trial court lost jurisdiction to set aside the plea or resentence the defendant once the original sentence was executed. (Ibid.) The court in Cano did not specifically analyze whether the "general rule" applied to plea bargains conditioned on future events or whether the "general rule" only applied to plea bargains where no conditions had yet to be performed. (See People v. Collins, supra, 45 Cal.App.4th at pp. 862-864, 53 Cal. Rptr. 2d 367 [noting distinction between jurisdiction to reconsider an unconditional sentence already imposed and jurisdiction to vacate a plea bargain that was conditioned on future events].) On March 16, 2000, we issued an Order to Show Cause and asked the Attorney General and petitioner to brief the additional issue of whether petitioner consented to the trial court's action or is estopped to assert that the trial court lacked jurisdiction to require him to withdraw his guilty plea. (See In re Griffin (1967) 67 Cal. 2d 343, 347, 62 Cal. Rptr. 1, 431 P.2d 625; People v. Collins, supra, 45 Cal.App.4th at pp. 862-865, 53 Cal. Rptr. 2d 367.) The issue of the effect of consent or estoppel also was not addressed or considered in the opinion in Cano on which petitioner relies.^[2]

DISCUSSION

Petitioner contends that he was deprived of the effective assistance of counsel at the hearing on July 10, 1998, when counsel made a motion to withdraw petitioner's previously entered plea of guilty, which resulted in his original sentence being vacated and the matter being reset on the preliminary hearing calendar. He claims he was prejudiced by counsel's actions since the sentence he ultimately received of nine years as a second strike defendant was far greater than his original sentence of two years. He specifically asserts that counsel was ineffective because she failed to object to the trial court's jurisdiction to vacate both the plea of guilty and the two-year sentence that he had already begun serving.

Petitioner relies primarily upon the holding of in Cano v. Superior Court, supra, 72 Cal.App.4th at pages 1314-1315, 85 Cal. Rptr. 2d 774, which disapproved of the disposition procedure used in the Citrus Municipal Court that allowed a defendant to begin accumulating half-time credits immediately after the plea by conducting an immediate sentencing with the understanding that a post-sentencing report would be prepared and the plea was subject to being vacated if the post-sentencing report was unfavorable. Cano found that under the "general rule" the trial court lost jurisdiction and had no "power" to vacate a plea once it sentenced a defendant and the execution of that sentence had begun. (Ibid.) Petitioner claims that his counsel should have raised the lack of jurisdiction argument and should not have moved to withdraw his plea when the post-sentencing report disclosed two prior strike convictions.

We find that counsel acted properly in not attacking the trial court's jurisdiction because counsel and petitioner had participated in the procedure so that petitioner could begin accumulating half-time credits as early as possible, had consented to the immediate sentencing after being informed that it was subject to a favorable post-sentencing report, and were estopped to assert that the trial court lacked jurisdiction to vacate the plea and accompanying sentence. (People v. Collins, supra, 45 Cal.App.4th at pp. 864-865, 53 Cal. Rptr. 2d 367.) We also find that even if defense counsel had interposed an objection on jurisdictional grounds and not made a motion to withdraw the plea, the trial court would have proceeded on its own to vacate the plea and the accompanying sentence based on the principle of estoppel. (Ibid.) We therefore conclude that petitioner has not shown that counsel acted unprofessionally and that he was prejudiced by the conduct of counsel. In such a situation, no reversal is appropriate or justified. (Strickland v. Washington, supra, 466 U.S. at pp. 687-696,104 S. Ct. 2052; People v. Holt (1997) 15 Cal. 4th 619, 703, 63 Cal. Rptr. 2d 782, 937 P.2d 213.)

Under the Sixth Amendment to the United States Constitution and article I of the California Constitution, a criminal defendant has a right to reasonably competent assistance of an attorney acting as a diligent conscientious advocate. (People v. Ledesma (1987) 43 Cal. 3d 171, 215, 233 Cal. Rptr. 404, 729 P.2d 839.) A claim of ineffective assistance of counsel cannot require reversal of a conviction unless two components are proven. First, the defendant must show that counsel's representation was so deficient that it fell below an objective standard of reasonableness under prevailing professional norms. (Id. at p. 216, 233 Cal. Rptr. 404, 729 P.2d 839; People v. Walker (1993) 14 Cal. App. 4th 1615, 1623-1624, 18 Cal. Rptr. 2d 431.) Second, the defendant must also establish prejudice by showing that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different in that a determination more favorable to defendant would have occurred. (Strickland v. Washington, supra, 466 U.S. at pp. 687-696, 104 S. Ct. 2052; People v. Holt, supra, 15 Cal.4th at p. 703, 63 Cal. Rptr. 2d 782, 937 P.2d 213; People v. Horton (1995) 11 Cal. 4th 1068, 1122, 47 Cal. Rptr. 2d 516, 906 P.2d 478.) This reasonable probability must be shown by the defendant by a preponderance of the evidence. (People v. Ledesma, supra, 43 Cal.3d at p. 218, 233 Cal. Rptr. 404, 729 P.2d 839.)

Moreover, a reviewing court must be highly deferential in scrutinizing trial counsel's performance. (People v. Lewis (1990) 50 Cal. 3d 262, 288, 266 Cal. Rptr. 834, 786 P.2d 892.) A fair assessment of counsel's performance requires that every effort be made to eliminate the distorting effects of hindsight. (Ibid.) Because of the difficulties inherent in making an evaluation of trial counsel, a reviewing court must indulge the presumption that trial counsel's performance comes within the wide range of reasonable professional assistance and that actions taken in defense of the accused were a matter of sound trial strategy. (Ibid.) Unless there can be no satisfactory explanation for counsel's actions, where the appellate record sheds no light on why counsel acted or failed to act in the manner challenged, the case is generally affirmed on appeal. (People v. Ledesma, supra, 43 Cal.3d at p. 218, 233 Cal. Rptr. 404, 729 P.2d 839, quoting People v. Pope (1979) 23 Cal. 3d 412, 426, 152 Cal. Rptr. 732, 590 P.2d 859.) When a petitioner raises issues in a petition for writ of habeas corpus the burden is on the petitioner to establish grounds for relief. (People v. Duvall (1995) 9 Cal. 4th 464, 474-475, 37 Cal. Rptr. 2d 259, 886 P.2d 1252.) Conclusory allegations do not warrant relief. (Ibid.) If no prima facie case for relief is established, the court must summarily deny the petition. (Ibid.)

In the instant case, the record reflects that petitioner and counsel participated in the disposition arrangement then in use in the Citrus Municipal Court, which allowed petitioner to gain a benefit by accumulating half-time credits as quickly as possible, by agreeing to immediate sentencing with the understanding that the procedure was subject to the subsequent preparation of a favorable post-sentencing report.^[3] By consenting to this procedure and participating in it, petitioner was estopped to subsequently assert a lack of jurisdiction when the post-sentencing report was unfavorable based on the discovery of two prior strike convictions. (People v. Collins, supra, 45 Cal.App.4th at pp. 862-865, 53 Cal. Rptr. 2d 367.)

The concept of jurisdiction to enforce the specific and express terms of a plea bargain after execution of sentence has commenced, and the concept of estoppel to assert a lack of jurisdiction on the part of a defendant who seeks or consents to action that is beyond the court's power by statute or decisional law, is well established in the criminal law of this state. (In re Griffin, supra, 67 Cal.2d at p. 347, 62 Cal. Rptr. 1, 431 P.2d 625 [estoppel prohibited defendant from asserting the court lacked jurisdiction to revoke probation after defendant requested a continuance and the court continued the case to a date when probation had expired]; People v. Collins, supra, 45 Cal.App.4th at pp. 862-865, 53 Cal. Rptr. 2d 367 [court had jurisdiction to vacate a judgment after execution of sentence commenced due to specific and express conditions of plea bargain; defendant estopped to assert lack of jurisdiction when he consented to plea bargain conditioned on future event].)

In People v. Collins, supra, 45 Cal. App.4th at pages 864-865, 53 Cal. Rptr. 2d 367, the defendant entered into a plea bargain agreement in the juvenile court in which he expressly agreed to participate with law enforcement and the prosecution in a murder case. In return, the prosecution reduced the charge against defendant from murder to accessory after the fact, and the court agreed to a juvenile commitment to the California Youth Authority. The express agreement was conditioned on defendant continuing to participate in the murder case, including giving truthful testimony. Defendant admitted the truth of the allegations in the amended petition under section 602 of the Welfare and Institutions Code and, following a disposition hearing, was committed to the California Youth Authority for five years. After defendant had been committed to the Youth Authority, the prosecution asserted that he had breached the plea agreement by giving false testimony at a preliminary hearing for another person. The juvenile court set aside the plea bargain and reinstated the original section 602 petition. An indictment was then returned charging defendant with a number of felonies, including special circumstances murder and perjury. Defendant was found unfit for juvenile court and his case was handled in the adult court. Ultimately, defendant pleaded no contest to voluntary manslaughter and a number of other felonies. His previous commitment to the Youth Authority was vacated and he was sentenced to state prison for 21 years. One of the issues raised on appeal was that the trial court lacked jurisdiction to consider the prosecution's motion to resume proceedings against him since his sentence had already gone into effect.

The court in Collins found that the trial court had jurisdiction to enforce the terms of a plea bargain and therefore had jurisdiction to vacate a judgment in the event of a breach of a plea bargain even after the sentence had gone into effect. (People v. Collins, supra, 45 Cal.App.4th at pp. 863-864, 53 Cal. Rptr. 2d 367.) The court also held that even if the trial court lacked the power to act upon a motion to vacate a plea bargain after sentence had commenced because it would be an act in excess of jurisdiction, the defendant was estopped to raise or assert the trial court's lack of jurisdiction due to his participation in and agreement with the terms of the plea bargain which contemplated further proceedings after sentencing. (Ibid.)

In In re Griffin, supra, 67 Cal.2d at pages 346-349, 62 Cal. Rptr. 1, 431 P.2d 625, the defendant was granted probation on July 23, 1963, for three years on various conditions including that he make restitution through the probation officer. He failed to make the payments as ordered and was alleged to have violated other terms of his probation as well. The defendant appeared in court on July 5, 1966 for a hearing on revocation of probation. The defendant requested time to hire an attorney and the matter was continued to August 2, 1966 without anyone mentioning the fact that probation would expire on July 22, 1966. On August 2, 1966, the defendant appeared and the trial court revoked probation and continued the matter for one more week. The defendant then contended that the trial court lost jurisdiction to revoke probation when the probationary period expired on July 22, 1966. The trial court ruled that the defendant had waived his right to object to the revocation on jurisdictional grounds since he had requested the continuance to a date when probation would expire. (Id. at pp. 344-345, 62 Cal. Rptr. 1, 431 P.2d 625.) The Supreme Court in Griffin noted that under statutory and case law the trial court lost jurisdiction or "power" to revoke probation after the probationary period expired. (Id. at p. 346, 62 Cal. Rptr. 1, 431 P.2d 625.) The trial court then noted that the issue involved was not lack of subject matter jurisdiction,^[4] which cannot be conferred by consent or estoppel, but rather was whether the court could act in excess of its jurisdiction over the case. (Id. at pp. 346-347, 62 Cal. Rptr. 1, 431 P.2d 625.) It found that the trial court had subject matter jurisdiction over the case and held that when "the court has jurisdiction of the subject, a party who seeks or consents to action beyond the court's power as defined by statute or decisional rule may be estopped to complain of the ensuing action in excess of jurisdiction." (Id. at p. 347, 62 Cal. Rptr. 1, 431 P.2d 625.) The trial court then applied the rule of estoppel to preclude the defendant from asserting a lack of jurisdiction resulting from the trial court's granting of his request for a continuance. (Id. at p. 348, 62 Cal. Rptr. 1, 431 P.2d 625.)

In the instant case, the court never obtained an express waiver or agreement from petitioner relating to continuing jurisdiction to order the withdrawal of the plea if strike priors were disclosed in the post-sentencing probation report. Had such an express waiver or agreement been obtained the court would have retained jurisdiction to enforce a conditional plea bargain and could have vacated the plea without reliance on the concept of estoppel. (People v. Collins, supra, 45 Cal.App.4th at pp. 864-865, 53 Cal. Rptr. 2d 367.) We agree with Collins that a conditional plea bargain containing an express waiver or agreement is an exception to the "general rule" that a court loses jurisdiction once the sentence has commenced.^[5] In such a situation, the trial court retains jurisdiction to enforce the terms of the plea bargain agreement even after execution of the sentence has begun. (People v. Collins, supra, 45 Cal.App.4th at pp. 862-864, 53 Cal. Rptr. 2d 367.) As noted, Collins "[failure to hold a defendant to the terms of his bargain would undermine the integrity of the judicial process ... [and][t]here is no question that courts have inherent authority to protect the integrity of the judicial process." (Id. at pp. 863-864, 53 Cal. Rptr. 2d 367.)

We find that while the trial court in this case lacked jurisdiction or "power" to vacate the plea and accompanying sentence upon receipt of the post-sentencing report because there was no express waiver or agreement, the plea bargain procedure leading to the act in excess of jurisdiction was one that petitioner sought or consented to so he could immediately begin to earn half-time credits, and he was clearly made aware it was subject to the subsequent receipt of a favorable report. Given his participation in the plea bargain procedure at issue here, we hold that petitioner is estopped to assert there was a lack of jurisdiction to vacate his plea and sentence on July 10,1998.

Addressing the main issue raised in the petition filed in the instant case, which is the assertion that trial counsel was ineffective on July 10, 1998, when she moved to withdraw the plea based on the disclosure in the post-sentencing report that petitioner had suffered two prior strike convictions, we find that counsel acted in a professional manner and that petitioner was not prejudiced by counsel's conduct. Since petitioner had sought and consented to the procedures used in this case, he was estopped from having his counsel assert a lack of jurisdiction argument at the hearing on the post-sentencing report. Since the trial court could have vacated the plea and sentence on its own, petitioner's counsel did not act unprofessionally when she made the motion to set aside the plea, and petitioner was not prejudiced in any way by counsel's actions. Thus, petitioner has failed to demonstrate he is entitled to habeas corpus relief based on his allegation of ineffective assistance of counsel. (Strickland v. Washington, supra, 466 U.S. at pp. 687-696, 104 S. Ct. 2052; People v. Holt, supra, 15 Cal.4th at p. 703, 63 Cal. Rptr. 2d 782, 937 P.2d 213; People v. Horton, supra, 11 Cal.4th at p. 1122, 47 Cal. Rptr. 2d 516, 906 P.2d 478.)

DISPOSITION

The petition for writ of habeas corpus is denied.

GRIGNON, Acting P.J., and GODOY PEREZ, J., concur.

NOTES

[*] In denying review, the Supreme Court ordered that the opinion be not officially published. (See California Rules of Court—Rules 976 and 977).

[*] Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

[1] Petitioner notes in his petition for a writ of habeas corpus that the procedures described in Cano were the same procedures under which he was initially sentenced in the instant case. He recognizes in his petition that "[petitioner was clearly subject to the same procedures discussed in Cano."

[2] The court in Cano v. Superior Court, supra, 72 Cal.App.4th at pages 1314-1315, 85 Cal. Rptr. 2d 774, did not address any issues relating to estoppel principles, or to the distinction between an unconditional sentence and one that was subject to future events, presumably because in Cano the District Attorney of Los Angeles County filed a letter with the Court of Appeal "conceding that the superior court lost jurisdiction when defendant was sentenced." (Id. at p. 1314, 85 Cal. Rptr. 2d 774.)

[3] In his traverse to the return to the petition for writ of habeas corpus, petitioner takes the position that the record fails to demonstrate he was informed his plea was conditional. In our view, the record clearly shows that the plea agreement was conditioned on a favorable post-sentencing probation report and that petitioner was made aware of that condition.

[4] In a criminal case subject matter jurisdiction refers to jurisdiction over the offense. (Burns v. Municipal Court (1961) 195 Cal. App. 2d 596, 599, 16 Cal. Rptr. 64; see also People v. Superior Court (Marks) (1991) 1 Cal. 4th 56, 62-71, 2 Cal. Rptr. 2d 389, 820 P.2d 613 [statutes mandating that a court can only act in a certain manner, or cannot act at all without certain procedural prerequisites, mean that actions taken in violation may be in excess of jurisdiction and may at times constitute a violation of due process but do not deprive the court of jurisdiction in the fundamental sense]; 4 Witkin & Epstein, Cal.Criminal Law (2d ed. 1989) Jurisdiction and Venue, §§ 1822, 1829, pp. 2159, 2166.)

[5] Obviously, the preferred procedure would be for the trial court to obtain an express waiver by a defendant of the general rule concerning jurisdiction to proceed after a sentence has commenced, and to have a defendant expressly agree to such a procedure on the record.