Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. RIF128345. Janice M. McIntyre, Judge.
Rod Pacheco, District Attorney, and Matt Reilly, Deputy District Attorney, for Plaintiff and Appellant.
James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Respondent.
RAMIREZ P.J.
After being charged by complaint with robbery (Pen. Code, § 211), dissuasion of a witness (§ 136.1, subd. (c)(1)), and misdemeanor battery on a spouse (§ 243, subd. (e)(1)), along with an allegation that he had suffered a prior conviction for which he had served a prison term (§ 667.5, subd. (b)), defendant, Jose Canela, moved to dismiss the complaint on a number of grounds related to his speedy trial rights. The trial court granted his motion on one ground. The People appeal that ruling, contending it is erroneous. We agree and reverse the granting of the order.
All further statutory references are to the Penal Code unless otherwise indicated.
The facts pertaining to these crimes are irrelevant to this appeal.
ISSUE AND DISCUSSION
On May 31, 2006, about six months after he was charged, defendant failed to appear for a felony settlement conference. Defendant’s attorney informed the court on that date that defendant was in federal custody in Santa Clara County, California. The trial court issued a bench warrant due to defendant’s failure to appear. On December 18, 2006, defendant was sentenced by the United States District Court for the Northern District of California to a term of two years and six months for his conviction of violating a federal immigration law.
On July 10, 2007, the Federal Bureau of Prisons sent the Riverside County Sheriff’s Office a Detainer Action Letter, informing the latter that it had come to the bureau’s attention that defendant, who was serving his sentence in a federal prison in Louisiana, with an anticipated release date of June 30, 2008, had “pending charges/outstanding warrants” in Riverside County for the charged offenses. The letter asked the Sheriff’s Department to inform the bureau whether a disposition had been reached in defendant’s case, whether the department wished a detainer placed on defendant (and it described how the department should go about doing that) or whether the department had no further interest in defendant.
On August 2, 2007, defendant, who was still in federal prison in Louisiana, sent, by certified mail, a letter to the District Attorney of Riverside County, which he entitled “Speedy Trial Demand.” In the letter, defendant demanded that he be brought to Riverside County to be “tried and or sentenced” within 180 days of receipt of the letter, pursuant to sections “1381, 1381.5, Article III of the Interstate Agreement on Detainers, codified as [section] 1389, and all the rights guaranteed me under the United States Constitution, including, but not limited to, my Sixth Amendment right to a speedy trial.”
The letter indicates that it was also sent to the trial court, but there is no proof in the record before this court that it was sent to the trial court by certified mail. (See fn. 9, post, p. 8.)
Section 1381.5 requires dismissal if a defendant is not brought to trial within 90 days after the demand is received. Section 1389 requires dismissal if a defendant is not brought to trial within 180 days.
On August 10, the Federal Bureau of Prisons sent the Riverside County Sheriff’s Office a “Second and Final NOTICE” that was identical to the one that had been sent on July 10, 2007. This time, the District Attorney’s office responded, on August 31, 2007, stating, “we are not seeking to return [defendant] to the state of California at this time.”
On March 18, 2008, the Riverside Sheriff’s Office sent the federal prison in Louisiana, where defendant was still incarcerated, a letter informing the prison that there was an active felony warrant in Riverside County for defendant and requesting that the federal prison place a hold on defendant.
On June 17, 2008, defendant, still in federal prison in Louisiana, sent a second letter to the District Attorney’s Office entitled, “Speedy Trial Demand and... Interstate Agreement on Detainers[.]” He claimed that the “Detainer Action Letter” (presumably, the letter from the Sheriff’s Department requesting that the federal prison in Louisiana place a hold on him due to the Riverside County warrant) had been sent in violation of his speedy trial rights under the Sixth amendment and his due process rights under the Interstate Agreement on Detainers. He asserted that the Riverside Sheriff’s Office had already “waived the authority to prosecute” and “the district attorney waived the jurisdiction to prosecute” pursuant to subsections (a) and (d) of Article III and subsection (c) of Article V of Penal Code section 1389 because he had not been brought to trial within 180 days after notifying the district attorney that he was in prison in Louisiana and was thereby entitled to a dismissal by the trial court.
See footnote 3, ante, page three.
Defendant completed his term in federal prison and was transferred in custody to Riverside County on July 22, 2008, based on the warrant issued by the trial court in this case. Thereafter, proceedings in this case resumed against him until his attorney moved to dismiss the complaint as heretofore noted.
In his motion to dismiss, defendant asserted that he had a statutory right to dismissal under section 1381.5 because he had not been brought to trial within 90 days from the date of his written demand. He incorrectly asserted that in the letters he had sent the district attorney, he had demanded to be brought to trial within 90 days. He also asserted that his right to a speedy trial under California Constitution Article I, section 15 had been violated because he had suffered actual prejudice by the delay and it was unjustified. He further maintained that his federal right to a speedy trial had been violated, and, in such a case, prejudice is presumed. He cited Jones v. Superior Court (1970) 3 Cal.3d 734 (Jones) to support his contention that he had been prejudiced by the delay and the justification for it did not outweigh the prejudice.
He asserted that section 1381.5 applied because “the underlying [immigration] offense was a violation which occurred within California’s borders.”
In their response to defendant’s motion, the People did not address defendant’s contention that he had a statutory right to dismissal under section 1381.5. Rather, they addressed only his assertion under Article 1, section 15 of the California Constitution and argued that defendant had to demonstrate prejudice occasioned by the delay, citing Serna v. Superior Court (1985) 40 Cal.3d 239 (Serna).
At the hearing on the motion, both parties submitted without making additional arguments. The trial court stated it was its belief that there were two motions to dismiss—one “based on Jones and Serna , and... [one] on [section] 1381.” The trial court denied the former, but granted the latter, saying, “It appears, based on all the documentation submitted, as well as pleadings by both counsel, that the defendant was not brought to trial in a speedy manner from federal custody. The matter is dismissed pursuant to [section] 1381.”
We presume by its reference to Jones and Serna that the trial court meant that part of the motion based on defendant’s speedy trial right as provided by Article I, section 15 of the California Constitution.
The parties agree that section 1381, which applies to a person who has been convicted in “any court of this state... and has been sentenced to and has entered upon a term of imprisonment in a state prison or... county jail” has no application here. However, we believe that since neither party mentioned section 1381 in connection with the motion to dismiss, the trial court simply misspoke itself and meant to refer to section 1381.5.
The parties disagree whether section 1381.5 applies. It applies to “a defendant [who] has been convicted of a crime and has entered upon a term of imprisonment therefore in a federal correctional institution located in this state, and at the time of entry upon such term of imprisonment or at any time during such term of imprisonment there is pending in any court of this state any criminal... complaint[.]” Without citation to any authority, defendant asserts that the words, “has entered upon a term of imprisonment... for... convict[ion] of a crime... in a federal correctional institution located in this state” means that because defendant was sentenced to federal prison and began serving that sentence in California, the section applies to him even though he was later transferred to a federal prison in Louisiana, from which he made both applications to be brought to trial in Riverside County. First, we take issue with defendant’s unsupported assertion that he began serving his federal sentence in California. Nothing in the documentation before this court supports that.
More importantly, we believe that the People have the more persuasive argument that section 1381.5 does not apply—but that section 1389 governs any demand by defendant to be brought to trial. As stated before, section 1381.5 provides a 90-day period after a demand is made in which to bring a defendant to trial and section 1389 provides a 180-day period. We are not confronted with the question whether, if defendant had made his demand while still in California and before he was transferred to the federal prison in Louisiana, he would be entitled to proceed under sections 1381.5 or 1389—clearly section 1381.5 would apply. Rather, we are confronted with the question whether a federal prisoner being held in another state, i.e. Louisiana, is subject to section 1381.5 merely because he was sentenced in federal court in California.
Defendant concedes that he “did not contend below and does not contend here that he met the requirements of... section 1389.”
Section 1381.5 provides that upon receiving a demand for trial by the defendant, the district attorney must promptly inquire of the federal incarcerator “whether and when [the] defendant can be released for trial.... If an assent... for release of the defendant... is received by the district attorney he shall bring him to trial... within 90 days after receipt of such assent, unless the federal authorities specify a date of release after 90 days, in which event the district attorney shall bring the prisoner to trial... at such specified time.... [¶] If a defendant is not brought to trial... as provided in this section, the court in which the action is pending shall... dismiss the action.” In People v. Brown (1968) 280 Cal.App.2d 745, 747, where the prosecutor’s office took no action with the regard to defendant’s federal incarcerators, despite two requests by defendant under section 1381.5, the appellate court ordered the trial court to grant defendant’s motion to dismiss.
Section 1389 provides, in pertinent part, “Whenever a person has entered upon a term of imprisonment in a penal... institution of [the United States], and whenever during the continuance of the term of imprisonment there is pending in [California] any untried... complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court... written notice of the place of his imprisonment and his request for a final disposition to be made of the... complaint....” As stated before, defendant concedes he did not comply with the requirements of section 1389, which are not further set forth here.
In People v. Rogers (1988) 201 Cal.App.3d 286, 290, the appellate court held that section 1381.5 did not apply to a federal prisoner, who, at the time of his demand under that section, was incarcerated in the federal penitentiary in Leavenworth, Kansas, even though he was later transferred to the federal penitentiary at Lompoc, California. The court noted, “[The] ‘demand’... was made while [defendant] was incarcerated at Leavenworth, Kansas, and does not come within the provisions of... section [1381.5], i.e., a demand by an inmate of a ‘federal correctional institution located in this state.’ [Citation.] We also note [that defendant] apparently made no demand to the trial court or the district attorney’s office that he be brought before the court... from or after his transfer... to a federal facility in California.” (Ibid.)
“Just as section 1381 governs the right of California prisoners to be brought to trial on pending charges within 90 days of request, its companion statute, section 1381.5 provides federal prisoners... with an analogous 90-day right.” (People v. Vila (1984) 162 Cal.App.3d 76, 81.) To read section 1381.5 to apply to prisoners in federal prisons outside California merely because they had originally been sentenced in federal court in California would imply that section 1381.5 is not a companion provision to section 1381.
As the People point out, it makes more sense to give the prosecutor 180 days to bring prisoners, whether federal or state, who are, at the time of the demand outside California, here for trial and 90 days for prisoners, whether federal or state, who are, at the time of the demand, inside California.
We, therefore, conclude that section 1381.5 was not applicable to defendant because, at the times of his demands, he was incarcerated in a federal prison outside the state of California. Thus, the trial court erred in granting his motion to dismiss on the basis of section 1381.5
DISPOSITION
The order is reversed.
We concur: McKINSTER J., RICHLI J.