Marshall v. Superior Court

Decision Date21 July 1986
Citation183 Cal.App.3d 662,228 Cal.Rptr. 364
CourtCalifornia Court of Appeals Court of Appeals
PartiesWilliam Sam MARSHALL, Petitioner, v. SUPERIOR COURT, etc., County of Imperial, Respondent; the PEOPLE, Real Party in Interest. D003951.

No appearance for respondent.

Thomas W. Storey, Dist. Atty., El Centro, for real party in interest.

WORK, Associate Justice.

I

William Sam Marshall seeks a writ of prohibition to prevent further prosecution of murder charges against him on the ground his right to speedy trial under the Agreement on Detainers (hereinafter referred to as IAD), Penal Code section 1389, has been denied. He relies on Article III, subdivisions (a) and (d) of that Act. Subdivision (a) gives a "person [who] has entered upon a term of imprisonment in a penal or correctional institution of a party state" the right to demand a trial within 180 days of his properly delivered written request for final disposition of matters as to which a detainer has been lodged against him from another state. Subdivision (d) states that when a prisoner who has made such a request is transferred to the "receiving state" for disposition of pending charges, if he is not tried on the pending charges before being returned to the original place of custody, proceedings in the receiving state must be dismissed with prejudice. 1

The purposes of the IAD are to expedite disposition of untried criminal matters in In order to come within the terms of the IAD, a person must be a prisoner who has "entered upon a term of imprisonment...." (Pen.Code, § 1389, supra, art. III, subd. (a).) That language has been uniformly construed to refer only to convicted prisoners, not to pretrial detainees.

one jurisdiction affecting a prisoner in another jurisdiction, both to protect the prisoner's speedy trial rights as to such untried matters and also to minimize the interruption of his rehabilitative incarceration. (See, e.g., People v. Cella (1981) 114 Cal.App.3d 905, 916, 920-921, 170 Cal.Rptr. 915.)

For reasons we shall discuss more fully, because Marshall was serving a term of imprisonment in Texas when he was brought to California pursuant to his demand under the IAD to be tried within 180 days, the statute has been violated, and dismissal with prejudice is mandatory.

II

The Imperial County Superior Court issued a warrant of arrest for Marshall on murder charges (Pen.Code, § 187). Marshall was located in Florida, but before he could be extradited here, was transferred to Texas where he was indicted for a different murder. The District Attorneys in Harris County, Texas and in Imperial County, and Marshall began negotiating a possible concurrent disposition of the murder charges in both states.

On April 27, 1984, Marshall was convicted in Texas of an unrelated felony, aggravated assault, and commenced serving a four-year prison term, with credit for time served since November 1, 1983.

On May 11, 1984, Marshall and his Texas attorney signed an understanding with the District Attorneys in Texas and California regarding the pending murder charges in both jurisdictions. Its terms were as follows: (1) Marshall agreed to plead guilty to one count of murder in Texas, stipulated to a life term of imprisonment, and agreed to waive extradition to California; (2) the Texas murder term would be served in California and run concurrent to any terms imposed here; (3) Marshall further agreed to plead guilty in California to one count of first degree murder, with stipulated punishment of 25 years to life. The Agreement recited, "It is the intent of all parties concerned that the defendant is to plead guilty to murder in Texas and in California and to serve his term of imprisonment in the California prison system."

On June 5, 1984, the Texas Department of Corrections served Marshall with a formal At some time between the signing of the understanding by Marshall and the District Attorneys (on May 11, 1984), and Marshall's IAD request to be brought to trial (made August 20, 1984), the parties found the understanding could not be effectuated because for Marshall to serve both murder terms in a California penitentiary, the California judgment of conviction had to predate the Texas conviction. Accordingly, he was permitted to withdraw his plea of guilty to the Texas murder and awarded a new trial on that charge. Marshall was therefore serving only a prison term for the Texas assault when, on August 20, he demanded speedy disposition of the California charge.

"Notice of Untried Indictment, Information or Complaint and of Right to Request Disposition" prescribed by the Agreement on Detainers relating to the pendency of the untried California murder charge. Marshall responded by mailing to the District Attorney in El Centro on August 20, 1984, the "Inmate's Notice of Place of Imprisonment and Request for Disposition of Indictments, ..." That form constituted a request for a timely disposition of the California murder charge within the terms of section 1389 which, under the provisions of Article III, subdivision (a), quoted supra, [183 Cal.App.3d 666] gave Marshall the absolute right to be tried within 180 days of August 20, 1984, absent continuances for good cause, or waiver of that right.

In September 1984, Marshall, pursuant to his IAD demand, was temporarily released by the Texas prison authorities from the assault commitment for the purpose of being taken to California for the disposition of the murder charge pending here. Once here, he broke his word and refused to plead guilty to murder. The matter was set for preliminary examination on October 3, 1984, but when it was called, the People elected not to proceed, and the case was dismissed. 2 Marshall was then returned to Texas over his objection to stand trial on the murder charge there.

For reasons not exactly clear, the Texas authorities were unable to prove the outstanding murder charge against Marshall and that charge was dismissed. Marshall remained in the Texas prison on his assault commitment and the Imperial County District Attorney filed a new complaint on the same California alleged murder, on August 5, 1985. In September 1985, Marshall waived extradition, was returned to California and arraigned on the new complaint charging the same murder. He moved for dismissal pursuant to Penal Code section 1389, contending the first dismissal of the California murder charge must be deemed to be with prejudice within the terms of Penal Code section 1389, Article III, subdivision (d), supra. His petition for writ of prohibition challenges the refusal of the superior court to dismiss his case.

III

The People acknowledge Marshall was a prisoner serving a term of imprisonment in Texas on the felony assault when he executed and served his demand under section 1389. However, the People contend that section 1389 does not require dismissal of the charges here because Marshall never intended to avail himself of the right to speedy disposition of the pending California charges, but only to use the IAD as a procedural vehicle to secure transportation to California to carry out a favorable plea bargain which he had struck with the prosecution in both Texas and California. The facial attractiveness of this argument is evident here where two separate murder charges to which Marshall once had agreed to plead guilty are being dismissed. 3

However, section 1389 applied to Marshall when he made his demand. Thus, he became statutorily entitled to the procedural protections of the IAD, regardless of his private bargain with the District Attorneys. We have been cited to no case holding the existence of such a separate stipulation 4 somehow makes the IAD's statutory provisions inoperative. Where the IAD is applicable, it is the exclusive means of transfer of prisoners and its remedial provisions do not become irrelevant simply because the transfer request was not made pursuant to the Act. (United States ex rel. Esola v. Groomes (3d Cir.1975) 520 F.2d 830, 837; United States v. Sorrell (D.C.Pa.1976) 413 F.Supp. 138, 140, affd. 562 F.2d 227, cert. den. 436 U.S. 949, 98 S.Ct. 2858, 56 L.Ed.2d 593.) However, the mechanism of the statute was explicitly invoked here, and the forms printed for that purpose were used. 5 No language in the parties' stipulation waives any rights under section 1389.

Further, the relevant portion of the statute clearly mandates dismissal with prejudice when, as here, the prisoner has made his request for final disposition, has been brought to the state where the untried matter is pending, and then is returned to the original state without trial being had on the unresolved matter: "If trial is not had on any indictment, information or complaint contemplated hereby prior to the return of the prisoner to the original place of imprisonment, such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice." (Art. III, subd. (d).) The use of the term "shall" makes dismissal with prejudice mandatory.

The People's reliance on People v. Cella, supra, 114 Cal.App.3d 905, 170 Cal.Rptr. 915, is inapposite. There we interpreted a different portion of the Agreement, namely Article IV, subdivision (e) which also mandates dismissal with prejudice of charges in the receiving jurisdiction where the prisoner is returned to the original custodial jurisdiction without trial being had on the pending matter in the second jurisdiction. We held "untenable" the proposition that Article IV, subdivision (e) provides for no exceptions, and contemplated only one "transfer" or return. (People v. Cella, supra, 114 Cal.App.3d at p. 920, 170 Cal.Rptr. 915.) Where a facial violation of the statute existed, we indicated a willingness to examine the nature of the custodial interruption to see whether it interfered with the purposes of the Agreement...

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