People v. Gutierrez, B082979

• Decision Date: 16 November 1994
• Docket Number: No. B082979,B082979
• Citation: 35 Cal.Rptr.2d 526,30 Cal.App.4th 105
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Marcos A. GUTIERREZ, Defendant and Appellant.

Page 526

35 Cal.Rptr.2d 526

30 Cal.App.4th 105

The PEOPLE, Plaintiff and Respondent, v. Marcos A. GUTIERREZ, Defendant and Appellant.

No. B082979.

Court of Appeal, Second District, Division 4, California.

Nov. 16, 1994.

Review Denied Feb. 22, 1995.

[30 Cal.App.4th 108] Philip I. Bronson, under appointment by the Court of Appeal, Encino, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Senior Asst. Atty. Gen., Pamela C. Hamanaka and Victoria Bedrossian, Deputy Attys. Gen., for plaintiff and respondent.

CHARLES S. VOGEL, Associate Justice.

Following denial of his motion to dismiss on speedy trial grounds, defendant and appellant Marcos A. Gutierrez pleaded nolo contendere to first degree residential burglary, one prior serious felony conviction, and two prior prison terms. The court sentenced appellant to a term of nine years in state prison. Appellant appeals from the judgment with a certificate of probable cause pursuant to Penal Code section 1237.5. ¹

Ordinarily, a defendant who pleads guilty or nolo contendere may not appeal on the ground of denial of speedy trial. This is because such a claim usually involves whether the passage of time frustrated the defendant's ability to prove innocence, an issue removed from the case by the defendant's admission of guilt. (People v. Hayton (1979) 95 Cal.App.3d 413, 419, 156 Cal.Rptr. 426.) An exception has been made in cases involving the statutory form of speedy trial rights for out-of-state prisoners under the Interstate Agreement on Detainers, codified in section 1389. That statute provides for mandatory dismissal of pending California charges against out-of-state prisoners if not resolved within the time limits specified. The denial of a motion to dismiss under section 1389 may be reviewed despite a subsequent guilty plea, because the defendant's objection goes to the legality of the proceedings notwithstanding defendant's actual guilt. (People v. Cella (1981) 114 Cal.App.3d 905, 915, fn. 5, 170 Cal.Rptr. 915.) Section 1381 provides an analogous method for a California prisoner to demand a speedy trial of other pending California charges. To the limited extent appellant's claim is based on section 1381, it is cognizable despite his nolo contendere plea.

Section 1381 provides in pertinent part: "Whenever a defendant has been convicted, in any court of this state, of the commission of a felony ... and has entered upon a term of imprisonment in a state prison ..., and at the time of the entry upon the term of imprisonment or commitment there is pending, in any court of this state, any other indictment, information, complaint, or any criminal proceeding wherein the defendant remains to be sentenced, the district attorney of the county in which the matters are pending shall bring the defendant to trial or for sentencing within 90 days after the person shall have delivered to said district attorney written notice of the place of his or her imprisonment or commitment and his or her desire to be brought to trial or for sentencing unless a continuance beyond the 90 days is requested or consented to by the person, in open court.... In the event that the defendant is not brought to trial or for sentencing within the 90 days the court in which the charge or sentencing is pending shall ... dismiss the action."

Prompt disposition of the pending charge is important to a prisoner in order to have the opportunity to serve the sentences concurrently. (Barker v. Municipal Court (1966) 64 Cal.2d 806, 813, 51 Cal.Rptr. 921, 415 P.2d 809; Boles v. Superior Court (1974)

                37 Cal.App.3d 479, 484, 112 Cal.Rptr. 286;  Smith v. Hooey (1969) 393 U.S. 374, 378, 89 S.Ct. 575, 577, 21 L.Ed.2d 607.)   However, a dismissal under section 1381 does not bar a second prosecution for the same offense if it is a felony.  (§ 1387, subd.  (a);  Crockett v. Superior Court (1975) 14 Cal.3d 433, 439, 121 Cal.Rptr. 457, 535 P.2d 321.)
                

FACTUAL AND PROCEDURAL BACKGROUND

The residential burglary involved in the present case occurred August 10, 1992, in La Mirada in Los Angeles County.

Appellant was arrested August 23, 1992, in Cypress in Orange County for other offenses committed there. Detective Bighorse of the Los Angeles County Sheriff's Office investigated the La Mirada burglary. In November 1992, he obtained a mug shot of appellant, which witnesses positively identified, and he interviewed appellant at the Orange County jail.

On November 18, 1992, a felony complaint charging appellant with the La Mirada burglary was filed in People v. Gutierrez (Mun.Ct., Downey Judicial Dist., L.A. County, 1992, No. VA017025). Notice of the pending action was filed with the Orange County Sheriff.

On January 21, 1993, appellant was convicted in the Orange County case of burglary and receiving stolen property. Appellant was sentenced to a term of 16 months in the state prison.

On January 28, 1993, while still in the Orange County jail (appellant did not enter the state prison until March 3, 1993), appellant served on the Los Angeles County District Attorney a demand for trial pursuant to section 1381, on a form supplied by the Orange County jail. The form erroneously implied appellant was "committed by the court to the Orange County Jail."

On or about April 27, 1993, appellant, from the state prison, filed in superior court in propria persona a motion to dismiss People v. Gutierrez, supra, No. VA017025, on the ground he had not been brought to trial within 90 days of his January 28 demand, pursuant to section 1381.

On a date not shown by the record, case number VA017025 was dismissed on the People's motion.

On May 28, 1993, a new felony complaint charging the La Mirada burglary was filed in People v. Gutierrez (Super.Ct. L.A. County, 1993, No. VA018592), the present case. Appellant was brought from prison and arraigned on the complaint June 18. Appellant was held to answer July 1 and the information was filed July 16. Trial was set for September 3, 1993.

On September 3, 1993, appellant through his counsel filed a motion to dismiss on speedy trial grounds. By that time appellant had completed his prison term on the Orange County case. The motion argued that despite the permissible refiling of a second prosecution pursuant to section 1387, appellant suffered prejudice from the delay because he lost an opportunity to serve time concurrently.

On September 9, 1993, the trial court denied appellant's motion to dismiss.

After various continuances at appellant's request, appellant pleaded nolo contendere. This appeal followed.

DISCUSSION

Appellant's claim that section 1381 was violated in case number VA017025 assumes that appellant's January 28, 1993, demand was sufficient to commence the running of the 90-day period. It was not. Section 1381 applies only when the prisoner has "entered upon a term of imprisonment" and when the prisoner's demand gives the district attorney written notice "of the place of his or her imprisonment." When appellant sent his January 28 demand, he was in the Orange County jail; he had not yet entered upon his term of imprisonment in a state prison. Furthermore, his demand misleadingly implied that he was committed to a term in the Orange County jail.

Because of the drastic sanction imposed by section 1381, a prisoner must strictly comply with its conditions. (People v. Clark (1985) 172 Cal.App.3d 975, 980-981 Appellant contends that at least his motion to dismiss filed about April 27 fulfilled the function of a section 1381 demand (citing People v. Hughes (1974) 38 Cal.App.3d 670, 675, 113 Cal.Rptr. 508). This kind of substantial compliance argument is inconsistent with the cases requiring strict compliance by the prisoner. Appellant's motion did not comply with section 1381 because (1) the record does not show it was served on the district attorney and (2) it did not state appellant's desire to be brought to trial but rather his desire to have the charges dismissed. (People v. Garcia, supra, 171 Cal.App.3d at pp. 1191-1192, 217 Cal.Rptr. 783.)

                218 Cal.Rptr. 481;  People v. Garcia (1985) 171 Cal.App.3d 1187, 1191, 217 Cal.Rptr. 783.)   In People v. Clark, supra, 172 Cal.App.3d at page 980, 218 Cal.Rptr. 481, as here, "while defendant was sentenced to state prison, he had not begun to serve his prison term in the state prison.  He sent the letter from the county jail."  Clark held the defendant had not complied with section 1381 and that the logistics of speedily bringing to trial a prisoner who is being transferred between institutions justifies strictly construing the statute.  (Id. at pp. 980-981, 218 Cal.Rptr. 481.)   Here, too, the trial court noted the difficulty of tracking appellant when appellant's demand gave only the Orange County address and identification
                

Therefore, at no time did appellant make a proper demand, in compliance with section 1381, in case number VA017025 so as to commence the running of the 90-day period. There simply was no violation of section 1381 in case number VA017025. (People v. Clark, supra, 172 Cal.App.3d at p. 981, 218 Cal.Rptr. 481; People v. Garcia, supra, 171 Cal.App.3d at pp. 1191-1192, 217 Cal.Rptr. 783.) The prosecutor in fact argued to the trial court that the dismissal of case number VA017025 on the People's motion was not based on section 1381.

In any event, case number VA017025 was dismissed. It is well established that a dismissal under section 1381 does not bar a new prosecution for the same offense if it is a felony. (People v. Godlewski (1943) 22 Cal.2d 677, 682-683, 140 P.2d 381; Crockett v. Superior Court, supra, 14 Cal.3d 433, 437-442, 121 Cal.Rptr. 457, 535 P.2d 321; People v. Stuart (1970) 3 Cal.App.3d 817, 822-823, 83 Cal.Rptr. 841.)

A second prosecution would be barred only if the defendant could show "actual prejudice." (Crockett v. Superior Court, supra, 14 Cal.3d at p. 439, 121 Cal.Rptr. 457, 535 P.2d 321.) Appellant cannot claim...