People v. Valdespino

• Decision Date: 16 February 1971
• Docket Number: Cr. 8464
• Citation: 93 Cal.Rptr. 142,15 Cal.App.3d 207
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. George G. VALDESPINO, Defendant and Appellant.

Page 142

93 Cal.Rptr. 142

15 Cal.App.3d 207

The PEOPLE of the State of California, Plaintiff and Respondent, v. George G. VALDESPINO, Defendant and Appellant.

Cr. 8464.

Court of Appeal, First District, Division 1, California.

Feb. 16, 1971.

Hearing Ordered April 14, 1971.

Sheldon Portman, Public Defender, Fred S. Lucero, Deputy Public Defender, San Jose, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., Robert R. Granucci, George R. Nock, Deputy Attys.Gen San Francisco, for plaintiff and respondent.

ELKINGTON, Associate Justice.

Following a trial to the court in Santa Clara County, defendant George G. Valdespino was found guilty of grand theft, a felony, in violation of Penal Code sections 484 and 487, subd. 1. On January 13, 1967, imposition of sentence was suspended and he was placed on probation for two years. Conditions of probation were that he make restitution to the victim of his crime and that he serve 6 months in the county jail.

Ten months later, November 13, 1968, he was convicted of forgery (Pen.Code, § 470) in Los Angeles County, and was sentenced to serve one year in the county jail for that offense. Thereafter his Santa Clara County probation was revoked; the reason does not appear in the record but Valdespino admits that he was 'guilty of the [probation] violation.'

On January 2, 1969, Valdespino wrote the District Attorney of Santa Clara County stating, as relevant:

'I George Gene Valdespino, hereby give notice and make a formal Request to be Removed from the Los Angeles County Jail, Los Angeles California, to the Santa Clara County Jail, at Santa Clara California. That such Request is based upon the Applicable Statute of the Penal Code Regarding removal from one County to another where an Outstanding warrant and 'Hold' has been placed upon a prisoner. * * *

'I the undersigned have been sentenced in the Los Angeles Matter and am presently serving one year * * * County jail term, * * * I feel in all fairness that Santa Clara County should bring me up to Santa Clara to get sentenced on the violation of probation as soon as possible. So That should the Judge sentence me to a prison term for the Violation of Probation it will eat up all the County jail sentence, /or should I receive a County jail sentence for Violation of probation, I could possibly get all the time to run together with the Los Angeles County jail term. I've been in custody since January 2, 1969.'

Valdespino's request was not honored. Upon his release from the Los Angeles County Jail and more than 90 days after receipt of the letter he was transferred to Santa Clara County for hearing on his probation violation. In the superior court of the latter county he made a motion to dismiss the grand theft information on which he had been found guilty and granted probation more than two years earlier. The motion was based on Penal Code section 1381; the stated ground was that he had been denied a speedy trial. Valdespino's motion to dismiss was denied. His probation was reinstated and extended for one year, and he was again ordered to make restitution to the victim of his grand theft.

The appeal is from the 'order reinstating probation and extending the same for the period of one year.' (The Attorney General concedes that such an order is appealable as an order made after judgment affecting the substantial rights of a party. (Pen.Code § 1237).) In its effect, however, the appeal is from the order denying Valdespino's section 1381 motion to dismiss the grand theft information on which he was found guilty and granted probation.

As relevant here Penal Code section 1381 provides:

'Whenever a defendant has been convicted, in any court of this state, of the commission of a felony or misdemeanor and * * * has been sentenced to and has entered upon a term of imprisonment in a county jail for a period of more than 90 days * * * and at the time of the entry upon such term of imprisonment or commitment there is pending, in any court of this state, any other indictment, information, or complaint charging such person with the commission of any crime it is hereby made mandatory upon the district attorney of the county in which such charge is pending to bring the same to trial within 90 days after such person shall have delivered to said district attorney written notice of the place of his imprisonment or commitment and his desire to be brought to trial upon said charge * * *. In the event such action is not brought to trial within the 90 days herein provided the court in which such charge is pending must * * * dismiss such charge.'

Valdespino's contention is that he was entitled under section 1381 to have the outcome of his Santa Clara County probation revocation speedily resolved, so that in the event he was to be sentenced to jail or prison he might seek to have such time run concurrently with his los Angeles sentence. He relies on the language of section 1381 requiring, under certain circumstances, that a prisoner be 'brought to trial' on a charge other than that for which he is serving time. He insists that his 'trial' on the Santa Clara County grand theft change still continued and that it would not be completed until he was 'sentenced' on his probation violation.

The authority offered in support of Valdespino's contentions is People v. Brown, 260 Cal.App.2d 745, 67 Cal.Rptr.288. That case concerned Penal Code section 1381.5, a close counterpart of section 1381, affecting federal prisoners against whom state criminal charges are pending. Brown had pleaded guilty to a felony in the Los Angeles Superior Court. However, because of a federal arrest and prison sentence he was unable to appear for his state probation and sentence hearing. While in a federal prison he made a request of the Los Angeles District Attorney, as provided by section 1381.15, that he be 'brought to trial' on the state charge. No effort was made to comply with Brown's request. Some years later upon completion of the federal sentence he was returned to the superior court. A motion to dismiss the charge under section 1381.5 was made and denied, and he was granted probation. On appeal from the order granting probation the Court of Appeal held that the motion to dismiss should have been granted, stating (pp. 750-751, 67 Cal.Rptr. at p. 292):

'Although in certain contexts the expression 'brought to trial' might possibly encompass only that portion of the criminal proceeding which results in a determination of the accused's guilt or innocence, it is clear that as used in section 1381.5 it includes the entry of a judgment or other final, appealable order. The imposition of sentence is an essential part of the speedy trial guaranteed to all accused. * * *'

We are asked to extend the holding of People v. Brown to the facts of Valdespino's case. We have concluded that we may not reasonably do so and that the order appealed from must be affirmed. Our reasons follow. $yInitially, we note the distinction between the two cases. In People v. Brown there had been neither sentence nor grant of probation following the conviction by guilty plea; there was 'no judgment or other final appealable order.' In the case at bench after conviction and upon arraignment for judgment Valdespino moved for probation. After a hearing an order granting him probation (a final appealable order--Pen.Code, § 1237) was made. Approximately two years later, admittedly for good cause, his probation was revoked.

We note also that section 1381 is a legislative implementation of the constitutional right of one charged with crime to a speedy trial. As pointed out in Barker v. Municipal Court, 64 Cal.2d 806, 812-813, 51 Cal.Rptr. 921, 415 P.2d 809, the purpose of the Constitution and of section 1381 is: (1) to protect the accused against prolonged imprisonment, (2) to relieve him of the anxiety and public suspicion attending an unresolved criminal charge, (3) to prevent his exposure to the hazards of a trial after a great lapse of time, with witnesses unavailable or their memories dulled, and (4) to avoid the possibility of concurrent sentences being denied him.

These considerations seem wholly inapplicable to Valdespino. His guilt on the earlier Santa Clara County charge has been conclusively determined. The anxiety and public suspicion attending an unresolved criminal charge and a lapse of time with attending problems of missing or forgetful witnesses could not concern him. Nor could he be prejudiced by the possibility of prolonged imprisonment or denial of the possibility of concurrent sentences. Upon completion of his Los Angeles sentence and appearance before the Santa Clara County Superior Court, that court, if so minded (as in fact it appears to have been), could consider the time served in southern California following the revocation of Valdespino's probation. Thus an opportunity to secure the equivalent of concurrent sentences was not denied him.

'A trial is an examination before a competent tribunal, according to the law of the land, of the facts or law put in issue in a cause for the purpose of determining such issue.' (Tregambo v. Comanche Mill and Mining Co., 57 Cal. 501, 505; Southern Pacific Co. v. Seaboard Mills, 207 Cal.App.2d 97, 102, 24 Cal.Rptr. 236; Smith v. City of Los Angeles, 84 Cal.App.2d 297, 301-302, 190 P.2d 943.) Ordinarily the trial ends with the verdict or other decision of the trier of fact. (Connolly v. Ashworth, 98 Cal. 205, 206, 33 P. 60; People v. Turner, 39 Cal. 370, 371; Haupt v. La Brea Heating etc. Co., 125 Cal.App.2d Supp. 888, 889, 270 P.2d 125; Reimer v. Firpo, 94 Cal.App.2d 798, 800, 212 P.2d 23; People v. Lopez, 43 Cal.App.2d Supp. 854, 865-866, 110 P.2d 140; People v. White, 5 Cal.App. 329, 340, 90 P. 471; People v. Stokes, 5 Cal.App. 205, 214, 89 P. 997.) And it has been held that a 'hearing for revocation of probation is not a trial.' (Emphasis added.) (People v. Blankenship, 16 Cal.App.2d 606, 609, 61 P.2d 352, 353; see also People v....