People v. Vila

• Citation: 208 Cal.Rptr. 364,162 Cal.App.3d 76
• Decision Date: 27 November 1984
• Docket Number: Cr. 44823
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. Jaime Abraham VILA, Defendant and Respondent.

Page 364

208 Cal.Rptr. 364

162 Cal.App.3d 76

The PEOPLE, Plaintiff and Appellant, v. Jaime Abraham VILA, Defendant and Respondent.

Cr. 44823.

Court of Appeal, Second District, Division 7, California.

Nov. 27, 1984.

Robert H. Philibosian, Dist. Atty., Los Angeles County, Donald J. Kaplan and Roderick W. Leonard, Deputy Dist. Attys., for plaintiff and appellant.

Wilbur F. Littlefield, Public Defender, Los Angeles County, Laurence M. Sarnoff, Francis J. Bardsley, Michael Adelson, Morton P. Borenstein and John Hamilton Scott, Deputy Public Defenders, for defendant and respondent.

THOMPSON, Associate Justice.

The People appeal (Pen.Code, § 1238, subd. (a)(8)) from the order dismissing for lack of a speedy trial an indictment filed against defendant Jaime Vila. Defendant, a federal prisoner, was not informed of the pending indictment until four years after it was returned. We will conclude that Penal Code section 1381.5 ¹ has an implicit notice requirement and the trial court properly found, on balance, a federal constitutional violation. Accordingly, we will affirm the judgment.

Factual Background

On September 13, 1978, a "secret" indictment (case No. A345700) by the grand jury was filed in Los Angeles Superior Court, charging defendant and two others with two counts of murder and one count of conspiracy in 1975. A week prior to the return of the indictment, defendant was arraigned in Los Angeles Superior Court on an information in another case, No. A339367, charging him with a 1976 murder. At about the time the indictment was returned, defendant, in federal custody, was transferred from California to New York, for prosecution of federal and state charges there. ²

Apparently a bench warrant (which may have been based on this case) was entered into the National Crime Information Computer network in 1978. But no detainer was ever filed with federal authorities showing there was an untried indictment against defendant.

In late October 1979, the head deputy in charge of the special trials division and another deputy district attorney discussed whether to bring defendant back from the "institution back East" for trial on the indictment case. It was decided to try defendant's codefendant Lopez separately and not to make any effort to bring defendant Vila to trial since he was not deemed necessary or desirable for successful prosecution of the codefendant, and could not be subjected to the death penalty.

On January 9, 1980, defendant was committed to the federal prison in Lompoc, California, and remained in California until August 1981 when he was transferred to the federal prison in Lewisberg, Pennsylvania. Defendant was eventually returned to California pursuant to the District Attorney's request for a detainer and temporary custody in late June 1982 on the outstanding untried information in the other case, No. A339367. On August 2, the federal authorities offered to deliver temporary custody.

Neither the defendant nor the Public Defender's office, which was representing him on the information, were aware of the existence of the 1978 indictment until October 1982 when defendant was brought into court and arraigned on that case.

Defendant moved to dismiss both the information in case No. A339367 and the indictment herein on the ground that he was denied his statutory and constitutional rights to a speedy trial. Following an extensive evidentiary hearing, the superior court denied the motion to dismiss the information but granted the motion to dismiss the indictment. This appeal from the dismissal of the indictment followed. ³

Section 1381.5 Contains An Inherent Notice Requirement

The California Legislature has enacted specific statutory provisions declaratory of the constitutional right to a speedy trial. (Barker v. Municipal Court (1966) 64 Cal.2d 806, 811, 51 Cal.Rptr. 921, 415 P.2d 809.) These are viewed as being " 'supplementary to and a construction of' the Constitution." (People v. Wilson (1963) 60 Cal.2d 139, 145, 32 Cal.Rptr. 44, 383 P.2d 452.)

Defendant contends he was entitled to a dismissal under section 1382, the general speedy trial statute, because he was not brought to trial within 60 days after the finding of the indictment. ⁴ Defendant cannot properly complain that his right under section 1382 to a speedy trial was violated because this statute "is inapplicable where the defendant is already serving time for another offense, as in the case at bench." (People v. Rowden (1969) 268 Cal.App.2d 868, 872-873, 74 Cal.Rptr. 448; accord People v. Jacobs (1972) 27 Cal.App.3d 246, 260, 103 Cal.Rptr. 536.) As our Supreme Court noted in Sykes v. Superior Court (1973) 9 Cal.3d 83, 89, footnote 6, 106 Cal.Rptr. 786, 507 P.2d 90: "The 60-day period [of section 1382] applies only ... when the accused is not otherwise incarcerated.... In all instances where the accused is incarcerated, the 90-day provisions of sections 1381 and 1381.5 apply."

Defendant's statutory right to a dismissal for lack of a speedy trial is governed by section 1381.5. ⁵ 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, such as defendant, with an analogous 90-day right. (See Barker v. Municipal Court, supra, 64 Cal.2d at p. 811, 51 Cal.Rptr. 921, 415 P.2d 809; Selfa v. Superior Court (1980) 109 Cal.App.3d 182, 185-188, 167 Cal.Rptr. 153; CEB Speedy Trial: Prac. & Procedures (1981) §§ 2.39, 2.48 at pp. 96, 104.) Accordingly, case law construing section 1381 is persuasive authority for interpreting section 1381.5.

By its specific terms, section 1381.5 requires an affirmative act by the prisoner- --a "request"--in order to trigger accrual of the right to dismissal. Thus, like its counterparts applying to prisoners in California ( § 1381; see People v. Cave (1978) 81 Cal.App.3d 957, 964, 147 Cal.Rptr. 371) and out-of-state ( § 1389; see People v. MacDonald (1973) 36 Cal.App.3d 103, 114-115, 111 Cal.Rptr. 266), section 1381.5 has a demand requirement. (See In Re Shute (1976) 58 Cal.App.3d 543, 548-550, 130 Cal.Rptr. 270; CEB Speedy Trial, supra, § 2.50, p. 106.) The mere fact of an incarceration juxtaposed with the filing of new charges does not start the statutory time running.

Here, there was no demand for trial on the charges in the indictment. ⁶ But before defendant could be expected to make a request for trial, he must be aware of a pending charge. It is undisputed that defendant herein never knew that there was an outstanding untried indictment which had been filed against him.

The trial court properly concluded that the real issue herein was notice, not demand, and that defendant was entitled to be notified of the indictment so that he could choose to exercise his right to a speedy trial.

Contrary to the People's contention, there is an inherent implicit notice requirement in a statute such as section 1381.5. The prosecution had a duty to promptly notify defendant of the pending charges and to inform him of his right to demand trial under the relevant statutory provision. (See In re Mugica (1968) 69 Cal.2d 516, 523-524, 72 Cal.Rptr. 645, 446 P.2d 525; People v. Brusell (1980) 108 Cal.App.3d 712, 717-718, 166 Cal.Rptr. 690; People v. Cave, supra, 81 Cal.App.3d 957, 963-964, 147 Cal.Rptr. 371; cf. People v. Brown (1968) 260 Cal.App.2d 745, 67 Cal.Rptr. 288 [mandatory prosecutorial duty under § 1381.5 to make prompt inquiry of federal authorities whether and when defendant can be released for trial or sentence].)

"The constitutional right to a speedy trial protects every accused; a convict is not excepted." (In re Mugica, supra, 69 Cal.2d at pp. 522-523, 72 Cal.Rptr. 645, 446 P.2d 525; Barker v. Municipal Court, supra, 64 Cal.2d at p. 813, 51 Cal.Rptr. 921, 415 P.2d 809.) In Mugica, supra, in discussing section 1381, our Supreme Court pointed out that where a statute on the speedy trial right of an incarcerated defendant is silent on the duty to notify the prisoner, "the constitutional rights ... to a speedy trial require that notice be given that a charge has been made against the prisoner within a reasonable time thereafter so that if he wishes to do so he may avail himself of the remedy provided therein." (69 Cal.2d at p. 524, 72 Cal.Rptr. 645, 446 P.2d 525.)

In People v. Cave, supra, 81 Cal.App.3d 957, 147 Cal.Rptr. 371, a section 1381 case involving a California prisoner who was not given notice, the Court of Appeal explained: "[I]n order to activate the demand requirement, the law establishes that such prisoner is entitled to reasonably prompt notice of the pending charge through the filing of a 'detainer', 'hold', or similar document; otherwise a prosecutor could refrain from lodging a 'detainer' or 'hold', thereby thwarting the prisoner's right to demand a speedy trial." (Id., at pp. 963-964, 147 Cal.Rptr. 371.)

The burdens on the prosecutor of filing a California detainer against an inmate of a federal correctional institution outside of California do not differ significantly from those of filing a detainer against one confined in California. (Hayes v. Superior Court (1971) 6 Cal.3d 216, 223, 98 Cal.Rptr. 449, 490 P.2d 1137.) Thus, we conclude that the prosecutorial duty to notify an accused of pending California charges, by detainer or otherwise, applies to prisoners incarcerated outside of, as well as within, the jurisdiction.

Accordingly, we agree with the American Bar Association:

"To protect the right to a speedy trial of a person serving a term of imprisonment either within or without the jurisdiction, it should be provided ... that:

"(a) If the prosecuting attorney knows that a person charged with a criminal offense is serving a term of imprisonment in a penal institution of that or another jurisdiction, he must promptly:

"(i) [U]ndertake to obtain the presence of the prisoner for trial; or

"(ii) [C]ause a detainer to be filed with the official...