The People v. Mccloud

• Decision Date: 30 December 2010
• Docket Number: Super. Ct. No. 043365,C061846
• Parties: THE PEOPLE, Plaintiff and Respondent, v. DONALD RALPH MCCLOUD, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

THE PEOPLE, Plaintiff and Respondent,

v.DONALD RALPH MCCLOUD, Defendant and Appellant.

C061846

Super. Ct. No. 043365

COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Yolo)

Filed: December 30, 2010

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Seven and one-half years after the crime, defendant was convicted by plea of first degree burglary (Pen. Code, § 459) ¹ and he admitted a prior serious felony (§§ 667, subds. (b)-(i) & 1170.12). On appeal, he contends the prosecution's failure to lodge a detainer against him pursuant to the Interstate Agreement on Detainers (§ 1389) while he was imprisoned in Texasviolated his right to a speedy trial. He further contends this failure was prejudicial misconduct by the prosecutor.

Defendant's no contest plea limits what he can raise on appeal. Under California law, while he may raise a violation of the Interstate Agreement on Detainers, he cannot raise a claim that his speedy trial rights were violated. Since his contention rests on a denial of speedy trial rights rather than a statutory violation, it is not cognizable on appeal. Nor has defendant shown prosecutorial misconduct. We affirm the conviction, but because the trial court failed to orally pronounce sentence, we remand for sentencing.

FACTS

In July 2001, defendant entered a West Sacramento, Yolo County residence and took multiple items of property.

During the investigation of this crime, a crime scene investigator lifted seven latent prints from the residence, including a print found on a red tin box in the bedroom. Two of these prints were sent to the Department of Justice in April of 2002, but no matches were found. In 2004, all seven of the prints were resubmitted because the other five palm prints could now be compared as the automated palm print system was up and running. This time a print on the red tin matched the defendant.

In May 2004, a criminal complaint charging defendant with the 2001 first degree burglary was filed in Yolo County. Over four years later, in December 2008, the complaint was amended toadd a second count of grand theft of a firearm and two "strike" priors of residential burglaries in Texas. This amendment came after defendant was released from prison in Texas, arrested by the U.S. Marshall, and extradited back to California.

Defendant filed a motion to dismiss for lack of prosecution. Defendant argued the prosecution had a duty to inform him of the pending charges and to inform him of his right to demand trial. Defendant claimed the prosecution's failure to comply with this duty violated his right to due process. Defendant also asserted that count 2 of the amended complaint was barred by the statute of limitations. The People conceded this point. Count 2 was dismissed, but the court denied defendant's motion as to count 1.

After defendant was held to answer, he renewed his motion to dismiss for lack of prosecution.

After this motion was denied, defendant accepted a plea bargain. Under the terms of the bargain, defendant pled no contest to count 1 and admitted one prior serious felony in exchange for dismissal of the other prior serious felony and a sentence of eight years (the midterm of four years doubled).²

Defendant appealed and obtained a certificate of probable cause.

DISCUSSION

I.Issues Cognizable on Appeal After Plea

Defendant's appeal raises issues under both the Interstate Agreement on Detainers (IAD) and the constitutional right to a speedy trial. Only the former is cognizable on appeal after a conviction by plea.

"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. [Citation.] 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. [Citation.]" (People v. Gutierrez (1994) 30 Cal.App.4th 105, 108.)

"As a general rule a guilty plea does not constitute a waiver of a violation of the IAD properly asserted before the plea is entered. [Citations.]" (People v. Brooks (1987) 189 Cal.App.3d 866, 870, but see People v. Nitz (1990) 219 Cal.App.3d 164, 170 [recognizing waiver of IAD rights either by express waiver or guilty plea].)³ In his two motions to dismiss for lack of prosecution, defendant raised the claim that the prosecution failed to give him proper notice under the IAD. Accordingly, he may assert his claim of an alleged violation of the IAD on appeal.

The denial of speedy trial rights is not cognizable on appeal following a plea of guilty or no contest, even if the defendant has obtained a certificate of probable cause. (People v. Aguilar (1998) 61 Cal.App.4th 615, 617; People v. Lee (1980) 100 Cal.App.3d 715, 717.)

II.Defendant Has Not Shown a Violation of the IAD

The IAD "is a compact among 48 States, the District of Columbia, Puerto Rico, the Virgin Islands, and the United States." (Carchman v. Nash (1985) 473 U.S. 716, 719 .) Its purpose is "'to encourage the expeditious and orderly disposition of [outstanding] charges and determination of the proper status of any and all detainers based on untried indictments, informations or complaints.' [Citation.]" (Id. at p. 720 .) "To achieve this purpose, Art. III of the [IAD] establishes a procedure by which a prisoner incarcerated in one party State (the sending State) may demand the speedy disposition of 'any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner' by another party State (the receiving State). Specifically, Art. III requires the warden to inform the prisoner that a detainer has been lodged against him and that he may request final disposition of the indictment, information, or complaint upon which the detainer is based. If the prisoner makes such a request, the warden must forward it, together with a certificate providing certain information aboutthe prisoner's terms of confinement, to the appropriate prosecuting official and court of the receiving State. The authorities in the receiving State then must bring the prisoner to trial within 180 days, absent good cause shown, or the court must dismiss the indictment, information, or complaint with prejudice, and the detainer will cease to be of any force or effect." (Id. at pp. 720-721 , fn. omitted.)

Both California and Texas are signatories to the IAD. (§ 1389; Vernon's Ann. Texas C.C.P., art. 51.14.)

"For the IAD to apply, three conditions must exist: '(1) there is an untried indictment, information or complaint pending in a California court; (2) the defendant named in said untried indictment, information or complaint is a prisoner serving time in a foreign jurisdiction; and (3) the district attorney lodges a detainer based on such untried indictment, information or complaint against the prisoner in such foreign jurisdiction.' [Citation.]" (People v. Lavin (2001) 88 Cal.App.4th 609, 616.)

While the first two requirements are met here, the third is not; no detainer was lodged. A formal detainer must be filed before an inmate may invoke the provisions of the IAD. (People v. Brooks, supra, 189 Cal.App.3d 866, 874.) "The lodging of a detainer or presenting a request is discretionary with the district attorney." (People v. Castoe (1978) 86 Cal.App.3d 484, 490.) Since the prosecutor did not lodge a detainer againstdefendant, the provisions of the IAD do not apply. Accordingly, there is no violation of the IAD for defendant to raise on appeal after his no contest plea.

Defendant contends the district attorney had a duty to file a detainer. He contends similar statutes that address prompt resolution of actions pending against imprisoned defendants, such as sections 1381 and 1381.5, contain an implied duty to notify defendant of pending charges and such a requirement is necessary to preserve a defendant's right to a speedy trial.

Section 1381 provides that a person serving a term in a state prison, against whom another criminal charge was either pending at the time his term began or was filed during the time he was serving it, has a right to have the new charge brought to trial in 90 days after written notice to the district attorney, and, if the action is not brought to trial within the 90-day period, the court, either on its own motion, on the motion of the district attorney, or the person confined or his counsel, must dismiss the charge.

In People v. Cave (1978) 81 Cal.App.3d 957, the defendant came within the provisions of section 1381, but the prosecution made no effort to notify him of the pending charges so that he could demand a speedy trial under the statute. The court found, "in 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 couldrefrain from lodging a 'detainer' or 'hold, ' thereby thwarting the prisoner's right to demand a speedy trial. [Citations.] Accordingly, when the prosecuting authorities know that the person charged with a criminal offense in their jurisdiction is serving a...