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Court of Appeal, First District, Division 3, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Jerome McDONALD, Defendant and Appellant.


Decided: August 18, 1983

Quin Denver, Public Defender, Michael S. McCormick and David R. Feld, Deputy Public Defenders, San Francisco, for defendant and appellant. John K. Van De Kamp, Atty. Gen., Daniel J. Kremer, Chief Asst. Atty. Gen., Crim. Div., William D. Stein, Asst. Atty. Gen., Ann K. Jensen, Kenneth C. Young, and Charles M. Buzzell, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

On appeal from a judgment of conviction for grand theft, appellant contends that the trial court erred in denying his motion to dismiss the action because he was deprived of his statutory right to a speedy trial pursuant to Penal Code section 1381.   We do not reach that issue, but affirm because appellant has failed to meet his burden of showing prejudice from the alleged improper delay.


 On October 23, 1980, a complaint was filed in the Municipal Court of the Southern Judicial District of San Mateo County charging appellant with theft of property valued at over $200.  (Pen.Code, § 487, subd. 1.1 )  Appellant pled not guilty and was ordered to be released on his own recognizance (OR).   Preliminary hearing was set for December 5, 1980, after appellant waived time.

Although appellant was ordered to be released, he was actually picked up by Orange County officials, who had placed a hold on him, and was taken to that county, where he was committed to prison in January 1981.

On November 7, 1980, a declaration and motion to revoke appellant's OR were filed.   A bench warrant for appellant's arrest was issued to the Menlo Park Police Department, setting bail at $5,000.   On December 4, 1980, the preliminary hearing date was vacated.

Appellant next appeared in San Mateo on June 3, 1981.   On June 4, 1981, he pled nolo contendere to the theft charge, was certified to the superior court pursuant to Penal Code section 859a, and was ordered to appear there on July 2, 1981.   When he did so on that date, appellant was represented by new counsel, who took the position that judgment should not be pronounced because the action was subject to dismissal under Penal Code section 1381.

On July 10, 1981, the superior court set aside the plea and certification from the municipal court and remanded the case to the lower court for hearing on appellant's Penal Code section 1381 motion.   Hearing was held on August 10, 1981, at the conclusion of which the municipal court denied the motion to dismiss.

A preliminary hearing was held on August 14;  appellant was held to answer to the charge in the complaint.   On August 26, 1981, the district attorney filed an information charging appellant with grand theft and with a prior separate prison term.  (Pen.Code, §§ 487, subd. 1, 667.5, subd. (b).)  Appellant pled not guilty and denied the enhancement.

On September 4, 1981, appellant submitted the matter on the preliminary hearing transcript and was found guilty.   Appellant again asserted that judgment should not be pronounced because he was denied his right to speedy trial under Penal Code section 1381.   The superior court denied relief and, in accordance with the agreement regarding submission on the preliminary hearing transcript, dismissed the enhancement allegation and imposed a term of eight months, to run consecutively with a prison term appellant was then serving.  (See Pen.Code, §§ 489, 18, 1170.1, subd. (a).)  This appeal followed.


The Offense

The facts of the offense are not pertinent to this appeal.   Briefly stated, the evidence adduced at the preliminary hearing showed that appellant took a gold coin worth over $800 from the owner, without her permission, sold it to a third person, and admitted to a Menlo Park police officer that he had done so.

The Penal Code Section 1381 Motion

Hearing was held in municipal court on appellant's motion to dismiss pursuant to Penal Code section 1381 on August 10, 1981.   Appellant testified as follows.

After the order for appellant's release on OR in this case (hereafter sometimes referred to as “the pending case” ) on October 23, 1980, appellant was not released, because the San Mateo County Sheriff's Department learned that he had a “hold” from Orange County.   Within two days Orange County officials picked him up and took him there, where, in late January 1981, he was committed to state prison.2

Appellant arrived at the California Institution for Men (CIM) in Chino on February 4, 1981.   His alleged attempt to invoke Penal Code section 1381 was brought out in testimony which we set out in the margin.3  Appellant testified that upon arriving at CIM, he told Department of Corrections officials that he had a case pending in San Mateo County and that he wanted to go back there.   He was given a form to fill out, which he did.   The officials prepared a form letter, which they mailed.   Appellant was not consulted about where it should be sent.

The form letter referred to in appellant's testimony was introduced in evidence.   It is on CIM stationery, is addressed to the police chief of Menlo Park, is dated February 24, 1981, refers to appellant by name, and reads, in pertinent part:  “Subject was received by the Department of Corrections for commitment to State Prison on 2–4–81 from Orange County for 532 PC & 1319.4 PC [false pretenses and failure to appear].  He may be WANTED in your jurisdiction for Poss of Stolen Property.  (496 PC)  Please let us know if you have an indictment or warrant outstanding against him and if you would like to place a detainer.”   The letter is signed by the CIM correctional case records manager.


Penal Code section 1381 provides in relevant part:  “Whenever a defendant has been convicted, in any court of this state, of the commission of a felony ․ and has been sentenced to and has entered upon a term of imprisonment in a state prison ․ 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, complaint, or any criminal proceeding wherein the defendant remains to be sentenced, the district attorney of the county in which such matters are pending shall bring the same defendant to trial or for sentencing 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 or for sentencing ․  In the event that the defendant is not brought to trial or for sentencing within the 90 days as herein provided the court in which such charge or sentencing is pending must, on motion or suggestion of the district attorney, or of the defendant ․ or on its own motion, dismiss such action․”

Appellant acknowledges that literal compliance with Penal Code section 1381 is normally required (e.g., People v. Ruster (1974) 40 Cal.App.3d 865, 873, 115 Cal.Rptr. 572), but he argues that this rule should not apply where, as here, the “technical defects” in his section 1381 notice are attributable not to the prisoner but to the prison official upon whom he reasonably relied.   He argues persuasively by analogy to People v. Slobodion (1947) 30 Cal.2d 362, 181 P.2d 868, and its progeny, which granted relief to prisoners who filed late notices of appeal because of delay attributable to state employees.   The People counter that appellant has not made a demand within the meaning of section 1381, which, of course, simply begs the question.

The purpose of Penal Code section 1381 “is to permit a defendant to obtain concurrent sentencing at the hands of the court in which the earlier [here the San Mateo] proceeding is pending, if such is the court's discretion.   [Citations.]”  (Boles v. Superior Court (1974) 37 Cal.App.3d 479, 484, 112 Cal.Rptr. 286.)  “That section was placed in the law so that a prisoner could clean up pending charges as well as charges arising while in a prison status so that he would not have these charges hanging over him and waiting for him on his release.”  (People v. Simpson (1973) 30 Cal.App.3d 177, 181, 106 Cal.Rptr. 254.)

To these ends a prisoner is entitled to “reasonably prompt notice of the pending charge through the filing of a ‘detainer,’ ‘hold,’ or similar document ․”  (People v. Cave (1978) 81 Cal.App.3d 957, 964, 147 Cal.Rptr. 371), and to be informed “of his right to demand a trial pursuant to section 1381.”  (People v. Brusell (1980) 108 Cal.App.3d 712, 717, 166 Cal.Rptr. 690, citing In re Mugica (1968) 69 Cal.2d 516, 523–524, 72 Cal.Rptr. 645, 446 P.2d 525.)

Although appellant admittedly knew of the pending case, nothing in the record indicates that San Mateo County filed a detainer or hold as to him.4  Since it is the filing of such detainer which triggers the prison officials' duty to inform the prisoner of his right to demand trial under Penal Code section 1381 (ibid.), 5 it appears that the fault, if any, in this case rests not with the Department of Corrections, as appellant argues, but with San Mateo County officials for their apparent failure to file a detainer in response to the form letter sent by CIM.

As to the appropriate remedy for this apparent failure on the part of public officials, the reported decisions are few.   In People v. Ruster, supra, 40 Cal.App.3d 865, 115 Cal.Rptr. 572, upon which the People rely, the defendant argued that his failure to comply technically with Penal Code section 1381 was excused because of “justifiable reliance upon advice given him by state agents.”  (Id., at p. 873, 115 Cal.Rptr. 572.)   This claim was rejected because defendant had failed to present any evidence tending to prove the point.  (Id., at pp. 873–874, 115 Cal.Rptr. 572.)   This fact distinguishes Ruster from the case at bench and offers no guidance as to appellant's remedy.

Reynolds v. Superior Court (1980) 113 Cal.App.3d 510, 169 Cal.Rptr. 868, which the People cite, is also distinguishable on its facts.   There the evidence was conclusive that the defendant had actual knowledge of the terms of Penal Code section 1381, yet he sent his notice to the court clerk instead of to the district attorney, allegedly upon advice of a jail employee.  (Id., at p. 513, 169 Cal.Rptr. 868.)   The court held that under these facts it would not find a “constructive” compliance with the statute.   (Id., at pp. 514–515, 169 Cal.Rptr. 868.)   It noted in dictum, however, that a prisoner who is erroneously advised by prison authorities is not without a remedy, citing People v. Cave, supra, 81 Cal.App.3d 957, 147 Cal.Rptr. 371.  (Reynolds v. Superior Court, supra, 113 Cal.App.3d at p. 515, 169 Cal.Rptr. 868.)

In Cave the prosecuting authorities in the pending case never placed a hold or detainer on defendant, and, unlike appellant herein, he had no actual notice of the pending charge (People v. Cave, supra, 81 Cal.App.3d at p. 961, 147 Cal.Rptr. 371), and therefore no opportunity to comply with Penal Code section 1381 (id., at p. 964, 147 Cal.Rptr. 371).   The Court of Appeal declined to apply section 1381 “by analogy” (id., at p. 964, 147 Cal.Rptr. 371), and held “that where no ‘hold,’ ‘detainer,’ or similar document has been placed on a prisoner which would alert him to the right to exercise his choice under Penal Code section 1381, the failure to request trial under that statute is excused and the standard to apply to a claim of denial of a speedy trial is the same basic test for such a claim where no specific statute is involved, i.e., by ‘weighing the prejudicial effect of the delay on defendant against any justification for the delay.’  (People v. Hannon [1977] 19 Cal.3d 588, at p. 608 [138 Cal.Rptr. 885, 564 P.2d 1203].)”  (People v. Cave, supra, 81 Cal.App.3d at p. 965, 147 Cal.Rptr. 371.)   The court proceeded to apply the test and found prejudice to defendant (a missing witness) with no justification.   Accordingly, the judgment of conviction was reversed.  (Id., at pp. 965–967, 147 Cal.Rptr. 371.)

Cave, too, is distinguishable on its facts from the case before us, for here appellant concedes that he was aware of the pending charge but alleges that he did all he reasonably could be expected to do to comply with Penal Code section 1381.   Nevertheless, Cave is persuasive authority for the proposition that even if appellant herein is not deemed to have complied with section 1381, his failure should be excused.

 Had appellant sought pretrial review by writ of the lower courts' denial of his Penal Code section 1381 motions, we would be faced with the question whether his actions should be construed as compliance with section 1381, for if they were, he would be entitled to dismissal without a showing of prejudice.   We need not resolve that question, however, since in either case (compliance or excused compliance), post-trial relief requires a showing of prejudice.  “When an accused seeks pretrial relief for a violation of his statutory right to a speedy trial, he is not obliged to show that he has been prejudiced by the delay.  [Citation.]  If no good cause for the delay is shown, the court must dismiss the charges, regardless of its assessment of how burdensome the accused might have found the delay.  [Citation.]  However, [the California Supreme Court] has held that after a judgment of conviction, a showing of actual prejudice is required.  [Citation.]”  (Owens v. Superior Court (1980) 28 Cal.3d 238, 252, fn. 15, 168 Cal.Rptr. 466, 617 P.2d 1098, emphasis added;  see also People v. Manina (1975) 45 Cal.App.3d 896, 120 Cal.Rptr. 51.)

 Appellant has not met his burden of showing actual prejudice.   There is no allegation of missing witnesses or lapsed memory.  (Cf. People v. Cave, supra, 81 Cal.App.3d 957, 147 Cal.Rptr. 371.)   Had the CIM letter of February 24, 1981, been a proper Penal Code section 1381 notice, appellant's prison term would be no shorter.6

 Counsel argued to the trial court that denial of his Penal Code section 1381 rights deprived appellant of the possibility of receiving concurrent terms and that he was thereby prejudiced because in the future the Orange County term and that imposed in the pending action would be considered two priors.   This is not correct.   It is now settled that “as long as there is ‘a continuous completed period of prison incarceration,’ a defendant who has served concurrent or consecutive prison sentences on various commitments is deemed to have served only one prior prison term for the purpose of the enhancement provisions of Penal Code section 667.5.”  (People v. James (1980) 102 Cal.App.3d 728, 733, 162 Cal.Rptr. 548;  cf. People v. Ruiz (1982) 130 Cal.App.3d 758, 181 Cal.Rptr. 875, hg. den., June 9, 1982 [initial commitment expired prior to commencement of later commitment, though defendant imprisoned continuously];  People v. Green (1982) 134 Cal.App.3d 587, 184 Cal.Rptr. 652, no petn. for hg. [insufficient evidence to establish prior prison term completed];  see also In re Kelly (1983) 33 Cal.3d 267, 188 Cal.Rptr. 447, 655 P.2d 1282.)

Counsel on appeal urges that reversal would have “the salutary effect of encouraging the state to impress upon its representatives the importance of honoring the substantial rights of those whom it has imprisoned.”   We trust that publication of this opinion will have the desired effect.

The judgment is affirmed.


1.   We note that Penal Code section 487 was subsequently amended to provide that theft of property valued at over $400 is grand theft.   (Stats. 1982, ch. 80, § 2, No. 2 West's Cal.Legis. Service, p. 384.)   This amendment applies only to crimes committed on or after January 1, 1983, and is not to be given retroactive effect.  (Stats.1982, ch. 935, § 2, No. 9 West's Cal.Legis. Service, p. 4985;  People v. Holland (1983) 141 Cal.App.3d 795, 190 Cal.Rptr. 552.)   In any event, appellant took property worth more than $400.

2.   Discussion between the court and appellant at the preliminary hearing in this matter indicated that appellant had been on probation in Orange County and that the prison commitment was pursuant to probation revocation.

3.   (Questions are by appellant's attorney, Dennis Woodman;  answers are appellant's.)“Q ․ When you went to the Department of Corrections, did you advise the Department of Corrections that you had a pending case in San Mateo County?“A Yes.“Q Did you ask them for whatever necessary papers?“A Yes.“Q What did they tell you?“A They said they had a form, and to fill it out and send it in, and that would act as an inquiry in bringing me back to San Mateo County.“Q Did they give you a form?“A Yes.“Q What form did they give you?“A It's the form that I gave you.“Q Well, you told them you wanted to get back into San Mateo County?“A Yes.“Q And that's the form they gave you?“A Yes, it is.“Q Did you complete the form or did they?“A I completed it and handed it back to them.“Q Handwriting or typewriting?“A Handwriting.“․“Q Did they give you any instructions as to how this was to be handled?“A No.   There was a small form that I sent into the headquarters, and then they sent a form letter out.“Q Did you tell them that the case was actually pending?“A Yes.“Q I show you this document [defense exhibit A] and ask you if you have seen that document?“A That is a copy of the one that they sent.“Q You didn't send that?“A No.   They did.“Q You just gave them a form giving them the information?“A The form was clipped to this.   I don't know what happened to it.“Q But the information that was furnished was on a separate piece of paper;  is that correct?“A Yes.“Q You turned that in, and then they were the ones that addressed this?“A Yes.“․“Q Did they give you any document for you to sign and male [sic ] yourself?“A No.“Q The document that you have examined, did you, yourself, prepare it?“A No.“Q Who prepared it?“A They did.“․“Q Did you have anything to do with the determination to where it was to be mailed?“A No.“Q Who made the determination, as far as you know?“A They did.   That was the second request that I had sent in.“Q All right.   Just a minute.   When you say they, who do you mean?“A The Department of Corrections.“Q At no time did you elect to send this letter to the Chief of Police of Menlo Park?“A Never even had one.“Q At no time did they give you the election of where to send it?“A No.”

4.   This failure is difficult to explain, since the record shows that a bench warrant was “issued to MPPD” (presumably Menlo Park Police Department) on November 7, 1980, and the form letter from CIM was addressed to the chief of that department.

5.   See also California Department of Corrections, Case Records Manual, chapter 900, article 2, sections 910, 911.   Section 910 provides that the “correctional case records manager is responsible for notifying the inmate when a detainer (hold) is received ․”  Section 911 provides that if a detainer is received, “․ the inmate will be notified that he may request disposition of pending charges by filing a demand for trial in accordance with the provisions of Penal Code Section 1381․”

6.   It appears from the record that appellant's prison term on the Orange County commitment expired on December 1, 1981.   Had the February 24 letter been a proper Penal code section 1381 notice, the district attorney in the pending action would have had until late May 1981 to bring appellant to trial.   Had appellant gone to trial in late May or early June 1981 and then received the lowest concurrent base term for felony grand theft (16 months), that term would have expired in late September or early October 1982.   Deducting one-third of that term for conduct credit (see, e.g., People v. Collins (1981) 123 Cal.App.3d 535, 539–540, 176 Cal.Rptr. 696), appellant would have been released in late April or early May 1982.   In fact, he received a consecutive sentence of eight months, which, when reduced by one-third for conduct credit, assured his release in early May 1982.   Thus no prejudice has been shown.It does not appear from the record before us, including the reporter's transcript of the Orange County probation revocation proceedings, that the “hold” placed on appellant on or about October 23, 1980, was due to the conduct underlying the pending action.   Nor does it appear that his probation was revoked because of that conduct.   Rather, the revoking court seems to have been concerned with appellant's failure to meet a restitution condition of probation and his continued use of alcohol.   We therefore reject appellant's argument that he would have been entitled to Penal Code section 2900.5 credit in the pending action, rendering his sentence therein three months shorter.  (Cf., In re Atiles (1983) 33 Cal.3d 805, 191 Cal.Rptr. 452.)

BARRY-DEAL, Associate Justice.

WHITE, P.J., and FEINBERG, J., concur.

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