PEOPLE v. PRATT (1980)

In the early afternoon of June 2, 1977, Brian Bott and Richard Fillet left an establishment known as Abbey Road's San Diego. Defendant Gene Steve Pratt drove slowly by, took aim with his revolver, fired two shots, wounded both men. Pratt fled and was not apprehended until one and one-half months later when he was picked up by the federal authorities in Chicago, Illinois, and held pending hearing on revocation of a federal parole. Pratt was charged by the San Diego district attorney with two counts of assault with a deadly weapon (Pen.Code, § 245, subd. (a)) and using a firearm in the commission of the offense charged in count one (Pen.Code, § 12022.5).

On the day set for trial, Pratt waived the jury and the matter was submitted to the court for trial on the preliminary hearing transcript. Pratt was found guilty of an assault with a deadly weapon (count one) and use of a firearm in connection therewith. The second count was dismissed. Pratt then substituted attorneys and sought to withdraw his previous jury waiver and to dismiss the action. These motions were denied. Pratt was sentenced for the term prescribed by law on both the assault charge and the firearm use charge. These sentences run concurrently with any previously ordered state or federal sentence.

Pratt appeals, contending the charges against him should have been dismissed with prejudice pursuant to Penal Code section 1389,¹ “The Agreement on Detainers.” Pratt argues he has not been brought to trial within the 180-day period as required by that statute. Second and alternatively, he contends he has not been brought to trial within the 90-day time frame as required by section 1381.5 and for this further reason a dismissal is mandated.

I

To understand and resolve Pratt's contentions, it is first necessary to review both the chronology of events as well as the cited statutory provisions:

1. The shootings occurred on June 2, 1977.

2. Pratt fled but was arrested (Aug. 20, 1977) and detained by federal authorities in Chicago, Illinois, pending a federal parole violation hearing.

3. The San Diego authorities lodged a detainer on Pratt (Sept. 8, 1977) with the federal authorities in Chicago.

4. On November 23, 1977, Pratt wrote, mailed a letter requesting a speedy trial “under the provisions of the interstate agreement on detainers”; copies of the letter were sent to the San Diego district attorney and “state's attorney” and to the files of the Metropolitan Correctional Center in Chicago where Pratt was imprisoned.

5. On December 6, 1977, the District Attorney of San Diego County sent a letter to Pratt acknowledging receipt of his letter of November 24 but stating his office was unable to proceed with his return to San Diego because of the parole revocation hearings then pending in the federal court.

6. On December 6, 1977, Pratt's parole hearing was held and his parole was revoked December 15, 1977.

7. On December 27, 1977, Pratt again requested of the San Diego County District Attorney a speedy trial enclosing copies of his parole revocation papers.

8. On January 26, 1978, the District Attorney of San Diego County requested custody of Pratt to retain jurisdiction on the matter.

9. On January 30, 1978, defendant was received at the federal correctional institution in Milan, Michigan, to serve the balance of his federal term.

10. On February 6, 1978, the Department of Justice acknowledged the district attorney's custody request and on February 27, 1978, consented to return Pratt to San Diego.

11. On March 10, 1978, the San Diego County District Attorney received and forwarded an acceptance of custody to the United States government.

12. On April 5, 1977, the San Diego authorities picked up, took custody of Pratt from the federal prison in Michigan and returned him to San Diego.

13. On April 21, 1978, the preliminary hearing commenced in the municipal court. Pratt's counsel, however, was requested to be substituted out due to a conflict. Pratt agreed to the substitution and waived the bifurcation of the preliminary hearing. Upon Pratt's waiver of time of the preliminary hearing, it was continued, reset three days later when Pratt was bound over for trial in the superior court.

14. The case was set for trial in superior court on June 27, 1978, but continued over Pratt's objection because the prosecuting attorney was engaged in another trial. The case trailed from June 28 to June 29, 1978, without the consent of the defendant. It was again trailed from June 29 to June 30, 1978. On that date the trial took place.

II

The United States of America and the State of California are parties to an “Agreement on Detainers” (Agreement) incorporated (arts. I-IX), adopted into California law as Penal Code section 1389. Article III, subdivision (a) of section 1389 provides:

“Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint: provided that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner.” (Italics added.)

The Agreement adopted by the United States and other member jurisdictions, including California, sets forth the findings upon which it is based and its purpose in article I, section 1389. It notes that “charges outstanding against a prisoner, detainers based on untried indictments, informations or complaints, and difficulties in securing speedy trial of persons already incarcerated in other jurisdictions, produce uncertainties which obstruct programs of prisoner treatment and rehabilitation.” (Ibid.) The underlying purpose is to encourage the orderly expeditious disposition of such charges and to provide cooperative procedures among member states to facilitate such disposition.

Section 1389, article III, provides a procedure by which a prisoner against whom a detainer has been filed can demand a speedy disposition of the charges giving rise to the detainer. The warden of the institution in which the prisoner is incarcerated is required to inform him promptly of the source and contents of any detainer lodged against him and of his right to request final disposition of the charges. (Id., at subd. (c).) If the prisoner does make such a request, the jurisdiction that filed the detainer must bring him to trial within 180 days. (Id., at subd. (a).) The prisoner's request operates as a request for the final disposition of all untried charges underlying detainers filed against him by that state (id., at subd. (d)) and is deemed to be a waiver of extradition. (Id., at subd. (e).) Thus, a prisoner entitled to the protection of the Agreement who complies with the procedure set forth in section 1389, article III, subdivision (a), must be transported to the jurisdiction where the charges are pending and tried on those charges within the 180-day period of limitations, or the charges must be dismissed and any detainer based thereon ceases to have effect. (§ 1389, art. V, subd. (c).)

Pratt twice requested in writing, in the months of November and December 1977, the San Diego County District Attorney to return him for trial. Each demand expressly cited the Agreement on Detainers as the basis for the return. If we assume the requests did comply with the procedures set forth in section 1389, article III, subdivision (a), yet each was made before he entered upon his “term of imprisonment” on January 30, 1978.

Pratt claims his apprehension, detention by the federal authorities was an “entry upon the term of imprisonment” and therefore triggered his right to demand return for trial under section 1389, article III, subdivision (a), and the running of the 180-day period. Title 18, section 3568 of the United States Code provides the sentence of imprisonment of any person convicted of an offense shall commence to run on the date on which the person is received at the penitentiary, reformatory or jail for the service of such sentence. In United States v. Dobson, (3d Cir. 1978) 585 F.2d 55, 61, Dobson was awaiting state parole revocation proceedings when various federal detainers were lodged against him. Dobson moved to dismiss the federal indictment. The Court of Appeal refused on the ground the detainer act did not apply to persons awaiting parole revocation proceedings. Dobson had not commenced upon his “term of imprisonment”; therefore the Agreement on Detainers was not applicable.

Furthermore, the plain language of section 1389, article III, subdivision (a), indicates the detainer is to be lodged against a “prisoner.” While the term “prisoner” may in certain contexts have a broader meaning (Sahley v. County of San Diego, 69 Cal.App.3d 347, 138 Cal.Rptr. 34), the language of article III, subdivision (a), does not admit of this more encompassing usage. Subdivision (a) requires the prisoner to give notice of his place of imprisonment; the written request of the prisoner must be accompanied by a certificate of the appropriate official having custody of the prisoner stating the term of commitment under which the prisoner was being held, the time already served and the time remaining to be served. The foregoing language clearly is not applicable to a person who has yet to commence his prison term, who is simply in a holding facility or jail. Pratt's reliance upon People v. Wilson, 69 Cal.App.3d 631, 138 Cal.Rptr. 259, is inapposite. There, the demand for trial was made after the prisoner had commenced to serve his term of imprisonment.

Section 1389, article III, subdivision (a), does not apply until the following has occurred: (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; (3) the district attorney lodges a detainer based on such untried indictment, information or complaint against the prisoner in such foreign jurisdiction; and (4) the defendant has substantially complied with the procedural requirements of section 1389, article III, subdivision (a).² If any one of these four conditions is absent, the section does not apply. (Cf., People v. Castoe, 86 Cal.App.3d 484, 489, 490, 150 Cal.Rptr. 237.)

Pratt's demands for return for trial made in November and December 1977 were made before he entered upon his “term of imprisonment.” Pratt has made no demand conformable to section 1389, article III, subdivisions (a) or (b), after his entry upon his term of federal imprisonment, January 30, 1978. If it be assumed Pratt has substantially complied with the procedural requirement of the Agreement and his entry into the federal prison constituted the last step in such compliance, thus triggering the commencement of the running of the 180-day period, then Pratt still has no cause for complaint for he was in fact tried within 180 days (Jan. 30, 1978) of entry upon his term of imprisonment. He is not entitled to dismissal under section 1389, article III, subdivision (a).

III

Pratt also relies upon section 1381.5 which provides:

“Whenever a defendant has been convicted of a crime and has entered upon a term of imprisonment therefor in a federal correctional institution, and at the time of entry upon such term of imprisonment or at any time during such term of imprisonment there is pending in any court of this state any criminal 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, upon receiving from such defendant a request that he be brought to trial or for sentencing, shall promptly inquire of the warden or other head of the federal correctional institution in which such defendant is confined whether and when such defendant can be released for trial or for sentencing. If an assent from authorized federal authorities for release of the defendant for trial or sentencing is received by the district attorney he shall bring him to trial or sentencing within 90 days after receipt of such assent, unless the federal authorities specify a date of release after 90 days, in which event the district attorney shall bring the prisoner to trial or sentencing at such specified time, or unless the defendant requests, in open court, and receives, or, in open court, consents to, a continuance, in which event he may be brought to trial or sentencing within 90 days from such request or consent.

If a defendant is not brought to trial or for sentencing as provided by this section, the court in which the action is pending shall, on motion or suggestion of the district attorney, or representative of the United States, or the defendant or his counsel, dismiss the action.”

The Attorney General argues since Pratt asked specifically for return for trial under the Agreement and was returned under these provisions, he cannot now seek to have his case dismissed on the ground that there was no speedy trial under section 1381.5.

The Attorney General asserts Pratt “waived” his rights under section 1381.5 by seeking to be returned under section 1389, article III, subdivision (a), and finally that article III, subdivision (a), should be construed so as to supersede the rights granted a defendant under section 1381.5.

We have a fundamental duty to harmonize statutes to the end the legislative intent be fully effected. We are to give effect to every word and phrase of a statute if possible. (Moyer v. Workmen's Comp. Appeals Bd., 10 Cal.3d 222, 230-231, 110 Cal.Rptr. 144, 514 P.2d 1224.) Section 1389 places a duty on the federal government to deliver a prisoner to a state-signator within 180 days of request. Section 1381.5 creates a separate further and distinct right/duty relationship. Under section 1381.5, the State of California—not the federal government—has a statutory duty to try an accused within 90 days of request once the federal authorities agree to deliver the prisoner. These two statutes should be harmonized. Section 1389 is general, applying to all jurisdictions that consent to the duties it imposes. By contrast, section 1381.5 applies specifically to California, giving an accused a greater protection. To adopt the construction suggested by the Attorney General renders section 1381.5 void.

The 90-day period of section 1381.5 supplements the less stringent duty placed upon the parties' signators to the Agreement. A state statute or Constitution may, without offending constitutional or construction standards, create a greater right in a defendant than that granted by the federal law or Constitution. (Serrano v. Priest, 18 Cal.3d 728, 764, 135 Cal.Rptr. 345, 557 P.2d 929; People v. Disbrow, 16 Cal.3d 101, 114, 115, 127 Cal.Rptr. 360, 545 P.2d 272.)

Furthermore, by asking redress under one provision of the Penal Code, a defendant does not ipso facto waive rights under another. As noted, these statutes are not in conflict, each have an independent force and purpose. To hold a convict, unrepresented by counsel, waived other unspecified, unknown statutory rights when he asserts a known one, offends due process standards as well as all rules governing waivers of constitutional rights. (Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274.) A defendant does not by asserting a known right do so at the penalty of waiving all other rights. People v. Castoe, supra, 86 Cal.App.3d 484, 487, 150 Cal.Rptr. 237, does not suggest or compel a different result; Castoe does not embrace the same fact situation as presented here. Castoe treats with the sentencing provision in section 1381.5, absent from, therefore arguably inconsistent with, section 1389, article III, subdivision (a).

The Attorney General next contends Pratt was in fact brought to trial within the statutory time limits of section 1381.5. It appears from the record, after Pratt's entry on his term of imprisonment (Jan. 30, 1978), the federal authorities consented to state custody of Pratt on March 3, 1978. This assent to custody was received by the district attorney on March 10, 1978. Therefore, under section 1381.5, the district attorney had 90 days from receipt of the assent or until June 8, 1978, to bring Pratt to trial. At the time of the preliminary hearing (Apr. 21, 1978), a time waiver was taken from Pratt and a two-day continuance granted to allow for change of Pratt's attorney. The Attorney General argues the literal wording of section 1381.5 allowed the district attorney to bring Pratt to trial within 90 days of the date he “consented” to and “received” the two-day continuance. Thus, it is argued Pratt could have been brought to trial any time before July 21, 1978. The Attorney General concludes since Pratt was brought to trial on June 30, no speedy trial violation occurred.

This reasoning is flawed in several respects. Factually, the change in attorneys was not at the “request” of Pratt, but was due to a conflict between the defendants which necessitated separate counsel. Because the new counsel was totally unfamiliar with the case, Pratt was given the Hobson's choice of his right to a speedy trial or his right to effectively prepared counsel. Pratt agreed to the two-day continuance to secure his Sixth Amendment right to representation of counsel, unabridged.

The 90-day rule of section 1381.5 has constitutional underpinnings in that it articulates an objective and definite standard for defining violations of the constitutional right to a speedy trial. We do not presume the Legislature intended a defendant choose between a fair by trial by competent counsel and a speedy trial. Such a construction would place an unnecessary and impermissible burden on defendant's right to adequate representation. A “waiver” in this situation should not be implied for it would import constitutional tensions.

The courts have consistently refused to compel the defendant to make a choice between two fundamental constitutional rights. In In re Ali, 230 Cal.App.2d 585, 591, 41 Cal.Rptr. 108, 112, the court said:

“Nor can it be argued that the trial court in the instant case afforded the petitioner any right to counsel by making a continuance available to him on condition he waive trial by jury and allow the testimony of the People's out-of-state witness to be taken while the petitioner would be required to act in propria persona during this testimony. Petitioner, indeed, was placed in the unenviable position of having to waive either or both of two constitutional rights: his right to counsel or his right to trial by jury as guaranteed by article I, section 7 of the Constitution of the State of California. That he opted in favor of trial by jury did not constitute a waiver of his right to counsel. The exercise of one constitutional right cannot be conditional upon the denial of another.” (Italics added.)

We conclude the time waiver, consent to continuance taken of Pratt in these circumstances should not be construed as a waiver of all delay up until that point; nor does it trigger an addition, new 90-day period within which the People were authorized to bring Pratt to trial.

Pratt was not brought to trial until 112 days after the San Diego County District Attorney received the assent to Pratt's custody from the federal authorities. Even if the two days' continuance period be not counted in the 90-day period, yet Pratt's right to a speedy trial as defined by section 1381.5 has been violated.

IV

Our conclusion that section 1381.5 is applicable and was not complied with does not compel an authorized conclusion that Pratt is entitled to reversal of the judgment. Pratt did not seek a dismissal pretrial for the prosecutional failure to comply with section 1381.5; therefore, we are not concerned with the right of the prosecutor to timely refile the action and the rules requiring a showing of “actual prejudice” before such refiling can be constitutionally precluded. (Crockett v. Superior Court, 14 Cal.3d 433, 437, 121 Cal.Rptr. 457, 535 P.2d 321.) Ultimately, the prosecutor's rights to refile cannot impinge upon a defendant's constitutional right to a speedy trial. (Bellizzi v. Superior Court, 12 Cal.3d 33, 38, 115 Cal.Rptr. 52, 524 P.2d 148.)

Pratt's federal constitutional rights are rooted in the Sixth Amendment to the Constitution of the United States. His state constitutional rights are set forth in article I, section 15 of the California Constitution. To determine whether Pratt had the speedy trial required by the Sixth Amendment to the Constitution, we use a balancing process described in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101. Barker requires consideration of at least these four factors: the length of time that the defendant waited for trial, the validity of the government's reasons for the delay, the timeliness and strength of the defendant's assertions of his right, and the prejudice accruing to the defendant from the delay. The Barker case expressly rejected the notion that an affirmative demonstration of prejudice was necessary to prove a denial of the constitutional right to a speedy trial, stating:

“We regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process. [Fn. omitted.] But, because we are dealing with a fundamental right of the accused, this process must be carried out with full recognition that the accused's interest in a speedy trial is specifically affirmed in the Constitution.” (Barker v. Wingo, supra, 407 U.S. 514, 533, 92 S.Ct. 2182, 2193, 33 L.Ed.2d 101.)

The United States Supreme Court in Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 36 L.Ed.2d 971 adds a further dimension to the Barker v. Wingo case in stating:

“In addition to possible prejudice, any court must thus carefully weigh the reasons for the delay in bringing an incarcerated defendant to trial. In the face of petitioner's repeated demands, did the State discharge its ‘constitutional duty to make a diligent, good-faith effort to bring him [to trial]’? [Citation.]

Moreover, prejudice to a defendant caused by delay in bringing him to trial is not confined to the possible prejudice to his defense in those proceedings. [[[[Fn. omitted.]” (Id., at pp. 26-27, 94 S.Ct. at p. 190.)

The first factor, whether by Barker v. Wingo or Moore v. Arizona standards, is the length of the delay serves two roles. First, it serves a threshold role: there must be a delay long enough to be “presumptively prejudicial.” (Barker v. Wingo, supra, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101.) Second, delay must be weighed along with the other factors to be considered. The delay here—22 days beyond the 90-day requirement of section 1381.5—does not approach the environs of the presumptively prejudicial delay. (United States v. Herman (5th Cir. 1978) 576 F.2d 1139, 1145, and cases cited; Moore v. Arizona, supra 414 U.S. 25, 94 S.Ct. 188, 36 L.Ed.2d 971; People v. Radil, 76 Cal.App.3d 702, 711-713, 142 Cal.Rptr. 233; Harris v. Municipal Court, 209 Cal. 55, 64, 285 P. 699; Jones v. Superior Court, 3 Cal.3d 734, 91 Cal.Rptr. 578, 478 P.2d 10; People v. MacDonald, 36 Cal.App.3d 103, 116, 111 Cal.Rptr. 266.)

While the reason for the delay is not clear, yet nowhere does it appear that the prosecutor was seeking to hamper the defense or that in fact the defense was impeded, harmed, prejudiced in any fashion. Nor does it appear in the record that Pratt objected at any time to the trial date set on June 27, 19 days beyond the 90-day section 1381.5 limit. He did object to the trailing of the case for trial on a day-to-day basis between June 27 and June 30 when the trial actually took place. The trial date when set by the arraignment court conformed to section 1382—within 60 days of the filing of the information in the superior court (May 3, 1978). So far as can be gleaned from the record, a combination of failure to object to trial date set, failure of arraignment court to set the trial date not only conformable to section 1382 but also section 1381.5 resulted in the delay of 22 days beyond the statutory limit. Pratt here failed to assert his right at a time when the 90-day rule could have been met. Finally, the fourth factor discussed in Barker—prejudice—is not to be presumed from a 112-day time lapse.

Nor has Pratt's right to a speedy trial under article I, section 15 of the California Constitution been denied by the delay of 22 days. The test under the California Constitution is a “demand” test. (See People v. Godlewski, 22 Cal.2d 677, 140 P.2d 381; Sykes v. Superior Court, 9 Cal.3d 83, 94, 106 Cal.Rptr. 786, 507 P.2d 90; People v. Wilson, 60 Cal.2d 139, 146-148, 32 Cal.Rptr. 44, 383 P.2d 452.) There is a presumption of waiver drawn from the failure to object when the trial is set beyond the statutory period.

As was stated in Sykes v. Superior Court, supra, 9 Cal.3d 83, at page 94, 106 Cal.Rptr. 786, at page 794, 507 P.2d 90 at page 98: “The only duty placed upon an accused in protecting his right to a speedy trial is to object when his trial is set for a date beyond the statutory period and then move to dismiss once that period expires, or merely move to dismiss if the statutory period expires without a trial date being set.” This Pratt did not do. In this context, his right was “deemed waived.”

Finally, Pratt makes no showing he was prejudiced by the delay or that it was reasonably probable a different, more favorable result would have been obtained in the absence of the delay. (People v. Wilson, supra, 60 Cal.2d 139, 151, 154, 32 Cal.Rptr. 44, 383 P.2d 452; People v. Kirkpatrick, 7 Cal.3d 480, 486, 102 Cal.Rptr. 744, 498 P.2d 992; People v. Watson, 46 Cal.2d 818, 837, 299 P.2d 243.) Pratt was not kept in custody solely because of the pending state charges. He was in fact being held on a federal offense. Second, nothing in the record hints that Pratt was precluded in any respect from obtaining witnesses or producing evidence or that in any respect his right to a fair trial was prejudiced by the 22-day delay. The defendant's submission of the matter on the transcript of the preliminary hearing indicates general concession of unqualified guilt. We conclude there is no showing of prejudice.

Judgment affirmed.

FOOTNOTES

1.  Reference is to the Penal Code unless otherwise specified.

2.  A strong case can be made against an assumption that Pratt has substantially complied with the section, for article III, subdivision (a), provides that the 180-day period is to run from the date the prisoner “shall have caused to be delivered” a written notice and request for final disposition to the district attorney and the court. Article III, subdivision (b), clearly states that the prisoner shall give or send the notice and request to the warden, commissioner of corrections or other official having custody of the prisoner. The official then is to promptly forward that notice and request along with the certificate to the district attorney and the court by registered or certified mail, return receipt requested.

STANIFORTH, Associate Justice.

GERALD BROWN, P. J., and COLOGNE, J., concur.