PEOPLE v. FISCHER (1987)

In 1982 defendant was charged with grand theft and possession of stolen property.  (Pen.Code. §§ 487 and 496, respectively.)   Upon his plea of guilty to possession of stolen property, the theft charge was dismissed, and defendant released on his own recognizance to await sentencing.   After defendant failed to appear, a bench warrant was issued.   Three years later, in 1985, defendant was returned to court for sentencing.

At the sentencing hearing defendant moved to dismiss the charges on the ground that his right to ‘speedy sentencing‘ had been violated.   The motion was denied.   Defendant was thereupon sentenced pursuant to the prior plea bargain:  three years formal probation upon condition that he serve six months in jail.   On appeal, defendant renews his claim of invalid sentencing.   He has also filed a petition for habeas corpus.

FACTS

Defendant's claim of denial of speedy sentencing is made against the following procedural background.

Defaulting on his sentencing appearance, defendant left for Bogota, Colombia.   On January 6, 1984, defendant was arrested for smuggling cocaine into the United States.   Following his conviction in a federal court, he was sentenced to serve three years in the federal prison at Safford, Arizona.

On August 6, 1984, defendant mailed a written request to be sentenced in the present case.   His letter was eventually routed to the district attorney's office which responded by instructing defendant to submit a waiver of his presence together with the details of his federal sentence.

On December 17, 1984, in an apparent attempt to comply with those instructions, defendant sent another letter waiving his presence in superior court and providing details of his federal sentence.   This letter was placed in the superior court file but not acted upon.

On May 21, 1985, defendant sent yet another letter requesting imposition of sentence;  that letter was also placed in the superior court file, but again no action was taken.

On September 5, 1985, defendant was released on parole from federal prison.   On September 13, 1985, following his transfer to the custody of San Francisco authorities, defendant appeared in superior court on the outstanding bench warrant.   The matter was originally set for October 3 (for a supplemental probation report) but later continued to October 16.   On that latter day defendant was sentenced in accordance with his 1982 plea bargain.

DISCUSSION

By the enactment in 1963 of Penal Code section 1389,¹ California became a party to the Interstate Agreement on Detainers (IAD), an interjurisdictional compact with virtually all of the states, including the United States, providing a procedure for the return of a prisoner from a foreign jurisdiction to the jurisdiction where felony charges are pending.

In essence, the IAD provides that upon written demand a prisoner must be brought to trial on pending charges within 180 days.  (§ 1389, art. III, subd. (a).)  Failure to comply with the 180–day requirement will result in dismissal of the charges. (§ 1389, art. V, subd. (c).)

I

SENTENCING

Defendant contends that because he was sentenced more than 180 days after his written demand of August 6, 1984, the charges must be dismissed.

Relying on People v. Castoe (1978) 86 Cal.App.3d 484, 150 Cal.Rptr. 237, the People counter that the IAD is inapplicable where, as here, all that remained to be done was imposition of sentence.

The IAD is designed to alleviate problems stemming from ‘untried indictments, informations or complaints.‘  (§ 1389, art. I, emphasis added.)   Thus, the 180–day rule applies whenever ‘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․‘  (§ 1389, art. III, subd. (a), emphasis added.)   The prisoner's request for final disposition ‘shall operate as a request for final disposition of all untried indictments, informations or complaints․‘  (§ 1389, art. III, subd. (d), emphasis added.)   He must be ‘brought to trial‘ within 180 days.  (§ 1389, art. III, subd. (a).)  And if ‘an action on the indictment, information or complaint ․ is not brought to trial ‘ within that period, then the court ‘shall enter an order dismissing the same with prejudice․‘  (§ 1389, art. V, subd. (c), emphasis added.)

In People v. Castoe, supra, 86 Cal.App.3d 484, 150 Cal.Rptr. 237, the defendant was convicted in California, but before sentencing left for Texas where he was arrested and imprisoned on new charges.   Thereafter, the defendant sent notice pursuant to section 1389, asking to be returned to California for sentencing.   Sentencing took place after the 180–day period.   On appeal, the court rejected defendant's argument that section 1389 applied.  ‘Nowhere in the statute is there a reference to sentencing․

‘․

‘Section 1389 contemplates that the defendant will be returned to California for trial on untried indictments, informations, and complaints and if the defendant is found guilty the section contemplates that the defendant will remain for sentencing.   In this sense section 1389 contemplates sentencing.   This section does not contemplate that a defendant who is tried and found guilty who escapes to a foreign jurisdiction will have the benefit of being brought back to California, at the state's expense, to be sentenced and then returned to the foreign jurisdiction at California's expense.”

(86 Cal.App.3d at pp. 488–489, 150 Cal.Rptr. 237, original emphasis.)

The Castoe court emphasized the absence of any language in the IAD pertaining to sentencing in contrast with two related statutes (§ 1381 governing California prisoners with pending California charges and § 1381.5 directed to federal prisoners in California with pending California charges) applicable whenever there is pending any ‘indictment, information, complaint, or any criminal proceeding wherein the defendant remains to be sentenced․ ‘  (Emphasis added.) ²  The absence of the emphasized language from section 1389 led the Castoe court to conclude that the IAD was meant to apply only when no decision on guilt or innocence has yet been rendered.  (See also People v. Mahan (1980) 111 Cal.App.3d 28, 33–34, 168 Cal.Rptr. 428;  People v. Buccheri (1969) 2 Cal.App.3d 842, 844–845, 83 Cal.Rptr. 221.)

A recent Ninth Circuit opinion, however, rejected the Castoe interpretation of section 1389.   In Tinghitella v. State of Cal. (9th Cir.1983) 718 F.2d 308, the defendant fled California after the jury found him guilty resulting in the issuance of a bench warrant by reason of his nonappearance.   Defendant was eventually imprisoned in Texas on a new offense, and California authorities placed a detainer on him.   Despite defendant's request to be returned to California for sentencing, the California authorities refused to comply and offered instead to sentence him in absentia.   In a habeas proceeding, the Tinghitella court disagreed with the Castoe ‘dictum‘ and concluded that defendant was entitled to be sentenced pursuant to the IAD, reasoning as follows:

‘The cases place great emphasis on the agreement's repeated references to ‘untried indictmets.‘   See Mahan, 111 Cal.App.3d at 34, 168 Cal.Rptr. at 431;  Castoe, 86 Cal.App.3d at 488–89, 150 Cal.Rptr. at 239–40.   It is unclear, however, why this should compel the conclusion that ‘trial‘ stops with verdict, short of sentencing.   The cases do not address the fact that the term ‘trial‘ in the speedy trial clause of the Sixth Amendment to the United States Constitution has been construed to include sentencing.   See, e.g., Walsh v. United States, 423 F.2d 687, 688 (9th Cir.1970).   Nor do they gainsay that the central policy foundations of the IAD support a broad construction of the term trial,‘5 or that the IAD itself provides that it ‘shall be liberally construed so as to effectuate its purposes.‘  IAD, art. IX (emphasis added).   For these reasons, we conclude that the terms ‘trial‘ and ‘final disposition‘ as used in the IAD encompass sentencing and, therefore, that the IAD imposes an obligation on California to sentence a Texas prisoner in timely fashion where California has secured the conviction of the prisoner in California but he has not been sentenced before his incarceration in Texas on a Texas conviction.”

(718 F.2d at p. 311.)

 Although the federal court decision is not binding precedent herein (People v. Bradley (1969) 1 Cal.3d 80, 86, 81 Cal.Rptr. 457, 460 P.2d 129), we find its interpretation of the IAD and underlying reasoning persuasive and in harmony with other California decisions involving an analogous statute.

For example, in People v. Brown (1968) 260 Cal.App.2d 745, 67 Cal.Rptr. 288, the defendant had pled guilty to state and federal charges but was first sentenced and imprisoned on the federal charges and thus did not appear for sentencing on the state charges.   Defendant was not returned to state court for sentencing for two years despite repeated requests made to the district attorney.   At that time section 1381.5 entitled a federal prisoner to dismissal of state charges if he was not brought to trial within 90 days after obtaining assent from federal authorities.   The statute applied whenever ‘ ․ there is pending in any court of this State any indictment, information, or complaint ․’ ‘ (260 Cal.App.2d at p. 747, fn. 1, 67 Cal.Rptr. 288.)   Notwithstanding the absence of specific inclusion of sentencing proceedings as later added (see fn. 2, ante, p. 19), the court concluded that the statute equally applied to the imposition of sentence:

‘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.  (Cf. Pen.Code, § 1191.)‘

(260 Cal.App.2d at pp. 750–751, 67 Cal.Rptr. 28.)

That interpretation of section 1381.5 was followed in In re Shute (1976) 58 Cal.App.3d 543, 130 Cal.Rptr. 270.   There, after pleading guilty while remaining free on bail, defendant failed to appear for sentencing and became a fugitive from justice for almost a year until his arrest, conviction and imprisonment on new federal charges.   Following his release from federal custody, he was brought to Orange County for sentencing on his state court conviction.   In 1971, while in federal prison, the defendant had requested and been refused removal to Orange County for sentencing.   At that time section 1381.5 had not yet been amended to contain the language expressly including sentencing proceedings.   Nonetheless the court recognized that sentencing proceedings were included within the statutory reference to trial proceedings.

‘The features in section 1381.5 relating to sentencing were added in 1971, and, as Shute points out, were not in effect when Shute made his requests.   But even without the words, sentencing is covered in the statute in its pre–1971 language.   Sentencing is a part of a speedy trial (People v. Brown, 260 Cal.App.2d 745, 750–751 [67 Cal.Rptr. 288] ).‘

(58 Cal.App.3d at p. 548, 130 Cal.Rptr. 270.)

 We find the Brown and Shute interpretations of parallel statutory provisions prior to amendment convincing and equally applicable to construction of section 1389 to include sentencing as an integral part of a speedy trial.   Moreover, such construction is consonant with the sound policy reasons underscored in Tinghitella supporting an interpretation of the IAD to include sentencing.  (718 F.2d at p. 311, fn. 5.)

We conclude that imposition of sentence is part of a trial and thus the IAD's reference to detainers based on ‘untried‘ informations should be extended to criminal proceedings in which the defendant remains to be sentenced.

II

PROCEDURAL REQUIREMENTS

 The People also argue that even if the IAD applies to sentencing, defendant has not satisfied the notice requirements of the IAD.   We agree.

The statutory 180–day period begins to run once the prisoner ‘shall have caused to be delivered to the prosecuting officer and the appropriate court ․ written notice of the place of his imprisonment and his request for a final disposition of the indictment, information or complaint․‘  (§ 1389, art. III, subd. (a), emphasis added.)   The People contend that because defendant's letters were neither sent to the court nor certified for mailing,³ defendant failed to comply with the statutory prerequisites.

 The People misinterpret the notice requirements.   Although it is true notice must be given to both the court and the prosecutor, the prisoner's written notice and request for final disposition ‘shall be given or sent by the prisoner to the warden, commissioner of corrections or other official having custody of him․‘  It is the warden ‘who shall promptly forward [defendant's request] ․ to the appropriate prosecuting official and court by registered or certified mail․”  (§ 1389, art. III, subd. (b), emphasis added.)   Thus, the prisoner's only obligation is to advise the warden of his request for final disposition of the pending charges.   Once that request is made, the burden is on the warden or other prison official to mail it to the court and the prosecuting official.  (People v. Wilson (1977) 69 Cal.App.3d 631, 636–637, 138 Cal.Rptr. 259.)   The prisoner cannot be faulted if the prison officials fail to comply with the requirements of the act.  (Id., at p. 637, fn. 1, 138 Cal.Rptr. 259.)

However, another important procedural requirement is triggered:  along with the prisoner's written request for final disposition, the official must forward a certificate giving the details of the prisoner's custodial status.  (§ 1389, art. III, subds. (a), (b).)

In People v. Wilson, supra, 69 Cal.App.3d 631, 138 Cal.Rptr. 259, the defendant submitted a request to be tried on California charges to the North Carolina prison authorities and also sent a request directly to the court and the district attorney.   The prison officials did not submit the formal request and the required certificate for two months.   Defendant was returned to California for trial within 180 days of the latter, but 213 days after defendant's own letter.   The Wilson court held that defendant's letter did not satisfy the IAD.

‘The [IAD] contains no provision by which the prisoner can informally notify the appropriate prosecuting official of the state lodging the detainer of his request for a trial.   This is understandable in view of the purpose of the Agreement to provide an orderly disposition of detainers.   That goal is achieved in part by the obligation placed on the warden of the prison in the sending state to forward, along with the prisoner's request for final disposition, the information set out in article III, subdivision (a) regarding the prisoner's release date.   This information is often necessary before the prosecuting officials can make an intelligent decision as to whether the person should be returned for trial.  (See Beebe v. State (Del.1975) 346 A.2d 169, 171.)

‘Respondent's self-help effort points up the difficulties which arise when the prisoner seeks to proceed under the Agreement on his own.   Respondent's letter was deficient in that it did not state the time remaining to be served on the sentence or the time already served;  the amount of good time earned;  the time of parole eligibility or any decisions of the parole agency relating to him.   Even if the inmate could compile all of this information he could never tender the offer of temporary custody which the appropriate official of the sending state must include with the certificate provided for in article III.  (Pen.Code, § 1389, art. V, subd. (a).)  Furthermore the official nature of the certificate puts the district attorney's office on notice that the prisoner is proceeding under the Agreement.   This procedure reduces the necessity of the district attorney's office screening all manner of communications to determine the validity of their request for an immediate trial.  (See Pittman v. State (Del.1973) 301 A.2d 509, 516, Herrmann, J., dis.)   Orderly disposition is frustrated to the extent that informal requests take the place of the communications contemplated under the Agreement.‘

(People v. Wilson, supra, 69 Cal.App.3d at p. 636, 138 Cal.Rptr. 259;  see also People v. Castoe, supra, 86 Cal.App.3d at pp. 490–491, 150 Cal.Rptr. 237;  cf. People v. Ruster (1974) 40 Cal.App.3d 865, 115 Cal.Rptr. 572 [under § 1203.2a, notice to probation officer was not sufficient to fulfill obligation to notify court or prosecutor and notice without warden's attestation was inadequate].)

In the present case the record does not disclose whether defendant ever made the necessary request to the warden.   Nor was the required certificate ever transmitted to the California authorities.   The only action taken was by defendant himself.   We must therefore conclude that defendant's letter to the district attorney was legally ineffective to begin the running of the 180–day period.

III

CONSTITUTIONAL RIGHT TO SPEEDY TRIAL

 As an alternative argument, defendant contends he was denied his constitutional right to speedy sentencing.   We disagree.

The constitutional guarantee of a speedy trial (U.S. Const., 6th Amend.;   Cal. Const., art. I, § 15) has been held to include speedy imposition of sentence.  (People v. Brown, supra, 260 Cal.App.2d 745, 750–751, 67 Cal.Rptr. 288;  In re Shute, supra, 58 Cal.App.3d at p. 548, 130 Cal.Rptr. 270.)  Section 1191 grants a defendant the right to be sentenced within 28 days of the verdict or guilty plea.   Of course, if the defendant flees, delay in sentencing is excused since it is the defendant himself who is responsible for the delay.  (People v. Palmer (1942) 49 Cal.App.2d 567, 574, 122 P.2d 109.)   But the mere fact that defendant is incarcerated for another crime will not deprive such defendant of the right to a prompt disposition.  (Barker v. Municipal Court (1966) 64 Cal.2d 806, 813, 51 Cal.Rptr. 921, 415 P.2d 809.)   And, as shown, the fact that a defendant facing California charges is incarcerated in a federal prison is of no consequence.  (Id., at p. 814, 51 Cal.Rptr. 921, 415 P.2d 809;  People v. Brown, supra, 260 Cal.App.2d at p. 751, 67 Cal.Rptr. 288;  In re Shute, supra, 58 Cal.App.3d at p. 550, 130 Cal.Rptr. 270.)

Significantly, the Legislature has enacted specific provisions relating to incarcerated defendants to carry out the constitutional right to speedy trial:  notably, sections 1381 (California prisoners with pending California charges);  1381.5 (federal prisoners located in California);  1389 (out-of-state prisoners).   These statutes entitle an incarcerated defendant to be brought to trial upon a proper demand.

It has long been held that the statutory requirement that a demand be made is constitutionally permissible.  (People v. Godlewski (1943) 22 Cal.2d 677, 684, 140 P.2d 381;  People v. Robinson (1968) 266 Cal.App.2d 261, 265, 72 Cal.Rptr. 33.)   Thus, a defendant's failure to comply with the prescribed demand requirements will preclude an assertion of a violation of speedy trial rights.  (People v. Wilson, supra, 69 Cal.App.3d at p. 636, 138 Cal.Rptr. 259;  People v. Castoe, supra, 86 Cal.App.3d at pp. 490–491, 150 Cal.Rptr. 237.)

Here, defendant failed to establish his compliance with the demand requirements of the IAD:  specifically, written notice and request to the warden in order to initiate transmission of the requisite certificate to the district attorney and the trial court.   Accordingly, defendant is foreclosed from claiming a denial of his statutory or constitutional rights to speedy sentencing.

IV ***

DISPOSITION

The judgment is affirmed, and the petition for writ of habeas corpus is denied.

FOOTNOTES

1.   Unless otherwise indicated, all further statutory references are to the Penal Code.

2.   The emphasized language in sections 1381 and 1381.5 was added in 1971.

3.   Defendant's letter of May 21, 1985, was sent by certified mail, but the sentencing hearing was held within 180 days of that notice.

FOOTNOTE.   See footnote *, ante.

RACANELLI, Presiding Judge.

ELKINGTON and NEWSOM, JJ., concur.