PEOPLE v. BRINSON (1987)

Defendant/appellant Ilean Ann Brinson appeals from a judgment of conviction following her guilty plea to sale of heroin (Health & Saf.Code, § 11352) and an admission of a prior conviction for sale of heroin (Pen.Code, § 1203.07(a)(3)).  She contends, inter alia, that her motion to dismiss under Penal Code section 1381 was improperly denied.   We agree, and reverse.

On March 14, 1985 appellant pled guilty in Sonoma County to sale of heroin and admitted a prior conviction for the same offense.   She escaped from the Sonoma County jail before sentence was imposed.   She was later arrested and convicted on prostitution charges in Los Angeles County on August 21, 1985, and on prostitution and drug charges in Kern County on September 3, 1985.

On September 26, 1985, while serving a six-month sentence in Kern County jail, appellant completed a form supplied by Kern County authorities and addressed by her to the Sonoma County District Attorney, demanding to be “brought to trial within 90 days on all charges pending in your county and specifically as to the indicated hold below, but not limited to such action.”   It appears from the demand form that the jail staff erroneously completed the form and indicated only the case number and charges of appellant's Kern County conviction instead of the applicable Sonoma County case.   Consequently, appellant's demand was not timely forwarded to the Sonoma County District Attorney by Kern County officials.

Appellant was returned to Sonoma County on December 30, 1985 and appeared in court on December 31, 1985, some 96 days after her demand was submitted to the staff at the Kern County jail.   Her motion to dismiss the Sonoma County charges pursuant to Penal Code section 1381 was denied.   The trial court imposed sentence and then, pursuant to Welfare and Institutions Code section 3051, suspended the execution of sentence and committed appellant to the California Rehabilitation Center.

Penal Code section 1381 provides that “[w]henever a defendant has been convicted, in any court of this state, of the commission of a felony or misdemeanor and has been sentenced to and has entered upon a term of imprisonment in a ․ county jail for a period of more than 90 days ․ and at the time of the entry upon such term of imprisonment ․ there is pending, in any court of this state, any other ․ 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 ․ for sentencing within 90 days after such person shall have delivered to said district attorney written notice of the place of his imprisonment ․ and his desire to be brought ․ for sentencing․  In the event that the defendant is not brought ․ for sentencing within the 90 days as herein provided the court in which such ․ sentence is pending must, on motion ․ of the ․ person confined in the county jail or ․ his counsel, ․ dismiss such action.”

The People contend that delivery of the section 1381 demand to Kern County authorities is insufficient notice and delivery, citing Reynolds v. Superior Court (1980) 113 Cal.App.3d 510, 169 Cal.Rptr. 868.  Reynolds disapproved “[j]udicial establishment of a constructive notice concept” in situations covered by section 1381.  (Id., at p. 515, 169 Cal.Rptr. 868.)   In Reynolds the defendant sent his demand to be brought to trial to the municipal court instead of the district attorney.   The notice was forwarded to the district attorney, but the defendant was not brought to trial within 90 days of the date the notice was received by the municipal court.   The Court of Appeal denied defendant's request for a writ to compel the trial court to dismiss the action because “the drastic sanction of dismissal is inappropriate where the delay was caused by [the defendant's] failure to comply with the statute and not by any inaction on the part of the prosecutorial authority.”   (Id., at p. 514, 169 Cal.Rptr. 868.)

The cause for delay in the instant case is substantially different from the cause in Reynolds.   Appellant here did everything in her power to comply with the statutory requirements.   While in custody she correctly signed, dated and addressed the demand form to the Sonoma County District Attorney.   This form was provided by jail authorities and appellant returned it to them so that they could complete the form in accordance with county policy.   The form was completed incorrectly by the county jail personnel and was mistakenly sent to the Kern County District Attorney.   It is uncontradicted that the delay in the transmission of appellant's demand from Kern County to Sonoma County was solely the fault of Kern County personnel and cannot be imputed to appellant.

The facts in this case are closely paralleled by those in People v. Slobodion (1947) 30 Cal.2d 362, 181 P.2d 868.   In Slobodion, the transmission of a prisoner's notice of appeal was negligently delayed by prison authorities.   The court framed the issue:  “Should appellant—who was incarcerated by the state, who desired to appeal, who took every step he could possibly take to perfect his appeal, who delivered his notice of appeal to the prison authorities well within the statutory period with the request that they mail it but they carelessly and negligently failed to forward the notice so that it would be received by the ‘clerk of the superior court’ within the time limitation specified by law—be deprived of his right of appeal?”  (Id., at p. 365, 181 P.2d 868.)   The court concluded that “[b]oth reason and justice compel a negative answer” (ibid.) and held that “when appellant timely deposited his notice of appeal with the state's employees as required by the state prison rules, such action constituted a constructive filing of the specified notice.”  (id., at p. 367, 181 P.2d 868;  see also, People v. Hill (1984) 37 Cal.3d 491, 497, 209 Cal.Rptr. 323, 691 P.2d 989;  People v. Acosta (1969) 71 Cal.2d 683, 687, 78 Cal.Rptr. 864, 456 P.2d 136;  People v. Head (1956) 46 Cal.2d 886, 889–890, 299 P.2d 872.)

We conclude that appellant's delivery of her demand notice on September 26, 1985 to Kern County authorities constituted effective delivery to the Sonoma County District Attorney.   Since she was not transferred to Sonoma County until December 31, 1985, 96 days later, she was entitled to a dismissal.

In light of our disposition of the dismissal issue, we need not address respondent's remaining contentions.

The judgment is reversed, with directions to dismiss the charges.

HANING, Associate Justice.

LOW, P.J. and KING, J., concur.