My man has a case that popped up long after he started this term. They told him he could file a "cop out" sheet and take care of it when he gets out. To this, he said "Hell no." because they could turn around and put him right back in. So he filed a 1381, which is, I guess, a "try or dismiss" motion? He said it takes up to 90 days to hear anything, which would bring him awful close to home! I guess if they are going to try him they go up toCorcoran, take him back down to LA County, try him, and send him back? Or not? I'm confused! Help!!! :confused:

My son asked me to call the court where he was tried and find out how much, if any court fees , etc. might be owed on top of his restitution. When I called the court, they told me that the inmate himself had to file a 1381 to request the information. They said he can request the form from his counselor. That's all I know about them. Good luck with your loved one.

The 1381 will give the DA's office a certain amount of time to file the other case, pick up the defendant and try him in the county on those charges...if they don't do it within the time allowed, they cannot file it later. This allows the inmate to take care of that case, while serving the current sentence. I can't remember the time restrictions off hand so don't want to guess, but I'm sure someone else will come along who knows. Good luck!

My husband was fighting 2 cases in 2 counties, got sentenced in county 1 and shipped to prison right before sentencing in county 2 so he had to file a 1381 in order to be transported back to county 2 to be sentenced. If they would not have brought him back then they would have forfeighted all rights to sentence even though he was already at the sentencing stage from what i gather. In any case he filed the 1381 the end of March and was transported from High Desert to county 2 in July so thats like 2 1/2 - 3 months after filing.

The DA has 90 days from the date he receives the 1381 to take the inmate to trial.

Thank you guys, that clarifies a bit, but now worries me more that he will get 2 months from the house and they will add more time...I hope and pray not :(

But make sure if they do take him to face the 1381 issues that he ask or insist that the time that they give him to run concurrent to the time he is currently serving i think but dont quote me but they may be able to run the time concurrent from his current sentence but you would need to talk to the lawyer because i believe it is dependent on the crimes and dates of the crimes, so maybe get more specific and go to the general legal forum and you might get some more definitive answers. good luck

Concurrent is not always best. If he is facing a 2 year term with 1/2 time, he is looking at doing 1 year from the date of sentencing, if sentenced concurrently. Since he has less than 90 days to serve now, he will do most of the 1 year if sentenced concurrently. If he is sentenced consecutively, the 2 year term would fall under the 1/3 consecutive factor and he would only serve 4 months (1/3 of 2 years is 8 months x 50% = 4 months to serve). Even though it would be after the current term, he would be out about 8 months earlier.

He actually has about 5 months to go, but by the time they respond to the 1381, if it takes 90 days, he would be 60 days from home! I am talking to him Weds, will get more specifics on the issue, then will try to figure out more. Thanks!

The 1381 will give the DA's office a certain amount of time to file the other case, pick up the defendant and try him in the county on those charges...if they don't do it within the time allowed, they cannot file it later. This allows the inmate to take care of that case, while serving the current sentence. I can't remember the time restrictions off hand so don't want to guess, but I'm sure someone else will come along who knows. Good luck!

The D.A. has 90 days from the date of receipt of the 1381 form (it is sent to the D.A.'s office) to take action (instigate sentencing or trial) or it must be dismissed.

Does this apply to unfiled new charges? Let me explain....my BF was picked up for under the influence of a controlled substance (true) and possession for sales (untrue). When his court date came the DA hadn't filed the charges. I assumed it was cause there was no evidence to support the charges. He had nothing on him...no drugs, no money, etc. But there were drugs in the house that he was at. He is now serving a parole violation for the incident. Now here is my question, I heard that the DA can still pick up the charges. They have a year to do so. If he filed this 1381, would it require them to do it immediately so we can relax when he gets home and not worry about him still facing these charges?

Does this apply to unfiled new charges? Let me explain....my BF was picked up for under the influence of a controlled substance (true) and possession for sales (untrue). When his court date came the DA hadn't filed the charges. I assumed it was cause there was no evidence to support the charges. He had nothing on him...no drugs, no money, etc. But there were drugs in the house that he was at. He is now serving a parole violation for the incident. Now here is my question, I heard that the DA can still pick up the charges. They have a year to do so. If he filed this 1381, would it require them to do it immediately so we can relax when he gets home and not worry about him still facing these charges?
Does he have an attorney? If so, call and see if he/she can ascertain what happened to the charges. There should be a document such as 'intent not to prosecute' filed if they were dropping them. The other thing you might try is the county's court website, or go to the courthouse and have them pull the case.

No attorney. We can't afford one. Do you think I could find out through the DA's office? Also, can I have the case file pulled? Is it open to the public?

No attorney. We can't afford one. Do you think I could find out through the DA's office? Also, can I have the case file pulled? Is it open to the public?
Do a 1381 demand anyways. Read P.C. 1381 and follow it to the letter. The prison may not help because there's no warrant showing. If they don't transport because they don't file the case, if they file late and then prosecute the 1381 may be a procedural bar to the attempted prosecution. If a warrant shows up late, he should do a 1381 demand again.
No, you won't get some help from the DA's office. You are far more likley to get some hurt.

I need some help on a 1381. Does these forms also work in Nevada also. My man is currently in a Ca. prison, he filed a 1381 in June or July I think, and that will mean that it will expire in Oct. I E-mailed the DA in vegas to ask if they even recieved it and i don't know if she knows what I'm talking about. If he the proof of service is that good enough to have to dismiss if they don't pick him up by Oct.? Please help. Thanks

For out of state charges, you need a 1389, not a 1381.

sorry maybe it was a 1389, I thought my man said 1389 and then a counselor corrected me and said 1381. Do you kow if it would still be valid if the DA said she didn't recieve it or what is the proceedure?

The timeframe starts when the DA receives the correct form. So If the DA does not have the form, it is as if it was never sent. If CDCR completes the process, the send the paperwork by Certified Mail so they can track the timeframe correctly.

Thanks I appreciate it, but I also got in contact with the DA again and she told me that she started the extadition waiver before she got the 1389 so the "try or dismiss" she said was no longer valid... Is that true?

Ther DA's efforts to secure the defendant's court appearance eliminates the need to do a 1389 or 1381 so long as they continue the process. The 1389 is still a good idea in case they don't transport for some reason. Tne 1389 is valid in case they don't do what they say they are doing.

Thanks I appreciate it, but I also got in contact with the DA again and she told me that she started the extadition waiver before she got the 1389 so the "try or dismiss" she said was no longer valid... Is that true?

I have a question regarding filing a 1381 and I hope someone can help. My boyfriend is trying to clear up a traffic ticket that he has in LA county, prior to coming home.

Does a Proof of Service and Receipt of Service letter need to be sent with the 1381? And if so how would he or I go about obtaining those forms?

Thanks for any help you may have to offer!!

Traffic tickets can not be cleared with a 1381. They take a 41500.

Well here I am again :( My BF saw his counselor today. She said his release date is 12/28 but he may have a hold. I think that possibly the DA is filing the charges that they didn't file when he was arrested! His counselor said something about a 1381 but isn't it too late for that since his release date is so close? Is there any way I can find out anything? I'm going crazy thinking he might not be coming home!!!!

He does need to do a speedy trial request (1381), and needs to do it ASAP. What he really DOESN'T want to have happen is to get parole and then not be abole to try to take advantage of the 1/3 the middle term rule for sunordinate counts.
For instance, a felony may carry 16 mos., 2 yrs, or 3 years; and a prior prison term carries a one year enhancement. Therfore, maximum exposure is 4 years. However, if there's an existing sentence then there is no one year enhancement. Also, if the new case is going to be the subordinate term, then the most he can get on the new case is 8 mos. (not 4 years.) That big difference is why 1381 and 1389 demands are so important.

So once 12/28 hits, it's no longer considered an existing sentence? Does that basically mean that since he's only 67 days from the house, he's screwed? What good does the 1381 demand do if it gives them 90 days? I'm so confused....

I spoke to his counselor today and since he's at a private MCCF she is not a CDC counselor. She said that he has to speak to that person. All she could tell me was that when he is in reception they send a letter to the county to see if there are any pending charges. They still have not heard anything and may not until his release date! The do warrant checks at 60 and 30 days to the house.

So now I guess I just sit and wait. Is there anything we can do? How high does the term go if they hit him with sales too? They originally booked him on possession for sale. I don't know what kind of proof they need for that but like I said before he had nothing on him, no dope and no cash.

I am really scared now.... :(

The fact that they have more time to get teh case done doesn't mean that they CAN'T get it done much quicker (especially if he takes a deal.)

I think he's "serving a sentence" until he gets a parole release.

Even in situations where an inmate could be placed in a situation where they can't take advantage of the 1/3 the middle term rule (because 1381 hasn't been violated yet they are no longer serving a sentence), the sentencing court often tries to be fair (or at least fair-ish) and sentences lighter than they otherwise would. The court can make up non-existent conduct credits that were in fact serceved at CDCR, as a for instance. The court might go low term on an upperm case and stay enhancements.

He needs to file a 1389 to the authorities in NV, not a 1381. Penal Code section 1381 applies for an untried indictment, information or complaint, or where the defendant remains to be sentenced, in California, so it has no bearing on out-of-state (or federal) charges. That's where section 1389 come in to play, whch is CA's version of the Interstate Agreement on Detainers. So if NV placed a detainer (hold) with the CA authorities, then he can file a 1389. If a detainer has not been placed, there's little he can do (other than bug NV to place one). But then it's the old question of whether to "let sleeping dogs lie." I know of a situation in which NV refused to place a detainer on a prisoner serving time in CA, yet let the warrant stand in NV for 10 more years (even after his release from CA custody) until they finally just dismissed the case entirely (to clean up their docket).

I don't know the factual situation here, but I hope this info helps.

South Bay

Its always good to file a 1381, even if less than 90 days is left on one's sentence. There's an older apellate case in CA where a prisoner filed a 1381 prior to release with less than 90 days left on his sentence. When he got out, the DA had less than 30 left days to bring him to trial and failed to do so. The DA later charged him on that case, and the court of appeal ruled the DA should have tired him within the 90-day period from his receipt of the orignal 1381 demand, so the case was dismissed. The bummer, of course, is that the DA can just refile a case under section 1387, since that section allows the DA to refile a case dismissed under section 1381.

South Bay