Resolving California Felony and Misdemeanor Charges under Penal Code Section 1381
Penal Code section 1381 allows a prisoner facing California misdemeanor or felony charges to demand that the prosecutor bring the case to trial; the same provision can also be used to demand sentencing in cases in which a prisoner has already been convicted but no sentence has yet been imposed. Under section 1381, the prisoner may send a written notice to the district attorney (not the court) in the county where the charges are pending, identifying the location in which the prisoner is incarcerated and demanding a trial. The prosecutor must bring the case to trial within 90 days after receiving the notice. (Penal Code section 1381 applies not only to state prisoners but also to persons sentenced to more than 90 days in a county jail, to juveniles incarcerated in the CDCR Division of Juvenile Justice, or persons civilly committed as narcotics addicts.) Prisoners who have been convicted but not yet sentenced also may demand that they be sentenced within 90 days. If the prosecutor does not take action within 90 days of the request, the charges must be dismissed.
Section 1381 DOESNOT require a detainer (hold) to have been filed before a prisoner may demand disposition. (Prosecutors are supposed to file detainers if they know a person facing charges is incarcerated, but they oftentimes fail in this duty or simply do not know the person is incarcerated.) In practice, however, CDCR staff usually require that there be a detainer lodged before they will provide the standard form (CDCR Form 643) by which a prisoner can request a disposition. This policy is unlawful, however, as nothing in section 1381 requires that a detainer be filed prior to a prisoner enforcing his or her rights under the statute. If a prisoner knows the case number and location of any outstanding California criminal charge (including recently issued warrants for failure to appear), CDCR staff should provide the form and fill in the necessary information, even if no detainer has been filed. If the CDCR refuses to provide a prisoner with the form for requesting disposition of a California charge, the prisoner should pursue a CDCR Form 602 administrative appeal and, if necessary, a state court habeas corpus petition.
A prisoner facing a California felony or misdemeanor charge, who wants the charge resolved, should make a written demand for trial as soon as possible. A demand for trial under section 1381 is the only way to ensure that the case proceeds and that a trial is held or the charges dismissed (or a plea bargain entered into). Until the district attorney receives a written request for a speedy trial, the 90-day period within which a prisoner must be brought to trial does not begin to run. Thus, a prisoner cannot seek dismissal of a case due to violation of speedy trial rights under California law unless he or she has made a written demand for trial under section 1381; the one exception is in cases which the prosecutor has failed to file a detainer (People v. Cave (1978) 81 Cal.App.3d 957, 963-965). In addition, quick resolution of a pending charge can result in a shorter overall period of incarceration by taking advantage of either a potentially concurrent sentences, or the statutory limitation on most consecutive sentences imposed while a prisoner is currently serving a prison term).
How to Demand a Trial on California Criminal Charges
Penal Code section 1381 provides a very specific method for demanding a trial or sentencing on outstanding charges. A written notice must be sent to the prosecutor. The notice must state where the prisoner is incarcerated and must express the prisoner's desire to be brought to trial or for sentencing. The statute also requires that a jail or prison official "endorse upon the written notice . . . the cause of commitment, the date of commitment, and the date of release."
The CDCR usually will provide a prisoner who wants to demand a trial under 1381 with a CDCR Form 643, “Notice and Demand for Trial" (sometimes called a "1381 form"). This form can be used to contact the prosecutor in the jurisdiction that placed the detainer and to inform them where the prisoner is incarcerated and that he or she is demanding a trial. Prisoners should fill out the form, and then forward it to their counselor or the records office so that prison officials can add the other information required by the statute. Once the necessary information is added, prison case records staff are required to mail the form to the district attorney by certified mail (DOM section 72040.6.1).
A prisoner should try to follow the provisions of the statute exactly because courts tend to require total compliance to trigger the running of the 90-day period in which the trial must be held. For example, one court held that sending the notice to a probation officer was not sufficient under the statute (People v. Ruster (1975) 40 Cal.App.3d 865,871; see also In re Hoddinott (1996) 12 Cal.4th 992, 1005). A notice sent to the court clerk but not to the district attorney has also been deemed to be insufficient (Reynolds v. Superior Court (1980) 113 Cal.App.3d 510, 514). However, in other cases, the courts have been more lenient; one court found that a motion filed in open court asking for dismissal of the charges provided adequate notice to the prosecutor (People v. Hughes (1974) 38 Cal.App.3d 670, 675), and another court held that a notice that was not endorsed by a prison official was still valid (Smith v. Superior Court (1984) 159 Cal.App.3d 1172, 1176). Nonetheless, in order to be sure that the speedy trial timeline is triggered, it is best for prisoners to try to follow the requirements of the law closely.
CDCR staff generally will not provide a prisoner with the demand for trial form or process it if the prisoner is housed in a reception center. However, there is no lawful reason why reception center prisoners may not pursue their section 1381 speedy trial rights and waiting until transfer out of a reception center could delay resolution of a detainer for many months. A prisoner housed in a reception center thus may want to try filling in the form and sending it to the district attorney without endorsement by a prison official. When sending any legal forms without the prison’s assistance, the prisoner may wish to send the form to an outside party and have them send it via certified mail, with the green return receipt card sent to the outside party to save for future use, if needed.
Alternatively, a prisoner can file an administrative appeal (602) demanding that CDCR officials provide and process the demand for trial form. (It may be an exercise in futility, however, as the prison officials may just deny it by citing their DOM section 72040.6.1, which provides in part that “Demands for trial should not be initiated in the reception centers”). And of course, in many cases, a prisoner will be moved out of the reception center before the administrative appeal process is completed; in any event, the prisoner should get the demand for trial or dismissal forms from the records office at the new institution and file them as soon as possible.
Dismissal and Refiling Provisions for California Criminal Charges
Under Penal Code section 1381, a prosecutor is supposed to bring a prisoner to trial or sentencing on outstanding criminal charges within 90 days after receiving a speedy trial request. If the prisoner is not brought to trial or sentencing within 90 days, he or she is entitled to dismissal of the charges. The 90-day period stops running if the prisoner requests or agrees to a continuance beyond 90 days; the 90-day period will begin to run again from the date to which the matter is continued for trial or sentencing. The 90-day period also ceases to run if the prisoner is unavailable because he or she is involved in other criminal proceedings as a result of another demand for trial.
After 90 days have passed since the prosecutor received the written notice of the demand for trial, the prosecutor, the prisoner, the CDCR, or the court itself can request dismissal of the charges. If the 90-day period has passed, and the prisoner has not been brought for trial, the prisoner should send a motion to the court requesting dismissal in accordance with Penal Code section 1381 (with a copy of the motion for dismissal also sent to the prosecutor). The prisoner should be sure to include the case name and number and state the date upon which the speedy trial notice was sent. There also are standard CDCR forms that a prisoner can use to request dismissal, including CDCR Form 1006 (Cover Memo – Motion to Dismiss), CDCR Form 668 (Affidavit in Support of Motion to Dismiss Pending Charges), CDCR Form 669 (Motion to Dismiss Criminal Charges Pending), and CDCR Form 670 (Order of Dismissal) (copies of all forms attached below). At the same time that the prisoner moves for dismissal, he or she also should ask the prison records office to make the same request. A copy of the original “Notice and Demand for Trial,” and a copy of the green return receipt card should also be attached to the motion for dismissal forms packet sent to the court and to the prosecutor.
Unless the outstanding charges were for misdemeanors only, a dismissal under 1381 does not prohibit the prosecutor from refiling the charges. A case charging a felony, a mix of felonies and misdemeanors, or a "wobbler" offense (meaning a crime that could be charged as either a felony or a misdemeanor) may be refiled unless the charges have previously been dismissed two times. Furthermore, felony charges can be refiled, even if the charges had been dismissed twice before, if the court finds that substantial new evidence has been discovered that could not have been known to the prosecutors through the exercise of due diligence prior to the time of dismissal, or if the court finds that a prior dismissal was a result of direct intimidation of a material witness. In addition, if the dismissed charge was a violent felony as defined in Penal Code 667.5, the charge may be refiled after two previous dismissals if either of the dismissals was due solely to "excusable neglect” by the prosecutor.
Despite these refiling provisions, a prisoner who faces criminal charges that are refiled after the initial action was dismissed under section 1381 can argue that the second round of prosecution violates the federal and state constitutional right to a speedy trial. Also, a prisoner whose case is refiled after a dismissal, and who is then convicted, should be entitled to pre-sentence credits for any time served after the dismissal while still in prison (People v. Queen (1987) 194 Cal.App.3d 501).
(Credit to the California State Prisoners Handbook for much of the above information.)
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