Marshall v. Superior Court

183 Cal. App. 3d 662, 228 Cal. Rptr. 364, 1986 Cal. App. LEXIS 1835

• Court: California Court of Appeal
• Decided: July 21, 1986
• Docket: D003951
• Status: Published

Opinions

Opinion

WORK, J.

I

William Sam Marshall seeks a writ of prohibition to prevent further prosecution of murder charges against him on the ground his right to speedy trial under the Agreement on Detainers (hereinafter referred to as IAD), Penal Code section 1389, has been denied. He relies on article III, subdivisions (a) and (d) of that act. Subdivision (a) gives a “person [who] has entered upon a term of imprisonment in a penal or correctional institution of a party state” the right to demand a trial within 180 days of his properly delivered written request for final disposition of matters as to which a detainer has been lodged against him from another state. Subdivision (d) states that when a prisoner who has made such a request is transferred to the “receiving state” for disposition of pending charges, if he is not tried on the pending charges before being returned to the original place of custody, proceedings in the receiving state must be dismissed with prejudice.¹

The purposes of the IAD are to expedite disposition of untried criminal matters in one jurisdiction affecting a prisoner in another jurisdiction, both to protect the prisoner’s speedy trial rights as to such untried matters and also to minimize the interruption of his rehabilitative incarceration. (See, e.g., People v. Cella (1981) 114 Cal.App.3d 905, 916, 920-921 [170 Cal.Rptr. 915].)

In order to come within the terms of the I AD, a person must be a prisoner who has “entered upon a term of imprisonment. . . .” (Pen. Code, § 1389, art. Ill, subd. (a).) That language has been uniformly construed to refer only to convicted prisoners, not to pretrial detainees.

For reasons we shall discuss more fully, because Marshall was serving a term of imprisonment in Texas when he was brought to California pursuant to his demand under the I AD to be tried within 180 days, the statute has been violated, and dismissal with prejudice is mandatory.

II

The Imperial County Superior Court issued a warrant of arrest for Marshall on murder charges (Pen. Code, § 187). Marshall was located in Florida, but before he could be extradited here, was transferred to Texas where he was indicted for a different murder. The district attorneys in Harris County, Texas and in Imperial County, and Marshall began negotiating a possible concurrent disposition of the murder charges in both states.

On April 27, 1984, Marshall was convicted in Texas of an unrelated felony, aggravated assault, and commenced serving a four-year prison term, with credit for time served since November 1, 1983.

On May 11,1984, Marshall and his Texas attorney signed an understanding with the district attorneys in Texas and California regarding the pending murder charges in both jurisdictions. Its terms were as follows: (1) Marshall agreed to plead guilty to one count of murder in Texas, stipulated to a life term of imprisonment, and agreed to waive extradition to California; (2) the Texas murder term would be served in California and run concurrent to any terms imposed here; (3) Marshall further agreed to plead guilty in California to one count of first degree murder, with stipulated punishment of 25 years to life. The agreement recited, “It is the intent of all parties concerned that the defendant is to plead guilty to murder in Texas and in California and to serve his term of imprisonment in the California prison system.”

On June 5, 1984, the Texas Department of Corrections served Marshall with a formal “Notice of Untried Indictment, Information or Complaint and of Right to Request Disposition” prescribed by the Agreement on Detainers relating to the pendency of the untried California murder charge. Marshall responded by mailing to the District Attorney in El Centro on August 20, 1984, the “Inmate’s Notice of Place of Imprisonment and Request for Disposition of Indictments, ...” That form constituted a request for a timely disposition of the California murder charge within the terms of section 1389 which, under the provisions of article III, subdivision (a), quoted ante, gave Marshall the absolute right to be tried within 180 days of August 20, 1984, absent continuances for good cause, or waiver of that right.

At some time between the signing of the understanding by Marshall and the district attorneys (on May 11, 1984), and Marshall’s IAD request to be brought to trial (made Aug. 20, 1984), the parties found the understanding could not be effectuated because for Marshall to serve both murder terms in a California penitentiary, the California judgment of conviction had to predate the Texas conviction. Accordingly, he was permitted to withdraw his plea of guilty to the Texas murder and awarded a new trial on that charge. Marshall was therefore serving only a prison term for the Texas assault when, on August 20, he demanded speedy disposition of the California charge.

In September 1984, Marshall, pursuant to his IAD demand, was temporarily released by the Texas prison authorities from the assault commitment for the purpose of being taken to California for the disposition of the murder charge pending here. Once here, he broke his word and refused to plead guilty to murder. The matter was set for preliminary examination on October 3, 1984, but when it was called, the People elected not to proceed, and the case was dismissed.² Marshall was then returned to Texas over his objection to stand trial on the murder charge there.

For reasons not exactly clear, the Texas authorities were unable to prove the outstanding murder charge against Marshall and that charge was dismissed. Marshall remained in the Texas prison on his assault commitment and the Imperial County District Attorney filed a new complaint on the same California alleged murder, on August 5, 1985. In September 1985, Marshall waived extradition, was returned to California and arraigned on the new complaint charging the same murder. He moved for dismissal pursuant to Penal Code section 1389, contending the first dismissal of the California murder charge must be deemed to be with prejudice within the terms of Penal Code section 1389, article III, subdivision (d). His petition for writ of prohibition challenges the refusal of the superior court to dismiss his case.

Ill

The People acknowledge Marshall was a prisoner serving a term of imprisonment in Texas on the felony assault when he executed and served his demand under section 1389. However, the People contend that section 1389 does not require dismissal of the charges here because Marshall never intended to avail himself of the right to speedy disposition of the pending California charges, but only to use the IAD as a procedural vehicle to secure transportation to California to carry out a favorable plea bargain which he had struck with the prosecution in both Texas and California. The facial attractiveness of this argument is evident here where two separate murder charges to which Marshall once had agreed to plead guilty are being dismissed.³

However, section 1389 applied to Marshall when he made his demand. Thus, he became statutorily entitled to the procedural protections of the IAD, regardless of his private bargain with the district attorneys. We have been cited to no case holding the existence of such a separate stipulation⁴ somehow makes the IAD’s statutory provisions inoperative. Where the IAD is applicable, it is the exclusive means of transfer of prisoners and its remedial provisions do not become irrelevant simply because the transfer request was not made pursuant to the act. (United States ex rel. Esola v. Groomes (3d Cir. 1975) 520 F.2d 830, 837; United States v. Sorrell (E.D.Pa. 1976) 413 F.Supp. 138, 140, affd. 562 F.2d 227, cert. den. 436 U.S. 949 [56 L.Ed.2d 793, 98 S.Ct. 2858].) However, the mechanism of the statute was explicitly invoked here, and the forms printed for that purpose were used.⁵ No language in the parties’ stipulation waives any rights under section 1389.

Further, the relevant portion of the statute clearly mandates dismissal with prejudice when, as here, the prisoner has made his request for final disposition, has been brought to the state where the untried matter is pending, and then is returned to the original state without trial being had on the unresolved matter: “If trial is not had on any indictment, information or complaint contemplated hereby prior to the return of the prisoner to the original place of imprisonment, such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.” (Art. Ill, subd. (d).) The use of the term “shall” makes dismissal with prejudice mandatory.

The People’s reliance on People v. Cella, supra, 114 Cal.App.3d 905, is inapposite. There we interpreted a different portion of the agreement, namely article IV, subdivision (e), which also mandates dismissal with prejudice of charges in the receiving jurisdiction where the prisoner is returned to the original custodial jurisdiction without trial being had on the pending matter in the second jurisdiction. We held “untenable” the proposition that article IV, subdivision (e) provides for no exceptions, and contemplated only one “transfer” or return. (People v. Cella, supra, 114 Cal.App.3d at p. 920.) Where a facial violation of the statute existed, we indicated a willingness to examine the nature of the custodial interruption to see whether it interfered with the purposes of the agreement to implement the right to a speedy trial and to minimize interference with rehabilitative custody. (Ibid.) In Celia, a technical violation of the statute had occurred when he was briefly removed from federal custody for state court appearances on a matter to which he eventually pleaded guilty, the violation consisting of his transfer from federal prison to state court and back again on a few occasions before resolution of the state matter. In the state proceedings, Celia (unlike Marshall here) expressly waived his right to a speedy trial. Accordingly, the court was not concerned with the agreement’s first purpose, to expedite speedy trials, and examined only the second, concluding that the brief interruptions did not prejudice Celia’s right to uninterrupted rehabilitative custody in the federal prison to any cognizable degree.

Here, however, Marshall never waived his right to a speedy trial on the California charge. He invoked the provisions of article III of the agreement by his demand for prompt disposition. By the unambiguous language of the statute, he was then entitled to be brought to trial within 180 days of his demand, and also to have the proceedings resolved in one uninterrupted episode. When the California charges were dismissed in October 1984, and Marshall was returned to Texas, the statute on its face was violated. We have here no brief and technical interruption of custody, nor waiver of speedy trial rights, as in Cella, but rather a substantial violation of the statutory mandate. Dismissal under such circumstances is mandatory. (People v. Reyes (1979) 98 Cal.App.3d 524, 538 [159 Cal.Rptr. 572].)

Nor were the People somehow trapped, as they have implied, by Marshall’s failure to plead guilty as originally agreed.⁶ They could have sought, under section 1389, article III, subdivision (a) “any necessary or reasonable continuance” of the matter, rather than permitting the case to be dismissed. The record discloses no impediment to such a course. Instead, they allowed dismissal and interruption of the proceedings, thus invoking mandatory dismissal provisions of article III. Even lengthy continuances for the purpose of completing good faith efforts to arrange for out-of-state witnesses or to deal with pretrial defense motions and good faith plea negotiations are permitted. (See United States v. Scallion (5th Cir. 1976) 533 F.2d 903; State v. Sallee (Mo.App. 1981) 624 S.W.2d 184; and State v. Hamilton (Minn. 1978) 268 N.W.2d 56, where the People did not move for a continuance until the day before the 180-day limit expired, and the motion was not granted until several days later.) Instead, the People did nothing, apparently content to have Marshall returned and processed by the Texas authorities. This is factually similar to the scenario addressed in Commonwealth v. Klimek (1965) 416 Pa. 434 [206 A.2d 381, 382] where the state was held to have lost jurisdiction because “[t]he simple truth is that the district attorney, acting on his own, failed to call the indictments for trial ...” instead of asking the court for continuances.

Finally, the People ask us to “consider” the disposition of a factually similar case in People v. Christensen (1983) 113 Ill. App. 3d 938 [448 N.E.2d 222], where a defendant was removed from federal custody to face state charges in Illinois pursuant to the Agreement on Detainers. Once the defendant was within the jurisdiction of the Illinois courts, the People found they were unable to prove the case and elected not to prosecute, triggering an automatic dismissal of the indictment. The defendant was promptly returned to federal custody. Unlike the case with which we deal, the Illinois prosecutor emphatically stated an intent to refile charges when he was prepared to go forward. Seven months later the defendant was reindicted and, again pursuant to the I AD, was removed from federal custody to the Illinois court. This, said the Illinois Court of Appeal, was permissible. Although not brought to our attention by the People, we note this decision was reversed by the Illinois Supreme Court in People v. Christensen (1984) 102 Ill.2d 321 [465 N.E.2d 93], relying on the mandatory language of the statute requiring dismissal with prejudice if a prisoner is returned to the original place of imprisonment before trial is had and rejecting technical maneuvering by the prosecution in an attempt to toll the statute. (Id., at p. 97.)

Let a writ of prohibition issue restraining Imperial County from taking further action in superior court number 12728, People v. William Sam Marshall, except to dismiss the case.

Wiener, J., concurred.

1 The pertinent portions of the statute in full provide:

“Section 1389:

“Article III

“(a) 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 cause 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.

“(d) Any request for final disposition made by a prisoner pursuant to paragraph (a) hereof shall operate as a request for final disposition of all untried indictments, informations or complaints on the basis of which detainers have been lodged against the prisoner from the state to whose prosecuting official the request for final disposition is specifically directed. The warden, commissioner of corrections or other official having custody of the prisoner shall forthwith notify all appropriate prosecuting officers and courts in the several jurisdictions within the state to which the prisoner’s request for final disposition is being sent of the proceeding being initiated by the prisoner. Any notification sent pursuant to this paragraph shall be accompanied by copies of the prisoner’s written notice, request, and the certificate. If trial is not had on any indictment, information or complaint contemplated hereby prior to the return of the prisoner to the original place of imprisonment, such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.”

2 Marshall’s attorney asked to have a transcript of the proceedings prepared and asked the magistrate to stay any orders to return Marshall to Texas, stating there was going to be an issue in superior court for which it would be relevant. The magistrate refused and ordered Marshall returned to Texas “forthwith.”

3 We are not told whether there’s any procedural bar to refiling the Texas murder charge should proof of Marshall’s guilt be available.

4 The plea bargain on which the People here bottom their argument was not found to have any such permanent effect in Texas. There, when Marshall returned, the charges were dismissed when the state was unable to proceed to trial.

5 The People’s argument that Marshall was brought to California pursuant to his written bargain and not the IAD is factually incorrect.

6 The People always recognized Marshall might renege. The written agreement was signed by Marshall, his Texas lawyer and the District Attorney of Harris County, Texas, and Imperial County, California. It contains two separate sections, one entitled Texas and one labeled California. The former portion states, “should for any reason the defendant not carry through with this agreement. . . said defendant waives extradition from California for . . . further judicial proceedings.” The latter section reads, “Should this agreement not be carried out, for any reason . . . .”