35 Cal. App. 5th 399
Cal. Ct. App. 5th2019Background
- Defendant (Joseph Smith) previously pled no contest to grand theft, was given a specific jail term but execution was suspended and he was placed on probation.
- After alleged probation violations, prosecutors in another county convicted him and he began serving a state prison term.
- Defendant sent a Penal Code section 1381 demand to the original county, requesting sentencing within 90 days for the pending probation revocation matter.
- The original court revoked probation, issued a removal order to bring defendant from custody, but defendant was not returned within 90 days; he moved to dismiss under section 1381.
- The trial court denied dismissal, ruling section 1381 did not apply because defendant had already been "sentenced" when the court imposed a sentence and suspended its execution; the court alternatively found prosecutorial diligence.
- On appeal the court affirmed, holding section 1381 does not apply where a sentence has been imposed and execution suspended, and thus dismissal under section 1381 was unavailable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Penal Code § 1381 applies when a court has imposed a sentence but suspended its execution and placed the defendant on probation | § 1381 applies because defendant still "remains to be sentenced" upon probation termination and court could later recall/resentence under § 1170(d) | § 1381 does not apply because defendant was already "sentenced" when the court pronounced judgment, even if execution was suspended; thus he does not "remain to be sentenced" | Section 1381 does not apply where a sentence has been imposed and execution suspended; defendant was already "sentenced." |
Key Cases Cited
- People v. Wagner, 45 Cal.4th 1039 (discussed § 1381's purpose; left question here unanswered)
- People v. Scott, 58 Cal.4th 1415 (a defendant is "sentenced" when judgment imposing punishment is pronounced even if execution is suspended)
- People v. Howard, 16 Cal.4th 1081 (court must impose previously imposed but stayed sentence upon probation revocation)
- Boles v. Superior Court, 37 Cal.App.3d 479 (§ 1381 does not apply to sentences whose execution is stayed)
- In re Flores, 140 Cal.App.3d 1019 (same interpretation for related federal-removal provision)
- Lee v. Hanley, 61 Cal.4th 1225 (statutory interpretation starts and ends with plain text)
- Cohen v. Wright, 22 Cal. 293 (identical words in similar contexts receive the same construction)