Opinion
Statement of the Case
On February 12, 1976, an information was filed charging the appellant Howard David Castoe with two separate violations of Penal Code section
On May 7, 1976, the court granted a motion by appellant’s trial counsel for an indefinite continuance in sentencing pending his apprehension. Appellant was subsequently incarcerated in Texas for an offense committed in that state. While incarcerated he submitted a written request dated July 20, 1976, to the Fresno County District Attorney and the Fresno County Superior Court in which he asked to be returned to California for sentencing. The district attorney refused the request. After Castoe’s release in Texas, he returned to California where he was arrested on an outstanding bench warrant. On January 27, 1977, appellant filed a motion to dismiss, the denial of which is the basis for this appeal. Appellant sought dismissal on the grounds that the district attorney’s refusal to return him to California for sentencing was a violation of the Interstate Agreement on Detainers (Pen. Code, § 1389 et seq.).
On February 8, 1977, the trial court entered a judgment of conviction for violation of Penal Code section 476a and appellant was sentenced to state prison for the term prescribed by law. This appeal followed.
Discussion
The Interstate Agreement on Detainers (Pen. Code, § 1389) to which both California and Texas are parties, provides a mechanism whereby a prisoner in one jurisdiction can be transferred, upon request, to another jurisdiction for disposition of charges pending against him. The purpose of the agreement is to promote the expeditious and orderly disposition of charges outstanding against a prisoner and to require prompt determination of the proper status of detainers based on untried indictments, informations, or complaints. Such untried charges and detainers produce uncertainties which obstruct programs of prisoner treatment and rehabilitation. (Pen. Code, § 1389, art. I.) A prisoner entitled to the protection of the agreement who complies with the procedure set forth in article III, subdivision (a), must be transported to the jurisdiction where the charges are pending and tried on those charges within the 180-day period of limitations, or the charges must be dismissed and any detainer based thereon ceases to have effect. (Art. V, subd. (c).)
The appellant states that the purpose of the agreement is to permit a prisoner incarcerated in one state to know the final disposition of any other state’s charges against him in order to maximize the prisoner’s potential for rehabilitation through the elimination of uncertainty. He argues that final disposition, in this context, includes sentencing.
Nowhere in the statute is there a reference to sentencing. The agreement repeatedly refers to “untried indictments, informations or complaints.” Article I of section 1389 states the policy as follows: “it is the policy of the party states and the purpose of this agreement to encourage the expeditious and orderly disposition of such charges and determination of the proper status of any and all detainers based on untried indictments, informations or complaints.” This same article also states: “that proceedings with reference to such charges and detainers . . . cannot properly be had in the absence of cooperative procedures. It is the further purpose of this agreement to provide such cooperative procedures.”
Appellant fails to understand that the word “disposition” in article I refers to “disposition of such charges” and that the charges referred to are “charges outstanding against a prisoner” based on untried indictments, informations or complaints. The detainers referred to throughout the whole statute are “detainers based on untried indictments, informations or complaints.” Appellant’s argument that the words “final disposition” as used in section 1389 must include sentencing is incorrect because those words are to be read in the context of section 1389 which refers repeatedly to untried indictments, informations or complaints. Article III, subdivision (a), is very clear that there must be a pending untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner before the wheels of the statute can commence to turn.
Further evidence that the Legislature did not intend to require that a prisoner be returned for sentencing alone appears from a
Section 1389 contemplates that the defendant will be returned to California for trial on untried indictments, informations, and complaints and if the defendant is found guilty the section contemplates that the defendant will remain for sentencing. In this sense section 1389 contemplates sentencing. This section does not contemplate that a defendant who is tried and found guilty who escapes to a foreign jurisdiction will have the benefit of being brought back to California, at the state’s expense, to be sentenced and then returned to the foreign jurisdiction at California’s expense.
There is an additional reason why section 1389 does not apply here. The section does not become effective until three things occur: (1) there is an untried indictment, information or complaint pending in a California court; (2) the defendant named in said untried indictment, information or complaint is a prisoner serving time in a foreign
Even if the section did apply to this case, appellant has not substantially complied with its procedural requirements. Article III, subdivision (a), provides that the 180-day period is to run from the date the prisoner “shall have caused to be delivered” a written notice and request for final disposition to the district attorney and the court. Article III, subdivision (b), clearly states that the prisoner shall give or send the notice and request to the warden, commissioner of corrections or other official having custody of the prisoner. Even if it is assumed that a detainer was lodged in this case, article III, subdivision (b), does not permit a prisoner’s self-help effort to start the running of the 180-day period. The prisoner must give or send the notice and request to the proper official in the prison where he is incarcerated. The official then is to promptly forward that notice and request along with the certificate to the district attorney and the court by registered or certified mail, return receipt requested.
In
People
v.
Wilson
(1977)
Article III, subdivision (b), requires the defendant to give the notice and request to the warden. There is nothing in the statute that would prevent the defendant from sending a copy of the notice and request to the district attorney and the court. It should be clear, however, that the copy
We hold that section 1389 does not apply to sentencing and further hold that a detainer must be filed before a prisoner can utilize this statute to bring about his trial or a dismissal of the untried charges.
The trial court’s ruling in denying the motion to dismiss was proper because in fact the appellant was before the court within the 180 days. The appellant’s request was dated July 20, 1976. The postmark on the envelope was July 22, 1976. Giving appellant the benefit of instantaneous notice (i.e., July 20, 1976), he was before the court on the 177th day from the date of his request.
Appellant, accompanied by counsel, appeared before Judge Leonard I. Meyers of the Fresno County Superior Court on January 12, 1977. At appellant’s request the case was referred to the probation office for a supplemental report and recommendation and appellant was given leave to file whatever motions he cared to file no later than January 20, 1977. The case was then continued to January 27, 1977, at 2 p.m. for pronouncement of sentence and hearing on the motions that were to be made in the interim. Thus, the delay beyond 180 days was in response to appellant’s request.
The fact that appellant was not sentenced within 180 days is not fatal because the extension of time was not only for the probation report but also because of appellant’s request (treated as a motion) to continue for sentencing and the filing of motions.
The judgment is affirmed.
Brown, (G. A.), P. J., and Hopper, J., concurred.
Appellant’s petition for a hearing by the Supreme Court was denied February 14, 1979.