[670]STANIFORTH, Acting P. J. I respectfully dissent.
The record here discloses the following “facts”1 of this case.
Facts
On August 16, 1983, Judge Charles E. Jones of the El Centro Municipal Court issued a warrant of arrest for murder of Greg Wiff. In December 1983, California authorities were advised Greg Wiff was actually William Sam Marshall who was in custody in Florida on warrants originating in Texas for parole violations.
On January 6, 1984, California authorities learned Marshall refused to waive extradition to California so they started extradition procedures. Marshall waived extradition to Texas and was transported there on January 29. On the same day, California authorities requested a hold on Marshall to be reinstated in their jurisdiction upon his arrival. On April 27, 1984, Marshall pled guilty on aggravated assault in Texas and was sentenced to four years.
On January 31, 1984, Marshall was indicted by a Texas Grand Jury for murder. Marshall and his attorney thereafter entered into negotiations with district attorneys in California and Texas. On May 11,1984, Marshall entered into a stipulation and agreement which provided Marshall would plead guilty to one count of murder in Texas for a term of life in prison and to one count of first degree murder in California for a term of 25 years to life in exchange for having both terms served concurrently in California. That same day, Marshall apparently pled guilty to murder in Texas.
On June 5, 1984, Marshall was sent a notice of untried indictment, information or complaint and right to request disposition about the pending charges in California.
On August 20, 1984, a Texas court ordered Marshall, “having properly waived extradition,” transferred to California for disposition of the pending murder charge and then retransferred to Texas for disposition of the Texas charges “and then returned to California where any sentence imposed in the [Texas case] shall run con-currently [szc] with any sentence imposed in California as provided in the agreement executed by the defendant, ...”
The same day, August 20, Marshall signed a notice of place of imprisonment and request for final disposition which was sent to the Imperial County District Attorney’s office, apparently on August 24. Six days later, [671]Imperial County Assistant District Attorney Larry E. Smith executed an acceptance of temporary custody offered for disposition of the detainer. The District Attorney of Imperial County in his brief represents this acceptance was signed because it was understood Marshall would not otherwise be released to California.
Marshall was transferred to California on September 20, 1984, and arraigned the following day. He pled not guilty. A preliminary hearing was set for October 3. On October 3, when it appeared Marshall would not abide by this stipulation but would continue to plead not guilty, Imperial County District Attorney Thomas Storey moved to dismiss because he was unable to proceed (due to lack of witnesses) with a preliminary hearing within the 10-day period required by Penal Code section 859b.2 Over Storey’s objection, Judge Jones ordered Marshall returned to Texas. Marshall was returned.
Meanwhile, according to the People’s brief, Marshall had withdrawn his guilty plea in Texas, apparently because the authorities believed it was necessary he plead guilty first in California in order to have the term served in California and after his return to Texas from California, the Texas murder charges were dismissed because of the inability to locate witnesses after the passage of time.
The California murder charges were refiled on August 5, 1985, and a hold again placed on Marshall in Texas. Marshall apparently waived extradition and was brought out to California where he was arraigned on September 20, 1985. On October 18, 1985, Marshall moved to dismiss the case because the prior dismissal of the charges against him was with prejudice pursuant to section 1389. The motion was denied. Following a preliminary hearing, Marshall was bound over for trial and an information charging him with murder, grand theft and an unlawful driving or taking of a vehicle was filed on November 1, 1985. Marshall’s section 995 motion to set aside the information was denied. He thereafter sought a writ of prohibition directing the Imperial County Superior Court to dismiss the information. We granted the writ. The Imperial County District Attorney sought and obtained the instant rehearing.
Discussion
I
Section 1389 is a codification of the Interstate Agreement on Detainers (Agreement) to which both California and Texas are parties. The Agreement [672]provides a method for transferring a prisoner from one jurisdiction to another for disposition of pending charges. Under the Agreement, once a state has lodged a detainer based on an uncharged indictment, information or complaint against a prisoner in another jurisdiction, the prisoner must be notified of the detainer and given an opportunity to request a final disposition of the pending charges. (Art. Ill, subd. (c).) Then, either the prisoner or the prosecutor in the state where charges are pending may initiate procedures leading to transfer and disposition of the charges. (Arts. Ill, IV.) If the prisoner requests final disposition of the charges, then she/he must be brought to trial within 180 days after the appropriate court and prosecutor have received formal notification. (Art. Ill, subd. (a).) If the prosecutor initiates proceedings to obtain transfer of the prisoner, then the prisoner must be brought to trial within 120 days of his/her arrival in the receiving state. (Art. IV, subd. (c).) Either the 180-day or 120-day period may be extended “for good cause shown in open court, the prisoner or his [or her] counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.” (Arts. Ill, subd. (a), IV, subd. (c).) However, a prisoner must be returned to the sending state “[a]t the earliest practicable time consonant with the purposes of [the] agreement.” (Art. V, subd. (e).)
The Agreement also provides: “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 purpose of the Agreement is “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.” (Art. I; People v. Wilson (1977) 69 Cal.App.3d 631, 634 [138 Cal.Rptr. 259].) Untried charges and detainers produce uncertainties which obstruct programs of prisoner treatment and rehabilitation. (Art. I; People v. Castoe (1978) 86 Cal.App.3d 484, 487 [150 Cal.Rptr. 237].) By implementing a prisoner’s right to a speedy trial, the Agreement seeks to minimize interference with such treatments and programs. (People v. Cella (1981) 114 Cal.App.3d 905, 920 [170 Cal.Rptr. 915].) The Agreement states it is to be liberally construed so as to effectuate its purpose. (Art. IX.)
II
The Agreement is not the only method of obtaining temporary custody of a person incarcerated in another jurisdiction. (United States v. Mauro (1978) 436 U.S. 340, 361 [56 L.Ed.2d 329, 347, 98 S.Ct. 1834, 1847]; [673]United States v. Woods (9th Cir. 1985) 775 F.2d 1059, 1069.) If the government proceeds by some other means, then the Agreement does not apply. (See United States v. Kenaan (1st Cir. 1977) 557 F.2d 912, 915, cert. den. 436 U.S. 943 [56 L.Ed.2d 784, 98 S.Ct. 2844]; United States v. Roy (2d Cir. 1985) 771 F.2d 54, 59, cert. den. (1986) — U.S. — [89 L.Ed.2d 918, 106 S.Ct. 1520; Johnson v. Williams (3d Cir. 1981) 666 F.2d 842, 844; United States v. Scallion (5th Cir. 1977) 548 F.2d 1168, 1173; Ridgeway v. United States (6th Cir. 1977) 558 F.2d 357, 361, cert. den. 436 U.S. 946 [56 L.Ed.2d 788, 98 S.Ct. 2850]; United States v. Woods, supra, 775 F.2d 1059, 1061; Kleinbart v. United States (D.C.App. 1981) 426 A.2d 343, 356-357; State v. Boone (1978) 40 Md.App. 41 [388 A.2d 150, 152]; Com. v. Florence (1979) 7 Mass.App. 126 [387 N.E.2d 152, 153]; Robison v. State (S.D. 1979) 278 N.W.2d 463, 464; Moore v. Whyte (W.Va. 1980) 266 S.E.2d 137, 141.) Once custody has been obtained by other means, the filing of a detainer may be viewed as a “meaningless event.” (United States v. Woods, supra, 775 F.2d 1059,1061.) Furthermore, the Agreement’s sanctions have been found inapplicable when the Agreement’s procedures were utilized, but not for the purpose of bringing the prisoner to the state to stand trial. (See, e.g., United States v. Dixon (6th Cir. 1979) 592 F.2d 329, 335 [prisoner brought to state in order to confer with counsel].)
In the case at bench, there initially arises a question as to whether the transfer here was completed pursuant to the Agreement. From the record before us, it does not appear whether Marshall executed his request for final disposition before or after the Texas court ordered Marshall transferred to California. The Texas court order makes no reference to Marshall’s request, but rather states: “. . . it is the order of the Court, that, this defendant be transferred, after having properly waived extradition to California, to said State of California and following the disposition of his charges there, be returned to the State of Texas for disposition of the above numbered and styled cause, and then returned to California where any sentence imposed in the above referenced and styled cause shall run con-currently [sic] with any sentence imposed in California as provided in the agreement executed by the defendant, and representatives of the States of California and Texas and a copy of which is attached hereto as Exhibit A, incorporated herein by reference for all purposes as in an original.” (Italics added.)
The Imperial County Assistant District Attorney’s request for temporary custody of Marshall was executed after this court order. The district attorney, in his brief, represents this formal request was made only because it was represented that without this request, Marshall would not be released to California. It further appears, as represented by the district attorney, that at the time Marshall was transferred to California, it was expected Marshall would plead guilty as provided in his written stipulation.
[674]These facts suggest Marshall’s transfer was a result of the stipulation and not due to invocations of the Agreement. Those invocations appear to have been mere formalities, believed by the parties to be necessary, but actually superfluous, meaningless events. If the transfer was pursuant to a stipulation, then the stipulation must govern the situation. The stipulation does not contain any time limitations on trial nor prohibitions on return to Texas before a trial in California.
Ill
A prisoner’s rights under the Agreement may be waived. (United States v. Rossetti (1st Cir. 1985) 768 F.2d 12, 18; see also People v. Cella, supra, 114 Cal.App.3d 905, 918.) A waiver will be found if a prisoner affirmatively requests to be treated in a manner contrary to the procedures prescribed by the Agreement. (Brown v. Wolff (9th Cir. 1983) 706 F.2d 902, 907.)
Numerous courts have found the dismissal sanctions of the Agreement do not apply if trial delay or a return was caused by the prisoner. (See, e.g., United States v. Ford (2d Cir. 1977) 550 F.2d 732, affd. sub nom. United States v. Mauro, supra, 436 U.S. 340 [56 L.Ed.2d 329, 98 S.Ct. 1834] [prisoner requested return]; United States v. Bryant (4th Cir. 1979) 612 F.2d 806, cert. den. 446 U.S. 920 [64 L.Ed.2d 274, 100 S.Ct. 1855] [delay due to prisoner’s need to prepare]; United States v. Boggs (5th Cir. 1980) 612 F.2d 991, cert. den. 449 U.S. 857 [66 L.Ed.2d 72, 101 S.Ct. 156] [return at prisoner’s request]; Gray v. Benson (10th Cir. 1979) 608 F.2d 825 [same]; United States v. Cumberbatch (S.D.N.Y. 1976) 438 F.Supp. 976, 979, affd. on other grounds (2d Cir. 1977) 563 F.2d 49, cert. den. 436 U.S. 946 [56 L.Ed.2d 788, 98 S.Ct. 2850] and affd. without opn. 598 F.2d 610 [delay due to prisoner’s pretrial motions—“since (the prisoner) has repeatedly obstructed the ‘expeditious and orderly disposition’ of this case, it is highly inappropriate to permit him to take advantage of a statute whose purpose is to encourage such a disposition”]; People v. Posten (1980) 108 Cal.App.3d 633 [166 Cal.Rptr. 661] [some of delay due to prisoner’s refusal to travel by air]; Naughton v. State (Del.Super. 1982) 453 A.2d 796 [delay due to prisoner being unrepresented and later making discovery motion]; Cobb v. State (1979) 244 Ga. 344 [260 S.E.2d 60] [delay due to prisoner’s numerous pretrial motions]; People v. Stroble (1971) 31 Mich.App. 94 [187 N.W.2d 474] [delay due to prisoner’s habeas corpus petition]; State v. Sallee (Mo.App. 1981) 624 S.W.2d 184 [delay due to defense not being prepared]; People v. Cook (1978) 63 App.Div.2d 841 [406 N. Y.S.2d 643] [some delay due to defense motions]; People v. Engelson (1977) 55 App.Div.2d 960 [391 N.Y.S.2d 446] [return at prisoner’s request]; Commonwealth v. Mallon (1980) 279 Pa.Super. 350 [421 A.2d 234, 239] [675][same because prisoner preferred sending state’s facility and had job there]; State v. Finley (1982) 277 S.C. 548 [290 S.E.2d 808] [delay due to prisoner’s motion]; 98 A.L.R.3d 160.)
It has been further held that “‘[a prisoner] cannot by his own action manufacture a violation of the [Agreement] and then seek relief under it.’” (United States v. Boggs, supra, (5th Cir. 1980) 612 F.2d 991, 993.) “[A prisoner] cannot lull the prosecution into plea bargaining attempts only to file for a discharge after the expiration of the 180 days.” (Commonwealth v. Martin (1971) 445 Pa. 49 [282 A.2d 241, 243] [prisoner transferred for trial, proceeded to engage in lengthy plea negotiations beginning 180 days]; see also People v. Cranmer (1976) 55 App.Div.2d 786 [389 N.Y.S.2d 905, 906] [delay due to prisoner changing mind about pleading guilty].)
United States v. Boggs, supra, 612 F.2d 991, involves a factual situation akin to the case at bench. In Boggs, the prisoner was incarcerated in North Carolina. Federal charges were pending in Georgia. The Georgia authorities lodged a detainer against him. The prisoner agreed to plead guilty to the North Carolina charges. The Georgia authorities agreed, but the prisoner was nevertheless transferred to Georgia. At the Georgia arraignment, Boggs requested to be returned to North Carolina to plead guilty. Once back in North Carolina, he wrote to Georgia authorities stating he was willing to plead guilty in Georgia. He was again transferred to Georgia, but pleaded not guilty. Following a trial, he was convicted in Georgia. He later moved to vacate his Georgia sentence on the ground the Agreement’s 120-day limitation and the trial-before-return provisions had been violated. The Fifth Circuit Court of Appeals disagreed, finding the prisoner had manufactured the violation of the Agreement and was not entitled to seek relief under it. (Id., at p. 993.)
As stated in People v. Cranmer, supra, 389 N.Y.S.2d 905, 906; “The defendant while incarcerated in Florida forwarded to the Binghamton City Court a demand for a speedy trial which was received on April 14, 1975 and apparently given to the District Attorney on the same day. The matter was scheduled for trial on October 6, 1975. The defendant contends that the matter was not timely disposed of pursuant to the provisions of article 580 of the Criminal Procedure Law because trial commenced after October 6, 1975. However, upon argument of this matter at the trial the District Attorney pointed out that the case was adjourned beyond the October 6 date because the defendant was going to plead guilty, but later changed his mind. This allegation was not disputed by the defendant and it is thus apparent that if he was not timely tried, it was at his own request and as the result of his own conduct. Under such circumstances there has been a waiver of his right to a speedy trial (cf. People v. White, 51 A.D.2d 221, 223, 380 [676]N.Y.S.2d 230, 231; People v. White, 33 A.D.2d 217, 305 N.Y.S.2d 875; see People v. Panarella, 50 A.D.2d 304, 377 N.Y.S.2d 709).”
Similarly, in the case at bench, there is at least circumstantial evidence Marshall created the facts giving rise to the violation of the agreement by lulling the El Centro authorities into believing he would be pleading guilty as agreed in the stipulation, requesting transfer to effectuate that stipulation and then breaching it. Marshall, of course, had the right to change his mind, to refuse to plead guilty. However, it is not just or a rational statutory interpretation to permit a defendant to request a transfer for the purpose of effectuating the stipulation, then to breach that stipulation, and upon this duplicitous basis, to obtain dismissal of the charges. Such a determination further appears inappropriate in light of the fact that Marshall’s return to Texas furthered the Agreement’s purposes of minimizing disruption of any treatment and rehabilitation programs. Marshall’s return resolved uncertainties of untried indictments, informations or complaints since there appear to have been charges pending in Texas against Marshall at the time of his return. (Neville v. Friedman (1977) 67 Ill.2d 488 [367 N.E.2d 1341, 1344].)
IV
The Agreement states it is to “be liberally construed so as to effectuate its purposes.” (Art. IX.) The Agreement states the underlying purpose is to resolve “uncertainties which obstruct programs of prisoner treatment and rehabilitation” by providing speedy disposition of uncharged indictments, informations and complaints. (Art. I.)
Numerous courts have recognized the Agreement was adopted to remedy abuses which occurred in the prior system which resulted in hardships to prisoners against whom detainers had been lodged, including the prisoner being automatically barred from special prison work programs, athletic programs and privileges, from incarceration in minimum security facilities; being denied the possibility of concurrent sentencing even for crimes resulting from a single episode or closely related in time; being ineligible for parole or commutation of sentence; and being prejudiced from delay in having the charges tried. As a result prisoners against whom detainers had been lodged had little incentive to perform well in prison. (See Carchman v. Nash (1985) 473 U.S. 716, 719-720, 730 fn. 8 [87 L.Ed.2d 516, 520, 527, 105 S.Ct. 3401, 3403, 3408-3409, fn. 8]; Cuyler v. Adams (1981) 449 U.S. 433, 448-449 [66 L.Ed.2d 641, 653-655, 101 S.Ct. 703, 712]; United States v. Mauro, supra, 436 U.S. 340; United States v. Ford, supra, 550 F.2d 732; United States v. Dobson (3d Cir. 1978) 585 F.2d 55, 58 fn. 9, cert. den. 439 U.S. 899 [58 L.Ed.2d 247, 99 S.Ct. 264]; Kerr v. Finkbeiner (4th Cir. 1985) 757 F.2d 604, 607, cert. den. 474 U.S. 929 [88 L.Ed.2d [677269], 106 S.Ct. 263]; United States v. Gallipoli (5th Cir. 1979) 599 F.2d 100, 102; Ridgeway v. United States, supra, 558 F.2d 357, 361; Cooper v. Lockhart (8th Cir. 1973) 489 F.2d 308, 314, fn. 10; Burrus v. Turnbo (9th Cir. 1984) 743 F.2d 693, 697; Grey v. Benson, supra, 608 F.2d 825, 827; People v. Lewis (Colo. 1984) 680 P.2d 226, 229-230; State v. Anonymous (1980) 36 Conn.Supp. 327 [419 A.2d 904, 906]; Christian v. United States (D.C.App. 1978) 394 A.2d 1, 34, cert. den. (1979) 442 U.S. 944 [61 L.Ed.2d 315, 99 S.Ct. 2889 (1979)]; Webb v. State (Ind. 1982) 437 N.E.2d 1330, 1331; People v. Christensen (1984) 102 Ill.2d 321 [80 Ill.Dec. 302, 465 N.E.2d 93, 96]; State v. Boone, supra, 388 A.2d 150, 152; Boyd v. State (1982) 51 Md.App. 197 [441 A.2d 1133, 1137 and fn. 5], affd. 294 Md. 103 [447 A.2d 871]; Robison v. State, supra, 278 N.W.2d 463, 464; see also H.Rep. No. 91-1018, p. 3 (1970); S.Rep. No. 91-1356, p. 3(1970), 1970 U.S. Code Cong. & Admin. News, p. 4864; Council of State Governments, Suggested State Legislation (1956), Program for 1957, p. 74.) “The remedial purposes of the [Agreement on Detainers] should not be frustrated by technicalities unrelated to its purpose of facilitating the speedy trial or other resolution of charges pending against prisoners incarcerated in other jurisdictions. . . . ‘The signatories to the Agreement did not intend to let technical violations operate to release duly convicted prisoners from serving the balance of their sentences ....’” (Hearn v. State (Utah 1982) 642 P.2d 757, 759; see also State v. Quiroz (1980) 94 N.M. 517 [612 P.2d 1328, 1331].)
The courts, mindful of the purposes of the Agreement, have refused to extend the Agreement’s sanction of dismissal to situations where these purposes would not be furthered. Thus, the United States Supreme Court in Carchman v. Nash (1985) 473 U.S. 716 [87 L.Ed.2d 516, 105 S.Ct. 3401], held the trial within 180-day provision of the Agreement does not apply to a prisoner who faces a revocation of probation not only because the express language of the Agreement refers to an “untried indictment, information or complaint” and to a prisoner being “prosecuted” or “brought to trial” (id., at p. 725 [87 L.Ed.2d at p. 523,105 S.Ct. at pp. 3405-3406]), but also because “the abuses that in part motivated adoption of the Agreement generally do not occur in the context of probation-violation detainers” (id., at p. 731 [87 L.Ed.2d at p. 527, 105 S.Ct. at p. 3409]).
Similarly, the Agreement has been held inapplicable to detainers based on parole violations. (See, e.g., United States v. Dobson, supra, 585 F.2d 55.) Likewise, because the Agreement’s purposes would not be furthered, it has been held not to apply to pretrial detainees. (See, e.g., United States v. Roberts (6th Cir. 1977) 548 F.2d 665, 670-671, cert. den. 431 U.S. 931 [53 L.Ed.2d 246, 97 S.Ct. 2636]; United States v. Reed (9th Cir. 1980) 620 F.2d 709, 711.) As the court explained in State v. Olson (1985) 146 [678]Ariz. 336 [705 P.2d 1387, 1389]: “A pretrial detainee has no immediate interest in any institutional program of treatment or rehabilitation because the nature of his continued confinement is uncertain and contingent upon the outcome of the trial and the imposition of sentence.”
Further, courts have recognized in some circumstances the policies underlying the Agreement’s antishuttling provision, i.e., minimizing disruption to the prisoner’s program of treatment and rehabilitation, is best served by returning the prisoner to the sending state before trial. Thus, the court in State v. Grizzell (Fla.App. 1981) 399 So.2d 1091, 1092-1093, reasoned the sanction of dismissal was not warranted when the prisoner was returned to the sending state pending appeal of a dismissal of the charges not only because the prisoner had contested a stay of his return, but also because the return “was in furtherance of the stated purpose of the act to ‘prevent excessive interference with the prisoner’s rehabilitation in a state prison system.’ [Citations.]” The court noted the appeal took nearly 20 months and had the prisoner remained in the receiving state for the 20 months, “such extended stay would clearly have been excessive interference with his rehabilitation in the [sending state’s] prison system.” (Id., at p. 1093; see also People v. Dye (1977) 69 Ill.2d 298 [371 N.E.2d 630]; Neville v. Friedman, supra, 367 N.E.2d 1341, cert. den. 437 U.S. 903 [57 L.Ed.2d 1132, 98 S.Ct. 3088].)
Courts have also held a brief removal of a prisoner from another state’s custody with a return before trial does not result in any significant disruption of the prisoner’s program of treatment and rehabilitation and therefore does not require the sanction of dismissal. (See United States v. Chico (2d Cir. 1977) 558 F.2d 1047, cert. den. 436 U.S. 947 [56 L.Ed.2d 788, 98 S.Ct. 2850]; Sassoon v. Stynchombe (5th Cir. 1981) 654 F.2d 371; United States v. Boyce (E.D.Va. 1981) 518 F.Supp. 862, affd. without opn. (4th Cir. 1982) 681 F.2d 817; People v. Cella, supra, 114 Cal.App.3d 905; State v. Sassoon (1978) 240 Ga. 745 [242 S.E.2d 121]; People ex rel. Franciotti v. Flood (1975) 50 App.Div.2d 913 [377 N.Y.S.2d 186]; see also United States v. Simmons (W.D.Pa. 1977) 437 F.Supp. 621, affd. without opn. (3d Cir. 1978) 586 F.2d 836 [federal and state prisoners housed in same facility]; Prince v. State (Tex.App. 1982) 638 S.W.2d 550 [same].)
In People v. Cella, supra, 114 Cal.App.3d 905, 921, this court found the sanction of dismissal for returning a prisoner before trial as provided in article IV, subdivision (e), was not warranted when a prisoner in federal custody made a brief state court appearance for arraignment and was returned to federal custody before trial. We found while article IV, subdivision (e), had been “technically violated,” his return to federal custody before trial “did not violate his rights under the Agreement because the apparent result [679]of the expedited return was to enable him to participate in presumedly rehabilative programs” at the federal facility. (Ibid.) We observed the prisoner had “never alleged and [had] thus failed to establish that his right to uninterrupted rehabilitative incarceration was prejudiced in any manner by the return” to the federal facility. (Ibid.)
In Celia, we declined “to apply article IV, subdivision (e), mechanically in total disregard of the stated purposes of the agreement.” (Ibid.) We adopted a “more pragmatic, less absolute” construction of article IV, subdivision (e) (id., at p. 920), one which focused on whether the prisoner’s “transfer” or “return” was consistent with the stated purposes of the Agreement (id., at p. 921). We concluded an automatic dismissal without consideration of whether the return was consistent with the Agreement’s purpose of minimizing disruption to the prisoner’s program of treatment and rehabilitation “‘would be based upon a construction of the Agreement against, rather than in behalf of, the legitimate interest of [defendant] in receiving rehabilitative education while in federal custody.’ [Citation.]” (Ibid.)
The reasoning of Celia is sound: The courts should not mechanically apply article IV, subdivision (e), in total disregard of its stated purposes. The courts must look to whether the return was consistent with the Agreement’s purposes and whether the prisoner’s right to uninterrupted rehabilitative incarceration was prejudiced in any way before applying the sanction of dismissal.
In the instant case, at the time Marshall was transferred to California, he faced an indictment for murder in Texas. Thus, his Texas incarceration was not only punishment for an aggravated assault conviction but also a pretrial detention. As such, it cannot be said Marshall had an immediate interest in an institutional program of treatment or rehabilitation in Texas because the nature of his continued confinement was uncertain and contingent upon the resolution of both the California and Texas charges. Further, Marshall was transferred to California to facilitate the plea agreement’s provision Marshall would be incarcerated in California. In other words, Marshall, as indicated by the plea agreement, contemplated an institutional program of treatment and rehabilitation in California, not Texas.
Once Marshall failed to plead guilty, his immediate return to Texas furthered the purposes of the Agreement. Returning Marshall to Texas furthered the Agreement’s aim of providing a prisoner with a speedy resolution of outstanding charges; so long as Marshall remained in California, the Texas charge would remain unresolved. Return also furthered the Agreement’s aim of minimizing interference with programs of treatment and rehabilitation [680]which might be available to a prisoner; a return to Texas after 13 days in California certainly furthered this purpose more than retaining Marshall in Imperial County jail as a pretrial detainee for almost a year while the prosecutor prepared his case.
Finally, Marshall has failed to show his right to an uninterrupted rehabilitative incarceration was prejudiced in any way by his return to Texas.
Many of the “facts” referred to in this dissent are representations made by the Imperial County District Attorney in his brief; there was no evidentiary hearing below. Accepting arguendo the majority’s statutory interpretation, yet remand for further proceedings is absolutely essential to determine the true facts before such drastic action as dismissal of murder charges with prejudice.
As will be herein documented, the crying need is for thorough fact finding on certain critical issues at the trial level before determining the legal merit of Marshall’s claim. The lack of certainty is reflected in the factual recital.
A11 statutory references are to the Penal Code unless otherwise specified.