People v. Eldridge

Opinion

PUGLIA, P. J.

Under Penal Code section 1381 (section 1381) a state prisoner who is charged with another crime while serving his prison sentence must be tried on the new charge within 90 days after he has delivered to the district attorney a written demand to be brought to trial. If he is not brought to trial within 90 days, the court, on motion of the defendant, must dismiss. If the charges are refiled, must the defendant then deliver a new demand to avail himself of the benefits of section 1381? We conclude that he must. Since the defendant here did not do so, we grant the People’s appeal from the order dismissing refiled charges for failure to bring them to trial within 90 days.

While serving a term at San Quentin prison, defendant delivered to the Butte County District Attorney a section 1381 demand for trial within 90 days. The demand recited that on March 27, 1995, a felony complaint was filed in Butte County charging defendant with evading an officer and causing injury (Veh. Code, § 2800.3) and with assault with a deadly weapon (Pen. Code, §245, subd. (a)(1)), and alleging defendant inflicted great bodily injury (Pen. Code, § 12022.7, subd. (a)) and had served a prison term. (Pen. Code, § 667.5, subd. (b).)

The district attorney acknowledged receipt of defendant’s demand on June 12, 1995. Defendant was arraigned on the Butte County complaint July 6, 1995. At the scheduled August 3, 1995, preliminary hearing, an essential

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prosecution witness did not appear and the complaint was dismissed on the prosecutor’s motion.

Identical charges were alleged in a felony complaint filed August 14, 1995. A preliminary hearing on the refiled charges was held on November 9, 1995, after which defendant was held to answer. On November 16, 1995, an information was filed charging defendant with evading an officer and causing injury (Veh. Code, § 2800.3) and hit and run involving serious injury or death (Veh. Code, § 20001, subd. (b)(2)). The information also alleged defendant had served a prison term. (Pen. Code, § 667.5, subd. (b).) On November 21, 1995, defendant pleaded not guilty and denied the alleged prior prison term. Trial was set for January 22, 1996.