People v. Queen

Opinion

CAMPBELL, P. J. The defendant was charged in San Bernardino County with the offense of committing a petty theft with a prior conviction of [503]petty theft in violation of Penal Code section 666.1 Before having been brought to trial in San Bernardino County, he was arrested, charged, convicted and sentenced to prison for an offense in Orange County. He filed a written notice of his place of confinement and a request to be brought to trial for the San Bernardino offense within 90 days as provided in section 1381. The authorities did not bring him to trial within the 90-day period and on motion of the defendant, the San Bernardino proceedings were dismissed. A new complaint was subsequently filed against him and after a preliminary hearing, he was held to answer on the offense charged. An information was filed charging him with a violation of section 666 with the further allegations that he had suffered four prior convictions for nonviolent felonies within the immediate preceding five years, in violation of section 667.5, subdivision (b). He was convicted by a jury of the offense of violation of section 666 and thereafter, having waived a jury, the court found two of the four section 667.5 allegations to be true. He was sentenced to the midterm of two years for the violation of section 666 and to one year for each prior prison term for a total prison commitment of four years. He was given credit for actual time in custody of 114 days, conduct credit of 57 days, for a total presentence custody credit of 171 days.

The defendant argues that he is entitled to presentence custody credits on the basis of his demand for trial pursuant to section 1381. We agree.

“Section 1381 provides generally that one serving a term of imprisonment in a state prison or county jail, and against whom criminal proceedings are pending in any court of this state, may deliver written notice to the prosecutor of such proceedings of his desire to be brought to trial thereon. Upon such notice, the statute requires that the defendant shall be brought to trial within 90 days; if not so brought to trial the action, upon the defendant’s motion, shall be dismissed.

“Such a dismissal, where the charge is a felony, is not a bar to another prosecution for the same offense; it is res judicata of none of the issues of the action, and the defendant has not suffered prior jeopardy as a result.” (People v. Manina (1975) 45 Cal.App.3d 896, 899 [120 Cal.Rptr. 51]; see also Crockett v. Superior Court (1975) 14 Cal.3d 433, 435-440 [121 Cal.Rptr. 457, 535 P.2d 321], and People v. Clark (1985) 172 Cal.App.3d 975, 981-983 [218 Cal.Rptr. 481].)