Opinion
C077172
01-05-2018
THE PEOPLE, Plaintiff and Appellant, v. JOHN THOMAS ABRAMS, Defendant and Respondent.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14F04292)
While defendant John Thomas Abrams was serving a prison sentence in Nevada, the Sacramento County District Attorney (DA) filed a detainer, i.e., a request asking the institution in which defendant was incarcerated to either hold him for the DA or notify the DA when defendant's release was imminent. (Carchman v. Nash (1985) 473 U.S. 716, 719 [87 L.Ed.2d 516, 520] (Carchman).) The detainer was based on a complaint filed by the DA charging defendant in Sacramento County with nine counts of lewd and lascivious acts with a minor.
The Interstate Agreement on Detainers (IAD, Pen. Code, § 1389 et seq.) required the DA to bring defendant to trial on the complaint within 180 days after defendant asked the DA for a final disposition of the complaint, but when the DA did not meet the 180-day deadline, the DA dismissed the initial complaint charging lewd acts. However, the DA subsequently filed a second complaint against defendant asserting different charges based on the same underlying conduct: the second complaint did not charge defendant with lewd acts, it charged him with oral copulation, sexual penetration by a foreign object and sodomy. The trial court dismissed the second complaint, ruling that the IAD barred the second complaint (even though a detainer had not been filed regarding the second complaint or the specific charges asserted in the second complaint) because the second complaint was based on the same underlying conduct as the first complaint. We will reverse the judgment.
Undesignated statutory references are to the Penal Code.
BACKGROUND
The DA filed a complaint against defendant in Sacramento County Superior Court case No. 12F06393 on October 11, 2012. The complaint asserted nine counts alleging lewd and lascivious acts with victim A.R. between July 12, 2012, and July 22, 2012 (§ 288, subd. (c)(1)). Counts one and two charged lewd acts based on alleged oral copulation at the Greenbrier Motel. Count three charged a lewd act based on alleged sexual penetration with a foreign object. Count four charged a lewd act based on alleged anal sex at the Greenbrier Motel. Count five charged lewd acts based on defendant allegedly kissing the minor's neck and mouth at the Greenbrier Motel. Count six charged a lewd act based on alleged oral copulation at Discovery Park. Counts seven and eight charged lewd acts based on alleged oral copulation at the Greenbrier Motel with M.C. present. And count nine charged a lewd act based on the alleged anal sex at the Greenbrier Motel with M.C. present.
The Nevada Department of Corrections acknowledged receipt of a detainer filed by the DA against defendant pursuant to the IAD. Defendant was serving a prison sentence in Nevada at the time for crimes unrelated to those in the case before us.
On July 9, 2013, defendant sent a request for disposition of indictments, informations or complaints to the DA and the Clerk of the Sacramento County Superior Court in relation to case No. 12F06393. Defendant requested final disposition of all untried indictments, informations or complaints on the basis of which detainers had been lodged against him pursuant to the IAD. The DA received defendant's request on July 23, 2013.
The DA sent Nevada a written request to transfer defendant to Sacramento for trial. Defendant was eventually transferred to Sacramento and arraigned on the complaint in case No. 12F06393, but the DA subsequently dismissed the complaint apparently because the DA failed to bring defendant to trial within the 180-day limit in section 1389.
The DA then filed a second complaint on June 26, 2014 (Sacramento County Superior Court case No. 14F04292), charging defendant with sexual offenses against Jane Doe which allegedly occurred between July 12, 2012, and July 22, 2012. Counts one and two charged oral copulation (§ 288a, subd. (c)(2)) at the Greenbrier Motel. Count three charged sexual penetration with a foreign object (§ 289, subd. (a)(1)). Count four charged sodomy (§ 286, subd. (c)(2)). Count five charged oral copulation at Discovery Park. Counts six and seven charged oral copulation at the Greenbrier Motel with M.C. present. And count eight charged sodomy (§ 286, subd. (c)(2)). While count eight alleged an act of sodomy with John Doe, this appears to be a drafting error because the People and defendant agreed the charges in case No. 14F04292 were based on the same acts as the charges in case No. 12F06393.
Defendant was arraigned on the complaint in case No. 14F04292, entered a not guilty plea, and then moved to dismiss the case pursuant to section 1389 on the ground that the conduct alleged in case No. 14F04292 was the same as the conduct alleged in dismissed case No. 12F06393. The People opposed the motion. The trial court said the question was how the IAD treats an act that can violate more than one statute, and acknowledged that the decision was difficult. The trial court recognized that cases cited by the parties held that only the specific charges subject to a detainer had to be dismissed, but the trial court said those cases did not appear to contain the same "identity of charges" as appears in this case. Nevertheless, the trial court ultimately focused on the fact that here, the conduct underlying the charges in each complaint were exactly the same. The trial court granted the motion to dismiss the second complaint pursuant to section 1389.
STANDARD OF REVIEW
This case concerns the interpretation of section 1389. That statute codified the IAD, a compact among 48 States, the District of Columbia, Puerto Rico, the Virgin Islands, and the United States. (Carchman, supra, 473 U.S. at p. 719.) Because it is a congressionally-sanctioned interstate compact, the IAD is a federal law subject to federal construction. (Id. at p. 719.)
Our task is guided by well settled rules. We review de novo issues involving the interpretation of statutes. (People v. Mgebrov (2008) 166 Cal.App.4th 579, 585.) Our goal is to ascertain and effectuate legislative intent. (People v. Ramirez (2009) 45 Cal.4th 980, 987.) In order to determine that intent, we begin by examining the language of the statute. (People v. Thomas (1992) 4 Cal.4th 206, 210.) We give " 'the words of the statute their usual and ordinary meaning. When the statutory language is clear, we need go no further. If, however, the language supports more than one reasonable interpretation, we look to a variety of extrinsic aids, including the objects to be achieved, the evils to be remedied, legislative history, the statutory scheme of which the statute is a part, contemporaneous administrative construction, and questions of public policy.' " (People v. Ramirez, supra, at p. 987.)
DISCUSSION
The Attorney General argues the trial court erred in dismissing the second complaint because the charges in that complaint are different from those in the complaint upon which the detainer was based.
The focus of the IAD is on detainers. "Adoption of the [IAD] was motivated in part by a practice of filing detainers based on untried criminal charges that had little basis. These detainers often would be withdrawn shortly before the prisoner was released. Even though unsubstantiated, the detainers would have a detrimental effect on the prisoner's treatment. Article III [of the IAD] enables a prisoner to require the State lodging the detainer either to drop the charge and resulting detainer or to bring the prisoner to trial. In this way, the prisoner can clear his record of detainers based on unsubstantiated charges." (Carchman, supra, 473 U.S. at pp. 729-730; United States v. Mauro (1978) 436 U.S. 340, 359-360 [56 L.Ed.2d 329, 346-347].) Accordingly, article I of section 1389 states that it is a purpose of the statute to encourage the expeditious and orderly disposition of charges outstanding against a prisoner. (Carchman, supra, at p. 720.) Article I recognizes that charges outstanding against a prisoner produce uncertainties which obstruct programs of prisoner treatment and rehabilitation. (§ 1389; Carchman, supra, at pp. 719-720.) The provisions of the IAD are triggered only when a detainer is filed with the custodial state by another state having untried charges pending against the prisoner. (United States v. Mauro, supra, at p. 343.)
Specifically, section 1389 provides that an official having custody of a prisoner shall promptly inform the prisoner of the source and contents of any detainer lodged against him or her and of his or her right to make a request for final disposition of an indictment, information or complaint on which the detainer is based. (§ 1389, art. III, subds. (a), (c), (d).) The prisoner shall be brought to trial within 180 days after causing to be delivered written notice of the place of his or her imprisonment and his or her request for a final disposition to be made of the indictment, information or complaint, provided that the court may grant a necessary or reasonable continuance for good cause shown. (§ 1389, art. III, subd. (a).) If the prisoner is not brought to trial within 180 days, the court shall dismiss the indictment, information or complaint on which the detainer is based, and the related detainer shall cease to be of any force or effect. (§ 1389, art. V, subd. (c).) The language of section 1389 confirms that its provisions apply to matters on which a detainer is based. (See Layton v. State (Wyo. 2007) 150 P.3d 173, 177-178 (Layton); Grant v. United States (D.C. 2004) 856 A.2d 1131, 1139-1141; Espinoza v. State (Tex.Ct.App. 1997) 949 S.W.2d 10, 12-13 (Espinoza); Johnson v. State (Tex.Ct.App. 1995) 900 S.W.2d 475, 479; Parker v. United States (D.C. 1991) 590 A.2d 504, 507-508; People v. Newton (Colo. 1988) 764 P.2d 1182, 1189-1190; State v. Taylor (2001) 63 Conn.App. 386, 414-415; Morrison v. State (2005) 272 Ga.App. 34, 37, overruled on another ground in State v. Slaughter (2011) 289 Ga. 344, 346, fn. 4; Commonwealth v. Boyd (1996) 451 Pa.Super. 404, 409-410; State v. Wells (1994) 94 Ohio.App.3d 48, 57; see also People v. Greenwald (Colo. 1985) 704 P.2d 312, 316-317 [construing art. IV, subd. (c), of the IAD].)
As the trial court recognized in this case, and as case precedent indicates, we must consider whether there are identical charges in the two complaints. The parties do not suggest that the DA could have survived a section 1389 motion to dismiss if it had simply filed a complaint with the same charges or counts a second time. The question is whether the second complaint should survive the motion to dismiss because it asserted different charges, even though those new charges were based on the same conduct. We conclude that it should because no detainer was filed on the new charges or counts.
Court decisions from this state and other states support our conclusion. In People v. Oiknine (1999) 79 Cal.App.4th 21 (Oiknine), the People requested a detainer based on a complaint charging the defendant with stalking, attempted extortion, making a terrorist threat, assault with a firearm, assault with a deadly weapon, and perjury. (Id. at p. 23.) After the defendant submitted a request for final disposition pursuant to the IAD, the grand jury issued a superseding indictment containing five of the six counts in the complaint plus six new charges. (Ibid.) "The new charges were perjury in an application for a driver's license, dissuading a witness by force or threat and four counts of eavesdropping." (Id. at p. 24.) The trial court granted the defendant's motion to dismiss all 11 counts in the superseding indictment pursuant to the IAD. (Ibid.) But the Court of Appeal held that while section 1389 required dismissal of the five counts from the original complaint, it did not require dismissal of the new charges which were not specified in the detainer. (Oiknine, supra, at pp. 27-28.) The Court of Appeal rejected the defendant's contention that section 1389 prohibited " 'piecemeal prosecution.' " (Oiknine, supra, at p. 28.) It said, " 'The prisoner cannot by filing [a speedy trial] request force the government to any premature decision whether or not to instigate formal charges against him. The prisoner's rights under the IAD do not extend so far. While it is true that the IAD's provisions are to be 'liberally construed,' . . . this does not warrant a disregard of the clear language and structure of the IAD.' " (Ibid.)
It is unclear from the Oiknine opinion whether the old and new counts arose from the same facts or event, but the Court of Appeal relied on United States v. Sanders (9th Cir. 1982) 669 F.2d 609, a case in which the old and new charges were related. (Oiknine, supra, 79 Cal.App.4th at p. 27.) The court in Sanders held that the 180-day time limit in article III of the IAD did not apply to subsequently filed charges for related offenses even if the prosecutor, at the time the detainer was lodged, had reason to believe the defendant committed the related offenses. (United States v. Sanders, supra, at p. 610 [IAD required dismissal of theft count upon which a detainer was issued against the defendant, but not the theft and conspiracy to steal goods in foreign shipment counts which were subsequently added to an indictment].) The court in Sanders concluded the IAD applied only to untried charges that were pending at the time the detainer was filed. (Ibid.)
Other courts have held that the 180-day time limit and dismissal requirement in the IAD do not apply to charges for which a detainer was not filed, even if the charges arose from the same transaction or event. (Layton, supra, 150 P.3d at p. 177; Espinoza, supra, 949 S.W.2d at pp. 11-13; State v. Crawford (Vt. 1999) 737 A.2d 366, 369.) In Layton, the old and new charges arose from an August 11, 2003, incident in Wyoming in which the defendant fled from a highway patrol trooper who was attempting to apprehend the defendant as he was trying to steal a car. (Layton, supra, at pp. 174-175.) The prosecutor charged the defendant with (1) burglary based on unlawful entry into the car, (2) attempted larceny of the car, (3) property destruction based on breaking one of the car windows, and (4) attempted first degree murder of the trooper. (Ibid.) The prosecutor filed a detainer against the defendant based on those four counts. (Id. at p. 175.) The defendant, who was serving a sentence in Oregon, requested final disposition of the Wyoming charges under the IAD and he was transferred to Wyoming for trial. (Ibid.) Before the preliminary hearing, the prosecutor filed an amended information that contained five new counts based on the August 11, 2003, incident: (5) robbery based on attempted larceny of the car and bodily injuries inflicted on the trooper, (6) attempted interference with a peace officer, (7) burglary based on unlawful entry into another car the defendant stole in order to escape, (8) larceny for the theft of the second car, and (9) wrongful taking or disposing of property based on disposing of the second car in Iowa. (Id. at p. 175.) Examining the language of articles III and V, subdivision (c), in Wyoming's version of the IAD, which contained language analogous to section 1389, and the decisions from other courts, the Wyoming Supreme Court held the 180-day time period and the dismissal requirement in the IAD were limited to pending charges upon which the detainer was based (Layton, supra, at p. 177), but did not apply to new charges even if those charges arose out of the same criminal transaction as the charges forming the basis for the detainer. (Ibid.)
Defendant cites People v. C'Allah (N.Y. 1984) 100 A.D.2d 754 in his appellate brief, but that case did not conduct an analysis based on the IAD. In C'Allah the People filed a superseding indictment as a result of the discovery of new evidence after the defendant was brought to New York presumably as a result of a detainer based on the original indictment. (Id. at p. 754.) The superseding indictment contained different charges than those in the first indictment. (Ibid.) The defendant argued on appeal that the People violated the 180-day time limit in the IAD. (Ibid.) The People countered that the IAD was not applicable to the superseding indictment. (Ibid.) The appellate division of the trial court held that the People may not avoid the time limitations in the IAD by procuring another indictment, whether it arises out of the discovery of new evidence or otherwise. (Ibid.) But the appellate division in C'Allah did not discuss the language of the IAD (N.Y. Crim. Proc. Law § 580.20), which contained provisions similar to our section 1389. (People v. C'Allah, supra, at pp. 754-755.) Instead, the appellate division relied on a case discussing New York's speedy trial rights statute (N.Y. Crim. Proc. Law § 30.30), which did not involve the IAD. (People v. C'Allah, supra, at pp. 754-755.) C'Allah has not been subsequently cited for the proposition that the IAD time limit applies to a superseding indictment upon which no detainer is filed.
In this case the trial court recognized that prior cases said only the specific charges subject to a detainer had to be dismissed; nevertheless, the trial court said those cases did not appear to contain the same "identity of charges" as appears in this case. We conclude, however, that there is no identity of charges in the two complaints. Although defendant's underlying alleged conduct was the same in both complaints, the charges in the two complaints were different. The first complaint charged lewd and lascivious acts (§ 288, subd. (c)(1)), whereas the second complaint charged oral copulation (§ 288a, subd. (c)(2)), sexual penetration with a foreign object (§ 289, subd. (a)(1)), and sodomy (§ 286, subd. (c)(2)). Under the circumstances, section 1389's 180-day time limit and dismissal requirement do not apply to the second complaint (case No. 14F04292) upon which no detainer was based.
DISPOSITION
The judgment is reversed and the matter is remanded to the trial court for further proceedings.
MAURO, J. We concur: BUTZ, Acting P. J. NICHOLSON, J.
Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------