Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 043365
CANTIL-SAKAUYE, J.
Seven and one-half years after the crime, defendant was convicted by plea of first degree burglary (Pen. Code, § 459) and he admitted a prior serious felony (§§ 667, subds. (b)-(i) & 1170.12). On appeal, he contends the prosecution’s failure to lodge a detainer against him pursuant to the Interstate Agreement on Detainers (§ 1389) while he was imprisoned in Texas violated his right to a speedy trial. He further contends this failure was prejudicial misconduct by the prosecutor.
Hereafter, undesignated statutory references are to the Penal Code.
Defendant’s no contest plea limits what he can raise on appeal. Under California law, while he may raise a violation of the Interstate Agreement on Detainers, he cannot raise a claim that his speedy trial rights were violated. Since his contention rests on a denial of speedy trial rights rather than a statutory violation, it is not cognizable on appeal. Nor has defendant shown prosecutorial misconduct. We affirm the conviction, but because the trial court failed to orally pronounce sentence, we remand for sentencing.
FACTS
In July 2001, defendant entered a West Sacramento, Yolo County residence and took multiple items of property.
During the investigation of this crime, a crime scene investigator lifted seven latent prints from the residence, including a print found on a red tin box in the bedroom. Two of these prints were sent to the Department of Justice in April of 2002, but no matches were found. In 2004, all seven of the prints were resubmitted because the other five palm prints could now be compared as the automated palm print system was up and running. This time a print on the red tin matched the defendant.
In May 2004, a criminal complaint charging defendant with the 2001 first degree burglary was filed in Yolo County. Over four years later, in December 2008, the complaint was amended to add a second count of grand theft of a firearm and two “strike” priors of residential burglaries in Texas. This amendment came after defendant was released from prison in Texas, arrested by the U.S. Marshall, and extradited back to California.
Defendant filed a motion to dismiss for lack of prosecution. Defendant argued the prosecution had a duty to inform him of the pending charges and to inform him of his right to demand trial. Defendant claimed the prosecution’s failure to comply with this duty violated his right to due process. Defendant also asserted that count 2 of the amended complaint was barred by the statute of limitations. The People conceded this point. Count 2 was dismissed, but the court denied defendant’s motion as to count 1.
After defendant was held to answer, he renewed his motion to dismiss for lack of prosecution.
After this motion was denied, defendant accepted a plea bargain. Under the terms of the bargain, defendant pled no contest to count 1 and admitted one prior serious felony in exchange for dismissal of the other prior serious felony and a sentence of eight years (the midterm of four years doubled).
Because defendant has a conviction for a serious felony, he is not entitled to any additional presentence credit under recent amendments to sections 4019 and 2933. (§ 4019, former subds. (b)(2) & (c)(2); Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50; § 2933, subd. (e)(3); Stats. 2010, ch. 426.)
Defendant appealed and obtained a certificate of probable cause.
DISCUSSION
I.
Issues Cognizable on Appeal After Plea
Defendant’s appeal raises issues under both the Interstate Agreement on Detainers (IAD) and the constitutional right to a speedy trial. Only the former is cognizable on appeal after a conviction by plea.
“Ordinarily, a defendant who pleads guilty or nolo contendere may not appeal on the ground of denial of speedy trial. This is because such a claim usually involves whether the passage of time frustrated the defendant’s ability to prove innocence, an issue removed from the case by the defendant’s admission of guilt. [Citation.] An exception has been made in cases involving the statutory form of speedy trial rights for out-of-state prisoners under the Interstate Agreement on Detainers, codified in section 1389. That statute provides for mandatory dismissal of pending California charges against out-of-state prisoners if not resolved within the time limits specified. The denial of a motion to dismiss under section 1389 may be reviewed despite a subsequent guilty plea, because the defendant’s objection goes to the legality of the proceedings notwithstanding defendant’s actual guilt. [Citation.]” (People v. Gutierrez (1994) 30 Cal.App.4th 105, 108.)
“As a general rule a guilty plea does not constitute a waiver of a violation of the IAD properly asserted before the plea is entered. [Citations.]” (People v. Brooks (1987) 189 Cal.App.3d 866, 870, but see People v. Nitz (1990) 219 Cal.App.3d 164, 170 [recognizing waiver of IAD rights either by express waiver or guilty plea].) In his two motions to dismiss for lack of prosecution, defendant raised the claim that the prosecution failed to give him proper notice under the IAD. Accordingly, he may assert his claim of an alleged violation of the IAD on appeal.
Many other jurisdictions have held that a prisoner’s rights under the IAD are nonjurisdictional and can be waived by the entry of a guilty plea. (E.g., Baxter v. United States (8th Cir. 1992) 966 F.2d 387, 389; United States v. Fulford (3d Cir. 1987) 825 F.2d 3, 10; Kowalak v. United States (6th Cir. 1981) 645 F.2d 534, 536-537; United States v. Paige (D.R.I. 2004) 332 F.Supp.2d 467, 471-472; Gray v. Benson (D. Kan. 1978) 458 F.Supp. 1209, 1212, aff’d, 608 F.2d 825 (10th Cir. 1979); Williams v. Maryland (D. Md. 1978) 445 F.Supp. 1216, 1222; Strawderman v. United States (E.D. Va. 1977) 436 F.Supp. 503, 504; Davis v. State (Ala.Crim.App.1985) 469 So.2d 1348, 1350; State v. Gourdin (Ariz.Ct.App. 1988) 751 P.2d 997, 998; People v. Carroll (Colo. Ct. App. 1996) 939 P.2d 452, 454; Moore v. United States (D.C. 1999) 724 A.2d 1198, 1199; Sherman v. State (Idaho App. 1984) 693 P.2d 1071, 1072; Mohler v. State (Md.App. 1990) 579 A.2d 1208, 1211-1212; People v. Wanty (Mo.Ct.App. 1991) 471 N.W.2d 922, 923; Rivera v. State (Mo.Ct.App. 2003) 106 S.W.3d 635, 639-640; State v. Ternaku ( N.J.Super.Ct.App.Div. 1978) 383 A.2d 437, 439; People v. Cusick (N.Y.App.Div. 1985) 111 A.D.2d 251, 251-252; State v. Tucker (S.C. Ct. App. 2008) 656 S.E.2d 403, 406; State v. Penman (Utah Ct. App. 1998) 964 P.2d 1157, 1164; Pethel v. McBride ( W.Va. 2006) 638 S.E.2d 727, 744.)
The denial of speedy trial rights is not cognizable on appeal following a plea of guilty or no contest, even if the defendant has obtained a certificate of probable cause. (People v. Aguilar (1998) 61 Cal.App.4th 615, 617; People v. Lee (1980) 100 Cal.App.3d 715, 717.)
II.
Defendant Has Not Shown a Violation of the IAD
The IAD “is a compact among 48 States, the District of Columbia, Puerto Rico, the Virgin Islands, and the United States.” (Carchman v. Nash (1985) 473 U.S. 716, 719 [87 L.Ed.2d 516, 520].) Its purpose is “‘to encourage the expeditious and orderly disposition of [outstanding] charges and determination of the proper status of any and all detainers based on untried indictments, informations or complaints.’ [Citation.]” (Id. at p. 720 [87 L.Ed.2d at p. 521].) “To achieve this purpose, Art. III of the [IAD] establishes a procedure by which a prisoner incarcerated in one party State (the sending State) may demand the speedy disposition of ‘any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner’ by another party State (the receiving State). Specifically, Art. III requires the warden to inform the prisoner that a detainer has been lodged against him and that he may request final disposition of the indictment, information, or complaint upon which the detainer is based. If the prisoner makes such a request, the warden must forward it, together with a certificate providing certain information about the prisoner’s terms of confinement, to the appropriate prosecuting official and court of the receiving State. The authorities in the receiving State then must bring the prisoner to trial within 180 days, absent good cause shown, or the court must dismiss the indictment, information, or complaint with prejudice, and the detainer will cease to be of any force or effect.” (Id. at pp. 720-721 [87 L.Ed.2d at p. 521], fn. omitted.)
Both California and Texas are signatories to the IAD. (§ 1389; Vernon’s Ann. Texas C.C.P., art. 51.14.)
“For the IAD to apply, three conditions must exist: ‘(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 jurisdiction; and (3) the district attorney lodges a detainer based on such untried indictment, information or complaint against the prisoner in such foreign jurisdiction.’ [Citation.]” (People v. Lavin (2001) 88 Cal.App.4th 609, 616.)
While the first two requirements are met here, the third is not; no detainer was lodged. A formal detainer must be filed before an inmate may invoke the provisions of the IAD. (People v. Brooks, supra, 189 Cal.App.3d 866, 874.) “The lodging of a detainer or presenting a request is discretionary with the district attorney.” (People v. Castoe (1978) 86 Cal.App.3d 484, 490.) Since the prosecutor did not lodge a detainer against defendant, the provisions of the IAD do not apply. Accordingly, there is no violation of the IAD for defendant to raise on appeal after his no contest plea.
Defendant contends the district attorney had a duty to file a detainer. He contends similar statutes that address prompt resolution of actions pending against imprisoned defendants, such as sections 1381 and 1381.5, contain an implied duty to notify defendant of pending charges and such a requirement is necessary to preserve a defendant’s right to a speedy trial.
Section 1381 provides that a person serving a term in a state prison, against whom another criminal charge was either pending at the time his term began or was filed during the time he was serving it, has a right to have the new charge brought to trial in 90 days after written notice to the district attorney, and, if the action is not brought to trial within the 90-day period, the court, either on its own motion, on the motion of the district attorney, or the person confined or his counsel, must dismiss the charge.
In People v. Cave (1978) 81 Cal.App.3d 957, the defendant came within the provisions of section 1381, but the prosecution made no effort to notify him of the pending charges so that he could demand a speedy trial under the statute. The court found, “in order to activate the demand requirement, the law establishes that such prisoner is entitled to reasonably prompt notice of the pending charge through the filing of a ‘detainer, ’ ‘hold, ’ or similar document; otherwise, a prosecutor could refrain from lodging a ‘detainer’ or ‘hold, ’ thereby thwarting the prisoner’s right to demand a speedy trial. [Citations.] Accordingly, when the prosecuting authorities know that the person charged with a criminal offense in their jurisdiction is serving a prison term in a California penal institution, they should either promptly take steps to obtain the prisoner for trial on the pending charge or make certain that the prisoner has notice of the pending charge by filing a ‘detainer’ or ‘hold’ with the appropriate authorities. [Citations.]” (Id. at pp. 963-964.)
Although the court found there was a duty to notify defendant of pending charges, the remedy where this duty was not fulfilled was not the statutory remedy of dismissal under section 1381. “We conclude that where no ‘hold, ’ ‘detainer, ’ or similar document has been placed on a prisoner which would alert him to the right to exercise his choice under Penal Code section 1381, the failure to request trial under that statute is excused and the standard to apply to a claim of denial of a speedy trial is the same basic test for such a claim where no specific statute is involved, i.e., by ‘weighing the prejudicial effect of the delay on defendant against any justification for the delay.’ [Citation.]” (People v. Cave, supra, 81 Cal.App.3d at p. 965.)
The same implied notice requirement and the same remedy for failure to give notice apply under section 1381.5. “Just as section 1381 governs the right of California prisoners to be brought to trial on pending charges within 90 days of request, its companion statute, section 1381.5, provides federal prisoners, such as defendant, with an analogous 90-day right. [Citations.]” (People v. Vila (1984) 162 Cal.App.3d 76, 81.) “The prosecution had a duty to promptly notify defendant of the pending charges and to inform him of his right to demand trial under the relevant statutory provision.” (Id. at p. 82.) Again, the remedy for failure to give notice is not the statutory remedy of dismissal. “Accordingly where, as here, the prosecutor has failed to give the requisite notice which would alert a defendant to the right to exercise his choice under section 1381.5, claim of a speedy trial denial is to be tested by nonstatutory constitutional standards.” (Id. at p. 84.)
While courts have found an implied duty under sections 1381 and 1381.5 to notify an imprisoned defendant of pending charges, no court has found a similar implied duty to lodge a detainer against a defendant under the IAD. Instead, the decision whether to lodge a detainer has been found to be “discretionary with the district attorney.” (People v. Castoe, supra, 86 Cal.App.3d at p. 490.) At least one court, however, has expressed unease about the potential for injustice by requiring a prosecutor to lodge a detainer to trigger defendant’s rights under the IAD. “A prosecutor motivated solely by a desire to increase a defendant’s punishment can circumvent the spirit of the statute by electing not to lodge a detainer after receiving the defendant’s request until the inmate’s out-of-state sentence is nearly completed.” (People v. Brooks, supra, 189 Cal.App.3d at p. 874.) Despite this concern, the Brooks court followed the unanimous view that the IAD did not apply until the prosecution lodged a formal detainer. (Ibid.) As the Brooks court noted, there may be valid reasons for not filing a detainer. “Admittedly a prosecutor may decide to postpone lodging a detainer for legitimate reasons. For example, it may be appropriate to keep the inmate’s case on the back burner pending further investigation and consideration as to whether dismissal of the charges is appropriate after the inmate has served a reasonable period of time in the other jurisdiction.” (Ibid.)
We decline to engraft onto the IAD statute a requirement that the Legislature could, but did not, impose. The legislative history of the IAD does not support adding a requirement that the prosecutor must lodge a detainer. “The purpose of the IAD is to encourage expeditious disposition of criminal charges through cooperative procedures among the member jurisdictions. [Citations.] Although provisions of the IAD have speedy trial implications, the legislative history shows little concern about speedy trial rights per se. The omission is understandable because at the time the agreement was drafted, the Sixth Amendment right to speedy trial was considered inapplicable to state prison inmates. Although this view has since changed [citations], the problems with detainers correctly or incorrectly were seen solely as being administrative.” (People v. Brooks, supra, 189 Cal.App.3d at p. 872.)
Further, in this case, defendant has not shown that the prosecution knew he was imprisoned in Texas, only that the People should or could have known because defendant was released to Texas authorities in 2001 from Sonoma County. Thus, he asks us to impose an additional duty on the prosecution to find him. We decline to do so.
Moreover, even if we were to find the prosecutor had an implied duty to lodge a detainer against defendant, defendant’s claim on appeal would not succeed. Where courts have found the implied duty under sections 1381 and 1381.5 to notify defendants of pending charges was breached, they have not found that a violation of the statute triggers the statutory remedy of dismissal. Instead, in those cases, courts have excused the defendant’s failure to comply with the requirements of the statute and the defendant’s remedy is to show a denial of his right to a speedy trial. Here, defendant cannot raise denial of his right to a speedy trial because he entered a no contest plea. (People v. Aguilar, supra, 61 Cal.App.4th at p. 617.) Thus, defendant seeks to raise indirectly that which he cannot raise directly--that his right to a speedy trial was violated. This he cannot do.
Defendant has failed to show a violation of the IAD.
III.
Defendant Has Not Shown Prosecutorial Misconduct
Defendant contends the failure of the prosecutor to lodge a detainer against him pursuant to the IAD while he was imprisoned in Texas was prejudicial prosecutorial misconduct. He relies on dicta in People v. Lowe (2007) 40 Cal.4th 937, 942 and People v. Brooks, supra, 189 Cal.App.3d 866, 874, that suggests an intentional delay in providing notice of pending charges, depriving defendant of the opportunity to request speedy sentencing, may constitute misconduct. Since there is no evidence of intentional delay, and since we have concluded the IAD imposes no requirement on the prosecutor to lodge a detainer, we find no prosecutorial misconduct.
IV.
The Case Must Be Remanded for Oral Pronouncement of Sentence
Our review of the record reveals that the trial court neglected to orally pronounce sentence. The plea agreement, with its eight-year sentence, was placed on the record. The trial court accepted defendant’s no contest plea, admission of the prior, and waiver of rights. Defendant requested immediate sentencing and waived a presentence report. The court, however, never indicated it intended to sentence defendant in accordance with the plea agreement, and never orally sentenced defendant. Instead, it proceeded to calculate his presentence credits and impose a restitution fine. The abstract of judgment, however, shows an eight-year sentence. We remand for pronouncement of sentence.
In a criminal case, judgment is rendered when the trial court orally pronounces sentence. (People v. Karaman (1992) 4 Cal.4th 335, 344, fn. 9; People v. Mesa (1975) 14 Cal.3d 466, 471.) “After conviction of a felony and where probation is denied, the court must pronounce judgment upon the defendant by imposing a fine or a sentence of imprisonment. [Citations.] Judgment must be pronounced orally in the presence of the defendant, and it must reflect the court’s determination of the matter before it. [Citation.] The pronouncement of judgment is a judicial act [citation], and is to be distinguished from the ministerial act of entering the judgment as pronounced in the minutes or records of the court. [Citation.]” (People v. Hartsell (1973) 34 Cal.App.3d 8, 13, disapproved on another point in People v. Karaman, supra, at p. 345, fn. 11.)
“In a case where the court fails to pronounce judgment with respect to counts on which convictions were validly obtained, the Court of Appeal has power to remand for the purpose of pronouncement of a judgment in accordance with the verdict. [Citation.] When such a mistake is discovered while defendant’s appeal is pending, the appellate court should affirm the conviction and remand the case for a proper sentence. [Citation.]” (People v. Taylor (1971) 15 Cal.App.3d 349, 353.)
Section 1191 requires that judgment be pronounced within 20 judicial days of the plea unless time is extended. “A judgment pronounced following the statutory time limit may not be reversed on appeal unless the delay resulted in a miscarriage of justice. [Citations.]” (People v. Cunningham (2001) 25 Cal.4th 926, 1044.) We find no prejudice in the trial court’s failure to pronounce judgment; defendant makes no claim of prejudice arising from the delayed sentencing and the record before us affords no basis for concluding any prejudice will result from the delay in such sentencing. Defendant has yet to be sentenced properly and the trial court is under a mandatory duty to pronounce judgment upon him. (Hoffman v. Superior Court (1981) 122 Cal.App.3d 715, 724.)
DISPOSITION
The conviction is affirmed. The matter is remanded for pronouncement of sentence.
We concur: BLEASE, Acting P. J., MAURO, J.