Filed 8/29/13 P. v. Fort CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v. A135126
DAMAREA ANTHONY FORT,
(Solano County
Defendant and Appellant. Super. Ct. No. FCR258669)
Defendant Damarea Anthony Fort appeals from the trial court’s denial of his
motion to dismiss pursuant to Penal Code section 1389, California’s codification of the
Interstate Agreement on Detainers Act (hereinafter, IAD). Defendant challenges the trial
court’s decision, contending he complied with the IAD in a manner sufficient to trigger
invocation of its 180-day mandatory dismissal rule by mailing a handwritten letter from
his Nevada prison to the District Attorney in Solano County requesting final disposition
of charges pending against him in California. For reasons set forth below, we affirm the
trial court’s decision.
FACTUAL AND PROCEDURAL BACKGROUND
On September 2, 2008, the Solano County District Attorney (SCDA) filed a
criminal complaint against defendant charging him with two felonies, to wit, first degree
residential burglary (Pen. Code, § 459)1 and grand theft firearm (§ 487, subd. (d)(2)), for
1
Unless otherwise stated, all statutory citations herein are to the Penal Code.
1
a daytime burglary in Solano County on April 8, 2008. Before defendant was served
with the arrest warrant on these charges, authorities in Clark County, Nevada arrested and
convicted him on different criminal charges for a felony robbery and two misdemeanor
drug convictions that occurred in Nevada. Defendant was sentenced to between three and
10 years for the Nevada crimes and incarcerated in the High Desert State Prison in Indian
Springs, Nevada.
In April 2010, defendant sent a handwritten letter to the SCDA while incarcerated
in Nevada. In this letter, defendant requested favorable resolution of a pending
misdemeanor charge against him arising out of an altercation he was involved with at a
high school. Specifically, defendant’s letter stated as follows:
To whom it may concern: [¶] My name is [defendant] . . . [date of
birth] 12/18/89, and I’m currently serving a 3-10 year sentence here in High
Desert State Prison, in Indian Springs, NV.
Around September of ’08, I was issued an extradition warrant from
Solano County, (you guys) in Fairfield, CA. I’ve just recently found out
that the warrant is only a bench warrant, for a failure to appear for a fight I
got into while in high school, (Armijo High).
I doubt that you guys will actually come all the way to Nevada for
something that small, but that’s not my issue. Thing is, because I have this
warrant I can’t go to camp, and the reason camp is important is because it
will take away a lot of my time, so when I get out in 3 years I’ll only have
about a year on parole to do.
I’m asking you to either dismiss the warrant, (being that it is only a
misdemeanor) or to run it concurrent with this sentence I’m serving now.
I’m really trying to better myself as an inmate, and High Desert doesn’t
offer the proper means to do that, but with this warrant I can’t leave, so
please help me to take care of this issue. Thank you and I appreciate your
help.
2
On April 19, 2010, the SCDA sent defendant a responsive letter informing
him, among other things, that there was an additional outstanding warrant against
him in California for the two felonies charged in this matter. The SCDA also
notified defendant of its intent to authorize his extradition to California to face
both the felony charges for the daytime burglary and the misdemeanor charges for
the high school fight.
On November 18, 2010, almost seven months later, the Warrant Coordinator for
the Nevada Department of Corrections responded in writing to correspondence from the
SCDA advising: “This [letter] will acknowledge receipt of your DETAINER against the
above referenced subject. Interstate Agreement on Detainer initiated.” The Warrant
Coordinator also provided the SCDA certification of the following information regarding
defendant’s inmate status: defendant’s name, Nevada case number, California case
number, current sentence and current offense, total days earned and served, projected
parole eligibility, consecutive terms to serve in Nevada, post date, and projected
discharge. Finally, the letter noted: “Interstate Agreement on Detainers Initiated.”
On September 26, 2011, Nevada paroled defendant and extradited him to
California for arraignment in this matter. On November 4, 2011, defendant filed a
motion to dismiss pursuant to article III of the IAD, the subject matter of this appeal, on
the ground that the SCDA failed to bring him to trial within 180 days of its receipt of the
Nevada Warrant Coordinator’s November 18, 2010 letter informing it that the “IAD [had
been] initiated.” The district attorney opposed the motion.
On November 18, 2011, after a contested hearing, the trial court denied
defendant’s motion to dismiss, reasoning as follows:
Well, I am intending to deny it and let me tell you why. First of all,
in the defendant’s initial request he never even mentions this case, and he
never even mentions the request for trial either. What he wants is the
misdemeanor charge that he thinks is pending, either dismissed or to
receive a concurrent sentence on it so that he can go to this fire camp.
That’s what this letter is all about that he wrote in [April] 2010.
3
The document that was received from Nevada was simply an
acknowledgement to the placement of the detainer on the defendant. It had
nothing to do with the defendant’s request to have his misdemeanor charge
dismissed. There is no mention of this felony case by the defendant in his
communications, and the cases I am relying on [] include People versus
Wilson, . . . People versus Lavin, . . . People versus Cella, . . . and a federal
case, Alabama versus Bozeman . . . .
These latter cases indicate rather forcefully that the procedures for
making a demand are detailed, and the process must include a demand on
the prosecutor and warden verification. They also contain language that the
applications must generally conform to these requirements.
So that’s where we are at this time. I did read, or at least I am aware
of this Zetsche case, . . . which indicates where a prisoner has substantially
complied with the procedural requirements, the Court should allow -- or
should grant the defendant’s request, but I don’t think there has been
substantial compliance. There has been no compliance, so that’s where I
am.
Following the court’s ruling, defendant accepted a plea agreement pursuant to
which he was sentenced to two years in state prison with credit for 260 days time served
for first degree residential burglary, and the remaining felony theft charge was dismissed.
The court also agreed to issue defendant a certificate of probable cause pursuant to
section 1237.5 to enable him to appeal the denial of his motion to dismiss. Accordingly,
on March 27, 2012, appellant filed a timely notice of appeal.2
2
The denial of a defendant’s motion to dismiss a criminal complaint under the IAD
is generally a question of law reviewed de novo, with the underlying factual findings
reviewed for clear error. (U.S. v. Hall (9th Cir. 1992) 974 F.2d 1201, 1204; Israni v.
Superior Court (2001) 88 Cal.App.4th 621, 636.)
4
DISCUSSION
The IAD, codified in section 1389, is “an agreement between California, 47 other
states, and the federal government. It facilitates the resolution of detainers, based on
untried indictments, informations or complaints in one jurisdiction, lodged against
persons who have ‘entered upon a term of imprisonment’ in another jurisdiction.”3
(People v. Lavin (2001) 88 Cal.App.4th 609, 612.) Specifically, the IAD “provides a
mechanism whereby a prisoner in one jurisdiction can be transferred, upon request, to
another jurisdiction for disposition of charges pending against him.” (People v. Castoe
(1978) 86 Cal.App.3d 484, 487.) “Numerous courts have recognized the [IAD] 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.” (Marshall v.
Superior Court (1986) 183 Cal.App.3d 662, 676.)
“To implement this policy, the [IAD] establishes two alternate and distinct
mechanisms for dealing with detainers based on outstanding charges, each containing a
different statutory time limitation. (See Marshall v. Superior Court (1986) 183
Cal.App.3d 662, 664 [228 Cal.Rptr. 364]; People v. Cella [1981] 114 Cal.App.3d [905]
at pp. 916-917; see also People v. Castoe (1978) 86 Cal.App.3d 484, 489-490 [150
Cal.Rptr. 237].) Article III sets out the terms by which a prisoner may request final
disposition of outstanding charges connected with a detainer. It provides that whenever a
person has entered upon a term of imprisonment, and whenever during the continuance of
3
Under the IAD, “[a] detainer is a notification filed with the institution in which a
prisoner is serving a sentence, advising that he is wanted to face pending criminal charges
in another jurisdiction.” (People v. Lavin, supra, 88 Cal.App.4th at p. 612.)
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that imprisonment there are pending in another jurisdiction any untried charges, that
person shall be entitled to prompt notice of his right to request final disposition of the
charges. Subdivision (d) of article III provides that the prisoner is entitled, upon the
appropriate request for final disposition, to have all untried charges underlying the
detainer tried within 180 days.” (People v. Zetsche (1987) 188 Cal.App.3d 917, 922
[italics added].) To be deemed appropriate, however, the prisoner’s request for final
disposition must meet certain minimal requirements. Specifically, the prisoner must give
or send a written notice and request for final disposition “to the warden, commissioner of
corrections or other official having custody of [the prisoner].” (Art. III, subd. (a), (b).)
The official must then, in turn, promptly forward by registered or certified mail to the
district attorney and the court of the receiving state the prisoner’s written notice and
request, along with a certificate “stating the term of commitment under which the
prisoner is being held, the time already served, the time remaining to be served on the
sentence, the amount of good time earned, the time of parole eligibility of the prisoner,
and any decisions of the state parole agency relating to the prisoner.”4 (Ibid.) “[T]he
180-day period [under article III] is to run from the date the prisoner ‘shall have caused to
be delivered’ a written notice and request for final disposition to the district attorney and
the court.” (People v. Castoe, supra, 86 Cal.App.3d at p. 490.)
Article IV, on the other hand, “provides a mechanism by which the prosecutor
who has filed a detainer against a prisoner in another jurisdiction can secure his presence
for disposition of the outstanding charges. The prosecutor need only present to the
officials of the jurisdiction incarcerating the prisoner ‘a written request for temporary
custody or availability . . . .’ (Art. IV, subd. (a).) Subdivision (c) of article IV further
4
“Once the inmate has made this request the Agreement places the burden of
compliance with the procedural requirements upon the party states and their agents.
When the warden or other prison official receives the inmates request for final disposition
he is duty bound to ‘promptly forward it together with the certificate to the appropriate
prosecuting official . . . .’ (Art. III, subd. (b); italics added.) ‘In the performance of these
duties, the Warden has no discretion.’ . . . [Citation.]” (People v. Wilson (1977) 69
Cal.App.3d 631, 636-637.)
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provides in part: ‘In respect to any proceeding made possible by this Article, trial shall be
commenced within one hundred twenty days of the arrival of the prisoner in the receiving
state, . . .’ Subdivision (e) of article IV provides in part: ‘If trial is not had on any
indictment, information or complaint contemplated hereby prior to the prisoner’s being
returned 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.’ ” (People v. Zetsche, supra, 188 Cal.App.3d at
p. 923 [italics added].)
“Thus, article III proceedings are initiated by a request from the prisoner, while
article IV proceedings are commenced by a request by the prosecutor.” (People v.
Zetsche, supra, 188 Cal.App.3d at p. 923.)
Here, defendant seeks dismissal of the felony complaint in this matter pursuant to
article III of the IAD. We, however, agree with the prosecution that defendant did not
comply with the mandatory procedures set forth under the identified article. Specifically,
his written request for final disposition of some of the charges against him was not
directed to the warden or other Nevada prison official as required under article III.
Rather, it was directed to the SCDA.5 Moreover, defendant’s request was not
accompanied by the requisite certification from the warden providing the statutorily-
designated information regarding his inmate status. “Although such informal notice [to
the district attorney in the receiving state] is not prohibited by the [IAD], it, however,
does not activate the provisions of article III.” (People v. Cella (1981) 114 Cal.App.3d
5
We agree with defendant that, contrary to the trial court’s reasoning in denying his
motion, the fact that defendant mentioned in his letter to the SCDA only an outstanding
warrant for misdemeanor charges against him, and not the warrant for the felony charges
underlying this appeal, is not fatal to his IAD challenge. (See Art. III, subd. (d) [“Any
request for final disposition made by a prisoner pursuant to paragraph (a) hereof shall
operate as a request for final disposition of all untried indictments, informations or
complaints on the basis of which detainers have been lodged against the prisoner from the
state to whose prosecuting official the request for final disposition is specifically
directed.”].) However, error in a trial court’s reasoning does not require reversal of an
otherwise proper ruling. (E.g., Virtanen v. O’Connell (2006) 140 Cal.App.4th 688, 710.)
7
905, 917. See also People v. Castoe, supra, 86 Cal.App.3d at pp. 490-491 [while
“nothing in the [IAD] would prevent the defendant from sending a copy of the notice and
request to the district attorney and the court . . . [i]t should be clear . . . the copy sent to
the district attorney and the court . . . is not sufficient by itself to put section 1389 into
effect”]; People v. Rhoden (1989) 216 Cal.App.3d 1242, 1252-1253 [affirming denial of
motion to dismiss where, “[a]lthough a proper detainer was later lodged, [defendant]
never complied with the requirement that he submit his request to the warden”].)
As defendant correctly notes, the missing certification of his inmate status was
included in the November 18, 2010 letter from the Warrant Coordinator for the Nevada
Department of Corrections to the SCDA. Defendant suggests, based upon the Nevada
Department of Corrections’ letter and accompanying certification, that his own failure to
submit written notice and request for final disposition to the warden or other custodial
official pursuant to article III, subdivision (a), is somehow cured or rendered irrelevant.
Defendant also contends we should infer from this letter and accompanying certification
that he must have submitted the requisite notice and request to the Nevada warden or
other custodial official because, otherwise, the Nevada Department of Corrections would
not have been prompted to send its own letter to California officials. We reject
defendant’s suggestions for several reasons. First, there is nothing in the record (aside
from mere speculation) to support an inference that defendant sent the requisite notice
and request to any official in Nevada. Second, defendant’s argument ignores the
alternative set of procedures under article IV of the IAD, set forth above, by which the
prosecutor, rather than the prisoner, may initiate a transfer under the IAD. As the
November 18, 2010 letter states, the Nevada Department of Corrections was in receipt of
“the [SCDA’s] DETAINER against [defendant].” This evidence suggests, contrary to
defendant’s argument, that the SCDA, not defendant, may have initiated the procedures
for transfer under the IAD, rendering the 180-day time period for mandatory dismissal
8
under article III inapplicable.6 (Compare People v. Cella, supra,114 Cal.App.3d at pp.
916-917 [under article IV, prosecuting authorities may trigger operation of the IAD by
filing a detainer and written request for temporary custody of the prisoner with the
holding prison officials].)
Thus, under these circumstances, we decline to disturb the trial court’s decision to
deny defendant’s motion to dismiss based upon his failure to meet “ ‘[his] sole obligation
under the Agreement . . . to advise the warden of his request for final disposition of the
charges on which the detainer is based. [Citations.]” (People v. Wilson (1977) 69
Cal.App.3d 631, 636.) Given defendant’s failure in this regard, we agree with the trial
court that the 180-day time period for mandatory dismissal under article III was never
triggered. As the case law makes clear, the IAD “contains no provision by which the
prisoner can informally notify the appropriate prosecuting official of the state lodging the
detainer of his request for a trial. This is understandable in view of the purpose of the
Agreement to provide an orderly disposition of detainers. That goal is achieved in part by
the obligation placed on the warden of the prison in the sending state to forward, along
with the prisoner’s request for final disposition, the information set out in article III,
subdivision (a) regarding the prisoner’s release date. This information is often necessary
before the prosecuting officials can make an intelligent decision as to whether the person
should be returned for trial. [Citation.] [¶] . . . Furthermore the official nature of the
certificate puts the district attorney’s office on notice that the prisoner is proceeding
under the Agreement. This procedure reduces the necessity of the district attorney’s
office screening all manner of communications to determine the validity of their request
for an immediate trial. [Citation.]” (People v. Wilson, supra, 69 Cal.App.3d at p. 636.)
Finally, defendant raises an “estoppel” argument as an alternative ground for
reversing the trial court’s decision. Specifically, defendant contends that the prosecution
should be estopped from challenging his noncompliance with article III based upon the
SCDA’s April 2010 letter to him, written in response to his earlier letter to the SCDA, in
6
There is no issue on appeal regarding the SCDA’s compliance with the IAD and,
as such, we have no reason to consider it other than in passing.
9
which the SCDA informed him it “would not dismiss either [your felony or misdemeanor
case] and have authorized your extradition back to California.” According to defendant,
because the SCDA’s April 2010 letter “in essence announced to him that any further
demand would be surplusage,” the People now have “no right retrospectively to ask that
the court penalize [him] for any failing [sic] to correct ‘defects’ in his initiating letter.”
Defendant cites no authority for his estoppel argument and in any event, we find it lacks
merit. As such, based upon the well-established case law set forth above, we stand by
our conclusion that defendant failed to comply with the mandatory requirements of article
III, requiring denial of his motion to dismiss. (E.g., People v. Castoe, supra, 86
Cal.App.3d at p. 490; People v. Rhoden, supra, 216 Cal.App.3d at pp. 1252-1253.) The
trial court’s ruling thus stands.
DISPOSITION
The trial court’s order is affirmed.
_________________________
Jenkins, J.
We concur:
_________________________
Pollak, Acting P. J.
_________________________
Siggins, J.
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