Penal Code section 1381 (which allows a sentenced defendant to demand that he be brought to trial and sentenced within 90 days in any other criminal proceedings) does not apply to a probation violation proceeding in which the defendant was previously sentenced to a specific term with execution suspended. On reinstating Smith’s probation for a grand theft in Los Angeles County, the trial court imposed a sentence of three years and suspended execution of the sentence. Subsequently Smith was sentenced to two years in state prison on another matter in another county. He then sent a letter pursuant to section 1381 to prosecutors in Los Angeles County demanding that he be sentenced in the grand theft case within 90 days. He was not brought to Los Angeles County until nearly 10 months later. He moved to dismiss the probation revocation proceeding for violating section 1381. The motion was denied and probation was revoked. Smith appealed. Held: Affirmed. Section 1381 provides, in pertinent part, that a defendant who has been sentenced may deliver a written notice to a district attorney demanding that the defendant be brought to trial and sentenced if “there is pending, in any court of this state, any other indictment, information, complaint, or any criminal proceeding wherein the defendant remains to be sentenced.” Here the Court of Appeal concluded that “the plain text dictates that its protections apply only when a defendant ‘remains to be sentenced'” and this phrase has been interpreted “not to apply to a sentence that is imposed but whose execution is suspended.” Additionally, the primary purpose of section 1381 is to permit the defendant the opportunity to obtain concurrent sentencing, and a court that has previously imposed but suspended execution of a sentence has no power to alter the sentence to run it concurrently.

[Editor’s Note: There was no discussion regarding the possible applicability of Penal Code section 1203.2a, which reads, in pertinent part, “Upon being informed by the probation officer of the defendant’s confinement, or upon receipt from the warden or duly authorized representative of any prison in this state or another state of a certificate showing that the defendant is confined in prison, the court shall issue its commitment if sentence has previously been imposed. . . . If the case is one in which sentence has previously been imposed, the court shall be deprived of jurisdiction over defendant if it does not issue its commitment or make other final order terminating its jurisdiction over defendant in the case within 60 days after being notified of the confinement.”]

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/B291670.PDF