Filed 7/21/15 P. v. Garcia CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A140954
v.
RUDOLPH TRAVIS GARCIA,                                               (San Mateo County
                                                                     Super. Ct. No. SC078743)
         Defendant and Appellant.


In re RUDOLPH TRAVIS GARCIA,
                                                                     A143289
         on Habeas Corpus.


         Defendant Rudolph Travis Garcia was sentenced to serve 16 months in state
prison after pleading no contest to a vehicle theft charge. On appeal and in a related
habeas corpus petition, he argues that the court erred in denying his motion to dismiss
pursuant to Penal Code1 section 1381 for a violation of his statutory speedy trial rights.
Because Garcia sent his section 1381 demand for a speedy trial before he was housed in
state prison, the court did not err in declining to give it effect. Further, he has not met his
burden on appeal to establish that he was prejudiced by the court’s error. Accordingly,
we affirm the judgment and summarily deny the habeas petition.




         1
             Further statutory references are to the Penal Code unless otherwise specified.


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                              PROCEDURAL BACKGROUND
       On January 28, 2013, the San Mateo County District Attorney filed a three-count
complaint charging Garcia with vehicle theft (Veh. Code, § 10851, subd. (a)),
misdemeanor possession of burglary tools (§ 466), and misdemeanor possession of a
hypodermic needle or syringe (Bus. & Prof. Code, former § 4140).
       On May 2, 2013, Garcia was convicted in Placer County of possession of a
controlled substance for sale. (Health & Saf. Code, § 11378.) The Placer County
Superior Court sentenced Garcia to serve 32 months in state prison as a result of the
conviction. On May 6, 2013, while he was in the Placer County jail awaiting transfer to
state prison, Garcia prepared a section 1381 demand for speedy trial within 90 days on
the San Mateo County charges. The demand was addressed to the San Mateo County
District Attorney’s office and reflected that Garcia was “sentenced and awaiting transport
to State Prison.” The San Mateo County District Attorney’s office received the demand
form on May 10, 2013, and prepared a removal order for a June 6, 2013, arraignment in
San Mateo County.
       On May 14, 2013, Garcia was transferred to the state prison in Tracy to serve his
sentence for the Placer County conviction. Garcia had not been transported to San Mateo
County as anticipated because he was no longer in custody in Placer County. On
June 27, 2013, the San Mateo County District Attorney learned where Garcia was
incarcerated and prepared a removal order for his arraignment on July 18.
       Garcia appeared in San Mateo County Superior Court for a preliminary hearing on
the San Mateo County charges on July 29, 2013. At the conclusion of the hearing, the
court found probable cause to hold Garcia to answer for the charges contained in the
complaint. On August 9, 2013, the district attorney filed a two-count information
charging Garcia with vehicle theft (Veh. Code, § 10851, subd. (a)) and misdemeanor
possession of burglary tools (§ 466). As to the vehicle theft charge, the district attorney
alleged that Garcia had suffered a prior strike (§ 1170.12, subd. (c)(1)) and was
presumptively ineligible for probation as a result of prior felony convictions (§ 1203,



                                             2
subd. (e)(4)). It was further alleged that Garcia had served two prior prison terms within
the meaning of section 667.5, subdivision (b).
       Garcia was arraigned on the information on August 13, 2013. He pleaded not
guilty and denied the special allegations. He did not agree to waive time for trial. The
court set the matter for trial on September 30, 2013. At a pretrial conference held on
September 6, 2013, defense counsel learned that the prosecutor was in possession of the
section 1381 demand sent from Placer County jail.
       On the date set for trial, September 30, 2013, Garcia moved for dismissal of the
information based on section 1381. In written motion papers, Garcia argued that the
district attorney was required to bring the matter to trial within 90 days after receipt of his
section 1381 demand on May 10. He contended that the 90-day time limit ran on
August 8. In opposition to the motion, the district attorney argued that section 1381
requires strict compliance and that a demand made by a defendant in county jail who has
not yet been transported to state prison does not start the 90-day period to bring the
matter to trial. The district attorney also contended that Garcia waived any objection to
the setting of the trial date outside the 90-day period because he did not object at the time
the court set the matter for trial.
       The court heard the motion to dismiss on October 4, 2013. The court rejected the
prosecutor’s waiver argument but agreed with the prosecutor that Garcia failed to strictly
comply with the requirements of section 1381 because he was not in state prison at the
time he made the demand. Accordingly, the court denied the section 1381 motion.
       On November 18, 2013, pursuant to a plea bargain, Garcia pleaded no contest to
the vehicle theft count, admitted the strike prior, and admitted having suffered prior
felony convictions making him presumptively ineligible for probation. The court
dismissed the remaining charges on the motion of the prosecutor. On December 4, 2013,
the court imposed a sentence of one-third of the midterm of eight months for vehicle
theft, doubled to 16 months as a result of the prior strike. The court imposed the sentence
consecutively to the previously imposed sentence resulting from the Placer County



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conviction. Garcia timely appealed from the judgment of conviction.2 The trial court
granted Garcia’s request for a certificate of probable cause.
       While the appeal was pending, Garcia filed a petition for a writ of habeas corpus
in A143289, which we consolidated with the appeal in A140954 at Garcia’s request.
                                         DISCUSSION
1.     Section 1381 Demand Sent from County Jail
       On appeal, Garcia contends the trial court erred in denying his motion to dismiss
pursuant to section 1381. We disagree.
       Section 1381 provides, in relevant part, that a defendant must be brought to trial
on pending criminal charges within 90 days after delivery to the district attorney of the
county in which charges are pending written notice of the defendant’s place of
imprisonment and desire to be brought to trial when the defendant has been convicted of
a felony in any court of the state and “has been sentenced to and has entered upon a term
of imprisonment in a state prison . . . .” If the defendant is not brought to trial or
sentenced within the 90-day period, the action must be dismissed on the motion of an
interested party or on the court’s own motion. (§ 1381.) The prompt disposition of
pending charges allows a prisoner the opportunity to serve any new sentence that may be
imposed concurrently with the term already being served. (See People v. Gutierrez
(1994) 30 Cal.App.4th 105, 109 (Gutierriez).)




       2
         The People contend the appeal is untimely because the notice of appeal was filed
more than 60 days after imposition of judgment. We disagree. Judgment was entered on
December 4, 2013. The sixtieth day after judgment was February 3, 2014. The notice of
appeal reflects that it was received by the trial court on January 31, 2014, and that the
trial court granted Garcia’s request for a certificate of probable cause on February
3, 2014. The People apparently rely on the fact that the notice of appeal bears a filing
date of February 4, 2014, and was simply marked “received” on January 31. However,
regardless of the filing date stamped on the notice, it was deemed filed on the date it was
received by the trial court, or January 31, 2014. (Cal. Rules of Court, rule 8.25(b)(1)
[document is deemed filed on the date clerk receives it].) Accordingly, the appeal is
timely.


                                               4
       “Because failure to comply with section 1381 results in ‘the drastic sanction of
dismissal’ [citation], courts have required defendants to comply strictly with statutory
requirements. [Citations.] ‘Any other rule would encourage resort to half-hearted,
disingenuous gestures toward compliance calculated at most to start the 90-day period
running and contrived in fact to achieve official default.’ ” (People v. Garcia (1985)
171 Cal.App.3d 1187, 1191, fn. omitted; accord, Gutierrez, supra, 30 Cal.App.4th
at p. 111; People v. Clark (1985) 172 Cal.App.3d 975, 980–981 (Clark).)
       Section 1381 plainly states that a defendant previously convicted of a felony must
have “entered upon a term of imprisonment in a state prison” as a condition to
commencing the 90-day period in which to bring new charges to trial. This language has
been construed to require a defendant sentenced to state prison to send the section 1381
demand from state prison; it is not sufficient if the demand is sent from county jail while
the defendant is awaiting transfer. (Gutierrez, supra, 30 Cal.App.4th at p. 111; Clark,
supra, 172 Cal.App.3d at pp. 980–981.) In Clark, the court explained that the strict
construction of the statutory language is justified by the logistical problems of speedily
bringing to trial a prisoner who is being transferred between institutions. (Clark, supra,
at pp. 980–981.)
       Here, Garcia sent his section 1381 demand from county jail. Under Clark and
Gutierrez, the demand was premature and did not commence the running of the 90-day
time limit. Accordingly, the court did not err in denying Garcia’s motion to dismiss
pursuant to section 1381. (Gutierrez, supra, 30 Cal.App.4th at p. 111; Clark, supra,
172 Cal.App.3d at pp. 980–981.)
       Garcia urges us to reject Clark and Gutierrez as poorly reasoned. We decline the
invitation to reconsider this long-established line of authority. As we explain, even if we
were inclined to agree with Garcia that a section 1381 demand sent from county jail
commences the 90-day time limit, he would still not be entitled to relief on appeal
because he has not established that he was prejudiced by any delay in bringing the matter
to trial. (Gutierrez, supra, 30 Cal.App.4th at p. 111; Clark, supra, 172 Cal.App.3d at
pp. 980–981.)


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       Garcia correctly notes that it is unnecessary to demonstrate prejudice before trial
in order to obtain dismissal for a violation of a defendant’s statutory speedy trial rights.
(People v. Martinez (2000) 22 Cal.4th 750, 766 (Martinez).) Likewise, when a defendant
seeks appellate review of a statutory speedy trial claim before trial by way of a writ
petition, no affirmative showing of prejudice is required. (Id. at p. 769.) By contrast,
when a pre-trial speedy trial violation is based solely on constitutional grounds and not
on the violation of a statutory speedy trial provision, a defendant must ordinarily
“demonstrate that the delay has prejudiced the ability to defend against the charge.”
(Id. at p. 766.)
       Although it is not necessary to demonstrate prejudice if a statutory speedy trial
claim is pursued before a conviction is obtained, a defendant must establish prejudice if
he waits to pursue appellate relief until after he has been convicted. (Martinez, supra,
22 Cal.4th at p. 769.) “Prejudice becomes an issue for a statutory speedy trial violation
only when the defendant waits until after the judgment to obtain appellate review.
‘[O]nce a defendant has been tried and convicted, the state Constitution in article VI,
section 13, forbids reversal for nonprejudicial error,’ and so on appeal from a judgment of
conviction a defendant asserting a statutory speedy trial claim must show that the delay
caused prejudice, even though the defendant would not be required to show prejudice on
pretrial appellate review.” (Ibid.; accord, People v. Wilson (1963) 60 Cal.2d 139, 152
[holding that defendant who seeks to reverse judgment of conviction must establish that
any error in failing to grant a statutory speedy trial motion was prejudicial].)
       Garcia is simply mistaken in arguing that he is not required to demonstrate
prejudice in a post-conviction appeal from an order denying a statutory speedy trial
motion. It is immaterial that the motion was presented to the trial court before Garcia
was convicted. Because he waited until after he was convicted to seek appellate review
of the order denying his motion, he must affirmatively show that he was prejudiced by
the delay. He has not even attempted to make such a showing.
       Garcia cannot claim prejudice of the type usually involved in speedy trial claims,
such as lost evidence or faded memories, because his no contest plea precludes such


                                              6
claims. (See Gutierrez, supra, 30 Cal.App.4th at p. 111.) Further, he cannot claim that
any delay deprived him of the opportunity to serve all or some portion of the term
imposed in this case concurrently with the sentence imposed as a result of the Placer
County conviction. The court here ordered that the new term is to be served
consecutively with the Placer County sentence. Consequently, it is immaterial that he
was sentenced beyond the 90-day period purportedly commenced by his section 1381
demand sent from county jail. He would not have ended up serving less time in state
prison if he had been sentenced earlier.
2.     Habeas Corpus Petition
       In a habeas corpus petition consolidated with his direct appeal, Garcia argues that
he is entitled to relief on his speedy trial claim because he did, in fact, send a section
1381 demand from state prison. The contention is meritless, as we explain.
       In a declaration submitted with his habeas corpus petition, Garcia claims that, on
May 31, 2013, he was serving his state prison term in Tracy and submitted a section 1381
demand to prison officials with the understanding that it would be mailed to the
San Mateo County District Attorney. He acknowledges that he was provided no
documentation that the section 1381 demand was actually mailed, and he further
acknowledges that the district attorney denied ever receiving the notice purportedly sent
from state prison.
       Based upon these allegations, Garcia contends he is entitled to habeas corpus relief
because the speedy trial demand purportedly mailed from state prison satisfied the
requirements of section 1381. In order to address the fact that the district attorney denied
receiving the notice, Garcia argues that his demand should have been deemed
constructively received by the district attorney when it was submitted to prison officials
for mailing. He relies on the “prison-delivery rule,” which deems a prisoner’s notice of
appeal from a criminal conviction to have been constructively filed at the time it was
delivered to prison officials for mailing. (See In re Jordan (1992) 4 Cal.4th 116, 130.)
       Garcia’s habeas corpus claim is fundamentally deficient for a number of reasons.
Among other things, he did not present the facts alleged in his petition to the trial court at


                                               7
the time he moved to dismiss under section 1381. Because the evidence is not newly
discovered, and no reason has been offered for Garcia’s failure to present the evidence to
the trial court, he cannot rely upon it now to collaterally attack his conviction. (Cf. In re
Clark (1993) 5 Cal.4th 750, 766 [criminal judgment may be collaterally attacked on basis
of newly discovered evidence if it points unerringly to reduced culpability or innocence].)
       Further, Garcia’s reliance on the prison-delivery rule is misplaced in the context of
a statutory speedy trial claim. The prison-delivery rule establishes a bright-line rule for
determining whether a notice of appeal mailed by an incarcerated prisoner is timely.
Application of the rule avoids using judicial resources to assess whether a defendant was
sufficiently diligent and took into account potential delays in the processing of the mail in
each case in which a notice was not timely received by the court clerk. (In re Jordan,
supra, 4 Cal.4th at pp. 129–130.) By contrast, the purpose of delivering the section 1381
notice to the district attorney is to allow the prosecutor to transport the defendant to the
county where charges are pending and to prepare for trial. The focus is not upon the
defendant’s diligence but is instead upon actual notice received by the district attorney.
It is for this reason that the 90-day timeline commences on the date of delivery instead of
the date the defendant executes or transmits the demand. (See People v. Contreras
(2009) 177 Cal.App.4th 1296, 1301–1302.) Accordingly, the prison-delivery rule has no
application to a section 1381 demand delivered to prison officials. A section 1381
demand is effective only when it is actually received by the district attorney. Without
actual notice, the district attorney would have no opportunity to comply with the speedy
trial demand.
       Garcia’s habeas claim fails for the additional reason that he has not made an
affirmative showing of prejudice. Because he raised his appellate habeas claim after
being convicted, he is subject to the rule requiring a showing a prejudice in order to be
entitled to relief for a statutory speedy trial violation. (Martinez, supra, 22 Cal.4th at
p. 769.) As noted above, Garcia has made no such showing.




                                              8
                                     DISPOSITION
      The judgment is affirmed and the petition for a writ of habeas corpus is summarily
denied.

                                               _________________________
                                               McGuiness, P.J.


We concur:


_________________________
Pollak, J.


_________________________
Jenkins, J.




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