Filed 7/19/18
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                           DIVISION SIX


THE PEOPLE,                              2d Crim. No. B279452
                                      (Super. Ct. No. 2012039191)
     Plaintiff and Respondent,             (Ventura County)

v.

SHEA PATRICK MURDOCK,

     Defendant and Appellant.



      Appellant Shea Patrick Murdock allegedly absconded while
on postrelease community supervision (PRCS; Pen. Code, § 3451
et seq.)1 in Ventura County. After his PRCS was summarily
revoked and tolled pursuant to an arrest warrant, he was
convicted on another charge in Monterey County and was
sentenced to county jail. While serving that sentence in
Monterey County, he notified the Ventura County District
Attorney and Ventura County Superior Court of his
imprisonment and demanded he be “brought to trial and/or
sentenced” on the PRCS revocation matter within 90 days, as


        1 All statutory references are to the Penal Code.
contemplated in section 1381. The demand was ignored.
Appellant then moved to recall the PRCS warrant and dismiss
the associated revocation matter as provided in section 1381. In
addition to invoking section 1381, appellant asserted that the
refusal of his demand to have his PRCS revocation matter
promptly resolved amounted to a violation of his due process
rights. The trial court denied the motion.
       Although we agree with the trial court that appellant was
not entitled to relief under section 1381, his due process claim
has merit. Moreover, appellant suffered prejudice as a result of
the due process violation. Accordingly, we reverse.
            FACTS AND PROCEDURAL HISTORY
       In 2013, in Ventura County case number 2012039191,
appellant pled guilty to being a felon in possession of a firearm
(§ 29800, subd. (a)(1)) and admitted serving two prior prison
terms (§ 667.5, subd. (b)). He was sentenced to three years in
state prison. In December 2014, he was released on PRCS
(§ 3455 et seq.).
       In April 2015, appellant was arrested for violating the
terms and conditions of his PRCS. The Ventura County
Probation Agency (the Probation Agency) filed a petition to
revoke PRCS pursuant to section 3455. After appellant
submitted on the allegations of the petition, the court found him
in violation of PRCS and ordered him to serve 90 days in county
jail. The following July, appellant submitted on the allegations of
another PRCS revocation petition. The court again found him in
violation of PRCS and ordered him to serve 90 days in county jail.
       On October 1, 2015, the Probation Agency filed a request
for a PRCS warrant (§ 3455, subd. (b)(1)) on the allegation that
appellant had absconded from supervision and that his
whereabouts were unknown. A week later, the trial court issued



                                2
a warrant for appellant’s arrest pursuant to section 1203.2,
subdivision (a), summarily revoked his PRCS, and ordered that
the running of the period of PRCS be tolled.
       In December 2015, in Monterey County case number
SS143073A, appellant pled guilty to bringing a controlled
substance into a custodial facility (§ 4573, subd. (a)) and admitted
serving a prior prison term. He was sentenced to three years in
Monterey County Jail.
       On April 7, 2016, appellant sent the Ventura County
District Attorney a section 1381 “demand[] to be brought to trial
and/or sentenced” on the PRCS violation matter in Ventura
County case number 2012039191. The following July, appellant
sent the Ventura County Superior Court a section 1381 motion to
dismiss along with an accompanying affidavit and proposed
order. The court clerk forwarded the documents to the District
Attorney’s office.
       On September 16, 2016, the Ventura County Public
Defender’s Office filed a motion to dismiss on appellant’s behalf.
The motion alleged that “[s]ince more than 90 days have passed
since [appellant] submitted his [section] 1381 demand to the
Ventura County District Attorney’s Office and he remains to be
sentenced in the matter, [appellant] hereby requests that the
PR[C]S warrant and associated violation be recalled and
dismissed.” Appellant alternatively asserted that he “has a due
process right . . . to have his PR[C]S warrant addressed in a
timely fashion.”
       The People opposed the motion, contending that section
1381 did not apply because appellant “has already been convicted
and sentenced.” The People added that “even if [section] 1381 did
apply, there is no outstanding petition of revocation to be
dismissed as one has not been filed. Currently, there is only an



                                 3
active warrant, which does not qualify for dismissal under
[section] 1381.” At the November 3, 2016 hearing on the motion,
the prosecutor stated: “I don’t believe there is a due process
issue, definitely not one that’s thoroughly laid out in [the]
Defense moving papers. But recalling the warrant, . . . it’s
something that probation could simply submit again. [¶] . . .
[¶] So it seems like this is a futile exercise and request, because
it’s something that really has no weight.”
       Appellant’s counsel replied that “the reason why it would
be a due process issue is because his PR[C]S is tolling during the
time he’s out to warrant. . . . Since we know where he is, and he
wants to have the warrant dealt with, to deprive him of the
running of his PR[C]S so that it’s tolled during [his] entire time
[in prison], that would be the harm. . . . [I]f he’s just left up at
the Monterey County Jail to serve out his entire jail term up
there, and then brought down here more than an entire year
after he wanted to come here to deal with the warrant, . . . that
would be a violation of his due process rights.”
       The court denied the motion, reasoning that section 1381
did not apply “because there was nothing pending here except a
warrant.” The court added: “[T]he due process argument
troubles me. I think there might be a very good due process
argument if everybody waits until he serves his sentence up there
and then transports him here on a warrant, I can see a due
process argument there, since we know where he is. But when
you file[d] a 1381, there was nothing pending here at all.”
       On April 12, 2017, appellant completed his three-year
sentence in the Monterey County Jail. The following day, he was
arrested on the PRCS warrant and was returned to Ventura
County. A week later, the Probation Agency filed a petition to
revoke appellant’s PRCS. On June 6, 2017, following a PRCS



                                 4
revocation hearing, the court found appellant in violation of his
PRCS, revoked and reinstated PRCS, and ordered him to serve
120 days in the Ventura County Jail.2
                             DISCUSSION
                             Section 1381
      Appellant contends the court erred in concluding that
section 1381 did not apply to his PRCS arrest warrant. We agree
with the trial court that appellant was not entitled to relief under
section 1381.
      Section 1381 provides in relevant part that “[w]henever a
defendant has been convicted, in any court of this state, of the
commission of a felony . . . and has been sentenced to and has
entered upon a term of imprisonment in a state prison . . . and at
the time of the entry upon the term of imprisonment . . . there is
pending, in any court of this state, . . . any criminal proceeding
wherein the defendant remains to be sentenced, the district
attorney of the county in which the matters are pending shall
bring the defendant . . . for sentencing within 90 days after the
person shall have delivered to said district attorney written
notice of the place of his or her imprisonment . . . and his or her
desire to be brought . . . for sentencing. . . . In the event that the
defendant is not brought to trial or for sentencing within the 90
days the court in which the charge or sentencing is pending shall,
on motion or suggestion of the district attorney, or of the
defendant . . . , or on its own motion, dismiss the action.” Our
Supreme Court has held that “‘the principal purpose “of section
1381 ‘is to permit a defendant to obtain concurrent sentencing at


      2 Appellant was awarded 112 days of presentence credit,
with the remainder of the term stayed pending our resolution of
this appeal.


                                  5
the hands of the court in which the earlier proceeding is pending,
if such is the court’s discretion.’”’” (People v. Wagner (2009)
45 Cal.4th 1039, 1056.)
       Section 1381 did not apply here. Even assuming that the
issuance of a PRCS arrest warrant would otherwise qualify as a
“criminal proceeding” for purposes of section 1381, it is not a
proceeding in which a defendant “remains to be sentenced.”
Appellant’s PRCS in the Ventura County case is part and parcel
of the sentence already imposed in that matter. (§ 1170, subd. (c)
[at sentencing, “[t]he court shall . . . inform the defendant that as
part of the sentence after expiration of the term [of
imprisonment] he or she may be on . . . [PRCS] for a period as
provided in Section 3451”]; see also People v. Steward (2018) 20
Cal.App.5th 407, 425-426 [PRCS is part of a defendant’s
“sentence,” so excess custody credits apply to reduce a period of
PRCS].) Moreover, any term of confinement ordered as a
sanction for violating PRCS is not a “sentence.” As we recently
recognized, “California law carefully distinguishes between
confinement for parole or PRCS violations on the one hand, and
traditional ‘sentencing’ for criminal convictions on the other.
[Citation.] These two areas are separate and distinct.
[Citations.]” (People v. Garcia (2018) 22 Cal.App.5th 1061, 1065,
italics added.)
       Appellant’s citation to Rudman v. Superior Court (1973)
36 Cal.App.3d 22 (Rudman), is unavailing. The defendant in that
case (Rudman) was convicted of receiving stolen property (§ 496).
Imposition of sentence was suspended and he was placed on
probation. He was later arraigned on a probation violation, but
failed to appear at the probation violation hearing and a bench
warrant was issued. Rudman was later sentenced to state prison
on other charges and the warrant was lodged with the prison as a



                                 6
detainer. Rudman then filed a section 1381 demand as to the
outstanding warrant and probation violation action. The demand
was rejected and Rudman’s motion to dismiss the action was
denied. The Court of Appeal found that Rudman was entitled to
relief under section 1381. (Id. at pp. 24-28.)
       Rudman is inapposite. In that case, the imposition of
sentence was suspended; here it was not. “[T]he plain meaning of
the phrase ‘there is pending . . . any criminal proceeding wherein
the defendant remains to be sentenced’ (§ 1381) includes a
probation revocation proceeding in which the imposition of
sentence was suspended when probation was granted.” (People v.
Wagner, supra, 45 Cal.4th at p. 1056.) This distinction was
determinative: If probation had been granted following an
imposition of a sentence rather than a suspended imposition of
sentence, section 1381 would not have applied. (Boles v. Superior
Court (1974) 37 Cal.App.3d 479, 482-484.) Appellant did not
“remain to be sentenced” on a PRCS violation, so he was not
entitled to relief under section 1381.
                            Due Process
       Appellant also contends that the failure to bring him to
Ventura County to resolve the PRCS revocation matter within a
reasonable time after he made his demand constitutes a violation
of his due process rights. We agree.
       The People do not dispute that persons arrested for an
alleged PRCS violation and charged in a revocation petition with
violating PRCS have a due process right to a prompt
determination of probable cause followed by a timely revocation
hearing with the opportunity to appear in court and provide a
defense. (People v. Gutierrez (2016) 245 Cal.App.4th 393, 401-
403; Morrissey v. Brewer (1972) 408 U.S. 471, 481, 489
(Morrissey); People v. DeLeon (2017) 3 Cal.5th 640, 647-657.) The



                                7
People claim, however, that those rights “did not directly apply”
here because (1) appellant had yet to be arrested on the PRCS
warrant when he demanded that he be brought to Ventura
County to address the alleged violation; and (2) “the [Probation]
Agency [had yet to] actually seek to formally revoke appellant’s
PRCS for the alleged PRCS violation set forth in the arrest
warrant, i.e., the [Probation] Agency [had not] filed a PRCS
revocation petition on the basis of that alleged PRCS violation.”
       We need not decide whether Morrissey and its progeny
apply in this context because appellant’s due process claim has
merit under the standard set forth in Matthews v. Eldridge
(1976) 424 U.S. 319 (Matthews). “‘[D]ue process is flexible and
calls for such procedural protections as the particular situation
demands.’ [Citation.] Accordingly, resolution of the issue
whether the . . . procedures provided here are constitutionally
sufficient requires analysis of the governmental and private
interests that are affected. [Citations.] More precisely, . . .
identification of the specific dictates of due process generally
requires consideration of three distinct factors: First, the private
interest that will be affected by the official action; second, the
risk of an erroneous deprivation of such interest through the
procedures used, and the probable value, if any, of additional or
substitute procedural safeguards; and finally, the Government’s
interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute
procedural requirement would entail. [Citation.]” (Id. at pp. 334-
335.)
       A balancing of the three Matthews factors plainly weighs in
appellant’s favor. The PRCS warrant was issued on the
allegation that appellant had absconded from supervision. In
issuing that warrant, the court summarily revoked and tolled



                                 8
appellant’s PRCS. Once appellant notified the authorities in
Ventura County of his circumstances and demanded that the
PRCS revocation matter be resolved, he could no longer be said to
be absconding.
       Moreover, the People concede that if the PRCS revocation
matter had been timely addressed pursuant to appellant’s
demand, any term of incarceration imposed as a sanction for
violating PRCS would have had to run concurrent to the jail
sentence he was then serving in Monterey County. (People v.
Garcia (2018) 22 Cal.App.5th 1061, 1064-1066.) The tolling of
appellant’s PRCS also would have ended and PRCS would have
been reinstated or terminated. (§ 3455.)
       The People nevertheless contend that no due process
violation occurred here. In addressing the first Matthews factor,
they assert that appellant’s liberty interest as a person on PRCS
was merely “conditional” and that “by the time [he] made his
whereabouts known . . . , his conditional liberty interest was
further lessened by his lawful confinement from his subsequent
conviction and jail sentence in the unrelated Monterey County
case.” As to the second factor, the People claim “there was no
risk of an erroneous deprivation of appellants’ conditional liberty
interest because appellant’s section 1381 demand established the
fact of his lawful conviction and ensuing jail sentence in
Monterey County [citation], and this conviction was a clear
violation of appellant’s PRCS conditions. [Citation.]” In
addressing the third factor, they merely offer that executing the
PRCS warrant and transferring appellant to Ventura County
“would [have] require[d] additional administrative and fiscal
burdens on scarce public resources.”
       None of these assertions are persuasive. As we have
explained, appellant had a compelling interest in the timely



                                 9
resolution of his alleged PRCS violation. Moreover, appellant
correctly notes that his conviction in Monterey County was based
upon conduct that took place before he was on PRCS.3 That
conviction thus has no bearing on the determination whether
appellant had violated his PRCS in Ventura County.
      Finally, it was simply a matter of when, rather than if,
appellant would have to be transported to Ventura County from
Monterey County. As appellant aptly notes, “[t]he only issue was
whether he was going to be brought to court within a reasonable
time after the government learned of his whereabouts or be
brought to court after his completed his Monterey sentence.” The
third Matthews factor thus favors appellant.4
      The authorities in Ventura County violated appellant’s due
process rights by refusing his demand for a timely resolution of

      3 We grant appellant’s request for judicial notice of the
complaint in Monterey County case number SS143073A. As that
complaint reflects, the charge in the case was based on a crime
appellant committed while he was serving the prison sentence
imposed in the Ventura County case, i.e., before he was placed on
PRCS.

      4 Our conclusion that appellant’s due process rights were
violated is also supported by the leading treatise on criminal
sentencing, which states that “[d]efendants who are confined in
out-of-county jails are making demands under section 1381 to be
produced to the county where the defendant is subject to
supervision on PRCS. . . . Technically, section 1381 may not
apply to these defendants. . . . Even though the defendant may
not qualify for relief under section 1381, . . . there may be a due
process obligation to produce the defendant within a ‘reasonable
time’ once the court becomes aware of defendant’s
circumstances.” (Couzens & Bigelow, Felony Sentencing After
Realignment (May 2017) p. 104.)


                                10
his alleged PRCS violation. Moreover, appellant plainly suffered
prejudice as a result of the due process violation: his PRCS
continued to be tolled, and he was deprived of concurrent
sentencing on the 120-day jail term that was subsequently
imposed as a sanction for the PRCS violation. Accordingly, the
order denying his motion to recall the PRCS warrant and dismiss
the related revocation proceedings must be reversed.
                           DISPOSITION
       The order denying appellant’s motion to recall the PRCS
warrant and dismiss the related PRCS revocation proceedings is
reversed. On remand, the trial court shall recalculate the tolling
period of appellant’s PRCS from the date the PRCS warrant was
issued (October 8, 2015), until the date the authorities in Ventura
County received notice of appellant’s section 1381 demand.
       CERTIFIED FOR PUBLICATION.




                                     PERREN, J.


We concur:



             GILBERT, P. J.



             TANGEMAN, J.




                                11
                   Donald D. Coleman, Judge
               Superior Court County of Ventura
             ____________________________________

      Todd W. Howeth, Stephen P. Lipson, Public Defenders,
Michael C. McMahon, Chief Deputy Public Defender, and
William Quest, Senior Deputy Public Defender, for Defendant
and Appellant.
      Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Victoria B. Wilson, Steven D. Matthews,
Supervising Deputy Attorneys General, and Chung L. Mar,
Deputy Attorney General, for Plaintiff and Respondent.
