California

Getting your Case Dismissed with a PC 1381 Demand

November 15, 2018 by Mikel Rastegar in California  Criminal Defense  
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What is Case Dismissed with Penal Code 1381 PC Demand?

A case dismissed with a PC 1381 Motion is a demand to go to trial by someone who has been sentenced to imprisonment for 90 days or more. For example, if a person has been sentenced to prison for 16 months, and a new case is filed against them while they are in prison, they can make a 1381 Motion to be brought to trial.

In that case the Defendant making the PC 1381 Demand must be given a trial within 90 days of making the motion, or his or her case must be dismissed.

In other words, the defendant is not brought to trial within 90 days after the prosecutor receives the 1381 demand, the case must be dismissed even if the prosecutor can present good cause for the delay. (Crockett v. Superior Court (1975) 14 Cal.3d 433.) However, the prosecutor may refile the charges dismissed under Penal Code section 1381 if the two-dismissal rule of Penal Code section 1387 does not bar further prosecution. (Crockett v. Superior Court; see also People v. Eldridge (1997) 52 Cal.App.4th 91.)

Your Constitutional Right

The Constitutional Right which is implicated is the right to a speedy trial as articulated in the Sixth Amendment of the US Constitution. The pertinent part of the Sixth Amendment reads that in “all criminal prosecutions, the accused shall enjoy the right to a speedy trial.” A lot of times pending charges for those who are in jail already for a different charge might be thought of to a prosecuting agency as less urgent, and so the DA’s office can simply wait until the person is out before having the person face the outstanding charges. A person who is imprisoned because of a different case can make sure to protect their rights to a speedy trial by making a PC 1381 demand.

In order to make a PC 1381 Motion (or Demand) several conditions must apply. You must be presently incarcerated on a sentence of 90 days or more while another charge is pending. That other charge referenced in the previous sentence is the subject of the PC 1381 Demand. So for instance, if I am serving a jail sentence of one year and I have an outstanding warrant for any other case, I can simply make the 1381 Demand, and if I am not brought to trial on pending charges within 90 days, my case must be dismissed.

Often times, if the case is not dismissed, the practical effect is to get the opportunity to run the sentence on your pending case concurrently with the case you’ve been incarcerated on. So if you’re serving 180 days in jail for stealing a car, and you have a vandalism charge pending, you can plead to the vandalism charge and do the time simultaneously, so in reality, you are not doing any extra time.

The format of a PC 1381 Motion is unspecified which means it only needs to be in writing and addressed to the relevant prosecutor of the county in question. The motion should reference Penal Code Section 1381 and should indicate it is a motion which includes an Order to dismiss the case if you are not brought to trial within 90 days.

The crucial thing with a PC 1381 Motion is to prove that you’ve actually served the demand on the relevant prosecutor (usually a District Attorney or City Attorney). That usually means that you should keep some kind of proof of mailing, or have it personally served by someone else.

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If you or a loved one has been charged with a crime in the Southern California area, we invite you to contact us immediately for a free case review.

Our experienced and assiduous attorneys will be sure to fight until the end to achieve the desired results.

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