California Criminal Trial Manual

PC 1381 Demand

• Rule: PC 1381 allows individuals who are serving a term of imprisonment in California and have state charges pending against them to (1) demand the district attorney’s office proceed to trial on the pending charges, and (2) file a motion to dismiss if their case is not brought to trial within 90 days. (People v. Hyatt (2025) 109 Cal.App.5th 735.)
• Statute: “Whenever 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 or … in a county jail for a period of more than 90 days,” and 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, the district attorney of the county in which the matters are pending shall bring the defendant to trial or for sentencing within 90 days” after the defendant “deliver[s] to said district attorney written notice” demanding compliance with this provision. (PC 1381.)
  • Purpose of PC 1381. to permit a defendant the opportunity to obtain concurrent sentencing at the hands of the court in which the earlier proceeding is pending. (People v. Wagner (2009) 45 Cal.4th 1039, 1056.)
• Noncompliance: The penalty for noncompliance is “dismiss[al of] the action.” (PC 1381.)
  • No Prejudice Needed. No affirmative showing of prejudice is necessary to obtain a dismissal for violation of the state constitutional speedy trial right as construed and implemented by statute. (Elias v. Superior Court (2022) 78 Cal.App.5th 926, 937.)
• Dismissal Does Not Bar Second Prosecution. A dismissal under section 1381 does not bar a second prosecution for the same offense if it is a felony. (PC 1387(a); People v. Gutierrez (1994) 30 Cal.App.4th 105, 109.)
  • A second prosecution would be barred only if defendant could show “actual prejudice.” (Crockett v. Superior Court of Santa Clara County (1975) 14 Cal.3d 433, 439.)
  • Loss of opportunity to serve concurrent time is NOT sufficient, standing alone. (People v. Gutierrez (1994) 30 Cal.App.4th 105, 111.)
• Remains to be sentenced. A defendant is “sentenced” when a judgment imposing punishment is pronounced even if execution of the sentence is then suspended. (People v. Scott (2014) 58 Cal.4th 1415, 1423.)
  • D “remains to be sentenced” for PC 1381 purposes during the period that the imposition of judgment and sentence is suspended. (People v. Wagner (2009) 45 Cal.4th 1039, 1056.)
  • D does not “remain to be sentenced” for § 1381 where trial court imposed a specific sentence on D, suspended execution of that sentence, and placed D on probation. (People v. Smith (2019) 35 Cal.App.5th 399, 401.)
  • Does not apply to proceeding on PRCS arrest warrant because it was not a proceeding in which defendant remained to be sentenced; the PRCS was part and parcel of a sentence already imposed. (People v. Murdock (2018) 25 Cal.App.5th 429, 434.)
• Entered Upon Term of Imprisonment in a State Prison. A defendant who has begun serving his CDC sentence but is being held temporarily in custody in CJ pending transport to CDC can be considered to have “entered upon a term of imprisonment in a state prison” for PC 1381 purposes. (People v. Hyatt (2025) 109 Cal.App.5th 735.)
• Continuance Beyond the 90 Days – D’s Consent. § 1381 requires sentencing within 90 days after delivery of the demand to the district attorney unless “a continuance beyond the 90 days is requested or consented to by the person, in open court, and the request or consent entered upon the minutes of the court.”
  • Informal consent can be sufficient.
    • Court asked D if continuance [past 90th day] would be agreeable with him, D replied “it will have to be, I guess.” Held, such colloquy constituted consent. (People v. Tahtinen (1958) 50 Cal.2d 127, 133.)
    • Court suggests 13-day continuance [past 90th day], asks D if he is “willing to wait that long,” D replied “I don’t think I got much choice.” Held, such colloquy constituted consent. (People v. Contreras (2009) 177 Cal.App.4th 1296, 1302.)
• Defect in court minutes neither vitiates the prisoner’s consent nor entitled the prisoner to a dismissal. (People v. Contreras (2009) 177 Ca.App.4th 1296, 1304.)

Serna Motion

Due Process Right (Fifth Amendment)

• A delay between the date a crime is committed and the date a person is arrested or charged is tested under the Fifth and Fourteenth Amendments of the US Constitution. (People v. Cowan (2010) 50 Cal.4th 401, 430.)
• Federal Analysis
  • Federal due process requires dismissal only “if it were shown at trial that the preindictment delay in [the] case caused substantial prejudice to [the defendant’s] rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused.” (United States v. Marion (1971) 404 U.S. 307, 324.)
  • Two requirements: (1) substantial prejudice & (2) intentional delay “to gain a tactical advantage over the defendant.” (People v. Catlin (2001) 26 Cal.4th 81, 107.)
  • Substantial Prejudice
    • Even a showing of some detriment … does not necessarily mean that a denial of due process has occurred. (People v. Price (1985) 165 Cal.App.3d 536, 542.)
  • No Balancing Test. Court should not apply any balancing test under federal due process analysis until the defendant establishes that the delay was intentionally caused by the state. (People v. Hannon (1977) 19 Cal.3d 588, 610, fn. 12.)
• State Analysis. For allegations of state due process right violations, Court uses the same analysis as that used for purported state speedy trial right violations (see below)
  • The statute of limitations is usually considered the primary guarantee against bringing overly stale criminal charges.” (People v. Archerd (1970) 3 Cal.3d 615, 639.)

Federal Speedy Trial Right (Sixth Amendment)

• Right to a speedy trial is guaranteed under the Sixth Amendment. (Klopfer v. North Carolina (1967) 386 U.S. 213, 223.)
• Function. Right is meant to prevent oppressive pretrial incarceration, minimize the accused’s anxiety and concern and limit possible impairment of the defense. (Barker v. Wingo (1972) 407 U.S. 514, 532.)
• When Triggered:
  • Felony: attaches upon either arrest with continuing restraint or the filing of an indictment or information. (People v. Martinez (2000) 22 Cal.4th 750, 765.)
    • Filing of a felony complaint is by itself insufficient to trigger speedy trial protection. (People v. Hannon (1977) 19 Cal.3d 588, 605-606.)
  • Misdemeanor: attaches when D is arrested, or a misdemeanor complaint is filed, whichever occurs first. (Serna v. Superior Court (1985) 40 Cal.3d 239, 262.)
  • PC 853.6: a person cited and released on a written PTA under PC 853.6 is “accused” for Sixth Amendment purposes from the cite date to the PTA date
• Balancing test. Courts must consider (1) the length of delay, (2) the reason for the delay, (3) the D’s assertion of the right, and (4) prejudice to the defense caused by the delay. (Barker v. Wingo (1972) 407 U.S. 514, 530.)
  • “None of the four factors is either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process.” (People v. Martinez (2025) 108 Cal.App.5th 755.)
• Presumptive Prejudice. Delay exceeding one year between the filing of a complaint and the arrest is presumptively prejudicial, and dismissal is compelled in the absence of good cause for the delay. (Serna v. Superior Court (1985) 40 Cal.3d 239, 254.)
  • Exception. If a misdemeanor D is (1) Arrested; (2) released w/ PTA date; and (3) no complaint is filed by PTA date:
    • -> Interval between missed PTA date & later filing of complaint does not count toward the one-year threshold where Court may presume prejudice. (People v. Buchanan (2022) 85 Cal.App.5th 186, 197.)
• Actual Prejudice not required. (Leaututufu v. Superior Court (2011) 202 Cal.App.4th Supp. 1.)

State Speedy Trial Right (Post-Complaint Delay)

• Speedy trial right is also guaranteed under Article 1, sec. 15 of the California Constitution
• When Triggered:
  • Felony: Filing of a felony complaint is sufficient to trigger the protection of the speedy trial right. (People v. Martinez (2000) 22 Cal.4th 750, 754.)
  • Misdemeanor: when criminal complaint is filed. (Serna v. Superior Court (1985) 40 Cal.3d 239, 248.)
• Step 1: D must first show actual prejudice resulting from the delay. (People v. Manzo (2023) 96 Cal.App.5th 538, 541-542; People v. Lowe (2007) 40 Cal.4th 937, 942.)
  • Examples:
    • Witness now unavailable (People v. Martinez (1995) 37 Cal.App.4th 1589.)
    • Evidence has disappeared
    • Memory of a potential witness has faded
    • Speculative arguments are inadequate to establish prejudice (People v. Jones (2013) 57 Cal.4th 899, 923.)
• Step 2: Next, P must show justification for the delay. Trial court balances the prejudice to the D resulting from the delay against the prosecution’s justification for the delay.
  • “[T]he more reasonable the delay, the more prejudice the defense would have to show to require dismissal.” (Ibarra v. Municipal Court (1984) 162 Cal.App.3d 853, 858.)
• Actual prejudice required for delays after filing of complaint and before arrest or formal accusation by indictment/information. (People v. Martinez (2000) 22 Cal.4th 750, 767.)
  • Speculative Arguments Not Actual Prejudice. (People v. Manzo (2023) 96 Cal.App.5th 538.)
  • Possibility of Prejudice Not Actual Prejudice. “[T]he defendant must affirmatively demonstrate having suffered actual prejudice as a result of the delay, not just the possibility of prejudice.” (People v. Martinez (2025) 108 Cal.App.5th 755, 766.)
  • Loss of Opportunity to Serve Concurrent Sentences Not Actual Prejudice. (People v. Lowe (2007) 40 Cal.4th 937, 946.)
  • Missing dashcam footage that might have contradicted arresting officer’s version of events amounts to “unsupported speculation that the footage had exculpatory value” and is insufficient. (People v. Manzo (2023) 96 Cal.App.5th 538.)
  • Lost witness interview audio tapes that may have “included statements not contained in, or that contradicted, investigators’ reports or witnesses’ testimony.” Held, insufficient. (People v. Alexander (2010) 49 Cal.4th 846, 875.)