Can I File a Penal Code Section 1381 Demand?


Under California law, a person serving a prison or county jail term of more than 90 days with criminal charges pending in California can file a Penal Code section 1381 demand on the prosecuting attorney.  The reason for filing such a demand is to allow the court the opportunity to sentence the person to a concurrent term that will run at the same time as the prison or jail term the person is already serving.

Once the prosecutor received the 1381 demand, he or she must bring the person making the demand to trial within 90 days or the charges will be dismissed.  The person making the demand must physically be in jail on the jail sentence, or in prison on the prison sentence in order for Penal Code section 1381 to apply.  (See People v. Gutierrez (1994) 30 Cal.App.4th 105.)

If the prosecution does not bring the person to trial within 90 days after receiving the 1381 demand, the case must be dismissed regardless of whether the prosecutor can present good cause for the delay.  (See Crockett v. Superior Court (1975) 14 Cal.3d 433.)  However, the prosecutor may refile charged 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.)

The problems most commonly associated with a failed Penal Code section 1381 demand arise with proof of when the prosecutor actually received the required notice.  (See, e.g., People v. Contreras (2009) 177 Cal.App.4th 1296, 1300.)  I always require either personal service on the prosecutor’s office with a written proof of service, or send the notice certified mail that requires a return receipt.  This way the defense can prove the actual date of receipt of the demand.

If you are looking for an experienced, reliable criminal defense attorney who understands all aspects of resolving a criminal case, including the proper use of a 1381 demand, schedule an appointment on this web site or call to set up a time to meet and discuss your case.