P. v. Davis

1 SEE DISSENTING OPINION
Filed 3/10/08 P. v. Davis CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Yuba)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
KEVIN MICHAEL DAVIS,
Defendant and Appellant.
C052803
(Super. Ct. No. CRF03-702)
In this appeal we conclude: (1) the speedy sentencing
rights provided by Penal Code section 1381 apply to a probation
revocation proceeding if imposition of sentence was originally
suspended; (2) the trial court should have granted defendant
Kevin Michael Davis’s section 1381-based motion to dismiss his
probation revocation proceeding for failing to sentence him
within the 90-day period mandated by that section (and therefore
that sentence must be vacated); and (3) under Penal Code

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section 1387 the People may refile the probation revocation
proceeding within defendant’s period of probation.
B ACKGROUND
On August 25, 2004, pursuant to a plea bargain, defendant
pleaded guilty in Yuba County Superior Court case No. CRF03-702
to a single count of violating Health and Safety Code section
11379, subdivision (a) (transporting methamphetamine).
On September 13, 2004, the Yuba County Superior Court
suspended the imposition of sentence and placed defendant on
probation for three years pursuant to Proposition 36 (drug
treatment program).
On October 12, 2004, the Yuba County Probation Office
petitioned to revoke defendant’s probation because he failed to
report to his probation officer on September 16, 2004, as
directed; defendant’s probation was summarily revoked.
After defendant failed to appear for a Yuba County
Superior Court proceeding regarding this September 16
probation violation, the probation violation hearing was held
on September 26, 2005, and defendant admitted that he failed to
report on September 16, 2004. Defendant was ordered to return
on October 17, 2005, for judgment and sentencing, but he failed
to appear on that date.
On October 21, 2005, defendant was sentenced in Sutter
County Superior Court case No. CRF-05-2182 to two years in state

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prison for violating Penal Code section 459 (first degree
burglary).1
Just four days later, on October 25, 2005, at the request
of the Yuba County District Attorney, the Yuba County Superior
Court issued an Order for Removal of Prisoner. The order
specified that a criminal proceeding (case No. CRF03-702)
was pending against defendant in the Yuba County Superior Court,
and that defendant was to be brought to the Yuba court on
November 7, 2005, at 9:00 a.m. The minute order for the
November 7 proceeding, described as an arraignment for probation
violation, states, “Dropped--Active Warrant.”
On January 4, 2006, defendant served the Yuba County
District Attorney with a preprinted form entitled “NOTICE AND
DEMAND FOR TRIAL (P.C. SECTION 1381).” This notice provided the
specifics of defendant’s Sutter County conviction, stated that
defendant had reason to believe that a Yuba County criminal
action for violation of probation was pending against him, and
demanded a hearing of that criminal action as prescribed by
section 1381.
Based on this section 1381 demand, defendant, on April 4,
2006, moved to dismiss his Yuba County case (case No. CRF03-702;
transporting methamphetamine) because he had not been heard
within the 90-day period mandated by that section.
1 Hereafter, undesignated section references will be to the
Penal Code.

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In late May 2006, the Yuba County Superior Court implicitly
denied defendant’s section 1381-based motion, finding the
section inapplicable to an incarcerated probationer with a
pending probation revocation proceeding. The Yuba court then
sentenced defendant on his Yuba County conviction (transporting
methamphetamine) to a one-year sentence consecutive to his two-
year sentence on his Sutter County conviction (first degree
burglary).
Defendant has timely appealed from this Yuba County
judgment.
D ISCUSSION
1. Application of Section 1381
Defendant contends his Yuba County case (transporting
methamphetamine) must be dismissed because the Yuba County
Superior Court failed to sentence him within 90 days of the
district attorney’s receipt of his section 1381 demand for
hearing regarding his pending probation violation proceeding.
We conclude that defendant’s Yuba County probation revocation
(sentencing) proceeding should have been dismissed, and that the
sentence imposed at that proceeding must be vacated.
Section 1381 provides in pertinent part: “Whenever a
defendant has been convicted, in any court of this state, of
the commission of a felony . . . and has entered upon a term
of imprisonment . . . and at the time of the entry upon the term
of imprisonment . . . there is pending, in any court of this
state, any other indictment, information, complaint, or any
criminal proceeding wherein the defendant remains to be

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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 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 to trial or for sentencing unless a continuance beyond
the 90 days is requested or consented to by the person, in open
court . . . . 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 his or her counsel . . . or on its own motion, dismiss the
action.” (Italics added.)
As this court has noted, the principal purpose “of section
1381 ‘is to permit a defendant to obtain concurrent sentencing
at the hands of the court in which the earlier proceeding is
pending, if such is the court’s discretion.’” (People v. Boggs
(1985) 166 Cal.App.3d 851, 855 (Boggs), quoting Boles v.
Superior Court (1974) 37 Cal.App.3d 479, 484 (Boles); see also
§ 669 [section 669 provides that sentences default to concurrent
if the trial court fails to order otherwise].) Section 1381
also acts to clean up pending charges, limit anxiety involving
unresolved charges, and avoid prolonged imprisonment. (Boggs,
supra, 166 Cal.App.3d at p. 855; see also People v. Broughton
(2003) 107 Cal.App.4th 307, 319 (Broughton).)
Section 1381 applies, as relevant here, to any person who,
at the time of entry upon the term of imprisonment for a

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California felony conviction, has “pending . . . any
[California] criminal proceeding wherein [he] remains to be
sentenced.” There has been some disagreement among the courts
of appeal as to whether section 1381 applies to a defendant
awaiting a probation revocation proceeding. (Compare Rudman v.
Superior Court (1973) 36 Cal.App.3d 22 (Rudman), People v.
Johnson (1987) 195 Cal.App.3d 510 and People v. Ruster (1974)
40 Cal.App.3d 865 (Ruster) [Johnson and Ruster were disapproved
on other grounds in In re Hoddinott (1996) 12 Cal.4th 992,
1005] and Boles, supra, 37 Cal.App.3d 479 [section 1381
applies to probation revocation proceedings], with Broughton,
supra, 107 Cal.App.4th 307 [a split decision holding that the
substantively identical section 1381.5 does not apply to
probation revocation proceedings].)
In Rudman, the court held that section 1381 applies
to probationers--who have been incarcerated on another
California offense and thereby have a probation revocation
proceeding pending against them--where imposition of sentence
was suspended when probation was granted (we will refer to
such a probationer as an “incarcerated probationer”). (Rudman,
supra, 36 Cal.App.3d at pp. 24, 27.) Rudman implicitly
reasoned that, under these circumstances, an incarcerated
probationer faces, within the contemplation of section 1381,
a pending criminal proceeding wherein he “remains to be
sentenced.” (Rudman, supra, 36 Cal.App.3d at p. 24; see id.
at p. 27); see also Ruster, supra, 40 Cal.App.3d at p. 872.)
The Rudman court concluded that a failure to hold a probation

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revocation hearing within 90 days of a defendant’s section 1381
demand for such a hearing requires dismissal of the probation
revocation proceeding. (Rudman, supra, 36 Cal.App.3d at p. 27.)
Rudman also noted that under section 1381 a defendant “has a
statutory right to be sentenced on the [underlying conviction]
within 90 days of giving appropriate notice to the district
attorney.” (Ibid.)
The Rudman court found that sections 1381 and 1203.2a do
not conflict, even though both sections contemplate speedy
sentencing. There is no conflict because section 1381 provides
defendants an opportunity to appear at the sentencing hearing
and defend in person with counsel, while section 1203.2a allows
a defendant to waive his right to be present and represented by
counsel. (Rudman, supra, 36 Cal.App.3d at p. 27.)
A split decision in Broughton rejected the holding of
Rudman and its progeny, and concluded that the substantively
identical section 1381.5 does not apply to an incarcerated
probationer awaiting a probation revocation hearing where
imposition of sentence was suspended when probation was granted.2
(Broughton, supra, 107 Cal.App.4th at pp. 316-318, 319-320.)
The majority in Broughton found that under the wording of
section 1381.5, dismissal of the “‘action’” (for untimely
2 Broughton construed section 1381.5, a statute under which
federal prisoners in California may request speedy disposition
of a pending California state court proceeding. However, the
language that the court was interpreting is identical to the
language in section 1381, and Broughton invoked section 1381 in
its analysis.

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sentencing) would require dismissal of the underlying conviction
(on which probation was originally granted), and this would be
an absurd result. (Id. at p. 317.) The majority, therefore,
interpreted section 1381.5 as a legislative attempt to provide
speedy trial rights to persons awaiting an initial sentencing
hearing, but not to persons awaiting probation revocation
proceedings who had already been “‘brought’” before the court
“‘for sentencing’” by being granted probation. (Id. at pp. 316-
317.)
We take issue with the majority’s analysis in Broughton
in three respects. First, the majority refused to apply
section 1381.5 (and hence, section 1381) to defendants awaiting
probation revocation proceedings mainly because dismissal of
the “action”--the word these statues use--would lead to the
absurd result of dismissing the underlying conviction on which
probation was originally granted. But the Broughton majority
provided little or no support for its interpretation of the
word “action” in the context of sections 1381.5 and 1381.
(Broughton, supra, 107 Cal.App.4th at p. 317.)
We think it is more reasonable to read the word “action” in
sections 1381 and 1381.5 as requiring dismissal of the probation
revocation proceeding (as the Rudman court did), instead of
limiting the application of these statutes, in the sentencing
context, to an “initial sentencing hearing” (as the Broughton
majority did), a phrase that does not appear in the statutes.
The term “action” is used in section 1381 because that section
broadly requires the dismissal of an indictment, information or

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complaint for not timely trying new charges, as well as the
dismissal of a criminal proceeding for not timely sentencing
old charges. Black’s Law Dictionary defines “action” broadly
as a “civil or criminal judicial proceeding.” (Black’s Law
Dict. (7th ed. 1999) p. 28, col. 2.) Under this definition,
a probation revocation proceeding is an “action.”
Our reading of section 1381, moreover, reasonably
designates a probation revocation proceeding--in light of
its underlying criminal conviction in which imposition of
sentence was suspended--as a “pending . . . criminal
proceeding wherein the defendant remains to be sentenced,”
in the language of sections 1381 and 1381.5. This reading
makes sense because probation must be revoked before a
sentence can be imposed. Such a reading likewise accords
with section 1381’s language that “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.” (And, as is usually the
case, here the Yuba County Probation Department obtained a
court order summarily revoking defendant’s probation when it
filed its petition to revoke probation. A summary revocation of
probation bolsters the view that sentencing remains to be done.)
Second, the majority in Broughton also based its reading of
section 1381.5 (and hence, section 1381) on the existence of the
speedy sentencing procedure provided in section 1203.2a.
(Broughton, supra, 107 Cal.App.4th at pp. 320-321.) However,
the Broughton majority failed to account for substantive

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distinctions between sections 1381 and 1203.2a. (Ibid.) Under
section 1203.2a, a defendant can request imposition of sentence
only if he waives the right to be present and have counsel
represent him at the hearing; in other words, speedy sentencing
under section 1203.2a is sentencing in absentia. In contrast,
section 1381 gives the defendant an opportunity to appear before
the court with counsel, so that he may defend against the
probation revocation charges, the sentence, or both. (§ 1381;
see Rudman, supra, 36 Cal.App.3d at p. 27.)
And third, but not least, the Broughton majority’s reading
of section 1381.5, in the sentencing context as limited to
initial sentencing hearings, would undermine the principal
purpose of section 1381, as stated by this court. That purpose
is to permit an incarcerated probationer, whose imposition of
sentence was originally suspended, to obtain concurrent
sentencing if such is the court’s discretion. (Boles, supra,
37 Cal.App.3d at p. 484; Boggs, supra, 166 Cal.App.3d at p. 855;
see Broughton, supra, 107 Cal.App.4th at p. 316, fn. 12.)
In sum, the majority’s interpretation in Broughton requires
reading the words “initial sentencing hearing” into section
1381, forces an incarcerated probationer awaiting a probation
revocation proceeding to use the less protective section 1203.2a
procedure, and undermines the principal purpose of section 1381.
Our interpretation of the word “action” in section 1381 to
require a dismissal of the probation revocation proceeding, and
not the underlying conviction, does not read the statute in a
strained way. Nor does our interpretation place defendants at

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the mercy of the court in order to exercise their right to
concurrent sentencing under section 669 (as noted above, under
section 669, sentences default to concurrent if the trial court
does not order otherwise). Nor does our interpretation result,
as we shall see later in this opinion, in incarcerated
probationers serving no time on their underlying convictions
because of the mere fortuity of the 90-day sentencing deadline
of section 1381 being missed. (See § 1387 [companion section to
section 1381 that we subsequently interpret to allow a refiling
of felony-based probation revocation charges].)
We agree with Rudman and its progeny, and conclude that
where a defendant has been placed on probation with imposition
of sentence suspended and the defendant is subsequently
incarcerated on another conviction, a probation revocation
proceeding is, in the words of section 1381, a “pending . . .
criminal proceeding wherein the defendant remains to be
sentenced.” (§ 1381.) Section 1381 applies to such a probation
revocation proceeding and a dismissal of the “action” under
section 1381, in this context, is the dismissal of the probation
revocation proceeding.3
We now turn our sights to applying these legal principles
to the facts here.
3 We recognize that this court in Ruster suggested that
dismissal of the “action” under section 1381 would require
dismissal of the underlying conviction. (Ruster, supra,
40 Cal.App.3d at p. 873.) However, the facts of Ruster did
not require a decision on that issue and this suggestion was
made in the context of a rhetorical point.

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Defendant correctly points out that he was sentenced in his
Yuba County probation revocation proceeding on May 26, 2006,
well after the 90-day deadline required by his section 1381
hearing demand of January 4, 2006. We conclude that defendant’s
section 1381 demand was sufficient to invoke the protections of
that section.
As relevant here, section 1381 is invoked when, “at the
time of the entry upon the term of imprisonment [here,
imprisonment on the Sutter County conviction] . . . there is
pending, in any court of this state, . . . any criminal
proceeding wherein the defendant remains to be sentenced [here,
the probation violation proceeding in Yuba County]”; if so, “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 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 to trial or for
sentencing[.]” (§ 1381.)
Defendant’s section 1381 demand was dated January 4,
2006, and was drafted on a preprinted form entitled “NOTICE AND
DEMAND FOR TRIAL (P.C. SECTION 1381).” The demand stated as
pertinent: “TO THE DISTRICT ATTORNEY, Yuba C[ounty], State of
California. Please take notice that I, Kevin Michael Davis[,]
Inmate # F01909[,] (CDC Number) at Salinas Valley State
Prison[,] was convicted of the crime of 1st [d]egree burglary in
Sutter County, CA, and was sentenced . . . on or about 10-21-05
. . . to a term of 2 years. I have reason to believe that the

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following criminal action is now pending against me in Yuba
County. CHARGES[:] Violation of Probation[.] WARRANT #[:]
BW19670. COURT (Location): 215 5th St. ARRESTING AGENCY[:]
Yuba P.D. I HEREBY DEMAND A HEARING AND TRIAL OF SAID CRIMINAL
ACTION AS PRESCRIBED BY SECTION 1381 OF THE PENAL CODE OF
CALIFORNIA.” (Defendant then provided personal information and
specified the mailing address for Salinas Valley State Prison.)
To comply with the section 1381 requirements, defendant
had to deliver to the Yuba County District Attorney “written
notice of the place of his . . . imprisonment . . . and his
. . . desire to be brought . . . for sentencing [regarding the
criminal proceeding in which he remained to be sentenced]
. . . .”
The record shows that defendant met section 1381’s notice
requirement to the district attorney. Aside from defendant’s
section 1381 demand itself, which was directed to the Yuba
County District Attorney, defendant submitted a declaration
accompanying his section 1381 motion to dismiss. That
declaration stated: “On 1-4-06 I [Kevin Davis] served a Notice
and Demand for Trial, per Penal Code § 1381, on the District
Attorney of the County of Yuba by placing a completed Notice and
Demand for Trial in the United States Mail system at Salinas
Prison in conformance with the prison legal mail mailing
procedures, by affixing first class postage to an envelope
addressed to the District Attorney. There is regular United
States Mail service between Salinas Prison and the address of
the District Attorney.”

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The record also shows that defendant met section 1381’s
contents requirements by stating his place of imprisonment and
his desire to be brought for sentencing.
As for place of imprisonment, defendant’s section 1381
demand specified his name, his inmate number, his place of
imprisonment, and the particulars of the Sutter County
conviction on which he was imprisoned (offense, sentencing date
and term).
As for defendant’s stated desire to be brought for
sentencing, his section 1381 preprinted demand specified as
pertinent with the blanks on the form filled in as indicated:
“I have reason to believe that the following criminal action is
now pending against me in Yuba C[ounty]. CHARGES[:] Violation
of Probation[.] WARRANT #[:] BW19670 . . . I HEREBY DEMAND A
HEARING AND TRIAL OF SAID CRIMINAL ACTION AS PRESCRIBED BY
SECTION 1381 OF THE PENAL CODE OF CALIFORNIA.” As noted in the
Background part of this opinion, the only act remaining to be
done with respect to this “violation of probation” criminal
action was to sentence defendant (i.e., the Yuba County
probation violation hearing had taken place on September 26,
2005, defendant had admitted the violation, and he was ordered
to return on October 17, 2005, for sentencing; but on October
21, 2005, defendant was sentenced on the Sutter County
conviction, and his failure to appear in Yuba County on October
17 led to the warrant whose number is specified in defendant’s
section 1381 demand). As defendant persuasively argues in
supplemental briefing we requested, “[s]ince the only hearing

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pending at the time [defendant] made his [section 1381] demand
was the sentencing hearing following the revocation of
[defendant’s] probation, the ‘hearing’ [defendant] was seeking
was that sentencing hearing. No other reasonable conclusion can
be drawn with respect to the meaning of the term ‘hearing’ in
[defendant’s] Penal Code section 1381 demand.”
Furthermore, as defendant notes in his supplemental brief
without challenge, his preprinted section 1381 form was a
standard form made available to Salinas Valley prison inmates.
In preprinted language, this form allows an inmate to demand
only “A HEARING AND TRIAL OF SAID CRIMINAL ACTION AS PRESCRIBED
BY SECTION 1381 OF THE PENAL CODE.” Section 1381 applies only
to a “desire to be brought to trial” [relating to any pending
“indictment, information, [or] complaint”] or for sentencing
[relating to “any criminal proceeding wherein the defendant
remains to be sentenced”]. (Italics added.) Applying this
language to the facts here, defendant’s demand for “A HEARING”
could align only with a demand for a sentencing hearing.
We conclude that defendant has strictly complied with the
requirements of section 1381, as mandated by People v. Gutierrez
(1994) 30 Cal.App.4th 105, 111. To conclude otherwise in light
of the facts here would be not only inaccurate, but unfair to
defendant.
We conclude that defendant’s Yuba County probation
revocation (sentencing) proceeding should have been dismissed
pursuant to his section 1381 motion and the imposition of
sentence at that proceeding must be vacated.

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2. Application of Section 1387
Although the Yuba County probation revocation proceeding
should have been dismissed and the imposition of sentence
at that proceeding must be vacated, a companion statute to
section 1381, section 1387, allows the Yuba County District
Attorney an opportunity to refile the probation revocation
proceeding within defendant’s probationary period.
Section 1387, subdivision (a), states in pertinent part:
“An order terminating an action pursuant to this chapter
[which includes section 1381] . . . is a bar to any other
prosecution for the same offense if it is a felony . . . and
the action has been previously terminated pursuant to this
chapter . . . .” (Italics added.)
In plain English, this statute gives the prosecutor one
opportunity to refile an action that has been dismissed under
section 1381, if the charged offense was a felony. We have
interpreted section 1381 as applying to the “action” of a
probation revocation proceeding. Consistent with that
interpretation, we find that section 1387 applies to a
probation revocation proceeding based on a felony charge.
Defendant’s probation revocation proceeding (Yuba
County) was based in part on a subsequent felony conviction
(the Sutter County conviction for first degree burglary), and
the record does not indicate that this probation revocation
proceeding had ever been dismissed previously. Consequently,
section 1387 applies here. (After defendant served his
section 1381 demand, the focus of defendant’s pending Yuba

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County probation revocation proceeding (for which only
sentencing remained to be done) became defendant’s Sutter
County conviction and sentence for first degree burglary.)
Defendant had been placed on probation for his Yuba County
offense for a period of three years, beginning September 13,
2004. Accordingly, his probation period would normally end on
September 13, 2007, unless his probation had been summarily
revoked for any period of time, as summary revocation tolls the
running of the probationary period. (§ 1203.2, subd. (a).) The
record shows that defendant’s probation was summarily revoked on
October 12, 2004.
Assuming that defendant’s probation has remained revoked
from October 12, 2004, the Yuba County District Attorney
will have an additional, tolled period of 35 months from
September 13, 2007, to refile the probation revocation
(sentencing) proceeding, if the District Attorney chooses to do
so.
D ISPOSITION
The Yuba County trial court is ordered to (1) dismiss the
challenged probation revocation/sentencing proceeding; (2)
vacate the sentence imposed at that proceeding; and (3) release
defendant from custody on that sentence. Given the assumption
noted just above, the Yuba County District Attorney will have a
period of 35 months from September 13, 2007, to refile the
probation revocation (sentencing) proceeding, if the district
attorney chooses to do so. If the district attorney does so, it

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may seek a revocation order and sentence (which accounts for all
time served).
DAVIS , J.
I concur:
RAYE , J.

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I respectfully dissent.
I assume for the sake of argument that Penal Code section
1381 (section 1381) applies to a probation revocation
proceeding.
“Because of the drastic sanction imposed by section 1381, a
prisoner must strictly comply with its conditions. (People v.
Clark (1985) 172 Cal.App.3d 975, 980-981 [218 Cal.Rptr.481];
People v. Garcia (1985) 171 Cal.App.3d 1187, 1191 [217 Cal.Rptr.
783].)” (People v. Gutierrez (1994) 30 Cal.App.4th 105, 111.)
Petitioner did not strictly comply with section 1381. His
section 1381 demand stated, as pertinent, “I HEREBY DEMAND A
HEARING AND TRIAL OF SAID CRIMINAL ACTION AS PRESCRIBED BY
SECTION 1381 OF THE PENAL CODE OF CALIFORNIA.” However, at the
time that defendant filed his section 1381 demand, he had
already received a hearing and trial on his probation
revocation, such hearing having occurred on September 26, 2005.
As the majority acknowledges, all that remained in defendant’s
probation revocation case was sentencing. However, defendant’s
section 1381 demand did not demand sentencing but rather
demanded a hearing and “trial.”
Section 1381 itself distinguishes between a trial and
sentencing. Thus, section 1381 provides in pertinent part, “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 person shall have delivered to said district
attorney written notice of the place of his or her imprisonment

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or commitment and his or her desire to be brought to trial or
for sentencing . . . .” (Italics added.) It is not asking too
much that defendant’s demand track the language of section 1381
and put the district attorney on notice with respect to whether
the defendant is demanding a trial or sentencing. I think that
a deputy district attorney, or more likely a paralegal, having
received defendant’s section 1381 demand, would check the file
to see whether or not defendant had received a hearing and trial
on his probation revocation. The deputy district attorney or
paralegal would rightfully conclude that defendant had received
a hearing and trial of his probation revocation on September 26,
2005, so that there was nothing left to do with respect to
defendant’s section 1381 demand.
The majority argues defendant’s failure to refer to
sentencing should be excused because defendant submitted his
demand on a form. Nothing in the record indicates the form used
by defendant was the only form available to defendant or that no
form existed to demand sentencing.
Because, in his section 1381 demand, defendant demanded a
hearing and trial that had already occurred and not sentencing,
defendant did not strictly comply with section 1381. (People v.
Gutierrez, supra, 30 Cal.App.4th at p. 111 [defendant’s section
1381 demand insufficient where it did not state defendant’s
desire to be brought to trial but rather his desire to have the
charges dismissed].)

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I would affirm the ruling of the trial court.
SIMS , Acting P.J.

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