Filed 12/12/17 P. v. Austin CA4/3








NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Appellant,

v.

KHRYSTINA ELIZABETH AUSTIN ZABLOCKIS,

Defendant and Respondent.


G052415

(Super. Ct. No. 15NF0775)

O P I N I O N

Appeal from an order of the Superior Court of Orange County, Roger B. Robbins, Judge. Reversed.
Tony Rackauckas, District Attorney, David R. Gallivan, Deputy District Attorney, for Plaintiff and Appellant.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Respondent.
The Orange County District Attorney (OCDA) appeals from the trial court’s order dismissing his felony complaint against Khrystina Elizabeth Austin Zablockis. The OCDA argues the trial court erred by dismissing the complaint pursuant to Penal Code section 1381 (section 1381). We agree and reverse the order.
FACTS
On March 25, 2015, the OCDA filed a felony complaint (case No. 15NF0775) charging Zablockis with second degree robbery “[o]n or about March 23, 2015” (Pen. Code, §§ 211, 212.5, subd. (c)). Eighty four days later, on June 17, 2015, the trial court granted, over the OCDA’s objection, Zablockis’s oral motion to dismiss the complaint pursuant to section 1381.
DISCUSSION
The OCDA contends the trial court erred by dismissing the complaint pursuant to section 1381. We agree.
Section 1381 provides as follows: “Whenever a defendant has been convicted, in any court of this state, of the commission of a felony or misdemeanor and has been sentenced to and has entered upon a term of imprisonment in a state prison or has been sentenced to and has entered upon a term of imprisonment in a county jail for a period of more than 90 days or has been committed to and placed in a county jail for more than 90 days as a condition of probation . . . and at the time of the entry upon the term of imprisonment or commitment there is pending, in any court of this state, any other . . . 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 person shall have
delivered to said district attorney written notice of the place of his or her imprisonment
or commitment and his or her desire to be brought to trial or 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 person confined in the county jail or committed to the custody of the Director of Corrections or his or her counsel, . . . or on its own motion, dismiss the action.” (Italics added.)
Section 1381 requires an action to be dismissed on a defendant’s motion when he is not brought to trial within 90 days. “Because of the drastic sanction imposed by section 1381, a prisoner must strictly comply with its conditions. [Citations.]” (People v. Gutierrez (1994) 30 Cal.App.4th 105, 111.)
Here, Zablockis did not comply with the strict requirements of section 1381. The record is void of any evidence she made a proper demand in case No. 15NF0775 to commence the running of the 90-day period. While it is true we presume the trial court’s rulings are proper when the record is silent (People v. Akins (2005)
128 Cal.App.4th 1376, 1385), it is impossible for the OCDA to cite to evidence in the record for something Zablockis did not produce. Unfortunately, Zablockis fails to address this necessary requirement in her respondent’s brief, never claiming she provided the OCDA with the written notice.
And the 90-day period had not lapsed, as the trial court granted the motion on the 84th day. Zablockis resorts to guesswork as to why the OCDA might not have been able to comply with the 90-day requirement, but strict compliance with section 1381 is required. Zablockis did not satisfy those requirements. (People v. Clark (1985) 172 Cal.App.3d 975, 980-981.)





DISPOSITION
The order is reversed.



O’LEARY, P. J.

WE CONCUR:



IKOLA, J.



THOMPSON, J.