How to File a Section 1381 Motion under the California Penal Code

Section 1381 of the California Penal Code describes how, under certain qualifying conditions, a prisoner in California may file a 1381 motion or have the motion entered on his behalf in order to be brought to trial within 90 days on another charge. There is no official form for the motion, but the request is relatively straightforward.

Section 1381 applies only when a defendant is currently imprisoned but has another charge pending for a different crime. Section 1381 motions can be made only if the prisoner's current sentence is more than 90 days. If these conditions both apply, the prisoner can then file the 1381 motion for a speedy trial. Once the motion is made, the prisoner must be tried within 90 days or the charge must be dropped. The motion can be made by anyone currently incarcerated in state prisons, county jails, or held by the California Youth Authority.

The constitutional right to a speedy trial exists to prevent authorities from holding un-convicted prisoners in jail indefinitely while they await trial. Since a prisoner contemplating a Section 1381 filing is already incarcerated, the request for a speedy trial on a subsequent charge may seem to lack urgency – even after a subsequent trial and regardless of the outcome, the prisoner will remain incarcerated.

On the contrary, by filing the 1381 motion, the prisoner gives the court an opportunity to make the sentence from the later conviction run concurrently with the first.

One difficulty for California prisoners who want to file a Section 1381 motion is that the State of California does not provide a Section 1381 form or official procedural instructions.

A prisoner must begin by determining his eligibility to file the 1381 Motion. The California Penal Code stipulates three qualifying conditions, each of which must be met. The defendant:

• must have been convicted of a crime and sentenced to a minimum of 90 days.
  
• must be presently incarcerated for that offense.
• and must have other charges pending.

Pending charges that qualify under the statute can be any almost criminal proceeding that requires adjudication. This includes indictments as well as complaints.

A 1381 Motion requires that the relevant authorities bring the prisoner to trial on the pending charge within 90 days of filing unless the prisoner himself requests a continuance – that is, for a delay in the trial. The California Penal Code further requires that continuance requests be made in open court – that is, they can't be requested by a prisoner currently held in physical custody in a penal institution.

If the District Attorney fails to provide the requested trial within 90 days, either the District Attorney or the defendant can move to dismiss the pending charge.

There are no formal requirements for the motion. The prisoner addresses a written communication to the relevant District Attorney by county and name and identifies it as a 1381 motion request. A sample 1381 motion is included in this article's Resource section.

The communication begins by identifying the prisoner by full name and prison number, then identifies the conviction that resulted in incarceration, the date of that conviction, where he is currently held, the name of the warden or jailer holding him and the scheduled date of release. The demand should specify that "pursuant to Penal Code section 1381," the motion is "for an Order dismissing the indictment, information, and/or complaint in the above entitled matter" 90 days after the motion is filed.

Michael Fallon, a practicing California Defense attorney, also notes that sometimes district attorneys dispute the date of arrival of the 1381 notice. He recommends that prisoners send 1381 requests by registered mail with proof of service or, when the prisoner can arrange it, by personal service.