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The People v. Donald Ralph Mccloud

December 30, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
DONALD RALPH MCCLOUD, DEFENDANT AND APPELLANT.



(Super. Ct. No. 043365)

The opinion of the court was delivered by: Cantil-sakauye, J.

P. v. McCloud

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Seven and one-half years after the crime, defendant was convicted by plea of first degree burglary (Pen. Code, § 459)*fn1 and he admitted a prior serious felony (§§ 667, subds. (b)-(i) & 1170.12). On appeal, he contends the prosecution's failure to lodge a detainer against him pursuant to the Interstate Agreement on Detainers (§ 1389) while he was imprisoned in Texas violated his right to a speedy trial. He further contends this failure was prejudicial misconduct by the prosecutor.

Defendant's no contest plea limits what he can raise on appeal. Under California law, while he may raise a violation of the Interstate Agreement on Detainers, he cannot raise a claim that his speedy trial rights were violated. Since his contention rests on a denial of speedy trial rights rather than a statutory violation, it is not cognizable on appeal. Nor has defendant shown prosecutorial misconduct. We affirm the conviction, but because the trial court failed to orally pronounce sentence, we remand for sentencing.

FACTS

In July 2001, defendant entered a West Sacramento, Yolo County residence and took multiple items of property.

During the investigation of this crime, a crime scene investigator lifted seven latent prints from the residence, including a print found on a red tin box in the bedroom. Two of these prints were sent to the Department of Justice in April of 2002, but no matches were found. In 2004, all seven of the prints were resubmitted because the other five palm prints could now be compared as the automated palm print system was up and running. This time a print on the red tin matched the defendant.

In May 2004, a criminal complaint charging defendant with the 2001 first degree burglary was filed in Yolo County. Over four years later, in December 2008, the complaint was amended to add a second count of grand theft of a firearm and two "strike" priors of residential burglaries in Texas. This amendment came after defendant was released from prison in Texas, arrested by the U.S. Marshall, and extradited back to California.

Defendant filed a motion to dismiss for lack of prosecution. Defendant argued the prosecution had a duty to inform him of the pending charges and to inform him of his right to demand trial. Defendant claimed the prosecution's failure to comply with this duty violated his right to due process. Defendant also asserted that count 2 of the amended complaint was barred by the statute of limitations. The People conceded this point. Count 2 was dismissed, but the court denied defendant's motion as to count 1.

After defendant was held to answer, he renewed his motion to dismiss for lack of prosecution.

After this motion was denied, defendant accepted a plea bargain. Under the terms of the bargain, defendant pled no contest to count 1 and admitted one prior serious felony in exchange for dismissal of the other prior serious felony and a ...


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