Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. 5-060683-0
Lambden, J.
A jury found defendant guilty of grand theft in violation of Penal Code section 487, subdivision (a). Defendant contends on appeal that the instructions given on specific intent denied him due process and the right to present his defense. He also maintains that the delay between the filing of the charge against him and the commission of the offense prejudiced his defense and denied him due process. We are unpersuaded by his arguments and affirm the judgment.
All unspecified code sections refer to the Penal Code.
BACKGROUND
The Charge
On June 2, 2006, an information charged defendant with grand theft (§ 487, subd. (a)) from October 2002 through February 2003. The information alleged that defendant had taken money from the Contra Costa County In Home Supportive Services Program (IHSS). A jury trial began on the charge of grand theft on February 20, 2007.
The Trial
At trial, evidence was presented that the IHSS program paid defendant to care for his mother, Geraldine Martin. Martin, who was born on May 14, 1920, first applied for home care on December 1, 1981. She was fairly ill and legally blind. At one point, she had to have her leg amputated. From the beginning, defendant provided Martin with in-home care. Defendant signed a provider service enrollment agreement form on March 8, 1993, which read as follows: “I certify that all information submitted to the county will be accurate and complete to the best of my knowledge.”
Testimony at trial indicated that a provider of care is entitled to be paid only for service a social worker has authorized. The maximum number of hours permitted was 283 hours per month. Daniel York was the social worker who determined the number of hours to which defendant was entitled. He changed the allotted number of hours for defendant on 12 separate occasions. In July 2001, the number allotted for defendant increased from 86.3 hours per month to 122. On March 12, 2002, the allotment increased to 141.6 hours. The hourly rate had been $9.00, but it increased to $9.50 on October 1, 2002. The jury heard testimony that a provider who is dissatisfied with the social worker’s determination of the allotted hours can appeal the determination.
According to the testimony at trial, a provider completes and submits a timecard twice a month. Each timecard requests payment for one-half the number of hours allotted for that month. The provider signs the timecard, declaring all the information on it to be true.
A provider is required to report changes in the status of the client, such as death or hospitalization. Such a report alerts IHSS to stop payment until the client returns home and care is resumed.
Social worker York retired in August 2002. Social worker Sumeth Prasuethsut received Martin’s case in December 2002.
Martin died on October 1, 2002; defendant continued to submit timecards to IHSS, claiming payment for in-home care. Defendant submitted a total of 10 timecards requesting payment for services for a total of 566 hours, which included hours from October 2002 through February 2003. Defendant signed each timecard. Defendant cashed all of the checks he received after Martin’s death except for one. The total loss to IHSS was $5,377.
In the summer of 2005, defendant telephoned the IHSS payroll department to ask it to reissue a check that was too old to be cashed. The original check was dated November 20, 2002, and covered work defendant claimed to have done between November 1 and 15. Kimberly Linam, who worked in the IHSS payroll department, received defendant’s call. She discovered that Martin had died prior to November 2002. In a letter to defendant, Linam told him that IHSS would not reissue the check and requested that he repay the amount overpaid.
In December 2005, Paul Skinner, an investigator from the district attorney’s office, interviewed defendant with another investigator in defendant’s home. Defendant was friendly and answered all the questions. Defendant stated that he was providing care for his mother before she died and that he continued receiving money from the county after she died. Defendant said that he spoke to a social worker to let him know that Martin had died and the social worker, according to defendant, told him to “go ahead and send” the timecards in to IHSS. When asked whether he believed he was supposed to keep submitting the timecards after Martin’s death, defendant answered: “Well I talked to that worker guy . . . I can’t remember his name it’s been so long but . . . he said that he won’t (inaudible) it or (inaudible) or something and I didn’t know what he was talking about so I was still half in the fog anyway so uh as soon as [the timecards] came I opened them up and sent them in.”
At trial, defendant testified that he had to close down his business to take care of his mother. He said that he told York that his mother needed 24-hour care and that the allotment of four to five hours a day was not fair or even close to the hours he was spending. York told him that he had allotted to him the maximum he could give him and that he could not grant defendant the maximum allotment. Defendant reported that York told him to “hang in there,” and “we’ll take care of it.”
When defendant’s mother went into the hospital, defendant stated that he advised York about the hospitalization and asked him what he should do about his timecards. Defendant claimed that York told him to “just continue doing like you’ve been doing.” Defendant interpreted this response to mean that it was okay to continue submitting timecards, since that had “been the practice that we’ve done since day one.”
When his mother died, defendant called the social worker. He stated that the social worker told him to “finish up and complete the way you have been.” He maintained that the social worker told him that “the payments would end when no more timecards were attached to the checks.” Defendant continued to get timecards; he kept submitting them until “they quit coming.” Defendant believed that he had an agreement with York that the timecards were for his care for his mother while she was alive.
When informed that he had been overpaid and told to repay approximately $5,000, defendant testified that he believed it was a joke. He did not pay the sum because he did not feel that he had done anything wrong.
On cross-examination, defendant agreed that he lied in the respect that he claimed on the timecards to have worked time that he had not worked. He stated that he did not believe it was a lie when he did it because he did not think of what he was doing as lying or telling the truth. He claimed that he was following the same practice he had used when his mother was in the hospital. He denied understanding that the payment was to stop when his mother died; he believed payment would cease when the timecards stopped coming. He declared that he was just following what York had told him. He believed that he was “catching up” for when he had been paid insufficiently. Defendant asserted that he did not know that submitting the timecards was an illegal act; he also claimed not to know that it was fraud.
York denied telling defendant that he could submit timecards after his mother’s death or while his mother was in the hospital. York testified that such statements would have been illegal. York also denied telling defendant that he could collect benefits after his mother’s death.
Jury Instructions
The trial court instructed the jury that theft is a specific intent crime (CALCRIM No. 251). It also gave instructions related to the degrees of theft (CALCRIM No. 1801), theft as part of an overall plan (CALCRIM No. 1802), theft by false pretense (CALCRIM No. 1804), and attempted grand theft (CALCRIM No. 460). The court gave the other perpetrator instruction (CALCRIM No. 373). The court also instructed on the claim-of-right defense (CALCRIM No. 1863).
Defense requested an instruction on the mistake of fact defense (CALCRIM No. 3406). The court denied the request.
Jury Requests
During jury deliberations, the jury requested additional information. The jury asked, “What does the law say regarding ‘criminal mistake’ as it applies to the charges of the case?” The court told the jury to be more specific. The jury then asked: “What does the law say about the unwillingness to repay an overpayment once that overpayment has been identified to the provider and how it contributes to this case, specifically to intent[?]” The court answered: “The issue of unwillingness to repay an overpayment is not relevant to this case.”
The jury then submitted a third request: “The term ‘criminal mistake’ was used in the trial. Is there a legal definition for it?” The court responded that the jury should “please be more specific.”
The jury then requested the following: “The term ‘criminal mistake’ was used and disputed in the trial. Is there a legal definition for this term? If a person makes a mistake that breaks the law, and does not make up for it—does not pay restitution, does not pay back the overpayment—Is there a criminal mistake that is punishable in a criminal case?” The court answered: “There is no term ‘criminal mistake.’ Please review the instructions for the law that applies to this case.”
Finally, the jury made its last request: “What is the interpretation of law on the following: If the defendant believed that the act was illegal, but was instructed to continue the illegal action by a social worker and/or through prior events (continued payment during hospitalization), is it still an unlawful act?” The court advised: “Please review the instructions for the law that applies to this case, including [Nos.] 1863, 1804 and 373.”
Verdict and Sentence
The case went to the jury during the afternoon of February 26, 2007. The following day, at 10:00 a.m., the jury convicted defendant of the grand theft charge. The trial court granted defendant probation and imposed various terms and conditions.
Defendant filed a timely notice of appeal.
DISCUSSION
I. The Instructions Given and the Finding of Specific Intent
Defendant contends that the trial court’s instructions deprived him of due process and the right to present a defense. He claims that even though the court instructed on specific intent, theft by false pretenses, and the claim-of-right defense, these instructions were inadequate and misleading as applied to the facts of this case. He maintains that the instructions did not tell the jury that it was his intent when he submitted the timecards that was critical for a finding of guilt of grand theft by false pretenses. He asserts that the problem was exacerbated by the court’s failure to respond adequately to the jury’s questions, which he claims showed that the jury was confused about when specific intent was to be assessed.
A. Standard of Review
When the claim of instructional error involves the determination of applicable legal principles, we use the de novo standard. (See, e.g., People v. Guiuan (1998) 18 Cal.4th 558, 569.) “In considering a claim of instructional error we must first ascertain what the relevant law provides, and then determine what meaning the instruction given conveys. The test is whether there is a reasonable likelihood that the jury understood the instruction in a manner that violated the defendant’s rights.” (People v. Andrade (2000) 85 Cal.App.4th 579, 585.) “A court is required to instruct the jury on the points of law applicable to the case, and no particular form is required as long as the instructions are complete and correctly state the law.” (Ibid.)
“In reviewing any claim of instructional error, we must consider the jury instructions as a whole, and not judge a single jury instruction in artificial isolation out of the context of the charge and the entire trial record. [Citations.] When a claim is made that instructions are deficient, we must determine whether their meaning was objectionable as communicated to the jury. If the meaning of instructions as communicated to the jury was unobjectionable, the instructions cannot be deemed erroneous. [Citations.] The meaning of instructions is no longer determined under a strict test of whether a ‘reasonable juror’ could have understood the charge as the defendant asserts, but rather under the more tolerant test of whether there is a ‘reasonable likelihood’ that the jury misconstrued or misapplied the law in light of the instructions given, the entire record of trial, and the arguments of counsel.” (People v. Dieguez (2001) 89 Cal.App.4th 266, 276, italics omitted; see also People v. Andrade, supra, 85 Cal.App.4th at p. 585.)
Under section 1138, “After the jurors have retired for deliberation, . . . if they desire to be informed on any point of law arising in the case, . . . the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called.” “Section 1138 imposes upon the court a duty to provide the jury with information the jury desires on points of law.” (People v. Smithey (1999) 20 Cal.4th 936, 985, fn. omitted.) While “[t]his does not mean the court must always elaborate on the standard instructions[ ]” (People v. Beardslee (1991) 53 Cal.3d 68, 97), “a court must do more than figuratively throw up its hands and tell the jury it cannot help. It must at least consider how it can best aid the jury. It should decide as to each jury question whether further explanation is desirable, or whether it should merely reiterate the instructions already given.” (Ibid.) “An appellate court applies the abuse of discretion standard of review to any decision by a trial court to instruct, or not to instruct, in its exercise of its supervision over a deliberating jury.” (People v. Waidla (2000) 22 Cal.4th 690, 745-746.)
B. The Elements of the Crime and the Instructions Given
The elements of grand theft by means of false pretense are as follows: (1) the defendant made a false pretense or representation, (2) the representation was made with intent to defraud the owner of the property, and (3) the owner in fact parted with his property valued in excess of $400 in reliance on the representation. (People v. Britz (1971) 17 Cal.App.3d 743, 751.) In the present case, defendant attacks the instructions given regarding the second element; he claims that the instructions provided did not adequately tell the jury that he needed to have the specific intent to defraud at the time he submitted the timecards.
Here, the trial court instructed the jury on specific intent when it gave CALCRIM No. 251. The court advised: “Every crime or other allegation charged in this case requires proof of the union, or joint operation, of act and wrongful intent. [¶] In order to be guilty of the crimes charged a person must not only intentionally commit the prohibited act or intentionally fail to do the required act, but must do so with a specific intent. The act and the intent required are explained in the instruction for every crime or allegation.”
Additionally, the court gave CALCRIM No. 1804, the instruction on theft by false pretense: “The defendant is charged with grand theft by false pretense. To prove that the defendant is guilty of this crime, the People must prove that: ¶ One, the defendant knowingly and intentionally deceived a property owner or the owner’s agent by false or fraudulent representation or pretense; ¶ Two, the defendant did so intending to persuade the owner or the owner’s agent to let the defendant or another person take possession and ownership of the property; ¶ Three, the owner or the owner’s agent let the defendant, or another person take possession and ownership of the property because the owner or the owner’s agent relied on the representation or pretense; ¶ And four, when the defendant acted, he intended to deprive the owner of the property permanently or to remove it from the owner, from the owner or owner’s agent’s possession, for so an extended a period of time that the owner would be deprived of a major portion of the value or enjoyment of the property. . . . ¶ . . . ¶
“A false pretense is any act, word, symbol, or token, the purpose of which is to deceive. [¶] Someone makes a false pretense if, intending to deceive, he or she does one or more of the following: [¶] One, gives information he or she knows is false . . . . [¶] . . . [¶] Proof that the representation or pretense was false is not enough by itself to prove that the defendant intended to deceive. . . .”
The court also provided CALCRIM No. 1863, the claim of right defense. The court said the following: “If the defendant obtained property under a claim of right, he did not have the intent required for the crime of theft. [¶] The defendant obtained property under a claim of right if he believed in good faith that he had a right to a specific amount of money, and he openly took it. [¶] In deciding whether the defendant believed that he had a right to the money and whether he held that belief in good faith, consider all the facts known to him at the time he obtained the property along with all the other evidence in the case. [¶] The defendant may hold a belief in good faith even if the belief is mistaken or unreasonable. But if the defendant was aware of facts that made that belief completely unreasonable, you may conclude that the belief was not held in good faith. [¶] The claim-of-right defense does not apply if the defendant attempted to conceal the taking at the time it occurred or after the taking was discovered. [¶] The claim-of-right defense does not apply to offset or pay claims against the property owner of an undetermined or disputed amount. [¶] The claim-of-right defense does not apply if the claim arose from an activity commonly known to be illegal or known by the defendant to be illegal.”
C. Instruction Requested and Not Given and the Attorneys’ Closing Arguments
Defendant requested CALCRIM No. 3406, an instruction on mistake of fact. Specifically, defendant requested the following instruction: “The defendant is not guilty of the crimes charged if he did not have the intent or mental state required to commit the crime because he did not know a fact or mistakenly believed a fact. [¶] If the defendant’s conduct would have been lawful under the facts as he believed them to be, he did not commit the crimes charged. [¶] If you find that the defendant believed that he was authorized to continue receiving payments from IHSS after his mother’s death[,] he did not have the specific intent or mental state required for the crimes charged. [¶] If you have a reasonable doubt about whether the defendant had the specific intent or mental state required for the crimes charged you must find him not guilty of those crimes.”
The trial court refused to instruct on the mistake of fact defense and explained: “I have decided not to give that instruction given the paragraph in the instruction—second paragraph that states: ‘If the defendant’s conduct would have been lawful under the facts as he believed them to be, he did not commit the crimes charged.’ [¶] As I understand the defense, he either believed that there was some sort of side agreement with Mr. York to allow him to continue submitting timecards after his mother’s death so that he could make up for the shortages that had been caused by bureaucratic rules in the past. [¶] There was a specific agreement to do that or it was his understanding that he had approval to do that based on his . . . conversation with [either] Mr. York or whoever it is that he talked to on the phone after his mother’s death. [¶] And under either of those circumstances, his conduct would not have been lawful under the facts that he believed them to be, so that’s why I’m not giving that instruction.”
Defense counsel responded: “Well, just that if it’s a good faith belief that he had permission, then it would have been lawful conduct. But you have accurately summarized our position in terms of what his defense is.”
In closing argument, defense counsel conceded that the timesheets were not accurate in the respect that defendant indicated that he did work after he knew his mother had died, but defense counsel argued the following: “Just because [defendant] submitted a timecard that says—said, ‘I did this work at this time,’ doesn’t mean that he had the intent. [¶] Why? Why is that? [¶] Well, it wasn’t true his mother had passed away in October of 2002, so it’s not true that he did the work in November or December, right? [¶] That’s because we don’t criminalize mistakes. That if Mr. Martin is correct, if he’s being truthful and he told you, ‘Look, this is what I thought based on my past actions with Mr. York. Based on the phone call that I made to IHSS, I thought that they were going to stop sending me the checks when we had sort of caught up to how much time I had worked.’ If he believed that, then he’s not guilty.”
In response, the prosecutor argued that a mistake was not sufficient to exempt defendant from guilt and that he had made a criminal mistake. The prosecutor argued: “Defendant doesn’t get off just because someone else told him, ‘Hey, it’s okay.’ ” The prosecutor told the jury that just because defendant believed he was owed a specific amount of money did not mean that he had a claim of right. The prosecutor urged the jury to look at the instruction on the claim of right defense and stated that it “does not apply to offset or pay claims against the property owner of an undetermined or disputed amount.” The prosecutor continued: “[Y]ou got to hold him to some accountability because he knew about the procedures, he knew what he was supposed to do.” The prosecutor concluded: “This case is simple. Defendant’s submitting these timecards. He knew he wasn’t entitled to that money. Just like any person who submits timecards, you know you’re only supposed to get paid for those hours that you worked.”
D. Intent at the Time Defendant Submitted his Timecards
Defendant contends the instructions given were inadequate to ensure that the jury would not convict him if the jurors determined that defendant believed in good faith that he had permission from the social worker to submit the timecards and obtain payments from IHSS at the time he submitted the cards. Defendant asserts that such a finding of good faith at the time he submitted the timecards was supported by his testimony that he believed he was just “catching up” and his statements that the social worker told him to continue submitting the timecards so he could be paid for the earlier hours he had spent caring for his mother. Additionally, the jury heard his statements to the district attorney that he used to work for the county and he knew that this was “goofy stuff . . . .”
Defendant maintains that the problem with the instructions became amplified when the jury asked the court for guidance regarding the element of intent. He contends that the lower court’s response to this inquiry was inadequate. Specifically, the jury asked what the law said about intent with regard to the “unwillingness to repay an overpayment once that overpayment has been identified . . . .” The court responded that the unwillingness to repay an overpayment was not relevant.
Defendant concedes that the lower court’s response was accurate, but complains that the jury was not told that his unwillingness to repay was irrelevant because it was the intent when defendant submitted the timecards that was relevant. The court, however, did not need to make that comment since, as we discuss more completely below, the instructions made that clear.
Subsequently, the jury asked about criminal mistake as it relates to a person making a mistake and then refusing to refund the overpayment. Defendant claims that the jury’s use of the term “mistake” presupposes a finding of no intent to break the law at the time he submitted the timecards. He further claims that the lower court’s response to review the instructions already given and its comments that there was no term “criminal mistake” were insufficient.
The jury requested the following information: “The term ‘criminal mistake’ was used and disputed in the trial. Is there a legal definition for this term? If a person makes a mistake that breaks the law, and does not make up for it—does not pay restitution, does not pay back the overpayment—Is there a criminal mistake that is punishable in a criminal case?”
Finally, defendant complains that the jurors exhibited their confusion when asking their last question about the law in a situation where a person believes his or her act is illegal but the social worker instructs the person to continue this action. Defendant, however, ignores that this question by the jury actually contradicts his assertion that the jury must have believed defendant’s submission of the timecards was a mistake. Here, the jury seems to indicate that it believed defendant was aware that the submission of the timecards was illegal because it started the question with the premise: “If the defendant believed that the act was illegal . . . . .”
The jury asked the following: “What is the interpretation of law on the following: If the defendant believed that the act was illegal, but was instructed to continue the illegal action by a social worker and/or through prior events (continued payment during hospitalization), is it still an unlawful act?”
Defendant argues that the trial court never clarified for the jury when intent should be assessed. He claims that the jury’s repeated questions about the relationship between defendant’s unwillingness to make restitution and intent made it clear that the jury did not understand that intent was to be assessed at the time defendant submitted the timecards. He asserts that the court’s failure to respond adequately to the jury’s requests made it more than reasonably likely that the jury did not find that defendant possessed the required specific intent at the time of the taking, but relied on later events to reach a verdict on that element. We disagree.
First, the trial court made it very clear to the jury that intent was not to be assessed at the time defendant refused to repay the overpayment. When asked about defendant’s unwillingness to repay an overpayment and its relationship to intent, the court clearly responded: “The issue of unwillingness to repay an overpayment is not relevant to this case.” When the jury again asked about “criminal mistake” and defendant’s failure to repay the overpayment, the court answered, “There is no term ‘criminal mistake.’ ”
The jury’s questions indicated that the jury was concerned with defendant’s refusal to pay the money back and the jury was confused about the significance of defendant’s keeping the overpayment. However, these questions do not establish, as defendant argues, that the jury did not know it had to find that defendant had to have the requisite intent at the time he submitted the timecards. Rather, the later questions by the jurors suggested that they were concerned about whether defendant’s actions could be explained or excused if the social worker had encouraged defendant to continue submitting the timecards after his mother’s hospitalization and death.
The judge responded appropriately to the jury’s concerns about defendant’s failure to repay the overpayment and about the social worker’s possible role in encouraging him to submit the timecards. Moreover, the instructions given required the jurors to assess defendant’s intent at the time he submitted the timecards. The instructions told the jury that other people could be involved in the commission of the crimes, but it was the jury’s duty to determine whether defendant had committed the crime charged. Further, the instructions specified that guilt required the defendant to “knowingly and intentionally deceive a property owner” by false or fraudulent representation or pretense. If the jury believed defendant’s intent to defraud arose when he refused to make the repayment and he had no intent to defraud when submitting the timecards, the jury could not have found that defendant took the money by false or fraudulent representation or pretense. Further, the false pretense instruction required the jury to find defendant had “the purpose” to deceive and gave “information he knows is false.” If the jury believed defendant’s only culpable act was refusing to pay back the overpayment, it could not have found that defendant acted with the purpose to deceive; nor could it have found that he gave information he knew was false. Defendant openly refused to pay back the overpayment.
Consequently, we conclude that the judge did not abuse his discretion when responding to the jurors’ questions and properly addressed their concerns by informing them to ignore criminal mistake and the issue of overpayment and then directing them to the correct instructions. Further, under the instructions given, there was no reasonable likelihood that the jury convicted defendant without finding the requisite contemporaneous criminal intent. Accordingly, we reject defendant’s claim of instructional error.
II. The Delay in Filing the Charges
On February 15, 2007, defendant filed a motion in the lower court to dismiss the charge against him and asserted that the delay between the alleged offense, which occurred between October 2002 and February 2003, and the filing of the charge against him in June 2006 violated his due process rights. As a result of the delay, defendant asserted that he could no longer remember to whom he spoke regarding his mother’s death and that his records had been destroyed. Following a hearing on the motion, the court denied defendant’s motion. On appeal, defendant challenges the lower court’s refusal to grant his motion to dismiss based on the alleged violation of his due process rights.
A. Standard of Review
The California Supreme Court holds that “a delay between the time a crime is committed and the defendant is charged is to be tested not by the rules applicable to speedy trials, but by whether the defendant has been denied due process of law.” (Scherling v. Superior Court (1978) 22 Cal.3d 493, 505 (Scherling).) The ultimate question in determining a due process claim is whether the delay will deprive the defendant of a fair trial. (Ibid.)
A defendant seeking to dismiss a charge on the ground of delay prior to the filing of charges must demonstrate prejudice arising from the delay. Prejudice is not presumed. (People v. Morris (1988) 46 Cal.3d 1, 37, disapproved on another point in In re Sassounian (1995) 9 Cal.4th 535, 543, fn. 5, 545, fn. 6; Scherling, supra, 22 Cal.3d at p. 504, fn. 8.) The prosecution may offer justification for the delay, and the court considering a motion to dismiss balances the harm to the defendant against the justification for the delay. (People v. Catlin (2001) 26 Cal.4th 81, 107 (Catlin).) Prejudice is a factual issue and we review it under the substantial evidence standard of review. (People v. Hill (1984) 37 Cal.3d 491, 499.)
B. The Hearing on the Motion to Dismiss
At the hearing on defendant’s motion to dismiss, defendant stated that he called IHSS immediately after his mother’s death and spoke to someone who he incorrectly believed was York. He testified that in early 2005 the basement of his home was flooded and all of the records that he had regarding his mother’s IHSS benefits were destroyed. In his declaration in support of his motion to dismiss, he averred: “Within those records, the names dates and contact information relevant to my defense were destroyed and are now lost.” When questioned further at the hearing, defendant stated that the records were “little notes made on different things, envelopes or whatever.”
Social worker Prasuethsut testified. Prasuethsut stated that he sent IHSS a notice on March 18, 2003, advising it that the case was being closed because of Martin’s death. Linam testified that the payroll department became aware of Martin’s death on March 26, 2003. At that time, a clerk should have typed the information regarding Martin’s death into a computer system, which would have generated a notice of action. The information, however, had not been entered into the computer system. Linam’s department consisted of six clerks, who processed 6,000 or 7,000 cases a month and maintained a total of 12,000 provider files. Linam testified that IHSS did not become aware of the overpayments until she received defendant’s call in June 2005 to have a check reissued.
After hearing the evidence, the court found that IHSS’s procedure was “somewhat informal” and “possibly negligent.” The court determined that the delay was “inadvertent or overworked county workers missing this issue of the death followed by somebody looking to see whether or not payments were done and then reporting it to the superior, which is the person that needs to take some action with this . . . .” Given the inadequate systems in place, the court ruled that “there was some justification for the delay [or] at least [the court understood] why the delay took place.”
The court stated that the record showed “a little prejudice.” The court elaborated: “I didn’t hear any evidence that what was destroyed would have supported any of the defenses that were here that there was any kind of notations of telephone conversations. There were notes on backs of envelopes and things. . . . [¶] But I didn’t hear anywhere that [defendant] actually wrote down his conversation with the person that told him it was okay to keep sending in the timecards after his mother died or gave him the nod and a wink that that was okay to do so.” The court concluded that it did not “see the prejudice being significant.” In response to defense counsel’s comments, the court stated: “I think the prejudice has been somewhat slight, and the delay was, if not completely justified, clearly understandable. And it wasn’t purposeful in any way.”
C. Analysis
Defendant argues that substantial evidence did not support the lower court’s finding of no prejudicial delay under the balancing test because, according to defendant, the negligence of IHSS is not a valid justification for a delay. He claims that the court also improperly dismissed his testimony regarding the destruction of vital information when his basement was flooded.
Our review of the record establishes that very little evidence supported defendant’s claim of prejudice. Defendant’s only evidence of prejudice was his testimony that he lost bits of pieces of paper that contained notes he had written. Defendant did not specify what the notes contained and therefore we agree with the lower court that he failed to show that any of his missing records were relevant. Moreover, defendant failed to establish how these missing records would have benefited him.
Defendant argues that when the trial court is to balance the prejudice by the justification it is inconsequential whether the delay was negligent or purposeful and negligent delay is never justified. He relies on Penney v. Superior Court (1972) 28 Cal.App.3d 941, 953 and dicta in Scherling, supra 22 Cal.3d at page 507, to support this argument. Defendant, however, fails to cite the Supreme Court’s consideration of this exact issue in People v. Nelson (2008) 43 Cal.4th 1242, which was filed prior to the filing of defendant’s reply brief in this court. In Nelson, the Supreme Court specifically considered the difference between negligent and purposeful delay and it concluded, contrary to defendant’s argument, the following: “[U]nder California law, negligent, as well as purposeful, delay in bringing charges may, when accompanied by a showing of prejudice, violate due process. This does not mean, however, that whether the delay was purposeful or negligent is irrelevant. In Scherling, supra, 22 Cal.3d at pages 506-507 . . . we said that because the ‘defendant was not prejudiced by the delay, we need not determine whether the delay was justified, particularly since there was no evidence that the delay in prosecution was for the purpose of weakening the defense.’ In Catlin, we found the justification for the delay outweighed the defendant’s weak showing of prejudice, but we also observed ‘that there was no evidence that the delay was undertaken in order to gain an advantage over defendant . . . .’ (Catlin, supra, 26 Cal.4th at pp. 109-110 . . . .) As these observations imply, whether the delay was negligent or purposeful is relevant to the balancing process. Purposeful delay to gain an advantage is totally unjustified, and a relatively weak showing of prejudice would suffice to tip the scales towards finding a due process violation. If the delay was merely negligent, a greater showing of prejudice would be required to establish a due process violation.” (People v. Nelson, supra, at pp. 1255-1256, italics added.)
Here, the delay was clearly not caused by any intentional conduct by the prosecutor or IHSS, and was merely negligent. As already discussed, any prejudice to defendant resulting from the delay was minimal. We therefore conclude that the record supported the lower court’s finding that the justification for the delay outweighed the minimal prejudice suffered.
DISPOSITION
The judgment is affirmed.
We concur: Kline, P.J., Haerle, J.