Opinion
G032562.
7-18-2003
ANDREW GUTIERREZ, Petitioner, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; THE PEOPLE OF THE STATE OF CALIFORNIA, Real Party in Interest.
Dolan Law Offices, John Patrick Dolan, for Petitioner. No appearance, for Respondent. Tony Rackauckas, District Attorney, and Brian N. Gurwitz, Deputy District Attorney, for Real Party in Interest.
Petitioner, Andrew Gutierrez, filed a motion to dismiss on the basis that his federal and state constitutional rights to a speedy trial were violated. The magistrate denied the motion and Gutierrez filed a new motion on the same grounds in superior court. Respondent court refused to consider the motion on the basis that it had already been denied by the magistrate at the preliminary hearing and was therefore moot. Gutierrez contends it was error for respondent court to refuse to consider the motion. Petition granted.
On July 14, 2002, Gutierrez was arrested and eventually charged with forcible rape (Pen. Code, § 261(a)(2)), kidnap to commit rape (Pen. Code, § 209(b)(1)), kidnapping (Pen. Code, § 207(a)), anal or genital penetration by foreign object (Pen. Code, § 289(a)(1)), assault with a deadly weapon (Pen. Code, § 245(a)(2)), and battery against a noncohabitant as a misdemeanor (Pen. Code, § 243(e)) in addition to several enhancements. After the case was dismissed and refiled, Gutierrez filed a motion to dismiss for violation of his federal and state constitutional rights to a speedy trial. The motion was considered at the same time as the preliminary hearing. At the conclusion of the preliminary hearing, Gutierrez was held to answer and the motion denied. In the superior court, Gutierrez filed another motion to dismiss on the same grounds and alleged the delay in the prosecution of his case was not only presumptively prejudicial, but he had actually been prejudiced by the delay. Specifically, Gutierrez stated "the memories of the witnesses [] continued to fade, and the physical layout of the alleged crime scene [] changed."
At the motion in superior court, real party objected to the court considering the motion on the basis that the motion had already been considered by the magistrate at the preliminary hearing, and since no change in circumstances was alleged, the motion should not be reconsidered. The court agreed and sustained real partys objection and refused to reconsider the motion. The court stated, "the matter appears to be moot. Another court has already ruled on the motion."
Gutierrez contends the trial court erred when it refused to consider his motion to dismiss and he filed this petition seeking a peremptory writ of prohibition/mandate and a request for immediate stay of the trial. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 203 Cal. Rptr. 626, 681 P.2d 893.) This court requested and received an informal response from real party which concedes the petition should be granted based on People v. McCoy (1983) 147 Cal. App. 3d 638, 195 Cal. Rptr. 285. However, real party asks this court not to "imply" that respondent court conduct the evidentiary hearing or rule on the motion prior to trial.
Since Gutierrez contends both his federal and state constitutional rights were violated, we agree that it is within the trial courts discretion as to when it should consider and rule on the merits of the motion. As the court noted in People v. Martinez (2000) 22 Cal.4th 750, 996 P.2d 32, "under the federal Constitution, the defendant need not identify any specific prejudice from an unreasonable delay in bringing the defendant to trial after the speedy trial right has attached." (Id. at pp. 765-766.) However, "for speedy trial claims under the state Constitution not based on statute, . . . a demonstration of prejudice is required whether the trial court determines the issue before or after trial or verdict . . ." (Id. at p. 769.)
"When a speedy trial claim requires a demonstration of prejudice, the trial court has discretion to defer hearing the motion until after the trial: `It is proper for the trial court to wait to appraise the reasonableness of the delay in light of what would be disclosed at and after the trial, which places [the court] in an excellent position to rule on a renewed motion. [Citation.]" (People v. Martinez, supra, 22 Cal.4th at p. 769.) "`A trial court may conclude that the motion to dismiss is best considered after trial, at which time it has the opportunity to determine whether material witnesses were missing or had poor memories or there was other prejudice caused by postcomplaint delay in the context of the case as a whole." (Id. at p. 769-770.)
Let a peremptory writ of mandate issue commanding the superior court to vacate its ruling refusing to consider petitioners motion and to conduct a hearing to determine whether petitioners constitutional rights to a speedy trial were violated. Based on People v. Martinez (2000) 22 Cal.4th 750, 996 P.2d 32, it is within the courts discretion to determine when the hearing will be held and the motion considered. In the interest of justice, the opinion in this matter is deemed final as to this court forthwith.