Opinion
F050773
5-23-2007
In re LUIS G., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. LUIS G., Defendant and Appellant.
Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Jennifer M. Poe, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
This is an appeal from a final order in a case arising under section 602 of the Welfare and Institutions Code. (All further section references are to this code, except as noted.) Appellant Luis G. contends he was denied his due process right to a speedy trial because of unreasonable delay between the filing of the juvenile petition and appellants arrest. We will conclude appellant has not established that he was prejudiced by the delay and we will affirm the judgment.
Facts and Procedural History
Appellants niece, B.G., accused appellant and his brother of molesting her over a period of from September of 2000 through about March of 2002, during which time period appellant and his brother lived in the home of B.G.s mother, where B.G. resided as well. During this time, B.G. was 11 to 13 years old and appellant turned 17 and then 18.
B.G. reported the touchings to her mother in late 2002 after B.G. had discussed the matter with a speaker at a religious retreat. A detective with the Stanislaus County Sheriffs Department was assigned to the case. He submitted a report to the district attorney in October of 2002 and a petition was filed against appellant on February 7, 2003.
When appellant moved out of B.G.s mothers home in March of 2002, he moved to Oakland. Pursuant to a telephone call to his Oakland home from the detective, appellant returned to Stanislaus County in October for an interview. After the petition was filed and an arrest warrant issued, however, the detective did not contact appellant and little or no effort was made to serve the warrant.
Prior to mid-2005, according to the testimony in this case, juvenile arrest warrants were not entered into the statewide CLETS (California Law Enforcement Telecommunications System (see People v. Martinez (2000) 22 Cal.4th 106, 113)). Accordingly, appellant was not detained on the warrant when he was stopped by the Oakland police on two occasions for traffic offenses. After juvenile warrants were included in CLETS, appellant was arrested on March 2, 2006, when he went in to renew his immigration papers.
Prior to the jurisdictional hearing, appellant moved to dismiss the petition, claiming the prearrest delay had denied him a speedy trial. After initial hearings on the issue, the court deferred ruling on the motion until after the hearing on the merits of the petition. After the courts determination that the petition was true, the court returned to the speedy trial issue. The court denied the speedy trial motion on the basis that appellant had not been prejudiced by the delay. Neither the complaining witness nor any other witness displayed any significant lapse of memory. The court rejected appellants claim that an alibi witness had been lost because of the passage of time, since appellant had made no effort to locate the witness.
The court attempted to transfer the matter to appellants county of residence for the disposition hearing. That county rejected the transfer. In further proceedings before the trial court, the court credited appellant for 88 days of custody, ordered him to give a DNA specimen (see Pen. Code, § 296, subd. (a)(1)), and terminated juvenile court jurisdiction pursuant to section 607 based on appellants age.
Appellant filed a timely notice of appeal.
Discussion
The express guarantees of the right to a speedy trial contained in the Sixth Amendment of the United States Constitution and article I, section 15 of the California Constitution do not, by their own terms, apply to juvenile proceedings. The provisions apply to "criminal prosecutions" and "a criminal cause," respectively.
Nevertheless, a juvenile who is the subject of a section 602 petition has a due process right to proceedings that are not unreasonably delayed. "In general, the question whether the right to a speedy trial has been violated, absent applicable statutory remedies, is decided by balancing the policy factors involved. These include, on the one hand, the loss to the People if they cannot bring the charges, which is generally a function of the seriousness of the charge; and on the other hand, the length of the delay, the reasons for it, the defendants assertion of his right, and the specific prejudice to the defendant." (Richard N. v. Superior Court (1981) 116 Cal.App.3d 579, 584-585.)
The petition alleged conduct that would violate Penal Code section 288.5 if committed by an adult. This felony is punishable by imprisonment for 6, 12, or 16 years. Continuous sexual abuse of a child is obviously a serious offense for purposes of evaluating the "loss to the People" that would occur upon dismissal of the petition. The delay between filing the petition and appellants arrest was long, particularly in the juvenile court context. While the underlying reason the arrest warrant was not processed in the normal manner — namely, that the minor had moved to a different county and the warrant was not included in CLETS at that time — was beyond the control of the relevant authorities in Stanislaus County, the seriousness of the charged offense undermines the claim that the sheriffs office did not have adequate resources to pursue the matter more diligently.
Nevertheless, in this particular case, appellant was not prejudiced by the delay. In fact, the delay afforded him almost two years of freedom during which, if the trial had occurred shortly after the petition was filed, he would have been subject to juvenile court wardship. Because of the delay, jurisdiction was terminated at the time of the dispositional hearing.
Appellant contends he was prejudiced by the delay because he was unable to obtain the alibi testimony of his high school girlfriend, with whom he testified he spent all his time when B.G. said he was at home assaulting her. First, however, appellant made absolutely no showing that he was "unable" to locate this witness. He merely testified she had moved away, not that he had tried to find her. Second, he made no showing that the loss of this witness was a function of the delay between the petition and his arrest. For all the record shows, this witness moved away before the petition was ever filed or, alternatively, appellant lost touch with her when he moved to Oakland, which was also before the petition was filed.
Finally, he contends he was prejudiced by witnesses "fading memories." We have reviewed the reporters transcript of the jurisdictional hearing and we conclude, as did the trial court, that none of the witnesses suffered from any undue failure of memory. (See In re Robert B. (1995) 39 Cal.App.4th 1816, 1824.)
We conclude the prearrest delay did not deny appellant due process of law.
Disposition
The judgment is affirmed.
We Concur:
HARRIS, J.
LEVY, J.