Opinion
G053078
01-30-2018
In re B.W., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. B.W., Defendant and Appellant.
Dawn S. Mortazavi, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Heather M. Clark, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. DL048916-003) OPINION Appeal from a judgment of the Superior Court of Orange County, Lewis W. Clapp, Judge. Affirmed. Dawn S. Mortazavi, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Heather M. Clark, Deputy Attorneys General, for Plaintiff and Respondent.
This is an appeal from a judgment finding appellant committed misdemeanor battery. His sole contention is that the juvenile court erred in denying his motion to dismiss based on precharging delay. We find the motion was properly denied and affirm in all respects.
FACTS AND PROCEDURAL BACKGROUND
On September 11, 2014, Brandon Ruiz, then age 17, was walking home from his gym in Huntington Beach when a young man about his age started staring at him and following him on the sidewalk. This made Brandon uncomfortable, but he kept walking. Brandon's brother Marco pulled up in his car and asked Brandon if he wanted a ride home. Relieved to see his brother, Brandon eagerly got into the car. But the young man behind him hustled up to the car and started talking to him through the open passenger window.
He asked Brandon if he recognized him, and Brandon said no. Then the young man introduced himself as "Baylee" and asked Marco if he knew who he was. When Marco shook his head, the guy said, "I'm sorry, I thought I knew you guys." Then he reached through the window and gave Marco a friendly high five. At that point, Brandon put up his hand, expecting the same, but instead the guy punched him in the face and told him, "Fuck you." After that, he took off running and fled the scene.
Huntington Beach Police Officer Trevor Jackson happened to be in the area at the time. The Ruiz brothers flagged him down and reported the incident to him. They described the assailant as a six-foot tall, 17-year-old white male, with blue eyes, long hair, ear plugs and lip piercings.
That night, the Ruiz Brothers searched on Facebook for everyone named Baylee who lived in their area. The searched turned up two people, a female and appellant. Upon seeing appellant's picture on his Facebook profile, Brandon and Marco immediately recognized him as the person who had punched Brandon.
Brandon conveyed appellant's name to Officer Jackson, and on September 14, 2014, three days after the incident, Jackson showed him a six-pack photo lineup that contained appellant's photograph. Brandon identified appellant as the person who had punched him. Jackson wrote a note in his report stating, "I know it is a minor case but the suspect is an idiot and maybe we can get a probation violation or something."
On or about the following day, the case was assigned to Huntington Beach Police Detective Gary Kim. Kim saw Jackson's note, but he did not contact appellant's probation officer. In fact, he did nothing on the case until seven months later, on April 13, 2015. That day, Kim contacted Marco and showed him a photo lineup containing appellant's picture. After examining the lineup, Marco identified appellant as the person who had punched his brother.
Marco and Brandon were shown different lineups. We mention this because the juvenile court determined Brandon's lineup was unduly suggestive and did not consider the fact he identified appellant from the lineup he was shown. However, the court found Brandon's subsequent in-court identification of appellant was sufficiently independent of the lineup so as to be admissible at trial. --------
Two days later, on April 15, 2015, Kim interviewed appellant, and he denied any involvement in the incident. Nonetheless, on August 6, 2015, roughly 11 months after the incident, the district attorney filed a wardship petition alleging one count of misdemeanor battery against appellant.
The adjudication hearing was held in January 2016. At that time, the defense filed a due process motion to dismiss based on precharging delay. In support of the motion, the defense presented testimony from appellant and his mother that they had no recollection of where they were or what they did on September 11, 2014, the day Brandon was punched. Appellant also testified he had nothing to do with the punching incident. While admitting he was on probation at the time it occurred, and that he had suffered prior adjudications for assault, appellant claimed he had never seen Brandon before the instant case arose.
Based on this testimony, the court determined appellant had proven he was prejudiced from the precharging delay. Although the court described the prejudice as "very, very minimal," it surmised the delay could have impacted appellant's ability to present an alibi defense. Therefore, it put the onus on the prosecution to show justification for the delay.
The prosecution called two witnesses on that issue. First, Detective Kim testified that although he has a very heavy caseload and typically works only on cases involving serious offenses such as rape and murder, appellant's case was assigned to him because he was familiar with appellant from his prior cases. Kim said he prioritizes his cases based on their gravity and risk to public safety, and that being a misdemeanor, appellant's case did not rank high on his list of things to do. The prosecution also called appellant's probation officer, who testified appellant has struggled with drug use in the past and enrolled in a drug treatment program in November 2014. This evidence was admitted to prove appellant's failure to remember the incident in question was attributable to his own drug use, as opposed to the precharging delay.
The trial court was not convinced appellant's drug use had any effect on his ability to remember where he was on the day of the charged offense. However, after reviewing the cases on precharging delay, the trial court reversed its earlier ruling and determined appellant's general allegation of memory loss was insufficient to establish prejudice. The court also determined that if prejudice did occur, the prosecution provided sufficient justification for the precharging delay. Finding no evidence the delay was purposeful or the result of bad faith, the court denied appellant's motion to dismiss.
After that, the Ruiz Brothers testified and identified appellant as the person who punched Brandon on September 11, 2014. Considering all the evidence in the case, the court determined the battery allegation against appellant was true. It placed appellant on probation and ordered him to undergo counseling for drug abuse and anger management.
DISCUSSION
Appellant contends the trial court abused its discretion in denying his motion to dismiss on due process grounds. We disagree.
While the statute of limitations and the speedy trial right are the primary safeguards against pretrial delay, "the due process clause of the Fifth Amendment also has a 'role to play in protecting against oppressive delay.' [Citation.] It safeguards individuals from excessive delay between the commission of a crime and the initiation of criminal proceedings. [Citation.]" (People v. Booth (2016) 3 Cal.App.5th 1284, 1302 (Booth).) However, "[p]rejudice . . . from precharging delay is not presumed. [Citations.]" (People v. Abel (2012) 53 Cal.4th 891, 908-909.) Rather, the defendant must affirmatively demonstrate he has suffered actual prejudice as a result of the delay. (Id. at p. 909; People v. Alexander (2010) 49 Cal.4th 846, 875.) "If the defendant establishes prejudice, the prosecution may offer justification for the delay; the court considering a motion to dismiss then balances the harm to the defendant against the justification for the delay. [Citation.] But if the defendant fails to meet his or her burden of showing prejudice, there is no need to determine whether the delay was justified. [Citations.]" (People v. Abel, supra, 53 Cal.4th at p. 909.)
Appellant argues he showed credible prejudice from the precharging delay that occurred in this case. Although the delay was less than a year, appellant contends it caused more than just generalized detriment because he "lost the opportunity to recall his whereabouts on the date in question." Appellant asserts, "Without the ability to recall his whereabouts, he was unable to defend himself to both the police during the investigation or to the court during the trial. Such an inability to verbalize an alibi defense has been found to be prejudicial to a defendant when raising a motion to dismiss."
The only case appellant cites in support of his position is People v. Vanderburg (1973) 32 Cal.App.3d 526 (Vanderburg). There, the court found the defendant made a sufficient showing of prejudice from the preindictment delay that occurred in that case so as to require the prosecution to justify the delay. However, the purported prejudice consisted not only of the defendant's lack of memory concerning the alleged offense, which arose from an undercover narcotics operation, but the arresting officer's inability to recall the circumstances of the offense, which raised the specter of misidentification. (Id. at p. 529.) Thus, the showing of prejudice was based on more than just a general allegation of memory loss by the defendant.
Moreover, to the extent Vanderburg can be read to suggest such an allegation is sufficient to establish prejudice for purposes of proving a due process violation, it is out of step with more recent decisions from the California Supreme Court. (See, e.g., People v. Cordova (2015) 62 Cal.4th 104, 120; People v. Abel, supra, 53 Cal.4th at p. 909; People v. Alexander, supra, 49 Cal.4th at p. 875; People v. Nelson (2008) 43 Cal.4th 1242, 1250-1251.) These cases make clear that a showing of actual prejudice, not just the possibility of prejudice, is required before the prosecution is required to proffer a justification for the delay in question. (Ibid.) As an intermediate appellate court, we are not at liberty to ignore this precedent. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 ["Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction. It is not their function to attempt to overrule decisions of a higher court."].)
Even assuming appellant established actual prejudice from the precharging delay that occurred, the law is clear that "the executive branch has broad discretion when it comes to deciding how to allocate scarce investigative resources and when to file criminal charges in a particular case. [Citations.]" (Booth, supra, 3 Cal.App.5th at p. 1309.) Indeed, absent evidence the police or prosecutors were negligent or intentionally dilatory in terms of handling an investigation, courts are loath to second-guess when charges should have been brought in a particular case. (Ibid.)
Here, there was no evidence of investigative negligence or intentional misconduct. Rather, the record shows Detective Kim had a very heavy caseload when this case arose and simply decided to prioritize his more serious cases over appellant's misdemeanor offense. This was a reasonable decision in light of the limited resources available to the detective. As such, there was a strong justification for the precharging delay that occurred. (Booth, supra, 3 Cal.App.5th at p. 1309.) Weighing that justification against the weak-to-nonexistent showing of prejudice appellant put forth, the trial court properly denied his motion to dismiss. No abuse of discretion or cause for reversal has been shown.
DISPOSITION
The judgment is affirmed.
BEDSWORTH, J. WE CONCUR: O'LEARY, P. J. FYBEL, J.