Opinion
E064946
03-28-2017
THE PEOPLE, Plaintiff and Appellant, v. LAMONT COLLINS, Defendant and Respondent.
Michael A. Hestrin, District Attorney, Alan D. Tate, Deputy District Attorney, for Plaintiff and Appellant. Steven L. Harmon, Public Defender, William A. Meronek, Deputy Public Defender, for Defendant 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SWF1200204) OPINION APPEAL from the Superior Court of Riverside County. Jerome E. Brock, Judge. (Retired judge of the Santa Clara Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Reversed with directions. Michael A. Hestrin, District Attorney, Alan D. Tate, Deputy District Attorney, for Plaintiff and Appellant. Steven L. Harmon, Public Defender, William A. Meronek, Deputy Public Defender, for Defendant and Respondent.
The trial court granted defendant and respondent Lamont Collins's motion to dismiss a criminal complaint filed against him, for denying his right to a speedy trial under the California Constitution. The People appeal from the court's orders granting defendant's motion and dismissing the case. For the reasons set forth post, we reverse the trial court's orders with directions to reinstate the charges against defendant.
FACTUAL AND PROCEDURAL HISTORY
Because this case was dismissed prior to a preliminary hearing or trial, the facts are taken from defendant's motion to dismiss and the People's response to the motion.
On December 24, 2011, at approximately 1:07 a.m., Hemet Police Officer Hiatt responded to an apartment complex regarding a domestic violence call the victim made from the home of a friend. Upon arrival, Officer Hiatt made contact with the victim, who was standing in front of the location. The victim had a swollen right cheek with a laceration, and a small laceration to her lip. She alleged that defendant, her live-in boyfriend, had been drinking. He accused the victim of infidelity and then punched her during an argument. When the officer went to the couple's apartment to interview defendant, he noted defendant smelled strongly of alcohol. Defendant was unable to give a statement—he had trouble keeping his balance as he sat on the couch, was going in and out of consciousness, and had a large bump on his forehead. The officer contacted the victim again and asked her what had happened to defendant's forehead. As described in the People's response to the motion to dismiss, "The victim said that she did not know and that it was not like that when she left. She then speculated that their roommate Dre could have punched him after the defendant hit the victim or that it could have been from the intoxication." Dre was not present when the police arrived and the victim provided no further contact or identifying information on Dre. There is nothing in the record to indicate that the police followed up their investigation by interviewing Dre. Defendant was assessed by paramedics and transported to a local hospital for treatment. Defendant was not arrested that night because the officer was unsure of the extent of defendant's injury.
About six weeks later, on February 6, 2012, the People filed a felony complaint alleging defendant committed corporal injury on a cohabitant (Pen. Code, § 273.5) and alleging he had a prison term prior (§ 667.5, subd. (b)). On February 7, 2012, the court issued an arrest warrant for defendant. The People did not provide defendant with notice of the felony complaint or the arrest warrant. Shortly after the incident, defendant moved to Palmdale. Defendant then lived in Lake Los Angeles from mid-2012 until July 2015, at which point he moved back to the same address in Palmdale.
All further statutory references are to the Penal Code unless otherwise indicated. --------
Defendant was not aware of this case until September 2015, when he was arrested on the outstanding warrant. On October 6, 2015, defendant was arraigned and pled not guilty. On October 29, 2015, the court heard defendant's motion to dismiss for denial of his right to a speedy trial. The court granted the motion on the ground that "due to the nature of this case, the facts of the case, and the amount of time, the Court is going to grant the motion."
This appeal by the People followed.
DISCUSSION
A. State Right to a Speedy Trial—Three-Step Analysis
The threshold question of whether a criminal defendant's right to a speedy trial under the California Constitution has been violated is whether the defendant was prejudiced by the unreasonable delay between the filing of the complaint and the subsequent arrest. (Cal. Const., art. I, § 15; Shleffar v. Superior Court (1986) 178 Cal.App.3d 937, 945.) Unlike the federal right contained in the Sixth Amendment to the United States Constitution, which attaches when the defendant is arrested or the information is filed, the California speedy trial right is triggered when the complaint is filed, and thus covers prearrest delay. (People v. Dunn-Gonzalez (1996) 47 Cal.App.4th 899, 910.)
Under the California Constitution, "a three-step analysis is employed to determine whether the defendant's rights have been violated." (People v. Dunn-Gonzales, supra, 47 Cal.App.4th at p. 911.) First, the defendant must affirmatively demonstrate prejudice. (Ibid.) Next, if the defendant adequately demonstrates prejudice, the burden shifts to the prosecution to justify the delay. (Ibid.) Finally, if justification is offered, the court weighs the justification against the prejudice. (Ibid.)
California's speedy trial provision never presumes prejudice prior to the arraignment and requires that prejudice be affirmatively demonstrated, no matter how unreasonable the delay. (Ibarra v. Municipal Court (1984) 162 Cal.App.3d 853, 857.) Thus, in the case before us, defendant carries the initial burden to demonstrate actual prejudice, and the court will not inquire into the justification for the delay before this demonstration occurs. (Id. at p. 858.)
B. Insufficient Evidence of Prejudice to Defendant.
The People argue that defendant failed to demonstrate actual prejudice. We agree.
When a party challenges a dismissal based upon a violation of a defendant's right to a speedy trial, the court reviews the record under an abuse of discretion standard. (Serna v. Superior Court (1985) 40 Cal.3d 239, 250-251.) Whether prejudice has been shown is a factual question to be determined by the trial court and its decision will not be overturned by an appellate court if supported by substantial evidence. (People v. Hill (1984) 37 Cal.3d 491, 499.) The role of the appellate court is not to reweigh the evidence but to ascertain whether the conclusions of the trial court are supported by particular facts. (Ibid.) All reasonable inferences by the trier of fact must be indulged in favor of the ruling and "those affidavits favoring the contention of the prevailing party establish the facts stated therein and all facts which reasonably may be inferred therefrom; . . ." (People v. Canada (1960) 183 Cal.App.2d 637, 642.)
At the hearing on the motion to dismiss, defense counsel indicated that their inability to locate Dre as a witness "actually does provide actual prejudice." Defense counsel explained that the incident involved the victim and defendant. The victim gave her version of the events to the police. Defendant, however, had and continued to have no memory of what transpired on the night of the alleged incident. The evidence from the incident showed that both defendant and the victim suffered injuries. The evidence also shows a third person may or may not have been present at the time the incident occurred. Defense counsel argued: "There appears to have been, by that alleged victim's own statements, a third party witness that evening. I think having a third party witness, who could have been an objective observer, is absolutely relevant to the case. And the inability to now locate a former roommate, who they don't have the full legal name of, is without question prejudice to my client to be able to present a defense on an event that he did not remember that evening due to injury and now still cannot remember the details of. [¶] So, I believe prejudice has been demonstrated." In his declaration, defendant stated, "I am no longer in contact with 'Dre' and have no means of locating him."
The People claim that defendant's "attempted showing of prejudice was improperly conclusory and speculative [citation], and it completely lacked any description of the nature of Dre's testimony, its materiality, or any efforts to actually locate Dre [citation.] There was no competent evidence of prejudice." In support of its argument, the People cite to People v. Sahagun (1979) 89 Cal.App.3d 1, which we believe is dispositive under the facts of this case. A defendant seeking dismissal because the delayed prosecution resulted in difficulty locating a witness is required to articulate specific facts to show actual, if minimal prejudice, including: (1) the identity of the unavailable witness; (2) the nature of the testimony the witness would have offered; and (3) what efforts the defense made to locate the witness. (Id. at p. 24.) We emphasize that the second and third steps of the speedy trial analysis discussed above—the People's justification for the delay and the weighing of the delay against the prejudice to the defendant—do not come into play until and unless the defendant makes this initial showing of actual prejudice.
We now review the defense motion to dismiss, and the defendant's accompanying declaration, with these three criteria from Sahagun firmly in mind.
First, the defense identifies the unavailable possible witness only as "Dre." This person was reportedly defendant's and the victim's roommate. However, defendant does not provide any further identification, or even indicate whether "Dre" is a nickname, a first name, or a last name. Defendant does not aver that he in fact has no other identifying information about Dre or bother to explain to the court how he knows so little about this former roommate. Defendant simply does not provide the required specific information regarding the identity of the unavailable witness, or offer an excuse for not providing this information.
Second, the defense supplies no information whatsoever, much less specific information, regarding the nature of the testimony this Dre would have offered. The motion merely states "evidence from a third party observer would have been particularly helpful." The defendant fails to state what the nature of Dre's testimony would have been, that is, he does not allege whether Dre would confirm the victim's statements or contradict them. He does not allege with any certainty whether Dre was present at all. We do not take as gospel defense counsel's mischaracterization at the hearing that, "[t]here appears to have been, by that alleged victim's own statements, a third party witness that evening." To the contrary, we see from the defendant's own motion to dismiss that it is actually unknown whether Dre was present during the altercation and could provide relevant testimony, whether favorable or detrimental to defendant. The victim did not say Dre was present, but rather "suggested [defendant's injuries] may have been caused by" Dre. Similarly, the People's response to the motion describes the victim's statement as making it equally plausible that defendant injured himself while intoxicated. When asked the sourced of defendant's injury, the only thing the victim was clear about was that defendant had not been injured at the time she left the residence. The victim "speculated that their roommate Dre could have punched him after the defendant hit the victim or that it could have been from the intoxication." Dre was not present at the couple's residence when law enforcement responded to the victim's 911 call, and there is no evidence in the record that Dre was present at any time during the altercation. Defendant completely failed to describe the nature of Dre's testimony or establish that Dre had any testimony to give. This does not fulfill defendant's burden to articulate specific facts regarding the nature of the testimony the absent witness would have offered.
Third, defendant neglects to describe specifically what efforts he made to locate Dre. Defendant's entire attempt to satisfy this prong of the requirement is the statement in his declaration that, "I am no longer in contact with 'Dre' and have no means of locating him." Period. Nothing else. The defendant could not be bothered to inquire of the former landlord or any mutual acquaintances, past or present, where Dre could be found or even what his full name might be, so as to facilitate a simple internet and social media search. Defendant's complete disavowal of any knowledge or means of locating Dre does not satisfy the reasonable effort required by Sahagun. The defendant's declaration instead offers a meager excuse for not making any effort at all. This is especially troubling because the prospect of having his criminal case dismissed because defendant can't find Dre removes the incentive for defendant to look very hard.
In sum, the defendant fulfills not one of the specific requirements set forth Sahagun. Rather, defendant provides a vague, conclusory description of speculative prejudice. This is not the showing of actual prejudice, nor even the showing of minimal prejudice, required by our courts.
We believe the trial court gave insignificant attention to the showing a defendant must make to get beyond the first step of the speedy trial analysis—actual prejudice. Possibly this is because the trial court focused too early in the three-step analysis on the lack of justification for and length of the delay that are important components of steps 2 and 3. This is an incorrect application of the law, and, thus, an abuse of discretion because, "the initial burden in establishing a violation of article I, section 15 [of the California Constitution], is on the defendant seeking dismissal who must demonstrate prejudice attributable to the delay in arrest. [Citation.] Only after he has done so must the court determine if the delay was justified and engage in the balancing process." (Serna v. Superior Court (1985) 40 Cal.3d 239, 249.) Keeping in mind the mandatory sequence of the three-step analysis, we conclude that the trial court's finding that defendant established actual prejudice is both an abuse of discretion and not supported by substantial evidence in this record.
DISPOSITION
The court's orders granting defendant's motion and dismissing the case are reversed, with directions to reinstate the charges against defendant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. I concur: CODRINGTON
J.
MILLER, J.
I respectfully dissent to that part of the majority opinion reversing the trial court's grant of defendant's motion to dismiss a criminal complaint against him and reinstating the charges against defendant.
I agree with the majority that the threshold question, of whether a criminal defendant's right of speedy trial under the California Constitution has been violated, is whether the defendant was prejudiced by the unreasonable delay between the filing of the complaint and the subsequent arrest. (Cal. Const., art. I, § 15; Shleffar v. Superior Court (1986) 178 Cal.App.3d 937, 945.) Unlike the federal right contained in the Sixth Amendment, which attaches upon the filing of information or arrest, the California speedy trial right is triggered upon filing of the complaint, and thus covers prearrest delay. (People v. Dunn-Gonzalez (1996) 47 Cal.App.4th 899, 910.) A defendant must make only a prima facie showing of prejudice in order to shift the burden to the People to justify the delay, while the degree necessary to require dismissal varies from case to case and must be determined after a "delicate task of balancing competing interests." (Ibarra v. Municipal Court (1984) 162 Cal.App.3d 853, 858 (Ibarra).) "Even a minimal showing of prejudice may require dismissal if the proffered justification for delay be unsubstantial." (Ibid.)
In this case, there was a 44-month delay from the filing of the complaint, and an almost four-year delay since the alleged conduct, to the arraignment. At the hearing on the motion to dismiss, defense counsel indicated that their inability to locate Dre as a witness "actually does provide actual prejudice." Defense counsel explained that the incident involved the victim and defendant. The victim gave her version of the events to the police. Defendant, however, had and continued to have no memory of what transpired on the night of the alleged incident. The evidence from the incident showed that both defendant and the victim suffered injuries. According to the victim, however, there was a third person present at the time the incident occurred. Defense counsel explained: "There appears to have been, by that alleged victim's own statements, a third party witness that evening. I think having a third party witness, who could have been an objective observer, is absolutely relevant to the case. And the inability to now locate a former roommate, who they don't have the full legal name of, is without question prejudice to my client to be able to present a defense on an event that he did not remember that evening due to injury and now still cannot remember he details of. [¶] So, I believe prejudice has been demonstrated." Moreover, even though the victim informed the officer on the night of the incident about Dre, who was a roommate of both defendant and the victim at the time, the police never followed up by interviewing Dre. In his declaration, defendant stated, "I am no longer in contact with 'Dre' and have no means of locating him." Because of the facts of this case and because defendant did not have and still does not have any recollection of the events that transpired on the night of the alleged incident, I concur with the trial court's finding that there existed at least some prejudice to defendant by the prosecution's delay.
Prejudice must be demonstrated by detriment to the defense such as the loss of material witnesses, missing evidence, or faded memories caused by lapse of time. (People v. Archerd (1970) 3 Cal.3d 615, 640.) Determining whether prejudice exists necessitates a careful assessment of the particular facts of each case. (People v. Hayton (1979) 95 Cal.App.3d 413, 419.) Minimal prejudice may be found if it can be shown that due to the length of the delay the defendant can no longer obtain or locate evidence. (See Garcia v. Superior Court (1984) 163 Cal.App.3d 148, 151.) Defendant's declaration must be supported by particular facts and not bare conclusory statements or mere declarations that the defendant was prejudiced. (Ibarra, supra, 162 Cal.App.3d at p. 858; Crockett v. Superior Court (1975) 14 Cal.3d 433, 442.)
The majority states that defendant has failed to make a showing of actual prejudice. The victim, however, told the officer who responded to her call that their mutual roommate could have been the person who hit defendant. Prejudice is a factual question to be decided by the trial court and the "conflict [is] to be won or lost" there. (People v. Hill (1984) Cal.3d 491, 499.) Because it is not the role of the appellate court to reweigh the evidence, and because we may reasonably infer that the trial court had adequate legal basis for its decision, I cannot opine that the trial court may have given its decision for the wrong reason. (People v. Geier (2007) 41 Cal.4th 555, 582.) Because only a minimal showing of prejudice was all that was required to shift the burden to the state to justify their delay, I believe there is substantial evidence to support the trial court's decision. (See Ibarra, supra, 162 Cal.App.3d at p. 858; see People v. Garcia, supra, 163 Cal.App.3d at pp. 151-152.)
Moreover, "[t]he quality of any claimed prejudice cannot be properly evaluated in a vacuum; it only makes sense when compared with any justification for the delay." (Ibarra, supra, 162 Cal.App.3d at p. 858.) Thus, the more reasonable the delay, the more prejudice the defense will have to show to require dismissal. (Ibid.) Where there is an unsubstantial showing of justification, only a minimal showing of prejudice is required. (Ibid.)
In this case, the People failed to claim any adequate justification for their delay. In their response to the motion to dismiss for lack of speedy trial, the People argued that because defendant moved to Los Angeles, "law enforcement can only do so much in tracking down Defendants who are out to warrant, especially Defendants who leave the jurisdiction. Here, law enforcement was not required to maintain constant surveillance of postal registers or civil lawsuit filings in all 50 states, as perhaps the Defendant expected as evidenced by his declaration. Instead, law enforcement arrested the Defendant almost four years after he left Riverside County with domestic violence investigation pending against him." The fact that defendant had moved out of Riverside County does not automatically make it justifiable for the prosecution's delay in prosecuting this case. The People did not provide any evidence showing any effort locating and serving defendant once the complaint was filed. On appeal, the People primarily argue that the burden never shifted to them since defendant failed to show prejudice. Consequently, when there lacks justification for the delay, there is no requirement to move to the third prong of the speedy trial test, the balancing of interests.
Based on the above, I would affirm the trial court's order granting defendant's motion to dismiss and in dismissing the complaint filed against defendant.
MILLER
J.