Opinion
G057419
06-19-2020
THE PEOPLE, Plaintiff and Appellant, v. SANDRA LEE DAVILA, Defendant and Respondent.
Jan B. Norman, under appointment by the Court of Appeal, for Defendant and Respondent. Todd Spitzer, District Attorney, and Yvette Patko, Deputy District Attorney for Plaintiff and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 12NF3573) OPINION Appeal from a judgment of the Superior Court of Orange County, Michael A. Leversen, Judge. Affirmed. Jan B. Norman, under appointment by the Court of Appeal, for Defendant and Respondent. Todd Spitzer, District Attorney, and Yvette Patko, Deputy District Attorney for Plaintiff and Appellant.
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The People of the State of California appeal from a judgment of dismissal after the court granted defendant Sandra Lee Davila's speedy trial motion. They argue defendant did not suffer actual prejudice as a result of the delay in the case, and the court did not properly weigh any prejudice caused against the justification for the delay. We disagree and affirm the judgment.
FACTS AND PROCEDURAL HISTORY
In October 2012, SW said a person hidden under a white sheet came into her apartment. The person covered SW in a sheet, tied her hands behind her back, and showed her a knife. SW could hear multiple people in her apartment and one said they had a gun. They went through SW's purse and demanded the pin number to her bank card.
After SW revealed her pin number, someone led her to her bedroom and told her to lay down and not make any noise. They threatened SW's family and told her not to call the police. They said they were leaving, but would return in 10 minutes to make sure SW had not contacted anyone.
While SW was still on the bed, she heard defendant (her neighbor) asking why her front door was open. SW yelled and defendant came inside. After SW described what happened, defendant advised SW not to call the police. Defendant also asked SW to tell her if she called the police because she had an outstanding ticket. Defendant said her brother did fingerprint examination and convinced SW to give her the sheets used to cover her and tie her hands.
SW said defendant left with the sheets, but returned multiple times throughout the day to check on her. Later that day, SW asked defendant to return the sheets, but she said she had already given them to her brother.
The next day, SW contacted her bank and learned $600 had been withdrawn from her account. After a few days, she decided to contact the police. The police viewed surveillance video from the bank, which showed defendant using SW's debit card.
In November 2012, the police served a search warrant at defendant's apartment. No one was home, but the police used paperwork found in the apartment to determine where defendant's daughter went to school. Through the school, they were able to contact defendant's daughter's father (Michael Y.) who said he would contact defendant.
Defendant called the police the next day. She was crying and said she could not see her daughter "until she cleared things up with the police." She did not explain what the things were. The police officer told the defendant they needed to speak to her and she said she would come to the police department later that day, but she did not show up. During the phone call, neither the police officer nor defendant ever mentioned the incident or SW.
The following week, the District Attorney filed a complaint against defendant alleging charges of robbery, kidnapping to commit robbery, residential burglary, false imprisonment, aggravated assault, dissuading a witness, and fraudulent use of an access card. On the same day, the court also issued a warrant for defendant. The warrant was entered into the Orange County Warrant Repository, but the police made no efforts to serve the warrant.
The warrant did not show defendant's correct address.
The warrant was served in July 2016 and defendant was arraigned in August 2016. In October 2018, defendant filed a motion to dismiss the case on the grounds her rights to due process and a speedy trial were violated.
Defendant testified during the hearing on the motion she lived with Michael Y. and her daughter in the same apartment building as SW. She was a narcotics user and said she frequently used heroin with SW. On the date of the incident, she called a drug dealer named Rudy and ordered some heroin. While she was waiting for Rudy, she noticed SW's apartment door was open, called to her from outside, and heard her yelling in the bedroom. She went inside and found SW tied up and covered in a sheet.
SW and defendant sat outside and SW said she had been robbed. While SW was describing what happened, another neighbor named Dickie passed by and SW told him what happened.
Defendant testified Dickie died at some point after the incident.
While SW and defendant were outside, Rudy called defendant and said he was nearby. Defendant told SW she was going to leave for a few minutes to meet Rudy and SW said she wanted to get heroin. SW asked defendant to drive her to the bank, but defendant said she did not have a license.
Rudy drove up while SW and defendant were talking and they continued to talk while standing behind his truck. SW asked defendant to go with Rudy to the bank, withdraw money from SW's account, and buy heroin from Rudy for her. Defendant explained the plan to Rudy and he agreed. Defendant then went back to SW and asked for her ATM card and pin number. SW gave her the card and asked her to withdraw as much money as possible.
Rudy drove defendant to the bank and she used SW's card to get money from the ATM. While defendant used the ATM, Rudy stayed in his truck, but parked close to the ATM. Defendant returned to SW with the heroin and the two got high together. Defendant said some time later SW called her bank, reported her ATM card as stolen, and said she wanted to close her account. Defendant told SW not to say the card was stolen since defendant had used it at the ATM, and SW told the bank the thieves actually stole her checks.
During the hearing, defendant introduced evidence the phone records from the bank for 2012 were unavailable.
Defendant said when she spoke to the police in 2012, she thought they wanted to talk about her finding SW and what happened afterwards. She said she did not think they were talking to her as a suspect in the robbery. She said Michael Y. told her she could not see her daughter until she cleared up a warrant from 2009, and she was referring to that warrant when she told the police she would turn herself in.
Defendant moved out of the apartment the day she spoke to the police. Michael Y. moved out a few months later. In the period of time between the incident and the filing of the case, defendant had lived with Michael Y. in two different locations.
From 2011-2016, defendant gave Michael Y.'s parents' house as her address with the DMV. She occasionally stayed there when she was fighting with Michael Y., but did not specify how frequently this happened. She also admitted using false names multiple times during arrests and police contacts before the incident in 2012.
A few weeks before her testimony, defendant bumped into Rudy on the streets, but he did not recognize her. She tried to get his phone number, but she was unable to. She tried to find out where Rudy lived, but a friend could only tell her Rudy lived in the neighborhood "around Anaheim Boulevard and Ball Road." Defendant gave the name and contact information of the friend to her defense counsel. She also participated with her defense counsel's attempts to find Rudy, but said they were unable to find him.
Following the testimony of defendant, the court heard argument and engaged in a lengthy discussion with both counsel. The court initially said defendant's testimony "puts a new hurdle in the situation" because Rudy appeared to be available. Defense counsel argued Rudy was not available because they were unable to find him and offered to call her investigator to describe the lengths they had gone to find Rudy. The court said it thought there was prejudice if the defense could not find Rudy.
Defense counsel also argued there was prejudice because Dickie had died and the bank records were unavailable. The court stated these circumstances did not amount to prejudice, and turned to a discussion of the lack of effort by the police to find defendant after the case had been filed. The prosecution argued this discussion was irrelevant if there was no prejudice to defendant and the court responded "[t]here is prejudice. I'm telling you there is prejudice."
The prosecutor argued the police made efforts to arrest defendant by putting the arrest warrant into their system, and the court responded "[t]hat's nothing." The prosecutor also argued the defendant's history of giving false names and failing to update her address with the DMV would have made any attempt to find her futile. The court explained there were multiple ways for the police to have searched for defendant, and there was no evidence she was aware of the warrant or her status as a suspect in the robbery. Ultimately, the court granted defendant's motion and dismissed the case.
DISCUSSION
The People argue defendant failed to show she suffered prejudice by the delay in the case. They also argue if there was prejudice, the court failed to balance it against the justification for the delay. We disagree with both arguments.
A defendant's right to a speedy trial under the California Constitution attaches when a criminal complaint is filed. (Scherling v. Superior Court (1978) 22 Cal.3d 493, 504.) In order to prevail on an argument their right to a speedy trial was violated, a defendant "must affirmatively demonstrate prejudice" caused by the delay. (People v. Martinez (2000) 22 Cal.4th 750, 767.) If prejudice is based on lost witnesses, the defense must "specifically identif[y] what witnesses might have eluded the defense or what testimony might have been lost or distorted as a result of the delay in this case." (People v. Williams (2013) 58 Cal.4th 197, 236.)
A defendant also has a right to a speedy trial under the United States Constitution, but defendant conceded her federal speedy trial rights were not implicated in this case.
If the defendant can show they suffered prejudice by the delay, "the prosecution must show justification for the delay. If the prosecution does that, the trial court must balance the prejudice to the defendant resulting from the delay against the prosecution's justification for the delay. [Citation.]" (People v. Lowe (2007) 40 Cal.4th 937, 942.) "Whether preaccusation delay is unreasonable and prejudicial to a defendant is a question of fact. [Citation.]" (People v. Mirenda (2009) 174 Cal.App.4th 1313, 1330.) "We uphold the trial court's ruling or decision on appeal if it is supported by substantial evidence. [Citation.]" (Ibid.)
In this case, substantial evidence supports the court's finding defendant suffered prejudice by the delay, because testimony from Rudy could have provided a defense to at least one charge. Defendant testified she talked to SW about going to the bank while standing next to Rudy's truck. She said she asked Rudy if he could drive her to the bank to get money for SW, he agreed, and then she went back and got SW's ATM card. Based on his proximity to the conversation, Rudy could have overheard SW give defendant permission to use the ATM card. Even if he only corroborated the sequence of events and what defendant told him, that would be circumstantial evidence defendant had SW's permission to use the card. Either way, his testimony would provide a defense to the charge of fraudulent use of an access card.
Citing Shleffar v. Superior Court (1986) 178 Cal.App.3d 937 (Shleffar), the People argue defendant did not establish Rudy's unavailability, because she did not how "meaningful and particularized efforts" to locate Rudy. We do not agree.
In Shleffar, the defendant asserted she suffered prejudice due to the loss of a witness, but never provided a specific theory of defense or the "purported exculpatory evidence" the witness could offer. (Shleffar, supra, 178 Cal.App.3d at p. 945.) Further, the defendant gave vague descriptions of the efforts she made to locate the witness and never provided any information about the witness to her defense counsel. (Id. at pp. 942- 946.) Consequently, the court of appeal agreed with the trial court that defendant had failed to discharge her burden of showing prejudice. (Id. at p. 948.)
Shleffar is inapposite because the facts in this case are different. As noted above, defendant's testimony provided a specific theory of defense and the purported exculpatory evidence Rudy could offer. Further, defendant described her efforts to secure Rudy's contact information and provided the information she had to her defense counsel. Defense counsel also offered to call her investigator and made an offer of proof the investigator would testify about attempting to find Rudy, but being unsuccessful. Thus, substantial evidence supports the court's finding Rudy was unavailable and defendant's ability to present a defense at trial was prejudiced.
Substantial evidence also supports the court's finding the delay was not justified. After the warrant was signed, the police made no attempt to serve it. There was no evidence the warrant was mailed to defendant, and the warrant did not even contain the correct address for defendant's apartment.
The People argue defendant caused the delay because she knew of the case against her and failed to contact the police or turn herself in. However, the court observed defendant's testimony and specifically questioned her about why she thought the police were looking for her. After hearing her explanation, the court concluded there was no evidence she knew about the warrant or SW accusing her of being the thief.
The People also argue any efforts to contact defendant would have been futile. This argument misses the mark. As detailed by the court, the police had already contacted defendant by finding her daughter at school and could have made the same efforts again. In any event, there is no authority to support the claim that theoretical difficulty in finding a defendant justifies not bothering to look at all.
Finally, the People argue "[t]he court did not engage in the required balancing of the prejudice against the justification for the delay." However, this argument contradicts existing case law requiring such a balancing only after the prosecution justifies the delay. (People v. Lowe, supra, 40 Cal.4th at p. 942.) And, as discussed, the court found there was no justification for the delay.
DISPOSITION
The judgment is affirmed.
THOMPSON, J. WE CONCUR: IKOLA, ACTING P. J. GOETHALS, J.