Opinion
A117297
4-25-2008
THE PEOPLE, Plaintiff and Respondent, v. MILTON EATON, Defendant and Appellant.
NOT TO BE PUBLISHED
Milton Eaton pleaded no contest to a misdemeanor count of driving with a suspended license, and was convicted by jury of one count of unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a)) and one count of receiving stolen property (Pen. Code, § 496d).
He contends that his due process rights were violated as a result of precomplaint delay, and delay after charges were filed but before defendant was notified, arraigned and provided with appointed counsel. We shall conclude that defendant failed to demonstrate the delay resulted in any prejudice, and shall affirm the judgment.
FACTS
The Offenses
On March 21, 2006, Nestor Mendoza reported that his Toyota Camry, which he had parked and locked the night before in a casino parking lot, had been stolen.
On March 24, 2006, Robert Thompson, a Pittsburg police officer, observed the driver and passenger of a white 1987 Toyota Camry act evasively when they saw the patrol car. Officer Thompson ran the license plate and discovered that the car had been reported as stolen. Thompson looked for the car, and found it parked at a nearby market.
Defendant was in the drivers seat and the car was running. Defendant was wearing gloves. This struck Officer Thompson as unusual because it was not particularly cold. Officer Thompson was aware that car thieves often wear gloves to prevent leaving fingerprints. Officer Thompson seized the key from the ignition. It had been filed down with a device that left scratch marks and revealed the gold plating underneath the silver exterior of the key. Officer Thompson could tell immediately that it had been shaved. He had been involved with a county task force on stolen vehicles, and based on his experience knew that shaved keys are commonly used to start cars made in the 1980s, and to open some car doors.
Officer Thompson also examined the ignition which appeared to be loose. Metal parts were missing, damaged, and bent. It also appeared that something had been jammed in the ignition. In his experience, jamming the ignition could allow the car to be started without the original key. Based upon the condition of the ignition and the shaved key, Officer Thompson formed the opinion that the car had been stolen.
Another officer, Charles Blazer, who was assigned to collect evidence, confirmed that the key in the ignition was "obviously" shaved, and that the outer cover of the ignition had been completely removed. It also appeared the locking mechanism had been removed. Officer Blazer found a jacket in the back seat that contained indicia suggesting it belonged to the passenger, Burl Evans.
Procedural Facts Relevant to Motion to Dismiss
Defendant was arrested that same day, March 24, 2006, on suspicion of car theft and his parole agent placed a parole hold on him. On April 27, 2006, after a parole revocation hearing, defendant was sentenced to a nine-month prison term for the parole violation, with a release date in early August 2006. On May 5, 2006, the district attorney filed a complaint charging defendant with the instant offenses, and two days later a warrant issued for defendants arrest.
When defendant was transferred to the Sierra Conservation Center on May 26, 2006, he asked his counselor to determine whether he had any outstanding warrants. On June 8, 2006, the Pittsburg Police Department sent a message to the Sierra Conservation Center advising that an arrest warrant had been issued and that they would pick him up when he was released. An Inmate Notification and Agency Acknowledgement of the Detainer receipt addressed to defendant stated that on June 8, 2006, a detainer had been filed against him and gave him the warrant number. The notice informed defendant he could request disposition of untried charges in accordance with section 1381. The court stated that this notification "appear[ed] to be signed by" defendant on June 16, 2006. Defendant finished serving his parole term on August 4, 2006. He was arraigned in this case on August 15, 2006, and held to answer after a preliminary hearing on August 24, 2006.
Although defendants counselor also notified the Contra Costa Sheriffs department that defendant was being held at the Sierra Conservation Center, the sheriff declined to put a detainer on defendant.
Further statutory references are to the Penal Code.
After defendant was held to answer, Juan Solis was assigned to be an investigator for defendant. Mr. Solis signed a declaration outlining his efforts to find Burl Evans, the passenger in the stolen car. On September 18, 2006, Mr. Solis went to Evanss most recent address listed in the records of the Department of Motor Vehicles (DMV). Mr. Solis talked with a woman who identified herself as Evanss sister. She stated that it had been four or five months since Evans had lived with her. She did not know his whereabouts, nor could she identify anyone who might know. The address Mr. Evans had given in the police report was not a residence. Mr. Solis also unsuccessfully attempted to contact the Department of Corrections to see if Evans was in custody, and used computer searches of several web sites in an attempt to find an address for Evans. During trial, another investigator went to the address Mr. Evans had given to the police at the time of defendants arrest. It was a resource facility for homeless people that did not provide housing on site.
Mr. Evans did not appear as a witness at trial, and his statement to the police was not received into evidence. In a supplemental brief in support of motion to dismiss, defendant represented that Evans had told the police in a recorded interview that defendant "was always in possession of" the gloves he was wearing when arrested.
ANALYSIS
Defendant contends that the court should have granted his motion to dismiss on the grounds that delay in filing the complaint and in notifying him of the charges, arraigning him and providing him with appointed counsel constituted a denial of his state constitutional right to due process. Defendant contends that the delay resulted in prejudice to him because it (1) resulted in the inability to call Mr. Evans as a witness; and (2) prevented him from asserting his statutory rights under section 1381 and obtaining concurrent sentencing.
"Delay in prosecution that occurs before the accused is arrested or the complaint is filed may constitute a denial of the right to a fair trial and to due process of law under the state and federal Constitutions. A defendant seeking to dismiss a charge on this ground must demonstrate prejudice arising from the delay. The prosecution may offer justification for the delay, and the court considering a motion to dismiss balances the harm to the defendant against the justification for the delay." (People v. Catlin, supra, 26 Cal.4th at p. 107.) "Prejudice may be shown by loss of material witnesses due to lapse of time [citation] or loss of evidence because of fading memory attributable to the delay." (People v. Morris (1988) 46 Cal.3d. 1, 37, overruled on another ground by In re Sassounian (1995) 9 Cal.4th 535, 543-544, fn. 5.) "Whether prearrest [or precomplaint] delay is unreasonable and prejudicial to the defendant is a question of fact. . . . The trial courts ruling must be upheld on appeal if it is supported by substantial evidence." (People v. Dunn-Gonzalez (1996) 47 Cal.App.4th 899, 911-912, citing People v. Mitchell (1972) 8 Cal.3d 164.)
Defendant does not raise a federal due process claim, which requires a showing that the prosecutor delayed to obtain a tactical advantage. (See People v. Catlin (2001) 26 Cal.4th 81, 107.)
The court found that defendant failed to show he was prejudiced by the loss of Mr. Evans as a witness for two reasons: (1) the inability to locate Evans was not caused by the delay, and (2) defendant failed to show that Evans could have provided important exculpatory testimony. Substantial evidence in the record fully supports both findings.
Defendant was arrested on March 24, 2006. At that time, Evans gave the police an address that was determined to be a facility for homeless people that did not provide housing. When Mr. Solis contacted Evanss sister on September 18, 2006, at his last listed address with the DMV, she stated Evans had not lived there for four to five months, which would mean he had not been at that address since April or May, 2006. The foregoing evidence supports the courts conclusion that the delay did not cause the inability to find Evans because the defense never had a good address for Evans. The court reasoned that since the offense occurred in late March, Evans would not have been found even if the complaint had been filed, and defendant had been arraigned and provided with appointed counsel, much sooner. Defendants suggestion, that if the investigator had gone to Evanss sisters address sooner it would have been more likely that she could have provided a lead as to his whereabouts, is based upon nothing more than speculation.
In any event, substantial evidence also supports the courts further finding that defendant failed to demonstrate Evans could have provided important exculpatory testimony. In support of this claim, defendant offered a statement Mr. Evans made to the police on the day of the arrest that defendant "always has gloves." He argued below, and reiterates on appeal, that Evanss statement was material because his defense turned on whether defendant knew the vehicle was stolen, and he asserts the prosecution relied primarily upon the fact that he was wearing gloves as circumstantial evidence that defendant did have such knowledge. The court, after presiding over the trial, reasonably concluded this was an insufficient showing of prejudice. Although Evanss statement might have dispelled an inference of knowledge based on the gloves, testimony consistent with his statement to the police would not have addressed the many other circumstances supporting the inference of knowledge that the vehicle was stolen. These include the immediate recent theft of the vehicle, the obviously shaved key, the damaged ignition, and defendants evasive behavior upon seeing a police officer. The prosecutor explicitly relied upon the fact the vehicle was recently stolen, and argued: "You got a shaved key, you got an ignition thats been tampered with, you got the defendant wearing gloves to avoid leaving fingerprints, you got his initial reaction to the police, the quick glance and look away once he sees Officer Thompson saw him. All this goes to show that he knew the car had been stolen."
We also note that there was evidence that Evanss testimony could have been very damaging. In addition to his comment about the gloves, Evans told the police that defendant had been driving the car for a couple of days and that Evans had merely asked for a ride. This contradicted defendants statement to the police that he had only driven the vehicle that day, and had borrowed it from someone named Jennifer. At trial, defendant did not offer evidence concerning how or when he came into possession of the vehicle, but defense counsel did argue that the mere fact he was driving was insufficient evidence that defendant possessed the vehicle, and noted that the only indicia of possession found in the vehicle was a jacket with mail and a prescription bottle belonging to Evans. Evanss testimony could have seriously undermined this line of defense.
Defendant incorrectly asserts that there was no testimony that would support the inference that the condition of the key or the ignition would have given notice to the driver that the car was stolen. To the contrary, Officer Blazer testified that the key was "obviously" shaved, and that the other thing he noticed that caused him to believe the car was stolen was the condition of the ignition, which had clearly been tampered with. Officer Thompson also testified he could see at a glance that the key had been shaved, and that the ignition was loose, and that metal parts were missing, damaged and bent, all of which would indicate someone had tampered with it.
The only other prejudice defendant argued was that the delay in notifying him of the charges deprived him of the opportunity to invoke 1381 while he was serving his term on the parole revocation, and he therefore lost the possibility of concurrent sentencing. In People v. Lowe (2007) 40 Cal.4th 937 (Lowe), our Supreme Court rejected the contention that, under the California Constitutions speedy trial right, the loss of the possibility of concurrent sentencing alone is sufficient to meet the defendants initial burden to demonstrate prejudice. (Id. at p. 945.) It held "a defendant claiming a speedy trial violation under the California Constitution must show that the delay has impaired the ability to defend against the charged crime because, for instance, a witness has become unavailable, evidence has disappeared, or the memory of a potential witness has faded. If the defense makes that initial showing, the trial court may then . . . consider the defendants loss of an opportunity to serve a concurrent sentence in weighing all of the prejudice to the defendant against the prosecutions justification for the delay." (Id. at p. 946.) The court further reasoned, "The likelihood of serving a sentence on a pending charge concurrently with a sentence already being served in another case is speculative. Sometimes imposition of concurrent sentences is legally barred. [Citation.] Even when concurrent sentences are permitted, they often are not imposed because of the presence of certain aggravating factors." (Ibid.)
Although Lowe considered a defendants constitutional right to a speedy trial (Lowe, supra, 40 Cal.4th at p. 946), a defendant claiming a delay deprived him of due process also has the burden of demonstrating resulting prejudice. Therefore, the reasoning and decision in Lowe is directly applicable here. Since defendant failed to demonstrate the delay impaired the ability to defend against the charged crime, the loss of the opportunity to benefit from concurrent sentencing alone was insufficient to meet his burden to show prejudice. (Lowe, supra, at pp. 945-946.)
The court also found the delay did not prevent defendant from making a section 1381 demand because he knew his parole had been revoked based upon the March vehicle theft, and had inquired about outstanding warrants in early May. He also was notified in writing that a detainer had been filed and advised he could request disposition of untried charges in accordance with section 1381 no later than June 16, 2006. Despite having at least inquiry notice that he would be charged with the vehicle theft, defendant took no action to make a section 1381 demand even after receiving this written notification. The court reasoned that, even if it qualified as prejudice, the loss of the opportunity for concurrent sentencing was attributable to defendants inaction, not the delay. We need not reach the merits of this finding because, for the reasons we have stated, the loss of the opportunity for concurrent sentencing is insufficient by itself to demonstrate prejudice resulting from the delay in violation of defendants due process rights.
CONCLUSION
The judgment is affirmed.
We concur:
MARCHIANO, P. J.
MARGULIES, J.