Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 04CF2889, Patrick H. Donahue and Frank F. Fasel, Judges.
Doris M. Frizzell, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOORE, J.
Hilario Cerralde Gomez (defendant) was charged by information with committing a lewd act upon a child under age 14, between August 1, 2004 and September 20, 2004, in violation of Penal Code section 288, subdivision (a) (count one), and with committing a lewd act upon a different child under age 14, between January 1, 1995 and November 1, 1996, also in violation of Penal Code section 288, subdivision (a) (count two). The information alleged, pursuant to Penal Code section 667.61, subdivisions (b) and (e), that defendant committed an offense specified in Penal Code section 667.61, subdivision (c) against more than one victim.
The jury found defendant guilty as charged on counts one and two. The jury also found true the allegation that defendant had committed a lewd act upon more than one victim. Defendant was sentenced to 15 years to life on count one and 15 years to life on count two, the sentences to be served consecutively.
He appeals, contending the eight-year delay between the date of the alleged offense in count two and the date he was charged with count two denied him due process of law. We disagree. Defendant has not shown that the trial court applied the incorrect rule of law in denying his motion to dismiss count two, that there was a lack of substantial evidence supporting the court’s findings, or that the court failed to properly balance the prosecution’s justification for delay against any prejudice defendant may have suffered due to the delay. We affirm.
I FACTS
Defendant’s wife ran an informal day care center from her home. The child who was the subject of count two attended the day care center in 1995 and 1996. Her mother testified that she had found her daughter’s underpants full of blood, shortly before the child turned eight years old, that the child was having nightmares and would wake up at night crying, and said she did not want to go back to defendant’s home “because she didn’t want to keep on playing with him.” The mother further testified that, on October 12, 1996, her daughter told her that defendant had raped her. The mother then reported the matter to the police. During an October 15, 1996 interview with a social worker, the then eight-year-old child gave graphic testimony of sexual molestation by defendant that took place “a lot of times.”
Defendant was arrested in 1996 and held for two days. However, no charges were filed against him at that time.
One day around September 2004, defendant’s stepson returned home early from work and found defendant in the kitchen with another little girl — a six-year-old. Defendant’s shorts were down, he had his penis in the child’s mouth, and his hand was on her head. The child had her hands placed on defendant’s buttocks. When the stepson came in, the child was able to run away. The stepson reported the matter to the authorities.
Ultimately, charges were then brought with respect to both the 1996 incident, charged as count two, and the 2004 incident, charged as count one. Defendant filed a motion to dismiss count two on the ground of delay. The court denied the motion. Defendant was convicted of both counts and sentenced to a total of 30 years to life in prison.
II DISCUSSION
A. Motion to Dismiss:
Defendant moved to dismiss count two on the basis of the eight-year delay between his initial arrest in 1996 and his subsequent arrest in 2004. He claimed that the delay had violated his due process rights under both the federal and state constitutions.
Defendant claimed that he was prejudiced by the delay because: (1) he could no longer accurately remember the alleged incident; (2) there had been potential witnesses whose identities he could no longer recall; and (3) even if he could locate those witnesses, they would not remember the alleged incident.
In his declaration in support of his motion, defendant stated that, in 1995, his wife used to babysit 10 children. He further stated that they used to have all the children’s names, addresses and telephone numbers, but that the information was eventually discarded. Defendant said that because he could no longer remember the children’s names, he could not provide them to his attorney. He summed up by stating that because of the passage of time and his memory loss, he was unable to bring witnesses in his favor, and his ability to defend himself at trial was significantly hampered.
Defendant argued that, having demonstrated prejudice, the burden then shifted to the prosecution to show justification for the delay. He further argued that there was no justification for the delay, except for new allegations of a different crime, so the court should dismiss count two.
In response to defendant’s motion, the prosecution questioned how defendant’s faded memory could impair his ability to defend himself, since, in 1996, he consistently denied having had any physical contact with the purported victim. The prosecution asked how it was defendant could have a faded memory of events he insists never occurred at all, and also asserted that any testimony from the purportedly lost witnesses would have been purely speculative. In addition, the prosecution represented that the reason charges were not filed in 1996 was due to insufficient evidence, because there was then only a he-said-she-said allegation, with insufficient corroborating evidence. However, when the 2004 allegations arose, with the corroborating testimony of defendant’s stepson, the possible use of some of the evidence pertaining to the 2004 case as propensity evidence under Evidence Code section 1108 made the total evidence in support of the 1996 case stronger.
The trial court denied the motion because it found no evidence that the prosecution had intentionally delayed filing the count two charge and no concrete evidence that defendant had been prejudiced by the delay.
B. Defendant’s Arguments:
Defendant essentially makes three assertions of error. He claims the trial court applied the wrong rule of law in evaluating his motion. He also argues that substantial evidence did not support the trial court’s finding that he failed to demonstrate prejudice. Finally, he maintains that there was no justification for the prefiling delay and that, if the lack of justification had been correctly balanced against the prejudice he suffered, a dismissal of count two should have resulted. We address these arguments in turn.
C. Rules of Law:
“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. [Citations.]” (People v. Catlin (2001) 26 Cal.4th 81, 107; accord, People v. Nelson (2008) 43 Cal.4th 1242, 1250.)
“The state and federal constitutional standards regarding what justifies delay differ.” (People v. Nelson, supra, 43 Cal.4th at p. 1251.) However, “the exact standard under [the federal] Constitution is not entirely settled.” (Ibid.) It seems clear that, under the federal standard, “delay undertaken to gain a tactical advantage over the accused... would violate due process if the defendant demonstrates prejudice.” (Id. at p. 1253.) Some cases also suggest that “delay incurred in reckless disregard of circumstances known to the prosecution suggesting that delay might prejudice the defense[] would [also] violate due process if the defendant demonstrates prejudice.” (Ibid.) Case law is less clear on whether “delay might be unjustified in other circumstances as well.” (Ibid.) “It is clear, however, that the law under the California Constitution is at least as favorable for defendant in this regard as the law under the United States Constitution. Accordingly, we can and will apply California law.” (Id. at p. 1251.)
D. Application of Rules:
As noted above, the trial court denied defendant’s motion for two reasons. One was that there was no evidence that the prosecution had intentionally delayed filing charges. The other was that there was no evidence of prejudice. The second finding alone was sufficient to deny the motion. Without a finding of prejudice, defendant cannot show that his due process rights were violated, under either federal or state law. (People v. Nelson, supra, 43 Cal.4th at pp. 1250-1255.)
However, defendant fixes his attention on the first finding — that there was no evidence of intentional delay on the part of the prosecution. He construes the court’s finding on this point as showing that the court did not understand the correct rule of law and did not apply the correct rule of law. Defendant says that the finding indicates that the court believed that a due process violation would only occur if the prosecution had engaged in intentional delay and not otherwise; since defendant did not show intentional delay, the court, under its misunderstanding of the law, was constrained to deny his motion.
We do not construe the court’s findings in this manner. A statement that there was no evidence that the prosecution had intentionally delayed was nothing other than a second reason to deny the motion. If there had been a showing of intentional delay, this would have been one step closer to showing a violation of the federal standard. (People v. Nelson, supra, 43 Cal.4th at pp. 1251-1253.) Moreover, under the California standard, defendant would have had to proffer less evidence of prejudice than had there been no showing of intentional delay. (Id. at p. 1256.)
“[U]nder California law, negligent, as well as purposeful, delay in bringing charges may, when accompanied by a showing of prejudice, violate due process.” (People v. Nelson, supra, 43 Cal.4th at p. 1255.) “[W]hether the delay was negligent or purposeful is relevant to the balancing process. Purposeful delay to gain an advantage is totally unjustified, and a relatively weak showing of prejudice would suffice to tip the scales towards finding a due process violation. If the delay was merely negligent, a greater showing of prejudice would be required to establish a due process violation.” (Id. at p. 1256.)
The bottom line is that the court found neither an intentional delay nor evidence of prejudice. Having so found, the court’s ruling was correct, if supported by substantial evidence.
E. Substantial Evidence:
Defendant argues that the trial court’s finding that he did not demonstrate prejudice was not supported by substantial evidence. As the Supreme Court has observed, “‘[p]rejudice 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.’ [Citation.]” (People v. Catlin, supra, 26 Cal.4th at p. 107.) Whether prefiling delay has prejudiced the defendant is a question of fact. (People v. New (2008) 163 Cal.App.4th 442, 460.) We apply the substantial evidence standard of review to the trial court’s finding. (Ibid.)
In his reply in support of his motion, defendant asserted that, without the delay, he “could have brought 10 other children who could have testified: [¶] 1) I was never molested by Defendant; and [¶] 2) While I was there, I never saw defendant alone with the alleged victim; and [¶] 3) Defendant could not have committed any lewd acts upon anyone, because he could have had no opportunity to do so.”
The trial court stated that the nature of any testimony the witnesses might have been able to give was purely speculative. “[S]peculation about prejudice because potential witnesses’ memories have failed or because witnesses and evidence are now unavailable is insufficient to discharge defendant’s burden. [Citation.] A particular factual context must be established in which a specific claim of prejudice can be evaluated.” (Shleffar v. Superior Court (1986) 178 Cal.App.3d 937, 946.)
It is hard to see how testimony by a child other than the victim, to the effect that he or she was not molested, would be of probative value in connection with the question of whether the victim was molested. Similarly, testimony by a particular child that he or she never witnessed any molestation of the victim would also be lacking in probative value. To show that any one child did not witness an act would not be to show that the act did not occur. Finally, testimony from a child that he or she did not recall an adult having had an opportunity to molest another child would be of little value to show that no opportunity in fact arose. What any one witness would say he or she observed as a child is purely speculative, and the probative value of the testimony would be minimal in any event. Substantial evidence supports the trial court’s finding that defendant failed to show he suffered prejudice due to an inability to call children into court to testify on the matters he has framed.
As for defendant’s own lack of memory, we must agree that he cannot be prejudiced at this point because he cannot clearly recall events he insists never took place at all.
F. Justification for Delay:
Lastly, defendant asserts that there was no justification for the prefiling delay, and the trial court should have balanced that lack of justification against the prejudice to him, and concluded that a dismissal of count two was required. “In evaluating a claim of precomplaint delay, ‘any prejudice to the defendant resulting from the delay must be weighed against justification for the delay.’ [Citation.] ‘In the balancing process, the defendant has the initial burden of showing some prejudice before the prosecution is required to offer any reason for the delay [citations]. The showing of prejudice requires some evidence and cannot be presumed. [Citations.]’ [Citations.]” (People v. Morris (1988) 46 Cal.3d 1, 37, disapproved on other grounds in In re Sassounian (1995) 9 Cal.4th 535, 543-545, fns. 5 & 6.)
Applying this rule, we conclude that no justification for the delay was required, inasmuch as defendant did not meet his initial burden to show prejudice. Prejudice cannot be presumed, just because defendant cannot now remember the names of the other 10 children. (People v. Morris, supra, 46 Cal.3d at p. 37.) Even had defendant met his initial burden to show prejudice, thereby prompting a weighing of the prosecution’s justification for delay against such prejudice, we would conclude that the trial court did not abuse its discretion in reaching the outcome it did. (Id. at p. 38 [abuse of discretion standard applied on review of balancing].)
“The trial court’s task ‘is to determine whether precharging delay violates the fundamental conceptions of justice which lie at the base of our civil and political institutions and which define the community’s sense of fair play and decency.’ [Citation.]” (People v. New, supra, 163 Cal.App.4th at p. 460.) “A court should not second-guess the prosecution’s decision regarding whether sufficient evidence exists to warrant bringing charges. ‘The due process clause does not permit courts to abort criminal prosecutions simply because they disagree with a prosecutor’s judgment as to when to seek an indictment.... Prosecutors are under no duty to file charges as soon as probable cause exists but before they are satisfied they will be able to establish the suspect’s guilt beyond a reasonable doubt.... A prosecutor abides by elementary standards of fair play and decency by refusing to seek indictments until he or she is completely satisfied the defendant should be prosecuted and the office of the prosecutor will be able to promptly establish guilt beyond a reasonable doubt.’ [Citations.]” (People v. Nelson, supra, 43 Cal.4th at p. 1256.)
Here, the parties agree that the prosecution did not file charges against defendant in 1996 out of a concern that there was insufficient proof to establish his guilt beyond a reasonable doubt. That being the case, the prosecution abided by our “‘fundamental conceptions of justice’” and “‘sense of fair play and decency’” by omitting to charge defendant when the available proof was thought to be lacking. (People v. New, supra, 163 Cal.App.4th at p. 460.) However, when the alleged 2004 incident came to light, in which a corroborating witness was available, the prosecution believed there was sufficient evidence to prove the 1996 charges, because of the availability of propensity evidence under Evidence Code section 1108.
The prosecution has shown adequate justification for the delay, and defendant has shown only speculative evidence of prejudice. Balancing one against the other, we cannot say the court abused its discretion in denying defendant’s motion to dismiss.
III DISPOSITION
The judgment is affirmed.
WE CONCUR: SILLS, P. J., IKOLA, J.