Opinion
F069575
08-09-2017
THE PEOPLE, Plaintiff and Respondent, v. RUSSELL WAYNE HAVNER, Defendant and Appellant.
Law Office of William A. Romaine and William A. Romaine for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephanie A. Mitchell and Paul A. Bernardino, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Kern Super. Ct. No. SF015144A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. John R. Brownlee, Judge. Law Office of William A. Romaine and William A. Romaine for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephanie A. Mitchell and Paul A. Bernardino, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Appellant/defendant Russell Wayne Havner was convicted of two counts of battery by a prisoner on a correctional officer (Pen. Code, § 4501.5) and sentenced to the second strike term of 12 years in prison. The charges were based on an incident that occurred in November 2008, when defendant was a state prison inmate admitted to a Bakersfield hospital for treatment, and he assaulted two correctional officers in his hospital room. The felony complaint and arrest warrant were issued in 2009. Defendant was subsequently released from prison, and later convicted and sentenced in unrelated cases to prison terms in Arizona and California. In 2013, the district attorney's office of Kern County located defendant, arraigned him on the felony complaint, and resumed the proceedings against him based on the assault charges. He was sentenced to the second strike term of 12 years in this case.
All further statutory citations are to the Penal Code unless otherwise indicated.
On appeal, defendant contends the instant matter should have been dismissed because it was not brought within the three-year statute of limitations period, and the delayed prosecution violated his right to speedy trial under the California Constitution. Defendant also asks this court to review the superior court's denial of his motion for disclosure of confidential personnel records of the two officers, pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
We affirm.
FACTS
On or about November 24, 2008, defendant was an inmate at North Kern State Prison, and he was transferred to Mercy Hospital in Bakersfield because of a medical issue. Dr. Larry Yokoyama, a physician at the hospital, testified defendant was diagnosed with atypical pneumonia, tests were ordered to rule out tuberculosis and valley fever, and he was placed in an isolation room.
Dr. Yokoyama testified for the defense; the rest of his testimony will be addressed below.
Sergeant Darnell Smith, a uniformed correctional officer, was assigned to the hospital to supervise defendant and other inmates who were patients. The officers assigned to the hospital were not allowed to carry firearms or pepper spray.
Defendant was housed in room No. 503. He was the only inmate/patient in that room. He was wearing a standard patient gown issued by the hospital. The hospital bed was in the middle of the room, with the head against the wall. Defendant was attached to the bed with leg restraints. The restraints had a long cable that allowed him to get out of the bed, but he could not move around or leave the room. If he needed to use the restroom in his hospital room, he had to push the call button for an officer to release him from the bed so he could walk to the restroom.
Sergeant Smith was familiar with defendant, and testified the correctional officers at the hospital did not encounter any difficulties while supervising him. Smith had previously helped defendant in the hospital by proofreading letters that he had written to his family, since he was not allowed to have visitors at the hospital.
However, Sergeant Smith testified the hospital's medical staff had problems with defendant while he was a patient. At some point after he was admitted, defendant refused to take his medication, and a member of the medical staff asked Smith to talk to defendant. Smith and a nurse explained to defendant that the medical staff was trying to help him, they had nothing to do with the prison, no one would force him to take any medication, and he could sign the necessary forms and check himself out of the hospital and return to the prison. Defendant never told Smith he was allergic to any medication. Sergeant Smith looks through the window
Around 4:00 p.m. on November 30, 2008, Sergeant Smith was at the hospital on his shift. A nurse reported that defendant pushed the call button and demanded to speak to the sergeant on duty. Sergeant Smith thought defendant probably wanted him to proofread another letter. Smith asked the nurse to tell defendant that he would get there. The nurse returned and told Smith that defendant kept pushing the call button and asked to talk to Smith.
Sergeant Smith stood in the hallway and looked through the window on the door to defendant's room. Defendant was standing in the middle of the room, about three to four feet from the door, and he was looking at the door. The hospital bed had been moved from the middle of the room and pushed against the side wall. The bed had also been turned around so that the head was closer to the door's window.
Correctional Officers Angello, Sanchez, and Perez were also on duty at the hospital. Sergeant Smith saw Officer Angello in the hallway. Smith told Angello that they had to get into defendant's room because something was wrong. Both officers put on masks and gloves because defendant was being evaluated for possible tuberculosis. Sergeant Smith and Officer Angello enter defendant's room
Sergeant Smith testified he opened the door to defendant's room. Smith and Officer Angello walked in and stood in the doorway. Smith discovered defendant had ripped out the bed's electrical cord from the wall, and it was lying on the floor. Defendant had also removed part of the footboard from the bedframe. Both of the bed's side rails had been raised, and defendant had tried to bend one of rails. Defendant attacks the officers
Sergeant Smith ordered defendant to get back into bed so he could reattach the restraining cable. Defendant initially acted as if he was going to comply with the order, and turned toward the bed. The officers walked further into the room.
Sergeant Smith testified that defendant tricked the officers into believing that he was going to comply with their orders. Instead of getting into bed, Smith testified defendant turned toward him quickly and aggressively, "in a fast manner." Defendant tried to push Smith. Smith grabbed defendant's waist, and tried to hold him in a bear hug so he could control defendant and prevent him from fighting. Smith denied that he "bull rushed" defendant or challenged him to a fight.
Sergeant Smith could not control defendant and they started wrestling for control. Smith tried to take him to the floor and defendant resisted. Smith held onto defendant, and defendant was not able to kick or punch him.
Sergeant Smith testified that as the struggle continued, he fell down and his head hit the floor. Defendant fell on top of him, so that they were facing each other on the floor. Smith believed defendant was going to kill him. Smith did not punch, kick, or scratch defendant during the struggle because he did not have time.
Sergeant Smith testified that after his head hit the floor, there were "a lot of gaps into what happened" and he could not remember everything. Smith later realized he was briefly knocked unconscious and blacked out.
Sergeant Smith testified he did not know what happened to Officer Angello. Smith later learned that other officers arrived to help. Smith heard other people order defendant to stop. Smith vaguely remembered that Officer Perez was swinging his baton. Officer Angello's testimony
Officer Angello testified Sergeant Smith asked him to help with defendant in the hospital room. Angello looked through the window of defendant's hospital room, and saw defendant standing in front of the door. The hospital bed had been moved against the side wall.
Officer Angello testified Sergeant Smith entered the room first, and Angello was behind him. Smith ordered defendant to return to his bed. Defendant replied, " '[C]ome and do it yourself.' " Angello testified that defendant was standing in a fighting stance. His fists were clenched at his sides.
Officer Angello testified Sergeant Smith again ordered defendant to return to the bed. Defendant lunged at Smith and swung his right arm at him. Angello grabbed defendant's left arm and tried to restrain him. Defendant turned toward Angello, grabbed his waist, and drove him against the wall. Angello hit the wall and fell to the floor but he did not lose consciousness.
Officer Angello testified that as he got up from the floor, Officer Sanchez and others arrived in the room and restrained defendant.
Officer Angello testified he did not punch defendant, challenge him to a fight, or try to impress the nurses about such an incident. Officer Sanchez's testimony
Officer Sanchez testified that he was standing in the hallway outside defendant's room, and saw Sergeant Smith and Officer Angello go inside the room. Sanchez stayed in the hallway. Sanchez heard Smith repeatedly order defendant to get back into bed. Sanchez also heard defendant reply, " 'Come and do it yourself.' "
Officer Sanchez entered the room to help his colleagues. Sanchez testified defendant was in a fighting stance and his fists were clenched. Defendant swung at Sergeant Smith. Sanchez and Officer Angello tried to grab defendant's arms but missed. Sanchez testified that defendant threw Angello against the wall, and Angello fell down.
Officer Sanchez testified that defendant and Sergeant Smith were face to face. Defendant picked up Smith and slammed him to the floor. Smith landed on his back, and defendant was on top of Smith. Defendant and Smith wrestled on the floor.
Officer Sanchez testified additional officers arrived and tried to restrain defendant. The officers repeatedly screamed at defendant and ordered him to stop. Defendant ignored their commands and continued to wrestle with Sergeant Smith. Officer Perez had to hit defendant with his baton twice, and the officers were finally able to place defendant in handcuffs.
Officer Sanchez testified he never saw Sergeant Smith punch or kick defendant, and none of the officers challenged defendant to a fight. Sergeant Smith's injuries
Sergeant Smith testified that he later learned that an officer dragged him out of the room before defendant was restrained. Smith remembered that he was able to walk around in the hallway, but he was dazed and dizzy. Officer Perez advised him that his pants were ripped and his leg was bleeding.
Sergeant Smith was treated in the hospital's emergency room for an injury to his left eye. The medical personnel advised him that he had bruises and two bite wounds on his left thigh, where his pants were ripped. His left leg was fractured and he later required orthoscopic surgery.
The prosecution introduced photographs that showed the electrical cord on the floor, damage to the bed's side rail and footboard, the injury to Sergeant Smith's left eye, and bite marks and bruises on Smith's left leg.
Sergeant Smith testified he wrote a report about the incident the day after it happened. His mind was not clear enough to write the report, but he was required to prepare the report within a certain period. When he prepared the report, he did not realize that his head hit the floor or he had blacked out. As a result, his report did not state that he became unconscious. Smith later realized there were gaps in the report because he blacked out during the assault.
Sergeant Smith testified that at the time he prepared the report, he was very upset about the bite wounds and worried about contracting HIV or hepatitis. Smith's twin brother had died from HIV and he kept thinking about that. Smith was later advised that defendant refused to take a blood test for HIV and hepatitis. Smith had to take blood tests for one year to ensure he tested negative.
Sergeant Smith returned to work three or four months after the incident. He was reassigned from the hospital to the prison at his own request.
Sergeant Smith testified that just before the trial, he reviewed his own report because of his memory gaps. He did not review the reports from the other officers. Smith testified the incident was clearer in his mind at trial than at the time it occurred.
About a week before the trial, Sergeant Smith testified he briefly spoke to Officer Angello about the case and asked what happened: "I said, I can't remember. [Angello] said, yeah, I think you got knocked out." Smith testified that Angello also said that it had been "almost six years and we can't hardly remember anything, what happened that night." Smith did not review the reports prepared by the other officers or talk to them about the incident.
DEFENSE EVIDENCE
Dr. Rulon Owen testified that defendant had been a patient at his medical clinic in Exeter between July 2007 and November 2008. On November 6, 2008, prior to being in custody, defendant was at the clinic and complained of a cough. Dr. Owen examined defendant and diagnosed bronchitis. Defendant's chart indicated that he had no known allergies. Dr. Owen gave defendant a prescription for Levaquin, an antibiotic, and advised him to return or go to the emergency room if his symptoms became worse. Dr. Owen testified the side effects for Levaquin were an upset stomach and rashes. Dr. Owen had never seen any of his patients suffer psychotic reactions or hallucinations from the medication.
Dr. Yokoyama, the hospital physician, testified that he was diagnosed with atypical pneumonia, and tests were ordered to rule out tuberculosis and valley fever. Defendant refused to take pills and Levaquin, an antibiotic, was administered through an intravenous line. Dr. Yokoyama testified that according to defendant's medical records, defendant said he did not have any drug allergies, and he never said he could not take Levaquin. After one day, however, defendant removed the line from his arm and refused to take Levaquin. His refusals continued on November 27 and 28, 2008.
Dr. Yokoyama testified the side effects of Levaquin included nausea, diarrhea, and the possibility of psychosis. He had never seen or heard about a patient becoming aggressive and attacking someone as a side effect of taking Levaquin.
The defense called members of the hospital staff to review defendant's chart and testify about his condition between his admission and the assault. Defendant was oriented and coherent, but loud and agitated. He refused to swallow medication, and he received Levaquin through an intravenous line for 24 hours. After that period, defendant continued to be oriented but removed his line, refused any medical treatment, and said he feared for his life.
A nurse testified that defendant said his doctor was a "quack," that nothing was wrong with him, and he wanted to get out. There was no evidence that defendant said he was allergic to Levaquin, or that he was diagnosed with hallucinations.
A nurse testified that on the night of November 29, 2008, defendant became hostile and confrontations. He moved his bed to the door and stood in the window. He refused to let hospital personnel enter the room and cursed at the staff. Defendant's medical records indicated that on the afternoon of November 30, 2008, just before the assault, defendant agreed to take Levaquin again.
The status of defendant's cable restraint
Defendant introduced evidence that the cable that restrained him to the hospital bed had been removed by other correctional officers before Sergeant Smith came on duty.
Correctional Sergeant George Faz and Officer Theresa Freeman testified that on November 30, 2008, about three hours before the assault, they were on duty at the hospital. They looked through the window into defendant's room and saw that defendant had pulled the bed to the restroom. Faz and Freeman went into the room, and found defendant in the restroom. The bed, frame, and electrical cord were not damaged. Defendant complained he was given a laxative but he was still restrained to the bed, no one responded to his call, and he pulled the bed so he could reach the restroom.
Sergeant Faz testified that he told defendant that when he finished in the restroom, he had to push the bed back against the wall. Faz said he would release the restraining cable so defendant could use the restroom again without calling for help. Defendant agreed.
Sergeant Faz and Officer Freeman testified defendant was irritated but complied with their orders. Faz released the restraining cable from his leg restraints, that allowed him to walk to the restroom without being connected to the bed. Faz ordered defendant to stay in bed unless he had to use the restroom.
Sergeant Faz testified that when he finished his shift that afternoon, he advised Sergeant Smith that he had released defendant's leg restraints so he could use the restroom. Smith replied that he would put them back on. Faz went off duty and he did not know if Smith did so.
Defendant's condition after the assault
Immediately after the altercation, defendant was restrained, shackled in bed, and kept on suicide watch. His medical records stated that he was alert, oriented, and coherent, but he had unpredictable behavior and a nurse could not enter the room unless there was a safety escort of three officers. Defendant received treatment after he complained of physical injuries from the altercation. He did not show any signs of distress from taking Levaquin a few hours earlier.
The defense introduced additional evidence from defendant's medical records, that on December 1, 2, and 3, 2008, he refused to take Levaquin and said it made him hallucinate, confused, and think crazy things. On December 6 and 7, 2008, however, defendant agreed to take Levaquin. He remained alert and coherent. Defendant's trial testimony
Defendant testified he had prior felony convictions of moral turpitude for armed robbery and being a felon in possession of a firearm.
Defendant testified he saw Dr. Owen while he was out of custody because he was suffering from a cough. Dr. Owen prescribed Levaquin, which he had never taken. Defendant suffered bizarre emotional outbursts as side effects of Levaquin.
Sometime after he saw Dr. Owen, defendant was arrested and taken into custody for a parole violation. He was still feeling sick. While he was being processed in custody, he broke down emotionally because of the effects of Levaquin. The custodial officers determined defendant was sick and he was evaluated by the medical staff. He reported that he had taken Levaquin and he was allergic to it. He was transferred to the hospital because of his medical condition.
Defendant testified that when he was evaluated at Mercy Hospital, he repeatedly told Dr. Yokoyama and other hospital staff that he was allergic to Levaquin, but they got mad and ignored him. Defendant testified his medical records were incorrect because they failed to list his allergic reaction to Levaquin.
Defendant testified that on the day that he was admitted to the hospital, he encountered Sergeant Smith. Smith told defendant that he was "old school," warned defendant to follow his orders, and said that he knew people "in high places" and he could make defendant disappear in the prison system. Defendant felt Smith threatened his life. He separately encountered Officer Angello, who advised defendant that he would kick his ass if he failed to obey his orders. There were several nurses in the room when Angello made this threat, and defendant thought Angello was trying to impress them.
Defendant testified he refused to take Levaquin but "they pumped" it into him. He felt lightheaded, had a severe emotional reaction, hallucinated, and became paranoid. He ripped out the IV line because of the side effects.
Defendant admitted that earlier on the day of the assaultive incident, he agreed to take Levaquin again. Defendant said he still had hallucinations and heard voices, but he tried to ignore them.
Defendant testified that he had to use the restroom a few hours before the incident. No one responded to his call, and he dragged the bed to the restroom so he could reach it. Sergeant Faz agreed to release his bed restraint so he could use the restroom without calling for help.
After Sergeant Faz released the bed restraint, defendant decided to clean his hospital room because it was very dirty and "cleanliness is next to Godliness." Defendant used a towel and pail from the restroom, got on his knees, and started cleaning the floor.
Defendant testified that about 45 minutes later, he asked to speak to Sergeant Faz again. However, Sergeant Smith and Officer Angello arrived in the room. Defendant stood up because he feared for his life since they had already threatened him.
Defendant weighed 270 pounds at that time. Defendant testified Sergeant Smith immediately rushed and tried to tackle him. Officer Angello punched him in the ear. Defendant pushed Smith away in self-defense. Angello threw another punch, and defendant caught Angello's fist. Angello threw him against the wall. Smith tried to kick defendant in the chest, but defendant caught Smith's foot and they fell down. Smith fell backwards against the hospital bed, over the rail and the footboard, damaged the bed, and hurt his leg. Smith got upset because he tore his pants.
A large number of officers arrived in the room. Defendant's arms and legs were restrained and he was "hog-tied." A very large but unidentified officer picked up defendant and threw him against the wall twice. Angello got on top of defendant, repeatedly punched him, pulled his foot backwards, and tried to break his ankle.
Defendant testified he did not attack Sergeant Smith and Officer Angello, he just defended himself, and he did not bite Smith's leg. Rebuttal
On direct examination, Sergeant Smith testified that he was advised that defendant refused to take a blood test for HIV and hepatitis. However, the defense called a nurse who testified that on December 5, 2008, defendant consented to blood tests for HIV and hepatitis after the altercation.
Sergeant Smith was recalled on rebuttal, and again testified that on December 1, 2008, shortly after the assault, he was told that defendant refused to consent to a blood test for HIV and hepatitis. Smith was never told that defendant subsequently consented to the blood test, and he had to take tests for one year to ensure he was negative for both diseases. He learned about defendant's blood test the first time while he sat through the trial.
Also on rebuttal, Sergeant Smith testified that when he came on duty at the hospital, shortly before the assault, Sergeant Faz never told him that he had released defendant's cable restraint to the bed, and it was not entered in that day's log book.
PROCEDURAL HISTORY
Defendant was alleged to have committed the assaults on the correctional officers on November 30, 2008.
On July 8, 2009, a felony complaint was filed in the Superior Court of Kern County case No. SF015144A, charging defendant with count I, battery by a prisoner on Sergeant Smith (§ 4501.5), with a great bodily injury enhancement (§ 12022.7); and count II, preventing Officers Smith and Angello from performing a duty imposed by law (§ 69); with three prior prison term enhancements (§ 667.5, subd. (b)) and one prior strike conviction. Arrest warrant
The complaint was filed-stamped on July 8, 2009, at 9:23 a.m. in the Shafter-Wasco Branch of the Superior Court of Kern County. The complaint states it was "executed" on June 4, 2009, at Shafter.
As we will explain below, the appellate record before this court establishes that an arrest warrant for defendant was issued in case No. SF015144A on July 8, 2009. Arraignment
On July 18, 2013, defendant appeared for the felony arraignment. The court appointed the public defender to represent defendant, and defendant denied all allegations in the complaint. Defendant remained in custody. The preliminary hearing; statute of limitations motion
On July 31, 2013, the preliminary hearing was held. Sergeant Smith and Officer Angelo were the prosecution witnesses.
At the conclusion of the evidence, defense counsel made an oral motion for the court to dismiss the case because the statute of limitations had been violated by the delayed prosecution. Counsel argued the alleged assault occurred in 2008, there was a three-year statute of limitations, the People had the burden to prove the action commenced within the limitations period, and the People failed to present any evidence to support that burden.
The court called a recess while it reviewed legal authorities on the matter. When the proceedings resumed, the court made a tentative ruling to deny defendant's motion to dismiss.
"The offense as stated by the witnesses occurred on November 30th, 2008, and the Complaint was filed within the statutory time period. So my tentative is the People don't have to prove anything about [the] statute of limitations because the matter was commenced within the statutory time period."
As we will discuss in issue I, post, section 804 states that the filing of a felony complaint does not "commence" an action for purposes of the statute of limitations, but the action is commenced by the issuance of an arrest warrant within the limitations period. (People v. Johnson (2006) 145 Cal.App.4th 895, 900.)
Defense counsel objected and stated that the action did not commence upon the filing of the felony complaint but with the information, and it had not been filed. The prosecutor replied the case was not barred by the statute of limitations.
"[T]he Complaint was signed by the filing D.A. on June 4th, 2009, and submitted to the court, accepted by the court, on July 8th, 2009. This defendant did not surrender himself. I was notified of this case still being an outstanding case probably in September of last year, 2012, and did some investigating and located the defendant in custody in the State of Arizona, and then the time that's passed since October of 2012 and now was the time it took to secure a governor's warrant and to send my investigators back to Arizona to secure [defendant's] presence for the preliminary hearing. .... [¶] But for my actions and the actions of my office, [defendant] would not be here today."
The court further reviewed the record and found an arrest warrant had been issued for defendant on a timely basis:
"And the court file does reflect that the warrant was issued by Judge Ingle on July 8th, 2009, and then [defendant], however he got here, was brought in for arraignment on July 18th, 2013.
"So at this time ... we'll note your objection and all of the grounds for it. I'm going to deny it. I do believe that this case falls within the statute of limitations, and I don't believe, based on the procedural history of this case, that the People need to provide any proof of anything at this point." (Italics added.)
The court held defendant to answer on the complaint. The information
On August 2, 2013, the information was filed that charged defendant with count I, assault by a prisoner by means of force likely to produce great bodily injury on Sergeant Smith (§ 4501); and counts II and III, unlawfully attempting by means of threats or violence to deter or prevent Smith and Officer Angello (respectively) in the performance of a duty imposed by law (§ 69).
The information further alleged great bodily injury enhancements as to counts I and III, one prior strike conviction, and three prior prison term enhancements. Defendant pleaded not guilty.
On October 30, 2013, the court granted defendant's section 995 motion to set aside only the great bodily injury enhancement alleged as to Officer Angello in count III, and denied the rest of the motion. Defendant's motion to dismiss; denial of speedy trial right
On February 26, 2014, defendant filed a motion to dismiss the entire action because the alleged prejudicial delay after the initiation of formal charges violated defendant's federal and state constitutional rights to a speedy trial. Defendant argued that under his federal constitutional rights, the delay was presumptively prejudicial, he was not required to establish actual prejudice since the delay exceeded the three-year statute of limitations. Defendant argued the matter must be dismissed because of the uncommonly long delay between the alleged crime in 2008 and his arraignment in 2013.
As we will explain in issue II, post, a defendant's right to a speedy trial is guaranteed by both the state and federal Constitution, and state statutory provisions. These rights attach at different times in the prosecution. Under the federal Constitution and the state statutory provisions, the right to a speedy trial attaches upon a formal indictment or information, upon arrest, or being held to answer, and prejudice from the delay may be presumed. Under the state Constitution, the right to a speedy trial attaches upon the filing of a felony complaint, and the defendant must affirmatively demonstrate prejudice from the delay. (People v. Martinez (2000) 22 Cal.4th 750, 754-755, 766-767.) In this case, defendant's state constitutional right to a speedy trial attached when the felony complaint was filed in 2009, prejudice was not presumed, and he was required to show actual prejudice from the delay.
Defendant's motion to dismiss referred to the arrest warrant and stated the district attorney's office "filed the Complaint on July 8, 2009 .... Later that day, the Court issued an arrest warrant of [defendant]."
Defendant acknowledged that the state constitutional right required a showing of prejudice. As to prejudice, defendant argued he did not know that the court had issued a warrant for his arrest on July 8, 2009, and he was not obliged to surrender himself; the only reason for the delay was the People's failure to take affirmative steps to pursue the matter against defendant even though he was in custody at various times during that period; and the delay resulted in the loss of witnesses and their fading memories.
Defendant argued Sergeant Smith admitted at the preliminary hearing that he was not able to remember details of the assault, the defense team could not examine defendant's hospital room as it appeared on the day of the incident, and other potential witnesses likely had fading memories.
Defendant's claim of prejudice was based on Sergeant Smith's testimony at the preliminary hearing about his leg injury. On direct examination, Smith testified that after the assault, he went for an examination at a worker's compensation clinic, and he was advised that he had a broken bone in his leg. On cross-examination, defense counsel asked the name of the person who diagnosed his leg injury, and whether that person was even a physician. Smith replied that he could not remember the person's name unless he looked at his medical records. Defense counsel moved to strike Smith's testimony about the broken bone but the court overruled the objection.
Defendant also claimed prejudice based on a letter from the defense investigator, that in 2014, he interviewed Maria Murillo, a member of the hospital staff, and she did not have an independent memory of the assaultive incident.
Defendant further argued he was not required to show actual prejudice because the delay exceeded the statutory limitations period of three years.
The People's Opposition
The People filed opposition to defendant's speedy trial objections, and argued that defendant could not rely on the federal constitutional right to a speedy trial because that right attached upon the filing of the information, which occurred in 2013. The People further argued defendant could only rely on the state constitutional right, which attached upon the filing of the felony complaint in 2009, and he had the burden to show actual prejudice to gain relief.
The People argued defendant's motion failed to demonstrate actual prejudice based on the limited excerpt from Sergeant Smith's preliminary hearing testimony. The People further argued that the nurse referred to in the defense motion would not have recalled the assault, based on discovery (attached as an exhibit to the opposition) that showed the nurse was not present in the room during the assault.
In the alternative, the People requested the court to follow relevant authorities and defer making any finding on possible prejudice until the introduction of evidence at defendant's trial. The People also argued there was no evidence of actual prejudice or that defendant would not receive a fair trial based on the delay.
Defendant's response
Defendant filed a response and asserted the People failed to state any valid justifications for the delayed prosecution, even though defendant was in custody for part of the time period. Defendant did not ask the court to defer ruling until the presentation of the trial evidence.
In support of his response, defendant filed an exhibit consisting of a document prepared by the California Department of Corrections, and received by the defense during discovery, which stated he was released on parole on January 15, 2009; returned to parole on April 23, 2009, and discharged from parole on July 7, 2009. It further stated that on May 6, 2011, defendant was in custody in Arizona.
At the beginning of trial, defense counsel stated defendant was released on or about July 3, 2012, and later "picked up several cases" in both Tulare County, California, and Arizona.
The court's denial of the motion
On March 13, 2014, the court heard brief arguments from the parties and took the matter under submission. On March 14, 2014, the court denied without defendant's motion to dismiss for the violation of his speedy trial rights. The amended information
On April 7, 2014, the court granted the People's motion to file an amended information, that charged defendant with counts I and II, battery by a prisoner on, respectively, Sergeant Smith and Officer Angello (§ 4501.5), with a great bodily injury enhancement alleged as to Smith (§ 12022.7); and three prior prison term enhancements and one prior strike conviction. Verdict and sentence
On April 24, 2014, defendant's trial began. On May 6, 2014, defendant was convicted of counts I and II, battery by a prisoner on, respectively, Sergeant Smith and Officer Angello. The jury found the great bodily injury enhancement alleged as to Smith not true. The court found the prior conviction allegations true.
On June 5, 2014, the court denied defendant's motion for new trial and request to dismiss the prior strike conviction. The court sentenced defendant to 12 years in prison, to be served consecutively to the term that he was already serving, based on the upper term of four years for count I, doubled to eight years as the second trial term; a consecutive term of one year (one-third the midterm) for count II, doubled to two years; plus two years for the two prior prison term enhancements. The court ordered the third prior prison term enhancement stricken.
The first abstract of judgment was filed on June 10, 2014, but misstated the statutory offenses for which defendant was convicted. On January 7, 2015, the court filed an amended abstract of judgment that correctly stated defendant was convicted of two counts of violating section 4701.5.
DISCUSSION
I. The Instant Prosecution Was Not Barred by the Statute of Limitations
Defendant contends the court should have granted his motion at the preliminary hearing to dismiss the instant matter because it was barred by the statute of limitations. Defendant further argues the People failed to allege any facts in the information to explain why the matter did not violate the statute of limitations.
A. Sections 801 and 804
Section 801 provides that, with certain exceptions, "prosecution for an offense punishable by imprisonment in the state prison shall be commenced within three years after commission of the offense."
Section 804 states that for purposes of the statute of limitations, a felony prosecution commences "when any of the following occurs:"
"(a) An indictment or information is filed.
"(b) A complaint is filed charging a misdemeanor or infraction.
"(c) The defendant is arraigned on a complaint that charges the defendant with a felony.
"(d) An arrest warrant or bench warrant is issued, provided the warrant names or describes the defendant with the same degree of particularity required for an indictment, information, or complaint."
"A felony prosecution is not 'commenced' for purposes of the statute of limitations upon the mere filing of a felony complaint. [Citations.]" (People v. Johnson, supra, 145 Cal.App.4th at p. 900.) As relevant to this case, a felony prosecution commences when a valid arrest warrant is issued. (Id. at p. 901; People v. Smith (2002) 98 Cal.App.4th 1182, 1186; People v. Martinez, supra, 22 Cal.4th at pp. 764-765; People v. Lewis (1986) 180 Cal.App.3d 816, 821-822.)
By including an arrest warrant as a means of commencing an action within section 804, the Legislature "intended to require a finding of probable cause by a neutral judicial officer or body within the limitations period. [Citation.]" (People v. Johnson, supra, 145 Cal.App.4th at p. 901.) The California Supreme Court has held that the particularity requirement was satisfied by the timely filing of a "John Doe arrest warrant that described the person suspected of committing the offenses perpetrated against [the victim] solely by his unique DNA profile and its random match probability." (People v. Robinson (2010) 47 Cal.4th 1104, 1142-1143.)
B. Augmentation of the Record
On appeal, defendant argues that the court erroneously rejected his statute of limitations arguments when it denied his motion to dismiss at the preliminary hearing. Defendant acknowledges that the court denied his motion because it found an arrest warrant was issued in 2009. However, defendant argues there is no evidence that a valid arrest warrant was issued in this case, or that such a warrant was before the court when it denied his motion to dismiss.
When the record on appeal was prepared, it included the entirety of the superior court's docket entries, including entries that stated the felony complaint was filed and the arrest warrant was issued on July 8, 2009 in case No. SF015144A. However, the appellate record did not include the arrest warrant itself.
In response to defendant's appellate arguments about the absence of the arrest warrant, the People filed a motion to augment the appellate record with both the arrest warrant and the entirety of the superior court's docket entries. Defendant opposed the People's motion "to re-open the record" with evidence that was not before the superior court.
When the People filed the motion to augment, the docket entries were already in the appellate record before this court. Upon the People's motion and good cause appearing, this court ordered the superior court to further augment the appellate record to include an augmented clerk's transcript consisting of the arrest warrant issued in case No. SF015144A, contained in the superior court's file, and for such material to be prepared, certified, and transmitted to this court and the parties.
C. The Arrest Warrant
The arrest warrant that has been augmented to the record states it was issued in the Superior Court of Kern County, North Division, Shafter Branch, in case No. SF015144A.
The arrest warrant identified defendant by his full name, date of birth and Social Security number; his residence address was listed as "in custody" in Tulare County.
The arrest warrant stated it was for two offenses: count I, a violation of section 4501.5, battery by prisoner, and count II, a violation of section 69, obstructing or resisting an executive officer.
The same two offenses were alleged in the felony complaint.
The arrest warrant stated:
"A verified complaint was made before me on this date that the offense set forth above was committed, and accusing the defendant, named and described above, you are ordered to arrest the defendant forthwith and bring him before me,... or ... before the nearest or most accessible magistrate in this county." (Italics added.)
The warrant stated that it could be served at night pursuant to section "840(4))," defendant would be admitted to bail of $50,000, and a mandatory appearance was required.
The warrant was signed by superior court Judge Gary A. Ingle, with the following typed time/date notation: "05/21/09 16:27." The time and date were not file-stamped.
D. The Complaint
As noted above, the complaint in this case charged defendant with count I, battery by a prisoner on Sergeant Smith (§ 4501.5), with a great bodily injury enhancement (§ 12022.7); and count II, preventing Officers Smith and Angello from performing a duty imposed by law (§ 69); with three prior prison term enhancements (§ 667.5, subd. (b)) and one prior strike conviction.
The complaint was filed-stamped on July 8, 2009, at 9:23 a.m. in the Shafter-Wasco Branch of the Superior Court of Kern County. The complaint states it was "executed" on June 4, 2009, at Shafter.
E. The Docket Entries
Also as noted above, the record prepared for the instant appeal contained the entirety of the docket entries for case No. SF015144A.
In the docket synopsis, there are two separate entries for July 8, 2009, that state the felony complaint was filed and the arrest warrant was issued.
An individual docket entry states that at 9:30 a.m. on July 8, 2009, the complaint was filed, and the case was submitted "to Judge Gary A. Ingle for review."
The next docket entry states that at "14:00" (2:00 p.m.), the file was "returned from Judge Ingle. [¶] Arrest warrant issued by Hon. Gary A. Ingle. Bail set in the amount of $50,000.00. Maybe served at night (PC 840(4)). Mandatory appearance required." These provisions were also stated on the face of the arrest warrant.
F. Analysis
Defendant argues the arrest warrant was invalid because the warrant states that it was issued on May 21, 2009, prior to the filing of the complaint in this case.
Defendant allegedly assaulted the officers at the hospital on November 30, 2008. It is undisputed that the felony complaint was filed in the superior court on July 8, 2009.
At the preliminary hearing, the court made a tentative finding that the matter was not time-barred because the matter was commenced within the three-year limitations period, based on when the felony complaint was filed. As defendant correctly notes, the court's tentative finding was erroneous because a felony prosecution is not "commenced" within the meaning of section 804 "upon the mere filing of a felony complaint. [Citations.]" (People v. Johnson, supra, 145 Cal.App.4th at p. 900.)
This conclusion does not end our analysis. A felony prosecution commences for purposes of the statute of limitations based on the issuance of an arrest warrant. (§ 804, subd. (d); People v. Martinez, supra, 22 Cal.4th at pp. 764-765.) As the preliminary hearing in this case continued, the court reviewed its file and found that an arrest warrant "was issued by Judge Ingle on July 8th, 2009...."
At oral argument, appellate counsel stated that the statute of limitations defect could not be waived. (See, e.g., People v. Williams (1999) 21 Cal.4th 335, 338; People v. Leonard (2014) 228 Cal.App.4th 465, 483.) We note that defense counsel did not object to the court's factual finding about the arrest warrant at the preliminary hearing, or argue there was no evidence that a warrant was issued on July 8, 2009, defendant was not described with particularity, or that the warrant was otherwise invalid. In addition, when defendant filed a motion to dismiss based on the alleged violation of his right to speedy trial, he asserted that the district attorney's office "filed the Complaint on July 8, 2009 .... Later that day, the Court issued an arrest warrant of [defendant]."
The entirety of the record before this court supports the superior court's finding that Judge Ingle issued an arrest warrant for defendant in case No. SF015144A on July 8, 2009, and the matter commenced on that date and within the three-year limitations period. The warrant described defendant with particularity, identified the case number and charges against him, and was signed by Judge Ingle.
The warrant contains the printed notation that Judge Ingle signed it on May 21, 2009, at "16:27," i.e., 4:27 p.m. However, the entirety of the record establishes the printed time and date notations were typographical errors. As we have explained, the file stamp on the complaint states it was filed at 9:23 a.m. on July 8, 2009, the arrest warrant states the same two offenses alleged in the complaint, and the warrant signed by Judge Ingle further states that it was issued upon the complaint "made before me on this date..."
The docket entries reflect that the complaint was filed at 9:30 a.m. on July 8, 2009; the complaint itself was time-stamped at 9:23 a.m. The docket entries further reflect the matter was submitted to Judge Ingle for review; Judge Ingle returned the file at "14:00," i.e., 2:00 p.m.; and that Judge Ingle issued an arrest warrant. The docket entries state the same details about the arrest warrant that are contained in the warrant itself: the amount of bail, authority for night service, and requirement for the mandatory appearance.
We thus conclude that the record establishes that on July 8, 2009, both the felony complaint was filed and the arrest warrant was issued.
Defendant contends that aside from the existence of an arrest warrant, the People still had the burden to plead facts in the information to demonstrate that the matter was not barred by the statute of limitations. Defendant argues the information was "instantly" defective since it showed on its face that the alleged offenses occurred in 2008 and the information was filed in 2013. Defendant argues the court should have dismissed the case because of the failure to commence the matter within the limitations period.
Defendant raised the statute of limitations issue at the conclusion of the preliminary hearing, before the information was filed, and the court denied his motion. The People's failure to plead facts in the information to show the matter was not time-barred is not determinative since the court had already held at the preliminary hearing that the arrest warrant was issued in 2009 and the prosecution was not barred by the statute of limitations. As we have explained, the entirety of the appellate record supports the court's finding that the prosecution was not time-barred. (See, e.g., People v. Lewis, supra, 180 Cal.App.3d at pp. 821-822; People v. Lynch (2010) 182 Cal.App.4th 1262, 1273-1274; cf., People v. Williams, supra, 21 Cal.4th at p. 341.)
We agree with the trial court that an arrest warrant was issued on July 8, 2009, so that the instant matter commenced on that date, the prosecution was not barred by the three-year statute of limitations, and the court properly denied defendant's motion to dismiss based on the statute of limitations.
Section 803, subdivision (d) states: "If the defendant is out of the state when or after the offense is committed, the prosecution may be commenced as provided in Section 804 within the limitations of time prescribed by this chapter, and no time up to a maximum of three years during which the defendant is not within the state shall be a part of those limitations." During the course of this action, the court and the parties discussed that defendant was in prison in Arizona at some point between 2009 and 2013. However, the People never introduced any admissible evidence on this matter or argued the statute of limitations was tolled for this reason. --------
II. Defendant's Speedy Trial Rights Were Not Violated
Defendant next contends the superior court should have granted his pretrial motion to dismiss the action because his state constitutional right to a speedy trial was violated by the delayed prosecution, and he was prejudiced as a result of the delay.
While defendant's appellate argument only addresses his speedy trial right under the state Constitution, he also refers to the applicable standards to evaluate the denial of a speedy trial under the federal Constitution and the state statutes. We will review both the state and federal constitutional rights to a speedy trial, plus the state statutory rights, to clarify the applicable standards of review.
A. Constitutional and Statutory Provisions
"[T]he primary safeguards" against "prosecutorial delay" are "statutes of limitation and the constitutional guarantee of a speedy trial." (People v. Booth (2016) 3 Cal.App.5th 1284, 1302.) If a felony complaint has been filed "but an arrest warrant has not issued, the statute of limitations protects the defendant against excessive delay, without the need to demonstrate prejudice." (People v. Martinez (2000) 22 Cal.4th 750, 768, fn. 1 (Martinez).)
We have already found that the arrest warrant was issued within the limitations period. We now turn to the constitutional and statutory speedy trial guarantees.
"The state and federal Constitutions both guarantee criminal defendants the right to a speedy trial (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15, cl. 1)...." (Martinez, supra, 22 Cal.4th at p. 754.) "Additionally, '[t]he statutory speedy trial provisions ... are "supplementary to and a construction of' the state constitutional speedy trial guarantee.' [Citation.]" (Craft v. Superior Court (2006) 140 Cal.App.4th 1533, 1539.)
Both the federal and state constitutional guarantees "operate in state criminal prosecutions [citation], but there are two important differences in the operation of the state and federal constitutional rights as construed by our courts." (Martinez, supra, 22 Cal.4 at p. 754.)
"The first difference concerns the point at which the speedy trial right attaches. Under the state Constitution, the filing of a felony complaint is sufficient to trigger the protection of the speedy trial right. [Citations.]" (Martinez, supra, 22 Cal.4th at p. 754, original italics.)
"Under the federal Constitution, however, the filing of a felony complaint is by itself insufficient to trigger speedy trial protection. [Citation.]" (Martinez, supra, 22 Cal.4th at p. 754, original italics.) A defendant's speedy trial right under the Sixth Amendment also does not attach upon the issuance of an arrest warrant. (Martinez, supra, at p. 765.) "The United States Supreme Court has defined the point at which the federal speedy trial right begins to operate: '[I]t is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment.' [Citation.]" (Id. at pp. 754-755.)
"The second difference is in the showing that a defendant must make to obtain a dismissal for violation of the speedy trial right. (Martinez, supra, 22 Cal.4th at p. 755, original italics.) "Under the federal Constitution, the defendant need not identify any specific prejudice from an unreasonable delay in bringing the defendant to trial after the speedy trial right has attached. [Citation.] Instead, delay that is 'uncommonly long' triggers a presumption of prejudice, with the presumption intensifying as the length of the delay increases. [Citation.]" (Id. at pp. 765-766, first italics in original, second italics added.)
"Under the state Constitution, by comparison, the showing [of prejudice] that the defendant must make depends upon whether the allegedly unreasonable delay occurred before or after the defendant's statutory speedy trial rights attached." (Martinez, supra, 22 Cal.4th at p. 766, original italics.)
"The statutory speedy trial provisions ... [in] sections 1381 to 1389.8, are 'supplementary to and a construction of' the state constitutional speedy trial guarantee. [Citations.] [S]ection 1382, subdivision (a), provides that a court 'shall order the action to be dismissed' if an information is not filed within 15 days after the accused 'has been held to answer for a public offense,' or if a defendant charged with a felony 'is not brought to trial within 60 days of the defendant's arraignment on an indictment or information ....' No affirmative showing of prejudice is necessary to obtain a dismissal for violation of the state constitutional speedy trial right as construed and implemented by statute. [Citation.] Instead, 'an unexcused delay beyond the time fixed in section 1382 of the Penal Code without defendant's consent entitles the defendant to a dismissal.' [Citation.]" (Martinez, supra, 22 Cal.4th at p. 766, original italics.)
"Because the state constitutional speedy trial right is self-executing and broader than its statutory implementation, a defendant may claim a violation of the state Constitution's speedy trial right based on delay not covered by any statutory speedy trial provision. [Citation.]" (Martinez, supra, 22 Cal.4th at p. 766.)
"Thus, a defendant charged with a felony may predicate a claimed [state constitutional] speedy trial violation on delay occurring after the filing of the complaint and before the defendant was held to answer the charge in superior court. In this situation, when the claimed speedy trial violation is not also a violation of any statutory speedy trial provision, this court has generally required the defendant to affirmatively demonstrate that the delay has prejudiced the ability to defend against the charge. [Citation.] In particular, we have held that when a defendant seeks dismissal based on delay after the filing of the complaint and before indictment or holding to answer on felony charges, a court must weigh 'the prejudicial effect of the delay on defendant against any justification for the delay.' [Citation.] No presumption of prejudice arises from delay after the filing of the complaint and before arrest or formal accusation by indictment or information [citation]; rather, the defendant seeking dismissal must affirmatively demonstrate prejudice [citation]." (Martinez, supra, 22 Cal.4th at pp. 766-767, italics added.)
"The showing of actual prejudice ... must be supported by particular facts and not ... by bare conclusionary statements." (Crockett v. Superior Court (1975) 14 Cal.3d 433, 442.) "Among other things, '"[p]rejudice [for due process or speedy trial violation claims] 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.]' [Citation.] The overarching theme is that the loss of such evidence, especially where the defendant or victims cannot independently recall details of the crime, makes it difficult or impossible for the defendant to prepare a defense thus showing prejudice. [Citation.]" (People v. Mirenda (2009) 174 Cal.App.4th 1313, 1328-1329.)
" ' "Even a minimal showing of prejudice may require dismissal if the proffered justification for delay is insubstantial. By the same token, the more reasonable the delay, the more prejudice the defense would have to show to require dismissal." [Citation.]' [Citation.] However, '[t]he trial court must engage in the balancing process only if the defendant has shown actual prejudice. [Citation.] The reason is simple; "If defendant fails to show prejudice, the court need not inquire into the justification for the delay since there is nothing to 'weigh' such justification against." [Citation.]' [Citation.]" (People v. Mirenda, supra, 174 Cal.App.4th at p. 1327-1328, italics added.)
"When a speedy trial claim requires a demonstration of prejudice, the trial court has discretion to defer hearing the motion until after the trial: 'It is proper for the trial court to wait to appraise the reasonableness of the delay in light of what would be disclosed at and after the trial, which places [the court] in an excellent position to rule on a renewed motion.' [Citation.] ... 'A trial court may conclude that the motion to dismiss is best considered after trial, at which time it has the opportunity to determine whether material witnesses were missing or had poor memories or there was other prejudice caused by postcomplaint delay in the context of the case as a whole.'" (Martinez, supra, 22 Cal.4th at pp. 769-770.)
"Thus, as a practical matter, a defendant is required to affirmatively demonstrate prejudice in support of a state speedy trial claim only if the delay occurred during a time when the defendant was either unaware of a pending felony complaint and arrest warrant or chose not to take any action that would trigger the statutory speedy trial provisions." (Martinez, supra, 22 Cal.4th at p. 768, fn. 1, italics added.)
B. Analysis
In his opening brief, defendant contends that his right to a speedy trial, as guaranteed by article I, section 15 of the California Constitution, was violated by the instant prosecution. Defendant asserts the court should have granted his pretrial motion to dismiss because People failed to offer any excuses for the delayed prosecution, he was not required to prove any prejudice given the absence of any justification, and the court's balancing process would have resulted in his favor because the prejudice outweighed the absence of any justifications for the delay.
In making these arguments, defendant mixes the standards for the constitutional and statutory speedy trial rights. In his motion before the superior court, defendant claimed both his federal and state constitutional rights to a speedy trial had been violated. Defendant also argued that a presumption of prejudice arose, and the People failed to prove any justification for the delay. On appeal, defendant similarly argues the court should have granted his pretrial motion for dismissal since the prosecutor failed to offer any reasons for the delay prosecution.
As we have explained, however, a presumption of prejudice only arises upon a violation of a defendant's federal constitutional right or state statutory right to a speedy trial. Defendant cannot rely on the federal Constitution because his speedy trial right under the Sixth Amendment did not attach until the filing of the information in 2013. (Martinez, supra, 22 Cal.4th at pp. 754-755.) The state statutory speedy trial protections attach when the defendant is held to answer or upon the filing of the information, both of which also occurred in 2013. (Id. at p. 766.) Thus, defendant cannot claim that a presumption of prejudice arose from the delay since neither the federal constitutional right nor the state statutory rights were applicable in this case.
Instead, defendant's speedy trial claim was limited to the state constitutional right, which attached upon the filing of the felony complaint in 2009. (Martinez, supra, 22 Cal.4th at p. 754.) Under the state Constitution, however, a presumption of prejudice does not arise and the defendant is required to affirmatively demonstrate actual prejudice. (People v. Mirenda, supra, 174 Cal.App.4th at pp. 1327-1328.)
As for defendant's arguments about his claim of prejudice against the People's failure to offer any justification for the delay, "the burden shifts to the prosecution to justify the delay" only after defendant makes a showing of actual prejudice. (People v. Roybal (1998) 19 Cal.4th 481, 512-513.) "The defense has the initial burden of showing prejudice from a delay in bringing the defendant to trial. Once the defense satisfies this burden, 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.)
We thus turn to defendant's claims of prejudice in his motion to dismiss and on appeal, independent of his arguments about the People's failure to offer justifications for the delay. In his pretrial motion, defendant argued he suffered actual prejudice based on Sergeant Smith's preliminary hearing testimony, where he was unable to remember the name of the person who diagnosed his broken leg. Defendant also claimed prejudice based on a declaration from a defense investigator who interviewed Maria Murillo, a nurse at the hospital, because she lacked an independent memory of the assault. Sergeant Smith's inability to recall the name of a physician at the preliminary hearing fails to establish prejudice, since such evidence would have been readily available through discovery of his medical records about the injuries he suffered in the assault, and which formed the basis for the great bodily injury enhancement. At trial, defendant did not attempt to undermine Smith's testimony about his injuries either through cross-examination or the introduction of any defense evidence. In addition, the jury found the great bodily injury enhancement was not true, thus negating defendant's claim of prejudice on this point.
As for Ms. Murillo, the defense did not call her at either the preliminary hearing or the trial, or introduce any evidence that she was present during the assault. Indeed, there was no evidence that any member of the hospital staff was present when the officers entered defendant's hospital room and the assault occurred. Defendant failed to establish actual prejudice in his pretrial motion for dismissal.
Defendant next argues the court should not have summarily denied his pretrial motion, but instead given him the opportunity demonstrate through the trial evidence that he suffered prejudice because of the witnesses' memory loss. We note that defendant's motion sought the immediate dismissal of the action prior to trial. The People argued there was no evidence of prejudice, but in the alternative asked the court not to make any findings on prejudice until after the introduction of the trial evidence. In response, defendant did not join this request but instead argued the court had to grant his pretrial motion to dismiss because the People failed to offer any justification for the delayed prosecution.
In any event, our review of the record refutes defendant's appellate claims of prejudice. Defendant argues that he was prejudiced by the delay because "[v]irtually every witness, for the prosecution and the defense, cited memory failure as to the details of the events." As an example, defendant cites Sergeant Smith's trial testimony about his brief conversation with Officer Angello shortly before the trial, when he asked him what happened during the assault.
Sergeant Smith's alleged memory failure was apparently the result of being knocked out and not from any delay in the prosecution. As explained in the factual statement above, Smith testified that about a week before the trial, Smith briefly spoke to Officer Angello about the case and asked what happened: "I said, I can't remember. [Angello] said, yeah, I think you got knocked out." Smith testified that Angello also said that it had been "almost six years and we can't hardly remember anything, what happened that night." Defense counsel extensively cross-examined Smith about these issues, and the inconsistencies between his report and his trial testimony. Smith explained that his reports had gaps about the incident because he was required to write it the day after the assault, he was upset about possibly contracting HIV or hepatitis because he was bitten by defendant, and he did not realize that he had been knocked out when his head hit the floor.
Sergeant Smith testified without reservation about the events that occurred prior to his head hitting the floor and being knocked out. More importantly, Officers Angello and Sanchez testified about aspects of the assault that Smith either did not see or could not remember. Smith testified that he did not see what happened to Angello. However, Angello testified that defendant swung at Smith, Angello tried to grab defendant, and defendant threw Angello against the wall. Sanchez testified he stood at the doorway, and listened to and watched the entire incident: defendant stood in a fighting stance, swung at Smith, threw Angello against the wall, slammed Smith to the floor and wrestled with him, and other officers had to restrain defendant.
Defendant cross-examined the officers on their testimony about the assault, and his attempts to show inconsistencies between their accounts raised questions for the jury and did not show actual prejudice from the delayed prosecution.
As another example of prejudice, defendant cites the conflicts between his own trial testimony and the testifying officer as further evidence of the memory loss suffered by the prosecution's witnesses because of the delayed prosecution:
"The version of events given by [defendant] in his own testimony differed substantially from the version offered by Smith and Angello and seemed to indicate [defendant's] belief that he was defending himself - rationally or otherwise - from what he perceived as a threat to his life from Angello and Smith.... In a situation where the stories differ so profoundly, confrontation and cross-examination becomes a very important precursor to a fundamentally fair trial. Yet, as a result of the six year delay, the two principal witnesses' recollection of the details was so bad, they had to consult each other in what appears to be a fruitless effort to recover some independent recollection of what transpired...."
In making this argument, defendant cites to portions of Sergeant Smith's trial testimony, where he explained that he could not remember everything because he was knocked unconscious when his head hit the floor, and that he did not even realize he was knocked out when he wrote his own report about the incident. Defendant concludes that Smith's memory loss was prejudicial since Smith testified that he never punched or kicked defendant, whereas defendant testified that Smith and Angello assaulted him without provocation.
Defendant's attempt to claim prejudice on these points is meritless. Sergeant Smith, Officer Angello, and Officer Sanchez testified defendant aggressively attacked the officers as soon as they entered his hospital room. Defendant testified to an entirely different scenario: that Smith and Angello threatened his life when he was admitted to the hospital, and they entered his room and beat him for no reason. These conflicting accounts were not the results of the officers' purported memory loss, but raised questions of fact for the jury to resolve on the charged offenses and defendant's claim of self-defense.
Defendant argues that his defense case was prejudiced by the delay because his own defense witnesses were unable to remember important details, and complains that the physicians and nurses lacked independent memories about him and had to rely on his medical records. These witnesses were not present during the assault and did not testify about what happened in his hospital room. Instead, their testimony focused on his diagnosis, treatment, and prescribed medications, and that there was no record that defendant claimed he was allergic to Levaquin. Defendant fails to explain why their reliance on his medical records, prepared in the course and scope of their duties as health care professionals, was insufficient.
We find defendant failed to show actual prejudice and his motion to dismiss for violation of his state constitutional right to a speedy trial was properly denied. III. Denial of Pitchess Motion
Defendant next contends the court should have granted his motion for disclosure of the personnel records for both Sergeant Smith and Officer Angello, and requests this court to review the sealed transcript of the superior court's in camera hearing and the sealed and confidential records reviewed by the court.
A. Background
Defendant filed a pretrial motion for discovery of the personnel records of Sergeant Smith and Officer Angello, as to their lack of credibility, prior wrongful acts involving moral turpitude, dishonesty, untruthfulness and false testimony, and racial discrimination, pursuant to Pitchess. The motion was supported by defense counsel's declaration that the officers' versions of events were false and misleading.
The Attorney General's office, as custodian of records, filed opposition to disclosure and, in the alternative, requested the court conduct an in camera hearing of any records.
On October 30, 2013, the court partially granted defendant's motion to conduct an in camera review of the personnel records for Sergeant Smith and Officer Angello for any complaints involving dishonesty. Thereafter, the court conducted the in camera hearing.
After the in camera hearing, the court ordered the transcript of the in camera hearing sealed, and advised the parties that it was denying defendant's Pitchess motion.
B. Analysis
On appeal, this court is required to review the "record of the documents examined by the trial court" and determine whether the trial court abused its discretion in refusing to disclose the contents of the officer's personnel records pursuant to Pitchess. (People v. Hughes (2002) 27 Cal.4th 287, 330; People v. Mooc (2001) 26 Cal.4th 1216, 1228-1229.)
Both the transcript of the trial court's confidential in camera hearing and the confidential materials reviewed by the court have been transmitted to this court under seal. We have reviewed the entirety of the record under seal and independently conclude the court did not abuse its discretion when it denied defendant's Pitchess motion. (People v. Prince (2007) 40 Cal.4th 1179, 1286.)
Both the transcript of the in camera hearing and the confidential materials shall remain sealed pending further order of the court.
DISPOSITION
The judgment is affirmed.
/s/_________
POOCHIGIAN, Acting P.J. WE CONCUR: /s/_________
FRANSON, J. /s/_________
SMITH, J.