Opinion
C041124.
10-27-2003
THE PEOPLE, Plaintiff and Respondent, v. DAVID LEDESMA, Defendant and Appellant.
David M. Ledesma (defendant) was convicted by a jury of transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a) (count one)), possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a) (count two)), and one count of failure to appear (Pen. Code, § 1320, subd. (b) (count three)). Imposition of sentence was suspended and defendant was placed on probation on condition he serve 150 days in jail. On appeal, defendant argues the evidence was insufficient to support the convictions on counts one and two; his speedy trial rights were denied as to those counts; the statute of limitations barred count three; and the court erred by failing to divert him under Proposition 36. For the reasons stated below, we shall conclude these arguments lack merit, and therefore affirm the judgment.
BACKGROUND
Woodland Police Officer Jamison Mills was on patrol in his police car during the evening of January 18, 1998, when he observed a Ford Escort with a large ornament hanging from its rearview mirror. Mills determined the object was of such dimensions that it must be blocking the drivers view, so he decided to make a traffic stop. Before he could do so, however, the Escort made an abrupt left-hand turn and stopped in front of a residence. Mills made a u-turn, brought his patrol car to a stop, and observed the Escort. He saw the driver and passenger alight, walk to the front door of the residence, and return to the Escort 30 seconds later after no one answered. Mills pulled up behind the Escort. The driver alighted and walked towards Millss patrol car. Mills also alighted, met the driver halfway, and asked him to step to the curb.
A few moments later Mills saw a large baggie containing an off-white substance on the ground by the trunk of the Escort. Even though it had been raining off and on throughout the day, the baggie was dry. Mills handcuffed the driver and placed him in his patrol car. Mills then walked around to the passenger side of the Escort and asked the passenger—defendant—to put his hands up. On the ground next to the door Mills observed a small baggie containing a usable amount of methamphetamine. Like the package behind the trunk, the baggie was "completely dry," even though "the ground was all wet underneath it." Mills noted that he had not seen the driver approach the passenger door area when he and defendant went to the front door of the residence.
Based on these facts, defendant was charged with (and ultimately convicted of) possession and transportation of methamphetamine.
Defendant also was charged with possession for sale of methamphetamine but the People dismissed this count on March 26, 2002, due to insufficient evidence.
DISCUSSION
Sufficiency of the Evidence
Defendant argues the evidence was insufficient to establish that he possessed methamphetamine (let alone transported it) or that he knew of its nature as a controlled substance. Our review of these contentions is governed by settled standards. "`To determine sufficiency of the evidence, we must inquire whether a rational trier of fact could find defendant guilty beyond a reasonable doubt. In this process we must view the evidence in the light most favorable to the judgment and presume in favor of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. To be sufficient, evidence of each of the essential elements of the crime must be substantial and we must resolve the question of sufficiency in light of the record as a whole." (People v. Carpenter (1997) 15 Cal.4th 312, 387, quoting People v. Johnson (1993) 6 Cal.4th 1, 38; see Jackson v. Virginia (1979) 443 U.S. 307, 317-320.)
Defendants argument hinges on the absence of direct evidence tying him to the baggie of methamphetamine found on the ground outside the car in which he was sitting. The absence of direct evidence is not dispositive, however, because circumstantial evidence supported the jurys verdict. (People v. Meza (1995) 38 Cal.App.4th 1741, 1745-1746 [possession for sale and transportation of controlled substance convictions may be based on circumstantial evidence].) The jury could reasonably infer from the evidence that defendant had dropped the baggie containing the methamphetamine outside the door of the Escort in response to the traffic stop by Officer Mills, in the hope that it would not be discovered. The baggie was dry to the touch despite the wet ground and recent rains. The baggie was thus in temporal as well as physical proximity to defendant. These facts, coupled with the presence of the other dry baggie in the direct path taken by the driver, dispelled the possibility that the occupants of the Escort had happened to park in the exact spot where other unidentified third parties had (for unknown reasons) recently discarded their contraband. Since the occupants of the Escort had received no response from the residence, the jury could reasonably infer that the contraband had been in their possession in the moving Escort prior to arriving there. These facts support the conclusion that defendant knew of the presence of the methamphetamine and its nature as a controlled substance, and that he had possessed and transported it. (People v. Meza, supra, 38 Cal.App.4th 1741, 1745-1746.) Substantial evidence supports the convictions on counts one and two.
Speedy Trial
Defendant argues that the length of the delay from arraignment until trial violates his speedy trial rights under the federal Constitution. The record, however, discloses defendant was responsible for most of the delay; the government did not act intentionally or in bad faith for the delay for which it was responsible; defendant belatedly asserted his rights; and he suffered no prejudice.
Defendant was charged by information on March 24, 1998. He was arraigned the next day and pled not guilty. The court set a trial readiness conference for May 26, 1998, and calendared trial to commence June 9, 1998. Defendant expressly waived his speedy trial rights. The court released defendant on his own recognizance.
This two-month period of freedom proved too much for defendant to handle. About a month later, on April 27, 1998, defendant was arrested in Yolo County for several vehicle code violations, including having an open alcoholic beverage container in his vehicle (hereinafter referred to as the April 1998 Yolo traffic case).
One day later, defendant was arrested in Monterey County on a vandalism charge. Eight days after conviction on that charge, defendant was again arrested in Monterey County for driving with a suspended license. Although defendant served time in the Monterey County Jail, he was released from custody on May 24, 1998, two days before the scheduled May 26, 1998, trial readiness conference in the instant case.
Defendant failed to appear at that trial readiness conference, leading the court to recalendar the matter to May 29, 1998. The court also issued a bench warrant for defendants arrest but ordered a three-day hold to coincide with the recalendared conference.
Defendant also failed to appear on May 29, 1998. The court reissued a bench warrant for defendants arrest but this time did not place any hold on it.
On February 5, 2002, the court permitted the filing of an amended information which added a count based on defendants failure to appear on May 29, 1998. (Pen. Code, § 1320, subd. (b).)
Almost one year later, in April 1999, defendant was again arrested in Monterey County for vehicle theft and related offenses for which he received a 240-day jail term in June 1999.
On March 26, 2001, defendant returned to Yolo County to resolve the April 1998 Yolo traffic case. As part of the disposition of those cases, defendant was ordered to make payments to Yolo County which defendant commenced in April 2001. No action was taken regarding the Yolo County felony offenses in connection with the April 1998 Yolo traffic case.
On November 2, 2001, defendant was arrested in Santa Cruz for driving with a suspended license. While in jail, defendant was informed that the instant case remained pending in Yolo County. In response, defendant filed a formal request for speedy trial (Pen. Code, § 1381) on November 5, 2001.
Two weeks later, the People commenced proceedings to remove defendant from the Santa Cruz County Jail, leading to defendants return to Yolo County in time for a court appearance on December 14, 2001, where the court reset the trial readiness conference for January 14, 2002, and trial for February 5, 2002.
On January 31, 2002, appellant filed a motion to dismiss for lack of prosecution (hereafter, the speedy trial motion). After several continuances (to which defendant waived time), the court heard and denied appellants speedy trial motion on March 21, 2002. Defendant contends this ruling was in error.
"The Sixth Amendment to the United States Constitution guarantees that in `all criminal prosecutions, the accused shall enjoy the right to a speedy . . . trial . . . . In Barker v. Wingo (1972) 407 U.S. 514 [Barker], the high court announced a balancing test in determining whether a defendants right to a speedy trial under the Sixth Amendment had been violated. It identified four criteria to be considered: (1) length of the delay; (2) reason for the delay; (3) the defendants assertion of the right; and (4) prejudice to the defendant. (Id. at p. 530.)" (People v. McDermott (2002) 28 Cal.4th 946, 987.) The findings of a trial court with respect to speedy trial claims are given "considerable deference" by an appellate court. (Doggett v. U.S. (1992) 505 U.S. 647, 652 (Doggett ).)
Length of Delay
"Depending on the nature of the charges, the lower courts have generally found postaccusation delay `presumptively prejudicial at least as it approaches one year. [Citations.] We note that, as the term is used in this threshold context, `presumptive prejudice does not necessarily indicate a statistical probability of prejudice; it simply marks the point at which courts deem the delay unreasonable enough to trigger the Barker enquiry. [Citations.]" (Doggett, supra, 505 U.S. 647, 652, fn. 1.)
In the present case, the delay from the filing of the information to the commencement of trial was three years, which is sufficient to trigger consideration of the remaining three factors under Barker. (Doggett, supra, 505 U.S. 647, 652, fn. 1.)
Reasons for Delay
In examining the length of the delay, the trial court disregarded two time periods. The first stretched from the date defendant failed to appear (May 26, 1998) until his voluntary appearance in Yolo County on March 26, 2001, to resolve the April 1998 Yolo traffic case. The court discounted this time period because defendant "knew he had a case going" yet he "voluntarily absented himself from the court [during this time period.]" The second that was excluded from the speedy trial calculus commenced on November 5, 2001 (when defendant made his speedy trial demand), and ended the date the motion was heard.
The court did not consider the period from the filing of the information until the initial failure to appear in its calculations, but this is of no significance, since there was no delay attributable to the People. Defendant was charged by information on March 24, 1998, and arraigned the next day, on which he expressly waived his speedy trial rights up to the calendared trial date of June 9, 1998.
The court counted against the People the period in between the two excluded periods, commencing with defendants March 26, 2001, appearance in the Yolo traffic court, until the November 5, 2001, speedy trial demand. The court concluded this period of delay, which was just over seven months, was not "uncommonly long."
The court deemed it reasonable to attribute to the People the delay from that point forward, since defendant could have been arrested at that time. The court reached this conclusion even though it also acknowledged that in his experience the traffic court did not routinely perform warrant checks on defendants.
We believe the courts apportionment of the delay was proper. Defendant asserts that the court should have included in the calculus the time from his failure to appear in May 1998 until his voluntary appearance in Yolo County traffic court in 2001. Defendant asserts, as did trial counsel, that a simple warrant check would have revealed his whereabouts. Although defendants interactions with the authorities was ongoing, the encounters occurred in different jurisdictions and the periods of incarceration were relatively brief. In these circumstances, and in light of the deferential standard of review accorded the trial courts determinations (Doggett, supra, 505 U.S. 505, 652), we are not inclined to overturn the superior courts finding the reason for this period of delay was more properly attributed to defendant than the People.
Once defendant apprised the People of his whereabouts via his demand for speedy trial in November 2001, the People moved quickly to bring him to trial. He was transported back to Yolo County in mid-December, and defendant consented to the subsequent delays.
Assertion of Rights
The People contend that defendant, as a result of his oral waiver of speedy trial rights in May 1998 and his subsequent failure to appear, waived his right to a speedy trial.
To the extent the People suggest that defendants oral waiver of his right to a speedy trial disposes of any speedy trial claim, we are unpersuaded. Where a defendant "personally `waive[s] time, . . . he formally and knowingly relinquishe[s] his right to a speedy trial for the period covered by each continuance. As a result, he may not assert on appeal that the state violated that right." (People v. Seaton (2001) 26 Cal.4th 598, 633-634, italics added.) Thus, defendants oral waiver of his right to a speedy trial would be limited to the time from the waiver until the date set for trial, which was June 9, 1998.
On the other hand, "when the defendant knows about the pending case, responsibility for the delay may fairly be apportioned, his failure to assert his rights may be pivotal, and he will be in a position to protect his interests—if he so chooses.
"Even when the government can offer no good reason to justify the delay, in a given case the defendants own conduct may defeat his claim." (Ogle v. Superior Court (1992) 4 Cal.App.4th 1007, 1021.)
In this matter, defendant was aware of the pending case and he personally waived time in May 1998. Defendant twice failed to appear for trial readiness conferences in May 1998, even though he had been released from custody by the Monterey County authorities prior to his scheduled appearance dates. In such circumstances, the trial court properly found the delay mostly attributable to defendant.
Prejudice
At the hearing regarding defendants speedy trial motion, the trial court noted there were no allegations of specific prejudice. The court stated: "there has been no declaration filed by [defendant]. There is [sic] only statements in the defense motion that its reasonable to conclude that investigating officers and alleged victims will have significant difficulty remembering the incident.
"But [defendant] was there for his preliminary hearing. There was a preliminary hearing. So there hasnt been really actual prejudice or really any prejudice shown in the defense moving papers." Similarly, on appeal, defendant does not undertake to establish prejudice.
Conclusion
Although the length of the delay exceeded three years, the trial court properly discounted the time period for which responsibility for the delay was attributable to defendant. Defendant initially waived his speedy trial rights and neglected to assert them for several years, notwithstanding his knowledge of the charges. In the absence of prejudice to defendant, the trial court did not abuse its discretion in denying defendants speedy trial motion.
Statute of Limitations on the Penal Code Section 1320, subdivision (b) Offense
Defendant contends the three-year statute of limitations for the Penal Code section 1320, subdivision (b) offense expired because the amended information alleging this offense was not filed until February 2002, more than three years from the date of the offense in May 1998.
The People correctly respond that the prosecution on this charge commenced when the court issued a bench warrant for defendants arrest based on his failure to appear at the May 29, 1998, court hearing.
Penal Code section 804, subdivision (d) provides that prosecution for an offense is commenced when "[a]n 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." (Pen. Code, § 804.)
Penal Code section 804 provides: "For the purpose of this chapter, prosecution for an offense is commenced when any of the following occurs:
"(a) An indictment or information is filed.
"(b) A complaint is filed charging a misdemeanor or infraction.
"(c) A case is certified to the superior court.
"(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."
Defendant contends this provision is inapt because a bench warrant was never issued on the Penal Code section 1320 charge and a document setting forth the precise offense was not filed until the filing of the amended information in February 2002. The first contention is factually incorrect and the second is legally irrelevant.
The record discloses the court issued a no-bail bench warrant on May 29, 1998, after defendant failed to appear. As for the contention that the warrant must contain the charge upon which it is based, Penal Code section 804 imposes no such requirement. It specifies only that the defendant must be described with particularity. Similarly, Penal Code section 978.5, which authorizes the court to issue a bench warrant upon a defendants failure to appear, does not require that the charge be set forth in the warrant. Moreover, the obvious purpose of the bench warrant was defendants failure to appear; thus, even if the warrant had to give notice of the charge, defendant had notice of the Peoples contention that he had failed to appear by virtue of the bench warrant.
Penal Code section 978.5 provides: "(a) A bench warrant of arrest may be issued whenever a defendant fails to appear in court as required by law including, but not limited to, the following situations: [¶] . . . [¶]
"(3) If the defendant is released from custody on his own recognizance and promises to personally appear in court at a specific time and place. [¶] . . . [¶]
"(b) The bench warrant may be served in any county in the same manner as a warrant of arrest."
Defendant also misplaces reliance on People v. Le (2000) 82 Cal.App.4th 1352 (Le), for a contrary conclusion. In Le, the Court of Appeal reversed the defendants convictions and barred retrial because the county grand jury indictment was not issued within the three-year limitations period, and the Peoples evidence did not prove that this prosecution commenced within three years of the charged acts. The appellate court agreed with the defense argument that, although an earlier issuance of arrest warrants may have commenced a prosecution in municipal court intended to culminate in a preliminary hearing and the issuance of an information in superior court, it did not commence the prosecution that was the subject of the appeal, which began with a county grand jury indictment. (Id. at p. 1357.) Thus, Le involved a new prosecution after dismissal of an earlier proceeding. In the present case, there was no such dismissal.
Diversion
Defendants final contention is that he should have been diverted under Proposition 36, which was approved by the voters in November 2000. (People v. Superior Court (Jefferson) (2002) 97 Cal.App.4th 530, 535.) One of the statutory provisions approved as part of Proposition 36 is Penal Code section 1210.1, subdivision (a). (People v. Legault (2002) 95 Cal.App.4th 178, 180.) In subdivision (b) of this section the trial court is required to grant probation with a drug treatment condition to any person convicted of a "nonviolent drug possession offense" unless the person is disqualified from probation. Those persons disqualified from probation under subdivision (b) include: "(2) Any defendant who, in addition to one or more nonviolent drug possession offenses, has been convicted in the same proceeding of . . . any felony." (Pen. Code, § 1210.1, subd. (b)(2), italics added.) Thus, Proposition 36 excludes from its ambit any individual who is convicted in the same proceeding of a non-drug-related felony. Defendants failure-to-appear conviction (Pen. Code, § 1320, subd. (b)), a felony conviction, was rendered in the same proceeding as his possession and transportation of a controlled substance convictions. Defendant was thus statutorily ineligible for sentencing under Proposition 36.
DISPOSITION
The judgment is affirmed.
We concur NICHOLSON, J. and KOLKEY, J.