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People v. Love

California Court of Appeals, Fourth District, Second Division
Feb 25, 2011
No. E051371 (Cal. Ct. App. Feb. 25, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from the Superior Court of Riverside County. No. RIF143894, Ronald L. Taylor, Judge. (Retired judge of the Riverside Super. Ct., assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.).

Rod Pacheco, District Attorney, and Alan D. Tate, Senior Deputy District Attorney, for Plaintiff and Appellant.

Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Respondent.


OPINION

HOLLENHORST J.

After being charged with drug-related offenses, defendant Dante Deon Love moved to dismiss the felony complaint on a number of grounds related to his state and federal constitutional rights to a speedy trial. On June 22, 2010, the trial court granted his motion on the grounds of prejudice and no justification for the delay. Plaintiff People of the State of California appeal, contending the trial court committed legal error and abused its discretion in finding prejudice. We agree and reverse the granting of the order.

I. PROCEDURAL BACKGROUND AND FACTS

Because this case was dismissed prior to trial, a full statement of facts is unnecessary.

In May 2008, defendant was living in Riverside County, California, when he became a suspect in an assault case in Los Angeles County. In connection with the assault case, police received a warrant to search defendant’s home and vehicle. During that search, they discovered a substance suspected to be methamphetamine, along with other drugs and paraphernalia, located in a safe in the master bedroom. Defendant was arrested and transported to Los Angeles County, where a criminal complaint alleging assault and violation of the state’s “Three Strikes” law was filed against him on May 19, 2008.

Shortly thereafter, on July 10, 2008, the Riverside County District Attorney charged defendant with possession for sale of methamphetamine (Health & Saf. Code, § 11378) and possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). It was further alleged that defendant was in violation of the state’s Three Strikes law.

On January 26, 2009, following trial in Los Angeles County on the assault charge, defendant was convicted of two counts of assault with a firearm, in violation of Penal Code section 245, subdivision (a)(2), and unlawful possession of a firearm by a felon, in violation of Penal Code section 12021, subdivision (a)(1). The prior “strike” allegations were found to be true, and defendant was sentenced to a total term of 80 years to life in state prison.

Both parties concede that defendant’s conviction in the Los Angeles County assault case was confirmed by the Second District Court of Appeal on August 3, 2010, in a nonpublished opinion. (People v. Love (Aug. 3, 2010, B214190 [nonpub. opn.].)

On November 30, 2009, 10 months after defendant’s conviction in Los Angeles County, defendant was transported to and arraigned in Riverside County. The Riverside County felony complaint was superseded by information filed on December 24, 2009, which contained the same counts and special allegations, and to which defendant pleaded not guilty. On June 9, 2010, defendant moved to dismiss the charges based on the denial of his right to a speedy trial. At the hearing on June 22, defendant clarified that he sought dismissal under the California, not federal, constitutional right to a speedy trial. The People responded that whether defendant would have received a favorable plea bargain or concurrent sentence in the present action had he been brought to trial promptly was speculative and insufficient to establish prejudice, and that defendant could show prejudice only if he had served his entire sentence in the Los Angeles case and then was brought to trial in the present action. The People conceded they had waited 18 months after the filing of the Riverside County felony complaint, and 10 months after defendant’s conviction in Los Angeles County, to transfer defendant to Riverside County. The People explained one reason for the delay was that defendant was being prosecuted in Los Angeles County and was supposedly not available to Riverside County. Regarding defendant’s claims that he was unaware of the Riverside County charges, the People replied defendant was at home when the drugs were found at the time of his arrest in the Los Angeles County action and he was arrested for possession of methamphetamine; thus, given defendant’s prior criminal record, he should have known of the Riverside County charges.

According to defendant, the transportation and arraignment to Riverside County constituted the first time he was made aware of the felony drug charges against him. Thus, he argues that he could not have filed a demand under Penal Code section 1381 that he be brought to trial in this action. (People v. Cave (1978) 81 Cal.App.3d 957, 964 [Penal Code section 1381 requires notice of pending charges].)

Rejecting the People’s arguments, the trial court granted the defense motion to dismiss, stating: “I’m going to find that there is actual prejudice to the defendant here. And I don’t even think it’s a close call. [¶] As I said, had he been charged with this crime at the time of the [Los Angeles County] case, these would have been subordinate terms to the [Penal Code section] 245[, subdivision] (a)(2). And I don’t even know if that was the original count or whether this was an attempted murder and they busted it down to a [Penal Code section] 245[, subdivision] (a)(2) and there was some sort of negotiated plea or not. [¶] But clearly, the search of his home in Moreno Valley was incident to his arrest for the [Los Angeles County] case, and it was during the search of his home that this contraband was discovered. [¶] I agree it is a separate crime from the [Los Angeles County] crime. There’s no nexus between the [Los Angeles County] crime and the [Riverside County] crime, per se, except that, as we’ve already discussed, [Los Angeles County] officers came here to search his home to see if they could locate evidence which would bolster their case in [Los Angeles County]. And therefore, it seems to me he was denied the opportunity to receive some sort of either concurrent or subordinate time in this case instead of facing a maximum exposure of 70 years to life. [¶] So I’m going to find that there’s actual prejudice. So that prong has been satisfied.” Also, the trial court stated that the People had failed to articulate reasons to justify the delay in bringing defendant to Riverside County.

II. STANDARD OF REVIEW

When a party challenges a dismissal based upon a violation of a defendant’s right to a speedy trial, the court reviews the record under an abuse of discretion standard. (Serna v. Superior Court (1985) 40 Cal.3d 239, 250-251.) Whether prejudice has been shown is a factual question to be determined by the trial court and its decision will not be overturned by an appellate court if supported by substantial evidence. (People v. Hill (1984) 37 Cal.3d 491, 499.) The role of the appellate court is not to reweigh the evidence but to ascertain whether the conclusions of the trial court are supported by particular facts. (Ibid.) However, “all exercises of legal discretion must be grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue.” (People v. Russel (1968) 69 Cal.2d 187, 195, superseded by statute on other grounds, as stated in People v. Anderson (2001) 25 Cal.4th 543, 575.)

III. MOTION TO DISMISS

The People contend the trial court erred in finding actual prejudice to defendant based on its belief that he had lost the opportunity to obtain a reduced or concurrent sentence in the current case due to the delay in prosecution.

“The right to a speedy trial is a fundamental right guaranteed by both the Sixth Amendment to the United States Constitution and article I, section 15 of the California Constitution. [Citation.] The purpose of the speedy trial right, applicable in both felony and misdemeanor prosecutions, is ‘(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.’ [Citations.] ‘To implement an accused’s constitutional right to a speedy trial, the Legislature enacted [Penal Code] section 1382.’ [Citations.]

“The federal and state constitutional speedy trial rights differ from each other in certain respects and also differ from the statutory right set forth in [Penal Code] section 1382 even though it was enacted to amplify those constitutional rights. [Citation.] One significant difference is ‘the point at which the speedy trial right attaches.’ [Citation.] ‘... Under the state Constitution, ... the filing of a felony [or misdemeanor] complaint is sufficient to trigger speedy trial protection.’ [Citations.] Notwithstanding ‘the United States Supreme Court has clearly rejected the proposition that the constitutional right to a speedy trial “... can be quantified into a specified number of days or months”’ [citation], [Penal Code] section 1382 enforces the speedy trial right with specific deadlines measured by days after certain events, including arraignment, declaration of a mistrial or entry of an order granting a new trial from which no appeal is taken, that differ depending on whether the case is a felony, on one hand, or a misdemeanor or infraction, on the other hand. [Citations.] [¶]... [¶]

“‘Under the state Constitution, ... the showing that the defendant must make depends upon whether the allegedly unreasonable delay occurred before or after the defendant’s statutory speedy trial rights attached.... 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.”’ [Citations.]

“However, ‘[b]ecause 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.] Thus, a defendant charged with a felony may predicate a claimed 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, [the California Supreme Court] has generally required the defendant to affirmatively demonstrate that the delay has prejudiced the ability to defend against the charge. [Citation.] In particular, [the court has] 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.” [Citations.] 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].’ [Citation.]” (People v. Benhoor (2009) 177 Cal.App.4th 1308, 1315-1317, fns. omitted.)

Here, in his motion to dismiss, defendant claimed he had “suffered actual prejudice as a result of the prosecution’s delay because the delay foreclosed his opportunity to receive a concurrent sentence to the 80 to life sentence that he received in his Los Angeles case.” The cases upon which defendant relied (Smith v. Hooey (1969) 393 U.S. 374 and Barker v. Municipal Court (1966) 64 Cal.2d 806) involved delays of six and 18 years, respectively. This case was at most an 18-month delay. In response, the People argued that defendant’s ability to receive a favorable plea bargain or concurrent sentence is “not enough to justify or establish that there’s been any prejudice.” The trial court disagreed, finding that both the Los Angeles and Riverside Counties’ cases against defendant included allegations under the Three Strikes law, which “denied the opportunity to receive some sort of either concurrent or subordinate time in this case instead of facing a maximum exposure of 70 years to life.”

On appeal, the People challenge the trial court’s ruling on the ground that defendant “could have never been sentenced concurrently under any circumstances.” In support of their challenge, the People cite People v. Lowe (2007) 40 Cal.4th 937, 946 (Lowe) (concurrent sentencing legally barred under Penal Code sections 667.6, subdivision (d), and 1170.12, subdivision (a)(6)-(8)) and People v. Deloza (1998) 18 Cal.4th 585, 595-596 (consecutive sentencing is mandatory under the Three Strikes law unless the crimes occurred on the same occasion or arose out of the same set of operative facts). The People argue that “prejudice based solely on the loss of the opportunity to serve a concurrent sentence in an unrelated case is insufficient to establish prejudice in a state constitutional speedy trial claim.” We agree with the People.

In Lowe, our state’s highest court rejected a defendant’s claim that under the California Constitution’s speedy trial right, “a pending criminal charge must be dismissed solely because the delay in bringing the defendant to trial has cost the defendant the chance to serve the sentence on that charge concurrently with the sentence in another case.” (Lowe, supra, 40 Cal.4th at p. 945.) Instead, our high court held “that a defendant claiming a speedy trial violation under the California Constitution must show that the delay has impaired the ability to defend against the charged crime because, for instance, a witness has become unavailable, evidence has disappeared, or the memory of a potential witness has faded.” (Id. at p. 946, fn. omitted.) Given the holding in Lowe, we conclude the trial court erred when it granted defendant’s motion to dismiss the charges solely on the ground that he lost a chance of concurrent sentencing. (People v. Contreras (2009) 177 Cal.App.4th 1296, 1305, fn. 8.)

We reject defendant’s argument as to why the Lowe decision should not apply in this case. First, we disagree that the two series of offenses for which defendant was charged occurred or arose at the same time. Defendant committed an assault in Los Angeles County. Later, while the police officers from Los Angeles County were executing a search warrant at defendant’s Riverside County home, methamphetamine was found. The offenses did not occur or arise at the same time. The potential sentences were not identical. While it is true that defendant faced three strikes allegations in each case, the fact remains the offenses were committed at separate times and in separate jurisdictions. The prosecution is under no obligation to try these cases together. Why should defendant be granted favorable sentencing treatment because a separate crime was discovered at the time he was being apprehended on a prior crime from a separate jurisdiction? Finally, we agree that Lowe allows a trial court to consider the loss of a potential concurrent sentencing opportunity in weighing prejudice; however, the defendant must first show “that the delay has impaired the ability to defend against the charged crime because, for instance, a witness has become unavailable, evidence has disappeared, or the memory of a potential witness has faded.” (Lowe, supra, 40 Cal.4th at p. 946, fn. omitted.)

Assuming this court reverses the trial court’s order, defendant, alternatively, asks for remand without prejudice to his “right to renew his motion and again seek dismissal, based on the impairment of his ability to defend against the present charges.” We deny his request. According to his original moving papers, “[t]he only effect of the prosecution’s delay has been to foreclose [defendant’s] ability to receive concurrent time.” If any other prejudicial effect from the prosecutorial delay had existed at the time of the moving papers, defendant would not have limited his argument to concurrent sentencing.

IV. DISPOSITION

The trial court’s order dismissing the case against defendant is reversed and the charges against him are reinstated.

We concur: RAMIREZ P.J., CODRINGTON J.


Summaries of

People v. Love

California Court of Appeals, Fourth District, Second Division
Feb 25, 2011
No. E051371 (Cal. Ct. App. Feb. 25, 2011)
Case details for

People v. Love

Case Details

Full title:THE PEOPLE, Plaintiff and Appellant, v. DANTE DEON LOVE, Defendant and…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Feb 25, 2011

Citations

No. E051371 (Cal. Ct. App. Feb. 25, 2011)