Opinion
H030957
10-30-2008
THE PEOPLE, Plaintiff and Respondent, v. EUGENIO BOTELLO LUNA, Defendant and Appellant.
Not to be Published
Defendant, Eugenio Botello Luna appeals from a judgment entered after he pleaded no contest to one count of sexual penetration by a foreign object using force, violence, or duress (Pen. Code, § 289, subd. (a)(1) and one count of burglary of an inhabited dwelling with intent to stalk. (Pen. Code, § 459.) Pursuant to a negotiated disposition, the trial court sentenced defendant to seven years and four months in prison. Defendant filed a timely notice of appeal and the trial court granted defendants request for a certificate of probable cause.
We appointed counsel to represent defendant in this court. Appointed counsel filed an opening brief which stated the case and the facts but raised no specific issues. Pursuant to People v. Wende (1979) 25 Cal.3d 436, we notified defendant of his right to submit written argument in his own behalf, but received nothing from defendant. After independently reviewing the entire record, we asked counsel for further briefing on the issue on which the trial court had granted the certificate of probable cause: specifically whether the trial court erred in denying the defendants motion to dismiss on speedy trial grounds. Finding this issue without merit, we will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant and victim, Jane Doe, had been involved in a sexual relationship, but after defendant threatened to kill her, she obtained a restraining order against him. In July 2002 defendant broke into Janes home and awakened her by hitting her head, throwing her on the floor, and then restraining, punching, pulling her hair and threatening to kill her. He also digitally penetrated her vagina, saying that he wanted to see whether she had been intimate with anyone else. After he began choking her, she pretended to be unconscious. Defendant stopped his attack on her, but threatened her with death if she contacted the police.
The complaint filed in 2002 by the Monterey County District Attorney alleged nine counts against defendant. However, defendant was not arrested until March 2006. Defendant moved to dismiss the complaint based on a violation of his state and federal constitutional rights to a speedy trial. In that motion, defendant contended that the police either knew or should have known his actual place of residence. He argued that Jane had known where he lived because she had him served with the restraining order at his proper residence and he had listed his correct address when he was arrested in 1996 for a traffic violation. He argued that the delay of time between the offense and his arrest was unjustified and had caused his memory to fade and information to be lost. Finding no constitutional violation or prejudice, the court denied the motion.
Thereafter, defendant was arraigned and entered a not guilty plea. He did not waive time, and the case was set for jury trial. The day before the date set for trial call, the defendant filed a second motion to dismiss based on an alleged violation of state and federal constitutional rights to a speedy trial. After the trial court denied the motion, the parties agreed to a general time waiver. Some time later, defendant entered a plea of no contest pursuant to a negotiated disposition to two of the eight counts alleged. This appeal ensued.
DISCUSSION
In our request for supplemental briefing, we asked the parties to address the question of whether the trial court erred in denying the defendants motion to dismiss on the ground that his speedy trial rights were violated. The erroneous denial of a motion to dismiss for violation of a defendants speedy trial rights warrants relief on appeal if it results in a "miscarriage of justice." (Cal. Const., art. VI, § 13; People v. Martinez (2000) 22 Cal.4th 750.769.) Usually, the denial of such a motion in a felony case does not result in the miscarriage of justice because the prosecution can simply refile the charges. (People v. George (1983) 144 Cal.App.3d 956, 959-960.) However, because of the four year delay in apprehending the defendant here, had the trial court granted the motion to dismiss on speedy trial grounds, the prosecution would have been precluded from refiling charges against defendant on eight of the nine counts alleged because of the expiration of the statute of limitations on those counts. (See Pen. Code, §§ 801; 802, subd. (a); 804 [one and three year statutes of limitation].) The only count remaining would have been the count charging penetration by a foreign object by means of force, violence, duress, which has a statute of limitations of six years. (Pen Code §§ 800, 289, subd. (a)(1).) "In a case where the statute of limitations would have been a bar to a new prosecution if the motion to dismiss had been granted, the erroneous denial of the motion would be prejudicial to the defendant." (People v. Wilson (1963) 60 Cal.2d 139, 152-153, fn. omitted.) With a complaint alleging only one of the counts to which defendant pleaded, it is unlikely he would have accepted the same plea bargain. Therefore, if the motion had been improperly denied, it would be a prejudicial miscarriage of justice.
The respondent contends that the speedy trial issue is not cognizable on appeal here because it is not an issue which can be raised after a plea. (People v. Hernandez (1992) 6 Cal.App.4th 1355, 1357 (Hernandez).) By pleading guilty, a criminal defendant "admits the sufficiency of the evidence establishing the crime, and is therefore, not entitled to a review on the merits. [Citations.] `[Issues] which merely go to the guilt or innocence of a defendant are "removed from consideration" by entry of the plea. [Citation.]" (People v. Marlin (2004) 124 Cal.App.4th 559, 565-567.) Similarly, claims of "any irregularity in the proceedings that would not preclude a conviction, irregularities that could be cured, or that would not preclude subsequent proceedings to establish guilt" are waived as well. (People v. Egbert (1997) 59 Cal.App.4th 503, 509.) Only claims challenging the courts jurisdiction or the legality of the proceedings can be raised after guilty plea. (People v. Hoffard (1995) 10 Cal.4th 1170, 1177-1178.) Courts have consistently found that violations of the state or federal constitutional rights to a speedy trial are not cognizable on appeal after a plea. The reasoning behind these holdings is that such violations only impede a defendants ability to defend himself and therefore go to the issue of his guilt of innocence which is waived in an appeal after a plea. (People v. Black (2004) 116 Cal.App.4th 103, 111-112 (Black); Hernandez, supra, 6 Cal.App.4th 1355, 1357-1358.)
Defendant attempts to distinguish this case from these cases on the facts, arguing that had the motion to dismiss on speedy trial grounds been granted here, the trial court would have been divested of jurisdiction over the time-barred offenses. Defendant relies on Avila v. Municipal Court (1983) 148 Cal.App.3d 807 (Avila) which held that speedy trial claims are not barred in an appeal after a plea in misdemeanor cases because in those cases, the prosecution is precluded from refiling charges. (Id. at p. 812.) Not only has Avila been widely criticized (see Hernandez, supra, 6 Cal.App.4th 1355, 1358-1360; People v. Egbert, supra 59 Cal.App.4th 503, 513-515), but it is not squarely on point. Avila did not address a situation where a felony complaint, if dismissed on speedy trial grounds, could not be refiled. No court has found an exception under such circumstances. Additionally, here the prosecution could have refilled one of the two counts to which he pled, so the trial court would not have been divested of jurisdiction.
In his own motion to dismiss, defendant argued that the four year delay in prosecution was prejudicial to him because his memory had faded and evidence had been lost. As the courts in Black and Hernandez held, this goes directly to his ability to defend himself, and therefore goes to the issue of innocence or guilt. (Black, supra, 116 Cal.App.4th 103, 111-112; Hernandez, supra, 6 Cal.App.4th 1355, 1357-1358.)
Such issues are not cognizable on appeal after a plea regardless of what the prosecution could have refiled against him had the motion been granted.
DISPOSITION
The judgment is affirmed.
I CONCUR:
PREMO, J. --------------- Notes: The factual account is drawn from the evidence presented at the preliminary hearing.
DUFFY, J.
I CONCUR IN THE JUDGMENT ONLY.