Opinion
As Modified Aug. 29, 1997.
Previously published at 57 Cal.App.4th 166 Steven J. Carroll, Public Defender, Dawnella Gilzean, Cassandra Kinchen and Gary Nichols, Deputy Public Defenders, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Keith I. Motley and Michael T. Murphy, Deputy Attorneys General, for Plaintiff and Respondent.
McDONALD, Associate Justice.
Denise M. Martinez (Martinez) appeals the judgment following her jury conviction of driving under the influence (DUI) of alcohol (VEH.CODE, § 23152, subd. (a)). On appeal Martinez contends the court erred by denying her motion to dismiss based on a claimed violation of her constitutional right to a speedy trial. We affirm the judgment.
All statutory references are to the Vehicle Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
On September 6, 1991, Martinez was driving her truck in an erratic manner. George Flaim (Flaim), a security officer stationed at the main gate of Naval Air Station (NAS) Miramar, observed the truck approaching the gate: It crossed over double yellow lines, swerved back and then weaved within its lane of traffic for about a block and a half. When the truck stopped, Flaim saw Martinez was the truck's driver. NAS security officers Viallega and Hawk detained Martinez, who resisted and screamed. Flaim observed Martinez closely and detected a strong odor of alcohol on her breath. He also saw a clear bottle in Martinez's truck. Flaim was certain Martinez was under the influence of alcohol. Flaim had not previously detained a DUI suspect.
San Diego Police Officer Gerald Waclawek (Waclawek) responded to the call that NAS security officers were detaining a suspected DUI driver. Waclawek approached Martinez and detected a strong odor of alcohol on Martinez's breath. He also observed that her eyes were bloodshot, her speech was slurred, her gait was unsteady, her clothing was disheveled and she was verbally abusive to him. Martinez failed the gaze nystagmus test Waclawek administered. She performed poorly on other field sobriety tests and refused to perform other tests. Waclawek took her to the police station to perform a breath test on her. She did not follow his directions and did not provide a sufficient breath sample for analysis. He formed the opinion that she was under the influence of alcohol.
On September 16, 1991, a felony complaint was filed against Martinez. A letter notifying her of the charges and of a September 30, 1991 arraignment date was mailed to the same Imperial Beach address used for a misdemeanor arrest warrant issued for Martinez on October 25, 1990.
Martinez failed to appear at the scheduled arraignment, and a warrant for her arrest was issued on January 16, 1992. The warrant showed that Martinez lived at 7349 Eckstrom Avenue, San Diego. Apparently a check of additional computer data bases disclosed that Martinez was receiving welfare payments at 2602 Cowley Way, San Diego.
On February 19, 1992, the San Diego County Marshal's office received information that Martinez was residing in West Palm Beach, Florida. It sent an abstract of the warrant to the West Palm Beach Police Department and stated it believed she resided at 20071 Congress, Suite K-308, West Palm Beach. On April 23, 1992, the warrant was placed in the due diligence file of the San Diego County District Attorney's office.
On November 28, 1995, Martinez was arrested and arraigned the following day on the 1991 complaint.
On December 21, 1995, an information was filed against Martinez charging her with one count of DUI (§ 23152, subd. (a)) for the September 6, 1991 incident and alleging that she had four prior DUI convictions within seven years prior to the instant offense (§ 23175), thereby elevating the instant offense from a misdemeanor to a felony. On January 26, 1996, Martinez filed a motion to dismiss the charges against her on the basis that her state and federal constitutional rights to a speedy trial were violated. The motion was scheduled to be heard on February 16, 1996. The prosecutor opposed the motion, contending that the motion should be heard after trial and, in any event, Martinez could not show she suffered any actual prejudice as a result of the delay. At the scheduled February 16, 1996 hearing, the court denied the motion to dismiss without prejudice to renewal of the motion at trial.
On February 27, 1996, the trial began; on February 29, 1996, the jury found Martinez guilty on the DUI charge (§ 23152, subd. (a)).
On March 4, 1996, the court heard and denied Martinez's motion to dismiss and found true the allegation that Martinez had four prior DUI convictions within seven years before the instant offense (§ 23175). On March 28, 1996, the court suspended imposition of sentence and granted Martinez five years of formal probation on condition she serve 180 days in local custody and meet other conditions.
Martinez filed a notice of appeal of the judgment.
DISCUSSION
I
Federal and State Constitutional Rights to a Speedy Trial
Both the United States Constitution and California Constitution guarantee a speedy trial to an accused or criminal defendant. Although the purposes of the federal and California constitutional speedy trial guarantees are similar, the two guarantees have developed along somewhat different lines. (See, e.g., 5 Witkin, Cal.Criminal Law (2d ed. 1989) Trial, § 2565, pp. 3075-3076.) For example, although both guarantees attach on arrest of an accused, the federal guarantee attaches prior to arrest on the filing of a formal accusation of an indictment or information in felony cases (United States v. Marion (1971) 404 U.S. 307, 320, 92 S.Ct. 455, 463, 30 L.Ed.2d 468) or on the filing of a complaint in misdemeanor cases (Serna v. Superior Court (1985) 40 Cal.3d 239, 262, 219 Cal.Rptr. 420, 707 P.2d 793); the California guarantee attaches prior to arrest on the filing of a complaint in both felony and misdemeanor cases (People v. Hannon (1977) 19 Cal.3d 588, 608, 138 Cal.Rptr. 885, 564 P.2d 1203; Serna v. Superior Court, supra, at p. 248, 219 Cal.Rptr. 420, 707 P.2d 793; People v. Hill (1984) 37 Cal.3d 491, 497, fn. 3, 209 Cal.Rptr. 323, 691 P.2d 989).
The Sixth Amendment of the United States Constitution provides in part: "... [I]n all criminal prosecutions, the accused shall enjoy the right to a speedy ... trial."
Under the United States Constitution's speedy trial guarantee, a four-issue balancing test is used to determine whether that guarantee is violated. (Barker v. Wingo (1972) 407 U.S. 514, 530-533, 92 S.Ct. 2182, 2191-2194, 33 L.Ed.2d 101; Doggett v. United States (1992) 505 U.S. 647, 651, 112 S.Ct. 2686, 2690, 120 L.Ed.2d 520.) Under the California Constitution's speedy trial guarantee, a defendant must first sustain the burden of showing prejudice was caused by the delay and, if actual prejudice is shown, the burden shifts to the prosecution to establish a permissible justification for the delay. (Serna v. Superior Court, supra, at pp. 249, 252, 219 Cal.Rptr. 420, 707 P.2d 793.) If justification is shown, the court weighs the justification against the actual prejudice suffered by the defendant. (Ibid.) In contrast to California law which requires a showing of actual prejudice caused by the delay, federal law under the Wingo balancing test permits a presumption of prejudice in certain situations depending on the length of the delay. (Serna v. Superior Court, supra, at p. 252, 219 Cal.Rptr. 420, 707 P.2d 793; Doggett v. United States, supra, at pp. 657-658, 112 S.Ct. at pp. 2693-2694.)
Martinez relies on this court's decision in Stabio v. Superior Court (1994) 21 Cal.App.4th 1488, 26 Cal.Rptr.2d 615 to argue that a presumption of prejudice is possible under the California Constitution's speedy "We hasten to note that ... we may give and in fact have previously given meaning to our constitutional provision which derives from an ad hoc balancing test similar although not identical to that now employed in [Wingo ] ....
"... In determining that the right to a speedy trial had been denied ... we weighed the prejudicial effect of the delay on the defendant against the justification for the delay .... [Citation.] It appears that the [Wingo ] balancing test would have compelled the same result we reached [in using the California balancing test]."
However, it is inappropriate for this court to disregard our Supreme Court's direct holdings that prejudice is not presumed in a California Constitution speedy trial analysis and that the Wingo analysis is limited to claims under the United States Constitution. To the extent this court's opinion in Stabio holds that a presumption of prejudice may exist in an analysis of the California right to a speedy trial we decline to follow it.
Martinez apparently does not contend in her appellate briefs that her United States constitutional right to a speedy trial was violated or that the delay in filing this information resulted in a denial of her due process rights. (See People v. Belton, supra, 6 Cal.App.4th at pp. 1433-1435, 8 Cal.Rptr.2d 669.) She apparently contends only that her California constitutional right to a speedy trial was violated. Because she focuses on the four-year delay before an information was filed against her, Martinez's right to a speedy trial under the United States Constitution is not involved here. (United States v. Marion, supra, 404 U.S. at p. 320, 92 S.Ct. at p. 463.)
At oral argument Martinez pointed out that under the Sixth Amendment of the United States Constitution the right to a speedy trial is afforded an "accused." She then argued that the California Supreme Court in People v. Hannon, supra, 19 Cal.3d at pages 605-608, 138 Cal.Rptr. 885, 564 P.2d 1203 misinterpreted the United States Supreme Court's decision in United States v. Marion, supra, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 by stating that Marion held a person is not an accused under the Sixth Amendment until a formal indictment or information is filed and that a person is not an accused on the filing of a complaint, at least in felony cases. Martinez contends that, properly analyzed, the filing of a complaint in a felony case makes the defendant an accused and invokes the federal speedy trial protections under the Sixth Amendment. She argues that Marion does not hold to the contrary. Martinez concludes that she is therefore entitled in this case to a speedy trial review under the Sixth Amendment Wingo test and need not show actual prejudice by the delay. However, she does not cite applicable authority to support her conclusion and it is not within our prerogative to hold contrary to our Supreme Court.
II
The Court Was Not Required to Hear the Motion to Dismiss Prior to Trial
Martinez first contends the trial court erred by not hearing her motion to dismiss prior to trial rather than after trial. We disagree.
Martinez notes that unless a defendant asserts a claim of denial of a speedy trial before trial that claim is waived. (In re Yurko (1974) 10 Cal.3d 857, 866-867, 112 Cal.Rptr. 513, 519 P.2d 561.) In Morse v. Municipal Court (1974) 13 Cal.3d 149, 156, 118 Cal.Rptr. 14, 529 P.2d 46, the California Supreme Court stated:
"[T]he right to speedy trial is one which must be asserted prior to the actual commencement of trial, usually by means of a motion to dismiss made at the time the Although a defendant must assert a claim before trial to avoid waiver of that claim, a trial court is not required to hear and decide that claim before trial. In People v. Archerd (1970) 3 Cal.3d 615, 641, 91 Cal.Rptr. 397, 477 P.2d 421, the California Supreme Court stated:
"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 him in an excellent position to rule on a renewed motion. [Citation.] That is what the court did here. Although it did make a comment that there must have been some prejudice to defendant because of the delay, it reserved its ruling until the end of the trial."
A trial court has discretion to hear a pretrial speedy trial motion to dismiss either before or after trial. (People v. Abraham (1986) 185 Cal.App.3d 1221, 1225-1226, 230 Cal.Rptr. 325.) 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 post-complaint delay in the context of the case as a whole.
We conclude the trial court here properly exercised its discretion to hear and decide after trial Martinez's motion to dismiss. The short delay from the initial scheduled hearing date of February 16, 1996, to the post-trial hearing date of March 4, 1996, was not unduly long and afforded the trial court the opportunity to weigh the credibility and memories of witnesses both at trial and at the hearing in the context of the evidence showing Martinez's guilt of the instant offense. The court did not abuse its discretion by hearing and deciding after trial the motion to dismiss.
III
Substantial Evidence Supports the Court's Finding That Martinez Did Not Show She Suffered Actual Prejudice from the Delay
A
A three-step analysis is used to decide whether a defendant's speedy trial right under the California Constitution was denied. First, the defendant bears the burden of showing that actual prejudice to the defense case was caused by the delay. Second, if the defendant meets that burden, then the burden shifts to the prosecution to show justification for the delay. Third, the court balances the actual prejudice shown by the defendant against the prosecution's justification for the delay. (People v. Dunn-Gonzalez (1996) 47 Cal.App.4th 899, 911, 55 Cal.Rptr.2d 404; People v. Lawson (1979) 94 Cal.App.3d 194, 198, 156 Cal.Rptr. 226.)
Actual prejudice to the defense may be, but is not necessarily, shown by the loss of material witnesses or the loss of evidence because of fading memories of witnesses attributable to the delay. (People v. Butler, supra, 36 Cal.App.4th at pp. 464-466, 42 Cal.Rptr.2d 279.) "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." (People v. Dunn-Gonzalez, supra, 47 Cal.App.4th at p. 911, 55 Cal.Rptr.2d 404; see also Serna v. Superior Court, supra, 40 Cal.3d at p. 249, 219 Cal.Rptr. 420, 707 P.2d 793.) "Prejudice is a factual question to be determined by the trial court. [Citation.]" (People v. Hill, supra, 37 Cal.3d at p. 499, 209 Cal.Rptr. 323, 691 P.2d 989.) "The trial court's ruling must be upheld on appeal if it is supported by substantial evidence. [Citation.]" (People v. Dunn-Gonzalez, supra, at p. 912, 55 Cal.Rptr.2d 404, citing People v. Mitchell (1972) 8 Cal.3d 164, 167, 104 Cal.Rptr. 348, 501 P.2d 916; see also People v. Hill, supra, at p. 499, 209 Cal.Rptr. 323, 691 P.2d 989; People v. Martinez, supra, 37 Cal.App.4th at p. 1593, 44 Cal.Rptr.2d 673.)
B
During the two-day trial, Flaim and Waclawek testified on behalf of the prosecution. The defense presented no evidence at trial.
After the jury returned its guilty verdict, the trial court heard Martinez's renewed motion to dismiss based on a purported denial of Michael Booth (Booth), a defense investigator, testified he first attempted to locate Flaim, Hawk and Viallega on February 7, 1996. On February 22, 1996, Booth received a report from a district attorney's office investigator which disclosed the addresses of Flaim and Viallega. Booth did not attempt to contact Viallega. Booth independently determined that Hawk was deployed on a Navy ship at sea at the time of trial. Martinez made no offer of proof showing how the testimony of Viallega or Hawk would have assisted her defense.
The trial court denied Martinez's motion to dismiss. It found that Martinez's inability to recollect events was the result not of prosecutorial delay but of her ingestion of alcohol prior to the incident. Further, the court doubted Martinez's inability to recall the incident, particularly her release from jail after becoming sober. The court questioned her credibility in claiming an inability to recall anything. In contrast, the court believed that Flaim's memory of the incident was clear because it was his first DUI incident and the delay had not impaired his memory.
The court then addressed the ultimate issue:
"The real question boils down to: What actual prejudice has she incurred? I'm looking at the actual evidence of her guilt. I'm looking at the--what I found to be not credible testimony as to her total absence of memory she was ever in jail or any evidence of the--in her mind of the underlying incident.
"The witnesses, that one was unavailable being at sea, the other in Texas, those were basically going to be prosecution witnesses. Certainly, there may have been something on cross-examination that might have assisted her if they had been produced, but basically, they were not there to assist or would not have been called to assist her as defense witnesses.
"....
"The actual prejudice is basically, at this point, I think, still speculative. I can't find actual prejudice to her, certainly not because of her claimed lack of memory. I find that to be somewhat disingenuous on her part."
Accordingly, the court denied Martinez's motion to dismiss.
C
Martinez contends she suffered actual prejudice because of her inability to recall the incident and the unavailability of two witnesses, Viallega and Hawk. She argues the "passage of time alone gives rise to prejudice." However, the passage of time alone is insufficient to establish prejudice under California law. (People v. Dunn-Gonzalez, supra, 47 Cal.App.4th at p. 914, 55 Cal.Rptr.2d 404.) Further, it was Martinez's burden to show that she suffered actual prejudice from the delay, and the trial court's finding of no actual prejudice will be upheld if supported by substantial evidence. (Id. at pp. 911-912, 55 Cal.Rptr.2d 404.) Martinez's purported memory loss attributed to the delay was rejected by the trial court. It found that her purported memory loss was probably the result of alcohol consumption. As in People v. Butler, supra, 36 Cal.App.4th at page 464, 42 Cal.Rptr.2d 279:
"Appellant's memory was impaired, but the impairment appears to have had nothing to do with the passage of time, but was the result of extended ingestion of alcohol. Moreover, it appears that [she] had no better recall of the relevant events shortly after they occurred than [she] had at trial."
In any event, the trial court here did not find Martinez's claim of nonrecollection credible Further, Martinez made no offer of proof showing that either Viallega or Hawk could provide exculpatory evidence for her defense. The trial court found that these two NAS security officers were prosecution witnesses and it was speculative whether they could provide testimony on cross-examination favorable to Martinez's defense. Martinez did not show that the presence of Viallega or Hawk would have aided her defense, and the record here shows "there was no likelihood that the presence of [these witnesses] would have affected the outcome of the trial." (People v. Butler, supra, 36 Cal.App.4th at p. 464, 42 Cal.Rptr.2d 279.) As the California Supreme Court noted: " 'The showing of actual prejudice which the law requires must be supported by particular facts and not ... by bare conclusionary statements.' [Citation.]" (Serna v. Superior Court, supra, 40 Cal.3d at p. 250, 219 Cal.Rptr. 420, 707 P.2d 793, quoting Crockett v. Superior Court, supra, 14 Cal.3d at p. 442, 121 Cal.Rptr. 457, 535 P.2d 321.)
Martinez did not meet her burden of showing that she suffered actual prejudice from the prosecutorial delay. She merely speculates that the testimony of the two unavailable prosecution witnesses would have aided her defense. Accordingly, substantial evidence supports the trial court's finding that Martinez suffered no actual prejudice from the delay, and the court did not err by denying her motion to dismiss.
Martinez also contends the trial court violated the doctrine of stare decisis by rejecting this court's holding in Stabio v. People, supra, 21 Cal.App.4th 1488, 26 Cal.Rptr.2d 615. However, as we noted above, we decline to apply Stabio 's presumption of prejudice because California Supreme Court case law precedent requires a showing of actual prejudice to establish a violation of the right to a speedy trial under the California Constitution. (See, e.g., Serna v. Superior Court, supra, 40 Cal.3d at pp. 249-250, 219 Cal.Rptr. 420, 707 P.2d 793.) Thus, the trial court here properly applied precedential case law.
DISPOSITION
The judgment is affirmed.
KREMER, P.J., and HUFFMAN, J., concur.
Article I, section 15 of the California Constitution provides in part: "The defendant in a criminal case has the right to a speedy public trial ...."