Opinion
E040828
6-8-2007
THE PEOPLE, Plaintiff and Appellant, v. JAVIER RIVERA MARTINEZ, Defendant and Respondent.
Grover Trask, District Attorney, and Matt Reilly, Deputy District Attorney, for Plaintiff and Appellant. James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Respondent.
NOT TO BE PUBLISHED
In 1979, after defendant Javier Rivera Martinezs girlfriend was found shot to death, the People filed a felony complaint charging him with her murder. In 1980, the People learned that defendant was in Texas, where he had been convicted of an unrelated murder and sentenced to 99 years in prison. In 1995, they learned that he was, nevertheless, back in California. In 2005, they learned that he was in prison in California but about to be deported. The police thereupon investigated further and discovered a new witness, the victims adult daughter. At that point — some 26 years after the commission of the crime — defendant was arrested for the murder.
When the People filed an information charging defendant with murder, he responded with a motion to dismiss, asserting that his California constitutional right to a speedy trial had been violated. The trial court granted the motion.
The People appeal, arguing that there was insufficient evidence that defendant suffered actual prejudice from the delay and that the trial court improperly presumed prejudice from the delay alone. We disagree. The trial court expressly found actual prejudice, and this finding is supported by substantial evidence. In particular, defendants wife, who, according to police reports, could have testified that defendant was at home at the time of the crime, had died. Hence, we will affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
A. The Discovery and Investigation of the Crime.
The following facts are taken, in part, from the statement of facts in the Peoples opposition to defendants motion, which in turn was taken from the police reports and the transcript of the preliminary hearing. Defendant not only does not challenge the accuracy of this statement of facts but has affirmatively relied on it in this appeal.
1. The 1979 Investigation.
On July 19, 1979, the dead body of Matilda Simental was found in her mobile home. She had been shot. At the scene, the police found eight "WW+P Super" .38-caliber casings, one "WW+P Super" . 38-caliber live round, and a Colt Super .38 magazine.
The mobile home had been leased to both the victim and defendant. In it, the police found an empty box of checks with both the victims and defendants names on it.
Lucille Andrus, the victims friend and neighbor, told the police that defendant was living with Simental, although he had a wife in Riverside. The victim had told Andrus that she was afraid of defendant; he had beaten her up in the past, and he carried a gun. Andrus gave defendants license plate number as "861REO." Andrus also said that, on July 18, between 7:00 and 7:30 p.m., she had seen defendant with his arm around the victim, apparently forcing her to walk with him. Defendant had been wearing a pink shirt. Around midnight, Andrus heard three or four shots.
Loretta Jones, another neighbor, also heard shots. She looked out her window and saw a Mexican man walking to a car. She recognized him as a man she had seen at the victims home "on numerous other occasions"; she also recognized his car.
Around midnight, Dale Trogdon, yet another neighbor, heard what sounded like a car backfiring, then saw a car driving away. He recognized it as belonging to the victims male roommate. The license plate included the letters "RED."
Charlotte Trogdon reported hearing gunshots. When she looked out the window, she saw a Hispanic man wearing a pink shirt get into a car and, without turning on the cars headlights, drive away. She, too, recognized the car as belonging to the victims male roommate.
Neighbors Willie and Kelly Gentry also heard gunshots, then looked out the window and saw defendants car drive away.
Howard Palmer, the manager of the mobile home park, heard about four shots around midnight.
According to "law enforcement and DMV records," defendant lived at 3686 Smith Street in Rubidoux. On July 19, the police went to that address, where they found defendants wife, Micaila Barra. Barra consented to a search of the home. In it, the police found eight "WW+P Super" .38-caliber casings. It was later determined that these had been fired from the same gun as the casings found at the crime scene. The police also found a car, registered to defendant, with the license plate "961REO." On a clothesline in the backyard, they found a freshly washed pink shirt. There was a suspicious stain on the shirt. (However, when it was eventually tested, in 2006, it was negative for blood.)
Barra told police that she suspected that defendant was having an affair with another Hispanic woman. She said that on the night before, around 7:00 p.m., defendant had gone out alone, driving his car. He had returned around 10:30 p.m. When asked about the pink shirt, at first Barra said that it belonged to defendants brother, and defendant had been wearing a white shirt; she then admitted, however, that the pink shirt belonged to defendant. She said she had washed it that morning. She denied seeing blood on it. Around 8:00 a.m., defendant had left, saying he would be back later.
On July 25, 1979, the police interviewed Michael Lopez, defendants friend and former coworker. Lopez said that, a little over two months before the shooting, defendant had admitted beating up his "wife" and leaving her with a black eye. (From Lopezs description of the "wifes" residence and car, it was evident that he was referring to the victim.) About a week and a half after that, defendant showed Lopez a handgun and said he had just purchased it. Lopez described it as a 9-millimeter or a .45. Around the same time, defendant had registered both a Colt .38 and a Colt .45.
On July 27, 1979, the police interviewed defendants brother, Ramon Martinez. At first, Ramon said he did not know where defendant was. However, when confronted with statements he had made to his employer, to the effect that defendant had been in a car accident in Arizona, Ramon admitted that he had gone to Arizona to try to find defendant. However, he claimed he could not remember where the accident took place, where he went, "or any [other] information about the incident."
2. Further Investigation in 2005 and 2006.
On June 30, 2005, the police interviewed the victims daughter, Consuelo Gomez. She told them that the victim and defendant had been living together. At one point, she had seen the victim with a head injury; the victim said that defendant hit her with a lamp. A few days before the shooting, the victim said that she was leaving defendant because he was mistreating her; she made arrangements to move in with Gomez.
On February 24, 2006, the police reinterviewed defendants brother Ramon. This time, he said that, in a phone call a day or two after the shooting, defendant had admitted that he shot and killed the victim. Defendant had also mentioned that, in the process, he shot himself in the thumb. (As of 2006, defendant had a scar on his left thumb.) Ramon said that defendant owned and often carried a .38-caliber handgun. However, Ramon also said that "he did not remember much about anything since he had memory problems."
Blood samples taken in 1979 from the crime scene and from defendants home were tested and found to be defendants blood.
B. Efforts to Prosecute Defendant.
On July 26, 1979, the People filed a felony complaint charging defendant with murder; they also obtained an arrest warrant.
On October 25, 1980, defendant was arrested in Texas and charged with a murder committed there. He gave the police there a false name and date of birth. A jury found defendant found guilty of the Texas murder. A penalty trial ensued; in it, Detective Les Scott, a Corona police officer who had worked on the Simental murder, testified. On July 22, 1981, defendant was sentenced to 99 years in prison. A deputy district attorney in Texas told Detective Scott that defendant could not be released from prison without paying a $10,000 fine and that neither defendant nor his relatives had that much money; accordingly, the fine would "insure that [defendant] did not get out of prison."
When Detective Scott returned, he asked a Riverside deputy district attorney whether defendant should be brought back from Texas for trial. In light of defendants sentence in Texas, the deputy district attorney decided not to do so.
Meanwhile, the Riverside County Sheriffs Department evidently sent a warrant for defendants arrest to a Texas sheriffs office. On July 28, 1981, the Texas sheriff sent it back, confirming that defendant was in custody but advising that the warrant should be sent to prison officials. The Riverside County Sheriffs Department sent two memoranda, dated July 31 and August 14, 1981, to a deputy district attorney, asking whether to resend the warrant. There were boxes on the memoranda marked "Yes" and "No"; neither was checked.
After defendant had been in prison in Texas for about 10 years, he was released and deported to Mexico.
In April 1995, Corona police learned that defendant was back in California and had been harassing the victims family members. They conveyed this information to the district attorneys office. The police tried to obtain further information from the Texas district attorneys office and from Texas prison officials, but without success. At that point, a deputy district attorney considered prosecuting defendant but left notes indicating that there were concerns about the availability of evidence and witnesses.
On January 15, 1998, a Riverside County sheriffs deputy investigating the negligent discharge of a firearm spoke to defendant, but defendant was not arrested or charged.
On June 22, 1998, another Riverside County sheriffs deputy arrested defendant for beating up his then-girlfriend. Defendant was booked and cited but evidently not prosecuted.
On October 28, 2001, Huntington Park police arrested defendant for threatening yet another girlfriend. He was convicted of making terrorist threats (Pen. Code, § 422) and sentenced to four years four months in prison.
In 2005, apparently in the course of deportation proceedings against defendant, an agent from the Immigration and Naturalization Service learned about the 1979 murder charges. On June 21, 2005, he called the Corona police and said that he might have a suspect in the murder.
On June 23, 2005, a Corona police officer relayed this information to a deputy district attorney. They found that the original court file had been lost or destroyed. Accordingly, on June 24, 2005, the People filed a new complaint charging defendant with murder and obtained a new arrest warrant.
Starting in December 2005, a prosecution investigator tried to track down the witnesses who had been interviewed in 1979. Of the seven witnesses who had lived at the mobile home park, only Dale Trogdon was still alive; the other six — presumably meaning Lucille Andrus, Loretta Jones, Charlotte Trogdon, Willie and Kelly Gentry, and Howard Palmer — were dead. In addition, Micaila Barra, defendants wife, was dead.
C. Defendants Motion to Dismiss.
On March 9, 2006, a preliminary hearing was held; defendant was held to answer. On March 23, 2006, the People filed an information charging defendant with murder.
On June 14, 2006, defendant filed a written motion to dismiss on the ground that his state constitutional right to a speedy trial had been violated. In a declaration in support of his motion to dismiss, defendant stated: " . . . I have lost evidence that would have been favorable to my defense[,] i[.]e[.,] faded recollections, dead witnesses, etc."
"While [t]rial was in progress in about 1980 in the State of Texas . . . , I was contacted by a representative of either the Riverside Sheriff[]s [o]ffice or Corona PDs reference this case and questioned about the facts, but due to the time lag the conversation itself is hard to recall."
"While [I was] in prison in Texas, my wife, here in California[,] died of natural causes. She would have been a favorable witness on my behalf."
After hearing argument, the trial court granted the motion. It discussed, at some length, the fact that the People had considered reinitiating the prosecution twice — in 1981 and again in 1995. In the course of this discussion, it remarked: "[T]his activity in 1995 is what ultimately is going to result in the decision Im about to announce." It then stated: "I find that the defendant did suffer actual prejudice by the delay in this case. The fact that so much time has passed and his memory alone failing him — hes indicated in his declaration that he doesnt remember, No. 1, the phone call with his brother, the events surrounding the incident — the deaths of a number of witnesses who may have been able to provide exonerating information, the cloudy memory of his brother, . . . and those factors alone I find to have resulted in actual prejudice to the defendant."
II
DISCUSSION
Defendant relies exclusively on his state constitutional right to a speedy trial. (Cal. Const., art. I, § 15.) The federal constitutional right to a speedy trial does not apply, because a felony complaint had been filed, but an information had not. "`Under the federal Constitution, . . . the filing of a felony complaint is by itself insufficient to trigger speedy trial protection. [Citation.]" (People v. Horning (2004) 34 Cal.4th 871, 891, quoting People v. Martinez (2000) 22 Cal.4th 750, 754-755.) Likewise, there is no state statutory right to a speedy trial that applies under these circumstances. (See, e.g., Pen. Code, §§ 739, 859b, 1049.5, 1382.)
Under the California constitution, "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, . . . th[e Supreme C]ourt has generally required the defendant to affirmatively demonstrate that the delay has prejudiced the ability to defend against the charge. [Citation.] . . . [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]." (People v. Martinez, supra, 22 Cal.4th at pp. 766-767, quoting People v. Hannon (1977) 19 Cal.3d 588, 608.)
". . . `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.]" (People v. Conrad (2006) 145 Cal.App.4th 1175, 1185, quoting People v. Dunn-Gonzalez (1996) 47 Cal.App.4th 899, 915.) 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.]" (Craft v. Superior Court (2006) 140 Cal.App.4th 1533, 1541, quoting People v. Dunn-Gonzalez, supra, 47 Cal.App.4th at p. 910.)
"The showing of actual prejudice which the law requires must be supported by particular facts and not . . . by bare conclusionary statements." (Crockett v. Superior Court (1975) 14 Cal.3d 433, 442.) "We review the trial courts determination that defendant was prejudiced by the delay for substantial evidence. [Citation.]" (People v. Conrad, supra, 145 Cal.App.4th at p. 1184.)
Here, the trial court found actual prejudice in three respects: (1) defendants memory had faded; (2) defendants brother Ramons memory had faded; and (3) witnesses "who may have been able to provide exonerating information" had died. The first two findings are only weakly supported. For example, defendant actually testified only that his memory of a "conversation" he had had in 1980 with a California police officer had faded. It is arguable, however, that the trial court could reasonably infer that his recollection of other events that took place equally long ago had also faded.
Similarly, there was no evidence that Ramons memory had faded. At oral argument, defense counsel merely asserted that Ramon had displayed memory loss at the preliminary hearing: "[W]hen I asked him on the stand, . . . it was almost a waste of time as a witness, because `I couldnt remember. At one point in time he says he remembers a phone call. A few minutes later he says I dont remember the phone call." The preliminary hearing transcript was not offered as an exhibit in support of the motion.
A trial court, however, has discretion to base a finding on an attorneys undisputed representation of fact. (People v. Medina (1995) 11 Cal.4th 694, 731.) "`[A]ttorneys are officers of the court, and "`when they address the judge solemnly upon a matter before the court, their declarations are virtually made under oath." [Citation.]" (People v. Mroczko (1983) 35 Cal.3d 86, 112, quoting Holloway v. Arkansas (1978) 435 U.S. 475, 486 [98 S.Ct. 1173, 55 L.Ed.2d 426]; see also People v. Laudermilk (1967) 67 Cal.2d 272, 286 ["While we intimate no rule ascribing probative value to such statements in all instances, . . . counsel was describing and representing to the court his own personal experiences with and observations . . . . We regard these statements of a responsible officer of the court as tantamount to sworn testimony"]; People v. Wolozon (1982) 138 Cal.App.3d 456, 460, fn. 4.)
The People argue that, if the trial court had reviewed the transcript of the preliminary hearing, it would have become apparent that Ramon was "deliberately feign[ing] memory loss . . . ." The point is somewhat academic, as the People never introduced the transcript below; in any event, they are wrong. The transcript strongly suggested that Ramon was suffering not just from memory loss, but from mental confusion arising out of some genuine underlying pathology. He volunteered, "I really dont understand a lot of whats going on here." When asked where defendant was living in 1979, he answered, "I dont know anything about dates," and "I dont know anything about the cities here." The trial court evidently was not sure that he was even competent to testify; it interrupted to ask whether he knew how old he was, what city he was in, and whether he was able to go to the store and buy himself groceries. When the court asked him whether he knew how to use the phone, he answered, " . . . I really dont know how to use it much."
Back in 1979, when the police had interviewed Ramon, he had displayed similar confusion, telling them he could not remember anything about defendants accident in Arizona. And when they interviewed him again in 2006, he told them he had "memory problems." Thus, while the transcript perhaps did not absolutely rule out the possibility that Ramon was faking, it was perfectly consistent with defense counsels representation to the court.
In any event, the trial courts third finding — that defendant had been prejudiced by the deaths of witnesses — finds ample support in the record. Admittedly, it appears from the police reports that most of these witnesses would have been pro-prosecution. Nevertheless, in People v. Hill (1984) 37 Cal.3d 491, the Supreme Court held that the faded memories of pro-prosecution witnesses can support a finding of prejudice. (Id. at pp. 494, 498.) It explained: "Ordinarily when a defendant claims that delay has affected a witnesss memory, he is referring to a defense witness. But we can see no reason why a defendant may not seek to prove that the fading memory of a prosecution witness has also made a fair trial impossible. Here, virtually the only evidence against defendant was the eyewitness testimony of the victims, and his only defense was mistaken identification. With sharper memories, the victims might have excluded him as the person who had assaulted them." (Id. at p. 498.) It concluded: "[T]o contend that a faded memory aids the defendant is to assume defendants guilt; if he is innocent, obviously he would prefer witnesses who can forthrightly so testify." (Ibid.)
Most important, defendants wife, who was also deceased, was shown to be a significant pro-defense witness. Several eyewitnesses — including the sole surviving one, Dale Trogdon — reported hearing shots around midnight. Defendants wife, however, told police that defendant came home that night at 10:30 p.m. and left the next morning at 8:00 a.m. Thus, she was a crucial alibi witness for the defense. While one could quibble over whether a jury could have found her credible, her statement was not inherently incredible or unworthy of belief. In any event, we know of no case that would let us second-guess a finding that the defense had been prejudiced by the loss of a witness, based solely on that witnesss credibility. We therefore conclude that the trial courts finding that defendant had been prejudiced was supported by substantial evidence.
The People also contend that the trial court improperly found that the delay in prosecution, standing alone, established prejudice — in other words, that it presumed prejudice. This is an unfair characterization of its ruling. The trial court was required to balance the justification for the delay against the prejudice to defendant. If it had not considered the delay, it would have been remiss. We find no indication, however, that it presumed prejudice from the delay. Quite the contrary — it made an express finding of actual prejudice, then explained the factual basis for that finding. The People single out the trial courts remark that "this activity in 1995 is what ultimately is going to result in the decision Im about to announce." In context, however, it did not mean that this was the only fact that it was going to consider, but merely that it was a crucial link in the chain.
Finally, the People contend that the trial court should have declined to rule on the motion until after a full trial. It is true that "[w]hen 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.]" (People v. Martinez, supra, 22 Cal.4th at p. 769, quoting People v. Archerd (1970) 3 Cal.3d 615, 641.) However, the People waived this contention by failing to raise it below. In any event, they have not shown that the trial court abused its discretion in this regard. The single most important way in which defendant was prejudiced was by the death of his wife/alibi witness. There was no reason to suppose that any evidence that could have been developed in the course of a trial that would suffice to disprove this prejudice.
III
DISPOSITION
The order of dismissal is affirmed.
We Concur:
RAMIREZ, P.J.
McKINSTER, J.