Opinion
E065106
02-16-2017
THE PEOPLE, Plaintiff and Appellant, v. KEITH ALAN PEPITO, Defendant and Respondent.
Michael A. Hestrin, District Attorney, and Emily R. Hanks, Deputy District Attorney, for Plaintiff and Appellant. Steven Harmon, Public Defender, and Laura Arnold, Deputy Public Defender, for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1303864) OPINION APPEAL from the Superior Court of Riverside County. 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.) Reversed. Michael A. Hestrin, District Attorney, and Emily R. Hanks, Deputy District Attorney, for Plaintiff and Appellant. Steven Harmon, Public Defender, and Laura Arnold, Deputy Public Defender, for Defendant and Respondent.
I
INTRODUCTION
On March 17, 1992, an unknown man wearing sunglasses and a hoodie sweatshirt entered Jane Doe 1's open garage and raped her at knifepoint in the garage. The man then forced Jane Doe 1 into her house and into the master bedroom, where he robbed her of money and jewelry. Before he left the house, the man pushed Jane Doe 1 and her four-year-old daughter, Jane Doe 2, into the master bathroom and threatened to kill them if they left the bathroom. Minutes later, Jane Doe 1's husband came home and called 911.
No charges were filed in the case until November 2013, after deoxyribonucleic acid (DNA) evidence obtained during a March 17, 1992 sexual assault examination of Jane Doe 1 was sent by the Riverside Police Department (RPD) to the state Department of Justice (DOJ) for testing in December 2011. In October 2013, the DOJ matched the 1992 DNA evidence to a DNA buccal swab provided by defendant and respondent, Keith Alan Pepito, pursuant to a search warrant. Defendant was ultimately charged with two counts of aggravated kidnapping, namely, kidnapping to commit robbery. (Pen. Code, § 209, subd. (b)(1).) Unlike rape and robbery, there is no limitations period on kidnapping to commit robbery. (See ibid.; § 799.) At a preliminary hearing on August 15, 2014, Jane Doe 1 gave detailed testimony concerning the 1992 incident.
All further statutory references are to the Penal Code unless otherwise indicated.
Following the preliminary hearing, the court granted defendant's pretrial motion to dismiss the aggravated kidnapping charges on due process grounds. The court found the over 20-year delay in filing the charges (at times referred to as the precharging delay) was at least slightly prejudicial to defendant's ability to defend against the charges, and the People failed to demonstrate a valid justification for the delay.
The People appeal the dismissal order, claiming the prejudice finding is based on speculation and impermissible factors, rather than on substantial evidence; the People demonstrated a valid justification for the delay; and the justification for the delay outweighs any prejudice to defendant.
We reverse. As we explain, insufficient evidence supports the court's prejudice finding. In addition, the record shows the precharging delay was neither purposeful nor negligent, but purely investigatory. Therefore, the justification for the precharging delay outweighed any possible prejudice to defendant.
In light of our reversal of the dismissal order, it is unnecessary to address the People's additional claims that the court abused its discretion (1) in failing to consider less drastic remedies than dismissal, (2) in refusing to continue the pretrial evidentiary hearing to allow the People to present additional evidence, and (3) in refusing to defer ruling on the dismissal motion until after trial.
II
FACTUAL AND PROCEDURAL BACKGROUND
A. Jane Doe 1's Preliminary Hearing Testimony
At the August 15, 2014 preliminary hearing, Jane Doe 1 testified as follows. On March 17, 1992, Jane Doe 1, her husband, and their two children lived in a 1,300-square-foot, three-bedroom house with an attached garage. Around 9:30 to 10:00 that morning, after their son had left for school, Jane Doe 1's husband left to run an errand, leaving Jane Doe 1 and her four-year-old daughter, Jane Doe 2, alone in the house. Before he left the house, Jane Doe 1's husband had been working in his office in the garage.
Shortly after Jane Doe 1's husband left the house, someone knocked on the front door. Jane Doe 1 was on the telephone with a friend and was wearing only a large pajama T-shirt and underpants. Jane Doe 1 did not open the front door, but asked who was there, without looking outside. A man said he wanted to know whether Jane Doe 1's husband was interested in buying or selling a tool. Jane Doe 1 told the man her husband was not home and was not interested. She then "peeked" outside through the front window but did not see anyone.
Next, Jane Doe 1 got off the telephone and went into the garage—through the interior garage door leading from the kitchen into the garage—to see whether her husband had closed the exterior garage door. The exterior garage door was open and, after Jane Doe 1 stepped into the garage, she saw a man standing within arms-reach of her. The man was wearing sunglasses, a hoodie, and jeans. Jane Doe 1 did not recognize the man and had never seen him before. Jane Doe 1 screamed, and the man "came at" her. He grabbed Jane Doe 1 from behind, had a knife with a four- to five-inch blade in his hand, and told her not to look at him.
Jane Doe 1 was crying and said, "Please don't hurt me." The man said, "Shut up, Bitch," and told Jane Doe 1 to lie down and remove her panties. The man's voice was "soft-spoken" but "demanding." Again, Jane Doe 1 told the man not to hurt her, and he told her to shut up and do as she was told. Jane Doe 1 removed her panties and lay on the garage floor, believing the man would not hurt Jane Doe 2 if she complied with his demands.
The man pulled Jane Doe 1's pajama shirt up over her face and raped her, while holding the knife to her neck and face. The rape lasted "[n]ot very long, a couple [of] minutes," and the man ejaculated. The exterior garage door remained open, but the man pulled Jane Doe 1 behind a floor-to-ceiling wall that separated the office from the rest of the garage so the crime could not be seen from the street.
After the rape, the man asked Jane Doe 1 whether she had any money or jewelry. While still holding the knife and holding Jane Doe 1 by "the back" of her hair, the man forced Jane Doe 1 into the house through the interior garage door. As they walked through the kitchen and into the living room, Jane Doe 2 appeared, and Jane Doe 1 told her daughter to go to her room. Jane Doe 2 ran to her room. Jane Doe 1 then told the man her purse was in her bedroom. The man forced Jane Doe 1 into the master bedroom, and emptied her purse onto the bed. The man took cash, a watch, and Jane Doe 1's wedding ring.
Next, the man told Jane Doe 1 to get Jane Doe 2 and get into the master bathroom. Jane Doe 1 yelled for her daughter, and Jane Doe 2 ran from her bedroom to her mother. The man then pushed Jane Does 1 and 2 into the master bathroom and closed the door. The man said, "Don't leave the bathroom. I'll kill you," and left.
Jane Does 1 and 2 stayed in the master bathroom for around five to 10 minutes, until Jane Doe 1 heard her husband's truck pull into the driveway. Jane Doe 1 screamed for her husband, and her husband called the police. Jane Doe 1 was taken to a hospital and underwent a sexual assault examination. Around 15 to 20 minutes passed between the time Jane Doe 1 first saw the man in the garage and the time the man pushed Jane Does 1 and 2 into the master bathroom.
For purposes of the preliminary hearing, the parties stipulated that the 1992 DNA evidence—the DNA evidence obtained during the 1992 sexual assault examination of Jane Doe 1—matched defendant's DNA. At the close of the preliminary hearing, defendant was held to answer two counts of aggravated kidnapping—kidnapping to commit robbery of Jane Does 1 and 2. Unlike rape and robbery, which are subject to statutes of limitation, there is no limitations period on kidnapping to commit robbery, which is punishable by life in prison. (§§ 209, subd. (b)(1), 799.) B. The Investigation
The RPD suspended its investigation in 1992 after the unknown assailant was not identified. In July 2011, RPD Detective Rita Cobb and other detectives were assigned to review cold case sexual assault files—investigations that had been suspended based on a lack of sufficient evidence for prosecution. Detective Cobb explained that the RPD had received a grant of money to investigate cold case files, and most of the grant had been spent on cold case homicides. By July 2011, the RPD had six months to use the rest of the grant money, and chose to use the rest of the funds to address cold case sexual assaults.
Detective Cobb and another detective reviewed 114 cold case sexual assaults that occurred between 1987 and 2001. DNA evidence was collected in each of the 114 cases. From the 114 cases, the detectives selected 25 of the most egregious, including assaults by unknown assailants. The DOJ had a backlog of cases and advised the RPD that it could submit no more than 15 cases to the DOJ for DNA testing by the end of 2011. The detectives selected 12 cases, including the Jane Doe 1 case. In December 2011, Detective Cobb forwarded the 1992 DNA evidence to the DOJ for testing.
Fourteen months later, in March 2013, the DOJ notified Detective Cobb that the DNA evidence had been "matched" to defendant. Next, the RPD obtained a search warrant for a DNA buccal swab or "DNA collection swab" from defendant. At the time, defendant was housed at the Coalinga State Hospital. Detective Cobb went to the hospital, collected a DNA buccal swab from defendant, and submitted the swab to the DOJ for "a direct comparison" with the 1992 DNA evidence. In October 2013, the DOJ notified Detective Cobb that the DNA from defendant's buccal swab matched the 1992 DNA evidence, and Detective Cobb submitted the case to the district attorney for the filing of charges. C. The Aggravated Kidnapping Charges
In November 2013, the People filed an original felony complaint charging defendant with one count of aggravated kidnapping, namely, kidnapping to commit robbery and rape of Jane Doe 1, and alleging defendant had numerous prior strikes and prior serious felony convictions. Following a series of demurrers, a second amended complaint was filed on August 15, 2014, the day of the preliminary hearing, charging defendant with two counts of kidnapping to commit robbery only, and alleging Jane Does 1 and 2 as the victims. An information alleging the same charges was filed following the preliminary hearing. On April 10, 2015, the People filed a first amended information, again charging defendant with two counts of kidnapping to commit robbery, but alleging only one prior strike and one prior serious felony conviction. D. The Dismissal Motion
After defendant demurred to the original felony complaint on the ground that kidnapping to commit rape was not an offense in 1992, the People filed a first amended complaint charging defendant with kidnapping to commit robbery only. (§ 209, subd. (b)(1).) Defendant's demurrer to the first amended complaint was overruled.
1. The Moving and Opposition Papers
In October 2015, defendant filed a motion to dismiss the amended information on state and federal due process grounds, claiming the over 20-year delay in filing the charges prejudiced his ability to defend the charges, and there was no justification for the precharging delay. Among other things, defendant complained that (1) the dispatch records and audio recording of the 911 call by Jane Doe's husband had been destroyed, and (2) the original investigator, Officer Dean M. Phaneuf, who retired from the RPD in 2010, had no independent recollection of the case and had destroyed his notes. Defendant argued that the destruction of the dispatch logs and audio recording of the 911 call, together with Officer Phaneuf's faded memory and destroyed notes, prejudiced his ability to impeach the anticipated trial testimony of Jane Doe 1, the prosecution's only witness.
Defendant claimed the precharging delay further prejudiced him because he was no longer able to obtain concurrent sentencing on the 1992 charges. Defendant explained that, in 1992 and 1993, he was prosecuted in Orange and Riverside Counties for "multiple incidences" involving "attacks on women." He claimed he was sentenced to 30 years in prison in the Riverside County cases and to a concurrent eight-year term in the Orange County cases. In 2010, he was released from prison to Coalinga State Hospital, where he was treated until December 23, 2013, when he was arrested on the November 26, 2013 felony complaint.
According to the People, defendant has not yet been declared a sexually violent predator (SVP), but a petition to declare him an SVP is pending.
In opposition, the People claimed defendant could not show he would suffer any actual prejudice from the precharging delay, in part because his claims of prejudice were based on speculation. The People observed that Jane Doe 1 gave detailed testimony at the preliminary hearing, and that she, the police reports, the physical evidence, and numerous photographs taken in 1992 were still available. The People also asked the court to defer ruling on the motion until after trial when a "full factual record" would show whether defendant suffered any actual prejudice.
2. The Pretrial Evidentiary Hearing
A pretrial evidentiary hearing on the dismissal motion was held on November 30, 2015 and December 4, 2015. On the first day of the hearing, the defense called Officer Phaneuf, who testified he was the "initial" investigating officer in the 1992 case. Contrary to defendant's claim that Officer Phaneuf had no independent recollection of the case, Officer Phaneuf testified he had an independent recollection of the case after he requested and reviewed a copy of the police report he wrote in the case in 1992.
Officer Phaneuf was dispatched to Jane Doe 1's home on March 17, 1992, where he took a statement from Jane Doe 1. The officer no longer had any of the notes he took in the 1992 case; he would have kept his notes at least until he prepared his police report, but in 1992 he usually shredded his notes after he had filled an entire notebook of notes. Officer Phaneuf also did not save the dispatch log or any audiotape of the 911 call made by Jane Doe 1's husband, as part of his investigation. The People agreed the dispatch logs and any audio recordings of the 911 call no longer existed. Additionally, no audiotape of Jane Doe 1's March 17, 1992 statements to Officer Phaneuf was ever made. The officer also did not make a diagram of the interior rooms of Jane Doe 1's home.
The People presented several items of evidence to support its claim that there was no actual prejudice to defendant, including the preliminary hearing transcript with Jane Doe 1's testimony, Officer Phanuef's 1992 police report memorializing Jane Doe 1's statements to him on March 17, 1992, a diagram of the interior of the house used at the preliminary hearing, and 20 photographs taken in 1992, including photographs of the exterior front and some interior portions of the house, of Jane Doe 1, her clothing, and other evidence. The trial court sustained defendant's hearsay objection to the 1992 police report, but admitted the other evidence.
The People called Detective Cobb, who testified she was first assigned to the 1992 case upon reviewing it as a cold case file in July 2011. As outlined above, Detective Cobb testified that she first submitted the 1992 DNA evidence to the DOJ for testing in July 2011, and received notification from the DOJ in October 2013 that defendant's DNA buccal swab matched the 1992 DNA evidence.
Detective Cobb did not know why the RPD did not submit the 1992 DNA evidence to the DOJ for testing in 1992. Detective Cobb was an RPD patrol officer in 1992. She had no knowledge of the RPD's budgetary constraints in 1992 or whether the DOJ would have charged the RPD for testing the 1992 DNA evidence in 1992.
Regarding defendant's claim he was further prejudiced because he could no longer be sentenced to concurrent terms on the 1992 case, the defense submitted a "criminal case print" of Riverside County Superior Court case No. CR45963. According to the case print, in 1993 defendant was sentenced to 30 years in prison on rape, robbery, and related charges, which the parties agree involved four separate victims in Riverside and Orange Counties. E. The Court's Ruling on the Dismissal Motion
In granting the dismissal motion, the trial court found defendant presented "slight" evidence prejudice, thus shifting the burden to the People to show justification or a "valid police purpose" for the precharging delay, citing Penney v. Superior Court (1972) 28 Cal.App.3d 941, 953. After Officer Phaneuf testified, the court found the defense had met its burden of showing actual prejudice, based on "the fact that there are no dispatch records, logs, or tapes available to the defense that could contain potential impeachment evidence for them to use in the trial. [¶] In addition, I believe that because there was no diagram taken of the house at that time, it could be an issue at a trial. I should say it will be an issue at trial as to the distance that the victim and her four-year-old child were transported as it relates to a charge of kidnapping . . . . [¶] And in addition . . . it was 20 years, 8 months since the alleged crime. And so memories of witnesses will have faded. And so I think that there is actual prejudice there. Although it's slight prejudice evidence that has been established by way of this hearing." The court added that Officer Phaneuf's notes "may or may not have been helpful" to the defense, but found that the destruction of those notes was another factor amounting to slight prejudice.
When asked at the close of the hearing to clarify its prejudice finding, the court explained that the "main prejudice" was the destruction of the 911 tape, and indicated that this prejudice was compounded because there was no audio or other recording of Jane Doe 1's March 17, 1992 statements to Officer Phaneuf. The court agreed with defense counsel that the 911 tape, which would have recorded the statements Jane Doe 1's husband made to the dispatcher, possibly with Jane Doe 1 being heard in the background, and any audio recording of Jane Doe 1's statements to Officer Phanuef, may have contained impeachment evidence for use in cross-examining Jane Doe 1 and Officer Phaneuf. In finding the People did not meet their burden of showing the precharging delay was based on any "valid police purpose necessitating the delay," the court observed that the People presented no competent evidence that the delay occurred because the RPD or DOJ had insufficient resources for DNA testing in 1992.
III
DISCUSSION
A. Principles Governing Dismissal Motions Based on Precharging Delays
Ordinarily, the statute of limitations is considered "the primary guarantee against bringing overly stale criminal charges," and "[t]here is no general right to a prosecution speedier than that laid down by the statute of limitations." (People v. Archerd (1970) 3 Cal.3d 615, 639; People v. Price (1985) 165 Cal.App.3d 536, 541.) There is, however, no limitations period on certain criminal charges, including kidnapping for robbery, the charges against defendant here. (§§ 209, subd. (b)(1), 799.)
Additionally, state and federal speedy trial rights do not attach at least until after the defendant has been arrested or a charging document has been filed (People v. Nelson (2008) 43 Cal.4th 1242, 1250 (Nelson)), and are therefore not implicated by a delay in filing charges, or a precharging delay (see People v. Abel (2012) 53 Cal.4th 891, 908). Nonetheless, the right of due process protects criminal defendants from prejudicial and unjustified precharging delays, even for charges that have no limitations period. (See ibid. ["the right of due process provides additional protection, safeguarding a criminal defendant's interest in fair adjudication by preventing unjustified delays that weaken the defense through the dimming of memories, the death or disappearance of witnesses, and the loss or destruction of material physical evidence . . . ."].)
"A defendant seeking to dismiss a charge on [due process] ground[s] must demonstrate prejudice arising from the delay. The prosecution may offer justification for the delay, and the court considering a motion to dismiss balances the harm to the defendant against the justification for the delay. [Citations.]" (People v. Catlin (2001) 26 Cal.4th 81, 107.) "'In the balancing process, the defendant has the initial burden of showing some prejudice before the prosecution is required to offer any reason for the delay [citations]. The showing of prejudice requires some evidence and cannot be presumed. [Citations.]'" (People v. Morris (1988) 46 Cal.3d 1, 37; Nelson, supra, 43 Cal.4th at p. 1250 [prejudice must be affirmatively shown and cannot be presumed regardless of the length of the delay].) Prejudice may be shown by the loss of a material witness or other missing evidence, or by a fading memory caused by the lapse of time. (People v. Jones (2013) 57 Cal.4th 899, 921.) "The overarching theme is that the loss of such evidence, especially where the defendant or victims cannot independently recall details of the crime, makes it difficult or impossible to prepare a defense . . . ." (People v. Mirenda (2009) 174 Cal.App.4th 1313, 1328.)
Regarding the justification for the delay, California courts apply the California constitutional due process standard, because it provides at least as much protection against a precharging delay as the federal due process standard. (People v. Jones, supra, 57 Cal. 4th at pp. 921-922; People v. Abel, supra, 53 Cal.4th at p. 909, fn. 1; People v. Cowan (2010) 50 Cal.4th 401, 431; Nelson, supra, 43 Cal.4th at p. 1251; People v. Lazarus (2015) 238 Cal.App.4th 734, 754-755.)
"Under the California standard, 'negligent, as well as purposeful, delay in bringing charges may, when accompanied by a showing of prejudice, violate due process. . . .' '[W]hether the delay was negligent or purposeful is relevant to the balancing process. Purposeful delay to gain an advantage is totally unjustified, and [where purposeful delay is shown] a relatively weak showing of prejudice would suffice to tip the scales towards finding a due process violation. If the delay was merely negligent, a greater showing of prejudice would be required to establish a due process violation.' [Citation.] The justification for the delay is strong when there is 'investigative delay, nothing else.'" (People v. Cowan, supra, 50 Cal.4th at p. 431.)
We review a trial court's ruling on a motion to dismiss charges based on a prejudicial and unjustified precharging delay for an abuse of discretion. (People v. Jones, supra, 57 Cal.4th at p. 922.) In conducting our review, we consider all of the evidence that was before the court at the time it ruled on the motion, and we defer to the court's factual findings if substantial evidence supports them. (Ibid.) B. Insufficient Evidence Supports the Trial Court's Finding of Actual Prejudice
The People claim insufficient evidence supports the trial court's prejudice finding. They claim the finding is based on speculation, and that the court impermissibly found prejudice based on the unavailability of evidence that never existed in the first place. We agree that insufficient evidence shows defendant would be prejudiced in defending against the charges as a result of the over 20-year precharging delay.
As indicated, prejudice is a factual question for the trial court and is reviewed for substantial evidence. (People v. Alexander (2010) 49 Cal.4th 846, 874.) Substantial evidence is evidence that is reasonable, credible, and of solid value. (People v. Johnson (1980) 26 Cal.3d 557, 576.) Accordingly, prejudice cannot be based on speculation, or "the mere possibility of prejudice . . . ." (People v. Price, supra, 165 Cal.App.3d at p. 542; People v. Alexander, supra, at pp. 874-875.)
The trial court found that the "main prejudice" to defendant was the destruction of the audio recording of the 911 call by Jane Doe 1's husband. The trial court also indicated that this prejudice was compounded because no audio recording was made of Jane Doe 1's March 17, 1992 statements to Officer Phaneuf concerning the details of the crimes, and because the officer destroyed his notes after he wrote his police report memorializing Jane Doe 1's statements. To the extent the court's prejudice finding was based on the these items of destroyed or never-existing evidence, the finding was speculative. There was no showing that any of these items contained or would have contained any material impeachment evidence or that there was actual prejudice to defendant. There is no reason to believe Jane Doe 1 was heard making any statements in the background of her husband's 911 call or that Officer Phaneuf's notes would have shown that Jane Doe 1's statements to him differed in any material respect from her preliminary hearing testimony or her anticipated trial testimony.
A substantially identical prejudice claim was rejected as speculative in Alexander, which involved erased audiotapes of witness interviews. (People v. Alexander, supra, 49 Cal.4th at p. 875.) A police captain erased the tapes after he decided they did not contain any information that was not known from prior interviews, and because the investigators who were present during the interviews would have taken notes and prepared reports of the interviews. (Ibid.) As here, the Alexander defendant claimed he was prejudiced because the tapes may have contained material impeachment evidence, but he made no showing of actual prejudice, that is, that the tapes contained any material impeachment evidence. (Ibid.) Alexander observed: "To the extent defendant argues the tapes may have included statements not contained in, or that contradicted, the investigators' reports or witnesses' testimony at the preliminary hearing or trial, his claim is based on speculation, not proof of actual prejudice." (Ibid., italics added.) Here, too, defendant made no showing that the audio recording of the 911 call, or Officer Phaneuf's notes of his March 17, 1992 interview of Jane Doe 1, contained any material impeachment evidence. (See also Shleffar v. Superior Court (1986) 178 Cal.App.3d 937, 946 [speculation about prejudice because evidence is no longer available is insufficient to discharge defendant's burden of showing actual prejudice].)
At oral argument, the public defender claimed Alexander is distinguishable because it involved the destruction of audiotapes of further or subsequent witness interviews rather than the destruction of notes taken during an original witness interview, as in this case. This is a distinction without a difference. An actual showing of prejudice from the loss or destruction of evidence is required (People v. Alexander, supra, 49 Cal.4th at p. 875), and here, as in Alexander, defendant has not shown he was actually prejudiced by the destruction of Officer Phaneuf's notes.
Further, Jane Doe 1's March 17, 1992 interview statements to Officer Phaneuf were never recorded. Thus, defendant's inability to impeach Jane Doe 1 with a recording of her statements to the officer was by no means attributable to the precharging delay. Only the loss or destruction of evidence that is attributable to the delay in bringing charges is relevant to whether the defendant was prejudiced by the delay. (See People v. Catlin, supra, 26 Cal.4th at p. 107 [prejudice must be "'attributable to the delay'"].)
The court also found defendant was prejudiced because the police did not make a diagram of the interior layout of the rooms inside Jane Doe 1's house. To the extent defendant argues he was prejudiced by his inability to examine the house and make his own diagram, this claim fails. Defendant did not show the house no longer existed or that its interior could not be examined and measured. And, even though Jane Doe 1 and her husband no longer lived in the house, they submitted a diagram of its interior which was used at the preliminary hearing. During the preliminary hearing, Jane Doe 1 was examined at length about the distance defendant forced her and Jane Doe 2 to move inside the house. The house was 1,300-square-feet in size, and photographs of the house, the garage, the interior garage door area, and kitchen, all taken in 1992, were still available. Further, the distances that defendant allegedly forced Jane Does 1 and 2 to move inside the house, and whether those movements increased their risk of harm (§ 209, subd. (b)(1)) could reasonably be determined even without a diagram.
Lastly, the court found prejudice because the memories of unspecified witnesses would have faded over the course of more than 20 years. This finding amounted to an impermissible presumption of prejudice, not a finding based on substantial evidence of actual prejudice. Jane Doe 1's preliminary hearing testimony showed she recalled the March 17, 1992 incident in great detail, and defendant does not explain in what respects her memory had faded or, if so, how it would prejudice his defense. Nor was there any showing that Officer Phaneuf's memory had faded in any material respect. Contrary to defendant's claim in his moving papers that the officer had no independent recollection of the case, the officer testified he had an independent recollection of the case after he reviewed his 1992 police report. The officer said the incident stood out to him because he and Jane Doe 1 were the same age, and their children were the same age. For his part, defendant did not submit a declaration and did not testify at the hearing on the dismissal motion. In sum, there was no showing that any witnesses had suffered a material loss of memory, prejudicial to the defense.
Because insufficient evidence supports the trial court's conclusion that defendant was actually prejudiced by the over 20-year precharging delay, the motion to dismiss the charges should have been denied, and it is unnecessary to address the People's additional claims of error. Assuming, however, the record contains at least some evidence of actual prejudice, we address the People's additional claims that the court abused its discretion in concluding (1) defendant was further prejudiced by his inability to be sentenced to concurrent terms on the aggravated kidnapping charges, and (2) the People failed to present sufficient evidence of an adequate justification for the delay. C. Insufficient Evidence Shows Defendant Lost an Opportunity to Serve Concurrent Time on the Aggravated Kidnapping Charges
After the court found the precharging delay was prejudicial to defendant based on evidence that was no longer available or that never existed, the court found the delay further prejudiced defendant because he lost an opportunity to be sentenced on the aggravated kidnapping charges concurrently with the 30-year-to-life sentence he received in 1993 for the series of rapes or "assaults on women" in Riverside and Orange counties. The People claim this additional finding was an abuse of the court's discretion because it is based on speculation, and we agree.
In the context of a claim that a defendant's speedy trial rights have been violated, the defendant's lost opportunity to be sentenced on the charges concurrently with a sentence the defendant previously received cannot serve as the sole basis for finding the defendant was actually prejudiced by the delay in bringing the current charges to trial. (People v. Lowe (2007) 40 Cal.4th 937, 945.) Instead, the defendant must show the delay impaired the defendant's ability to defend the current charges, either because a witness has become unavailable, memories have faded, or other evidence has been lost or destroyed. (Ibid.)
Assuming the same analysis applies in the context of a claim that a precharging delay violated defendant's due process rights, and assuming further that defendant demonstrated at least slight actual prejudice as a result of the precharging delay here, insufficient evidence supports the court's finding that defendant would have been sentenced, or lost an opportunity to be sentenced, on the aggravated kidnapping charges concurrently with the 30-year-to-life sentence defendant received in 1993 for the series of "assaults on women" defendant committed in Riverside and Orange Counties.
In the trial court, defendant submitted a "criminal case print" of Riverside County Superior Court case No. CR45963, and we have taken judicial notice of that court record. (Evid. Code, §§ 452, subd. (d), 459.) The criminal case print shows that in 1993 defendant was sentenced to 30 years in prison on six counts of rape, robbery, and other offenses. The criminal case print does not show, but in the trial court the People and defense counsel agreed, that these six counts involved four separate victims in Riverside and Orange Counties. In all but one of the six counts, defendant admitted using a weapon. The criminal case print does not indicate that defendant received an eight-year concurrent sentence on any of the convictions. But even if defendant was sentenced to any concurrent terms in 1993, he did not show he would have been eligible for concurrent sentencing on the present aggravated kidnapping charges, had the present charges been filed and convictions obtained on them before defendant was sentenced in 1993.
As observed in Lowe, concurrent sentences are often not imposed due to the presence of aggravating factors. (People v. Lowe, supra, 40 Cal.4th at p. 946.) Aggravating factors are present if the crimes involve separate acts of violence or were committed at different times or places. (Cal. Rules of Court, rule 4.425(a)(2)(3).) The aggravated kidnapping charges plainly involved separate acts of violence, separate victims, and were committed at a different time and place than any of the crimes defendant was sentenced on in 1993.
Additionally, concurrent terms are prohibited on "multiple violent sex offenses" involving separate victims, including forcible rape convictions against separate victims. (§§ 667.6, subd. (d), 261, subd. (a)(2); Cal. Rules of Court, rule, 4.426(a)(1).) Thus, if the aggravated kidnapping count involving Jane Doe 1 were based on rape, rather than robbery, a concurrent term on that count would have been prohibited had that count been charged and a conviction obtained on it before defendant was sentenced in the 1993 cases. For that matter, defendant likely would have been charged with the forcible rape of Jane Doe 1 had defendant's identity been discovered in 1992 or 1993, because the limitations period on rape would not have expired in 1993. On this record, the court's finding that defendant lost an opportunity to be sentenced to concurrent terms on the aggravated kidnapping charges was speculative at best. D. The People Demonstrated an Adequate Justification for the Delay, and the Justification for the Delay Outweighed any Prejudice to Defendant
After finding slight evidence of prejudice, the court found the People did not meet their burden of showing the delay was based on any "valid police purpose necessitating the delay." Specifically, the court found the People did not present any competent evidence that the delay occurred because the RPD or the DOJ had insufficient resources for DNA testing in 1992. The People claim they offered "strong" justification for the delay, namely, that the delay was neither negligent nor purposeful, but purely investigative. We agree.
The court's ruling is based on the erroneous assumption that the People had an obligation to test Jane Doe 1's sexual assault examination kit as early as 1992, and were negligent in failing to do so, unless they proved they had insufficient resources to test the kit in 1992. As Nelson illustrates, this was error. The defendant in Nelson was charged in 2002 for a murder that occurred in 1976 based on DNA testing that was not performed until 2002. (Nelson, supra, 43 Cal.4th at p. 1247.) As here, the defendant claimed the state was negligent in failing to charge him until 2002, because the DNA technology used to identify him in 2002 existed years earlier, and therefore, the DNA evidence obtained in 1976 could and should have been tested much earlier. (Id. at p. 1256.)
In rejecting the defendant's negligence claim, Nelson explained: "A court may not find negligence by second-guessing how the state allocates its resources or how law enforcement agencies could have investigated a given case. '. . . [T]he difficulty in allocating scarce prosecutorial resources (as opposed to clearly intentional or negligent conduct) [is] a valid justification for delay . . . .'" (Nelson, supra, 43 Cal.4th at pp. 1256-1257, citing People v. Dunn-Gonzalez (1996) 47 Cal.App.4th 899, 915.) The Nelson court further explained: "It is not enough for a defendant to argue that if the prosecutorial agencies had made his or her case a higher priority or had done things a bit differently they would have solved the case sooner." (Nelson, supra, at p. 1257.)
Here, too, there is no indication that the RPD acted purposefully or negligently in failing to test the 1992 DNA evidence before 2011. Detective Cobb testified that by July 2011 the RPD had used the majority of a funding grant to test DNA evidence in cold case homicide files, and decided to use the rest of the grant to test DNA evidence in cold case sexual assault files. Thus, in July 2011, Detective Cobb and another RPD detective began reviewing cold case sexual assault files from 1987 through 2001, and selected this case and 11 others from among 114 such cold case files as the more egregious cases to be submitted to the DOJ for DNA testing. The DOJ advised Detective Cobb that it could not possibly accommodate the RPD by testing DNA in all 114 cases, but had the resources to test the DNA in 15 cases at most.
As observed in Nelson, the justification for a precharging delay is strong when there is "investigative delay, nothing else." (Nelson, supra, 43 Cal.4th at p. 1256; accord, People v. Cowan, supra, 50 Cal.4th at p. 431.) Here, as in Nelson, the delay was purely investigative. The delay was neither purposeful nor negligent.
Finally, the justification for the delay outweighed any prejudice defendant may have suffered as a result of the delay. As in Nelson, the record shows: "'[T]he delay was not for the purpose of gaining an advantage over the defendant. [Citation.] Indeed, the record does not even establish prosecutorial negligence. The delay was the result of insufficient evidence to identify defendant as a suspect and the limits of forensic technology. [Citations.] When the forensic technology became available to identify defendant as a suspect and to establish his guilt, the prosecution proceeded with promptness. Without question, the justification for the delay outweighed defendant's showing of prejudice.'" (Nelson, supra, 43 Cal.4th at p. 1257.)
IV
DISPOSITION
The December 4, 2015, order of dismissal is reversed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: HOLLENHORST
Acting P. J. McKINSTER
J.