Opinion
C081177
01-27-2017
THE PEOPLE, Plaintiff and Appellant, v. NADYELLI RAMIREZ-SERRANO, Defendant and Respondent.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15NCR10459)
The People challenge the trial court's order granting defendant Nadyelli Ramirez-Serrano's motion to dismiss the criminal complaint based on a prefiling delay. We will reverse the court's order and remand for further proceedings.
PROCEDURAL HISTORY
A recitation of the facts underlying the complaint against defendant is unnecessary for the disposition of this appeal.
On August 17, 2015, one day before the expiration of the three-year statute of limitations, defendant was charged by criminal complaint with three counts of willfully obtaining personal identifying information and using it for an unlawful purpose. (Pen. Code, § 530.5, subd. (a).) The crimes were alleged to have occurred between August 18 and August 20 of 2012.
On November 4, 2015, defendant filed a motion for dismissal of the complaint arguing the 36-month delay in prosecution was presumptively prejudicial and unreasonable and violated her federal and state rights to a speedy trial and due process.
On December 2, 2015, the People filed an opposition to defendant's motion to dismiss. The motion explained the delay in filing was due to "staffing issues of the District Attorney's Office." The People argued defendant's claim of a speedy trial violation lacked merit because the district attorney had yet to file an information or indictment and defendant had not been bound over to face an information through a preliminary hearing. The People further argued defendant's motion failed to provide evidence that the delay was either willful or for the purpose of gaining an advantage over defendant.
At the January 6, 2016 hearing on defendant's motion, the People, under the erroneous belief that defendant had submitted a declaration in support of her motion, requested to cross-examine defendant regarding the issue of actual prejudice. The trial court responded, "I don't think there has to be any shown." This colloquy followed:
"THE COURT: I don't find that the People's response concerning the district attorney's office at the time—this district attorney not being involved—that they were understaffed and, therefore, they waited one day before the statute to run [sic]. I don't find that convincing. I think that's inappropriate. [¶] And I don't see a declaration by the defendant.
"[THE PROSECUTION]: I believe there was mention of a motion.
"[DEFENSE COUNSEL]: There is no declaration.
"THE COURT: I didn't think so.
"[THE PROSECUTION]: Okay.
"THE COURT: Because there's no requirement to show actual prejudice. Although if there's actual—and there's argument. [Defense counsel] himself argued that there was implicitly occurring by virtue of the three-year delay. I don't find that convincing either because that is not from the defendant.
"[THE PROSECUTION]: Right. Well, in regards from the People's perspective, it's not a matter of why there was the delay. The delay—the filing was within the statute of limitations. So because we were within the statute of limitations, we are fully within the rights and ability to file for it. So it would be inappropriate to dismiss it just because it happens to be closer to one end mark versus a different mark during that three-year period."
The trial court granted defendant's motion, concluding as follows: "Based upon the points and authorities that have been submitted by the defendant under [Barker v.] Wingo and Serna[ v. Superior Court], I find that the delay is inappropriate. There is no basis for it. I don't find good cause from the People saying that they didn't have the staff to do it."
The trial court was referring to Barker v. Wingo (1972) 407 U.S. 514 (Barker) and Serna v. Superior Court (1985) 40 Cal.3d 239 (Serna).
In Barker, the United States Supreme Court adopted a balancing test for analyzing speedy trial cases under the Sixth Amendment, requiring courts to consider the conduct of both the prosecution and the defendant. Among the factors to be assessed are the length of the delay, the reason for the delay, the defendant's assertion of his or her right, and the prejudice to the defendant. (Barker, supra, 407 U.S. at p. 530 [33 L.Ed.2d at pp. 116117].) None of these factors have "talismanic qualities" (id. at p. 533 118) and none is a necessary or sufficient condition to finding a deprivation of the right to speedy trial (ibid.). "Rather, they are related factors and must be considered together with such other circumstances as may be relevant." (Ibid.)
In Serna, the California Supreme Court held that, under the California Constitution, a misdemeanant defendant's right to a speedy trial (art. I, § 15) attaches on the date the accusatory pleading is filed or at the time of arrest, whichever occurs first (Serna, supra, 40 Cal.3d at p. 262), and applied a balancing test identical to the one used in Barker to determine whether the delay was unreasonable and the right to speedy trial violated (id. at pp. 262263).
The People filed a timely notice of appeal.
DISCUSSION
The People contend the trial court abused its discretion when it granted defendant's motion to dismiss the complaint based on a prefiling delay because the complaint was filed prior to the expiration of the statute of limitations and defendant failed to establish actual prejudice. Arguing the trial court's application of the Barker factors was improper because defendant's Sixth Amendment speedy trial rights had not yet attached, the People claim defendant's failure to make an initial showing of actual prejudice was fatal to her attempt to dismiss the complaint based on speedy trial or due process claims.
Defendant argues the trial court properly exercised its discretion to dismiss the complaint because the prefiling delay resulted in a violation of her right to due process. The People have the better argument.
It appears defendant has abandoned her claim below that the precomplaint delay violated her speedy trial rights, focusing solely on her claim that the delay violated her right to due process.
"[P]rearrest or precharging delay does not implicate the defendant's state and federal speedy trial rights (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15), as those rights do not attach until a defendant has been arrested or a charging document has been filed." (People v. Cowan (2010) 50 Cal.4th 401, 430-431 (Cowan); accord, People v. Martinez (2000) 22 Cal.4th 750, 767-768; Garcia v. Superior Court (1984) 163 Cal.App.3d 148, 151.)
"There is no general right to a prosecution speedier than that laid down by the statute of limitations. One does not become an accused until the filing of a complaint. The provisions of the Sixth Amendment contemplate a pending charge, not the mere possibility of a criminal charge." (People v. Archerd (1970) 3 Cal.3d 615, 639 (Archerd).)
"[D]ue process is the appropriate test to be applied to a delay occurring after a crime is committed but before a formal complaint is filed or the defendant is arrested. But regardless of whether defendant's claim is based on a due process analysis or a right to a speedy trial not defined by statute, the test is the same, i.e., any prejudice to the defendant resulting from the delay must be weighed against justification for the delay." (Scherling v. Superior Court (1978) 22 Cal.3d 493, 505; see United States v. Lovasco (1977) 431 U.S. 783, 792-796 [52 L.Ed.2d 752, 760-763]; Cowan, supra, 50 Cal.4th at pp. 430-431.)
"In determining whether a criminal defendant's due process right to a fair trial has been violated, we employ a three-step test. [Citation.] The defendant has the initial burden of showing prejudice as a result of the delay; the prosecution then must show justification for the delay; thereafter, the court balances the harm against the justification." (People v. Hartman (1985) 170 Cal.App.3d 572, 579 (Hartman); accord, People v. Morris (1988) 46 Cal.3d 1, 37-38 (Morris), disapproved on other grounds in In re Sassounian (1995) 9 Cal.4th 535, 543-544, fn. 5.) " 'The showing of prejudice requires some evidence and cannot be presumed. [Citations.]' [Citations.] Prejudice may be shown by loss of material witnesses due to lapse of time [citation] or loss of evidence because of fading memory attributable to the delay." (Morris, at p. 37.)
"The actual amount of time between the commission of the crime and the filing of charges is not the critical issue in determining prejudice. [Citation.] Prejudice sufficient to sustain dismissal has resulted after a delay of five months [citation], while charges filed after a delay of 10 years have been upheld [citation]. A defendant must show actual prejudice based on the facts of the case." (Hartman, supra, 170 Cal.App.3d at p. 579; accord, People v. Belton (1992) 6 Cal.App.4th 1425, 1433.)
"Prejudice . . . may be shown by the loss of a material witness or other missing evidence or fading memory caused by lapse of time. If the government deliberately utilizes delay to strengthen its position by weakening that of the defense or otherwise impairs a defendant's right to a fair trial, an inordinate pre-indictment delay may be shown to be prejudicial. . . . The delay must be purposeful, oppressive, and even 'smack of deliberate obstruction on the part of the government,' before relief will be granted." (Archerd, supra, 3 Cal.3d at p. 640; accord, People v. Martinez (1995) 37 Cal.App.4th 1589, 1593.)
We review a trial court's decision to grant or deny a motion to dismiss for precomplaint delay for abuse of discretion. (Cowan, supra, 50 Cal.4th at p. 431; Morris, supra, 46 Cal.3d at p. 38.) "Whether pre-arrest delay is unreasonable and prejudicial to the defendant is a question of fact. . . . The trial court's ruling must be upheld on appeal if it is supported by substantial evidence." (People v. Dunn-Gonzalez (1996) 47 Cal.App.4th 899, 911-912 (Dunn-Gonzalez).)
As the People correctly argue, and defendant appears to concede, the delay did not implicate defendant's speedy trial rights because the criminal complaint had not yet been filed, defendant was freed without restraint immediately following her 2012 arrest, and there were no charges pending against her from the time of her arrest and immediate release in 2012 until the complaint was filed against her in 2015. "The speedy trial guarantee is designed to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges. [¶] Once charges are dismissed, the speedy trial guarantee is no longer applicable. At that point, the formerly accused is, at most, in the same position as any other subject of a criminal investigation. Certainly the knowledge of an ongoing criminal investigation will cause stress, discomfort, and perhaps a certain disruption in normal life. This is true whether or not charges have been filed and then dismissed. . . . But with no charges outstanding, personal liberty is certainly not impaired to the same degree as it is after arrest while charges are pending. After the charges against [her] have been dismissed, 'a citizen suffers no restraints on [her] liberty and is [no longer] the subject of public accusation: [Her] situation does not compare with that of a defendant who has been arrested and held to answer.' [Citation.] Following dismissal of charges, any restraint on liberty, disruption of employment, strain on financial resources, and exposure to public obloquy, stress and anxiety is no greater than it is upon anyone openly subject to a criminal investigation." (United States v. MacDonald (1982) 456 U.S. 1, 8-9 [71 L.Ed.2d 696, 704].)
According to defendant's motion to dismiss, defendant "was arrested on August 21, 2012, and released from custody on bail bond the following day." --------
With respect to defendant's claim for relief based on due process, the trial court erroneously concluded she did not have the initial burden to show actual prejudice. (Morris, supra, 46 Cal.3d at p. 38; Hartman, supra, 170 Cal.App.3d at p. 579.)
Defendant argues she met her initial burden by arguing in her motion to dismiss that she "suffered actual prejudice due to a faded memory, and because of her faded memory and the passage of time she was unable to locate exculpatory evidence."
The People claim defendant's assertion was insufficient to establish actual prejudice because she failed to submit a declaration regarding her fading memory or demonstrate that she made any effort to refresh her recollection in that regard. We agree.
The trial court "need not accept a conclusory statement that the lack of recall demonstrates prejudice where no effort has been made to ascertain the basis for the charge." (Serna, supra, 40 Cal.3d at p. 250.) "Lack of recall may establish prejudice, but only on a showing that the memory loss persists after reasonable attempts to refresh recollection. 'The showing of actual prejudice which the law requires must be supported by particular facts and not . . . by bare conclusionary statements.' " (Ibid., quoting Crockett v. Superior Court (1975) 14 Cal.3d 433, 442.)
Defendant's motion to dismiss argued as follows: "In addition to having little memory of the events and therefore no ability to defend against the charges and no way to obtain exculpatory evidence given the passage of time, defendant has jeopardized her ability to obtain future employment, been subjected to public scorn, and forced to disrupt her present life to defend against these charges." Defendant failed to provide support for the prejudice argument by either a declaration or testimony at the hearing. Her claim of prejudice was general and conclusory, made no mention of any of the particular facts of the case, and omitted any reference to the incidents underlying the charges or which material witnesses and what evidence, if any, had been lost. Further, defendant's claim reflected no effort whatsoever by her to attempt to refresh her recollection.
Because defendant failed to meet her initial burden of showing actual prejudice, the requirement that the People offer a reason for the delay was not triggered. "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." (Dunn-Gonzalez, supra, 47 Cal.App.4th at p. 911.)
The trial court abused its discretion in granting defendant's motion to dismiss the complaint. We will reverse and remand for the trial court to determine whether defendant can meet her initial burden of showing actual prejudice "based on the facts of the case" (Hartman, supra, 170 Cal.App.3d at p. 579) and in a manner consistent with this opinion. If defendant meets her initial burden, then and only then must the prosecution provide its justification for the delay, against which the court must weigh defendant's prejudice. (Morris, supra, 46 Cal.3d at pp. 37-38; Hartman, supra, at p. 579.)
DISPOSITION
The judgment is reversed and the matter is remanded to the trial court for further proceedings consistent with this opinion.
BUTZ, J. We concur: HULL, Acting P. J. MAURO, J.