Opinion
E079341
10-17-2023
THE PEOPLE, Plaintiff and Respondent, v. KORY ALLAN ROBINSON, Defendant and Appellant.
Wallin &Klarich and Stephen D. Klarich for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, A. Natasha Cortina and Stephanie A. Mitchell, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County, No. FSB20001465 Ronald M. Christianson. (Retired Judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Wallin &Klarich and Stephen D. Klarich for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, A. Natasha Cortina and Stephanie A. Mitchell, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FIELDS, J.
INTRODUCTION
A jury convicted defendant and appellant Kory Allan Robinson of oral copulation of a child 10 years old or younger (Pen. Code, § 288.7, subd. (b), count 1) and committing a lewd act upon a child under the age of 14 (§ 288, subd. (a), count 2).) The trial court sentenced defendant to 15 years to life in state prison on count 1 and imposed a 6-year term on count 2, but stayed it under section 654.
All further statutory references will be to the Penal Code, unless otherwise indicated.
On appeal, defendant contends his convictions should be reversed because his right to a speedy trial under the federal constitution was violated. We affirm.
FACTUAL BACKGROUND
In November 2019, defendant was living with his fiancee, M.M., and their daughter. Defendant had two other daughters, with different women, who would stay with them. His 8-year-old daughter (the victim) stayed with them most weekends. When the victim stayed overnight with them, M.M. usually put her to bed. Defendant put her to bed occasionally and did not usually read her a bedtime story. On November 30, defendant was in charge of putting the victim to bed, since M.M. was studying for her online class in the master bedroom. Defendant checked on M.M. a few times that night, while she was studying. The third time he checked on her, he asked if she was hungry and offered to make a frozen burrito, since he was making one for himself. She said no, and she heard him start the microwave. M.M. heard the microwave beep for 40 minutes and went to go look for defendant. She checked around the house and backyard. When she came to the victim's room, the door was closed. M.M. opened the door and saw the victim on the bed with her legs in the air and her underwear pulled down. Defendant was on his knees with his head between her thighs. M.M. observed him touching the victim's private area with his face, and moving his head back and forth. When defendant realized M.M. was in the room, he stopped, and the victim went under the covers. Defendant jumped up and asked what M.M. was doing and wiped his mouth. M.M. yelled at him to get out, and he said he was reading the victim a book.
M.M. called defendant's stepmother and said she just saw defendant molesting the victim. The stepmother called the police. The police arrived, and the stepmother came about 15 minutes later. M.M. informed the officer that she had taken medication and smoked marijuana that evening for her anxiety, but she had no doubt about what she saw defendant doing.
At trial, one of the police officers who responded to the scene testified that he booked into evidence the underwear the victim was wearing at the time of the incident. The police detective assigned to be in charge of the investigation had defendant swabbed for his DNA, and the swabs were booked into evidence. The detective testified that his office received a DNA analysis report, which said there was a match for defendant on the victim's underwear.
The criminalist who performed the DNA analysis testified that swabs were taken from four different places on the victim's underwear. A sample was taken from the inside crotch area, and he determined there was a mixture of DNA from at least two individuals, and one of them was male. Since the underwear belonged to the victim, he assumed that she was one of the contributors. The criminalist testified that the DNA was 180 septillion times more likely to be from the victim and defendant than the victim and some unknown, unrelated person. The criminalist also detected a low level of amylase, which is an enzyme found in "very high concentrations in saliva." The low level detected meant that saliva may or may not be present; in other words, he could not tell from the amount detected.
As to the sample taken from the inside front of the underwear, the criminalist determined that it contained the presence of the DNA of at least three individuals, one of which was male. He testified that the DNA detected was at least 120 septillion times more likely to be from the victim, defendant, and another contributor than from the victim and two unknown, unrelated persons. The criminalist did not detect any amylase in this area of the underwear.
As to the sample taken from the back part of the underwear, the criminalist detected DNA from two individuals, one of them male. He assumed one of the individuals was the victim, and determined that the DNA was 41 septillion times more likely to be from the victim and defendant than the victim and an unknown person. There was a low level of amylase detected, so the criminalist could not say whether or not saliva was present.
The criminalist analyzed a material cutting from the crotch area of the victim's underwear. He detected a high level of amylase, which indicated the presence of saliva, although he explained that a high level of amylase could come from saliva or fecal matter. The cutting also had a mixture of the DNA of two individuals, including at least one male. Assuming one of the contributors of the DNA was the victim, the criminalist testified that the DNA was 230 septillion times more likely to be from the victim and defendant than the victim and an unknown person. The criminalist concluded: "[B]ased on this being underwear from a female, finding that amount of male DNA and finding that amount of amylase activity, I would say it's a good possibility that that male DNA came from saliva ...." Further, based on his analysis of the cutting, the criminalist opined that defendant was the source of the DNA.
The tapes of the victim's interviews with the responding police officers and the forensic investigator were played for the jury. The victim told the officers that defendant did not do anything to her and said he read her a bedtime story. The victim also told the forensic interviewer that defendant read her a story and then walked out of the room.
DISCUSSION
Defendant's Federal Constitutional Right to a Speedy Trial Was Not Violated
Defendant argues that his federal constitutional right to a speedy trial was violated. He asserts that a felony complaint was filed against him on May 21, 2020, and the parties did not announce they were ready for jury trial until April 4, 2022. However, at that time, the court stated there were no courtrooms available and announced that it would extend the trial deadline to May 16, 2022, pursuant to emergency Covid-19 orders. Defendant claims the extension was done over defense objection and in violation of his speedy trial rights, since the trial did not commence until May 16, 2022-725 days after the filing of the complaint. The People argue that defendant has miscalculated the length of the delay and that his right to a speedy trial was not violated. We agree with the People.
We reserved ruling for consideration with the appeal on the People's request for judicial notice, filed on July 5, 2023. The People requested we take judicial notice of: (1) the March 28, 2022 emergency order issued by former Chief Justice Tani Cantil-Sakauye (the former Chief Justice) stating that because of the Covid-19 pandemic, the San Bernardino Superior Court was authorized to extend the time period for holding a criminal trial by 30 days, applicable to cases in which the original or previously extended statutory deadline otherwise would expire from April 1, 2022, to April 30, 2022; and (2) the March 29, 2022 Emergency General Order of the Presiding Judge of the San Bernardino Superior Court (the Presiding Judge) stating that, in accordance with the former Chief Justice's emergency order, the time for conducting criminal trials under section 1382 was extended up to 30 days. (Request for Judicial Notice (RJN) pp. 6-8, 11) We now grant the People's request. (Evid. Code, §§ 459, subd. (a), 452, subd. (c).)
A. Relevant Law
"A California defendant generally has three sources of the right to a speedy trial: (1) the Sixth Amendment to the federal Constitution, as applied to the states through the due process clause of the Fourteenth Amendment; (2) article I, section 15 of the California Constitution; and (3) statutory enactments, such as Penal Code section 1382." (People v. Bradley (2020) 51 Cal.App.5th 32, 38 (Bradley), overruled in part on other grounds in Camacho v. Superior Court (2023) 15 Cal.5th 354, 376.) Here, defendant has not invoked the provisions of section 1382, but rather claims he has been denied due process and his federal constitutional right to speedy trial.
"The Sixth Amendment to the federal Constitution, as applied to the states through the due process clause of the Fourteenth Amendment [citation.], guarantees a criminal defendant the 'right to a speedy and public trial.'" (People v. Harrison (2005) 35 Cal.4th 208, 225.) "To determine whether defendant's federal right was violated, we evaluate the length of the delay, the reason for the delay, defendant's assertion of his right, and the prejudice to defendant." (Id. at p. 227, citing Barker v. Wingo (1972) 407 U.S. 514, 530 (Barker).) "None of these four factors is 'either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant.' [Citation.] 'The burden of demonstrating a speedy trial violation under Barker's multifactor test lies with the defendant.'" (Bradley, supra, 51 Cal.App.5th at p. 41.)
"The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance." (Barker, supra, 407 U.S. at p. 530.) "[B]ecause of the imprecision of the right to speedy trial, the length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case." (Id. at pp. 530-531.) "[C]ourts have generally found postaccusation delay 'presumptively prejudicial' at least as it approaches one year." (Doggett v. United States (1992) 505 U.S. 647, 652, fn. 1 (Doggett).) "[A]s the term is used in this threshold context, 'presumptive prejudice' does not necessarily indicate a statistical probability of prejudice; it simply marks the point at which courts deem the delay unreasonable enough to trigger the Barker enquiry." (Ibid.)
B. The Barker Test
Under the four-part Barker test, we conclude that defendant's right to a speedy trial was not violated.
1. The Length of the Delay
At the outset, we agree with the People that defendant has miscalculated the length of the delay. He claims the initial threshold of showing the delay was presumptively prejudicial has been met, since there was a 725-day delay between the filing of the original complaint on May 21, 2020, and the commencement of the trial on May 16, 2022. However, under the federal Constitution, "the filing of a felony complaint is by itself insufficient to trigger speedy trial protection. [Citation.] The United States Supreme Court has defined the point at which the federal speedy trial right begins to operate: '[I]t is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment.'" (People v. Martinez (2000) 22 Cal.4th 750, 754-755 (Martinez), citing United States v. Marion (1971) 404 U.S. 307, 320 (Marion).) In other words, under the federal Constitution, "the speedy trial right does not attach upon the filing of a felony complaint, but only upon either arrest with continuing restraint or the filing of an indictment, an information, or a complaint charging a misdemeanor." (Martinez, at p. 765.)
Since "the speedy trial protection afforded by the federal Constitution does not extend to the filing of a complaint" (Blake v. Superior Court (1980) 108 Cal.App.3d 244, 251), the complaint filed in May 2020 did not trigger defendant's federal speedy trial right. Rather, defendant's right to a speedy trial attached when the information in this case was filed, which was on March 24, 2021. (Martinez, supra, 22 Cal.4th at p. 765.) We note that defendant was out of custody following his arrest and throughout the trial, which began on May 16, 2022. Thus, for purposes of his federal constitutional claim, there was about a 13-month delay between the filing of the information and the commencement of the trial.
In his reply brief, defendant argues the People are incorrect in stating that the speedy trial right attaches when the indictment is filed, and he cites Marion, supra, 404 U.S. 307. However, in that case, the Supreme Court defined the point at which the speedy trial right begins to operate as "either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge." (Id. at p. 320; see Martinez, supra, 22 Cal.4th at p. 755.) We note that defendant was not arrested "with continuing restraint." (Martinez, at p. 765.) He then claims that Betterman v. Montana (2016) 578 U.S. 437 (Betterman) "punctuates this point," and he reasserts that "the formulation of time as specified in [his] Opening Brief" is correct. However, the sole issue in Betterman was whether the Sixth Amendment's speedy trial guarantee applied to the sentencing phase of a criminal prosecution. (Id. at p. 439.) The Supreme Court held that the Speedy Trial Clause "does not apply to delayed sentencing." (Id. at pp. 440-441.)
Significantly, as he concedes, defendant had "waived" time for most of that time period. Thus, he relinquished his right to a speedy trial. (People v. Seaton (2001) 26 Cal.4th 598, 634 [The defendant "sought the continuance or 'personally waived time': that is, he formally and knowingly relinquished his right to a speedy trial for the period covered by each continuance."].) Defendant did not assert his right to a speedy trial until April 4, 2022, and the trial commenced on May 16, 2022. Therefore, his trial was delayed approximately 42 days following the assertion of his right to a speedy trial.
Defendant concedes, and the record confirms, that he waived time up until April 6, 2022.
A delay of 42 days is not presumptively prejudicial. (See Doggett, supra, 505 U.S. at p. 652, fn. 1.) Accordingly, it is not necessary for us to inquire into the other Barker factors. (Barker, supra, 407 U.S. at p. 530.) However, even if we consider defendant's claim based on a delay of 13 months (from the time the information was filed), we conclude that defendant was not deprived of his right to a speedy trial, in consideration of the other Barker factors.
2. The Reason for the Delay
Regarding the reason for the delay, "different weights should be assigned to different reasons." (Barker, supra, 407 U.S. at p. 531.) "A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily.... Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay." (Ibid.)
Defendant recognizes that the reason for the delay here was the Covid-19 pandemic (the pandemic). However, he contends that the United States Supreme Court "has not given carte blanche to conclusional statements of public health authorities on the need to close certain facilities that impact upon fundamental rights . . . where other measures could have been taken to preserve public health and protect constitutional freedoms and rights." He contends that, in the past, our judiciary "was creative in finding ways to see to it that cases were adjudicated in a timely manner and in such a way so that members of the public and jurors could be present at court proceedings" and claims that "similar efforts could and should have been endeavored here." Defendant concludes that "given that other activities were permitted to be conducted . . .[,] there is no reason to have had the backlog of cases that the court system had here by April 2022."
In support of this position, defendant cites Roman Catholic Diocese v. Cuomo (2020) 141 S.Ct. 63 (Roman Catholic) and S. Bay United Pentecostal Church v. Newsom (2021) 141 S.Ct. 716 (South Bay United). However, these cases are distinguishable and do not stand for his broad proposition. Roman Catholic concerned the disparate treatment/application of the governor's Covid-19 restrictions on houses of worship versus comparable secular facilities. (Roman Catholic, supra, 141 S.Ct. at pp. 65-67.) South Bay United concerned the government's total ban on indoor worship services. (South Bay United, supra, 141 S.Ct. at p. 716.) In contrast, the instant case concerns a delay in a criminal trial proceeding.
We note defendant appears to be arguing that the pandemic was the sole reason for the delay. However, as discussed ante, he waived time up until April 6, 2022, which contributed to the delay. (See § B.1., ante.) We further observe that the parties stipulated to continuing the matter at least three times-on July 16, 2021, September 10, 2021, and April 1, 2022.
In any event, the court properly extended the date of the trial, pursuant to the emergency orders extending dates for criminal trials due to the pandemic. At the outset of the hearing on April 4, 2022, the court stated: "I have a time waiver. I do not have a courtroom for this case. It does not have priority, time waived until the sixth which gives me a soft 10 beyond that. And it is with counsel's prior approval that the Court will implement the emergency order to be the effective . . . 10 days beyond that waiver which is April 14. It is applied over defense objection asserting speedy trial rights. Your last new day is going to be May 16." The trial commenced on May 16, 2022.
Pursuant to section 1382, "the defendant in a felony case must be brought to trial within 60 days of his arraignment on an indictment or information unless, on a good cause showing, the court lengthens the time." (Elias v. Superior Court (2022) 78 Cal.App.5th 926, 937 (Elias).) The defendant may enter a general waiver of the 60 day requirement. (§ 1382, subd. (a)(2)(A).) When a case is set for trial beyond the 60-day period, there is a 10-day grace period. (§ 1382, subd. (a)(2)(B).)
The court's order continuing the matter based on the emergency orders of the former Chief Justice and the Presiding Judge must be understood within the context of the issues facing the court as a result of the pandemic. The general order issued by the Presiding Judge dated March 28, 2022 (the Presiding Judge's order) stated that the pandemic had adversely affected court operations, "particularly the court's backlog of criminal matters." (RJN at p. 7) The Presiding Judge's order explained that there had been a recent surge in Covid cases, and the court was experiencing substantial practical challenges with scheduling criminal jury trials because of extreme shortages of staff, due to a significant number of quarantined judges and court reporters. (RJN pp. 7-8) The Presiding Judge noted that, during the pandemic, the former Chief Justice had issued several emergency orders, permitting courts to extend dates for criminal trials and that the court had "implemented every reasonable measure to bring criminal cases to trial." (RJN at p. 8) Thus, in accordance with the former Chief Justice's March 28, 2022 emergency order, the Presiding Judge extended the time for conducting criminal trials under section 1382 up to an additional 30 days. (RJN at p. 8)
The trial court extended the trial date here because it "[did] not have a courtroom." The court's reason for delaying defendant's trial until May 16, 2022, was consistent with the Presiding Judge's order concerning the challenges caused by the pandemic with regard to the lack of courtrooms available. Contrary to defendant's claim that "there [was] no reason to have had the backlog of cases that the court system had here by April 2022," the Presiding Judge's order clearly explained that the backlog was due to the lack of sufficient staff during the pandemic. We note that courts have held that delay and docket congestion caused by the pandemic constituted good cause to extend section 1382's 60-day deadline. (See, e.g., Stanley v. Superior Court (2020) 50 Cal.App.5th 164, 167-168; Elias, supra, 78 Cal.App.5th at p. 941.)
We conclude the court here properly found there was good cause to continue the matter, based on the Presiding Judge's and the former Chief Justice's emergency orders. The exceptional circumstance of the pandemic was certainly a valid reason that justified the delay. (See Barker, supra, 407 U.S. at p. 531.)
3. Defendant's Assertion of His Right
As discussed, defendant waived time through April 6, 2022, and did not assert his right to a speedy trial until April 4, 2022. This demonstrates that most of the delay came with defendant's consent.
4. Prejudice to the Defendant
Defendant argues he suffered prejudice since the trial commenced 888 days after the victim's forensic interview and 898 days after the alleged incident. He notes the parties agreed the victim would not be called as a witness, but then speculates that the only reason both sides would have stipulated was the victim's "lack of clear memory of the night in question due to [the] passage of time." He contends that if the trial had occurred within the speedy trial timeframe, the victim could have testified and made "a powerful statement that nothing happened to her" in front of the jury. Thus, he claims he was "deprived of his ability to have her testify . . . when her memory was fresh, which undoubtedly hurt his case." We disagree.
We note this timeline is different than the timeline defendant asserts in his initial claim concerning the length of the delay-that the trial commenced 725 days after the original complaint was filed.
In his reply brief, defendant adds that "being under accusation for such an extended time as here . . . cannot be put aside or minimized." To the extent he is claiming he was prejudiced in this respect, he did not raise such claim in his opening brief. "[A] point raised for the first time therein is deemed waived and will not be considered, unless good reason is shown for failure to present it before. [Citations.] No good cause is shown here." (People v. Baniqued (2000) 85 Cal.App.4th 13, 29.)
Prejudice "should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired." (Barker, supra, 407 U.S. at p. 532.) Here, defendant just claims his defense was impaired by the delay in the trial. However, his claim that the victim would or could have testified if the trial had occurred sooner is unsupported by the record. As defendant acknowledges, both parties agreed not to call the victim to testify. He claims the victim's lack of clear memory of the incident due to the passage of time "would provide the only logical explanation as to why both sides would have stipulated." However, this claim is pure speculation.
The parties further agreed that the victim's prior statements to law enforcement and her forensic interview would be played at the trial, without any hearsay objections. Accordingly, the tapes of the victim's police and forensic interviews, in which she denied that defendant did anything to her, were played for the jury. The victim's prior statements and forensic interview were unquestionably favorable to the defendant; and, by virtue of their use by the parties in lieu of her live testimony, they were not subject to cross-examination by the People.
We additionally note the evidence against defendant was strong. M.M. testified in detail that she observed him orally copulating the victim. Furthermore, her testimony was corroborated by DNA evidence. Defendant's DNA was detected on the inside of the victim's underwear. The criminalist testified the probability that the DNA detected in a different part of the underwear belonged to defendant was statistically very high. Notably, the criminalist opined that, based on the evidence, defendant's saliva was the source of the DNA found in the crotch area of the victim's underwear.
Therefore, we cannot say defendant was prejudiced by the delay in the criminal trial.
5. Conclusion
In balancing the Barker factors, we conclude that defendant's right to a speedy trial under the federal constitution was not violated.
DISPOSITION
The judgment is affirmed.
We concur: McKINSTER Acting P.J., RAPHAEL J.