Opinion
B295061
04-17-2020
THE PEOPLE, Plaintiff and Respondent, v. LUIS ENRIQUE SALTO, Defendant and Appellant.
Michael R. McDonnell for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven E. Mercer and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA461926) APPEAL from an order of the Superior Court of Los Angeles County, Norman J. Shapiro, Judge. Affirmed. Michael R. McDonnell for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven E. Mercer and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.
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Appellant Luis Salto appeals from the trial court's judgment convicting him of manufacturing a controlled substance. On appeal, Salto contends the trial court abused its discretion by denying Salto's motion to dismiss the charges filed against him three years after the Long Beach Police Department concluded its investigation. We affirm.
FACTUAL AND PROCEDURAL HISTORY
A. Relevant Facts Underlying Charges
On October 20, 2014, Long Beach police detective Luis Rodriguez conducted surveillance on Salto and other individuals, culminating in the search of a suspected drug laboratory in a Bellflower residence that same day. The search revealed a number of firearms and over 20 kilograms of methamphetamine. Rodriguez opined that the residence was being used to manufacture and store methamphetamine. Salto was arrested but released without charges having been filed.
During the search, Long Beach police detective David Urbina spoke with an elderly man named Serefino Arroyo who resided in the Bellflower residence. Arroyo was in the restroom when the detectives served the search warrant. Arroyo told Urbina that he did not have any knowledge of what was occurring in the house. Arroyo recalled opening the door for someone but did not remember who. Arroyo was not able to recall anything else about the incident.
Arroyo died on April 16, 2017. B. Delay in Filing Charges
Rodriguez did not immediately seek to file the case against Salto because a United States Drug Enforcement Administration (DEA) agent told Rodriguez that federal agents had wiretapped Salto's phone as part of an ongoing investigation that expanded around and beyond Salto. The agent stated Salto would eventually be federally indicted as part of a conspiracy, but the DEA was not ready to jeopardize its larger investigation at that time.
Over the next few years, Rodriguez continued to make inquiries to the federal agents regarding their investigation involving Salto. Around August 2017, the federal agents finalized their investigation and indicted subjects other than Salto. The federal agents told Rodriguez he could bring his case against Salto to the Los Angeles District Attorney's office's attention for a filing recommendation. Before filing charges, Rodriguez spent time obtaining discovery that would be used in the case once filed. Rodriguez submitted a filing recommendation to the district attorney's office in October 2017. C. The Charges
The district attorney filed a complaint against Salto on October 16, 2017; Salto was arrested and arraigned in March 2018.
The information filed by the district attorney's office on July 6, 2018, charged Salto with possession for sale of a controlled substance containing methamphetamine exceeding 20 kilograms (Health & Saf. Code §§ 11378, 11370.4, subd. (b)(4)) (Count One), and with manufacturing a controlled substance other than PCP (Health & Saf. Code § 11379.6, subd. (a)) (Count Two).
D. Preliminary Hearing and Hearing on Motion to Dismiss
On June 22, 2018, Salto moved to dismiss the charges against him based on an alleged violation of his speedy trial rights. The court heard the motion in conjunction with the preliminary hearing and denied it.
Salto's moving papers and any opposition are not included in the record on appeal. In a footnote in his brief, Salto requests that this court augment the record to include these filings. Salto has not at any time sought to provide a copy of the filings to this Court. While an augmentation request does not require a noticed motion, ". . . sound principles of judicial management and administration require that a party desiring to augment the record take the necessary action as early as practicable. . . . informal requests for augmentation made after a reasonable time has expired from receiving the record on appeal, and particularly as late as those contained in briefs, will be denied absent a strong showing of unusual or unavoidable circumstances giving rise to the delay." (People v. Preslie (1977) 70 Cal.App.3d 486, 491-492 (Preslie).) Salto offers no justification for the delayed augmentation request; we deny it.
Salto also refers to a writ petition, which he asserts was summarily denied. Salto failed to include the petition in the appellate record, although, in his briefing, he requests this court take judicial notice of the petition. Salto fails to present any argument supporting the relevance of the petition; we deny this request.
Addressing Salto's motion, the court noted, "I don't think there's been a showing of much prejudice. The witness who died appears to be particularly uninvolved in much of anything. Any testimony he might have given is wholly speculative, assuming that there's enough showing to shift the burden. I think the pending federal investigation was a valid reason for delaying the prosecution. The people acted swiftly after learning that the federal prosecution was no longer a problem for them. So I just don't see a basis for due process here." When given a chance to argue Salto's motion, Salto's counsel submitted without further argument.
E. Plea and Sentencing Hearing
Although Salto initially pled not guilty to each count, he entered a plea on Count Two at the January 9, 2019 hearing pursuant to a plea agreement, and the court dismissed Count One. The court found Salto guilty on Count Two and sentenced him to seven years in county jail: four years in local custody with 700 days credit, followed by three years of post-release mandatory supervision.
F. Appeal
On January 9, 2019, Salto obtained a certificate of probable cause and appealed the judgment based on the court's denial of his speedy trial motion.
DISCUSSION
A. The Trial Court Did Not Abuse its Discretion When it Denied Salto's Motion to Dismiss
1. Applicable Standard of Review
"'We review for abuse of discretion a trial court's ruling on a motion to dismiss for prejudicial prearrest delay [citation], and defer to any underlying factual findings if substantial evidence supports them [citation].' [Citation.] In evaluating the correctness of a trial court's denial of a defendant's speedy trial motion, we consider all evidence that was before the court at the time the trial court ruled on the motion. [Citation.]" (People v. Jones (2013) 57 Cal.4th 899, 922 (Jones).)
"'Under the abuse of discretion standard, "a trial court's ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice."' [Citation.]" (Jones, supra, 57 Cal.4th at p. 924; see also People v. Dunn-Gonzalez (1996) 47 Cal.App.4th 899, 911-912 (Dunn-Gonzalez) ["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. [Citation.]"].)
2. Summary of Applicable Legal Principles
"'A defendant's state and federal constitutional speedy trial rights [citations] do not attach before the defendant is arrested or a charging document has been filed. [Citation.] Nonetheless, a defendant is not without recourse if a delay in filing charges is prejudicial and unjustified. The statute of limitations is usually considered the primary guarantee against overly stale criminal charges [citation], but 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. . . .' [Citation.]" (Jones, supra, 57 Cal.4th at p. 921.)
"'A defendant seeking relief for undue delay in filing charges must first demonstrate resulting prejudice, such as by showing the loss of a material witness or other missing evidence, or fading memory caused by the lapse of time. [Citation.] Prejudice to a defendant from precharging delay is not presumed. [Citations.] In addition, although "under California law, negligent, as well as purposeful, delay in bringing charges may, when accompanied by a showing of prejudice, violate due process [. . . .,] [i]f the delay was merely negligent, a greater showing of prejudice would be required to establish a due process violation." [Citation.] If the defendant establishes prejudice, the prosecution may offer justification for the delay; the court considering a motion to dismiss then balances the harm to the defendant against the justification for the delay. [Citation.] . . . .' [Citation.]" (Jones, supra, 57 Cal.4th at p. 921.) "'The balancing task is a delicate one, "a minimal showing of prejudice may require dismissal if the proffered justification for delay is insubstantial. [Conversely], the more reasonable the delay, the more prejudice the defense would have to show to require dismissal." [Citation.]' [Citation.] At bottom, the court must ascertain whether the precharging delay tilted the playing field against the defendant in such a way that it prevented him from receiving a fair trial. [Citations.]" (People v. Booth (2016) 3 Cal.App.5th 1284, 1303.)
". . . [P]roof of prejudice is generally a necessary but not sufficient element of a due process claim. . . ." (United States v. Lovasco (1977) 431 U.S. 783, 790 (Lovasco).) Defendant also bears the burden of establishing there was no legitimate reason for the preaccusation delay. (People v. Archerd (1970) 3 Cal.3d 615, 640.) "'But if the defendant fails to meet his or her burden of showing prejudice, there is no need to determine whether the delay was justified. [Citations.]' [Citation.]" (Jones, supra, 57 Cal.4th at p. 921.) "This is particularly true when there is no evidence the delay was for the purpose of weakening the defense. [Citation.]" (Dunn-Gonzalez, supra, 47 Cal.App.4th at p. 911.)
Salto suggests that the court must consider the four factors laid out in Barker v. Wingo (1972) 407 U.S. 514 when deciding whether to grant relief due to delay in prosecution. "That test was not the appropriate one to apply to this case where constitutional speedy trial rights had not yet attached." (People v. Belton (1992) 6 Cal.App.4th 1425, 1433.)
3. Salto Failed to Establish any Prejudice to his Defense Resulting from Arroyo's Death
Salto argues that the prosecution's three-year delay before filing charges against him denied him due process because a material witness to the facts underlying his charges died during the delay. Salto argues that Arroyo's intervening death satisfied the element of prejudice in the court's due process analysis because Salto was unable to investigate possible defenses that could have been supported by Arroyo's testimony.
While a key witness's death may in fact constitute prejudice (Pratali v. Gates (1992) 4 Cal.App.4th 632, 644), this record contains no evidence suggesting that Arroyo was or could have been a material witness at trial. When interviewed at the scene of the October 20, 2014 search, Arroyo told detectives he had no knowledge of what was occurring in the house, and was unable to recall anything else about the incident. Salto does not suggest any manner in which this testimony might have benefitted Salto's case.
Salto analogizes his case to due process caselaw compelling disclosure of confidential informants. However, in such cases, defendant still bears the burden of showing an informant would be a material witness on the issue of guilt. (Price v. Superior Court (1970) 1 Cal.3d 836, 843.)
Salto's suggestion that Arroyo's testimony might have helped his case is, instead, purely speculative. "Our Supreme Court has repeatedly found speculative arguments inadequate to establish the actual prejudice required for delayed prosecution to constitute a due process violation. [Citations.]" (People v. Lewis (2015) 234 Cal.App.4th 203, 213; see also Jones, supra, 57 Cal.4th at pp. 923-924; People v. Abel (2012) 53 Cal.4th 891, 909-911.)
4. The State's Justification for Delaying Filing Charges Against Salto Outweighed any Possible Prejudice to Salto Caused by the Delay
The court acknowledged that the deceased witness Arroyo was "particularly uninvolved in much of anything," and therefore would have acted within its discretion had it concluded on that basis that Salto had failed to establish prejudice sufficient to require the prosecution to justify its filing delay. (Jones, supra, 57 Cal.4th at p. 921.) However, the court went further, considering and concluding that the state's justification for delaying filing charges against Salto outweighed any speculative prejudice to Salto caused by Arroyo's intervening death.
Salto argues without support that an unrelated federal investigation that did not result in Salto's federal indictment could not justify the state's three-year filing delay. Legitimate law enforcement justifications for pre-accusation delay, however, include delays necessary to complete investigations where it is essential that an undercover operator not be identified (People v. Crowder (1967) 257 Cal.App.2d 564, 566; People v. Alvarado (1968) 258 Cal.App.2d 756, 759-760; People v. Wright (1969) 2 Cal.App.3d 732, 736) and where an immediate arrest would impair a prosecutor's ability to obtain additional indictments against other lawbreakers. (Lovasco, supra, 431 U.S. at pp. 792-793.)
Here, Rodriguez's testimony that earlier charges filed against Salto in state court would have jeopardized an ongoing federal conspiracy investigation involving Salto and others supported the court's conclusion that the prosecution's delay was justified. Accordingly, the trial court acted within its discretion when concluding that the prosecution's justification for its delay—neither negligent nor a deliberate attempt to gain a tactical advantage against Salto in the eventual state case—outweighed any speculative prejudice to Salto and denying Salto's motion. (Scherling v. Superior Court (1978) 22 Cal.3d 493, 507 [". . . where, as here, there is neither prejudice to the defendant nor a deliberate delay by the prosecution in order to hamper the defense we conclude that the defendant has not been deprived of due process."].)
Salto's assertions that the prosecution provided no factual support for its delay or its diligence are unfounded. Rodriguez's testimony at the preliminary hearing supports both the basis for the prosecution's delay, and Rodriguez's diligence in following up on the federal investigation involving Salto.
DISPOSITION
The judgment is affirmed.
ZELON, Acting P. J. We concur:
SEGAL, J.
FEUER, J.