Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD191338, William H. Kennedy, Judge.
O'ROURKE, J.
A jury convicted Bryan Dammon Smith of the first degree murder of Taysser El Farra (Pen. Code, § 187, subd. (a) );and found true allegations that the murder was committed during a robbery (§§ 664/211, 190.2, subd. (a)(17)) and Smith personally used a firearm (§12022.5, subd. (a)). He was sentenced to life without the possibility of parole for murder with special circumstances plus five years for the firearm use allegation.
All statutory references are to the Penal Code unless otherwise stated.
The murder was committed in 1994, and Smith was not arrested and charged until 2005. Smith contends the 11-year preaccusation delay denied him his state and federal constitutional rights to due process and a fair trial because it caused him significant prejudice that was not outweighed by the People's justifications for the delay. We conclude that the preaccusation delay was caused by the People's negligence, but that there is substantial evidence to support the trial court's finding that the delay did not prejudice Smith.
Smith also contends the trial court erred in denying Smith custody credits under section 2933.2. The People concede the point, and we agree. We direct the trial court to amend the abstract of judgment, and otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The defense filed a pretrial motion to dismiss for prosecutorial delay. The trial court heard arguments on the motion, but deferred its final ruling on it until the conclusion of trial so as to better assess prejudice to Smith based on the trial evidence.
Other Uncharged Crimes Evidence:
On May 25, 1994, Ruth Johnson was working at her sporting goods store when an African-American male asked to see a nine-millimeter Glock 17 gun. While she was showing the gun to him, he hit her in the head with it, leaving a cut that required six stitches. The man left the store with the firearm. In August 1994, Johnson identified Smith in a police line-up.
On May 28, 1994, an African-American male entered a Bank of America branch in Vista and told teller Franklin Backstrom, that he had a gun, and presented him with a demand note. It was stipulated Smith wrote the note. Backstrom handed Smith $1,521. In March 2005, Backstrom picked out Smith from a photo lineup.
Murder and Investigation: 1994-1997
On June 7, 1994, Peter Brewer, who lived on the same street as the Buena Vista Market, heard a car pull up in a driveway outside his house in Vista, California. Brewer looked through his upstairs window and saw a small, white two-door hatchback. He saw the driver and sole occupant of the car get out and walk in the direction of the market. The driver was an African-American male of average size and Brewer estimated he was approximately five feet ten inches tall. About 15 minutes later at approximately 12:00 p.m., Brewer tried to leave his house for lunch, but the police had sealed off the area.
The parties stipulated that on the day of the killing, in a police interview, "Brewer described the black male he saw get out of the two-door white subcompact car as a dark black male with short hair, about five feet, eight inches tall, weighing 170 to 180 pounds."
At approximately 12:00 p.m. that day, two friends were driving past the market. The driver, John Windish, heard possibly two gunshots in quick succession. He saw an approximately six-foot-tall African-American male with a medium build leave the market, put a gun in his waistband, and run. John Spencer, the passenger, also heard one or possibly two gunshots. He saw smoke in the market's doorway. An African-American male pointed a gun in the direction of the cash register and afterwards ran from the market. It was stipulated that the suspect did not take any money from the market.
The Police arrived at the market shortly after midday and found Taysser El Farra, the store owner, on the ground behind the counter. Autopsy results showed he died of a single gunshot wound to the chest.
The police recovered two expended casings and one bullet from inside the market. Tests conducted in 1994 identified them as Winchester Black Talon nine-millimeter ammunition. A Glock pistol that Smith possessed was used to fire the two casings recovered in the store. It was stipulated that the bullet removed from El Farra's body was an exhibit at trial. Tests showed that bullet was fired from the same Glock.
On July 9, 1994, police contacted Smith at a convenience store and found there was an outstanding warrant for his arrest. They arrested him and found in his car 63 rounds of Winchester Black Talon nine-millimeter ammunition and 30 rounds of.380-caliber ammunition. The parties stipulated that on that day the police seized and impounded this ammunition, but it was destroyed in 2002.
The parties stipulated: "1. After the defendant... was arrested on April 9, 1994, he was booked into the San Diego County Jail. He posted bail and was ordered to appear in court on May 12, 1994. [¶] 2. On May 12, 1994, the defendant failed to appear in court as ordered. The court then issued a warrant for his arrest."
In July 1994, Detective Kenneth Gordon of the San Diego Sheriff's Department was the case agent leading the murder investigation. On July 11, 1994, he received an anonymous telephone call from a male who identified himself only as "D." Two days later he received an anonymous phone call regarding the murder from a female. He executed a search warrant at Smith's residence at 1700 Loretta Street in Oceanside, California. That same evening, he also went to a community college where he located a white Ford Festiva and inspected its tires, which appeared to be similar to the tire impressions left at the crime scene at the Buena Vista Market. Yolinda Fisher, who was Smith's wife at the time, approached the detective. He addressed her by name, identified himself and explained her vehicle was possible evidence in a murder he was investigating. He impounded the car. Fisher told him that Smith did not know how to drive her car, which had a manual transmission. On August 8, 1994, Gordon recovered the murder weapon from a woman acting on behalf of the male anonymous caller.
Also in 1994, the police photographed the imprints made by the tires of the white car seized from Smith's wife. A forensic specialist with expertise in footwear and tire tread analysis testified at trial that she compared the photographs to imprints of the tires of the white Ford Festiva and concluded there was a general match, "that is the class characteristics of it being a tire of a certain width, arc width or the width of the tire, approximate, and the same design, two intermediate ribs and two outer ribs, and the groove zig-zag... were similar to the imprints that were left at the scene or the [sic] to the prints that I examined." She concluded that although it was possible the Ford Festiva left the imprints at the scene, she could not conclusively determine that.
In 1994, the same expert also compared photographs of tennis shoe imprints taken at the crime scene with test impressions made of Fila shoes that the defendant wore while in police custody in August 1994. She concluded there was a general match in that they both were Fila shoes, and it was possible Smith's shoes left the imprints at the crime scene. But she could not conclusively determine that based on the individual characteristics of Smith's shoes.
The expert reexamined the same evidence in 2007, and maintained her original opinion.
The parties stipulated: "The June 7, 1994 Buena Vista Market homicide was investigated by the San Diego Sheriff's Department throughout 1994, 1995, 1996 and 1997. Investigation resumed on the case in January 2005. Bryan Smith was charged with the Buena Vista Market homicide in June of 2005. Mr. Smith had not been charged with any crime relating to the Buena Vista Market homicide until June of 2005. Mr. Smith's physical location between 1995 and 2005 was actually known to the prosecution or could have been established through brief investigation."
Additional Evidence of Murder Adduced at Trial
At trial, Yolinda Fisher testified as follows: When she and Smith met in 1994, Smith was in the Marine Corps. They married in March 1994. She owned a white Ford Festiva, which Smith also drove. Smith owned a white Cadillac. While they were married, Smith told her he went to a store and asked a woman to see a gun. The woman gave it to him and he hit her in the head with it. Fisher knew Smith had the gun. Smith also told Fisher he had shot someone in the Buena Vista Market. She did not believe him. But they turned on the television and they watched the news regarding the killing. Fisher believed Smith was driving her car on the day of the killing. Smith told Fisher that he had parked her car "down the hill from the store, walked up, and then he went into the store and told the man to give him the money, and he stated that the man reached for... the gun, and that's when the gun went off." It appeared to Fisher that Smith was bragging about the incident.
After Smith was arrested and placed in custody, he wrote letters to Fisher. In one letter postmarked June 20, 1994, Smith wrote, "Tell Jack's ass that I do expect for him to put my Glock 17 in my hand when I get out of this mutha fucka!" A July 1994 letter Smith wrote showed his changed attitude toward Jack. We set forth the letter unedited: "About Jack... I want him 2 myself, but, if it doesn't involve you directly, Get His Ass! It would give me great pleasure 2 know that, that headache is gone. But if you take care of him, do it right! (I trust u will.) Baby, 'elimination' is a funny game. Be careful. Remember, 'the man 2 fear is the coward, because the coward is the sneakiest, and will do anything to keep his skin.' My great-grandfather told me that, and he was a killer too." The letter stated Jack was a "coward" and continued, "Don't be careless or treat it as a 'joke' or 'lightly as you are (cuz I know u are.) I am for real. If u can wait, I would take better pride in 'doing it' myself," and "cuz I know how." Smith added, "And I want it 2 be slow. And I want 2 look in his eyes, or maybe keep one. (for real) Sick shit, but it will come 2 pass. But if he threatened you, then you have my blessing, I trust you. I love you, that's why I want 2 take all the risk, but? Fuck it! And don't you ever write me calling him 'my nigger.' " Fisher testified that the last sentence meant Smith no longer regarded Jackson as his friend.
It was stipulated that on August 4, 1994, the detectives searched the residence where Smith used to live with Fisher, and found two letters that Smith wrote by hand. Both letters were admitted into evidence.
Fisher testified Moses Jackson's nickname was Jack.
The letter continued, "Your next letter will have what you requested. Destroy this letter if Jack comes up missing. Good killa's leave no traces. I guess u might as well learn the basics from your professional husband, huh?" and (Don't give him any clues cuz he could decide 2 turn 'snitch' on me + stick me for that Vista shit.)" Smith continued, "(Remember da car.) That's enough for 'suspicion.' Yes, it is. So give him what he wants and smile, OK? And then... (u know what comes next.)"
On August 4, 1994, when the detectives impounded Fisher's car, they did not tell her which murder they were investigating. Nonetheless, when a detective drove Fisher home, Fisher, unprompted, told the detective she felt sorry for the family of the person killed at the Buena Vista Market. Unbeknownst to Fisher, the detective recorded the conversation. Fisher also told the detective that someone named "D" had borrowed her car and upon returning it to her had said he was contacted by the police at a Circle K and that all white cars were being searched because of the murder in Vista. Fisher testified that "D" referred to someone named Reginald, and not to Jackson.
In 1994, Fisher lied to the police, saying Smith never drove her car because he did not drive a car with a manual transmission. She did so because she was pregnant and wanted to protect her husband. When the detectives and the prosecutor interviewed Fisher in Maryland in April 2005, she initially lied to them about Smith's involvement in the murder but eventually admitted he had told her about his involvement. Fisher did not like Jackson. She never let Jackson drive her car and did not know if Smith let Jackson drive it. When the prosecutor asked Fisher at trial why she did not tell the detective in 1994 that Jackson had committed the murder, given Fisher's dislike of Jackson, she replied, "Because he didn't do it."
At trial, Moses Jackson testified he had been in the Marine Corps and met Smith in early 1994. Jackson and Smith became best friends and he saw Smith drive Fisher's car. Jackson did not drive that car because at the time he did not know how to drive a car with a manual transmission. In 1994, Jackson was facing court martial proceedings because of an incident in which he possessed an unregistered gun. He went on an unauthorized leave from the military and fled to his home state of Alabama. In September 1995, he was apprehended and returned to Camp Pendleton. Detective Gordon interviewed him regarding Smith's involvement in various crimes.
Jackson testified that earlier on the day of the gun shop incident, he and Smith had been together, but they separated because Smith said he had something to do. Later, they reunited and Smith recounted that he had gone to a shop, hit an old woman over the head and took the Glock. Smith showed Jackson the nine-millimeter Glock. Jackson had seen Smith carry the Glock and use black-tip hollow-point bullets. Jackson testified regarding the bank robbery that one day he and Smith were in a Bank of America parking lot. Smith asked Jackson to join him in robbing the bank. Jackson refused and told Smith he would get out of the car immediately. Smith became angry and took Jackson back home and called him a "coward." About a week later, Smith told Jackson that he had robbed the bank using Fisher's car.
Jackson testified that Smith told him in advance that he was scouting the Buena Vista Market, and before the murder, Smith drove by and pointed it out to Jackson. Smith also told Jackson how the murder unfolded. In Jackson's recounting, Smith went inside the market and saw "an Arab or a Pakistani guy behind the counter." Smith demanded money. The man was hesitant to give Smith the money, and lunged at Smith to get the gun. Smith "pulled the trigger the first time and it misfired, and then he stepped back and the guy tried to get the gun again. That's when [Smith] shot him." Smith said he used the nine-millimeter Glock.
A few days after the murder, Smith went to Jackson's house and showed him a newspaper article about the killing, telling him "he got one," which to Jackson meant Smith got "a killing on [sic] his belt." Smith left the Glock at Jackson's house, saying he would return for it. That night, Jackson saw Smith get arrested.
Jackson was initially undecided what to do with the Glock because Smith was his best friend, but Jackson was on unauthorized absence from the military at the time, and did not want to turn in the gun to the authorities, lest he get apprehended. Fisher had asked for the gun, but Jackson put the Glock in a rented storage unit so Fisher would not get it. Fisher had also asked for Jackson's help with Smith's bail but Jackson refused to get involved. Jackson's noncooperation and refusal to turn over the Glock angered Fisher.
At some time before July 11, 1994, Jackson anonymously telephoned the owner of the store from which Smith had robbed the Glock. On July 11, 1994, Jackson telephoned the police anonymously, referring to himself as "D," the short form of his nickname, "Dawg." He told the police about Smith's involvement in the crimes. Afterwards, Jackson arranged to have his ex-wife and another woman turn the Glock over to the police.
On re-direct examination, this exchange took place:
"[Prosecutor]: Now I want to talk to you about the murder that occurred at the Buena Vista Market. Did you have that murder weapon, that Glock... did you take that Glock into the Buena Vista Market on June 7th?
"[Jackson]: No sir.
"[Prosecutor]: Did you kill the clerk at the Buena Vista Market
"[Jackson]: No, sir.
"[Prosecutor]: Let me finish the question so you know where I'm going. Did you kill that clerk at the Buena Vista Market on June 7th of 1994?
"[Jackson]: No, sir.
"[Prosecutor]: Who did?
"[Jackson]: Bryan Smith.
"[Prosecutor]: How do you know that?
[Jackson]: He told me."
Following the parties' stipulation, Detective Rene Camacho of the San Diego County Sheriff's Department, testified at trial that he interviewed Antonio Herrera regarding the Taysser El Farra homicide three hours after it occurred. Herrera had a strong odor of alcohol but did not show signs of being intoxicated. Herrera stated that at approximately 10:30 a.m., he had bought a quart of beer at the Buena Vista Market and sat outside at the northwest corner of the market drinking the beer. Herrera saw an African-American male, about 25 years old, with a thin build, short hair and clean shaven. The man was between five feet ten inches and six feet tall and weighed approximately 150 pounds. The man approached the market from a driveway to the west, walked by Herrera, entered the market and approximately three minutes later ran away on the same driveway. Herrera did not hear any gunshots and the man did not speak to Herrera. Detective Camacho determined that from where Herrera was positioned, Herrera's view of the driveway was obstructed by some large hedges. Following the interview, Camacho drove Herrera to perform a curbside identification of a detained suspect named Gregory Wheeler. Herrera stated Wheeler appeared similar to the individual he had seen at the market but Herrera concluded, "I don't think that's the guy."
On August 17, 1994, at approximately 9:40 a.m., Detective Camacho visited Herrera at the tent in a field where Herrera stayed. Again, Herrera smelled of alcohol, but did not otherwise appear intoxicated. Camacho showed Herrera a photo lineup of six African-American males, including Smith, but Herrera could not identify the suspect he had seen. For the first time, Herrera told Detective Camacho that the suspect had fatter cheeks than anyone in the lineup and also had "Oriental-looking eyes."
The jury was read the parties' stipulation that "People's Exhibit 59 is the photographic lineup shown to Antonio Herrera on August 17, 1994. The defendant is in position number 2 in that lineup." The parties also stipulated that when Bryan Smith was arrested on June 9, 1994, he was six feet tall and weighed 170 pounds.
Deborah Patrick testified she was employed as a cashier at the Buena Vista Market from 1992 to 1995. She stated Herrera was a customer who came in daily to get one or two beers. He would sit outside on the west side of the building in the morning shade. She "never never" saw him intoxicated. On the day of the homicide, she did not know how much beer Herrera had drunk. She stated sometimes her coworker Ken Brewer, the market's butcher, would give Herrera scraps for his dog. When asked if she ever observed other interactions between Herrera and Brewer, she said, "No, not really."
The jury was read the parties' stipulations as follows: "Kenneth Brewer, who was working in the back of Buena Vista Market at noon on June 7, 1994, passed away of natural causes in 1999. [¶] Antonio Herrera, who was sitting outside the Buena Vista Market on June 7, 1994, passed away of natural causes in 2002."
At trial the People introduced into evidence copies of rap songs Smith wrote that included lyrics about his robbery of the sporting goods store where he stole the Glock 17, and about the bank robbery, but no song about the homicide. Smith also wrote a letter to someone named Brenda Jackson offering his talents as a rapper, and stating he raps about real experiences. Smith wrote a letter to a friend named Nai Nai relating his past experiences, and stating they included "robberies and killings and shootings."
The parties stipulated that on August 12, 1994, police took several documents that Smith had written from the personal property storage area of his cell at the Vista Detention Center, and photocopied and returned them. Also, on April 14, 1997, additional writings were recovered from Smith's assigned locker in state prison.
Motion To Dismiss
Smith brought a pretrial motion to dismiss, arguing the 11-year delay in filing a complaint against him violated his constitutional due process rights under the state and federal Constitutions. The People opposed the motion but conceded the district attorney's office's negligence in prosecuting the case against Smith. The trial court conducted a two-day hearing outside of the presence of the jury regarding the reasons for the People's delay and the claimed prejudice to Smith.
Deputy District Attorney Brock Arstill testified that he worked in the gang unit in Vista and was assigned the Smith case around December 1995. In January 1996, Arstill prepared an approximately 10-page memorandum to his superiors setting forth the state of the evidence and recommending prosecuting Smith for murder and theft at the sports store and the bank robbery. In February 1996, and May 1997, Arstill prepared two other memoranda that, except for the changed dates on the cover pages, were identical to the first memorandum. The date of the third memorandum was five days before the statute of limitation ran on the bank robbery and the gun theft.
Arstill spoke about the case with his immediate superior, Ray Avila, approximately two or three times and specifically regarding the approaching statute of limitations. However, Arstill did not recall formally meeting with his superiors regarding his three memoranda. Neither Avila nor any other superior formally told Arstill, " 'Issue the case or, 'Reject the case.' " Arstill did not recall preparing a complaint request evaluation in this case. Arstill did not recall doing any work on the Smith case after his 1997 memo.
At the motion hearing, the prosecutor pressed Arstill on this point:
Arstill testified that a complaint request evaluation is basically a determination by the [d]istrict [a]ttorney's office to inform the investigating agency that, " 'We cannot file this case because of the state of the evidence,' or it's, 'Well, we're not formally rejecting. Why don't you do a few other things and bring it back to us when you're done.' "
In 1999, Arstill was transferred from the gang unit in Vista to another unit in Vista. Arstill did not recall if another deputy district attorney replaced him, or whether he discussed the Smith case with a replacement. Arstill stated he might have taken the Smith case with him to his new assignment. Arstill was transferred to Downtown San Diego in 2000, and he did not recall what happened with the Smith case. Three weeks after that transfer, the Smith file was closed and sent to storage. Arstill did not have further involvement with the case until 2005, when he scheduled a conference to determine if charges would be filed. Arstill testified he did not intentionally delay filing the case.
Detective Janet Ryzdinski testified that in 1996, she became the contact person with the prosecutor's office on this case. She finished most of her work on the case in 1997 or 1998. Arstill never asked her to do additional work, never gave her a complaint request evaluation, or explained why charges were not filed. Whenever she subsequently saw Arstill, she asked him whether a complaint was going to be issued in the case, and the answer was always negative. Arstill testified he did not recall ever speaking to Ryzdynski about the Smith case after he was transferred from the Vista gang unit.
The prosecuting attorney, Blaine Bowman, testified he first became involved in the Smith case in February 2005, when he participated in the conference to discuss filing charges. Bowman was assigned the case. He reviewed the files and concluded that if the witnesses were still available, charges should be filed. Bowman also wanted to re-interview Yolinda Fisher regarding whether Smith was able to drive her car in 1994. The most significant development in the case in 2005 was Fisher's change of story regarding Smith's ability to drive her car. Bowman also determined through his investigation and legal research that the marital privilege would not apply because Fisher was not legally married to Smith, as she had not legally divorced her previous husband. She and Smith had divorced by this time. A warrant for Smith's arrest was issued, and in June 2005, Smith was arrested and charges were later filed against him.
Bowman interviewed Arstill regarding the case and the reasons for the preaccusation delay and provided the defense the relevant information. Bowman also sent Ray Avila the case presentation memoranda in this case and interviewed him. According to Bowman, Avila did not remember the case. On Bowman's cross-examination, this exchange took place:
"[Defense attorney]: When Mr. Arstill testified... he spoke very clearly about communications he had with Raymond Avila. Had he ever described those things for you?
"[Bowman]: When you say 'very clearly,' I would disagree there. He seemed somewhat vague. But no, he never mentioned that previously, that's correct.
"[Defense attorney]: He never mentioned that he had a communication with Mr. Avila, and Mr. Avila had told him to go back and do some more work?
"[Bowman]: That's correct. He never told me that. His memory was not the best, but — I know he didn't tell me that.
"[Defense attorney]: His memory got better for the motion on December 19th?
"[Bowman]: Well you can argue that. I — "
Bowman acknowledged he had argued in his opposing papers that the People negligently delayed filing charges in this case, but he claimed his view changed following Arstill's testimony that there was a disagreement with Avila regarding whether to file the case, and Arstill was never given authority to file charges. Arstill was unable to override Avila's decision. Bowman acknowledged the district attorney's office did not send a complaint request evaluation form to the investigating authorities.
The trial court analyzed each of Smith's claims of prejudice and concluded: "Events of the trial may demonstrate actual prejudice but at the present time defendant's due process claims are largely speculative, premature and lend themselves in part to possible alternative means to present lost evidence. [(]People v. Conrad (2006) 145 Cal.App.4th 1175[, 1185)]."
Specifically, Smith claimed prejudice from the death of Herrera and Kenneth Brewer. The trial court ruled: "(1) the People will stipulate to the admissibility of Mr. Herrera's hearsay statements excluding defendant as the perpetrator; (2) if the prosecution tries to impeach Mr. Herrera's statements, defense rebuttal evidence or effective cross-examination may be enough to sufficiently rehabilitate Mr. Herrera's statement; (3) that Mr. Brewer knew of Herrera's drinking habits in general is speculative, and it appears speculative that Mr. Brewer was even present or not on the day of the murder; and (4) the defense may still be able to find other persons familiar with Mr. Herrera's drinking habits."
The trial court summarized another of Smith's claims of prejudice: that "the white sub-compact car [Smith] had access to was not the same car that was seen at the scene, and the police failed to investigate whether 'anyone else related to the case' had access to a white subcompact car." The court ruled that it was unknown if there even was another person related to this case; the defense could attempt to discover if such person had access to such a car at the time of the murder; and the car was still available as evidence and for investigation. Smith also claimed that the police failed to seize a black bag containing a gun similar to that used in the murder, although Moses Jackson, a third-party culpability witness, had told them Smith had left the bag at Smith's house. The court ruled that the loss of this evidence, assuming it contained the claimed evidence, resulted not from the delayed prosecution, but from the police not seizing it in the first place, possibly because the police never found it. It further observed that Jackson would testify at trial.
Smith claimed the police failed to investigate Moses Jackson as a third-party culpability witness considering (1) Jackson possessed the murder weapon one month after the murder and lied to police about where he got it; (2) two months before the murder, Jackson, who was accompanied by Smith, was arrested for having a loaded firearm in his possession; (3) Jackson failed to appear for his court date; and (4) it would be impossible to locate Jackson's fellow Marines regarding whether Jackson possessed a gun similar to the murder weapon. The court ruled that it would "wait for more information or to see how it plays out at trial because (1) the Court does not see why the defense cannot investigate Mr. Jackson's alibi at this time... (2) the Court would like to know what attempts have been made to identify and locate the former members of Mr. Jackson's former Marine Battalion; and (3) should the defense have viable third-party-culpability evidence, there is nothing preventing the defense from introducing evidence of the shoddy investigation at trial."
Although Smith claimed prejudice resulting from the inability of the lead investigator, Kenneth Gordon, to independently recall events, the court ruled there was "no proof positive, at this point, that Mr. Gordon has no independent recollection of events."
Smith claimed prejudice from Fisher's 2005 preliminary hearing testimony, which conflicted with her earlier statements. The court ruled, "It appears that [Fisher's] 2005 statements are not attributable to prosecutorial delay. The scenario in which a witness is less than forthcoming with officers, but later tells the truth on the stand, is not uncommon and is usually not due to prosecutorial delay. To argue that [Fisher] would have testified differently in 1996 is purely speculative at this point."
The trial court noted, "All that appears to have been done in this case since 1995 was to re-interview [Yolinda Fisher], who gave a different story than she gave in 1994.... such evidence may not amount to an after-the-fact legal justification for waiting 11 years to bring charges."
The trial court ruled, "At the conclusion of trial, after all the evidence is in, the Court will revisit this motion to determine with finality whether there was justification for the delay in prosecution of the matter and whether prejudice to petitioner outweighed the People's right to prosecute. [¶] The motion under a federal due process claim is denied since there is no supported allegation that the delay in this case was intentional in order to prejudice the defendant. [¶] Regarding a state due process claim, the defendant makes several claims of prejudice. In its written papers, the People admitted they have no justification for the delay and this court finds none predicated on the testimony of Deputy District Attorney Brock Arstill, which was, to say the least, unconvincing and dissembling. The state claim is deferred."
After the jury's verdict, the parties filed supplemental briefing supporting and opposing the motion to dismiss. The People argued the investigation in 1997 was not ripe for prosecution, and the prosecutor had discretion to delay prosecution until 2005, when other witnesses changed their accounts and new evidence was discovered.
The trial court denied the motion to dismiss, noting that the prejudice alleged by the defense related to the "death of Antonio Herrera and Kenneth Brewer... loss of physical evidence; witnesses' inability to recall because of the passage of time; the third-party culpability evidence as it played out with respect to Moses Jackson; Yolinda Fisher's 2005 statements, which, for the first time, implicated Mr. Smith as the shooter and the killer; and sixth, during the course of trial various stipulations.... [¶] But the focus largely came down to Herrera's testimony and to third-party culpability evidence regarding Moses Jackson."
The court pointed out that the trial evidence included testimony that compensated for the absence of Herrera's testimony due to his death: "[T]he prosecution presented, through the testimony of police statements from Detective Camacho from the Sheriff's Department, who took the statements then and is still available now, the statement from Mr. Herrera, which otherwise would not have been admissible, except that the prosecution waived the defect and... it brought out [Herrera's] failure to identify the defendant as the shooter, even though he was present at the time the crime was taking place. [¶] The court also notes Mr. Brewer's testimony regarding Mr. Herrera's drinking habits, which was very important from the standpoint of the defense, was substituted adequately by the testimony of Deborah Patrick, who worked at the store, who knew Mr. Herrera and knew his drinking habits, who testified as to her belief in his sobriety or lack thereof on a few occasions that she had observed, but not generally. And she worked at the store, the owner of which was the person shot during the abortive robbery. [¶] So when you think of it, the substitution that occurred during the trial for Mr. Herrera and Mr. Brewer compensated for what they would have been able to produce here in court were they available to testify.... [¶] "The delay, it was alleged and is alleged still, prejudiced the defense's ability to present third party culpability evidence during the trial. Well, did it? The person who was the third party culpability individual in the case was Moses Jackson.... Mr. Jackson testified during trial at length, including that he was arrested two months before the murder with a loaded gun in his possession, that he had had the murder weapon in his possession, and that he had lied to the police. [¶]... [S]o the jury had the opportunity to evaluate him, all the information that he conveyed, good or bad. They had the opportunity to adequately, I would think, review his credibility. And with all of the information that they had before them from Jackson, as I say, good and bad, they turned it around and apparently rejected it. [¶]... [¶]... [O]n balance, this court believes, posttrial, that Mr. Smith was not prejudiced by the assignment of errors alleged by the eleven-year delay, and thus he was not denied a fair trial under the safeguards of the California or Federal Constitutions."
DISCUSSION
I
Smith contends the trial court erred in denying the motion to dismiss because: "The record leaves no doubt that the lengthy delay caused the loss of the testimony of a key witness, Antonio Herrera, who had evidence that was crucial to the defense that [Smith] was not the killer. The prejudice to [Smith] of the loss of Herrera as a live witness was not remedied by admitting Herrera's hearsay statements to the police and was not balanced by any justification whatsoever for years of delay in filing the charges against him."
The California Supreme Court states, "[D]elay in prosecution that occurs before the accused is arrested or the complaint is filed may constitute a denial of the right to a fair trial and to due process of law under the state and federal Constitutions. A defendant seeking to dismiss a charge on this ground 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.] A claim based upon the federal Constitution also requires a showing that the delay was undertaken to gain a tactical advantage over the defendant." (People v. Catlin (2001) 26 Cal.4th 81, 107, 109 (Catlin).)
However, "[t]he trial court must engage in the balancing process only if the defendant has shown actual prejudice. [Citation.] The reason is simple: 'If defendant fails to show prejudice, the court need not inquire into the justification for the delay since there is nothing to 'weigh' such justification against.' " (Craft v. Superior Court (2006) 140 Cal.App.4th 1533, 1541.)
In People v. Nelson (2008) 43 Cal.4th 1242, (Nelson), our Supreme Court recently noted that "the exact standard [for due process violations] under [the federal] Constitution is not entirely settled[, but it is clear] that the law under the California Constitution is at least as favorable for the defendant in this regard as the law under the United States Constitution." (Nelson, at p. 1251.) After reviewing the relevant federal and state law regarding delay and the circumstances under which it would be found unjustified and prejudicial, the court in Nelson concluded that "under California law, negligent, as well as purposeful, delay in bringing charges may, when accompanied by a showing of prejudice, violate due process." (Id. at pp. 1254-1255.) The court observed, however, that "whether the delay was negligent or purposeful is relevant to the balancing process. Purposeful delay to gain an advantage is totally unjustified, and 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." (Id. at p. 1256.)
Among other things, " '[p]rejudice [for due process or speedy trial violation claims] 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.' " (Catlin, supra, 26 Cal.4th at p. 107.) 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 for the defendant to prepare a defense thus showing prejudice. (See People v. Pellegrino (1978) 86 Cal.App.3d 776, 780 (Pellegrino).) We recognized in People v. Boysen (2007) 165 Cal.App.4th 761 (Boysen), that because "due process is ultimately tied to the fundamental conceptions of justice that lie at the base of our civil and political institutions and which define the community's sense of fair play and decency," (id. at p. 774), it is also shown to be "properly offended when, with little or no justification, the government waits decades to bring a prosecution and that delay has demonstrably placed the defense at a profound and perhaps fatal disadvantage." (Ibid.) "The statute of limitations is usually considered the primary guarantee against bringing overly stale criminal charges," and there "is no statute of limitations on murder." (People v. Archerd (1970) 3 Cal.3d 615, 639, abrogated on another ground in Nelson, supra,43 Cal.4th at p. 1254.)
In balancing the interests, "it is important to remember that prosecutors are under no obligation to file charges as soon as probable cause exists but before they are satisfied that guilt can be proved beyond a reasonable doubt or before the resources are reasonably available to mount an effective prosecution. Any other rule 'would subordinate the goal of orderly expedition to that of mere speed.' " (Boysen, supra, 165 Cal.App.4th at p. 777.) On the other hand, " '[t]he [prosecutors] cannot simply place gathered evidence on the "back burner" hoping that it will some day simmer into something more prosecutable.' " (Pellegrino, supra, 86 Cal.App.3d at p. 781.) Nor may "[t]he requirement of a legitimate reason for the prosecutorial delay... be met simply by showing an absence of deliberate, purposeful or oppressive police conduct. A 'legitimate reason' logically requires something more than the absence of governmental bad faith. Negligence on the part of police officers in gathering evidence or in putting the case together for presentation to the district attorney, or incompetency on the part of the district attorney in evaluating a case for possible prosecution can hardly be considered a valid police purpose justifying a lengthy delay which results in the deprivation of a right to a fair trial." (Penney v. Superior Court (1972) 28 Cal.App.3d 941, 953.)
As we noted in Boysen, supra, 165 Cal.App.4th 761, "[t]he balancing task is a delicate one, 'a minimal showing of prejudice may require dismissal if the proffered justification for delay is insubstantial. [Likewise], the more reasonable the delay, the more prejudice the defense would have to show to require dismissal.' " (Id. at p. 777.)
Whether preaccusation delay is unreasonable and prejudicial to a defendant is a question of fact. (People v. Dunn-Gonzalez (1996) 47 Cal.App.4th 899, 911-912.) If the trial court concludes the delay denied the defendant due process or his constitutional speedy trial rights, the remedy is generally dismissal of the charge. (Id. at p. 912; Boysen, supra, 165 Cal.App.4th at p. 777.) "A trial court has discretion[, however,] to fashion a remedy [other than dismissal] when the prosecutor's conduct has resulted in [an identifiable] loss of evidence favorable to the defense." (Conrad, supra, 145 Cal.App.4th at p. 1185.) We uphold the trial court's ruling or decision on appeal if it is supported by substantial evidence. (People v. Mitchell (1972) 8 Cal.3d 164, 167.)
Finally, when a defendant brings a motion to dismiss based on preaccusation delay, it is within the discretion of the trial court to rule on the motion before, during or after trial. (People v. Martinez (2000) 22 Cal.4th 750, 769; Boysen, supra, 165 Cal.App.4th at pp. 781-782.) The court's ruling in this regard will be sustained on review unless it falls outside the bounds of reason. (People v. DeSantis (1992) 2 Cal.4th 1198, 1226.)
Here, the prosecutor conceded in opposition papers that the People were "admittedly negligent" in prosecuting the case against Smith. However, following hearings on the motion, the prosecutor changed his position and argued the People delayed because the supervising district attorney, Mr. Avila, "exercis[ed] his prosecutorial ethical responsibility by deciding at that time not to issue the case and not giving Mr. Arstill the green light to go forward with the case." The trial court was unpersuaded by this argument, and did not change its view that Mr. Arstill's testimony was "dissembling and unpersuasive." The court concluded, "There really is no justification for the delay."
At the conclusion of trial, the court found, "there is no supported allegation that the delay in this case was intentional in order to prejudice the defendant." This finding is supported by substantial evidence. As early as 1994, Arstill wrote a 10-page memorandum outlining the state of the evidence and recommending that charges be filed against Smith. The date on the cover page of that memorandum was updated twice, with no other change in the memorandum or recommendation. In 1997, despite Arstill's awareness that the statute of limitations on the other crimes was about to run, no one in the district attorney's office made a decision to file charges. Inexplicably, the case was closed in 2000 and sent to storage. The district attorney's office did not issue a complaint request evaluation in this case, therefore there is no indication if or why the People rejected prosecution, or whether additional evidence was needed to ready the case for prosecution.
Smith, with no citation to the record, argues in his opening brief, "But the record here does establish that the delay in charging appellant was done in reckless disregard of the circumstance known to the prosecution that a key witness for the defense, Antonio Herrera, was homeless and that delay in charging the case raised a heightened risk that he might become difficult to locate and unavailable to testify." The California Supreme Court has pointed out, "a claim based on the federal Constitution requires a showing that the delay was undertaken to gain a tactical advantage over the defendant." (Nelson, supra, 43 Cal.4th at p. 1251.) Smith points to nothing in the record to show that the purpose of the preaccusation delay was to gain a tactical advantage over him. Accordingly, his claim under the federal Constitution fails.
The trial court also found, "There really is no justification for the delay." This finding also is supported by substantial evidence, as discussed above. But this finding does not end our inquiry. If a defendant fails to show prejudice, the court need not inquire into the justification for the delay. (Craft, supra, 140 Cal.App.4th at p. 1541.) The court's finding guides our prejudice analysis under the state Constitution. As Nelson instructs, "a greater showing of prejudice would be required to establish a due process violation." (Id. at p. 1256.) On appeal, Smith claims prejudice caused by Herrera's death and in particular Herrera's unavailability to "corroborate Peter Brewer's description of the killer as a dark-skinned black man by confirming that the man he was, in fact, darker complected than [Smith]. If Herrera could have provided that corroboration, [Smith's] third party culpability defense that Jackson did the crime would have been greatly strengthened."
Here, the trial court's decision to defer its ruling on the motion to dismiss until trial had concluded permitted the court to conduct a comprehensive prejudice analysis. Substantial evidence supports the trial court's finding that Smith was not prejudiced. Detective Camacho's testimony overcame any prejudice caused by the loss of Herrera's trial testimony. He had interviewed Herrera in the hours and weeks immediately following the murder. That testimony was mostly favorable to the defense because it established Herrera only briefly saw an African-American male enter the market and run out after a brief time in the market. Herrera did not positively identify Smith as the person he saw enter and leave the market, and Herrera did not hear a gunshot. Moreover, Herrera failed to identify Smith's photo in the lineup. Camacho also pointed out that hedges likely would have obstructed Herrera's view of the suspect. And possibly, Herrera's alcohol consumption affected his ability to clearly view the individual. On that last point, though, Camacho also testified that he had never seen Herrera intoxicated. Deborah Patrick's testimony regarding her more frequent contact with Herrera countered any suggestion that Herrera was habitually drunk.
Substantial evidence also supports the trial court's conclusion that Moses Jackson's own testimony sufficed to address Smith's claims regarding the complexion of the third party culpability witness. In particular, the jury was able to see for itself the differences in Jackson's and Smith's complexions. Defense counsel even directly asked Jackson whether he was darker than Smith. Therefore, contrary to Smith's claim, he was not prejudiced by Herrera's unavailability to corroborate Peter Brewer's statement that he had seen a "dark-skinned black man." More generally, Jackson's testimony was thorough and explored his connections with Smith, and the fact Jackson was Smith's best friend and knowledgeable regarding Smith's different criminal acts that occurred in 1994, including the Buena Vista Market murder. But as the trial court pointed out, the jury was able to assess Jackson's demeanor and evaluate his credibility. Nonetheless, the jury convicted Smith.
In evaluating prejudice overall, we note that here the trial court, as in Conrad, fashioned a remedy other than dismissal of the case when the prosecutor's conduct had resulted in an identifiable loss of evidence favorable to the defense. (Conrad, supra, 145 Cal.App.4th at p. 1185.) As pointed out, this remedy included permitting the parties to stipulate to admit into evidence Camacho's testimony that included otherwise inadmissible hearsay. The parties also entered into several stipulations that informed the jury regarding the People's preaccusation delay despite the fact the prosecution could have located Smith if it had wanted to do so; the possible weaknesses in the case because of the deaths of Herrera and Ken Brewer; and the loss of physical evidence, specifically the destruction of the ammunition that was in police custody. Accordingly, we conclude that under the state Constitution Smith received a fair trial and there was no due process violation.
Smith compares this case to our decision in Boysen based on this statement in Boysen: "[T]he prosecution's offer to allow Naples's cold statement to be admitted did not foreclose the prosecution from attempting to impeach her. Because Naples was dead, it would be impossible for the defense to develop additional supporting evidence from her and to rehabilitate their witness. While an offer to allow a hearsay statement from a witness might be a meaningful concession when the evidence is merely supportive or foundational or when not a matter of serious contention, it is not meaningful when the evidence is crucial to the case and highly contested." (Boysen, supra,165 Cal.App.4th at p. 778.)
In Boysen, the trial court granted a motion to dismiss on the basis of due process violation without holding a trial to evaluate prejudice. We affirmed the decision because there had been a 24-year preaccusation delay in prosecuting a murder and concluded, "The trial court could reasonably conclude that nothing would be gained by delaying its ruling on the motion to dismiss until the end of a lengthy and expensive trial." (Boysen, supra,165 Cal.App.4th at p. 782.) We also concluded the defense had established substantial prejudice from the preaccusation delay. Specifically, we concluded Naples would "seemingly have been an excellent witness for the defense," had she told police that she heard a gunshot the night of the killing. She was a former tax collector, an author and a respected cat show judge. (Id. at p. 778.)Second, another witness's death meant the defense could not question her regarding her observations as the first person at the murder scene. (Id. at p. 778.)Third, still another witness, who could have assisted in establishing a timeline for the victims the evening of their deaths, had died. Fourth, the passage of time made it impossible to explore the possible involvement of an important third party culpability evidence concerning one individual in particular. Fifth, we noted, "The trial court also concluded that the failure of the police in 1980 to fully investigate the murders, document the crime scene, conduct forensic tests and retain important physical evidence, e.g. an open brief case found at the scene, all made investigation of the crime and the development of a defense in 2004 very difficult." (Id. at p. 780.)Sixth, the trial court noted that the marital communication privilege barred part of the defendant's wife's testimony. (Ibid.)
This case is distinguishable from Boysen, in which this court applied the substantial evidence standard to review the trial court's finding of prejudice caused by the preaccusation delay. (Id. at pp. 777-778.) Here, we apply the same standard to review the trial court's finding of no prejudice. In Boysen, the preaccusation delay was 24 years. Here it was 11 years; therefore, the prejudice resulting from lost memories was mitigated in this case because the witnesses who testified had recollected the events surrounding the murder. Moreover, here the trial court, in its discretion, permitted the case to proceed to trial. With the benefit of the admitted evidence, the trial court concluded that any prejudice to the defense caused by Herrera's death was cured by Detective Camacho's testimony, which although it would have been otherwise inadmissible as hearsay, was unopposed by the prosecution. Camacho's testimony highlighted the limited usefulness of Herrera's testimony. Unlike the testimony of Naples, who was a seemingly "excellent witness" in the Boysen case, Herrera's testimony was not "crucial to the case." (Boysen, supra,165 Cal.App.4th at p. 778.)
II.
The People concede, and we agree, that the trial court erred in denying Smith custody credits under section 2933.2, which does not permit one convicted of murder to accrue any credits, but which states in subdivision (d): "This section shall only apply to murder that is committed on or after the date on which this section becomes operative." This section became operative in 1998, four years after El Farra's 1994 murder.
DISPOSITION
The judgment is affirmed. The trial court is directed to grant Smith custody credits under Penal Code section 2933.2 and to forward an amended abstract of judgment to the California Department of Corrections and Rehabilitation.
WE CONCUR: HALLER, Acting P. J., AARON, J.
Smith is African-American. At trial, during cross-examination of Moses Jackson, a third party culpability witness, this exchange took place:
"[Defense counsel]: Between yourself and Mr. Smith, who's got the darker complexion?
"[Jackson]: I do.
"[Defense counsel]: You'd say you were [sic] a dark-skinned black man?
"[Defense counsel]: You'd say [Smith] was [sic] a light to medium-skinned black man?
"[Jackson]: Yes sir."
"[Prosecutor]: But a case of this magnitude, if you were going to reject it, you'd file a written rejection, wouldn't you?
"[Arstill]: Again, only if it was formally presented as, 'Issue or reject." A lot of — in the gang unit at the time, there was a lot of back and forth with the police agencies, trying to work a case and trying to get it worked to the point where we could file a case.
"[Prosecutor]: Well, I'm speculating here, but I'm thinking that if you went to the trouble of preparing this memo and also attaching things that you thought had to be done in addition to what you had, that it had been formally presented by... some representative of the Sheriff's Office to your office.
"[Arstill]: Not necessarily, no. I do not ever remember it being formally presented as, 'Please issue or reject.' The only reason I did this is I had been getting the information, we had been working on it, so I wanted to put it all on paper and say, you know, let's give it a shot."