Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 2207343
OPINION
STEIN, J.
The People appeal from an order dismissing a felony complaint. We reverse.
Background
On July 1, 2004, defendant Damien Walker was arrested for failing to update his registration as a sex offender (Pen. Code, § 290, subd. (a)(1)(D)) and for possessing a controlled substance (Health & Saf. Code, § 11350). Charges were filed in Santa Clara County. Defendant pleaded no contest on September 2, 2004, was convicted of the charged offenses and was sentenced to a term of 12 months in county jail.
Approximately three weeks later, on September 22, 2004, a warrant for defendant’s arrest was filed in San Francisco, based on three counts of robbery allegedly occurring on February 4, 2004. No criminal complaint was filed at that time. On March 4, 2005, defendant was released from custody on the Santa Clara convictions, and was then arrested on the San Francisco charges. The complaint on the San Francisco charges was filed on March 8, 2005, and defendant was arraigned the same day.
On November 22, 2005, defendant filed a motion to dismiss the complaint, contending the delay in filing the complaint had deprived him of due process. (See People v. Catlin (2001) 26 Cal.4th 81, 107 (Catlin); People v. Archerd (1970) 3 Cal.3d 615, 640 (Archerd).) A defendant making such a claim must demonstrate prejudice arising from the delay. (Catlin, supra, at p. 107; Archerd, supra, at pp. 639-640.) Defendant claimed prejudice because the delay caused him to lose the opportunity of serving a sentence on the San Francisco charges concurrent to the sentence served on the Santa Clara charges. Defendant reiterated that claim at the hearing on the motion, pointing out that the Sixth District, in People v. Martinez (1995) 37 Cal.App.4th 1589, 1597 (Martinez), held that prejudice would be established where there was a “real possibility” the defendant lost the opportunity to receive a concurrent sentence, even though a concurrent sentence was not guaranteed. The trial court here, following Martinez, dismissed the complaint without requiring defendant to show anything more than that the delay caused him to lose the possibility of a concurrent sentence.
Discussion
I.
Appealability
The prosecution in a criminal case has no right to appeal except as provided by statute. (People v. Williams (2005) 35 Cal.4th 817, 822 (Williams); People v. Douglas (1999) 20 Cal.4th 85, 89.) Penal Code section 1238, subdivision (a)(8) confers on the prosecution a right to appeal from “[a]n order or judgment dismissing or otherwise terminating all or any portion of the action.” An order dismissing a criminal complaint falls squarely within this provision. Defendant, citing a phrase in Justice Baxter’s dissenting opinion in Williams, nonetheless suggests there may be an issue whether the order is appealable to this court because, as the order was issued before defendant was arraigned, the lower court was acting as a magistrate. (See Serna v. Superior Court (1985) 40 Cal.3d 239, 257.)
In Williams, the Supreme Court considered whether an appeal might be taken from a magistrate’s order reducing felony charges to misdemeanors. The majority held the order reducing felony charges to misdemeanors was not appealable because it did not fall into any category stated in Penal Code section 1238. (Williams, supra, 35 Cal.4that pp. 830-832.) Justice Baxter disagreed, and after stating the reasons for his disagreement, asserted, “Accordingly, the only live issue in this case was whether an appeal from the magistrate’s order lies to the Court of Appeal under section 1238 or to the appellate division of the superior court under the similar language in section 1466. In light of the majority’s analysis foreclosing either appeal, that issue is now moot.” (Id. at p. 838.)
Penal Code section 1466 concerns appeals taken in misdemeanor cases. Justice Baxter’s assertion therefore simply recognized that if the offenses at issue were deemed misdemeanors, the prosecutor might be entitled or required to seek relief from the appellate department of the superior court. That possibility has no effect on this case; the crimes charged here were felonies. Moreover, by finding the order nonappealable because it did not fall under any category stated in Penal Code section 1238, the Williams majority implicitly recognized that the order would have been appealable if it had fallen under section 1238, even though it was issued by a magistrate. We conclude, therefore, that the order at issue here was appealable to this court.
II.
Loss of Possibility of Concurrent Sentence as Demonstrating Prejudice
On March 29, 2007, the California Supreme Court issued its opinion in People v. Lowe (2007) 40 Cal.4th 937 (Lowe). In Lowe, as in Martinez, supra, 37 Cal.App.4th 1589, the defendant contended his right to a speedy trial had been violated. As in Martinez, and as here, the defendant was required to demonstrate prejudice resulting from the delay, and contended prejudice was shown by the loss of a chance to serve a concurrent sentence. The Supreme Court rejected that argument. (Lowe, supra, at p. 945.) It held, instead, “a defendant claiming a speedy trial violation under the California Constitution must show that the delay has impaired the ability to defend against the charged crime because, for instance, a witness has become unavailable, evidence has disappeared, or the memory of a potential witness has faded. If the defense makes that initial showing, the trial court may then, consistent with Barker [Barker v. Municipal Court (1966) 64 Cal.2d 806, 813], consider the defendant’s loss of an opportunity to serve a concurrent sentence in weighing all of the prejudice to the defendant against the prosecution’s justification for the delay.” (Id. at p. 946.) In so holding, the Supreme Court expressly disapproved Martinez. (Ibid., fn. 3.)
Both Lowe and Martinez considered a defendant’s constitutional right to a speedy trial. (Lowe, supra, 40 Cal.4th at p. 946; Martinez, supra, 37 Cal.App.4th at p. 1593.) The present case is distinguishable because the complained-of delay took place before the filing of an accusatory pleading, and therefore did not implicate the speedy trial rights set forth in the federal and state constitutions. As noted above, defendant’s argument was that the delay deprived him of due process. However, since a defendant claiming a delay deprived him of due process has the same burden of demonstrating resulting prejudice as does a defendant claiming the delay violated his right to a speedy trial (Archerd, supra, 3 Cal.3d at pp. 639-640), the reasoning and decision in Lowe is directly applicable here.
That burden may be reduced, but only after the defendant has been held to answer for a public offense. At that point the defendant need not make an affirmative showing of prejudice resulting from the delay in order to obtain a dismissal. (People v. Martinez (2000) 22 Cal.4th 750, 766.)
As defendant based his showing of prejudice only on the loss of the possibility of serving a concurrent sentence, he did not establish prejudice resulting from the delay and the complaint should not have been dismissed.
Disposition
The order dismissing the complaint is reversed.
We concur: MARCHIANO, P. J., MARGULIES, J.