Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. BF119446A of Kern County. Kenneth C. Twisselman II, Judge.
Amanda F. Benedict, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, William K. Kim and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Dawson, J., and Hill, J.
A jury convicted appellant Anastacio Barrientos of driving a vehicle involved in an accident resulting in injury to another and failing to stop at the scene (Veh. Code, § 20001, subd. (a)), a felony, and resisting, delaying or obstructing a peace officer (Pen. Code, § 148, subd. (a)(1)), a misdemeanor. In a separate proceeding, the court found true an allegation that appellant had suffered a “strike.” The court imposed a prison term of six years, consisting of the three-year upper term on the felony conviction, doubled pursuant to the three strikes law (Pen. Code, §§ 667, subd. (e)(1); 1170.12, subd. (c)(1)). The court imposed a concurrent term of 180 days on appellant’s misdemeanor conviction.
We use the term “strike” as a synonym for “prior felony conviction” within the meaning of the “three strikes” law (Pen. Code, §§ 667, subds. (b)-(i); 1170.12), i.e., a prior felony conviction or juvenile adjudication that subjects a defendant to the increased punishment specified in the three strikes law.
Prior to trial, appellant moved to dismiss the charges against him on the grounds that his federal and state constitutional rights to a speedy trial had been violated. The court denied the motion. Appellant’s sole contention on appeal is that the court erred in doing so. We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Instant Offenses
At approximately 9:00 p.m. on May 21, 2006, California Highway Patrol Officer Richard Pierce was sitting in his patrol car, parked in a gas station parking lot, typing reports on his laptop computer, when he heard what sounded like a vehicle collision. He looked up, saw the “aftermath of the collision, vehicles still in motion, ” and drove the “short distance” to the scene of the collision. Two of the cars involved, one red and the other blue, came to rest near each other.
Except as otherwise indicated, our factual statement is taken from Officer Pierce’s testimony at trial.
Officer Pierce parked approximately 10 to 15 feet away from the driver’s door of the red car and immediately got out of his vehicle. One person (Subject 1), a male Hispanic, got out of the red car on the driver’s side, and two other persons (Subjects 2 and 3) got out on the passenger side. As he got out of his car, Officer Pierce attempted to make contact with the three persons, but Subject 1 was “unresponsive” and was “backing away....” Subject 1 continued to back away despite the officer instructing him to get out of the road and approach the officer. Eventually, the officer decided to “break [his] contact” with Subject 1 and turn his attention to Subjects 2 and 3--who had followed the officer’s instructions and were standing by the side of the road--and the persons in the other cars involved in the crash.
A third vehicle involved in the collision had rolled into a nearby field, and Officer Pierce went to attend to the occupants of that vehicle. After providing some medical aid, the officer returned to the area where the red and blue cars were located and where he had left Subjects 2 and 3. They, however, had left the scene.
When he was attempting to make contact with Subject 1, Officer Pierce came within five to 10 feet of Subject 1. At the scene of the accident, Officer Pierce provided a description of Subject 1 to a Bakersfield police officer. Bakersfield Police Officer Alex Menendez testified he spoke to Officer Pierce at the scene of the accident, at which time Officer Pierce described the person who exited the driver’s side of the red car as a Hispanic male, five feet eight inches to six feet in height and weighing approximately 200 pounds.
At trial, Officer Pierce had “no recollection” of whether appellant was the person he saw get out of the red car on the driver’s side.
Armando Cordova testified to the following. He was one of the passengers in the red car at the time of the accident. He and his friend, Esteban Hernandez, were “just walking” and they had asked the driver of the red car for a ride. Prior to asking him for a ride, Cordova had never seen or talked to that person. After the collision, the driver got out of the car and, Cordova testified, “I think he took off running.”
Officer Menendez testified he found an identification card in the red car. City of Bakersfield Police Detective Lonnie Mills testified to the following. On the night of the accident, Officer Menendez gave him the identification card the officer found in the red car. Detective Mills spoke to Armando Cordova at the scene of the accident and showed him the identification card Officer Menendez had found. Cordova said “the person on the ID card” was “the person that he knows as Junior” and “the person [who] was driving the vehicle when they were involved in the collision.” The detective asked Cordova if he knew the driver. Cordova said “he had seen him around.”
The parties stipulated that the photograph on the ID card was that of appellant.
Paul Lambert, an investigator with the office of the Kern County District Attorney, testified he spoke with Armando Cordova on May 8, 2009, at which time Cordova told him the following. A man was giving him and his friend Esteban “a ride to a store” when the man accelerated and ran a red light “prior to... the collision....” Cordova and his friend ran away but were apprehended by a deputy sheriff a short time later. The deputy showed Cordova an identification card that had been found in the “suspect vehicle, ” and “[f]rom that ID, he [Cordova] told the deputy that that was the driver of the car.”
Cordova initially testified that on the evening of the accident an “officer” showed him an “ID, ” but he did not remember if the officer asked any questions about the picture on the ID. A moment later, he testified he did not tell the officer the photograph on the ID “was [that of] the driver.” And a moment after that, Cordova testified he did not remember if he told the officer that the photograph on the ID was that of the driver of the red car. He remembered talking to Investigator Lambert, but he did not remember telling him the person depicted on the ID card was the driver of the red car.
Detective Mills testified that a check of Department of Motor Vehicles records showed that appellant was the registered owner of the red car.
Events Preceding Motion to Dismiss
According to the People’s opposition papers filed in response to appellant’s motion to dismiss, charges against appellant arising out of the events of May 21, 2006, were originally filed on October 19, 2006; the case was dismissed on May 21, 2007, the date set for trial; and “[t]he cjis notes reflect that the District Attorney put on the record that The People intended to refile.” On June 11, 2007, the People filed a “REFILE” criminal complaint, charging appellant with the instant offenses. Also on that date, a bench warrant was issued for appellant’s arrest.
Appellant does not dispute any of the factual matters set forth in the People’s opposition papers.
Also, according to the People’s opposition papers, on June 12, 2007, “officers attempted to serve the search warrant [sic], but were told by [appellant’s] mother that [appellant] had been deported to Mexico three weeks prior”; on January 20, 2009, “information that [appellant] was in Las Vegas, Nevada and in custody for immigration issues was received”; and on February 17, 2009, “[appellant] was arraigned on the [refiled] complaint in this case.”
The People assert, and appellant does not dispute, the reference to a search warrant is in error, and that, in fact, the police attempted to serve an arrest warrant.
A preliminary hearing was conducted on March 3, 2009, an information was filed on March 17, 2009, and trial proceedings began on May 18, 2009.
Motion to Dismiss
Appellant filed his notice of motion to dismiss on speedy trial grounds on April 6, 2009. He asserted in his moving papers that he “suffered actual prejudice based on the fact that the prosecution inexplicably waited for more than two years after they filed a complaint in this matter before executing the arrest warrant.” Specifically, appellant asserted he suffered prejudice in that (1) “[t]he defense has been unable to locate percipient witnesses due to the passage of time since the occurrence of the alleged incident, ” and (2) Officer Pierce testified at the preliminary hearing that due to the passage of time since the 2006 accident, “his memory … has faded and... he can no longer recall the pertinent details of the alleged traffic accident....” The People filed opposition, and the court denied the motion on April 20, 2009, without conducting an evidentiary hearing and without comment.
DISCUSSION
“The Sixth Amendment to the United States Constitution and article I, section 15 of the California Constitution guarantee the accused the right to a speedy trial, in part to protect the defendant from the hazard of a trial after so great a lapse of time that the means of proving his innocence may not be within his reach, as, for instance, by the loss of witnesses or the dulling of memory.” (People v. Conrad (2006) 145 Cal.App.4th 1175, 1182 (Conrad).) Appellant contends he was denied his right to a speedy trial under the federal and state Constitutions “based upon the nearly two-year gap between the filing of the criminal complaint [i.e., the refiled complaint, on June 11, 2007] and appellant’s arrest, ” in January 2009. This “delay, ” appellant argues, “prejudicially impacted [his] ability to obtain a fair trial due to faded memories and unavailable witnesses.”
According to appellant, the period of delay ended when he was arrested in Nevada. We note, as stated above, that the record indicates appellant was taken into custody in Nevada “for immigration issues, ” and was not arraigned on the instant charges until February 2009.
Federal Constitutional Right to a Speedy Trial
As indicated above, an implicit premise of appellant’s federal constitutional argument is the claim that his Sixth Amendment right to a speedy trial attached upon the filing of the complaint on June 11, 2007. This premise is incorrect. The filing of the complaint did not trigger appellant’s Sixth Amendment speedy trial right. “Under the [California] state Constitution, the filing of a felony complaint is sufficient to trigger the protection of the speedy trial right.” (People v. Martinez (2000) 22 Cal.4th 750, 754 (Martinez).) 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.’” (Id. at pp. 754-755.) Moreover, because the original charges were dismissed earlier in 2007, there can be no violation of appellant’s federal constitutional speedy trial rights based on events, such as any actual restraint, occurring prior to the dismissal of charges. (United States v. Loud Hawk (1986) 474 U.S. 302, 311 [Sixth Amendment speedy trial right did not apply “after respondents were freed without restraint”]; United States v. MacDonald (1982) 456 U.S. 1, 8 [“Once charges are dismissed, the speedy trial guarantee is no longer applicable”]; Martinez, supra, 22 Cal.4th at p. 762 [Sixth Amendment speedy trial right “attaches upon arrest unless the defendant is released without restraint or charges are dismissed”].) Therefore, the delay appellant asserts did not implicate, and he has not demonstrated any violation of, his right to a speedy trial under the United States Constitution.
The report of the probation officer indicates appellant was in custody in Kern County from January 5, 2007, to May 23, 2007.
California Constitutional Right to a Speedy Trial
Central to appellant’s speedy trial claim is the contention, which he raised in the trial court and now renews on appeal, that he was prejudiced by the delay of nearly two years, between the filing of the complaint and his arrest, because (1) defense counsel was unable to locate percipient witnesses to the 2006 car accident and (2) the memory of Officer Pierce, whom appellant characterizes as the “key prosecution witness, ” had faded due to the passage of time, as evidenced by the officer’s testimony at the preliminary hearing.
Additional Factual Background: Officer Pierce’s Preliminary Hearing Testimony
At the preliminary hearing, Officer Pierce testified to the following: When asked if he recalled the make and model of one of the vehicles involved in the accident, Officer Pierce testified, “all I recall is a couple of passenger vehicles and I think it was a pickup or maybe an SUV.” He did not recall the make and model of the “third car, ” nor did he recall any vehicles other than the three that were involved in the crash.
Officer Pierce observed one of the passengers in one of the vehicles “slumped over, ” in “extreme distress” and “unconscious and … not breathing, ” but he could not “recall exactly” the injuries suffered by other victims of the crash.
As Officer Pierce approached the intersection where the accident had taken place, he had his vehicle headlights and red emergency lights on, but he did not recall if he had spotlights on. He did not recall the “seating locations” of the three Hispanic men in the red car, the kind of shirt or pants worn by the man who got out on the driver’s side, the color of the man’s pants, whether he was wearing shoes, or whether he had any “obvious wounds” or tattoos. The officer confirmed that “[his] memory [had] faded” since the time of the accident.
Pertinent Law
In addressing a speedy trial claim under the California Constitution, “a court must weigh ‘the prejudicial effect of the delay on defendant against any justification for the delay.’” (Martinez, supra, 22 Cal.4th at pp. 766-767.) “A defendant must first show that the delay caused actual prejudice, after which the burden shifts to the prosecution to justify the delay. If justification is shown, the court weighs the justification against the actual prejudice suffered by the defendant. [Citation.]” (People v. Roybal (1998) 19 Cal.4th 481, 513.) Thus, “[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.’ [Citation.]” (Craft v. Superior Court (2006) 140 Cal.App.4th 1533, 1541.)
“‘Even a minimal showing of prejudice may require dismissal if the proffered justification for delay is insubstantial. By the same token, the more reasonable the delay, the more prejudice the defense would have to show to require dismissal....’ [Citation.]” (Conrad, supra, 145 Cal.App.4th at p. 1185.)
“The showing of actual prejudice which the law requires must be supported by particular facts and not... by bare conclusionary statements.” (Crockett v. Superior Court (1975) 14 Cal.3d 433, 442.) “We review the trial court’s determination that defendant was prejudiced by the delay for substantial evidence.” (Conrad, supra, 145 Cal.App.4th at p. 1184.) Thus, we defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. (Cf. People v. Glaser (1995) 11 Cal.4th 354, 362 [on review of a motion to suppress evidence, the substantial evidence standard applies to court’s express and implied factual findings].) Under this standard, all presumptions favor proper exercise of the trial court’s power to judge the credibility of witnesses, resolve conflicts, weigh evidence, and draw factual inferences. (People v. James (1977) 19 Cal.3d 99, 107.) In reviewing the application of facts found to the legal question of whether appellant was denied his right to speedy trial, the standard of review is de novo. (People v. Cromer (2001) 24 Cal.4th 889, 894 [standard of review for “determinations of law... is independent or de novo”]; cf. U.S. v. Beamon (9th Cir. 1993) 992 F.2d 1009, 1012 [whether a defendant has been denied his Sixth Amendment right to speedy trial presents a question of law that is reviewed de novo].)
“‘A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters to which the record is silent, and error must be affirmatively shown….’” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)
Analysis
We first address appellant’s claim that he was prejudiced because, as stated in his moving papers filed in the trial court: “The defense has been unable to locate percipient witnesses due to the passage of time since the occurrence of the alleged incident.” This assertion constitutes the entire showing of prejudice on this point. It is not sufficient. In People v. Reeder (1984) 152 Cal.App.3d 900 (Reeder) the defendant claimed prejudicial delay under the California Constitution based on defense counsel’s assertion that the defendant “had … been deprived of possible exculpatory evidence” in connection with a charged assault that occurred in a motel room because, counsel claimed, “he had been informed that due to the passage of time the names and addresses of the occupants of the adjoining rooms were not available....” (Id. at p. 910.) However, “Counsel failed to state who had so informed him, or what efforts had been made to determine whether such witnesses were available.” (Ibid.) The court held, “Such unsupported conclusionary assertions based upon hearsay statements of an undisclosed third party are insufficient to establish actual prejudice. [Citation.] There was thus no need for the court to inquire into justification for the delay.” (Ibid.)
Here too, there is no indication what efforts, if any, counsel made to locate witnesses. As in Reeder, his conclusory assertion of prejudice did not trigger the court’s duty to consider the justification for the delay. When we apply the principles of judicial review set forth above, we conclude (1) the court reasonably concluded that appellant did not meet his burden of establishing prejudice based on counsel’s failure to locate witnesses, and (2) that implied finding may not be disturbed on appeal.
We next consider appellant’s claim that he suffered prejudicial delay because by the time of trial, Officer Pierce’s memory of the events surrounding the accident had faded. Appellant bases this contention on People v. Hill (1984) 37 Cal.3d 491 (Hill). In that case, the defendant claimed he was prejudiced by a delay of over six months in bringing him to trial on charges arising out of a series of assaults, because the memories of two of the three victims had faded. The trial court dismissed multiple felony counts on the basis that the defendant had been denied his federal and state constitutional rights to a speedy trial. The People appealed, and our Supreme Court affirmed the dismissals.
The court stated: “Ordinarily when a defendant claims that delay has affected a witness’s memory, he is referring to a defense witness. But we can see no reason why a defendant may not seek to prove that the fading memory of a prosecution witness has also made a fair trial impossible. Here, virtually the only evidence against defendant was the eyewitness testimony of the victims, and his only defense was mistaken identification. With sharper memories, the victims might have excluded him as the person who had assaulted them. As it is, however, the two women can make tentative in-court identifications of defendant, but their memories are apparently too uncertain to permit adequate cross-examination on the particulars of the person who attacked them.” (Hill, supra, 37 Cal.3d at p. 498.)
Appellant likens his case to Hill because of the following: his defense, like that of the defendant in Hill, was mistaken identification; also as in Hill, “[t]he prosecution’s case rested largely upon... eyewitness testimony, ” that of Officer Pierce”; as a consequence of the officer’s failure to recall events, appellant could not adequately cross examine him; and with a sharper memory, the officer might have excluded appellant as the man he saw getting out of the red car in the immediate aftermath of the accident. Hill, however, is inapposite.
The Supreme Court there, applying the principle that “[p]rejudice is a factual question to be determined by the trial court, ” upheld the trial court’s rulings on substantial evidence grounds. (Hill, supra, 37 Cal.3d at p. 499.) The court “conced[ed] the facts are not overwhelming in either direction, ” but noted that “the factual conflict was to be won or lost at the trial [court] level.” (Ibid.) Thus, contrary to appellant’s suggestion, Hill did not hold that a finding of prejudice is compelled when a delay in bringing a defendant to trial results in a passage of time that dims the recollections of a prosecution witness. Rather, the court held on the facts of that case, substantial evidence supported a finding of prejudice.
The facts of the instant case are different. Most significantly, here there was evidence that another witness, Cordova, near the time of the accident, identified the photograph on an identification card, which was found in the red car, as depicting appellant. And he remembered making that identification approximately two weeks prior to trial. However, at trial, Cordova could not recall making such an identification. This suggests the passage of time may have benefited, rather than prejudiced, appellant. As the court noted in Barker v. Wingo (1972) 407 U.S. 514, 520 (Barker), a case involving the right to a speedy trial under the Sixth Amendment, delay “may work to the accused’s advantage.... As the time … lengthens, witnesses may become unavailable or their memories fade. If the witnesses support the prosecution, its case will be weakened, sometimes seriously so.” (Barker, supra, 407 U.S. at p. 521.) In a similar vein, in United States v. Loud Hawk, supra, 474 U.S. at page 315, also a Sixth Amendment case, the court stated that because “It is the Government that bears the burden of proving its case beyond a reasonable doubt” and “The passage of time may make it difficult or impossible … to carry this burden, ” delay can be a “two-edged sword.”
In the instant case, the court reasonably could have concluded that on balance the delay following the filing of the complaint worked to appellant’s advantage, and that therefore appellant did not meet his burden of establishing actual prejudice. As in Hill, “the factual conflict was to be won or lost at the trial [court] level.” (Hill, supra, 37 Cal.3d at p. 499.) Again applying the principles of appellate review set forth above, we presume the court made the factual determination that appellant was not prejudiced, and we will not disturb that finding on appeal. And having upheld the trial court’s implied finding of no prejudice, we conclude further that the trial court had no duty to consider, and therefore we need not consider, whether the delay was justified. Appellant has not established that his right to a speedy trial under the California Constitution was violated.
We would reach the same conclusion were we to assume the trial court found prejudice and that such finding was supported by substantial evidence. In that event, we would further assume the trial court proceeded to a weighing of that prejudice against the justification for delay, and concluded that the prosecution had met its burden of establishing justification. And, as indicated above, we review that determination de novo.
“[R]eason for … delay” is also a factor to be considered in addressing a claim of denial of the right to a speedy trial under the United States Constitution (Barker, supra, 407 U.S. at p. 530), and therefore we find instructive the following statement by the court in Barker: “[D]ifferent weights should be assigned to different reasons [for delay]. 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 but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.” (Id. at p. 531, fn. omitted.)
Here, there is no indication the prosecution deliberately delayed bringing appellant to trial. The uncontroverted showing made below, which appellant does not dispute on appeal and which the court could properly credit, was as follows: Within a day of the filing of the complaint, police attempted to arrest appellant but learned he had been deported to Mexico. Moreover, the next time appellant came to the attention of authorities he was in Nevada. On this record, the responsibility for the delay in bringing appellant to trial does not rest with the prosecution.
Appellant argues the prosecution is to blame for the delay in bringing him to trial because “there is simply no evidence to show any exercise of due diligence on the part of law enforcement to attempt to locate and apprehend appellant for nearly two years after the criminal complaint [was] re-filed.” The implicit major premise of this argument is the claim that the state had a duty to exercise diligence in this regard. Appellant cites Rayborn v. Scully (2d Cir. 1988) 858 F.2d 84 (Rayborn) in support of this premise. That case and cases cited therein address speedy trial claims under the federal constitution, and “appear to establish a duty ‘to exercise due diligence in attempting to locate and apprehend the accused....’” (People v. Hsu (2008) 168 Cal.App.4th 397, 406.) However, assuming without deciding that such a duty applies in the context of a state constitutional speedy trial claim, appellant’s contention is without merit. The record does not suggest how additional efforts would have enabled the prosecution to bring appellant to trial sooner given the uncontroverted indications in the record, which the court could reasonably credit, that appellant was out of the country for some undetermined period of time and that upon returning to the United States he was not in California. We conclude the prosecution did not fail to satisfy any duty of due diligence it might have had.
The case of People v. Perez (1991) 229 Cal.App.3d 302 (Perez) further supports our conclusion that the delay was justified. In that case, the defendant was indicted on various felony charges in California in September 1978. Five days later, he was arrested in Puerto Rico on federal narcotics charges. That same day, at a bail hearing on those charges, a federal agent “informed the court, in defendant’s presence, ‘that there were charges to be filed, very serious charges, by the State of California’ against defendant.” (Id. at p. 306.) The defendant, however, was released on his own recognizance and ordered to appear the following morning for a continuation of the bail hearing. He failed to appear.
Some nine years later, the defendant was arrested in Venezuela, expelled from the country and transported to California, where he moved to dismiss the California charges on the ground that he had been denied his right to a speedy trial under the Sixth Amendment. The court granted the motion and the People appealed. The appellate court reversed.
The court stated, “It does not matter that defendant had not been informed of the exact nature of the charges in the present case before he fled to Venezuela, ” noting that before he left the United States appellant had been informed in court “‘that there were charges to be filed’” against him in California. (Perez, supra, 229 Cal.App.3d at p. 309.) The court discussed Rayborn and the case cited therein and concluded: “The foregoing analysis demonstrates that those decisions of the federal Courts of Appeals holding or suggesting that a fugitive who actively avoids prosecution is denied a speedy trial if the government does not employ due diligence in attempting to locate and apprehend him, either do so without analysis or rely upon inapposite authority. Accordingly, we find those opinions unpersuasive and decline to follow them. Instead, we hold that defendant in the present case waived his right to a speedy trial by fleeing to Venezuela for the purpose of avoiding prosecution.” (Id. at p. 313.)
We need not go so far as Perez and hold that appellant has waived his speedy trial claim. But, in determining whether appellant was more responsible for the delay than the prosecution, we find significant the indication in the record that on the day set for appellant’s trial in May 2007 when the People dismissed the charges, the prosecutor put on the record that the People intended to re-file the charges. This supports the inference that appellant knew of pending charges before he left the country. And appellant’s appearance following his deportation in Nevada supports the inference that with this knowledge, appellant voluntarily absented himself from California. Thus, the record supports the conclusion that appellant attempted to avoid prosecution at a time when, although charges had not been filed, he was aware that charges would be filed. As in Perez, such factors weigh against appellant in balancing the reason for delay against prejudice. On this record, even if we assume appellant established actual prejudice, in the exercise of our independent judgment we conclude appellant’s state constitutional right to a speedy trial was not violated.
DISPOSITION
The judgment is affirmed.