Opinion
E050679
11-15-2011
THE PEOPLE, Plaintiff and Appellant, v. CHRISTOPHER ROBERT MONTGOMERY, Defendant and Respondent.
Rod Pacheco, District Attorney, Alan D. Tate and Kelli Catlett, Deputy District Attorneys, for Plaintiff and Appellant. J.J. Little & Associates, James J. Little for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. SWF027255)
OPINION
APPEAL from the Superior Court of Riverside County. Michael B. Donner, Judge. Order reversed.
Rod Pacheco, District Attorney, Alan D. Tate and Kelli Catlett, Deputy District Attorneys, for Plaintiff and Appellant.
J.J. Little & Associates, James J. Little for Defendant and Respondent.
Defendant was charged with attempting to obtain a prescription for a controlled substance by fraud (Health & Saf. Code, § 11173, subd. (a)) and burglary (Pen. Code, § 459). Before trial began, defendant moved for dismissal due to the prosecution's failure to produce a certain store surveillance video. The trial court granted the motion. The People here appeal that order. We determine that it was in error and reverse it. Accordingly, defendant's motion to dismiss the appeal, considered with this appeal, is denied.
FACTS
In his supplemental brief, defendant repeatedly cites reporter's transcripts that are not part of the record before this court and discusses facts supposedly contained therein. If defendant wanted this court to consider this material, he should have requested augmentation of the record. Defendant, also, in his supplemental brief, refers to facts that are unsupported by the record and he provides no citation to record in support of them. Both of these actions are unacceptable.
On April 20, 2008, a prescription for Norco (hydrocodone) was called in to the pharmacy at the Temecula Longs Drug Store (Longs) purportedly by a Dr. Khalid for a patient named Harold Evans, who picked it up. It was later determined that Dr. Khalid did not authorize the prescription. A DVD of a surveillance video showing the person picking up the prescription and showing a man matching the description of Harold Evans, and a man, matching the description of defendant, entering Longs on that day was later given to the police, as will be described below.
On April 22, 2008, a prescription for Norco was called into the same Longs, again, purportedly by Dr. Khalid, but this time, for defendant. Dr. Khalid was contacted and denied calling in the prescription or that defendant was his patient.
On April 26, 2008, a Robert Evans requested that a prescription for Norco be transferred from Wal-Mart's pharmacy to the Longs. No one showed up to pick up this prescription. Longs called the police because the prescription was fraudulent. This was law enforcement's first involvement in the activities that had also occurred on April 20 and 22, 2008. The DVD for April 20th, and another date not relevant to these crimes, was booked into evidence on April 26th by the first officer to investigate this series of offenses, but because he was not aware at the time that anyone had showed up on April 22 to pick up the prescription in defendant's name, he did not ask for, take possession of or book into evidence any recordation of the surveillance footage for that date.
In his supplemental brief, appellate counsel for defendant asserts, three times, that the pharmacy employee, who on July 11 told law enforcement that someone had tried to pick up the prescription in defendant's name, told the original investigating officer on April 26 that no one had. This assertion later gets expanded by appellate counsel to include a second pharmacy employee. Counsel's citations to the record do not support any of these assertions and neither does our meticulous review of the entire record before this court. Springboarding from these misrepresentations of the record, appellate counsel for defendant asserts in his supplemental brief, "Given that the witnesses who said that 'no one showed up to pick up that prescription' were interviewed 'much closer in time' to the alleged offense, the [trial c]ourt gave greater weight to that testimony and, on that basis, concluded . . . that the April 22 . . . video would . . . definitely been favorable to the defendant either as an exculpatory piece of evidence or an impeaching piece of evidence given the defense of a very adamant statement that he was not in [Longs] on April 22 . . . ." "[Defendant] is 'adamant' that he was never in the pharmacy . . . and, therefore, the video is clearly 'exculpatory' and its loss 'prejudicial.' . . . [¶] There is . . . the contradictory testimony . . . of [the pharmacy employees] who previously stated that no one entered the store on April 22, . . . but who now claim that [defendant] did enter the store on the 22nd . . . however, this testimony is on its face suspect given . . . the extreme lapse of time between [April 22] and [August 29] . . . and . . . because it contradicts [one of the employee's] prior testimony." First, as already stated, the record before this court, and the trial judge who granted the motion to dismiss, contains no information that either or both of the pharmacy employees that later picked defendant's photo out of a lineup as the person who had picked up the prescription in defendant's name on April 22 told the first investigating officer that no one picked up that prescription. The record does not state the basis upon which this officer concluded that no one had picked it up. Thus, defendant's assertion in his supplemental brief that one of these employees "contradict[ed her] prior testimony" in identifying defendant in the photographic lineup is completely unfounded. (Moreover, there was no "testimony.")
What the trial court actually said about this was the following, "[D]efendant . . . was allegedly positively identified by [two pharmacy employees], which was contradictory to evidence that was originally related to [the first investigating officer], who says that no one showed up on April 22 . . . . [¶] So, I have conflicting evidence: two people [(the pharmacy employees on August 29)] that say they positively identified the defendant as having been there, but the officer who investigated it much closer in time [(April 26)] . . . says that no one showed up to pick up that prescription." On this basis, the trial court concluded that the video would have been favorable to defendant either as exculpatory evidence or as "an impeaching piece of evidence given the defense of a very adamant statement that he was not in [Longs] on April 22 . . . ." What the trial court must have meant in this latter reference is that if the April 22 video showed that defendant was in the Longs on that date, this would impeach whoever told the investigating officer on April 26 that no one picked up the prescription in defendant's name on April 22, presuming someone told that to the officer. However, the trial court was wrong in its assessment of the value of this socalled impeachment to defendant based on what the court knew at that point was defendant's defense—if the video showed defendant in the store, it would contradict his statement that he was never in the store and it would prove his guilt of these offenses. The fact that whoever told the officer (if anyone did) that no one picked up the prescription on April 22 could be impeached by defendant's proven presence in the store would be meaningless to defendant at that point.
On July 3, 2008, a detective who had taken over the investigation of these incidents viewed the April 20th DVD, which showed two men, including one matching the description of defendant, entering the Longs on that date. On July 11, this detective interviewed employees of the pharmacy and learned, for the first time, that someone had showed up on April 22 to pick up the prescription in defendant's name. However, because Dr. Khalid had, on April 22, denied writing the prescription, this person, who was subsequently identified by two pharmacy employees as defendant, was not given the prescription. That identification took place on August 29, when the employees picked defendant's picture out of a six-person photo "lineup." On September 5, the detective questioned defendant, who denied ever entering the Longs in question. An arrest warrant for defendant was sought on September 15, 2008. Defendant was charged in this case on December 19, 2008.
This undermines the assertion made repeatedly below and here by defendant that no further investigation occurred for four months after April 26, 2008.
In August 2009, defendant requested examination of "[a]ll . . . video tapes . . . shown to witnesses and prospective witnesses in this case for the purpose of establishing identity of the suspects in the crime charged against the defendant" and "all . . . videotapes of the scene of the alleged offense." In August 2009, the defense first mentioned an April 22 video, saying it had been given one for April 20, but not for April 22. By March 18, 2010, the defense had still not received one for April 22, 2008, the date of defendant's offenses.
On March 18, 2010, defendant brought a motion to compel discovery of the DVD for April 20, 2008 and a DVD for April 22. On March 29, 2010 a hearing was held on the motion to compel, which was continued to allow the People to locate the DVD for April 22, the April 20 DVD having already been turned over to the defense.
On our own motion, we augmented the record to include the reporter's transcript for this hearing.
The continuation of the hearing on the motion to compel was scheduled to take place on April 7, 2010. Also on March 29, defendant filed a written motion to dismiss the case against him. He asserted two alternate bases for dismissal—1) that the People failed to produce material exculpatory evidence which resulted in prejudice to him under Brady v. Maryland (1963) 373 U.S. 83 (Brady) and, 2) that the prejudicial and unjustified delay of eight months between the crimes and the filing of the charges prevented the defense from securing exculpatory evidence. As part of the Brady portion of defendant's motion to dismiss, defendant asserted that, "'the government's inexcusable lack of attention to and investigation of "evidence deprive[d] . . . defendant of his Due Process rights."'" Defendant denied that he had ever been at the Longs. He also asserted that he had been provided the video from April 20 and another day not relevant to this case. The prosecutor filed no written opposition to the motion.
At the April 7 hearing, the trial court observed that it was the defense's position that if Longs had videos for April 20 and the other day which was not relevant to this case, it must also have had one for April 22, a proposition with which the prosecutor agreed. However, the prosecutor informed the court that the April 22, 2008 video did not then exist. The prosecutor stated that if there had been a video for April 22, it had not been booked into evidence and was never in possession of law enforcement or the prosecution. The prosecutor reported that on April 6, 2010, he had called the pharmacy, which had been taken over by another company, and was told that videos are recycled every three days and one for April 22, 2008 did not exist.
Defendant's February 23, 2010 motion for a court order to compel discovery supports this in that it lists separately the "surveillance footage . . . as referenced on pages 3 and 4 of the . . . Sheriff's Department Incident Report dated 4/26/08" and the "surveillance video . . . for April 22, 2008 . . . ."
It is not until his supplemental brief that defendant attacks this representation as not constituting "evidence." However, much of the facts relied upon by the court below in making its rulings and which we accordingly rely on in determining the propriety of that ruling, was directly dependent on the representations of counsel, acting as officers of the court. Defense counsel never questioned this representation below and the court relied on it in making its ruling. It is pointless for defendant to now attempt to attack it. The assertion in the People's reply brief that the April 22 video was still available on July 3, 2008, is not supported by the record and is based on the People's misreading of a portion of defendant's motion to dismiss which addressed the April 20 video, not the April 22 video.
The trial court said, "My tentative [ruling] is to grant [the motion to dismiss]. [¶] . . . [¶] . . . [The prosecution is] not in possession of the video for . . . April 22, 2008. [¶] And that's important because of the eight-month lag between the [crimes] and when the charges are filed, and that's a problem . . . . [¶] If that video had been promptly obtained by the officer who investigated this [case] and retained, then that would be absolute either exculpatory or impeaching evidence that would benefit the defendant,and it's a huge prejudice that hadn't been provided to them. That's the reason for the tentative." After the prosecutor pointed out that he had turned over to the defense "everything that was booked into evidence" the trial court responded, "There is no accusation that . . . the prosecution . . . has done anything wrong." Later, the court said, "[T]he Motion to Dismiss is granted. [¶] I find that the evidence would . . . definitely have been favorable to the defendant either as an exculpatory piece of evidence or an impeaching piece of evidence given the [defendant's] statement that he was not in [Longs] on April 22, 20[08]. And that second requirement of Brady, that it must have been suppressed by the prosecution. In this instance, I don't find that it was suppressed by the prosecution either willfully or inadvertently, but I think it was not obtained by law enforcement, an agent of the p[ro]secutory side of the case. I find no evidence whatsoever that the prosecution has done anything suspect and it certainly is material and . . . prejudicial to the defendant's case."
See second paragraph of footnote two, ante, page four.
The parties here disagree about the basis for the trial court's ruling. The People, relying on an entry in the minutes for the date of the hearing, claim that the motion was granted on the basis of defendant's pre-charge delay argument. The minutes state, "Counts . . . 1 [and] 2 dismissed in the interests of justice. (1385 PC)[.]" The record before us is not clear. Because we cannot say with any degree of certainty the basis the trial court used to grant the motion to dismiss, and because we are governed by the rule of "right decision, wrong reason," we will examine the ruling on both bases. (People v. Letner & Tobin (2010) 50 Cal.4th 99, 145 (Letner))We do this after disposing of defendant's contention that the People waived all the arguments they here make because they did not make them below.
However, this rule does not permit us to either affirm or reverse trial court rulings on bases not urged below. Therefore, the fact that defendant did not bring his motion to dismiss also on the basis that the prosecution failed to produce the Long's computer information concerning the prescription in question, and the trial court's resulting failure to dismiss this case on that basis, prohibits us from using it as a basis for affirming the trial court's dismissal, despite defendant's urging (for the first time) in his supplemental brief.
1. Waiver
As already stated, on March 29, 2010, the same day defendant filed his written motion to dismiss, a hearing was conducted on defendant's motion to compel discovery of the April 22 video. The prosecutor, who had just "inherited" the case from another deputy district attorney said that the previous prosecutor had turned over one surveillance video and had made a request to the relevant law enforcement agency to get "both videos that were in evidence" which he had turned over to the defense. Defense counsel said he had received videos from April 20 and another date not relevant to this case, but he needed the video from April 22. When the trial judge asked the prosecutor how the April 22 video could be obtained, the prosecutor said, "I ordered . . . whatever tapes that were . . . booked in[to] evidence . . . and that has been turned over." Defense counsel responded, "[I]t's not what's booked into evidence. . . . I want the tape from April 22. . . . It doesn't matter what's booked into evidence. They have an obligation to go out and preserve [the April 22 video]." The prosecutor responded, "It does matter what's booked into evidence . . . . [L]et's say the officer books in the wrong surveillance tape, I can only ask for and request and have access to what's been booked into evidence." The trial judge said the prosecutor could ask the officer to get the April 22 video, if it still existed, which, of course, by this point it did not. The trial judge then said, "If it doesn't exist, the [defense] needs to know that so it may, in fact, by virtue of its nonexistence be exculpatory." The trial judge continued the motion to compel for two weeks, to April 7, 2010, so that the prosecutor could determine whether the April 22 video still existed. No reference was made orally to the hearing on the motion to dismiss, although defendant's written motion bears the hearing date and time of the continuation of the motion to compel.
The trial judge who conducted the hearing on April 7, 2010, who was not the same trial judge who had conducted the previous hearing, began the former by announcing that it's tentative ruling was to grant defendant's motion to dismiss. The trial judge went on to note that the prosecutor had not filed a written opposition to defendant's motion to dismiss and said, as we have recounted above, that the identification of defendant by two pharmacy employees conflicted with the report of the original investigating officer that no one attempted to pick up the prescription in defendant's name on April 22. The court accepted as logical defense counsel's argument in his moving papers that if videos for April 20 and the other date not relevant to this case existed, a video for April 22 must, at one time, also have existed. The court noted that the pharmacy disposed of its surveillance videos regularly and the prosecutor had represented that no April 22 video currently existed. The court went on to note that it was a problem because the April 22 video had not been obtained in a timely fashion. The court asserted that if the original investigating officer had promptly retained the April 22 video, it would "absolute[ly be] either exculpatory or impeaching evidence that would benefit the defendant, and that's a huge prejudice that [it] hadn't been provided to them. That's the reason for the tentative." The prosecutor said he agreed with the points made by the court, but he pointed out that the April 22 video had never been booked into evidence, therefore, "the prosecution, or any part of the prosecution[,] never had that video. The prosecutor said it understood the court's tentative ruling "to grant the [m]otion to [c\ompe \r The court pointed out that it was granting the motion to dismiss. The prosecutor said he thought the hearing was for the motion to compel. He added, "[B]ut I'll submit. I think the court has already stated everything." The court responded to the prosecutor's point about neither law enforcement nor his office having the April 22 video by saying, as we have already quoted, " . . . [T]he second requirement of Brady [is] that [evidence] must have been suppressed by the prosecution. In this instance, I don't find that it was suppressed by the prosecution either willfully or inadvertently, but I think it was not obtained by law enforcement, an agent of the p[ro]secutory side of the case." The prosecutor then stated, " . . . I was under the impression that we were just hearing the [m]otion to [c]ompel today, not the [m]otion to [d]ismiss. The last time we were here in court, [the trial judge who presided over the March 29, 2010 hearing] . . . wanted to hear a response from me in regards to the status or existence of the [April 22] video and then rule on that [m]otion to [c]ompel. [¶] . . . [¶] And then we go [to] the [m]otion to [d]ismiss. But obviously the court is hearing the [m]otion to [d]ismiss today . . . ." The court said that it was on calendar.
See the second paragraph of footnote two, ante, page four.
Defendant contends that an appellant cannot raise issues on appeal that were not raised in the trial court. However, the issue whether dismissal of the charges against defendant was appropriate either due to a Brady violation and/or the delay in charging defendant was raised, by defendant, below and served as the basis for the trial court's ruling. Defendant cites no authority holding that we may not affirm or reverse a trial court ruling on the basis of arguments not specifically asserted by a party below. There is a difference between issues and arguments. Even if defendant is correct, the prosecutor expressly asserted below one of the arguments on which we rely in reversing the trial court's order. Defendant concedes as much in his "opening" brief. To the extent the prosecutor did not address the delay issue, we agree with the People that the court's announcement of its tentative ruling made clear that there was no point in the prosecutor making further argument on the matter, especially considering the fact that we are unable to discern from the court's remarks whether it was granting the dismissal on the basis of Brady or delay or both.
2. Propriety of the Dismissal
a. If the Trial Court Granted the Motion Under Brady
The People cite, almost exclusively, federal court of appeal opinions, which do not bind us, in making their arguments. However, as can be seen from this opinion, there is plenty of California Supreme Court authority, which does bind us, on the subject.
"'Pursuant to Brady . . . the prosecution must disclose material exculpatory evidence . . . .' [Citation.] 'For Brady purposes, evidence is favorable if it helps the defense or hurts the prosecution . . . . [Citations.] Evidence is material if there is a reasonable probability its disclosure would have altered the trial result. [Citation.]'" (People v. Verdugo (2010) 50 Cal.4th 263, 279.) "'There are three components of a . . . Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; the evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.' [Citation.] Prejudice . . . focuses on the 'materiality of the evidence to the issue of guilt or innocence.' [Citations.] A defendant instead 'must show a "reasonable probability of a different result."' [Citation.]" (People v. Salazar (2005) 35 Cal.4th 1031, 1043 (Salazar).) "Conclusions of law or of mixed questions of law and fact, such as the elements of a Brady claim . . . , are subject to independent review" as is the question whether a Brady violation occurred. (Id. at p. 1042; Letner, supra, (2010) 50 Cal.4th 99, 176.)
The People correctly assert that there was no showing below that the April 22 surveillance video was exculpatory to defendant and there is no reasonable probability that, had it been disclosed, the result of the proceeding would have been different because we will never know what was on it.
See second paragraph of footnote two, ante, page four.
As to the remaining component, that the evidence was suppressed by the prosecution, "evidence is not suppressed unless the defendant . . . could not have discovered it '"by the exercise of reasonable diligence."' [Citations.]" (Salazar, supra, 35 Cal.4th at p. 1049.) The People assert that defendant knew or should have known of the existence of the April 22 video. The earliest the record before us shows that the defense was actually aware of the possibility that an April 22 video existed was in August 2009, when counsel acknowledged being given a copy of the April 20 video, but not of a video for April 22. Given the apparent assumption below and on appeal that Longs destroyed their videos within three days, we cannot conclude that the April 22 video still existed in August 2009. As to whether the defense should have known of the April 22 video, that all depends on when it was taped over. Again, the assumption seems to be that this occurred within a matter of days of April 22, so the fact that defendant was not charged in this case (and therefore did not have counsel) until December, at the earliest, defeats the People's claim that he should have known of the existence of the video. However, because the other two components of Brady were not demonstrated below, the existence or non-existence of the suppression component is irrelevant and defendant's Brady claim lacks merit. (Salazar at p. 1049.)
Of course, this does not explain how the April 20 video was still in existence when obtained by the police on April 26.
Defendant asserts that the order of dismissal is supportable on the basis that the People failed to preserve the video. However, as the People correctly point out, such a duty is recognized only for evidence whose exculpatory value is apparent before its destruction. (California v. Trombetta (1984) 467 U.S. 479, 489; People v. Alexander (2010) 49 Cal.4th 846, 878 (Alexander).) Defendant asserts that the exculpatory value of the video "was apparent from the moment the Prosecution began investigating [defendant's crimes]." We disagree. If the video showed defendant entering the store or attempting to pick up the prescription, its exculpatory value was not only not apparent, it was non-existent. It was not until July 11, 2008, when law enforcement was first told that someone had come into the Longs to pick up the prescription in defendant's name, that the People should have known to ask Longs for a recordation of the surveillance for that date to see if that person was or resembled defendant. However, according to the only information in the record before us concerning the preservation of the surveillance videos, this one would have been recorded over by July 11. Moreover, defendant must demonstrate that the police acted in bad faith in failing to preserve potentially useful evidence. (Arizona v. Youngblood (1988) 488 U.S. 51, 58; People v. Wallace (2008) 44 Cal.4th 1032, 1083.) Defendant asserts that bad faith was demonstrated when the prosecution continually promised to produce the video, but did not. However, bad faith must be demonstrated in the prosecution's failure to preserve the video, not in how they handled discovery. Defendant's attempt, in his supplemental brief, to assert that the prosecution had the video on December 9, 2009, and, therefore, deliberately withheld it from the defense, is not supported by the record. Finally, such a claim is not cognizable under Brady, which is one of the two possible bases upon which the trial court dismissed the case. (Salazar, supra, 35 Cal.4th at p. 1049.) Defendant did not even cite Trombetta below.
See second paragraph of footnote two, ante, page four.
See second paragraph of footnote six, ante, page seven.
At the beginning of the preliminary hearing on August 4, 2009, defense counsel noted that he had been provided with the video from April 20, but not one for April 22. The prosecutor responded, "[T]he People have attempted to provide that discovery. It has been ordered several times, and the incorrect surveillance keeps coming back. So I will try again this afternoon to get proper surveillance for [defense] counsel." The August 2009 formal request/motion for discovery (see text, second paragraph of page five) followed six days later. On December 9, 2009, a deputy district attorney who was appearing for another deputy district attorney told the court that the case had been taken from the latter and reassigned to yet a third deputy district attorney, but no one seemed to know who that was. The deputy district attorney who was in the courtroom told the court that the deputy district attorney who had just had the case removed from her assignments "requested the surveillance tape. It was not readable. She sent it to our bureau to get [i]t cleaned up. She hasn't received it yet." In January 2010, defendant substituted counsel and new counsel, who also represents defendant in this appeal, submitted a motion for a court order compelling discovery, which included a request for the April 22 video as well as for videos referenced in the Sheriff's Department Incident Report dated April 26, 2008. According to defense counsel's representation, the latter comprised a "'Compact Disc containing video surveillance of the suspect' . . . [which] appears to consist of 2 discs. The evidence log is unclear as to the date from which this video originates, although the same report indicates that . . . 'a DVD containing surveillance footage of the suspect picking up the prescription for Harold Evans' was given to [the sheriff's deputy] by 'Longs [pharmacy] staff . . . [and] 'on 4/20/08, an individual identified as Harold Evans ... had a prescription filled for Hydrocodone.' [¶] . . . [In an] . . . incident report dated September 12, 2008, [the detective] indicates that he reviewed the video contained in evidence, and 'it appeared both subjects seen entering the Longs ... matched the physical description of the suspects Harold Evans and [defendant].' [¶] . . .[¶] . . . Because a video was obtained for April 20, 2008, a video for April 22, 2008... was or should have been obtained by the Riverside Sheriff's Department. [¶] . . . [I]f the . . . Sheriff's Department. . . failed to obtain said video, that fact would . . . be exculpatory. . . . [¶] If an April 22, 2008 surveillance video exists, it is imperative that the defense be allowed to view the video. If defendant was so certain, based on the representation of the deputy district attorney at the December 9, 2009 hearing, that the District Attorney's Office had the April 22 video (which, of course, it could only have obtained from the Sheriff's Department) and was in the process of cleaning it up, he would not have made such representations in his subsequent motion for an order to compel discovery, which he repeated in his March 18, 2010 motion to dismiss. Any suggestion that the prosecutor had the April 22 video and deliberately kept it from the defense was also dispelled by the prosecutor's explicit denial during the hearing on the motion to compel, which denial defense counsel did not dispute. It, therefore, seems likely that the video which the new-to-the-case deputy district attorney referenced on December 9, 2009, was the second one received by the sheriff's deputy on April 26, which was also for April 20. Certainly, the record does not support a conclusion that it was the video for April 22.
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Defendant's assertion that the video would have been favorable to him because it would have confirmed that he did not enter the Longs on April 22, while assuredly made, is specious—defendant cannot possibly know what was on the video, and neither do we or the court below.
3. If the Trial Court Granted the Motion Based on Pre-charge Delay
"'Delay 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.]' [Citation.] '"In the balancing process, the defendant had the initial burden of showing some prejudice before the prosecution is required to offer any reason for the delay [citations]. The showing of prejudice requires some evidence and cannot be presumed. [Citations.]'" [Citation.] [¶] . . . [S]ubstantial evidence [must] support[] the trial court's finding [of] . . . prejudice . . . ." (Alexander, supra, 49 Cal. 4th at pp 874-875.) In Alexander, the California Supreme Court went on to hold, "To the extent defendant argues the [destroyed] tapes may have included statements not contained in, or that contradicted, the investigators' reports or witnesses' testimony . . . , his claim is based on speculation, not proof of actual prejudice. Although, . . . it might have been preferable to save the tapes, defendant has not demonstrated that he actually was prejudiced by their destruction." (Id. at p. 875.)
As already stated, the contents of the April 22 video will never be known, therefore, any claim that defendant was prejudiced by its absence is pure speculation. Moreover, because of the apparent speed with which Longs destroyed its videotapes, defendant did not, and could not, demonstrate that the delay in charging him resulted in the destruction of the video. Finally, it is apparent that the trial court did not engage in the weighing process described above. Therefore, substantial evidence does not support any finding by the court below that the delay resulted in the loss of the video, which prejudiced defendant.
DISPOSITION
The order dismissing this case is reversed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P.J.
We concur:
MILLER
J.
CODRINGTON
J.