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People v. Pitt

California Court of Appeals, Fourth District, Second Division
Oct 23, 2008
No. E044863 (Cal. Ct. App. Oct. 23, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from the Superior Court of Riverside County No. CR66356. Jean P. Leonard, Judge.

Rod Pacheco, District Attorney, and Matt Reilly, Deputy District Attorney, for Plaintiff and Appellant.

Rex Williams, under appointment by the Court of Appeal, for Defendant and Respondent.


OPINION

HOLLENHORST, J.

I. INTRODUCTION

The People appeal from the trial court’s decisions to grant defendant George Pitt’s motion to dismiss for lack of a speedy trial and to deny the People’s motion for a continuance.

The main issue before us is whether there was sufficient evidence to support the trial court’s finding of prejudice from the delay in prosecution. The People contend that the trial court abused its discretion by relying on insufficient and incompetent evidence to support its finding of actual prejudice. Additionally, the People claim the trial court abused its discretion by refusing to allow them reasonably adequate time to respond. We disagree with both contentions, and we affirm.

II. PROCEDURAL BACKGROUND AND FACTS

A. Background

The People filed a criminal complaint on December 13, 1995, charging defendant with embezzlement (Pen. Code § 503) and theft (§ 487, subd. (a)). The felony complaint alleged that between 1994 and 1995, in the course of his employment with CDK Contracting (CDK), defendant unlawfully appropriated approximately $7,500 of CDK’s funds to his own personal use.

All further statutory references will be to the Penal Code unless otherwise noted.

By the time the complaint was filed, defendant had already moved to South Carolina for new employment. Five days after the filing, a warrant was issued for defendant’s arrest, which contained defendant’s updated South Carolina address. However, law enforcement officials made no apparent effort to prosecute the case or arrest defendant in South Carolina.

In July 2007, roughly 12 years after the filing of the criminal complaint and 13 years after the alleged conduct, defendant was detained by customs authorities due to an outstanding warrant as he attempted to return to the United States from a vacation abroad.

B. Trial Court Proceedings

In October 2007, three months after his detention, defendant filed a timely motion to dismiss for lack of a speedy trial. The motion claimed that the long delay had resulted in faded memories and the loss of exonerating physical and testimonial evidence. In support of the motion, defendant filed a declaration, made under penalty of perjury, in which he claimed that he first “became aware of this case in July 2007,” upon his re-entry into the United States after a vacation. He also claimed that “CDK went out of business over 10 years ago which would make it impossible to obtain the records necessary to defend this case . . . .” Defendant further stated (1) his current place of residence; (2) his belief that the current case stems from a prior civil dispute regarding travel reimbursement, which he settled with CDK; and (3) that he attempted to resolve the criminal dispute by mail but was told that he must have an attorney make an appearance.

The People did not file a response to the motion. Instead, on November 7, 2007, the same day as the motion hearing, they filed a motion to continue (§ 1050), on the grounds that they were still researching “the validity of the defendant’s claims” and needed time to “contact the victim in order to demonstrate the lack of actual prejudice.” The motion to continue was denied.

Defendant did not appear at the motion hearing in November 2007. His counsel reiterated to the court that CDK went out of business 10 years ago, causing actual prejudice “because I’m sure those records are long gone.” The People responded by saying, “I think the evidence is preserved. We have copies of the checks still. We have a police report. We have the officers.” The deputy district attorney also expressed that she would have liked the opportunity to cross-examine defendant on his declaration. Defendant’s counsel noted that the police report clearly listed defendant’s South Carolina address: “They knew where he was at at [sic] that time. They just took no steps to go forward and prosecute the case.” The deputy district attorney conceded that she was not aware of any law enforcement effort to send resources out to South Carolina to arrest defendant.

The trial court granted defendant’s motion to dismiss. It explained, “[T]he Court has no choice but to dismiss this case for lack of a speedy trial. It appears that it’s 13 years old, that he was not hiding from anyone. The information regarding his whereabouts was in the police report. And, in addition, there appears to be some prejudice based on the length of time between the actual event and, of course, the prosecution.”

III. DISCUSSION

The threshold question of whether a criminal defendant’s right of speedy trial under the California Constitution has been violated is whether the defendant was prejudiced by the unreasonable delay between the filing of the complaint and the subsequent arrest. (Cal. Const., art. I, § 15; Shleffar v. Superior Court (1986) 178 Cal.App.3d 937, 945.) Unlike the federal right in the Sixth Amendment, which attaches upon the filing of information or arrest, the California speedy trial right is triggered upon filing of the complaint, and thus covers pre-arrest delay. (People v. Dunn-Gonzalez (1996) 47 Cal.App.4th 899, 910 (Dunn-Gonzalez).) Thus, a post complaint pre-arrest delay, like that found in the present case, does not invoke the federal right but only the California speedy trial right.

Under the California Constitution, “a three-step analysis is employed to determine whether the defendant’s rights have been violated.” (Dunn-Gonzales, supra, 47 Cal.App.4th at p. 911.) First, the defendant must affirmatively demonstrate prejudice. (Ibid.) Next, if the defendant adequately demonstrates prejudice, the burden shifts to the prosecution to justify the delay. (Ibid.) Finally, if justification is offered, the court weighs the justification against the prejudice. (Ibid.)

California’s speedy trial provision never presumes prejudice prior to the arraignment and requires that prejudice be affirmatively demonstrated, no matter how unreasonable the delay. (Ibarra v. Municipal Court (1984) 162 Cal.App.3d 853, 857 (Ibarra).) Thus, in the case before us, defendant carries the initial burden of demonstrating actual prejudice, and the court will not inquire into the justification for the delay before this demonstration occurs. (Id. at p. 858.)

A. Was There Sufficient Evidence of Prejudice to Shift the Burden to the State?

The People contend there was insufficient evidence to support a finding of actual prejudice.

1. Standard of Review

When a party challenges a dismissal based upon a violation of a defendant’s right to a speedy trial, the court reviews the record under an abuse of discretion standard. (Serna v. Superior Court (1985) 40 Cal.3d 239, 250-251.) Whether prejudice has been shown is a factual question to be determined by the trial court and its decision will not be overturned by an appellate court if supported by substantial evidence. (People v. Hill (1984) 37 Cal.3d 491, 499 (Hill).) The role of the appellate court is not to reweigh the evidence but to ascertain whether the conclusions of the trial court are supported by particular facts. (Ibid.) All reasonable inferences by the trier of fact must be indulged in favor of the ruling and “those affidavits favoring the contention of the prevailing party establish the facts stated therein and all facts which reasonably may be inferred therefrom . . . .” (People v. Canada (1960) 183 Cal.App.2d 637, 642.)

2. Analysis

The People argue that the trial court’s consideration of the state’s delay, the second prong of the California speedy trial analysis, was improper because defendant failed to sufficiently demonstrate actual prejudice. We must therefore address how much prejudice is necessary to shift the burden onto the state to justify the delay and how may such prejudice be demonstrated.

The degree of actual prejudice necessary to shift the burden to the state and the degree necessary to compel dismissal are two entirely different questions. A defendant must make only a prima facie showing of prejudice in order to shift the burden, while the degree necessary to require dismissal varies from case to case and must be determined after a “delicate task of balancing competing interests.” (Ibarra, supra, 162 Cal.App.3d at p. 858.) Thus, “[e]ven a minimal showing of prejudice may require dismissal if the proffered justification for delay be unsubstantial.” (Ibid.)

Prejudice must be demonstrated by detriments to the defense such as the loss of material witnesses, missing evidence, or faded memories caused by lapse of time. (People v. Archerd (1970) 3 Cal.3d 615, 640.) Determining whether prejudice exists necessitates a careful assessment of the particular facts of each case. (People v. Hayton (1979) 95 Cal.App.3d 413, 419.)

a. Memory impairment

The People argue that defendant’s claim of memory impairment was insufficient to establish actual prejudice.

A lengthy delay may permit an inference of prejudice because of faded memories, although it is not invariably so. (Serna, supra, 40 Cal.3d at p. 250.) In Ibarra, the state arrested the defendant for misdemeanor lewd conduct, but the defendant was released and never arraigned. (Ibarra, supra, 162 Cal.App.3d at p. 856.) Later, the state filed a complaint against the defendant for lewd conduct but did not arrest him until 13 months later. (Ibid.) In his motion to dismiss, the defendant attached a declaration claiming that he had no recollection of the details of the conversation that led to his original arrest and that someone from the district attorney’s office led him to believe he would not be prosecuted. (Ibid.) The trial court denied the motion without addressing the justification for the delay and held that the declaration was insufficient to demonstrate actual prejudice. (Ibid.) On appeal, the appellate court reversed, saying, “At the hearing on Ibarra’s motion to dismiss, he offered his declaration as proof of prejudice . . . While we agree the claimed prejudice is minimal, we hold the trial court erred in evaluating the quality of the prejudice without conducting a further hearing to balance the claimed prejudice against any reason offered for the delay.” (Id. at p. 858.)

The proof of prejudice in the case before us is virtually identical to that in Ibarra. The defendant in Ibarra claimed memory impairment after only 13 months of inaction by the prosecution. (Ibarra, supra, 162 Cal.App.3d at p. 856.) In the case before us, the length of time between the alleged conduct and the hearing was roughly 156 months (13 years) and the details needed to prosecute defendant certainly demand more acute recall than in Ibarra. The fact that the company has been defunct for roughly a decade undoubtedly enhances the importance of the parties’ memories about the details of the matter.

Between November 1994 and June 1995 defendant, while working as the office manager for CDK, is alleged to have received nine checks totaling about $7,500, which he redirected to his wife in South Carolina. According to the People, defendant admitted these allegations to a Riverside police detective. Defendant, however, contends the allegations stem from travel reimbursements and that the dispute was settled in 1996. Given this, in order to defend against the People’s allegations, defendant would need to recollect the details of his phone conversation with the detective. Defendant would need to recall the details of his meeting with CDK personnel where he allegedly resolved the civil dispute between him and the company. Those same persons would be asked to testify as to the validity of defendant’s claims. Because of the extensive testimony that may be needed by both defendant and other witnesses, the lengthy delay would severely impair defendant’s recollection of details as well as the recollection of the detective and key witnesses.

The People contend that Serna supports their argument that defendant’s claim of memory loss was insufficient and unsubstantiated. In Serna, the defendant declared that he had no “‘independent recollection of [his] activities’” on the date in question and was “‘unaware of the full names or current whereabouts of [people who might be witnesses on his behalf].’” (Serna, supra, 40 Cal.3d at p. 250.) The trial court rejected this allegation as insufficient and the appellate court affirmed. (Id. at pp. 250-251.)

Serna does not compel the trial court to reject defendant’s declaration. The Serna court explicitly disavowed an interpretation that would strip the trial court of its discretion to accept or reject declarations: “We cannot, and do not, suggest that a judge may not believe a defendant’s declaration or testimony that he has no recall of events occurring many months earlier.” (Serna, supra, 40 Cal.3d at p. 250.) Additionally, the circumstances in Serna are sufficiently different from the present case. In Serna, the trial court rejected the defendant’s declaration only after he failed to read the police reports and employee records to refresh his memory. (Ibid.) The trial court concluded that in those circumstances the defendant’s statement “reflected no effort whatsoever by [the defendant] to refresh recollection.” (Ibid.) In the present case, the delay is significantly longer, making defendant’s claim of memory loss more credible. Additionally, the defendant in Serna claimed that he could not recall the names of witnesses, despite the fact that those names easily could have been recalled through a quick glance at a police report or employee records. (Ibid.) The nature of what must be recalled in the present case is entirely different and much less apt to be remembered upon glancing at a police report — in addition to names, defendant must also recall events and conversations that took place over 12 years ago. Serna is not instructive in this case for the purposes of determining whether to reject defendant’s claim of memory loss.

Additionally, the facts that defendant was unaware of the criminal charges against him and that he possessed a justified belief that the dispute had long since been resolved enhance the degree of prejudice through memory impairment. The inordinately lengthy delay and lack of contact with defendant would undoubtedly hamper his ability to fully and effectively reconstruct events for which he reasonably believed he would not be held liable. In Jones v. Superior Court (1970) 3 Cal.3d 734, 741 (Jones), the defendant, who was aware the police suspected him of a narcotics offense, was served with a warrant 19 months after its issuance. The court said that because the defendant’s whereabouts were known to the police department, prejudice flowed from the fact they unjustifiably took no affirmative steps to apprehend him. (Ibid.) “Indeed the prejudice to his ability to reconstruct his activities at some unknown date before he knew he was suspected of some offense may well have been compounded by a false sense of security induced by the failure of the police to follow up the telephone conversation with him for 19 months. [The defendant] was not in hiding and his whereabouts could have been discovered by a routine, uncomplicated investigation.” (Ibid.; see also People v. Mitchell (1972) 8 Cal.3d 164, 167 (Mitchell) [holding that because the state unjustifiably made no effort to bring the defendant to trial for 13 months after a bench warrant was issued against him and because he relied on assurances from public officials that there were no warrants against him, sufficient prejudice was found to warrant dismissal]; see also Ibarra, supra, 162 Cal.App.3d at p. 856 [defendant relied on assurances by the district attorney’s office that he would not be prosecuted].)

Similar to Jones and Mitchell, in the present case, defendant’s whereabouts were well-known to the state—the warrant itself contained defendant’s updated South Carolina address. The length of delay compounded not only the memory impairment suffered by defendant but also supported the belief that he would not be criminally prosecuted for his alleged actions. The facts that he was under the impression the civil dispute was already resolved and that he had no prior knowledge of the criminal action against him strengthen the reasonableness of his belief and his claim that he would be less able to reconstruct the events in question.

A bare declaration asserting memory impairment, though it may not survive an adequate showing of justification by the state or evidence contradicting the assertion of impairment, is sufficient to entitle the court to hear the justification for the delay. (Ibarra, supra, 162 Cal.App.3d at p. 858) The People argue justification was erroneously considered. Quite to the contrary, as Ibarra makes clear, the trial court would have abused its discretion if it were to have denied defendant’s motion without ruling on the integrity of the justification. (Ibid.)

The People argue: “Were the mere claim of memory loss to suffice, virtually all delays in prosecution would require dismissal because every defendant could simply assert memory loss.” We are not holding here that conclusory statements in regard to memory loss are sufficient as a matter of law to demonstrate actual prejudice; instead, we are confirming the fact that the trial judge need not accept such testimony and it need not, as a matter of law, reject it. (Serna, supra, 40 Cal.3d at p. 250.) A minimal showing is sufficient to entitle the trial court to hear justification for the delay. (Ibarra, supra, 162 Cal.App.3d at p. 858.) Where there is no justification, even a minimal showing may require dismissal. (Ibid.)

Because of these distinguishing features between Serna and the case at hand, we find Ibarra more instructive. Accordingly, we conclude that defendant’s claim of memory impairment was sufficient to show minimal prejudice and thereby shift the burden to the People to justify their delay.

b. Physical or testimonial evidence

The People argue that defendant’s claim that retrieving physical and testimonial evidence would be an unreasonable burden is not based on particular facts and is too conclusory for a finding of minimal prejudice.

Minimal prejudice may be found if it can be shown that due to the length of the delay the defendant can no longer obtain or locate evidence. (See Garcia v. Superior Court (1984) 163 Cal.App.3d 148, 151 (Garcia).) Defendant’s declaration must be supported by particular facts and not bare conclusionary statements or mere declarations that the defendant was prejudiced. (Ibarra, supra, 162 Cal.App.3d at p. 858; Crockett v. Superior Court (1975) 14 Cal.3d 433, 442 (Crockett).)

In Garcia, the defendant was arrested for heroin possession following a January 20, 1983, search of her home. The defendant was released on bail prior to her arraignment. (Garcia, supra,163 Cal.App.3d at p. 150.) It then took the state roughly 11 months to file a complaint and arraign her. (Ibid.) She filed a motion to dismiss on speedy trial grounds and attached a declaration stating that due to the length of the delay, she was unable to locate witnesses who had exculpatory testimony. (Ibid.) Without inquiring into the state’s justification for the delay, the judge denied the motion. (Ibid.) The appellate court held that the trial court erred in denying the motion prematurely: “[Defendant] made a prima facie showing of prejudice in this case which shifted the burden of going forward with the evidence to the prosecution. Its burden is to explain the delay. Only then may the court balance competing interests since it is inappropriate to evaluate the quality or quantity of prejudice in a vacuum.” (Id. at p. 151.) The law does not require that any and all supporting physical evidence must have perished in order for prejudice to be found (see id. at pp. 151-152); indeed, a reasonable claim of impairment to a defendant’s ability to mount an effective defense is sufficient to meet the threshold of minimal prejudice. (Id. at p. 151; Ibarra, supra, 162 Cal.App.3d at p. 858.)

In the instant case, we are not looking at an 11-month delay, as in Garcia, but a 144-month delay since the filing of the complaint and a 156-month lapse since the alleged conduct. At the motion hearing, the deputy district attorney asserted that she thought the evidence was preserved and that the checks, officers and police report were still available. Later, she indicated to the judge that she would “like a chance to try to contact the victim to see if he is still available and willing to prosecute.” As defendant’s counsel correctly pointed out in his respondent’s brief, in order to mount a respectable defense, defendant will need more than just the bare checks and police report. Defendant will also have to obtain his own banking records as well as those of CDK. If defendant’s allegation that the issue stemmed from a dispute regarding travel reimbursement is true, he will need to obtain his own travel receipts and itineraries, in addition to proof that those travel engagements were work related and not personal. The excavation of 14-year-old physical evidence would conceivably present Indiana Jones, let alone defendant, with an unreasonably burdensome task. This is all buttressed by the fact that CDK has been out of business for over 10 years. It can reasonably be inferred that even if all the records pertaining to defendant’s alleged misconduct escaped routine document destruction and are still available in a storage facility somewhere, the burden of locating and exhuming them would be unreasonable. Because of the particular facts of the case and reasonable inferences that can be derived from them, we concur with the trial court’s finding that there existed at least some prejudice to defendant.

Dr. Henry Walton Jones, Jr., better known as Indiana Jones, is a fictional adventurer, professor of history and archeology, and the main protagonist of the Indiana Jones franchise created by film producer and screenwriter George Lucas. ( [as of August 19, 2008].)

The People contend that the declaration is insufficient because “actual prejudice . . . must be supported by particular facts and not . . . bare conclusionary statements,” as articulated in Crockett. (Crockett, supra, 14 Cal.3d at p. 442; see also Blake v. Superior Court (1980) 108 Cal.App.3d 244, 251 (Blake).) The People argue the application of Crockett and Blake to the facts in this case.

We disagree that Crockett and Blake apply here. In Crockett, one of the petitioners claimed prejudice on the basis that because of the 194-day delay (100 days of which were due to the petitioners’ own actions) he was unable to locate key alibi witnesses, “but he failed to state any particular facts which permit a determination that such witnesses even exist” or articulate how they are connected to the case. (Crockett, supra, 14 Cal.3d at p. 441.) The codefendant in Crockett alleged that she was prejudiced because she was precluded from fully investigating the accuracy of the victim’s statements which connect her to the crime. (Id. at p. 442.) However, there was no showing that the delay would have hampered her ability to do so after her arraignment. (Ibid.) Similarly, in Blake, the petitioner made a “vague offer of proof” that two potential witnesses were deceased and four alibi witnesses were “‘no longer available for varying reasons’” and “failed to articulate specific facts demonstrating the existence of such witnesses and that they are in fact unavailable.” (Blake, supra, 108 Cal.App.3d at pp. 250-251.) In both of these cases the courts ruled that the showing of prejudice was insufficient. (Id. at pp. 250-251; Crockett, supra, 14 Cal.3d at p. 442.)

The present case is clearly distinguishable because in both Crockett and Blake the defendants’ claims were not grounded in particular facts. Here, in contrast, defendant has claimed prejudice based on specific facts: Memories of witnesses, including the memory of defendant himself, have faded in the 13 years since the alleged conduct, CDK’s officers are indispensible witnesses to the case; CDK’s records are material to the prosecution and defense; and CDK has been out of business for over 10 years. The court may reasonably infer that if the records are not impossible to retrieve, then, as defendant alleges, their production may nevertheless be exceedingly burdensome. These claims are not bare conclusionary statements or mere allegations of prejudice, but rather are specific facts on which the trial court could have reasonably inferred prejudice.

Thus, we conclude that defendant has made a prima facie showing of prejudice in regard to lack of physical or testimonial evidence. We reject the People’s argument that defendant must specify the identity of the records, what the records would have shown, and what efforts defendant made to locate the records. As defendant articulated in his brief, it does not take a “great leap of imagination to infer” the nature of some of the evidence required. Even if such averments by defendant may not outweigh a showing of adequate justification, they nonetheless suffice to shift the burden to the prosecution in this case. (See Garcia, supra,163 Cal.App.3d at pp. 151-152.)

3. Conclusion

Prejudice is a factual question to be decided by the trial court and the “conflict [is] to be won or lost” there. (Hill, supra, 37 Cal.3d at p. 499.) Because only a minimal showing of prejudice was all that was required to shift the burden to the state to justify their delay, we find substantial evidence to support the trial court’s decision. (See Ibarra, supra, 162 Cal.App.3d at p. 858; see Garcia, supra,163 Cal.App.3d at pp. 151-152.)

B. Was There Justification for the Delay?

“The quality of any claimed prejudice cannot be properly evaluated in a vacuum; it only makes sense when compared with any justification for the delay.” (Ibarra, supra,162 Cal.App.3d at p. 858.) Thus, the more reasonable the delay, the more prejudice the defense will have to show to require dismissal. (Ibid.) Where there is an unsubstantial showing of justification, only a minimal showing of prejudice is required. (Ibid.)

The courts have recognized that it is often in the public interest to delay the arrest of an individual wrongdoer. (People v. Wright (1969) 2 Cal.App.3d 732, 736.) For instance, such delays are justifiable in narcotic “buy” program cases where undercover agents need to perform extensive investigation to reach the wholesale sources of illicit narcotics. (Ibid.) Revealing a policeman’s identity in order to arrest an individual in such instances compromises his safety as well as the integrity of the investigation. (Ibid.) Additionally, a prosecutor is entitled to take a reasonable amount of time to investigate an offense to determine whether prosecution is warranted or to gather more evidence to build a case against the defendant. (Dunn-Gonzalez, supra, 47 Cal.App.4th at p. 911.) Negligence, however, does not justify prosecutorial delay. (Ibid.)

The People failed to claim any adequate justification for their delay in this case. Rather, it appears that little to no effort was made to prosecute this case in the 12 years since the complaint was filed. After being detained in July 2007, defendant promptly filed a motion to dismiss in October 2007. By the date of the hearing on defendant’s motion in November 2007, the People still had not filed a response. Instead, they submitted a motion to continue the morning of the hearing, stating that they were still attempting to research the validity of defendant’s claims. Likewise, during the hearing, the People offered no justification for their lengthy delay. The deputy district attorney merely indicated that she “would like a chance to try to contact the victim to see if he is still available and willing to prosecute.”

Because the People were aware of defendant’s whereabouts and made no effort to prosecute or investigate this case further, it is evident to this court that the delay is the result of inexcusable negligence on the part of the People. Because no justification was proffered, we agree with the trial court that the evidence put forth by defendant was sufficient to require dismissal. Consequently, when there is no justification for the delay, there is no need to move to the third prong of the speedy trial test, the balancing of interests.

C. Was Defendant’s Declaration Incompetent and Therefore Inadmissible?

The People contend that defendant’s declaration is inadmissible hearsay, but they failed to properly object. As a general and well-settled rule, any relevant and material evidence that is received without proper objection or a motion to strike — even if it is incompetent and therefore inadmissible — “is to be regarded as sufficient to establish a fact and as supportive of an order or judgment. This rule applies to incompetent statements in affidavits.” (Cope v. Cope (1964) 230 Cal.App.2d 218, 233.) Nonetheless, we will examine the merits of these objections because they can be easily disposed of.

When state law authorizes facts to be shown by affidavits or other sworn statements, valid declarations made under the penalty of perjury have the same force and effect as an affidavit administered under oath. (Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 610.)

1. Defendant’s Failure to Be Cross-examined on His Declaration

The People argue that defendant’s declaration is inadmissible hearsay under Evidence Code section 1200 and does not support his motion to dismiss because defendant failed to be cross-examined. In support of this contention, the People cite People v. Williams (1973) 30 Cal.App.3d 502 (Williams). However, Evidence Code section 1205 provides that Evidence Code section 1200 does not repeal the statutory authorizations in Code of Civil Procedure section 2002 et seq., which specifically permit the use of affidavits on motions without cross-examination requirements. (People v. Sahagun (1979) 89 Cal.App.3d 1, 24 [Code of Civil Procedure section 2009 governs the use of affidavits in court proceedings, including those in criminal cases].)

Williams can easily be reconciled with the aforementioned statements of law and precedent. In Williams, the People’s justification for a delayed arrest was premised upon the fact that they lacked knowledge of the defendant’s whereabouts. (Williams, supra, 30 Cal.App.3d at pp. 505-06.) The defendant’s affidavit, claiming that he was at his residence the entire time, directly conflicted with the investigating officer’s findings detailed in his police report. (Id. at pp. 509-510.) The trial judge, acting within the bounds of his discretion, decided to reject the defendant’s affidavit unless he took the stand. (Id. at p. 510.)

In the context of pretrial proceedings, Williams does not prescribe an affirmative duty upon a party to furnish a declarant upon the request of an opposing counsel’s desire to cross-examine. Such a conclusion would surely undercut the underlying efficiency considerations of pretrial proceedings in general. Instead, Williams reaffirms the generous discretion vested in the trial court to accept or deny claims set forth in the affidavit and to permit or deny examination of the affiant. (See People v. Kirk (1952) 109 Cal.App.2d 203, 209 [“whether examination of an affiant shall be permitted upon a motion, rests solely in the discretion of the trial judge. (Citations.)”].) We do not read Williams in a manner that would contradict a wealth of precedents and place an affirmative duty upon the court and opposing party to bring forth an affiant or declarant for examination. In the case before us, the trial court acted well within its discretion to reject the People’s request to cross-examine, even if the People had correctly lodged their objection (as the prosecution did in Williams).

2. Affidavit Based on “Information and Belief”

Quoting People v. Oppel (1990) 222 Cal.App.3d 1146, 1153 (Oppel) (holding that an affidavit based on information and belief is insufficient to meet the evidentiary showing required by statute on the issue of disclosure of a confidential informant’s identity), the People contend that defendant’s affidavit is based on information and belief and is therefore “‘unavailing for any purpose whatsoever.’” We reject this contention. The courts “have long held that affidavits on information and belief may be sufficient in a variety of contexts where the facts would otherwise be difficult or impossible to establish.” (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 87.) Thus, affidavits based on information and belief may be admitted where “the statutory scheme in question does not require personal knowledge of the material facts,” as Evidence Code section 1043, subdivision (b)(3) required in the case of Santa Cruz. (Oppel, supra, 222 Cal.App.3d at p. 1153, fn. 6 [discussing Evid. Code § 1043, subd. (b)(3) as applied to Santa Cruz].)

Here, defendant’s declaration in support of his motion to dismiss appears to be based upon his own personal knowledge. Defendant stated that he has been a resident of South Carolina since 1995; that he became aware of the case in July 2007 after being detained by customs upon his return from his vacation; that he believes the case stems from a civil dispute which he had resolved in 1996; and that he thought the matter had since been closed.

Defendant’s allegation that CDK’s dissolution 10 years earlier “would make it impossible to obtain the records necessary to defend this case” appears to be based on impermissible belief since defendant likely has little knowledge in regard to the extent that CDK has preserved its records. (Italics added.) However, even if error were to be found, the appellate court’s power to act is very circumscribed. It is well settled that the appellate court does not make an inquiry into the trial judge’s reasoning and considerations, unless it clearly reflects a misunderstanding of the law. (People v. Geier (2007) 41 Cal.4th 555, 582 (Geier).) The trial court said, “[defendant] was not hiding from anyone . . . in addition, there appears to be some prejudice based on the length of time between the actual event and . . . the prosecution.” The trial court did not state its full reason for finding prejudice. Also, it did not state that it found prejudice based upon defendant’s allegation that the records were “impossible” to obtain. Moreover, it did not state that the length of time was the only fact considered, as the People have suggested.

Because it is not the role of the appellate court to reweigh the evidence, and because we may reasonably infer that the trial court had adequate legal basis for its decision, we cannot opine that the trial court may have given its decision for the wrong reason. (Geier, supra, 41 Cal.4th at p. 582.) The appellate court is not in the position to reverse a trial court’s order of dismissal based on error in the admission of evidence, unless it “‘affirmatively appear[s] to the satisfaction of [the] court’” that the opposing party may have been “‘substantially injured by the error of which [it] complains,’” and it “‘appears that a different verdict would not otherwise have been probable.’” (People v. Watson (1956) 46 Cal.2d 818, 836.)

D. Did the Trial Court Abuse Its Discretion in Denying the People’s Motion to Continue?

Pursuant to section 1050, the People moved for a continuance of the hearing on defendant’s motion to dismiss. The People cited three reasons for the continuance: (1) a recent reassignment in the district attorney’s office; (2) additional time needed to research the validity of defendant’s claims; and (3) additional time needed to contact the victim. The People argue that the trial court abused its discretion in denying this motion.

The standard of review for the denial of a continuance motion is abuse of discretion. (People v. Jenkins (2000) 22 Cal.4th 900, 1037; People v. Henderson (2004) 115 Cal.App.4th 922, 933-934.)

“Continuances shall be granted only upon a showing of good cause.” (§ 1050, subd. (e).) Here there were 12 years between the time the People filed their complaint and defendant was detained. Moreover, three months elapsed between the time of defendant’s detention and his motion to dismiss. The People have not shown that defendant was evading them or was otherwise unavailable—his name and address were in the police report, as defendant himself points out. Moreover, the People have not shown that there was any reasonable effort to contact the victim to verify defendant’s claims between the time of defendant’s detention and the time his motion to dismiss was filed in October 2007, or between the time the motion was filed and the hearing was held in November 2007. (See People v. Shane (2004) 115 Cal.App.4th 196, 203 [party seeking continuance must demonstrate due diligence].) Furthermore, we are not persuaded that reassignment within the department compels a continuance—in such cases we must defer to the trial court, which has broad discretion in refusing to grant a continuance. (People v. Laursen (1972) 8 Cal.3d 192, 204.)

Based on the record before us, we hold that the trial court did not exceed all bounds of reason or abuse its discretion in denying the motion to continue.

To the extent the People claim “[t]here was simply no compelling reason why the court needed to make an immediate ruling on the defendant’s motion to dismiss before the prosecution was prepared to adequately respond,” we note their failure to (1) timely request a continuance; (2) explain the failure to timely contact the necessary parties; or (3) cite to any authority which would compel a finding in their favor on their assertion that “[i]f it is an abuse of the court’s discretion to deny a continuance because defense counsel does not have adequate time to prepare a defense, why is it also not an abuse of the court’s discretion to deny a continuance when the prosecution needs adequate time to prepare a response to a dismissal motion[.]”

IV. DISPOSITION

The judgment is affirmed.

We concur: RAMIREZ, P.J. MILLER, J.


Summaries of

People v. Pitt

California Court of Appeals, Fourth District, Second Division
Oct 23, 2008
No. E044863 (Cal. Ct. App. Oct. 23, 2008)
Case details for

People v. Pitt

Case Details

Full title:THE PEOPLE, Plaintiff and Appellant, v. GEORGE F. PITT, Defendant and…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Oct 23, 2008

Citations

No. E044863 (Cal. Ct. App. Oct. 23, 2008)