Opinion
E044238
7-1-2008
THE PEOPLE, Plaintiff and Appellant, v. ANTHONY FRANCIS CLARKE, Defendant and Respondent.
Rod Pacheco, District Attorney, and Matt Reilly, Deputy District Attorney, for Plaintiff and Appellant. Siri Shetty, under appointment by the Court of Appeal, for Defendant and Respondent.
Not to be Published
On September 24, 1997, alleged incidents of child molestation, occurring sometime between November 1994 and June 1995, were reported to the police. The People filed a complaint against defendant on February 17, 2000, and a warrant was issued for his arrest on February 24, 2000. Defendant was involuntarily arrested by way of extradition from New Mexico on March 2, 2006. Defendant filed a motion to dismiss the complaint based on a violation of his state and federal constitutional rights to a speedy trial. After the preliminary hearing, the court granted defendants motion, finding that the delay substantially prejudiced defendant and that the People failed to provide sufficient justification for that delay. On appeal, the People contend the trial court erred in failing to apply the proper legal test for dismissing an information based on preaccusation delay. The People maintain the court must also find the delay was intentional. The People further argue that the California "Truth in Evidence" provision of the states Constitution forbids the dismissal of the instant case. (Cal. Const., art. I, § 28, subd. (d).) Finally, the People contend that, regardless of the proper test for dismissal, the dismissal here was not supported by substantial evidence.
The lower court record is not totally clear as to the basis for the dismissal. Defendants written motion was premised primarily on postcomplaint delay (speedy trial), although the overall period of 11 years was discussed, thereby including precomplaint delay (due process). Evidence was submitted as to both time periods of delay. While the reporters transcript appears to show that the trial courts primary concern was precomplaint delay, the transcript demonstrates the courts concern as to the overall delay. In dismissing the information, the court discusses due process (precomplaint delay), while the clerks record indicates that the dismissal was based on speedy trial (postcomplaint delay).
We find that under California law, a trial court is not required to find that the Peoples preaccusation delay was intentional. We believe the trial court applied the proper legal standard in determining that defendant suffered prejudice due to unreasonable and unjustifiable delay under both the due process standard applicable to preaccusatory delay, and the speedy trial analysis applicable to postcomplaint delay. Likewise, we hold that substantial evidence supported the trial courts dismissal of the information. Finally, we find that the "Truth in Evidence" provision of the California Constitution is not implicated when a trial court dismisses a case for prosecutorial delay.
I. FACTS AND PROCEDURAL HISTORY
Mother resided with defendant and C.Z., her daughter, in Corona between November 1994 and June 1995. C.Z. was about three years old during this period. Mother would leave C.Z. alone with defendant on numerous occasions. In June 1995, C.Z. was removed from the custody of mother and placed with father when defendant slapped C.Z. One year afterward, C.Z. began masturbating excessively and having chronic yeast infections. Between October and November 1996, C.Z. complained of vaginal odor and discharge. Father reported that C.Z. frequently had nightmares, during which she would wake up screaming. On August 8, 1997, Dr. Clare Sheridan conducted a forensic medical examination on C.Z. Dr. Sheridan reported physical and psychological anomalies which were consistent with sexual molestation.
On September 24, 1997, the matter was reported to the police. Officer John Marshall was assigned to the case on November 12, 1997. On February 10, 1998, Child Protective Services (CPS) worker Rhonda Grimmett conducted a Riverside Interagency Victim Interview Team (RIVIT) interview with C.Z. "It is where they have a district attorney present, [CPS] people, Department of Social Services, any of the other disciplines that may have an interest in this. [¶] This program was set up to cut down the amount of interviews children would have to have in investigative cases. You could get all the disciplines at one time to minimize having to repeat these stories over and over and have to further be traumatized by these events." Victims "dont know why they are there until we get them in the room. We dont want the parent or whoever, the CPS worker, letting them know what they are there for. We try to get as much of a fresh pristine statement as we can from them. [¶] We try to—not to prefix or to do any kind of prior interview before we go on tape. We want the truth. We want it pure. We dont know what is going to come out of their mouth when you ask a question. That is the way we want it. We dont want leading questions. We dont want anything built up. We just take it like it is."
During the interview, C.Z. stated that her mothers boyfriend, Tony, touched her private parts on several occasions. He also tried to put his penis into her vagina. She indicated he would kiss her neck, French kiss her on the lips, remove her clothes, lay on top of her, and try to have a baby with her. She indicated he would tie a black belt around her mouth when he molested her and that she was terrified during these occurrences. She said the incidents hurt.
Marshall was provided contact information for the mother. After about a year he was able to contact her. At the time of the interview, Marshall advised the mother that he "was there to talk about Anthony Clarke." He testified that her description of the defendant was "basically the same description that I got off his drivers license record in our records that we already had, as far as height, weight, and what he looked like, and we already had a photo as well." The mother confirmed that she lived with defendant between November 1994 and June 1995, that C.Z. lived with them, and that she would often leave C.Z. alone with defendant. The mother indicated that defendant moved to Florida, possibly to escape arrest on an outstanding warrant he had for domestic abuse. Marshall conducted some computer checks for defendants location, which failed to turn anything up. On February 18, 1999, Marshall completed an arrest warrant declaration and referred the case to the district attorneys office for the filing of charges. The arrest warrant declaration indicated that it was suspected defendant had fled to Florida and requested extradition.
On November 3, 1999, the district attorneys office referred the case back to Marshall for further investigation. It requested Marshall to complete a couple more interviews. On November 19, 1999, Marshall reinterviewed C.Z. at her school. On that occasion, C.Z. informed him that defendants penis never actually touched her vagina. She also failed to identify defendant from a booking photograph. Marshall referred the case back to the district attorneys office on or about February 1, 2000. On February 17, 2000, the People filed a complaint charging defendant with one count of continuous sexual abuse of a child. Police served the arrest warrant on defendant on March 2, 2006, in New Mexico where he was residing.
On May 12, 2006, defendant filed a motion to dismiss the complaint, alleging his state and federal constitutional rights to a speedy trial had been violated due to postaccusation delay. Defendant argued that the 11-year delay between the date of the alleged crimes and the prosecution of those crimes prejudiced him because he could no longer recall the circumstances surrounding them. Furthermore, defendant claimed that he had lived in New Mexico since May 1997; did not know an arrest warrant had been ordered in the instant case until the day of his arrest; and that at all times since he had moved he had used his correct name and social security number in registering his vehicle, receiving health insurance benefits from the federal government, in his employment, in paying taxes, and in acquiring fishing licenses. Therefore, defendant maintained his location was discoverable and his arrest securable by the authorities.
At the preliminary hearing, senior investigator Steven Welch testified that C.Z., now 13 or 14 years old, no longer had any memory of the incidents or the forensic medical exam. C.Z. had a vague recollection of the RIVIT interview itself, but not of its content. The court held that there was not probable cause to hold defendant to answer for the count as charged; however, the court found probable cause to hold defendant to answer for a minimum of two counts of lewd and lascivious behavior with a minor. (Pen. Code, § 288, subd. (a).) The court deferred ruling on defendants speedy trial motion to permit the People to file a response to defendants declaration filed that day.
In support of defendants motion to dismiss, counsel for the defendant initially filed a declaration by defense counsel based on information and belief. The People opposed the motion with the argument that the evidence supporting the motion was hearsay and therefore incompetent. Thereafter, defendant filed a declaration signed by himself.
On March 15, 2007, the People filed an information charging defendant with two counts of forcible lewd and lascivious acts with a child. (Pen. Code, § 288, subd. (b).) At the hearing on the motion to dismiss, defendant argued that he was prejudiced by the delay both prior to and after the filing of the accusatory pleading. Defendant added C.Z.s memory lapse as an additional basis of prejudice. The People failed to offer an explanation for the delay, other than to suggest that it constituted a typical investigatory interval. The trial court found that defendant was prejudiced by the delay and that the People failed to provide a sufficient justification for that delay; therefore, it dismissed the case.
II. DISCUSSION
A. Introduction
1. Federal Law
Under federal law, a defendants Sixth Amendment right to a speedy trial prohibits any unreasonable postindictment delay in the prosecution of offenses for which a defendant is charged. (People v. Martinez (2000) 22 Cal.4th 750, 754-755, 760 (Martinez).) The federal speedy trial rule comes into play only after the filing of the indictment or information or upon a defendants arrest. (Id. at pp. 760-762.) The purposes of the speedy trial protection, is "`"to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself." [Citation.]" (Id. at p. 760.) "`[T]he filing of a [felony] complaint is by itself insufficient to trigger the protection of the right to a speedy trial under the federal Constitution." (Id. at p. 761.) Here, in that the entire period of delay complained of by defendant was prior to his arrest, defendants right to a speedy trial under the Sixth Amendment of the federal Constitution is not implicated.
Under federal law, a claim of unreasonable preindictment delay is determined under a Fifth Amendment due process analysis. (Martinez, supra, 22 Cal.4th at pp. 760-761.) Due process requires "`dismissal of the indictment if it [is] shown at trial that the pre-indictment delay in [the] case caused substantial prejudice to [the defendants] rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused. [Citation.]" (Id. at p. 765.) Here, there is no contention or evidence that the delay was an intentional device by the People to gain a tactical advantage over defendant. We therefore proceed with our analysis of the present facts under state law.
2. State Law
Under California law, "[t]he defendant in a criminal cause has the right to a speedy public trial . . . ." (Cal. Const., art. I, § 15, cl. 1.) "Although similar in wording and spirit to the federal Constitutions speedy trial guarantee, the state Constitutions guarantee has independent force and operates somewhat differently from the federal provision." (Martinez, supra, 22 Cal.4th at p. 765.) "Because the state constitutional speedy trial right is self-executing and broader than its statutory implementation, a defendant may claim a violation of the state Constitutions speedy trial right based on delay not covered by any statutory speedy trial provision. [Citation.] Thus, a defendant charged with a felony may predicate a claimed speedy trial violation on delay occurring after the filing of the complaint and before the defendant was held to answer the charge in superior court." (Id. at p. 766.) Under state law, a defendants right to a speedy trial comes into play after the filing of the complaint. (Id. at p. 765.) "[W]hen the claimed speedy trial violation is not also a violation of any statutory speedy trial provision, [the California Supreme Court] has generally required the defendant to affirmatively demonstrate that the delay has prejudiced the ability to defend against the charge." (Id. at p. 766.)
The speedy trial provisions are found in Penal Code sections 1381 to 1389.8. They come into play basically if an information is not filed within 15 days from the date the defendant is held to answer or if trial is not held within 60 days of the date of the defendants arraignment on the indictment.
"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 . . . Constitution." (People v. Catlin (2001) 26 Cal.4th 81, 107.)
While the present facts bring into play both postcomplaint delay (speedy trial) and precomplaint delay (due process), the basic dispute between the parties surrounds the principles to be applied to the due process or precomplaint delay. The People, relying on People v. Archerd (1970) 3 Cal.3d 615 (Archerd), argue that for there to be a violation of due process, "[t]he . . . delay must be purposeful, oppressive, and even `smack of deliberate obstruction on the part of the government[.]" The People, in essence, contend that the state due process analysis should mirror the federal due process standard. Defendant contends that there need be no such showing, and that under state law, the same principles apply to both the "speedy trial" analysis and "due process" discussion.
The People argue that while cases subsequent to Archerd have seemed in dicta not to require intentional delay, Archerd has nonetheless not been expressly overruled and it, therefore, remains binding authority.
B. Precomplaint Delay, Due Process
The People contend that the trial court erred in granting defendants motion because it failed to find that the delay in prosecuting the case was intentionally undertaken in order to secure a tactical advantage for the People. It construes our state Supreme Courts decision in Archerd as adopting the federal requirement of a finding of intentionality of delay on the part of the prosecution.
We note that the California Supreme Courts recent decision in People v. Nelson (June 16, 2008, S147051) ___ Cal.4th ___ (Nelson) supports the position we take here: "[U]nder California law, negligent, as well as purposeful, delay in bringing charges may, when accompanied by a showing of prejudice, violate due process. This does not mean, however, that whether the delay was purposeful or negligent is irrelevant. . . . [W]hether the delay was negligent or purposeful is relevant to the balancing process. Purposeful delay to gain an advantage is totally unjustified, and a relatively weak showing of prejudice would suffice to tip the scales towards finding a due process violation. If the delay was merely negligent, a greater showing of prejudice would be required to establish a due process violation." (Id. at [p. 8882].)
In Archerd, the court noted that, under federal and state law, a claim of preindictment delay is analyzed under a due process standard, requiring that the defendant show prejudice from the delay, after which the burden shifts to the People to show the delay was the result of valid police procedure. (Archerd, supra, 3 Cal.3d at pp. 639-640.) It further recognized that "[p]rejudice in either type of delay [preindictment or postindictment] may be shown by the loss of a material witness or other missing evidence or fading memory caused by lapse of time. If the government deliberately utilizes delay to strengthen its position by weakening that of the defense or otherwise impairs a defendants right to a fair trial, an inordinate pre-indictment delay may be shown to be prejudicial. A prosecutor is entitled to reasonable time in which to investigate an offense for the purpose of determining whether a prosecution is warranted and also in preparation of a case for submission to the grand jury. [Citations.] The delay must be purposeful, oppressive, and even `smack of deliberate obstruction on the part of the government, before relief will be granted. [Citations.]" (Id. at p. 640, italics added.) The People maintain that the last sentence demonstrates a requirement that a defendant seeking dismissal of a charge based on preaccusation delay must show that the prosecution acted deliberately. We disagree. Initially, it must be noted that the sentence upon which the People rely is internally inconsistent with the courts statement two sentences earlier, wherein the court states that prejudice can be demonstrated by a showing that the prosecution deliberately utilized delay to strengthen its case, or that the governmental delay otherwise impaired the defendants right to a fair trial. When considered in the context of the decision in its entirety, we believe this statement in Archerd should be construed as merely showing one method by which a defendant may demonstrate prejudice. In other words, while a showing of intentional delay on the part of the People would be one manner of demonstrating a denial of due process, it is not the only method. Indeed, upholding the trial courts denial of the defendants motion to dismiss, the Archerd court found "[t]he delay was neither unreasonable, arbitrary, oppressive or vexatious and was not deliberately caused to harass defendant." (Id. at p. 643.) "Unreasonable" and "arbitrary" are not terms generally denoting purposeful intent. We further believe that the People take the comment somewhat out of context in that it has not been applied to state due process claims since.
In Jones v. Superior Court (1970) 3 Cal.3d 734 (Jones), decided a mere 18 days after Archerd, the California Supreme Court again tackled a claim that preinformation delay prejudiced the defendants right to a fair trial. After citing to Archerd, the court ultimately concluded that defendants California constitutional right to a speedy trial had been violated. (Jones, supra, at pp. 740-741.) In a footnote, the court noted that "[s]ince we have concluded that petitioner was denied his right to a speedy trial, we do not reach his additional contention that the pre-arrest delay constituted a denial of due process. It should be pointed out, however, that a claimed denial of due process would be decided by the same approach, namely, balancing the effect of the delay on the defendant against any justification for the delay. Thus the impact of this decision cannot be avoided by merely delaying the filing of formal charges so that a particular defendant does not technically become an `accused within the meaning of the constitutional guarantee of the right to a speedy trial." (Id. at p. 741, fn. 1, italics added.)
In Penney v. Superior Court (1972) 28 Cal.App.3d 941 (Penney), after specifically citing Archerd, the court noted that "[t]he requirement of a legitimate reason for the prosecutorial delay cannot be met simply by showing an absence of deliberate, purposeful or oppressive police conduct. A `legitimate reason logically requires something more than the absence of governmental bad faith. Negligence on the part of police officers in gathering evidence or in putting the case together for presentation to the district attorney, or incompetency on the part of the district attorney in evaluating a case for possible prosecution can hardly be considered a valid police purpose justifying a lengthy delay which results in the deprivation of a right to a fair trial." (Penney, supra, at pp. 953-954.)
In Scherling v. Superior Court (1978) 22 Cal.3d 493, the court noted that a determination of whether a delay in the prosecution of a criminal case at a stage prior to the filing of an indictment or information was unreasonable "depends upon a balancing of the prejudicial effect of the delay and the justification therefor. [Citations.]" (Id. at p. 504.) It noted that in Archerd it had "held that a delay between the time a crime is committed and the defendant is charged is to be tested not by the rules applicable to speedy trials, but by whether the defendant has been denied due process of law." (Scherling v. Superior Court, supra, at p. 505.) "We affirm our determination in Archerd, that due process is the appropriate test to be applied to a delay occurring after a crime is committed but before a formal complaint is filed or the defendant is arrested. But regardless of whether defendants claim is based on a due process analysis or a right to a speedy trial not defined by statute, the test is the same, i.e., any prejudice to the defendant resulting from the delay must be weighed against justification for the delay." (Ibid., fn. omitted.) In determining that the trial court had correctly denied the defendants motion to dismiss because the defendant failed to show he had been prejudiced, the court noted that "we need not determine whether the delay was justified, particularly since there was no evidence that the delay in prosecution was for the purpose of weakening the defense." (Id. at pp. 506-507.)
Nonetheless, the court felt the need to further explain what exactly is required to find a delay substantial enough to violate a defendants due process rights: "We do not intend to imply that only a deliberate delay by the prosecution for the purpose of prejudicing the defense may justify a conclusion that a defendant has been deprived of due process. The ultimate inquiry in determining a claim based upon due process is whether the defendant will be denied a fair trial. If such deprivation results from unjustified delay by the prosecution coupled with prejudice, it makes no difference whether the delay was deliberately designed to disadvantage the defendant, or whether it was caused by negligence of law enforcement agencies or the prosecution. In both situations, the defendant will be denied his right to a fair trial as a result of government conduct. [Citation.] Thus, although delay may have been caused only by the negligence of the government, the prejudice suffered by a defendant may be sufficient when balanced against the reasons for the delay to constitute a denial of due process. However, where, as here, there is neither prejudice to the defendant nor a deliberate delay by the prosecution in order to hamper the defense we conclude that the defendant has not been deprived of due process." (Scherling v. Superior Court, supra, 22 Cal.3d at p. 507, italics added.)
In People v. Pellegrino (1978) 86 Cal.App.3d 776 (Pellegrino), the court reviewed the pertinent authorities and concluded that "[a] three-step analysis is employed to determine if a defendants due process right to a fair trial (Cal. Const., art. I, § 7) has been violated because of delay in filing an information or seeking an indictment: (1) the defendant must show that he has been prejudiced by the delay, whereupon (2) the burden shifts to the People to justify the delay, and (3) the court balances the harm against the justification." (Id. at p. 779, citing Jones, supra, 3 Cal.3d 734 & Archerd, supra, 3 Cal.3d 615.) In further analyzing the apparent schism between those cases apparently requiring purposeful delay upon the part of the People and those not requiring such deliberation, the court noted that "[d]ecisions of the California Supreme Court have indicated that this balancing analysis is to be applied only where the delay was purposeful and oppressive. (See, e.g., [Archerd,] supra, 3 Cal.3d [at p.] 640; People v. Hannon (1977) 19 Cal.3d 588, 610, fn. 12.) But a recent decision of the Supreme Court contains the statement that `it makes no difference whether delay was deliberately designed to disadvantage the defendant, or whether it was caused by negligence of law enforcement agencies or the prosecution. (Scherling v. Superior Court[, supra,] 22 Cal.3d [at p.] 507 [. . .].) The statement is dictum, and the prior authorities declaring a contrary rule were not overruled. But the new statement is a unanimous opinion; we therefore consider it appropriate to disregard the previous rule and follow the new rule stated in the Scherling dictum." (Pellegrino, supra, at pp. 779-780.)
In People v. Dunn-Gonzalez (1996) 47 Cal.App.4th 899 (Dunn-Gonzalez), the court, citing to Jones, Archerd, and Pellegrino, noted that the test in California for a claim of preindictment delay involved "a three-step analysis . . . employed to determine whether the defendants rights have been violated. First, the defendant must show he has been prejudiced by the delay. Second, the burden then shifts to the prosecution to justify the delay. Third, the court balances the harm against the justification." (Dunn-Gonzalez, supra, at p. 911.) It further noted that "[i]f the government deliberately uses delay to strengthen its position by weakening that of the defense or otherwise impairs a defendants right to a fair trial, an inordinate preindictment delay may be shown to be prejudicial. However, a prosecutor is entitled to a reasonable time in which to investigate an offense for the purpose of determining whether a prosecution is warranted. (People v. Archerd, supra, 3 Cal.3d at p. 640.) This court has held police negligence in evidence gathering or case preparation for evaluation by the district attorney cannot justify a lengthy prearrest delay." (Ibid.)
Thus, while a showing of deliberate delay by the prosecution in order to secure a tactical advantage amounts to a strong demonstration of prejudice, it is not required in order to prevail on such a claim. Rather, negligence alone may justify dismissal of a charge based on delay where the appropriate balancing test is used.
Finally, the California Supreme Court more recently reiterated the three-prong test for determining whether a case should be dismissed based on preaccusatory, prosecutorial delay in People v. Catlin, supra, 26 Cal.4th 81: "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.]" (Id. at p. 107.)
"`[R]egardless of whether defendants claim is based on a due process analysis or a right to a speedy trial not defined by statute, the test is the same, i.e., any prejudice to the defendant resulting from the delay must be weighed against justification for the delay. [Citation.]" (Martinez, supra, 22 Cal.4th at p. 767.) "[T]he right of due process protects a criminal defendants interest in fair adjudication by preventing unjustified delays that weaken the defense through the dimming of memories, the death or disappearance of witnesses, and the loss or destruction of material physical evidence." (Ibid.)
Given that in the ultimate analysis of due process, the test is whether the delay impairs the defendants right to a fair trial, we concur with the more recent authorities that the state test for determining whether a defendants rights have been violated due to prosecutorial delay requires a showing of actual prejudice balanced against the states justification for that delay. No showing of intentional delay on the part of the prosecution to secure a tactical advantage is required.
The People at oral argument maintained for the first time that defendant has no right to force them to initiate prosecution prior to expiration of the statute of limitations, i.e., defendants sole protection against overly delayed prosecution is the statute of limitations. They assert that where the statute of limitations has not run, as in this case, a defendant cannot be heard to complain that he is prejudiced by any delay. This argument has long since been rejected: "The argument has also been made that the guarantee of a speedy trial should not be applied to pre-arrest delays because the allowable period between the offense and initiation of prosecution is controlled exclusively by the applicable statue of limitations. The statute of limitations, however, cannot be invoked to curtail the self-executing constitutional guarantee of the right to a speedy trial. Although the statute of limitations is the primary legislative guarantee against bringing overly stale criminal charges, it is not the sole guarantee. . . . It does not . . . preclude judicial inquiry into the constitutionality of delays which occur within that period." (Jones, supra, 3 Cal.3d at pp. 739-740.) Thus, where the propriety of the delay comes under a constitutional due process analysis, it is proper for courts to inquire into that delay regardless of whether the statute of limitations has expired.
The People also maintain the superior court should have reserved ruling on defendants motion until after trial, when it could have made a more informed determination of whether defendant had incurred actual prejudice in the conduct of his trial due to prosecutorial delay. We recognize that trial courts have discretion "to wait to appraise the reasonableness of the delay in light of what would be disclosed at and after the trial . . . ." (Archerd, supra, 3 Cal.3d at p. 641; see also Martinez, supra, 22 Cal.4th at p. 769.) Nevertheless, we cannot say that the trial court abused that discretion here in choosing to grant defendants motion prior to trial. Of special import is the fact that the prosecutions main witness, the victim, could no longer remember anything regarding the alleged crimes. Neither could she remember the contents of her RIVIT interview. The victim, who was only about three years old at the initiation of the alleged molestations, was 15 years old at the time of the preliminary hearing. The Peoples own investigator testified as to the victims lack of memory. Thus, it was well within the trial courts discretion to conclude that it would be unfair to compel defendant to undergo the crucible of trial where it was essentially universally acknowledged that the sole percipient witness to the crimes could not be cross-examined regarding inculpatory statements she had made more than nine years earlier.
1. Substantial Evidence Supported the Trial Courts Order
A trial court determination that delay is prejudicial and unreasonable is a question of fact which must be upheld on appeal if substantial evidence supports it. (People v. Mitchell (1972) 8 Cal.3d 164, 167.) "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. Therein lies the delicate task of balancing competing interests." (Dunn-Gonzalez, supra, 47 Cal.App.4th at p. 915.)
At the hearing on defendants motion, the following colloquy between the court and defense counsel occurred:
"[DEFENSE COUNSEL]: Then for two and a half years, Your Honor, the case went back and forth between the Corona Police Department and the Riverside [County District Attorneys] [O]ffice.
"THE COURT: I dont know what happened to it during that time frame.
"[DEFENSE COUNSEL]: It sat in limbo. It appears that no one did anything.
"THE COURT: Nothing—at least as far as the record is concerned, nothing happened.
"[DEFENSE COUNSEL]: Correct. [¶] It wasnt filed until February 17th of 2000—two and a half years—or two years after the RIVIT interview—a warrant went out a couple of days later on February 24th of 2000. Then my client wasnt arrested until March 2nd of 2006.
"THE COURT: In New Mexico.
"[DEFENSE COUNSEL]: Thats correct. [¶] The victim, now approximately 15, 16 years old, when she was spoken to by the [d]istrict [a]ttorneys investigator prior to the [preliminary hearing], now has zero memory of this incident. She doesnt remember my client. She doesnt remember dates. She doesnt remember locations, factual situations. She virtually has zero memory of what occurred."
When the court afforded the People an opportunity to justify the delay, the People responded: "I can only say that I have not been a member of the district attorneys office back in 2000. I do not know what was going on with the case. But I can tell you that the warrant was in the system, based upon the record. And the defendant, obviously by his declaration, was not in California for service of that warrant." The court then asked, "But how about the two and a half years from when this was initially reported to law enforcement before the complaint—the complaint was even filed and a warrant was even issued? What about that period of time? Thats the period of time that I am most concerned about." The People replied, "Although it is not in the moving papers, I can say to the Court, looking at our file, that the case went back to the Corona Police Department for further investigation, then came back to the district attorneys office during that. Other than that, I cannot provide the Court with any justification for the delay, other than a continuing law enforcement investigation. [¶] I obviously—I cant speak to the reasons why, because I wasnt around back then in 98, 99, 2000 to have firsthand knowledge of it. And the file is kind of vague as to why its going back and forth. So I am not going to mislead the Court in any way on that."
The court then summed up the facts before it: "Here we have a situation where the Corona Police Department initially received information from [CPS] regarding a possible molestation of this young child back in September of 1997. And the—what we call the RIVIT interview—thats R-I-V-I-T—was conducted with the victim on February 10th, 1998. [¶] I am not sure exactly why it took that many months to conduct the RIVIT interview, but nonetheless, the victim was interviewed and reported who the person was who molested her, and gave some specificity with respect to the nature of the molestation itself at that point in time. [¶] And surprisingly, [defendant] was never contacted by law enforcement, never interviewed, never questioned. There is no indication at all that law enforcement even tried or attempted to try and locate him or talk to him or find out where he lived. He lived in Corona at that point in time. But there is no indication that [the] Corona Police Department did anything in that regard. [¶] The complaint was then filed on February 17th, 2000, almost two and a half years later."
The court then explicitly found that defendant had suffered significant prejudice due to the delay and that the People provided no justification for that delay. Hence, the court dismissed the case.
While the bare assertion of a lapse of memory may not be sufficient to constitute prejudice, a specific showing of the lapse of defendants and/or other percipient witnesses memory can constitute prejudice. (Penney, supra, 28 Cal.App.3d at p. 948; People v. Hannon, supra, 19 Cal.3d at p. 609; Pellegrino, supra, 86 Cal.App.3d at p. 781; Dunn-Gonzalez, supra, 47 Cal.App.4th at p. 911; People v. Catlin, supra, 26 Cal.4th at p. 107.)
Here, defendant made a specific showing both that his own memory of the alleged events and that of C.Z. had been compromised due to the 11-year delay between the occurrences and his arrest. In defendants declaration he averred that during the time period of the alleged incidents he resided in a number of different places. Thus, because of the long duration between the incidents and his arrest, he could no longer recall the exact location of his residences or the names or locations of any potential defense witnesses. C.Z. was the only percipient witness to the alleged events and defendants inability to cross-examine her on those events compromised his defense. She not only no longer remembered the alleged incidents themselves, but could not recall the forensic medical exam. Likewise, she had only a vague memory of the RIVIT interview itself, but no recollection of its substance. This was a sufficient showing to shift the burden to the prosecution to demonstrate sufficient justification for the delay. (Archerd, supra, 3 Cal.3d at p. 639; Pellegrino, supra, 86 Cal.App.3d at p. 779; Dunn-Gonzalez, supra, 47 Cal.App.4th at p. 911.) This the People failed to provide.
Prosecutors are entitled to a reasonable time in which to investigate an offense for the purpose of determining whether prosecution is warranted. (Archerd, supra, 3 Cal.3d at p. 640; Dunn-Gonzalez, supra, 47 Cal.App.4th at p. 911.) "`"Delays necessary for reasonable law-enforcement operations will not violate the right to a speedy trial. The conduct of law enforcement officials would be affected only if they unreasonably delayed initiating prosecution." . . ." (Penney, supra, 28 Cal.App.3d at p. 952.) Here, however, the People failed to demonstrate that any delay was reasonably related to investigatory purposes. The People provided little to no explanation for the four and a half month delay between the report of the incidents and the RIVIT interview. The record shows that there was a one-year delay between the RIVIT interview and Marshalls referral of the case to the district attorneys office for the filing of charges, partially due to Marshalls inability to locate C.Z.s mother, of which there is no explanation. Nonetheless, for the entire duration of that year, Marshall already knew defendants identity and description, and possessed his drivers license record. Thus, the record is devoid of any action he took in attempting to locate defendant during that period with the information he had. Likewise, the record fails to divulge any reason for the subsequent eight and a half month delay after which the district attorneys office referred the case back to Marshall for further investigation. While there may certainly have been legitimate investigatory reasons for the delay, the Peoples failure to proffer any such explanation supports the trial courts decision.
It is true that the court mistakenly indicated defendant was living in Corona during the period of time subsequent to the RIVIT interview and, therefore, that the failure of law enforcement to question him was inexplicable. The record actually shows that defendant moved from Corona in June 1995, and lived in New Mexico since May 1997. Nonetheless, defendant showed that he was not in hiding and that his whereabouts could easily have been determined. As noted above, Marshall knew defendants identity and accessed defendants California drivers license records. Indeed, defendant indicated that he had been stopped by police in Albuquerque, New Mexico in June 2000; and that he lived, worked, and collected benefits openly in his own name using his own social security number during the entire pendency of the arrest warrant. The failure to procure the arrest of a defendant who is not in hiding and whose whereabouts can be determined by resort to typical law enforcement mechanisms cannot be used to justify a delay in prosecution. (Jones, supra, 3 Cal.3d at p. 741; Penney, supra, 28 Cal.App.3d at p. 949.) In People v. Hannon, supra, 19 Cal.3d 588, the People attempted to serve warrants on several occasions at defendants last known address; the warrants were entered into two computer warrant tracking systems, one countywide and one nationwide. (Id. at pp. 609-610.) The court noted that it was "satisfied that the foregoing efforts to serve the warrant, in light of the meager information which was known about defendants location, did not amount to negligence on the part of the state." (Id. at p. 610.) Here, however, the People showed only that Marshall executed some computer checks for defendant in 1999, without detailing what those searches entailed. The People proffered no evidence that it had ever executed any searches for defendant subsequent to that date. Furthermore, unlike People v. Hannon, supra, the People did not demonstrate that the warrant for defendants arrest was entered into a nationwide tracking system which could have conceivably notified police in Albuquerque when defendant was stopped in June 2000. Rather, the People only indicated that the warrant "was in the system," but failed to indicate what kind of system and how it could help locate defendant. Our deferential standard of review requires us to uphold the trial courts ruling where there is substantial evidence with which to do so. The trial court should not have been required to resort to the realm of the imagination in order to justify the delay. The People should have been prepared to offer an explanation for that delay. Its failure to do so left the trial court with substantial evidence with which to grant defendants motion. That ruling will not be disturbed here.
2. California Constitution, Article I, Section 28, Subdivision (d)
The People contend that the truth in evidence provision of article I, section 28, subdivision (d) of the California Constitution required that the trial court here apply the federal test for dismissal based on preaccusation delay. In pertinent part, article 1, section 28, subdivision (d) provides that "relevant evidence shall not be excluded in any criminal proceeding. . . ." The People contend a dismissal "is the functional equivalent of excluding all relevant evidence." We do not believe that the dismissal in the instant case can be construed as the exclusion of evidence. Evidence includes "testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact." (Evid. Code, § 140.) In People v. Valencia (1990) 218 Cal.App.3d 808, the court noted that application of the truth in evidence provision of the California Constitution has been applied to the dismissal of charges, but only where that remedy involved the exclusion of evidence. (Id. at pp. 817-818, citing People v. Epps (1986) 182 Cal.App.3d 1102.) Here, neither party requested the exclusion of any evidence nor was any such exclusion of evidence involved in the courts dismissal of the case, hence, the truth in evidence provision is inapplicable.
Furthermore, even were we to decide that article I, section 28, subdivision (d) of the California Constitution required application of federal law here, there is no binding federal authority requiring proof that any preaccusation delay was the result of deliberate delay to secure a tactical advantage. People v. Hannon, supra, 19 Cal.3d at pages 610 and 611, footnote 12, like the People, cites United States v. Marion (1971) 404 U.S. 307 [92 S.Ct. 455, 30 L.Ed.2d 468] (Marion) for the proposition that defendant must show deliberate delay on behalf of the prosecution in order to prevail on a motion to dismiss based on preaccusatory delay. People v. Catlin, supra, 26 Cal.4th 81, also like the People, cites United States v. Lovasco (1977) 431 U.S. 783 [97 S.Ct. 2044, 52 L.Ed.2d 752] (Lovasco) for the same proposition. (People v. Catlin, supra, at p. 107.) However, in neither Marion nor Lovasco did the United States Supreme Court explicitly indicate that proof of deliberation on the part of the People was required for the defendant to prevail on a motion to dismiss based on preindictment delay. Rather, in Marion, the court noted only that "the Government concedes that the Due Process Clause of the Fifth Amendment would require dismissal of the indictment if it were shown at trial that the pre-indictment delay in this case caused substantial prejudice to appellees rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused." (Marion, supra, at p. 324, fn. omitted, italics added.) Saying that an intentional delay would require dismissal is completely different than saying that in order to dismiss, the defendant must show deliberate delay. Likewise, an acknowledgement that a party concedes an issue does not render that concession a holding by that court. In Lovasco, the court indicated that in Marion, it had noted with approval the governments concession that a "tactical" delay would violate the due process clause. (Lovasco, supra, at p. 796.) This, again, however, is something less than saying that proof that the delay was executed for tactical reasons is required in order to prevail on a motion to dismiss. Moreover, in Lovasco the government expanded its concession by stating that "[a] due process violation might also be made out upon a showing of prosecutorial delay incurred in reckless disregard of circumstances, known to the prosecution, suggesting that there existed an appreciable risk that delay would impair the ability to mount an effective defense[.]" (Lovasco, supra, at p. 796, fn. 17.) Here, reckless disregard is something less than intentional conduct and certainly less than the "purposeful, oppressive, and . . . `. . . deliberate obstruction on the part of the government" noted in Archerd. (Archerd, supra, 3 Cal.3d at p. 640.)
Penney, on the other hand, correctly noted that all Marion required was a balancing of the prejudice suffered by the defendant with the justification for the delay provided by the prosecution. (Penney, supra, 28 Cal.App.3d at pp. 950, 955.) Federal decisions subsequent to Marion and Lovasco have also noted that the United States Supreme Court has not squarely addressed the issue of whether a showing of deliberate delay on the part of the prosecution is required in order to sustain a motion to dismiss based on delay. (United States v. Gross (E.D.N.Y. 2001) 165 F.Supp.2d 372, 378-380; United States v. Birney (2d Cir. 1982) 686 F.2d 102, 105, fn. 1; Hoo v. United States (1988) 484 U.S. 1035, 1035-1036 [108 S.Ct. 742, 98 L.Ed.2d 777] (dis. opn. of White, J.).) Indeed, there is a split of authority in the federal circuit courts as to whether the tactical advantage prong must be applied, with the Fourth, Seventh, and Ninth Circuits requiring that no such burden be placed upon the defendant. (United States v. Moran (9th Cir. 1985) 759 F.2d 777, 782; United States v. Ross (9th Cir. 1997) 123 F.3d 1181, 1185; United States v. Barken (9th Cir. 2005) 412 F.3d 1131, 1134; Aleman v. Judges of the Circuit Court (7th. Cir. 1998) 138 F.3d 302, 309; United States v. Henderson (7th. Cir. 2003) 337 F.3d 914, 920; Jones v. Angelone (4th Cir. 1996) 94 F.3d 900, 905.) Hence, to the extent that the truth in evidence provisions would even apply to the legal test used to determine a motion to dismiss based on preaccusation delay, there is no binding federal authority requiring a trial court to apply a different legal test than the one that was employed in the instant case. Thus, the court correctly applied the test developed under California law.
In Nelson, the California Supreme Court also reevaluates its previous interpretations of the federal speedy trial rule, noting that "some of the high courts earlier cases [including Marion and Lovasco] suggest the test might be somewhat less onerous." (Nelson, supra, ___ Cal.4th ___ [2008 D.A.R. 8878, 8881].) Nevertheless, it resolved the matter before it strictly on state law grounds.
III. DISPOSITION
The judgment is affirmed.
We concur:
Hollenhorst, Acting P.J.
Richli, J.