Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. Case No. SC145256A
MARGULIES, J.
David Morgan was convicted of two counts of selling cocaine, one count of possession of cocaine for sale, and one count of possession of methylenedioxymethamphetamine (MDMA) for sale. The trial court sentenced him to 10 years in prison. Defendant claims the court erred in denying his motion to dismiss made upon the ground that the nearly three-year delay between his initial arrest and the filing of the complaint violated his due process rights under the California Constitution. In addition, he contends his prison sentence was unjust. We reject both arguments and affirm the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Relevant Facts
Defendant sold an ounce of cocaine to undercover Marin County Task Force Detective Mark Hale on May 1, 2003, and again on June 3, 2003. Both sales took place at Franco’s Deli, where defendant worked. Marin County Major Crimes Task Force members performed surveillance during the second transaction. When Detective Hale left the scene of the second purchase, the surveillance team served search warrants on defendant for his person, his car, his residence, and Franco’s Deli.
Defendant was found to have $945 in cash and a paper bindle containing 0.2 grams of cocaine on his person. A search of his car revealed approximately 175 capsules of suspected MDMA and $20,000 in cash. Officers located more cash, cocaine, and drug-related paraphernalia on the ground floor of the deli. In the deli basement, they discovered approximately 251 grams of cocaine and other paraphernalia. Defendant admitted the cocaine and MDMA found at the deli were his. Defendant was booked into the Marin County Jail.
B. Relevant Procedural History
The Marin County District Attorney’s Office filed the original complaint on January 3, 2006. A first amended complaint was filed April 5, 2006, charging defendant with two counts of sale of cocaine under Health and Safety Code section 11352, subdivision (a), one count of possession for sale of cocaine under section 11351, and one count of possession for sale of MDMA under section 11378.
All statutory references are to the Health and Safety Code.
Defendant moved to dismiss the charges against him “based upon the violation of [his] rights to procedural due process and/or speedy trial” due to the delay between his initial arrest in June 2003, and the filing of the charges against him in January 2006. He claimed the delay was without justification, and prejudiced his defense by making it impossible for him to locate percipient witnesses, or for himself and available witnesses “to fully and accurately recall the events forming the basis for the... charges.” At the hearing on the motion, defendant’s counsel specified the motion focused on defendant’s “pre-accusation due process California [right].”
The trial court found no actual prejudice regarding any of the four offenses and denied the motion. According to the court, there was no actual prejudice shown for the two sales counts, because the alleged missing witnesses and memory loss issues could not have affected the proof of hand-to-hand sales made to a police officer. As for the remaining two counts, the trial court acknowledged defendant established circumstances creating a possibility of prejudice-his own fading memory of the events and witnesses who could no longer be located. The court however determined this was not dispositive in that defendant failed to establish any actual exculpatory evidence had once existed that was lost or became unavailable as a result of these circumstances. The court stated: “[S]imply not knowing [what the potential witnesses would attest to] and having two potential people out there, in my view, does not provide the prejudice required.” Regarding defendant’s contention he could not recall the events in question, the court added: “[A] failure to recall does not... provide any indication that there’s some exculpatory value to what was forgotten.” The court accordingly found no actual prejudice with respect to these remaining counts.
Even assuming defendant had shown prejudice, the court found there was justification for the delay. Based on sealed affidavits it reviewed, the court found the first period of the delay-from June 2003 through December 2003-was fully justified. Moreover, the court observed defendant was on notice from June 2003 forward that charges against him were being held in abeyance and could potentially be brought. The court differentiated defendant’s situation from that of a person with no notice of potential charges who is arrested without warning on a three- or four-year-old case.
Defendant makes no argument on appeal that this portion of the delay was unjustified.
Following the denial of his motion to dismiss, defendant entered a “slow plea, ” agreeing the trial court could decide the case based on agreed-upon documents and transcripts. The court convicted him on all counts, and sentenced him to 10 years in prison.
II. DISCUSSION
On appeal, defendant advances two arguments. He maintains “he was denied his California Constitutional Due Process rights, thus the trial court erred in denying his motion to dismiss the information.” Also, he contends his “sentence was unfair and/or unjust and should be set aside.”
A. Motion to Dismiss
California’s due process clause states in relevant part “[p]ersons may not... be deprived of life, liberty, or property without due process of law.” (Cal. Const., art. I, § 15.) “[D]ue process is the appropriate test to be applied to a delay occurring after a crime is committed but before a formal complaint is filed.” (Scherling v. Superior Court (1978) 22 Cal.3d 493, 505.) Defendant claims he suffered prejudice from the delay between his June 3, 2003 arrest and the filing of the January 3, 2006 complaint.
The burden falls on defendant to establish a violation of his California due process rights. “A three-step analysis is employed to determine if a defendant’s 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.” (People v. Pellegrino (1978) 86 Cal.App.3d 776, 779.) Absent prejudice, there is no violation of due process: “If defendant fails to show prejudice, the court need not inquire into the justification for the delay since there is nothing to ‘weigh’ such justification against. This is particularly true when there is no evidence the delay was for the purpose of weakening the defense.” (People v. Dunn-Gonzalez (1996) 47 Cal.App.4th 899, 911.) On the other hand, if even minimal prejudice is established and no justification is offered, then a defendant’s due process rights have been violated. (Id. at p. 915.)
Moreover, the defendant must establish actual, not just possible prejudice. “Although a lengthy delay... may permit an inference of prejudice since memories fade and witnesses disappear, this is not invariably so. We look therefore to determine whether the accused has demonstrated actual prejudice from a prearrest delay.” (Serna v. Superior Court (1985) 40 Cal.3d 239, 250 (Serna).)
Defendant contends he was prejudiced for three reasons. First, he contends he suffered loss of his own memory of events relevant to the charges, and the memories of available witnesses also faded during the period of delay. Second, in reliance on United States v. Marion (1971) 404 U.S. 307 (Marion), he claims generally that as a result of precomplaint delay an accused person may suffer other kinds of prejudice “ ‘outside of the factual defense of the case, ’ ” including interference with his liberty, disruption of his financial resources and employment prospects, curtailment of his associations, personal and family anxiety, and public obloquy. (See Marion, at p. 320.) Third, he claims he was prejudiced because he spent the period of the delay “in constructive custody as a result of his undefined status, ” yet did not receive the custody and conduct credit toward the eventual sentence he would have received had he been sentenced in 2003.
We do not consider defendant’s claim, raised for the first time in his reply brief, that due to the delay he lost the opportunity to negotiate concurrent sentences on the charges for which he was convicted in this case and unrelated charges for which he was arrested on October 7, 2007. (See People v. Lewis (2008) 43 Cal.4th 415, 536, fn. 30.)
Defendant’s first contention is similar to claims rejected by our Supreme Court in Serna-a speedy trial case in which the defendant cited a four-and-one-half-year delay from the filing of the complaint to his arrest. (Serna, supra, 40 Cal.3d at p. 250.) The defendant in Serna stated in his declaration that due to the delay he had “ ‘no independent recollection of my activities on September 8, 1978 [and] persons exist who might be witnesses in my behalf, [but] at this time I am unaware of the full names or current whereabouts of these people.’ ” (Ibid.) The court found Serna’s declaration insufficient to establish prejudice: “[T]he court need not accept a conclusory statement that the lack of recall demonstrates prejudice where no effort has been made to ascertain the basis for the charge. Lack of recall may establish prejudice, but only on a showing that the memory loss persists after reasonable attempts to refresh recollection.” (Ibid.) As an example of what would constitute a refreshed recollection, the court suggested it would be reasonable for Serna to demonstrate he read the police reports regarding the incident before asserting he could not recall the events in question. (Ibid.)
People v. Sahagun (1979) 89 Cal.App.3d 1 (Sahagun) is also instructive. In Sahagun, the defendants’ counsel executed a declaration asserting an unspecified number of unnamed witnesses could offer “ ‘highly exculpatory testimony, ’ ” but “ ‘appeared to be unavailable’ ” and were “ ‘reportedly out [of] the court’s jurisdiction, ’ ” and “ ‘certain evidence formerly available’ ” had been destroyed. (Id. at pp. 23–24.) The Court of Appeal found these assertions too vague, general, and conclusory to support the defendants’ claim of prejudice: “These vague assertions did not inform the court of the nature of any evidence destroyed, the identity of the ‘unavailable’ witnesses, the nature of what their testimony would have been, when they became unavailable, or what efforts were made by the defendants to locate them or adduce equivalent testimony or evidence; nor did they disclose any facts indicating that these witnesses or this evidence would have been available had criminal proceedings been reinstituted within a short time-that is, that the loss of evidence and unavailability of witnesses was caused by the prosecutorial delay. Thus, the declaration of counsel was entirely inadequate to support a conclusion that the defendants were substantially prejudiced by the prosecutorial delay.” (Id. at p. 24.)
Defendant’s declaration of prejudice in this case was every bit as vague and conclusory on the issues of memory loss and the unavailability of witnesses as those rejected as insufficient in Serna and Sahagun. The trial court properly rejected defendant’s prejudice claim based on these factors.
Defendant’s second argument-citing a list of the negative impacts an arrest can have on an accused’s life and family-must also be rejected as lacking support in the record. Defendant’s own declaration in support of his motion to dismiss made no mention of any such factors. They were raised by defense counsel at the hearing on the motion in the trial court, as a “type of prejudice” that is often “overlooked.” Counsel stopped short of asserting defendant himself had actually suffered this type of prejudice.
Defendant’s reliance on Marion in this regard is misplaced. Marion involved a federal due process claim arising from a three-year delay between the dates of the defendants’ alleged offenses-fraudulent practices in the conduct of a home improvement business-and the filing of an indictment. (Marion, supra, 404 U.S. at pp. 309–310.) Marion held that the Sixth Amendment speedy trial provision has no application to the period before a defendant is arrested. (Id. at pp. 313–322.) Part of the court’s reasoning was that arrest was a public act that might, among other things, “disrupt [a defendant’s] employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.” (Id. at p. 320.) But Marion did not hold that these forms of potential prejudice must be presumed in every case of a delay between arrest and the filing of charges. Here, defendant offered no evidence that he was prejudiced in any of the respects alluded to in Marion. In fact, he argues in another context in this appeal that he supported himself, lived openly and productively, and adjusted his life based on his expectation that he would not be prosecuted for the 2003 drug offenses. Moreover, defendant’s arrest in 2003, was not the first time he faced public obloquy for selling drugs. He had multiple prior felony convictions for drug possession and sales dating back to 1971. Defendant’s claim of prejudice based on negative personal and family impacts flowing from his arrest is wholly unpersuasive.
Since the Marion defendants were not arrested prior to their indictment, the court rejected their speedy trial claim. (Marion, supra, 404 U.S. at p. 325.)
Finally, defendant maintains he was prejudiced because “he spent several years in constructive custody as a result of his undefined status.” According to defendant, had he been promptly tried, convicted, and sentenced after the charges arose, he would have been accruing custody and conduct credits during this time period. Because he was not in actual confinement, he never had that opportunity.
We are not persuaded. First, defendant did not raise this issue in the trial court and therefore did not preserve it for appellate review. Second, defendant fails to provide any substance to his claim he was in constructive custody. He does not explain what constraints existed on his liberty during the time period in issue. He was not subject to any probation conditions or supervision, or other formal constraint on his freedom, arising from the potential state criminal charges against him. Defendant fails to specify any other sacrifice or constraint on his liberty he had to accept. To all appearances, defendant continued to live as he had before, including being arrested on an unrelated charge in 2007. Third, it is self-evident defendant could not have accrued custody and conduct credit at any faster rate if he had begun his sentence three years earlier. To the extent defendant is merely claiming prejudice from having to begin serving his sentence three years later in his life, we reject the argument. In this context at least, defendant’s due process rights to a prompt filing of charges do not increase because of his age. In any event, no such claim was made or substantiated in the trial court. We note that by committing the underlying crimes at age 55, defendant knowingly placed himself at risk of incarceration at an advanced age.
Defendant’s motion to dismiss was properly denied.
B. Unjust Sentence
Citing People v. Tanner (1979) 24 Cal.3d 514 (Tanner), defendant claims his 10-year sentence was unjust given his specific circumstances. The defendant in Tanner committed an armed robbery. (Id. at p. 518.) The Supreme Court determined the trial court erred when it struck the jury’s finding the robbery was committed with a firearm, believing it had the discretion to do so. (Id. at 521.) However, since Tanner had complied with the terms of his probation from his original sentence while the appeal was pending, including serving one year in county jail, the Supreme Court found sentencing him to a second incarceration-even if required by law-would be unjust. (Id. at pp. 521–522.)
The result in Tanner rested on highly unusual circumstances, including: (1) great uncertainty in the lower courts, before Tanner was decided, about how to apply the new law under which Tanner was required to be sentenced to state prison; (2) the burden that would have been placed on the defendant and his family when he had already served a term in county jail, complied with all of his probation requirements, and arranged his life and employment situation based on the punishment he had received-and would now be faced with having to serve a second term in state prison for the same offense; and (3) the fact the defendant had no prior criminal record and had committed the crime with an unloaded handgun in an attempt to persuade the store owner to renew recently discontinued security services provided by defendant’s employer. (Tanner, supra, 24 Cal.3d at pp. 518, 521–522.) We do not find the circumstances here to be at all comparable.
Defendant claims it was unjust to sentence him to 10 years in state prison because (1) he “adjusted his life to the implicit promise he would not be prosecuted for the underlying offenses, ” (2) he spent years in “constructive custody” for which he received no credits, and (3) he was old and in poor health.
In this case, there was no uncertainty about the laws defendant had broken or the range of sentences he faced if convicted. Unlike the defendant in Tanner, defendant in this case was never placed on unauthorized probation, nor was he compelled to serve a county jail sentence as a condition thereof. Although defendant may have hoped or assumed he would not be prosecuted at all, he offers no evidence a promise to that effect was ever made to him. Unlike the defendant in Tanner, defendant here had a 37-year record of selling narcotics. At sentencing, the court in fact cited multiple aggravating factors in imposing the upper term sentence on all four counts: the large quantities of narcotics and cash found, defendant’s extensive prior record, the fact he was on federal probation at the time of the crime, and his poor performance on prior grants of probation. Although the court found no mitigating circumstances, it did strike two of the three prior conviction allegations, citing defendant’s age, health, and family circumstances, as well as the fact that defendant’s age at release would be greater due to the delay in prosecution.
The record shows the court granted defendant an additional leniency. It agreed to release him on bail for 120 days after sentencing to get his affairs in order, based in part on assurances by his counsel that he had changed his ways and was no longer at risk of reoffending. The court’s leniency proved to be misplaced. Four days later, defendant was arrested on new charges, his bail was revoked, and he was remanded into custody. At that time, the court addressed the defendant in part as follows: “I’m struggling to compose my thoughts on the subject of your new incarceration, Mr. Morgan. You don’t have to say anything. I’m not angry at you. I’m more disappointed in myself that I was fooled, and I’m outraged at myself for the compassion I wasted on you. And I feel bad for people like your attorney who has to come in here and ask this court for compassion and leniency on clients from here and after, knowing that I’ve now got this experience to draw on.”
Defendant’s sentence was not unjust or unfair.
III. DISPOSITION
The judgment is affirmed.
We concur: Marchiano, P.J., Banke, J.