Filed 8/5/19
                          CERTIFIED FOR PUBLICATION

                APPELLATE DIVISION OF THE SUPERIOR COURT

                    STATE OF CALIFORNIA, COUNTY OF ALAMEDA



   DOMINIQUE DICKERSON,                     APPELLATE DIVISION NO.
                                            6111
         PETITIONER,
                                            (Super. Ct. No. 18-CR-005965)
               v.

   THE SUPERIOR COURT OF ALAMEDA
   COUTY,

         RESPONDENT;
                                            OPINION
   THE PEOPLE,

         REAL PARTY IN INTEREST.



   IVORY MARON BUGGS,                       APPELLATE DIVISION NO.
                                            6115
         PETITIONER,
                                            (Super. Ct. Nos. 18-CR-01321)
               v.

   THE SUPERIOR COURT OF ALAMEDA
   COUTY,

         RESPONDENT;

   THE PEOPLE,

         REAL PARTY IN INTEREST.




                                      1
        Petitioners contend that delays in charging each of them resulted in a
deprivation of due process rights under the California Constitution. In both cases,
the trial court found that Petitioners suffered prejudice due to the prosecution’s
delays in charging them. The trial court then erred in failing to require competent
evidence justifying the delay by the prosecution.

       Evidence is at the core of our system of justice – even in the hurly-burly of
a misdemeanor pretrial department. The failure to require at least some modicum
of evidence to support the People’s argument marred the trial court’s analysis of
Petitioners’ claims. We therefore grant the Petitions for Writ of Mandate. We
vacate the trial court’s orders denying the motions to dismiss and remand both
cases so that the trial court can properly consider both motions in their entirety.

Facts

People v. Buggs

       In the early morning hours of October 26, 2017, California Highway Patrol
officers arrested Ivory Maron Buggs for driving under the influence of alcohol and
for driving on a suspended license. Officers observed Buggs driving a white
Buick sedan at an estimated 70 miles per hour on 98th Avenue in Oakland, and
watched him cross solid double yellow lines on his travels. After stopping Buggs,
officers noted the strong smell of alcohol coming from inside the car. And Buggs
could not provide his driver’s license, registration, or insurance. Back at the jail,
Buggs’ breath-test results at 3:23 and 3:26 in the morning both indicated a blood
alcohol content of 0.14 percent.

       On August 9, 2018 – 287 days later – the Alameda County District
Attorney’s Office notified Buggs that it had filed a criminal complaint against
him. The complaint alleged counts for driving under the influence of alcohol,
driving with a 0.08 percent or higher blood alcohol level, and driving with a
suspended license. (Veh. Code § 23152(a), (b), & 14601.1.)

        Buggs filed a motion to dismiss based on pre-accusation delay. The trial
court grappled with whether Buggs suffered any actual prejudice as a result of the
delay. (See Ibarra v. Municipal Court (1984) 162 Cal. App. 3d 853, 857.) Buggs
argued that his memory of the events of October 26, 2017 had faded. He could no
longer recall whether he was speeding before he was detained. He also argued
that he could no longer recall how the officers conducted field sobriety tests. The
trial court explained that, given the driving under the influence count (section
23152(a)), “whether or not he’s speeding may or may not come into play on that.
I think there is a minimal showing here. It’s weak, believe me, but Ibarra didn’t
require much else.”

                                          2
        After hearing live testimony from Mr. Buggs concerning his memory, the
trial court held:

      In viewing this in the context of Ibarra v. Municipal Court, I will
      acknowledge that even the initial proffer of what the actual prejudice
      might be is weak. I don’t know that Mr. Buggs helped himself at all
      on the witness stand just now in terms of bolstering that showing of
      prejudice. He claims he has impaired memory, given the passage of
      time of the driving prior to the contact of the police officers, yet he
      remembers having two beers. He remembers his fiancée being with
      him in the right front passenger seat. And he remembers Sylvester
      Williams as not being there but coming later to come get the car. So
      he’s got specific references, specific points that he does remember.

      But, again, going back to what Ibarra says, and in that particular
      case, the defendant was charged with a 647(a) [lewd acts in public].
      He was arrested some 13 months later, claimed prejudice, and that
      he did remember the details of the conversations he had with law
      enforcement, that although the opinion is relatively light on facts,
      presumably led or tied him in some way to the 647(a). The trial
      judge in that particular court found no actual prejudice and was
      reversed by the appellate court, saying that even a showing like that
      in Ibarra, however minimal, was enough to shift the burden. So
      with that being the standard, I will find that Mr. Buggs has made,
      such as it is, a showing of actual prejudice sufficient to shift the
      burden.

        The trial court then sought information from the People concerning the
justification for the nearly ten-month delay. The deputy district attorney
responded:

      I mean, that just goes to our office, this county, and how many cases
      go through our office. We looked this up during the lunch hour, and
      I believe last year, which I think is a good reflection of the previous
      year, we reviewed 41,000 cases that came through our office from
      the different police departments. Out of those 41,000, we charged
      8,900 felonies, 21,000 misdemeanors, 4,000 felony [probation
      violations], and 8,300 misdemeanor [probation violations]. Our
      office obviously has 150 attorneys, but only 10 or 12 of them are
      reviewing cases at one time for charging. The number that we
      came up with is about 3,100 cases reviewed per year per DA in order
      for charging. That, obviously, doesn’t take into account the police

                                        3
       departments themselves who obviously are coming in with several
       arrests and need to bring those cases over to us for charging,
       especially CHP, which was one of the bigger agencies in this county
       with all the DUI arrests that they have.

       So our justification is that, unfortunately, it’s the nature of the beast
       of Alameda County and our office and how many cases we have to
       review. Obviously, we reviewed it within the statute of limitations.
       And I think that’s our number one goal. That was about a 10-month
       delay. But with the prejudice that’s been shown and for those
       reasons, I believe the motion should be denied.

         In response, the associate deputy public defender pointed out the lack of
competent evidence relating to the People’s justification. When the trial court
asked if he had any reason to doubt the deputy district attorney’s statistics, defense
counsel observed, “I think that it is something that could be investigated. I’m not
sure if [the deputy district attorney] was reading numbers off of something or if
this is just his recollection, but, certainly, I think that just reciting some numbers,
you should have some, you know, actual proof of those numbers.”

       The Court then ruled:

       I can tell both sides right now, I will fully acknowledge that we have
       a situation where we have a very weak proffer of actual prejudice
       although sufficient to shift the burden. And we have a very weak
       justification for the delay. All right. What we also have is no
       evidence of any purposeful delay for any tactical advantage, and we
       have a filing that was done well within the statute of limitations.

       So in this particular case, if I’m balancing, and I am, factors that I
       think are relevant and need to be bound in this case, and, quite
       frankly, I do find some of the instruction in People v. Nelson to be
       particularly helpful where it states: Purposeful delay in gaining
       advantage is totally unjustified, and a relatively weak showing of
       prejudice would suffice to tip the scales toward 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.

       And this is all in the context of what our U.S. Supreme Court wrote
       in U.S. v. Lovasco, where it said [the] Due Process Clause has a
       limited role in protecting against oppressive delay. The Due Process
       Clause does not permit courts to abort criminal prosecution simply


                                           4
       because they disagree with the DA’s judgment as to when to seek an
       indictment, or in this case a complaint.

       Again, this was filed within the statute of limitations we have.
       Given the weak nature of showing of the proffer of actual prejudice
       in this case, I cannot find [a] due process violation based upon the
       government’s conduct. So that’s the ruling. Motion’s denied.

       Petitioner’s writ petition followed.

People v. Dickerson

       Shortly after 10:30 at night on March 23, 2017, a Fremont police officer
arrested Dominque Dickerson for possessing a loaded firearm in a public place or
vehicle. (Penal Code § 25805(a).) The police were investigating a 911 call from a
homeowner concerned about an unknown male in her back yard. The police found
three people in a 1998 Honda Accord a few feet away from the residence.

       The officers detained Dickerson and the two other passengers. An officer
asked Dickerson if he had any weapons on his person. Dickerson responded that
he had a handgun in the glove compartment. The police searched the vehicle and
found a loaded .380 Kahr semi-automatic pistol in the glove compartment. The
unregistered gun held eight live rounds, with one in the chamber. Dickerson
conceded that he was not a security guard and did not have a concealed carry
weapons license.

       On March 29, 2018 – 371 days later – the People filed a misdemeanor
complaint charging Dickerson with carrying a loaded firearm in a vehicle in a city
and carrying a concealed firearm in a vehicle, with a special allegation that
Dickerson was not the registered owner of the firearm capable of being concealed.
(Penal Code §§ 25850(a), (a)(1), 28550(c)(6).)

      Dickerson filed a motion to dismiss based on pre-accusation delay. He
argued that he had suffered prejudice because the homeowner and 911 caller’s
memory had faded. He also argued that a witness to the detention, who had been a
passenger in the car, could not be found.

        After hearing argument concerning the alleged prejudice to Dickerson, the
trial court asked the deputy district attorney for information about the justification
for the delay in filing a complaint. Counsel responded:

       Let me just take a look here at one of the charging notes. A number
       of cases, at least in our office, require priority. Those are cases that

                                          5
      involve defendants in custody. Those are cases that involve felonies.
      And with over 10,000 misdemeanor cases, and I want to say at least
      5,000 misdemeanor cases that were charged – I’m sorry. Felony
      cases that were charged. This case was on, I would say, on the verge
      of a felony case. Obviously, we didn’t charge it as that. But it did
      have the possibility of that. I would say that given that many cases,
      and we only have maybe a third of our office able to charge that
      many cases, we can’t get to these right away. Now, had this been
      closer to the felony statute of limitations of three years, I believe that
      a claim might be more effective, but we certainly did it within still
      under the 16-month period that a minimum would require on a
      felony in this case.

      In response, the associate deputy public defender noted:

      In our county the District Attorney’s Office has, I believe, over a
      hundred attorneys handling cases. And, in addition, [the deputy
      district attorney] provides 5,000, 10,000. He’s providing numbers,
      but that’s not clear that they had that many cases at the time of the
      incident in 2017. He’s simply making a generalization that’s not
      been supported with any documentation or clarification as to what
      time frame he’s speaking about. If he’s giving current statistics,
      that’s not sufficient because we’re talking about a moment in 2017.
      So there’s no justification for a delay.

       The trial court found a “minimum” of actual prejudice to Dickerson based
on the delay. The court explained:

      The court has evaluated the actual prejudice that has been delineated
      by the defense in this particular case. I’ll find that while it is – it can
      be characterized as rather de minimis, I do believe that at minimum,
      it does provide a minimal prima facie case of actual prejudice,
      specifically having to do with the loss of memory from [the
      homeowner and 911-caller] as it might pertain to her being an
      important witness to a potential 1538.5 motion. That’s my main
      focus. Mr. Faulkner’s potential testimony is also on its face
      speculative. But my reading of Fowler doesn’t indicate that you
      would need much more than that as long as it’s a plausible
      explanation. So there is some showing of actual prejudice in this
      case. And I say that it’s rather de minimis because that count turns
      into the balancing test that has to come after the court considers the
      justification offered by the people.


                                           6
      The trial court then turned to the question of justification. The court
reasoned:

       [The] People’s explanation in terms of the justification for the 14- to
       15-month delay seems to me to be mainly having to do with the
       number of misdemeanors that are potentially charged or considered
       here in Alameda County along with some staffing-related issues.
       Obviously, not the most powerful law enforcement justification for
       delaying a filing decision for that period of time. However, I would
       note it’s still well within [the] statute of limitations, so I’m taking
       that in consideration as well. Given the balance of all factors in this
       case, most particularly, de minimis prejudice has been shown by the
       defense in this case, I find that the justification does outweigh any
       potential and actual prejudice, and I’ll deny the motion at this point
       in time.

       And, as in Buggs, Petitioner’s writ petition followed.

Analysis

        A writ of mandate is an appropriate means to review the denial of the
motions to dismiss here. There is ample precedent for use of a writ to review the
denial of a motion to dismiss based on a violation of speedy trial rights. (Serna v.
Superior Court (1985) 40 Cal. 3d 239, 264 [reviewing felony speedy trial rights by
writ]; Dews v. Appellate Division of the Superior Court (San Francisco) (2014)
223 Cal. App. 4th 660, 664 [reviewing speedy trial rights in misdemeanor case by
writ].) Speedy trial rights are not at issue here – “[t]he due process right is distinct
from a speedy prosecution complaint.” (Ibarra, 162 Cal. App. 3d at 857.) The
legal frameworks for analyzing both sets of rights, however, are substantially
similar. Given the nature of the due process error, and the fact that it arose in
more than one case, we find it appropriate to address the due process issues
concerning pre-accusation delay by writ.

        The California Constitution protects criminal defendants from
“unreasonable delay between the time an offense is committed and an accusatory
pleading is filed.” (People v. Morris (1988) 46 Cal. 3d 1, 37, disapproved on other
grounds, In re Sassounian (1995) 9 Cal. 4th 535, 543-44 n.5; Cal. Const. Art. I, §
15.) So do the Fifth and Fourteenth Amendments to the United States
Constitution. “In the due process context, the issue is whether the defendant’s
right to a fair trial has been impaired or prejudiced because of unreasonable
delay.” (Ibarra, 162 Cal. App. 3d at 857 [citing Scherling v. Superior Court
(1978) 22 Cal. 3d 493, 507].)


                                           7
        “In evaluating a claim of pre-complaint delay, ‘any prejudice to the
defendant resulting from the delay must be weighed against justification for the
delay.’ (Scherling, 22 Cal. 3d at 505.) ‘In the balancing process, the defendant
has the initial burden of showing some prejudice before the prosecution is required
to offer any reasons for the delay [citations]. The sowing of prejudice requires
some evidence and cannot be presumed [Citations.]” (Morris, 46 Cal. 3d at 37
[citing Garcia v. Superior Court (1984) 163 Cal. App. 3d 148, 151; United States
v. Lovasco (1977) 431 U.S. 783, 790; additional citations omitted].)

        Prejudice may exist as a result of many different factors, including fading
memory or loss of material evidence attributable to the delay. (Morris, 46 Cal. 3d
at 37; People v. Dunn-Gonzalez (1996) 47 Cal. App. 4th 899, 911; Ibarra, 162 Cal.
App. 3d at 858; Serna, 40 Cal. 3d at 251.) “The overarching theme is that the loss
of such evidence, especially when the defendant or victims cannot independently
recall details of the crime, makes it difficult or impossible for the defendant to
prepare a defense thus showing prejudice.” (People v. Mirenda (2009) 174 Cal.
App. 4th 1313, 1328.)

       Of course, a defendant’s showing of prejudice must be supported by facts
and not just bare conclusions. (Crockett v. Superior Court (1975) 14 Cal. 3d 433,
442; Ibarra, 162 Cal. App. 853 at 858.) What is more, the defendant must show
actual prejudice. (People v. Cordova (2015) 62 Cal. 4th 104, 120; People v. Abel
(2012) 53 Cal. 4th 891, 909.) “The ultimate inquiry in determining a claim based
upon due process is whether the defendant will be denied a fair trial.” (Scherling
v. Superior Court (1978) 22 Cal. 3d 493, 507.)

        The trial court and counsel’s focus on the minimal showing of prejudice
found in Ibarra during the hearing on Petitioner Buggs’ motion to dismiss seems
to overlook more recent developments in the law concerning the requirement that
the defendant present evidence of actual prejudice. For example, in People v.
Cordova, the California Supreme Court found the defendant had made no showing
of “substantial prejudice” based on a claim that “some persons who assertedly
could have supplied exonerating evidence had died.” (62 Cal. 4th at 120.) The
Court explained, “the claimed prejudice is speculative. No reason exists to believe
any of these witnesses would have supplied exonerating, rather than incriminating,
evidence, or any evidence at all.” (Id.) And in People v. Abel, the California
Supreme Court found the defendant failed to “meet his initial burden of showing
prejudice resulting from the precharging delay” notwithstanding multiple
assertions of fading memory. (53 Cal. 4th at 909-911.) These newer precedents
involve murders and not misdemeanors. That said, there is no indication that our
state constitutional standards for assessing due process violations for pre-
accusation delay is different.


                                         8
        Once the defendant makes a showing of prejudice, “the burden then shifts
to the prosecution to justify the delay.” (Dunn-Gonzalez, 47 Cal. App. 4th at 911.)
The court then “balances the harm against the justification.” (Id.) The more
reasonable the delay, the more serious the prejudice must be in order to state a
constitutional violation that requires dismissal. (Ibarra, 162 Cal. App. 3d at 858;
People v. Boysen (2007) 165 Cal. App. 4th 761, 777.)

        The District Attorney’s Office “has broad discretion when it comes to
deciding how to allocate scarce investigative resources and when to file criminal
charges in a particular case.” (People v. Booth (2016) 3 Cal. App. 5th 1284, 1309.)
Of course, the District Attorney may take a reasonable amount of time to
investigate, determine whether to prosecute, and gather evidence. (Dunn-
Gonzalez, 47 Cal. App. 4th at 911.) Investigative delay is typically the strongest
justification for the passage of time between an arrest and the filing of charges.
(People v. Nelson (2008) 43 Cal. 4th 1242, 1256.)

       At its core, the important discretion and trust our system vests in the
prosecution is why the test for assessing due process violations based on pre-
accusation delay relies on a balancing test rather than on line-drawing based on
statutes of limitations. (See Ibarra, 162 Cal. App. 3d at 858 [“Even a minimal
showing of prejudice may require dismissal if the proffered justification for delay
be unsubstantial. 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.”].)

       Here, the trial court had a firm grasp of the law concerning how to evaluate
a claim of pre-accusation delay. The court cited and discussed relevant precedent
in deciding both motions to dismiss. While reasonable minds could disagree with
the conclusions concerning prejudice in the evaluation of both matters, the trial
court had evidence that it used to make findings of fact. In Buggs, the trial court
heard testimony from Buggs himself. In Dickerson, the trial court relied on fact
declarations submitted in support of Dickerson’s contentions of prejudice.

        Under California law, the trial court’s findings of prejudice shifted the
burden to the People to provide a justification for the delay in filing the
complaints. Even one witness would have been enough. (See Dunn-Gonzalez, 47
Cal. App. 4th at 916 [“The lower court’s finding was primarily based upon the
testimony of [an assistant district attorney]. The direct evidence of one witness
entitled to full credit is sufficient for proof of any fact except where additional
evidence is required by statute. (Evid. Code § 411.)”].) And the courts recognize
that “the difficulty in allocating scarce prosecutorial resources is a strong
justification for precharging delay.” (Booth, 3 Cal. App. 5th at 1309 [citing
Nelson, 43 Cal. 4th at 1256-57].)

                                         9
       But here, the trial court relied solely on attorney argument in finding an
adequate justification. There was absolutely no evidence submitted to the trial
court to support the prosecution’s contention. No declaration. No testimony.
Simply the prosecutor in each case citing numbers that might reflect that the
charging deputy district attorneys are, at times, overwhelmed by the workload.
Further, the prosecutors gave no explanation about why these two cases were
delayed many months.

       In Dickerson, the trial court further erred by focusing on the absence of
evidence of a purposeful delay in prosecution. In a sense, doing so effectively
shifted the burden back to Petitioner to rebut the prosecution’s justification for the
delay when the prosecution had not yet provided any actual evidence to support its
position. Without any evidence, the analysis of the lack of purposeful delay put
the proverbial cart before the horse. With evidence, assessing whether a delay was
purposeful would be appropriate. Under California law, “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.” (Nelson, 43 Cal. 4th at 1256.)

       Evidence is at the core of our system of justice. It differentiates decision-
making in court from decisions made in virtually any other forum. As we instruct
our jurors:

       The evidence that is presented in court can be tested; it can be shown
       to be right or wrong by either side; it can be questioned; and it can
       be contradicted by other evidence.

(CACI No. 116 [“Why Electronic Communications and Research Are
Prohibited”].)

        We recognize that flexibility in case management can be a necessity. A
busy criminal pretrial department can be a challenge for prosecutor, defense
counsel, the trial court, and court staff alike. But, “[a]lthough we are sympathetic
to the need of trial courts to process the heavy case load,” the rules of evidence
and procedure apply across all the substantive divisions of our courts. (See Elkins
v. Superior Court (2007) 4 Cal. 4th 1337, 1345, 1352-53 [holding local family law
procedures for abbreviated proceedings based on declarations inconsistent with
statute, rules of procedure, and rules of evidence].)

      The problem with relying only on the arguments of counsel, without
supporting evidence, is even more evident when comparing the statements made to

                                         10
the trial court in Buggs and Dickerson. The prosecutor in Buggs referenced 10 or
12 district attorneys (out of a total of 150) reviewing cases to decide whether to
prosecute. The prosecutor in Dickerson referred to “a third” of the office being
involved in charging. The prosecutor in Buggs cited 8,900 felonies charged; the
prosecutor in Dickerson 5,000. The prosecutor in Buggs said the office charged
21,000 misdemeanor cases; Dickerson “over 10,000.” While the statistics cited by
counsel in Buggs more closely track the statistics submitted by the District
Attorney’s Office to the response to Petitioner’s writs, those statistics were not
placed in the record as competent evidence in the trial court and are not properly
before this one.

Conclusion

       We recognize that both the District Attorney and the Public Defender are
faced with substantial limitations on their respective resources. Delay is
introduced into our system of justice by prosecution and defense alike, as well as
by the court’s own resource constraints. For example, we are mindful of the fact
that proceedings in the Buggs case were continued multiple times, including at the
Petitioner’s request, prior to the hearing on the motion to dismiss. But, when
evaluating whether a delay in prosecution is justified in the face of a finding of
prejudice by the trial court, we hold that substantial, competent evidence must
support the alleged justification.




                                        11
                                   Disposition

       We grant the Petitions and issue Writs of Mandate. We vacate the trial
court’s orders denying the motions to dismiss. The trial court is directed to
consider the motions to dismiss anew. If the trial court finds that substantial,
competent evidence supports the claim of prejudice, then substantial, competent
evidence must be presented to support the alleged justification for the delay in
charging the offenses. The trial court must then balance those factors to reach a
decision on the motions.

       CERTIFIED FOR PUBLICATION



_______________________________________
MARKMAN, P.J.


We concur:




__________________________________
CRAMER, J.




__________________________________
GRILLO, J.




                                        12
PARTIES AND ATTORNEYS

 People of the State of California,   Christopher Chin, Deputy District Attorney
 Real Party in Interest               John Mifsud, Deputy District Attorney
                                      James Logan, Deputy District Attorney
 Dominique Dickerson,                 Omid Khalilnaj i, Assistant Public Defender
 Petitioner                           Michelle Queirolo, Assistant Public Defender
                                      David Carlisle, Assistant Public Defender
                                      Palden Ukyab, Assistant Public Defender

Trial Court Judge:            Hon. Keith Fudenna
                              Hon. Richard Keller
                              Hon. Amy Sekany
                              Hon; Dan Grimmer
                              Hon. Jason Chin
                              Hon. Jenna M. Whitman
                              Hon. Clifford Blakely

Trial Court Case Numbers:     People v. Dickerson, Dominique Nathaniel
                                     [Superior Ct. No. 18-CR-005965 I Appellate No. 6111]
PARTIES AND ATTORNEYS

 People of the State of California,   Christopher Chin, Deputy District Attorney
 Real Party in Interest               John Mifsud, Deputy District Attorney
                                      Briggitte Lowe, Deputy District Attorney
                                      Jessica Serrato, Deputy District Attorney
                                      Luis Marin, Deputy District Attorney
 Ivory Maron Buggs,                   Palden Ukyab, Assistant Public Defender
 Petitioner                           Sung Kim, Assistant Public Defender
                                      Paul Michael Foster, Assistant Public Defender

Trial Court Judge:            Hon. Amy Sekany
                              Hon. Jason Chin
                              Hon. Victoria Kolakowski
                              Hon. Clifford Blakely


Trial Court Case Numbers:     People v. Buggs, Ivory Maron
                                     [Superior Ct. No. 18-CR-013215 I Appellate No. 6115]
