Filed 6/11/14 P. v. Bartholomaus CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plantiff and Appellant,                                         E057789

v.                                                                       (Super.Ct.No. CR45228)

MARLICE IRALENE                                                          OPINION
BARTHOLOMAUS,

         Defendant and Respondent.




         APPEAL from the Superior Court of Riverside County. Helios (Joe) Hernandez,

Judge. Reversed.

         Paul E. Zellerbach, District Attorney, and Alan D. Tate, Deputy District Attorney,

for Plaintiff and Appellant.

         James M. Crawford, under appointment by the Court of Appeal, for Defendant and

Respondent.

         Defendant and respondent Marlice Iralene Bartholomaus moved to dismiss the

underlying 20-year-old charges against her on the ground that defendant’s constitutional


                                                             1
right to a speedy trial had been violated. The trial court granted the motion and dismissed

the charges. The People appeal, contending that the trial court erred in granting

defendant’s motion to dismiss. We reverse.

                        FACTS AND PROCEDURAL HISTORY

       One afternoon in September 1992, Roberto Martinez drove his wife, who was in

labor, to a hospital emergency room. Martinez’s adult sister was in the backseat with

Martinez’s pregnant wife; Martinez’s two-year-old child was in the front seat of

Martinez’s vehicle. Martinez was driving a borrowed Plymouth station wagon.

       Martinez drove into the hospital driveway, approaching the emergency room

entrance. He saw a truck backing up toward him, and he honked his horn and swerved to

avoid a collision. Martinez proceeded to the emergency room entrance to the hospital

and stopped his vehicle. Codefendant Capper, who had been a passenger in the truck,

alighted from the truck and went up to Martinez’s vehicle. He yelled at Martinez and

banged on the roof of the station wagon above Martinez’s driver’s seat. At the same

time, defendant, who had been driving the truck, also got out of the truck and tried to

block Martinez’s wife from getting out of the station wagon.

       After a short delay, Martinez’s sister and his wife were able to get out of the

station wagon and enter the hospital emergency room. Martinez drove away from the

emergency room entrance, intending to go to another hospital parking lot. Defendant and

Capper followed in their truck. When Martinez’s station wagon was stopped in traffic on

the way to the other parking lot, defendant bumped the station wagon with her truck. She



                                             2
jumped out of the truck and went up to Martinez with a white metal pipe in her hands.

She struck Martinez in the arm with the pipe, and he then rolled up the car window.

Defendant continued banging the pipe on the roof of the station wagon while yelling at

Martinez. In the meantime, Capper was trying to get into the station wagon on the

passenger side, where Martinez’s young daughter was seated.

       Martinez saw a police officer in the distance, so he jumped out of the station

wagon and ran toward the officer, trying to attract his attention. Capper ran to the

driver’s side of the station wagon, got in, and attempted to drive away, but he was unable

to put the transmission into gear. The two-year-old daughter was still in the car at the

time. Capper abandoned the attempt and got out of the station wagon, and police arrived

in a short time. There were several dents on the top of the station wagon.

       The Riverside County District Attorney filed a felony complaint charging

defendant with assault with a deadly weapon (ADW) (a pipe), in violation of Penal Code

section 245, subdivision (a)(1). Defendant pleaded not guilty at arraignment, on

October 9, 1992. On October 23, 1992, the trial court granted defendant’s request for

self-representation. After a preliminary hearing, defendant (and codefendant Capper)

were held to answer. On November 25, 1992, the prosecutor filed an information

alleging the same offense (ADW). On November 30, 1992, defendant failed to appear

for arraignment on the information. The matter was taken off calendar, and a bench

warrant was issued for defendant for the failure to appear.




                                             3
       Nearly 20 years later, on June 21, 2012, defendant appeared in court. The bench

warrant was recalled and defendant was released on her own recognizance. In September

2012, defendant filed a motion to dismiss the charge, on the ground that the delay in the

proceedings violated her Sixth Amendment right to a speedy trial. Over the opposition

and objection of the prosecutor, the trial court granted the defendant’s motion and

dismissed the charge, pursuant to Penal Code section 1385, on November 13, 2012.

       The People filed a timely notice of appeal.

                                         ANALYSIS

                                    I. Standard of Review

       A trial court’s ruling on a motion to dismiss is generally reviewed under an abuse-

of-discretion standard. (See, e.g., People v. Vila (1984) 162 Cal.App.3d 76, 85, 88

(Vila).) A claim that a defendant was deprived of his or her federal constitutional right to

a speedy trial, guaranteed under the Sixth Amendment, is to be evaluated under a four-

part balancing test, as set forth by the United States Supreme Court in Barker v. Wingo

(1972) 407 U.S. 514 [33 L.Ed.2d 101, 92 S.Ct. 2182] (Barker). The trial court exercises

its “judicial discretion based on the circumstances,” (id. at p. 529) in accordance with the

legal standards and factors set out in Barker. (Vila, supra, 162 Cal.App.3d 76, 85.) We

review the trial court’s exercise of its discretion for abuse of that discretion.

       The People contend, however, that the trial court employed the wrong standard in

making its ruling in the first instance. The People argue that this kind of error presents a

legal question that we should review independently. (See People v. Louis (1986) 42



                                               4
Cal.3d 969, 985, disapproved on other grounds in People v. Mickey (1991) 54 Cal.3d 612,

672, fn. 9 [286 Cal.Rptr. 801, 818 P.2d 84].)

                II. Background: The Motion to Dismiss in the Trial Court

       Defendant’s motion to dismiss was based on her federal constitutional Sixth

Amendment right to a speedy trial. The motion papers made no reference to any other

theory, such as violation of the state constitutional right to a speedy trial. Defendant’s

motion relied primarily on the length of the delay. “The Supreme Court has held that not

all delays, even with prejudice shown, will result in dismissal, but consistent with these

rulings has also held that if the delay is of a certain length, then presumptively prejudice

has been shown and the defendant has been prejudiced in ways that cannot be

demonstrated, and thus dismissal is required.” (Citing Doggett v. United States (1992)

505 U.S. 647, 656 [120 L.Ed.2d 520, 112 S.Ct. 2686].) Defendant had no information

about any efforts the prosecution had made in the intervening 20 years to bring the matter

to trial, so defendant suggested that the People had been “at the very least negligent in

prosecuting this case.” Defendant herself had ultimately had the matter calendared again.

       The People opposed defendant’s motion. First, the People objected that

defendant’s motion failed to comply with California Rules of Court, rule 4060: i.e.,

defendant failed to include an affidavit explaining the circumstances of the delay, the

defendant’s knowledge of the pending charges, where the defendant lived during the

delay period, and any good cause to justify granting the motion.




                                              5
       Second, the People opposed the Sixth Amendment (federal constitutional) motion

on the substantive balancing of the Barker factors. The People acknowledged that the

delay was lengthy, but urged that “no single factor can determine the outcome of a

motion to dismiss.” Delay, in itself, was only one factor. The People argued that

defendant suffered only minimal prejudice from the delay, because she had been able to

cross-examine witnesses at the preliminary hearing, the testimony of which was

preserved on the record. Because defendant acted as her own attorney at that time, her

own thoughts and views had also been examined at the same time, and were

memorialized in the same transcript. The People argued that the cause of the delay was

attributable solely to defendant, who voluntarily absented herself from the proceedings.

Finally, the People argued that defendant failed to assert her right to a speedy trial in a

timely fashion. Relying on Ogle v. Superior Court (1992) 4 Cal.App.4th 1007, 1021

(Ogle), the People asserted that defendant “knew about the pending case and chose not to

assert her speedy trial rights for 20 years.” The People suggested that “a defendant’s

knowing failure to assert his speedy trial right, ‘make[s] it difficult for the defendant to

prove that he was denied a speedy trial.’”

       Third, in an abundance of caution, the People’s opposition addressed the issue of

whether dismissal would be proper under article 1, section 15 of the California

Constitution’s speedy trial right; the People argued that dismissal would not be required

because defendant failed to demonstrate any actual prejudice.




                                              6
        At the hearing on the motion, defense counsel urged, in reliance on Doggett,

supra, 505 U.S. 647 [120 L.Ed.2d 520, 112 S.Ct. 2686], that a lengthy delay can produce

some prejudices that simply are not actually demonstrable, such that prejudice is

presumed. Counsel indicated that “diminishing memories” are a significant type of

indemonstrable prejudice; it is impossible to know what a witness might have

remembered had the trial taken place in a timely fashion. Indeed, counsel went so far as

to argue that, “[t]he Doggett case made clear that after a certain amount of time those

[Barker] factors no longer need to be weighed and the Court can assume prejudice. That

was after eight-and-a-half years; this is 20 years.”

        The prosecutor responded to the defense argument (to the effect that the chief

component of undemonstrable prejudice consisted of faded memories) by pointing out

that the law enforcement officers and the victim had given live testimony, which had

been preserved at the preliminary hearing. Defendant, acting as her own attorney, had

been able to cross-examine the witnesses herself at that time. As her own attorney,

defendant was also certainly fully aware of the pending charges, a factor that was not

present in Doggett.

        Defense counsel pointed out that, after a delay of 20 years, it was highly uncertain

whether any of the witnesses would be available for a trial. The People also had provided

no information to show that they had made any effort to find defendant in the intervening

time.




                                              7
       The trial court took the matter under submission. About two weeks later, the

matter was recalled for further hearing. Defense counsel noted that the People had still

not put forward anything to show any effort to find defendant during the 20 years since

the information was filed. In addition, there was no information proffered to show the

whereabouts of any alleged victims or witnesses, and counsel stated, “I don’t believe

they are even around anymore.” The court stated, “This is the one where it’s so old that

the presumption of prejudice applies. She may have been around somewhere but

nobody was able to look for her. Being as busy as they are, she wasn’t much of a

priority. [¶] So your motion is granted.” The court issued a minute order granting

defendant’s motion to dismiss the charge, with the notation that the dismissal was in the

interest of justice. (Citing Pen. Code, § 1385.)

  III. The Trial Court Abused Its Discretion in Granting the Motion Because Defendant

                       Failed to Present Any Evidence to Support It

       The People now object that the trial court used an improper standard in making its

ruling. The People urge that this kind of error presents a question of law that we should

review independently. We need not be detained by this argument, however. Even under

the ordinary deferential abuse of discretion standard of review, the trial court’s ruling was

in error.

       The trial court had before it all the motion papers, including both defendant’s

moving papers and the People’s opposition to the motion. Implicit in the arguments of

both counsel and the remarks of the court are considerations relating to each of the four



                                             8
Barker factors, including the relative responsibility of each of the parties for the delay,

and prejudice to defendant. However, singularly absent from any of the papers was any

explicit evidence in support of or in opposition to the Barker considerations.

       For example, at the hearing, defendant represented through counsel that she had

been living “in this community approximately 18 of the 20 years.” But defendant failed

to provide a declaration showing where she had lived for any of the 20 years since she

had failed to appear for arraignment on the information. Counsel also argued that “To

say . . . if the witnesses are gone we can just read what they said in the preliminary

hearing 20 years ago, that’s not sufficient to have a fair trial because, again, memories

have faded. People are now gone. We don’t even know if these people are around any

more.” Counsel had “no information [that the People] ever looked for her or did anything

to try to find her for 20 years.” At the recalled hearing, counsel reiterated that, “to my

knowledge I don’t think the People have made any efforts to ever contact my client, or

find my client, prior to her walking into court and putting herself on calendar after two

decades. [¶] So I would add that as far as the alleged victims and witnesses, I have

received no information of their whereabouts or are they even around anymore. I don’t

believe they are even around anymore.” Notably, however, counsel did not provide

anything other than mere assertion, by declaration or otherwise, to show what inquiries

had been made about the whereabouts of the alleged victims or any alleged witnesses.

Counsel’s bare remarks and representations, in the absence of any evidence, provided no




                                              9
actual support for a finding that defendant was or would be prejudiced from the delay in

prosecution.

       Under the federal Constitution, the Sixth Amendment right to a speedy trial

attaches when the defendant is formally accused, either on the filing of a formal

information or indictment, or the actual restraints imposed by arrest and being held to

answer on a criminal charge. (See People v. Hannon (1977) 19 Cal.3d 588, 605.) Once

the federal right attaches, a defendant needs to show only that a time delay occurred that

was significant or unreasonable enough to trigger an inquiry into whether the

Sixth Amendment speedy trial right was violated. (Doggett, supra, 505 U.S. 647, 652,

fn. 1 [120 L.Ed.2d 520, 112 S.Ct. 2686]; see Ogle, supra, 4 Cal.App.4th 1007, 1021.)

       Defendant here met that initial threshold test with respect to the federal speedy

trial right. Defendant was held to answer after a preliminary hearing, and an information

was filed in 1992. Nothing further took place, after she failed to appear for arraignment

on the information, for approximately 20 years. The delay was significant enough to

raise a presumption of prejudice, so as to trigger an evaluation of the Barker factors.

       The United States Supreme Court, in Barker, supra, 407 U.S. 514 [33 L.Ed.2d

101, 92 S.Ct. 2182], enunciated a four-part balancing test to assess whether a delay has

resulted in a violation of the right to a speedy trial. The court must consider (1) the

length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of the right,

and (4) whether the defendant has been prejudiced by the delay. No single factor is either

necessary or determinative when finding whether a defendant has been deprived of the



                                              10
right to a speedy trial. The factors are related, and must be considered together with all

the other relevant facts and circumstances. (Id. at p. 533.)

       The People point out, however, that, “Presumptive prejudice . . . ‘cannot alone

carry a Sixth Amendment claim without regard to the other Barker criteria . . . .’

[Citation.]” (People v. Egbert (1997) 59 Cal.App.4th 503, 510 (Egbert), quoting

Doggett, supra, 505 U.S. 647, 656 [120 L.Ed.2d 520, 112 S.Ct. 2686].) That does not

mean that presumed prejudice is not important; it means that regard must be taken of all

the factors together: “Rather, where prejudice is presumed due to the length of the delay,

it triggers the necessity for the court to inquire into other factors, including the effect the

delay had on the accused’s defense. [Citations.] Whether the prosecution is for a

misdemeanor or a felony, a defendant ‘presumptively prejudic[ed]’ by the delay must still

show the delay in some way prejudiced the particular interests protected by the speedy

trial right. [Citations.] Only if, after performing the ‘difficult and sensitive balancing

process’ outlined in Barker, the court determines the prejudicial effect of the delay on a

defendant outweighs any justification for the delay, is dismissal constitutionally

compelled. [Citations.]” (Egbert, supra, 59 Cal.App.4th 503, 510.)

       As we have noted, the trial court below was presented with arguments that may

have touched on some of the relevant factors, and the court appeared to be concerned

with the appropriate balancing of all the relevant considerations. However, except as to

the length of delay, neither party presented any actual evidence with respect to the Barker




                                              11
criteria. The court was obligated to make an inquiry into the remaining factors, but no

such actual inquiry took place.

       Although defendant’s counsel represented to the court that defendant had been

living openly in the area for at least 18 of the 20 years elapsed since the information was

filed, defendant wholly failed to provide a declaration (or any other evidence) attesting to

the facts. Similarly, defense counsel represented to the court that it was unknown

whether the victim or any other witnesses were still present in the area, and stated, “I

have received no information of their whereabouts or are they even around anymore. I

don’t believe they are even around anymore.” These remarks suggest that counsel may

have made some sort of investigation or inquiry into the whereabouts of the relevant

persons, but again there was no declaration or affidavit averring to any such investigation

or inquiry. As to the delay in asserting the speedy trial right, there was no affidavit from

either defendant or her counsel to explain any reasons or justifications for the delay, or

what led defendant to calendar the matter. She was, as between the parties, the one who

acted earliest with respect to asserting a claim that the speedy trial right was violated.

However, there was no evidentiary explanation or justification for her delay in coming

forward. We also note that, “In the context of the Barker balancing, if the delay is caused

by the defendant (such as when the defendant deliberately fails to appear), that factor is

likely to be given far more weight than the failure of the People to track the defendant

down. (E.g., People v. Hsu (2008) 168 Cal.App.4th 397 [85 Cal.Rptr.3d 566].)”

(Leaututufu v. Superior Court (2011) 202 Cal.App.4th Supp. 1, 6.) So far as the record



                                              12
shows, the “cause” of the delay was defendant’s failure to appear for arraignment on the

information; she had been ordered to appear and failed to do so. That factor militates

against granting the motion.

       As we have noted, defendant’s motion to dismiss was couched exclusively in

terms of her federal constitutional Sixth Amendment right to a speedy trial. The motion

did not assert violation of defendant’s state constitutional speedy trial right. Article 1,

section 15 of the California Constitution does guarantee the right to a speedy trial. To

show a violation of the state constitutional right, a defendant seeking dismissal must bear

the initial burden of demonstrating prejudice from the delay. (Serna v. Superior Court

(1985) 40 Cal.3d 239, 249.) Defendant here has relied solely on presumed prejudice, and

did not purport to demonstrate actual prejudice. Even had defendant made a claim under

the state constitutional speedy trial right, that claim would likewise fail because of the

failure to present any evidence on the issue of prejudice.

       In short, defendant, as the moving party, failed to present any evidence upon

which the court could base a rational decision on the motion. “An act constituting an

abuse of discretion is described as one that is arbitrary, capricious, or beyond the bounds

of reason.” (County of Los Angeles Dept. of Regional Planning v. Superior Court (2012)

208 Cal.App.4th 1264, 1271.) It was beyond the bounds of reason—i.e., an abuse of

discretion—to rule on the motion in the absence of any evidence. The ruling on the

motion (and the judgment of dismissal) should therefore be reversed.




                                              13
                                   DISPOSITION

      The judgment of dismissal and the order granting the motion to dismiss are

reversed.

      NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                            McKINSTER
                                                                                   J.
We concur:



RAMIREZ
                      P. J.



HOLLENHORST
                         J.




                                          14
