Filed 1/30/14


                       CERTIFIED FOR PUBLICATION
                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIRST APPELLATE DISTRICT

                                      DIVISION FIVE



KEITH LAROY DEWS,
        Petitioner,
                  v.
                                                        A139102
THE SUPERIOR COURT OF
THE CITY AND COUNTY OF
SAN FRANCISCO,                                          (San Francisco City and County
                                                        Super. Ct. No. 2471932)
        Respondent;
THE PEOPLE,
        Real Party in Interest.

        Petitioner Keith Laroy Dews seeks a writ of mandate to compel the dismissal of
misdemeanor charges against him, arguing the 19-month delay between the issuance of
an arrest warrant on the criminal complaint and the date of his arraignment violated his
right to a speedy trial under the Sixth Amendment to the United States Constitution. The
People agree the 19-month delay was presumptively prejudicial, and urge us to return the
case to the trial court for a balancing of the factors articulated in Barker v. Wingo (1972)
407 U.S. 514, 530 (Barker). Petitioner argues he is entitled to dismissal without resort to
the Barker factors, because the People failed, at the outset, to justify the delay.
        We agree with the People’s analysis and will issue a writ directing the
reconsideration of petitioner’s speedy trial claim in light of the Barker factors. We
disapprove Bellante v. Superior Court (2010) 187 Cal.App.4th Supp. 1 (Bellante) to the
extent it is inconsistent with our opinion.
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                                       BACKGROUND
       Petitioner was arrested on suspicion of driving under the influence on January 29,
2011. When he appeared in court on February 14, 2011, the matter was discharged by
the district attorney pending further investigation. After receiving a blood alcohol
analysis report, the district attorney prepared a misdemeanor criminal complaint charging
petitioner with violating Vehicle Code section 23152, subdivisions (a) and (b). An arrest
warrant on the complaint issued on July 21, 2011, but petitioner was not arrested until
February 11, 2013. He was arraigned on the charges on February 20, 2013.
       On April 16, 2013, petitioner filed a motion to dismiss the case based on a
violation of his speedy trial rights under the state and the federal Constitutions. (Cal.
Const., art. I, § 15; U.S. Const., 6th & 14th Amends.) The superior court denied the
motion without expressly balancing the factors set forth in Barker for evaluating a federal
speedy trial claim. (Barker, supra, 407 U.S. at p. 532.) On May 17, 2013, petitioner
filed a petition for writ of mandate with the appellate division of the superior court
raising only the federal speedy trial issue.1 The appellate division denied the writ.
       Petitioner has filed the instant writ seeking review of the appellate division’s
decision. (Code Civ. Proc., § 904.3 [appellate court may consider writ petition to review
grant or denial of writ by superior court appellate division in a misdemeanor case]; Serna
v. Superior Court (1985) 40 Cal.3d 239, 263-264 (Serna) [writ review appropriate when
defendant alleges violation of Sixth Amendment speedy trial right in misdemeanor case].)
Our review is limited to the record of the proceedings below, and asks whether the lower
court abused its discretion or exceeded its jurisdiction. (Id. at pp. 245-246, 263-264;
Ogle v. Superior Court (1992) 4 Cal.App.4th 1007, 1014 (Ogle).)
                                        DISCUSSION
       The Sixth Amendment guarantees, “In all criminal prosecutions, the accused shall
enjoy the right to a speedy . . . trial.” This right, which is distinct from the state
constitutional right to a speedy trial and is analyzed differently, is applicable to


   1   Petitioner has not further pursued the state constitutional claim.
                                               2
prosecutions in state court via the Fourteenth Amendment. (See Cal. Const., art. I, § 15;
People v. Williams (2013) 58 Cal.4th 197, 232 (Williams); Serna, supra, 40 Cal.3d at pp.
249-250.) The federal right to a speedy trial “ ‘is an important safeguard 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.]” (Williams, at p. 232.)
       In the seminal case of Barker, supra, 407 U.S. at page 519, the United States
Supreme Court explained that the right to a speedy trial differs from other constitutional
rights in important ways. First, it implicates a societal as well as an individual interest, in
that lengthy pretrial incarceration contributes to overcrowding in local jails, is damaging
to the “human character,” and imposes costs in the form of maintenance expenses for
inmates and lost wages. (Id. at pp. 520-521.) Second, the deprivation of the right to a
speedy trial is not prejudicial per se, and may in some cases work to a defendant’s
advantage. (Id. at p. 521.) Third, a speedy trial is more vague a concept than other
rights, because it is impossible to definitively say “how long is too long in a system
where justice is supposed to be swift and deliberate.” (Ibid.) Accordingly, the right to a
speedy trial cannot be quantified and “any inquiry into a speedy trial claim necessitates a
functional analysis of the right in the particular context of the case.” (Id. at p. 522.)
       The court in Barker established a balancing test for evaluating a speedy trial claim
under the Sixth Amendment, comprised of four factors: “Length of delay, the reason for
the delay, the defendant’s assertion of his right, and prejudice to the defendant.” (Barker,
supra, 407 U.S. at p. 530, fn. omitted.) As formulated more recently, this test requires a
trial court to determine “whether [the] delay before trial was uncommonly long, whether
the government or the criminal defendant is more to blame for that delay, whether, in due
course, the defendant asserted his right to a speedy trial, and whether he suffered
prejudice as the delay’s result.” (Doggett v. United States (1992) 505 U.S. 647, 651
(Doggett).) None of the four factors is “either a necessary or sufficient condition to the
finding of a deprivation of the right of speedy trial. Rather, they are related factors and
must be considered together with such other circumstances as may be relevant. In sum,

                                               3
these factors have no talismanic qualities; courts must still engage in a difficult and
sensitive balancing process.” (Barker, at p. 533, fn. omitted.)
       The first of the Barker factors, the length of the delay “is to some extent a
triggering mechanism. Until there is some delay which is presumptively prejudicial,
there is no necessity for inquiry into the other factors that go into the balance.” (Barker,
supra, 407 U.S. at p. 530.) If the defendant makes a showing of presumptive prejudice,
“the court must then consider, as one factor among several, the extent to which the delay
stretches beyond the bare minimum needed to trigger judicial examination of the claim.”
(Doggett, supra, 505 U.S. at p. 652.)
       A delay of more than one year in a misdemeanor case is presumptively prejudicial
for purposes of Barker. (Serna, supra, 40 Cal.4th at pp. 252-254.) The right to a speedy
trial attaches when a person is arrested, or a misdemeanor complaint is filed, whichever
occurs first. (Id. at p. 262.) The parties in this case agree the relevant period of delay
was the 19 months between July 21, 2011 (the date the arrest warrant on the
misdemeanor complaint issued) and February 20, 2013 (the date of petitioner’s
arraignment on the charges following his arrest). This 19-month delay was
presumptively prejudicial for purposes of triggering an analysis of the Barker factors, and
the People concede the case should be returned to the lower court so the judge can
balance those factors and make express findings on petitioner’s federal speedy trial claim.
(See Ogle, supra, 4 Cal.App.4th at pp. 1022-1023.)
       Petitioner urges us to dismiss the case outright, rather than sending it back to the
trial court for a balancing of the Barker factors. He argues that when the delay in a
misdemeanor case exceeds one year and gives rise to a presumption of prejudice, the
People must be called upon to justify the delay. If they do show justification, says
petitioner, the court should then proceed to balance the factors under Barker. But if they
do not, he asserts, dismissal is required regardless of the Barker factors.
       Petitioner’s position derives primarily from Bellante, supra, 187 Cal.App.4th at
pages Supp. 6-7, a decision by the Appellate Division of the Kern County Superior Court,
which in turn derives from that court’s reading of the state Supreme Court’s decision in

                                              4
Serna. According to Bellante, “In Serna, the court was unequivocal in its conclusion
that, in a misdemeanor case, where there is a delay of more than one year between the
filing of a complaint and the arrest and prosecution, such a delay is conclusively
considered unreasonable and thus prejudice is presumed, with ‘dismissal being
constitutionally compelled in the absence of a demonstration of good cause for the
delay.’ ” (Bellante, at pp. Supp. 6-7, quoting Serna, at pp. 253-254.) Bellante construes
Serna to establish “a three-tiered approach” to a federal speedy trial claim: “The Barker
balancing test is the third tier of the analysis. However, when there is presumptive
prejudice, the first tier of analysis — actual prejudice — is presumed. Then the People
must show justifiable delay. Then the court may weigh and balance and exercise its
discretion.” (Bellante, at p. Supp. 7.)
       We are not persuaded by Bellante’s reading of Serna, which in our view, did
nothing to alter the approach to federal speedy trial claims outlined in Barker. To explain
where the Bellante analysis goes astray, we consider the Serna decision in context.2
       The defendant in Serna sought the dismissal of misdemeanor charges based on a
four and one-half year delay between the filing of the criminal complaint and his arrest,
alleging a violation of his speedy trial rights under the federal and state Constitutions.
The court rejected the defendant’s claim under the state Constitution, as the analysis
required for such a claim requires a showing of actual prejudice at the outset and the
defendant had not demonstrated as much. (Serna, supra, 40 Cal.3d at pp. 249-250.) The
court then turned to the defendant’s federal claim, which, under Barker, required an
initial showing of a presumptively prejudicial period of delay. (Serna, at pp. 251-252.) It
concluded the four and one-half year delay in that case was presumptively prejudicial
because it far exceeded the one-year statute of limitations period generally applicable to
misdemeanors, and “[s]tatutes of limitation reflect a legislative construction of the speedy


   2   Our analysis is informed by a recent law review article that comprehensively
discussed Serna and concludes Bellante was wrongly decided: Maurer, Searching for
Sense in Serna: The Sixth Amendment Right to a Speedy Trial in California Misdemeanor
Cases (2012) 43 McGeorge L.Rev. 1093, 1118.
                                              5
trial guarantee. [Citation.]” (Serna, supra, at p. 252.) “If a delay of one year in charging
a misdemeanor defendant is so unreasonable that prosecution is statutorily barred, it
follows that a delay of similar duration must be considered unreasonable and
presumptively prejudicial within the contemplation of the Sixth Amendment when,
although a complaint has been filed, the defendant is not arrested and arraigned on the
complaint for that period.” (Serna, at p. 254.)
       The Serna court explained its finding of presumptive prejudice was “virtually
compelled” by two of its prior decisions, Harris v. Municipal Court (1930) 209 Cal. 55,
61-62 (Harris) and Gutterman v. Municipal Court (1930) 209 Cal. 65, 66 (Gutterman).
(Serna, supra, 40 Cal.4th at p. 253.) Those cases were significant because they found
presumptive prejudice based on a delay that exceeded the period then specified in Penal
Code section 1382 for bringing a felony case to trial (akin to a statute of limitation).
(Serna, at p. 254.)
       Describing the holdings in Harris and Gutterman, the Serna court stated, “In each
case the delay was considered unreasonable and thus prejudice was presumed with
dismissal being constitutionally compelled in the absence of a determination of good
cause for the delay.” (Serna, supra, 40 Cal.3d at pp. 253-254.) Petitioner, like the court
in Bellante, seizes on this descriptive language, and construes it as a refinement of the
Barker analysis. But the Serna court did not suggest that Harris and Gutterman — which
were decided decades before Barker and which did not differentiate between federal and
state speedy trial rights — controlled the analysis of federal speedy trial issues once
presumptive prejudice has been established.
       Elsewhere in the Serna decision, the court unequivocally sets forth the Barker
analysis — unmodified — as the relevant formula for analyzing a federal speedy trial
claim: “When a delay in bringing a [misdemeanor] defendant to trial after the filing of
formal charges has become presumptively prejudicial, and the defendant seeks dismissal
of the charges on the grounds that his Sixth Amendment right to a speedy trial has been
violated, the court must balance the relevant factors — the length of the delay, the reason
for the delay, the defendant’s assertion of the right, and the prejudice to the defendant —

                                              6
in assessing whether the delay has deprived the defendant of that right.” (Serna, supra,
40 Cal.3d at p. 252, quoting Barker, supra, 407 U.S. at p. 530.) The Serna court
concludes its discussion of the defendant’s federal speedy trial claim by stating,
“Therefore, since the more than four-year delay in arresting defendant is beyond question
presumptively prejudicial, the municipal court erred in failing to receive evidence on the
considerations relevant to the weighing process and to resolve petitioner’s motion to
dismiss pursuant to the dictates of Barker . . . : by weighing the interests of the defendant
and the prosecution to determine whether the right was violated in this case.” (Id. at pp.
262-263.) In light of these specific references to the Barker factors, we do not see how
Serna can be read to obviate the need for such an analysis based on a single factor — the
prosecution’s lack of justification for the delay.
       Nor are we persuaded by the Bellante court’s reference to People v. Lowe (2007)
40 Cal.4th 937, 942 (Lowe), wherein the state Supreme Court cited Serna in describing
the approach to be taken when resolving a speedy trial claim under the state Constitution:
“ ‘[T]he defense has the initial burden of showing prejudice from a delay in bringing the
defendant to trial. Once the defense satisfies this burden, the prosecution must show
justification for the delay. If the prosecution does that, the trial court must balance the
prejudice to the defendant resulting from the delay against the prosecution’s justification
for the delay. [Citation.]’ [Citation.]” (Bellante, supra, 187 Cal.App.4th at p. Supp. 7.)
Though this is an accurate description of the analysis required under state speedy trial
principles, that analysis is not coextensive with federal speedy trial jurisprudence and
does not control speedy trial analysis under the federal Constitution. (Serna, supra, 40
Cal.3d at p. 249.) In its recent decision in Williams, supra, 58 Cal.4th at pages 232-252,
the state Supreme Court resolved a federal speedy trial claim by analyzing the four
Barker factors.
       Apart from petitioner’s selective reading of Serna, his proposed interpretation of
the law would be contrary to Barker itself. Discussing the balancing of the four factors,
the Barker court explained that a deliberate attempt to delay in order to hamper the
defense should be “weighted heavily” against the prosecution, while a “more neutral

                                              7
reason such as negligence” should be weighted less heavily. (Barker, supra, 407 U.S. at
p. 531.) Clearly, the court contemplated a balancing of all the factors even in cases in
which the prosecution cannot justify the delay. (See also People v. Alvarado (1997) 60
Cal.App.4th Supp. 1, 4-5 [trial court erred in dismissing charges based on prosecution’s
failure to justify delay when delay was not “ ‘great’ ” and defendant did not show actual
prejudice]; U.S. v. Beamon (9th Cir. 1993) 992 F.2d 1009, 1014-1015 [governmental
negligence/lack of justification insufficient to show speedy trial violation when showing
of actual prejudice was “tenuous,” though delay was long enough to trigger presumption
of prejudice].)
       Unlike the standard for showing a speedy trial violation under the state
Constitution, which requires a showing of actual prejudice at the outset (Lowe, supra, 40
Cal.4th at p. 942), a federal speedy trial analysis under Barker is triggered by a showing
of presumptive prejudice based on the length of the delay. (Barker, supra, 407 U.S. at p.
530.) “[S]uch presumptive prejudice cannot alone carry a Sixth Amendment claim
without regard to the other Barker criteria,” though “it is part of the mix of relevant facts,
and its importance increases with the length of delay.” (Doggett, supra, 505 U.S. at p.
656.) “Among other factors, the court must weigh the length of the delay and the
prejudice that implies against the reasons for the delay. This is in effect a sort of sliding
scale: as the government’s fault moves up the scale from indifference and negligence to
deliberate action, the length of delay (needed to make out implied prejudice) reduces.
Where the government (i.e., the People) presents some excuse or justification for the
delay, courts will tolerate longer periods of delay . . . .” (People v. Leaututufu v. Superior
Court (2011) 202 Cal.App.4th Supp. 1, 9) “[T]here is no definite time period after which
the court must dismiss the case when (i) the People present no justification for delay, and
(ii) the defendant shows no actual prejudice.” (Ibid., italics added).)
       Petitioner is correct that the trial court should have expressly weighed the Barker
factors, and the appellate division abused its discretion in denying his petition for writ of
mandate. (Ogle, supra, 4 Cal.App.4th at p. 1014.) However, the lack of justification
offered by the prosecution does not automatically entitle petitioner to dismissal.

                                              8
                                      DISPOSITION
       Let a peremptory writ of mandate issue directing the superior court appellate
division to vacate its June 18, 2013 order denying petitioner’s petition for writ of
mandate, and to instead issue a new and different order granting the petition and directing
the superior court to (1) vacate its order denying petitioner’s motion to dismiss insofar as
the motion raised a speedy trial issue under the federal Constitution; (2) conduct a new
hearing on petitioner’s federal speedy trial claim as raised in the motion to dismiss; and
(3) expressly apply the balancing test of Barker, supra, 407 U.S. at page 530 and make
appropriate factual findings.




                                                  NEEDHAM, J.



We concur.




JONES, P.J.




SIMONS, J.




                                              9
Superior Court of the City and County of San Francisco, No. 2471932, Samuel K. Feng,
Judge

Jeff Adachi, Public Defendant, Matt Gonzalaz, Chief Attorney, Adam Lipson and
Armando Miranda, Deputy Public Defenders, for Petitioner.

George Gascòn, District Attorney, and Louise Ogden, Assistant District Attorney for
Real Party in Interest.




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