Filed 3/28/14 P. v. Varela 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,

         Plaintiff and Appellant,                                        E057429

v.                                                                       (Super.Ct.No. RIF200550)

VICTOR MANUEL LOPEZ VARELA,                                              OPINION

         Defendant and Respondent.



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

Judge. Reversed with directions.

         Paul E. Zellerbach, District Attorney, Matt Reilly, Deputy District Attorney, for

Plaintiff and Appellant.

         Marilee Marshall, under appointment by the Court of Appeal, for Defendant and

Respondent.




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                                 FACTS AND PROCEDURE

       On August 24, 2008, defendant Victor Manuel Lopez Varela received a citation

for misdemeanor driving under the influence and drunk driving. He signed a promise to

appear in court on November 20, 2008.

       On November 17, 2008, the People filed a misdemeanor complaint charging

defendant with driving under the influence and driving with a blood alcohol

concentration over the legal limit. (Veh. Code, § 23152, subds. (a) & (b).) The

complaint alleged defendant had two prior convictions for driving under the influence.

       On November 20, 2008, defendant failed to appear. The court issued a bench

warrant for defendant’s arrest, with bail set at $2,500.

       On January 31, 2012, defendant was arraigned on the misdemeanor complaint,

entered a not guilty plea to both charges, and denied the prior conviction allegations.

Defendant was remanded into custody.

       On February 28, 2012, the People moved to dismiss the misdemeanor complaint in

the interests of justice. (Pen. Code, § 1385.) The court1 granted the motion. On that

same date, the People refiled the charges in a felony complaint,2 including the prior

conviction allegations, along with a misdemeanor charge of driving with a suspended

license. (Veh. Code, § 14601.2, subd. (a).) Defendant was arraigned and pled not guilty.

Bail was increased to $60,000.

       1   The Honorable Rafael A. Arreola presided.

       2 The People apparently discovered defendant had prior convictions that allowed
the charges to be filed as felonies.


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        On July 13, 2012, defendant filed a motion to dismiss the felony complaint for

violation of the right to a speedy trial. The key facts set forth in the motion were that

defendant was arraigned three years, two months after the misdemeanor complaint was

filed, and three years, five months after the citation. The People filed its opposition on

July 27, 2012. The hearing on the motion was held on August 1, 2012. The trial court3

granted defendant’s motion, reasoning, “it is unreasonable to have destroyed the blood

within one year. That prejudices the guy. Motion granted.” The People then sought to

clarify the standard the court used.

        “[PEOPLE]: Your Honor, clarification. I just want to make sure. Are we

evaluating under misdemeanor Serna[4] or evaluating under Jones,[5] for our clarification?

        “THE COURT: I’m treating it as the misdemeanor it was up until January of

2012.

        “[PEOPLE]: Under the Barker/Wingo?[6]

        “THE COURT: Yes. I find all of those factors apply anyway. So the filing of the

felony doesn’t make it any different. Misdemeanor wouldn’t have changed my ruling.”




        3   The Honorable Helios J. Hernandez presided.

        4   Serna v. Superior Court (1985) 40 Cal.3d 239.

        5   Jones v. Superior Court (1970) 3 Cal.3d 734.

        6   Barker v. Wingo (1972) 407 U.S. 514 (Barker).


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       On August 31, 2012, the court7 heard the People’s motion under Penal Code

section 871.58 to reinstate the felony complaint. The People argued, as they do in this

appeal, that the court improperly used the wrong legal test, the four-part Barker test under

the federal standard, rather than the three-part test under the state standard, when it

granted defendant’s speedy trial motion. The People argued the court did not engage in

the correct balancing of actual prejudice against the People’s justification for the delay—

defendant’s failure to appear—as required by law. The court denied the motion.

       This appeal of the August 1 order dismissing the complaint followed.

                                        DISCUSSION

       The People argue the trial court abused its discretion when it dismissed the felony

complaint because it used the more lenient federal speedy trial test rather than the more

stringent state test. Defendant responds that the court considered the factors under both

the federal and state tests and arrived at the correct conclusion. As discussed below, the

trial court emphatically stated that it was treating the case as a misdemeanor case and

analyzed it under the federal speedy trial test. This was error because the only operable

complaint at that time was the felony complaint, which was filed on February 28, 2012,

the same date the court dismissed the misdemeanor complaint.


       7   The Honorable H.A. Skip Staley presided.

       8  Penal Code section 871.5 provides in subdivision (a) that: “When an action is
dismissed by a magistrate . . . . the prosecutor may make a motion in the superior court
within 15 days to compel the magistrate to reinstate the complaint or a portion thereof
and to reinstate the custodial status of the defendant under the same terms and conditions
as when the defendant last appeared before the magistrate.”


                                              4
         A trial court’s ruling on a motion to dismiss is generally reviewed for abuse of

discretion. (Cf. People v. Morris (1988) 46 Cal.3d 1, 38, overruled on other grounds in

People v. Sassounian (1995) 9 Cal.4th 535, 543; People v. Vila (1984) 162 Cal.App.3d

76, 88.) “We are mindful that an appellate court may not merely substitute its own view

as to the proper decision for that of the trial judge and, in a case such as this, the mere

fact that the trial judge would have been fully justified in denying the motion is not

sufficient to warrant a reversal; but a reversal is in order if it appears the trial court

abused its discretion. ‘. . . all exercises of legal discretion must be grounded in reasoned

judgment and guided by legal principles and policies appropriate to the particular matter

at issue.’ [Citation.]” (People v. Superior Court (Lerma) (1975) 48 Cal.App.3d 1003,

1007.)

         To the extent that the determination of the motion to dismiss involves questions of

fact, the trial court’s factual findings are reviewed under the substantial evidence

standard. (Cf. People v. Cromer (2001) 24 Cal.4th 889, 894.) When the determination

depends upon resolution of legal issues, we review the matter de novo. Here, the primary

issue is whether the trial court applied the appropriate legal standard in making its ruling.

This presents a legal question subject to our independent review.

         Both the federal and state Constitutions provide for the right to a speedy trial.

(People v. Martinez (2000) 22 Cal.4th 750, 755.) When a defendant moves to dismiss for

alleged violation of speedy trial rights, the court must apply the appropriate test,

depending upon whether the claim is based upon the federal or the state right.




                                                5
       As defendant points out, for purposes of determining whether the filing of charges

activates the federal Sixth Amendment right to a speedy trial, the distinction between

felonies and misdemeanors is critical. (People v. Williams (2012) 207 Cal.App.4th Supp.

1, 4.) “In a felony case, the filing of a complaint does not trigger the clock; only the

filing of an indictment or information triggers the speedy trial right because it confers

jurisdiction on the court to try the felony. [Citations.]” (Ibid.) However, in Serna v.

Superior Court, supra, 40 Cal.3d at pages 252 through 253, the California Supreme Court

held that, in a misdemeanor case, the federal speedy trial right is also triggered by the

filing of a misdemeanor complaint.

       When the federal speedy trial right is involved, the court employs the balancing

test outlined in Barker v. Wingo, supra, 407 U.S. 514: The court must consider the

length of the delay, the reason for the delay, the defendant’s assertion of the right, and

prejudice to the defense caused by the delay. (Id. at p. 530, fn. 30.) A delay that is

“uncommonly long” triggers a presumption of prejudice. (Doggett v. United States

(1992) 505 U.S. 647, 651-652, 656-657.)

       “Under the state Constitution’s speedy trial right, however, no presumption of

prejudice arises from delay . . . rather, in this situation a defendant seeking dismissal must

affirmatively demonstrate prejudice [citation].” (People v. Martinez, supra, 22 Cal.4th at

p. 755.) Once defendant establishes prejudice, the burden shifts to the People to show

justification for the delay. (Penney v. Superior Court (1972) 28 Cal.App.3d 941, 951.)

The court then weighs the actual prejudice to the defendant against the justification for

the delay, viewed in light of: (1) the time involved; (2) who caused the delay; (3) the


                                              6
purposeful aspect of the delay; (4) prejudice to the defendant; and (5) waiver by the

defendant. (People v. Dunn-Gonzalez (1996) 47 Cal.App.4th 899, 911.) In this analysis,

defendant’s efforts to avoid arrest and/or an appearance in court would be factors in terms

of who caused the delay and the purposeful aspect of the delay.

        Here, on August 1, 2012, the trial court explicitly treated the action as a

misdemeanor action for purposes of defendant’s motion to dismiss, and used the federal

speedy trial test:

        “The other thing is this is a misdemeanor up until January 27th. So he’s

gone for a while from ‘08 until January of 2012. And it’s a misdemeanor.

Subsequent to January 2012, it was refiled as [a] felony. I am looking at this as a

misdemeanor.”

        In addition, as set forth above, the court clarified at the prosecutor’s request that

the court was using the federal speedy trial test under Barker rather than the state speedy

trial test.

        Because the trial court had five months previously granted the People’s motion to

dismiss the misdemeanor action and the People refiled it as a felony complaint, the court

was required to use the criteria for determining whether the People had violated

defendant’s state speedy trial rights. The court did not do this, and so we must reverse

the August 1, 2012, dismissal order and remand for a hearing using the correct criteria.

                                        DISPOSITION

        The order dismissing the felony complaint below is reversed. The cause is

remanded with directions to conduct a new hearing on the motion for dismissal,


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employing the appropriate test for violation of the speedy trial right under the state

Constitution.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                RAMIREZ
                                                                                         P. J.


We concur:

MILLER
                           J.

CODRINGTON
                           J.




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