Filed 4/3/14 P. v. Hayes 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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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,                                        E057794

v.                                                                       (Super.Ct.No. RIF1205953)

MICHAEL JEROME HAYES,                                                    OPINION

         Defendant and Respondent.




         APPEAL from the Superior Court of Riverside County. Harry A. Staley, Judge.

(Retired judge of the Kern Super. Ct. assigned by the Chief Justice pursuant to art. VI,

§ 6 of the Cal. Const.) Reversed.

         Paul E. Zellerbach, District Attorney, and Emily R. Hanks, Deputy District

Attorney, for Plaintiff and Appellant.

         Boyce & Schaefer and Robert E. Boyce, under appointment by the Court of

Appeal, for Defendant and Respondent.




                                                             1
       In 1972, the body of Mary Costa, a prostitute, was found in the desert. In 1976,

one Diana Clark came forward; she told police that back in 1972, her then-husband —

defendant Michael Jerome Hayes — showed her the body of a woman in the desert and

confessed to killing her. However, the police were unable to corroborate Clark’s account,

and a deputy district attorney declined to prosecute, deeming the evidence insufficient.

       In 2009, the police reopened the investigation. Now, in addition to Clark, two

more of defendant’s ex-wives said that he had admitted being culpable in the death of a

prostitute in the desert. In 2012, defendant was charged with murder. On defendant’s

motion, however, the trial court dismissed the case. It ruled that the deaths of witnesses

and the disappearance of evidence between 1976 and 2012 had impaired defendant’s

ability to present a defense — especially his ability to impeach Clark.

       The People appeal. We will conclude that the trial court erred by dismissing the

case. With one exception, defendant failed to show that the lost evidence and witnesses

would have been helpful to the defense, or, even if they would have been helpful, that

they were not cumulative. The sole exception is that defendant showed some prejudice in

terms of his ability to investigate the possibility that Costa was killed by a third person.

The prosecution, however, showed justification for the delay that was more than

sufficient to outweigh this prejudice.

       Defendant mounts a spirited attack on Clark’s credibility. As he correctly notes:

“Clark said the woman she saw was thin (Costa was heavyset), had blonde hair (Costa

had dark brown or black hair), and was wearing dark shoes (Costa was barefoot and her



                                              2
white sandals were found near her body. Clark described seeing a bloody rock near

Costa’s head . . . . Clark said the rock was about the size of a softball and could fit in the

palm of a hand. Police described the rock as weighing 40 pounds and the size of a soccer

ball.” Defendant then complains that the passage of time “has eviscerated the ability of

the defense to effectively impeach” Clark. His argument, however, actually proves the

opposite: The evidence tending to impeach Clark is still available, at least in some form.

       We are not saying that it is (or is not) a good idea to prosecute defendant for a

murder 40 years past; that is not the issue before us. The trial court expressed concern

that, because evidence is missing, a trial would be “costly,” “complicated,” and

“unreasonably prolong[ed].” However, the decision to incur the expense of a trial,

despite the possibility that defendant may be acquitted (or may even be factually

innocent), is entrusted to the executive branch, which is entitled to exercise its

prosecutorial discretion. Our job is simply to determine whether, despite the passage of

40 years, defendant can still receive a fair trial. Moreover, the burden is on defendant to

prove that he cannot. On this record, subjecting defendant to trial will not violate due

process.

                                               I

                               FACTUAL BACKGROUND

       The following facts are taken from the evidence that was before the trial court

when it ruled on defendant’s motion to dismiss. That evidence consisted of oral




                                              3
testimony, declarations, exhibits, and the transcripts of defendant’s two preliminary

hearings (see part II, post).

       A.      1972: The Investigation of the Death of Mary Costa.

       On March 12, 1972, a group of people found a body on the northwest corner of

Avenue 20 and Cottonwood Road, north of Palm Springs.

       Sheriff’s Deputy David Dupree responded to the scene. He described the area as

mostly undeveloped lots, though there were a few houses several blocks away.

       He saw the body of a woman some five to fifteen feet off the road. She was lying

face down, with her head to the north. She appeared to be in her 20s. She was five feet

four inches tall and “heavyset”, with dark hair. She was wearing a two-piece outfit with a

floral pattern. A pair of white sandals was lying about 20 feet away. There was a spot of

blood on the sandals.

       Decomposition and partial mummification indicated that the body had been there

for one to five weeks. Animals had “tor[n] apart” the right shoulder. There was a patch

of body fluids some distance away, indicating that the body had been moved, perhaps by

the animals.

       A rock with a “[b]ig spot of blood on it” was found nearby. According to Deputy

Dupree, the rock was the size of a soccer ball; it would have taken two hands to pick it

up. The blood on the rock was tested and found to be type A.

       Dr. Dollinger, a pathologist, came to the scene. That same day, he also conducted

an autopsy. He was unable to determine a cause of death. There were no gunshot



                                             4
wounds or knife wounds. Tests for narcotics were negative. However, he did note that

the left cheekbone was broken, which led him to suspect homicide. He found another

fracture at the back of the skull.

       The body was identified as that of Mary Costa by a broken incisor, a devil tattoo

on the right thigh, and a distinctive ring.

       One of Costa’s friends, Loura Angel, said that she had not seen Costa since

February 1972. Angel also told Deputy Dupree that Costa worked as a prostitute.

       Unnamed friends of Costa reported spending the evening with her on February 27.

       Steve Stewart, one of Costa’s friends, said that the last time he saw her, she was

wearing the same dress, bra and panties that were found on her body, suggesting that it

was the night before she died. That night, according to Stewart, Costa was drinking and

dancing at a bar called the Red Baron. At some point, Costa got into an argument with a

barmaid named Syd. Stewart and Costa had breakfast at a Denny’s, where two Filipino

men came in and talked to her.1

       Deputy Dupree learned that Costa had been involved in a narcotics “buy program”

in Kern and Tulare Counties and had “given information against people[.]”

       An inmate named Barbara Schwartz reported that other inmates claimed to have

beaten up one “Mary Cota” [sic] and dumped her by the side of the road in a desert area.

Deputy Dupree interviewed some of the inmates whom Schwartz accused. However,

       1     This was variously characterized as a “contact,” a “discussion,” a
“conversation,” and a “confront[ation].”



                                              5
because Schwartz was a classic “jailhouse snitch,” and because the description of the

victim did not match Costa, he concluded that Schwartz’s information was not reliable.

       Someone (probably Loura Angel) said that Costa had gotten “a couple [of]

scratches” in a fight with “somebody.”

       One Marianne Myers reported hearing from her daughter that a girl had died from

an overdose at the daughter’s birthday party on February 19, and that her body had been

dumped in the desert.

       Costa lived in an apartment with Macker (Max) Judulang and Alex Carrino. She

was in a relationship with Judulang. Deputy Dupree participated in a search of

Judulang’s apartment pursuant to a search warrant. The police saw stains that could have

been blood on a carpet, a suitcase, and a broom; hence, they took samples of each of

these items. However, the items were tested and no blood was found.

       At the same time, Costa was also in a relationship with one Tony Guillermo.

       B.     1976: The Investigation of Diana Clark’s Statements.

       As of 1972, when Costa’s body was found, defendant was living with Diana Clark.

In 1973, they were married. In 1974, they separated.

       By 1976, Clark had a boyfriend named Michael Angell. She told Angell that

defendant had confessed to a murder. Angell told his father, attorney Jim Angell, and his

father told the police.




                                            6
       As a result, on December 21, 1976, Sheriff’s Deputy Ronald Dye interviewed

Clark. The interview was audiotaped. Part of the audiotape was unintelligible, because

the recording equipment malfunctioned, but there was a transcript of the rest.

       Clark said that, as of 1972, defendant was working at a bar called the Casbah.2

One day when she was “about 5 1/2 months pregnant,”3 defendant came home from work

some time after 2:00 a.m. He had “sand all over him.” He was “visibly upset.” He said

“he had hurt somebody” and “[h]e wanted to show her.”

       Defendant drove her to “a remote site north of Palm Springs.”4 On the way there,

he told her he had killed someone.

       When they arrived, it was “very dark.” Defendant left the car headlights on and

led Clark to the body of a woman. The body was lying face down, with the head to the

south. Clark described the dead woman as being in her 20s, with tinted or bleached




       2     In 2010, Clark told police that defendant had been working at the Biltmore
Hotel. They interviewed defendant, who likewise said he had been working at the
Biltmore. In 2012, however, Clark again said defendant had been working at the Casbah.
       One possibility is that the Casbah may have been inside the Biltmore, but the
record is conflicting and confusing on this point.
       3     Clark gave birth to a son on July 11, 1972. This would date the incident
she was describing to April 1, 1972, give or take two weeks or so.
       4      In 2012, Clark described the site as “undeveloped,” “an area . . . where
people would possibly buy land to build a house on.” She testified that there were no
houses or buildings “in the immediate area.”



                                            7
blonde hair5 and dark brown or black shoes. Deputy Dye showed Clark a photo of

Costa’s clothing, but she could not identify it.

            There was blood on a rock next to the woman’s head. According to Clark, the

rock was “maybe a hair larger” than a softball, and it would “fit in . . . a man’s hand

. . . .”6

            Defendant asked Clark to help him move the body. She refused and went back to

the car. Once there, she threw up. She heard sounds of “brush rustling.” About five

minutes later, defendant, too, came back to the car. They left and went home.

            Defendant explained that he had been going to rob the girl, but she resisted, so he

killed her. At one point, Clark told police that defendant said that he hit the girl with a

rock. Later, however, she told police that defendant said that he intended to hit the girl

with a rock, but he ended up choking her instead. He said he got only seven dollars from

the robbery.

            Both defendant and Clark kept checking the newspapers to see if the body had

been found. A couple of weeks later, Clark saw a newspaper article saying that a body

“had been found on some desert property by a real estate agent and a couple who were

            5In 2012, Clark further described the body as “thin” and of “[a]verage”
height, which she defined as five feet four to five feet six inches.
            6Clark testified that Deputy Dye told her that the police still had the rock.
He took a rock out of a box and showed it to her. It looked the same as the rock she had
seen.
       Deputy Dye testified, however, that he never saw the rock and he never showed it
to Clark.



                                                  8
looking for property . . . .” The article also said that the dead person had been in her 20s

and may have been a prostitute. It said that she had died of natural causes, but, Clark

added, “[S]he knew it wasn’t true . . . .”

       Defendant told Clark that, if she told anybody about the murder, he would kill her

and her unborn child. Whenever they argued, defendant would say, “Just remember the

girl in Palm Springs.”

       In July 1975, defendant told Clark he was going away and she would never see

him again. By December 1976, she had not seen him for a long time, so she felt it would

be safe to talk about the murder.

       Clark guided Deputy Dye along the route that she said defendant had taken to the

site of the body. On the way, according to Deputy Dye, sometimes she told him to turn

or to drive a certain way before correcting herself and telling him to go back. (Clark

denied this. ) Eventually, she told him to stop at Avenue 20 and Cottonwood Road.

Avenue 20 and Cottonwood was about a block from Avenue 20 and Mountainview,

where the body was actually found.

       Clark took a polygraph test, which indicated that she was not lying.

       At Deputy Dye’s request, Clark made a pretext call to defendant. The call was

audiotaped. Clark told defendant that the police were asking her questions about the

murder. He replied, “I don’t know what you’re talking about.”

       Deputy Dye obtained copies of several articles about the case that had appeared in

local newspapers.



                                              9
      Deputy Dye learned that defendant was living in or near New York. When

Deputy Dye was going to New York for other reasons, he tried to get approval from his

supervisors to contact defendant. However, he was unable to do so because, at the time,

“they were extremely involved in other significant issues.”

      The investigation came to a halt because a deputy district attorney determined that

there was insufficient evidence.

      C.     2009-2012: The Reopened Investigation.

      In 2009, Sergeant Brett Seckinger reopened the investigation. He interviewed

both Clark and defendant. Defendant denied having anything to do with Costa’s death

(though Sergeant Seckinger characterized his denials as “weak”).

      Meanwhile, Investigator Christine Emmens interviewed two of defendant’s ex-

wives. According to one ex-wife, defendant said that “when he lived out [w]est in the

desert,” a prostitute “did him wrong.” The prostitute “went out into the desert and ‘never

came back.’” According to the other ex-wife, defendant physically abused her and told

her he would kill her if she told anyone about the abuse. He added that “it wouldn’t be

the first time he had killed someone . . . .” He claimed “he had murdered a girl and

dumped her body in the desert.”

      D.     Missing Evidence.

      By the time of the hearing on the motion to dismiss, Macker Judulang, Tony

Guillermo, Steve Stewart, and Jim Angell had all died.




                                            10
       Some evidence had gone missing, including: (1) the audiotape of Deputy Dye’s

1976 interview of Clark; (2) the audiotape of Clark’s polygraph examination; (3) the

audiotape of the pretext phone call; (4) the rock; (5) Costa’s skull; (6) the samples of a

carpet, a suitcase, and a broom taken from Judulang’s apartment; and (7) defendant’s

Biltmore Hotel employment records.

       Photos still existed showing Costa’s body, her clothing, her skull, the rock, and

other “items found in the area.”

       Loura Angel and Michael Angell were still available. The report from Clark’s

polygraph examination was still available. Costa’s clothing and sandals were still in

police custody.7 Indeed, in 2011, Sergeant Seckinger had these items tested for DNA,

but no DNA was found. The coroner’s investigation report, a toxicology report, and the

report on a postmortem dental examination were still available. Finally, newspaper

articles published in March 1972 regarding the case were still available.

                                             II

                            PROCEDURAL BACKGROUND

       In January 2012, defendant was charged by complaint with one count of murder.

(Pen. Code, § 187, subd. (a).) After a preliminary hearing, he was held to answer. He

filed a motion to dismiss based on preaccusation delay. The prosecution filed an




       7     As of 2010, the box of evidence from the scene also contained a blonde
wig. This could potentially explain Clark’s description of the victim as blonde.



                                             11
opposition to the motion. While the motion was pending, the prosecution dismissed the

case.

        The prosecution then refiled the case almost immediately.8 Defendant just as

promptly refiled his motion to dismiss. The prosecution filed another opposition to the

motion. Meanwhile, the trial court held a second preliminary hearing, and once again,

defendant was held to answer.

        In October 2012, the trial court held an evidentiary hearing on defendant’s motion

to dismiss. In November 2012, it issued a detailed written opinion granting the motion.

It found that defendant was prejudiced by Clark’s faded memory, by the loss of physical

evidence, and by the deaths of police officers, coroner’s officials, and potential witnesses.

It further found that there was insufficient justification for the delay, in that the

prosecution’s justification was “weak,” while “[t]he prejudice to the defendant [wa]s

strong.” Finally, it found that the prosecution had not shown that any lesser sanction

would “ameliorate the existing prejudice to the defendant in any significant degree.”

Hence, it dismissed the case.




        8     Defendant accuses the prosecution of “blatant forum[-]shopping.” If that is
indeed what the prosecution was up to, it failed miserably, as defendant’s motion was
ultimately granted by the second judge. In any event, defendant does not explain how
forum-shopping is relevant to the issues before us.



                                               12
                                              III

                                       DISCUSSION

       A.     Applicable Legal Standards.

       A defendant whose speedy trial rights have been violated may be entitled to a

presumption of prejudice. (People v. Williams (2013) 58 Cal.4th 197, 234.) This is, in

part, because “‘impairment of one’s defense is the most difficult form of speedy trial

prejudice to prove because time’s erosion of exculpatory evidence and testimony “can

rarely be shown,”’ and ‘we generally have to recognize that excessive delay

presumptively compromises the reliability of a trial in ways that neither party can prove

or, for that matter, identify.’ [Citation.]” (Id. at p. 236.) However, “‘[a] defendant’s

state and federal constitutional speedy trial rights [citations] do not attach before the

defendant is arrested or a charging document has been filed.’ [Citation.]” (People v.

Jones (2013) 57 Cal.4th 899, 921.)

       By contrast, “‘[d]elay in prosecution that occurs before the accused is arrested or

the complaint is filed may constitute a denial of the right to a fair trial and to due process

of law under the state and federal Constitutions. A defendant seeking to dismiss a charge

on this ground must demonstrate prejudice arising from the delay. The prosecution may

offer justification for the delay, and the court considering a motion to dismiss balances

the harm to the defendant against the justification for the delay. [Citations.]’ [Citation.]

‘“In the balancing process, the defendant has the initial burden of showing some

prejudice before the prosecution is required to offer any reason for the delay [citations].



                                              13
The showing of prejudice requires some evidence and cannot be presumed. [Citations.]”’

[Citation.]” (People v. Alexander (2010) 49 Cal.4th 846, 874.)

       “‘[N]egligent, as well as purposeful, delay in bringing charges may, when

accompanied by a showing of prejudice, violate due process. This does not mean,

however, that whether the delay was purposeful or negligent is irrelevant.’ [Citation.]

Rather, ‘whether the delay was purposeful or negligent is relevant to the balancing

process. Purposeful delay to gain 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.’ [Citation.] The justification for the delay

is strong when there is ‘investigative delay, nothing else.’ [Citation.]” (People v. Cowan

(2010) 50 Cal.4th 401, 431.)

       “‘We review for abuse of discretion a trial court’s ruling on a motion to dismiss

for prejudicial prearrest delay [citation], and defer to any underlying factual findings if

substantial evidence supports them [citation].’ [Citation.]” (People v. Jones, supra, 57

Cal.4th at p. 922.)

       B.     The Prejudice to Defendant.

              1.      The tapes of Clark’s 1976 statements.

       The trial court found that defendant was prejudiced by the loss of the tapes of

Clark’s 1976 statements.




                                             14
       Those statements, however, were memorialized in police reports. Deputy Dye had

an independent recollection of them (albeit likely refreshed by the reports). There was

even a partial transcript of Deputy Dye’s original interview of Clark on December 21,

1976. It was partial, not due to any delay by the prosecution, but only because, in 1976,

the recording equipment malfunctioned.9

       In the trial court, defense counsel argued essentially that prejudice should be

presumed: “How could I possibly make that showing [i.e., that the tapes would impeach

Clark] when the evidence has been destroyed? . . . All of that is lost. All I have is a

police report . . . .” However, “[n]o presumption of prejudice arises from delay after the

filing of a complaint and before arrest or formal accusation by indictment or information

[citation]; rather, in this situation a defendant seeking dismissal must affirmatively

demonstrate prejudice [citation].” (People v. Martinez (2000) 22 Cal.4th 750, 755.)

“Presuming prejudice would be inconsistent with the Legislature’s declining to impose a

statute of limitations for murder, among the most serious of crimes. To avoid murder

charges due to delay, the defendant must affirmatively show prejudice.” (People v.

Nelson (2008) 43 Cal.4th 1242, 1250.)

       In People v. Alexander, supra, 49 Cal.4th 846, the defendant claimed that he had

been prejudiced by preaccusation delay; he noted that, among other things, audiotapes of

       9     Defendant also claims that a 1981 interview of Clark was missing. There
was no such interview. The cited reference in the reporter’s transcript is to a form that
Deputy Dye filled out in 1980 or 1981, asking that the tape of the 1976 interview not be
destroyed.



                                             15
interviews with hypnotized witnesses had been erased. (Id. at pp. 874-875.) The

Supreme Court rejected this claim, stating: “To the extent defendant argues the tapes

may have included statements not contained in, or that contradicted, the investigators’

reports or witnesses’ testimony at the preliminary hearing or trial, his claim is based on

speculation, not proof of actual prejudice. To the extent the tapes contained the same

statements contained in the reports and testimony of the witnesses, they would have been

cumulative. To the extent the reports and witness testimony conflicted, defendant was

able to point out the inconsistencies to the jury without the tapes. Although . . . it might

have been preferable to save the tapes, defendant has not demonstrated that he actually

was prejudiced by their destruction.” (Id. at p. 875.)

       Here, there was absolutely no evidence that there was anything on the tapes that

would impeach Clark (other than what was already in the partial transcript or the police

reports). Much as in Alexander, defendant’s argument that the lost tapes may have

contained statements that would have impeached Clark was based on speculation. In its

written order, the trial court duly noted the rule that prejudice should not be presumed.

Nevertheless, it does not seem to have followed that rule, as it repeatedly presumed that

any missing evidence would have impeached Clark. This was error.

              2.     Clark’s polygraph test.

       The trial court found that defendant was prejudiced because all records of Clark’s

polygraph test had been lost.




                                             16
       At the first preliminary hearing, in September 2012, Sergeant Seckinger testified

that he had not been able to find any record of the polygraph test.10 In October 2012,

however, Investigator Emmens testified that she had obtained “additional reports” from

the Sheriff’s Department, including the polygraph examination report. She was able to

quote particular questions and answers from it; she testified that it “indicated no

deception.” On this record, the trial court erred by finding that the evidence of the

polygraph test had been lost.

       In any event, evidence of the polygraph test would be inadmissible. The fact that

Clark took the test, along with the results of the test, would be inadmissible under

Evidence Code section 351.1, subdivision (a).11 Clark’s statements during the test, if

offered for their truth, would be inadmissible hearsay. They could not come in as

impeachment evidence or as prior inconsistent statements (Evid. Code, § 1235), because

it appears that they were perfectly consistent with Clark’s testimony.

       In sum, defendant has not shown that he was prejudiced.




       10     Sergeant Seckinger also testified that he had not been able to find an
audiotape of the polygraph examination. However, there was no evidence that it was, in
fact, audiotaped.
       11      This subdivision, as relevant here, provides: “[T]he results of a polygraph
examination, the opinion of a polygraph examiner, or any reference to an offer to take,
failure to take, or taking of a polygraph examination, shall not be admitted into evidence
in any criminal proceeding . . . , unless all parties stipulate to the admission of such
results.”



                                             17
              3.      The tape of the pretext call.

       The trial court found that defendant was prejudiced because the tape of the pretext

call had been lost.

       It is true that the tape had been lost.12 However, it is undisputed that, in the

pretext call, defendant denied knowing anything about a murder. Defendant argues that

the tape itself is necessary to show his “demeanor.” He notes that Sergeant Seckinger

characterized his denials in 2011 and 2012 as “weak.” He argues that the tape would

show that his denials in 1976 were not weak. This is comparing apples to oranges.

Nobody was claiming that his denials in 1976 were weak. Quite the contrary, Clark

quoted him as saying flatly, “I don’t know what you’re talking about.”

       In any event, it does not appear that the tape would be admissible. Defendant’s

denial of the crime is inadmissible hearsay. It would not be admissible as a prior

consistent statement because, even in 1976, defendant had a motive to make a false

denial. (Evid. Code, §§ 791, subd. (b), 1236.)

              4.      The rock.

       The trial court found that defendant was prejudiced because the blood-stained rock

had been lost.13

       12     The trial court also found that “a malfunction of the taping system is
claimed by law enforcement to have resulted in not all of the conversation being
preserved on tape at that time.” Actually, the malfunction occurred during Deputy Dye’s
interview with Clark, not during Clark’s pretext phone call with defendant.
       13      Defendant claims that the rock was “last seen being used as a doorstop at
the sheriff station.”
                                                                   [footnote continued on next page]


                                              18
        The size of the rock was relevant to impeach Clark. She claimed that the rock was

softball-sized and would fit in a man’s hand. Deputy Dupree testified, however, that it

was soccer-ball-sized and it would take two hands to lift it. Defendant was not

prejudiced, however, precisely because Deputy Dupree could and did testify regarding

the size of the rock.14

        The trial court also noted that “the blood on the rock is no longer available for

DNA analysis.” In 1976, however, DNA profiling did not exist yet. (See People v. Axell

(1991) 235 Cal.App.3d 836, 842 [case “of first impression” regarding admissibility of

DNA profiling evidence].) Thus, the delay did not prejudice defendant in this respect.

        Defendant now argues that the presence or absence of tissue on the rock would be

relevant. However, he did not offer any expert testimony that hitting someone with a

rock would leave tissue on the rock, or that such tissue would still be detectable after

weeks of exposure to the elements — much less that this was so likely that the absence of

tissue would prove that the rock had not been used to hit someone.




[footnote continued from previous page]
       Deputy Dye admitted “hear[ing] that at one point it had been used as a doorstop,”
but he added: “I’ve never been able to attribute that comment to anybody nor do I have
any recollection of having seen it as such.”
        14      The People assert that “multiple pictures of the now-missing rock . . . exist
documenting its size and shape.” (Italics added.) The only evidence on this point,
however, was Investigator Emmens’s testimony, “I have reviewed . . . photographs
depict[ing] . . . the rock . . . .” It is not clear whether these photos indicate the rock’s size.



                                               19
        Defendant also argues that the pattern of blood on the rock — “whether splatter,

smear or drop down” — would be relevant. Again, however, he did not offer any expert

testimony on this point. At least to a layperson, the presence of a splatter or a drop rather

than a smear would hardly seem to prove that the rock was not used as a weapon. In any

event, while the photos themselves are not in evidence, it seems almost inconceivable

that the police took photos of the rock, yet positioned the camera so that they did not

show the blood.

        Finally, as the People note, the trial court could have minimized any possible

prejudice by instructing the jury that the People were responsible for the disappearance of

the rock, and hence the jury could infer that the rock would have afforded evidence

adverse to the People’s case. (See People v. Conrad (2006) 145 Cal.App.4th 1175, 1185-

1186 [jury instruction can be adequate remedy for preaccusation delay, by analogy to

cases of destruction of evidence]; People v. Wimberly (1992) 5 Cal.App.4th 773, 791-793

[where police had destroyed evidence in violation of a discovery order, trial court

properly instructed the jury that it could draw an adverse inference that may be sufficient

to raise a reasonable doubt].)

               5.     Costa’s skull.

        The trial court found that defendant was prejudiced because Costa’s skull had been

lost.

        However, photos showing “Costa’s fractured skull” were still available. So was a

coroner’s investigation report noting the fractured cheekbone but concluding that the



                                             20
cause of death was undetermined. In addition, police reports memorializing the finding

of both a fractured cheekbone and a fracture at the back of the skull were still available.

On this record, it is sheer speculation to suppose that the skull itself, if still available,

would impeach Clark by revealing some cause of death other than being choked and hit

with a rock. Indeed, in 1972, even with the skull, a cause of death could not be

determined.

               6.     Costa’s clothing.

       The trial court found that defendant was prejudiced because Costa’s clothing had

been lost, and thus it could not be used to impeach Clark’s description. The trial court

was mistaken. Costa’s clothing — including her dress and sandals — was still in police

custody. So were photos of Costa’s body taken at the scene.

       In any event, even in 1976, Clark did not remember what Costa was wearing. All

she remembered was that Costa’s shoes were dark. Actually, Costa’s sandals were white;

this was shown by Deputy Dupree’s testimony, as well as by the sandals themselves.

Thus, to the extent that Costa’s clothing was impeaching, defendant was still free to use it

to impeach.

               7.     Items from Judulang’s apartment.

       The trial court found that defendant was prejudiced because the items seized in a

search of Judulang’s apartment — a piece of a rug, a piece of a suitcase, and a piece of a

broom — had been lost. These items were seized, however, only because they bore

stains that could have been blood. They had subsequently been tested, and no blood was



                                               21
found. The idea that retesting by the defense might have produced a different result is the

epitome of speculation. Thus, it does not appear that their loss was prejudicial.

              8.     Medical reports.

       The trial court found that defendant was prejudiced because medical reports had

been lost.

       The coroner’s investigation report, a toxicology report, and a dental report were

still available. There is no evidence that any other medical reports ever existed.

Arguably, from the fact that Dr. Dollinger conducted an autopsy, the trial court could

infer that there was, at one time, a separate autopsy report. Even if so, however, it is

clear from the coroner’s report that there were no knife wounds and no gunshot wounds

and that it was impossible to determine a cause of death. Defendant cannot show that

there was any helpful information in the autopsy report that is not also in the coroner’s

investigation report (or otherwise available).

       For example, in finding prejudice, the trial court speculated that missing medical

reports might have shown that Costa’s hair was dark, impeaching Clark’s testimony that

it was blonde. Deputy Dupree, however, who saw the body, testified that Costa’s hair

was dark. Moreover, photos of the body showed that Costa had dark hair. Hair samples

collected at the scene were still available. Thus, defendant was not prejudiced.

       The trial court also noted that there were no medical records indicating whether

Costa was choked. However, this appears to be due, not to the absence of records, but

rather to the torn, mummified, and decomposed condition of her body when it was found



                                             22
in 1972. In 1976, when Clark first asserted that Costa was choked, if the police could

have cross-checked that claim against the medical records, surely they would have.

There is no evidence that the difficulty in determining whether Costa was choked is due

to the passage of time since 1976.

              9.      The deaths of the coroner and deputy coroner.

       The trial court found that defendant was prejudiced because “the pathologist who

performed the autopsy and other coroner officials” had died.

       In the proceedings below, defendant asserted that the coroner, Dr. F. Rene

Modglin, and deputy coroner, Ray Carrillo, had died. Although he introduced no

evidence of this, the People did not dispute it. However, there was also no evidence as to

how these two gentlemen were involved in the case. The evidence did show that one

Dr. Dollinger examined the body at the scene and later conducted an autopsy. There was

no evidence that Dr. Dollinger was dead.15 In the absence of any evidence of the nature

of any information that Modglin or Carrillo may have had before they died, there is no

factual basis for the trial court’s finding of prejudice.

       Separately and alternatively, we note that Dr. Dollinger was never able to

determine a cause of death. As the People point out, the difficulty of determining a cause

of death was due, not to the fact that the prosecution delayed bringing charges, but rather

to the fact that the body was dumped in the desert and was not found for weeks, allowing

       15     Defendant asserts in his brief that Dr. Dollinger is deceased. However, the
cited portions of the record do not support this.



                                               23
it to decompose and allowing animals to disturb it. Thus, defendant cannot show that,

even if Modglin and Carrillo were still available to testify, he would be any better off.

               10.    Law enforcement officials.

       The trial court found that defendant was prejudiced by the deaths of “law

enforcement officials who would be expected to have made observations of the deceased

at the scene that contradict those of . . . Clark.”

       There was no evidence that any of the law enforcement officers involved were

dead. However, there was evidence that some could not be located. A defense

investigator testified that he tried to locate some 75 “law enforcement witnesses,” but was

unable to do so. There was no evidence, however, that any of these officers were at the

scene of the crime or able to observe the body.

       But even if they were, Deputy Dupree was also there. He could and, in fact, did

testify to details that contradicted Clark’s account. Indeed, Deputy Dupree and the

physical evidence addressed basically all of the details that Clark was able to remember

and either confirmed or contradicted them. It would be purely speculative to suppose that

other officers at the scene (if any) would have given an account that was any different

from Deputy Dupree’s.

       Investigator Terry Burdo (or Berdo) had been present when Deputy Dye

interviewed Clark as well as when Clark guided Deputy Dye to the scene. Investigator

Burdo no longer had any memory of the case. However, it appeared that his testimony




                                               24
would be merely cumulative. Thus, once again (see part III.B.1, ante), the trial court

erred by presuming that the missing evidence would impeach Clark.

              11.    Newspaper articles.

       The trial court found that defendant was prejudiced because Clark could no longer

identify the newspaper article that she read in 1972.

       Clark admitted reading an article about the discovery of the body. If this article

contained details that she later claimed to have perceived personally — e.g., details

regarding the location or the appearance of the body — it would be relevant to impeach

her. However, at least seven newspaper articles about the case, published in March 1972

in the Press-Enterprise, the Daily News, the Daily Enterprise, and the Desert Sentinel,

were still available. The defense will be free to use them to impeach Clark. As the

People point out, there is no evidence that Clark was ever able to identify the particular

article that she read. Thus, the trial court erred by finding that the passage of time had

prejudiced the defense in this respect.

              12.    Defendant’s employment records.

       The trial court found that defendant was prejudiced by the loss of his employment

records.

       There was no evidence, however, that defendant’s 1972 employment records still

existed in 1976. One witness testified that the Casbah “might have been” torn down

shortly after 1972, and the Biltmore was “gone” sometime before 1976.




                                             25
       More fundamentally, there was no evidence that the employment records would

have helped the defense, by impeaching Clark or otherwise. It is undisputed that Clark

was living with defendant in 1972, so she would have known where he worked and what

his hours were, even assuming that she was making up all of the other aspects of her 1976

account. Moreover, defendant could hardly expect the employment records to provide

him with an alibi, because Clark could not specify the date or day of the week when she

saw the body. (See People v. Catlin (2001) 26 Cal.4th 81, 109 [where defendant was

accused of poisoning his wife with paraquat, his inability to find alibi witnesses was “not

highly significant, given his unlimited access to the victim and the circumstance that the

paraquat could have been administered at any point over a lengthy period.”].)

              13.       Clark’s faded memory.

       The trial court found that defendant was prejudiced by Clark’s lack of recollection

of specified matters.

       Some of these were matters that Clark had forgotten by 1976, such as the exact

date when defendant took her to see the body, or the exact route that they took to get

there. However, precisely because Clark had already forgotten these as of 1976,

defendant was not prejudiced by further delay.

       Others were matters that Clark simply did not mention in 1976. For example, the

trial court found that, by 2012, Clark no longer remembered what shoes she wore to the

scene. It concluded that “the defense is prevented from establishing that none of the

footprints in the area were hers . . . .” However, there is no evidence that in 1976, Clark



                                             26
did remember what shoes she was wearing. Indeed, it seems extremely unlikely that she

would. Moreover, it does not appear that there were any shoeprints in the area; certainly

they are not mentioned in connection with the 1972 investigation. Thus, defendant did

not carry his burden of showing prejudice.

       Still others were matters that Clark still remembered — and affirmatively stated —

in 1976. For example, in 1976, Clark recalled that Costa had blonde hair. By 2012, she

no longer remembered Costa’s hair color. Likewise, in 1976, Clark was able to guide

Deputy Dupree along the route she and defendant took to the scene. By 2012, she did not

remember it anymore. As to these matters, however, defendant is not prejudiced at all.

As the People point out, Clark’s 1976 statements can be admitted as past recollection

recorded. (Evid. Code, § 1237.) Any contradictory evidence can then be introduced as

impeachment. (Evid. Code, § 1202.)

       Finally, the trial court identified only one matter that Clark remembered, but did

not specifically tell police, in 1976. In 2012, Clark testified:

       “Q Do you remember around how far away th[e] car was from th[e] body?

       “A In ’76 I could have told you, but I can’t right now. It wasn’t that far.”

       The trial court reasoned: “Ms. Clark indicated she got sick and vomited at the side

of the car. [Citation.] Her lack of memory of the car’s location and the extensive delay

deprive the defense of the opportunity to impeach the accuracy of her statements by

establishing a lack of evidence of residue of her claimed vomiting.”




                                              27
         Also in 2012, however, Clark was asked to estimate how far she walked to get

from the car to the body. She estimated the distance as 21 or 22 feet. Thus, it appears

that she did, in fact, remember the location of the car. In any event, the defense could

already impeach Clark with the fact that the police did not note any vomit in 1972.

         The trial court’s reasoning assumes that in 1976, the presence or absence of vomit

could still have been established. The only evidence on this point, however, was that, in

the one to five weeks that elapsed before the body was found, any vomit would have been

“licked up” by dogs or coyotes in the neighborhood. Moreover, Clark made it clear that

she vomited on the driver’s side of the car, i.e., in the street. It is highly unlikely that the

vomit from 1972 would still have been detectable in 1976. Thus, even if, in 1976, Clark

had specified exactly where she vomited, and even if investigators had looked there but

found no vomit, that evidence would have had only a negligible tendency to impeach

Clark.

               14.    Third-party culpability evidence.

         Finally, the trial court found that defendant was prejudiced because “[t]wo other

possible suspects who were boyfriends of the deceased at the time, are now deceased.”

Defendant also argues, more generally, that he is prejudiced by his inability to conduct a

“meaningful investigation of the multitude of third party suspects . . . .”

         The 1972 investigation by Deputy Dupree did turn up a number of potential

suspects:




                                               28
       1. Costa “had been involved in a buy program with narcotics dealers and given

information against people[.]”

       2. Costa had sustained “a couple [of] scratches” in a fight with somebody.

       3. On the night before she died, Costa was in an argument with a barmaid named

Syd.

       4. Also on the night before she died, Costa was in a “conversation” (or a

“confront[ation]”) with two Filipino men at a Denny’s.

       5. Judulang and Guillermo were Costa’s boyfriends, and thus, to some extent,

suspects a priori. The men at the Denny’s could well have been Judulang and/or

Guillermo, who were both Filipino. The police searched Judulang’s apartment. As the

search warrant affidavit shows, they did so more because Costa had lived there with him

than because he himself was a suspect; however, among the items they were seeking

were Costa’s blood, hair, and teeth and any possible murder weapon. No evidence

incriminating Judulang was found.

       6. An inmate claimed that other inmates admitted beating up one “Mary Cota”

and dumping her in the desert. However, she was deemed unreliable because she was a

“jailhouse snitch” and because the description of the beating victim did not match Costa.

       7. A witness reported hearing that a girl had died from an overdose on February

19 and that her body had been dumped in the desert. However, Costa had been seen alive

as late as February 27, and tests of her body for narcotics were negative.




                                            29
       To summarize: At the time, the police investigated each of these leads, but they

were unable to obtain sufficient evidence to justify further investigation, much less

prosecution. There is no reason to think that the investigation was cursory or inadequate.

“[I]t is well settled that ‘“‘evidence of mere motive or opportunity to commit the crime in

another person, without more, will not suffice to raise a reasonable doubt about a

defendant’s guilt: there must be direct or circumstantial evidence linking the third person

to the actual perpetration of the crime.’ [Citation.] . . .”’ [Citation.]” (People v. Hartsch

(2010) 49 Cal.4th 472, 496.) The evidence gathered in 1972 fell short of this standard.

Nevertheless, if defendant had been charged in 1976, competent defense counsel would

have wanted to do a further investigation in the hope of obtaining additional evidence that

would be sufficient to raise a reasonable doubt about whether defendant was the

perpetrator.

       Guillermo died in 1973 — before Clark came forward in 1976, and thus before

any supposed delay in prosecution. However, the subsequent deaths of Stewart (the

witness who saw the two Filipino men at Denny’s) and of Judulang did prevent the

defense from investigating other possible suspects. The passage of time also made it

effectively impossible to investigate the possibility that Costa was killed by someone she

had bought drugs from or informed against. We therefore conclude that defendant was

prejudiced in this respect. (See People v. Boysen (2007) 165 Cal.App.4th 761, 779-780

[upholding trial court’s finding that defendant was prejudiced by inability to conduct

further investigation or evidence of third party culpability].)



                                             30
       However, this was the only respect in which defendant was prejudiced, and given

the implausibility of most of the supposed suspects, the prejudice was attenuated, at best.

       C.     The Prosecution’s Justification for the Delay.

       “Under the balancing test, when a defendant demonstrates prejudice, the

prosecution must offer justification for the delay. Once the prosecution does so, the trial

court balances the harm done the defendant against the justification. [Citation.] In a

broad sense the trial court’s task ‘is to determine whether precharging delay violates the

fundamental conceptions of justice which lie at the base of our civil and political

institutions and which define the community’s sense of fair play and decency.’

[Citation.]

       “In balancing prejudice and justification, it is important to remember that

prosecutors are under no obligation to file charges as soon as probable cause exists but

before they are satisfied that guilt can be proved beyond a reasonable doubt or before the

resources are reasonably available to mount an effective prosecution. Any other rule

‘would subordinate the goal of orderly expedition to that of mere speed.’ [Citation.]

       “The balancing task is a delicate one, ‘a minimal showing of prejudice may

require dismissal if the proffered justification for delay is insubstantial. [Likewise], the

more reasonable the delay, the more prejudice the defense would have to show to require

dismissal.’ [Citation.]” (People v. Boysen, supra, 165 Cal.App.4th at p. 777.)

       “A court should not second-guess the prosecution’s decision regarding whether

sufficient evidence exists to warrant bringing charges. ‘The due process clause does not



                                              31
permit courts to abort criminal prosecutions simply because they disagree with a

prosecutor’s judgment as to when to seek an indictment . . . . Prosecutors are under no

duty to file charges as soon as probable cause exists but before they are satisfied they will

be able to establish the suspect’s guilt beyond a reasonable doubt . . . . Investigative

delay is fundamentally unlike delay undertaken by the government solely to gain tactical

advantage over an accused because investigative delay is not so one-sided. A prosecutor

abides by elementary standards of fair play and decency by refusing to seek indictments

until he or she is completely satisfied the defendant should be prosecuted and the office

of the prosecutor will be able to promptly establish guilt beyond a reasonable doubt.’

[Citations.]” (People v. Nelson, supra, 43 Cal.4th at p. 1256.)

       The trial court found that there was some justification for the failure to prosecute

in 1976, i.e., a deputy district attorney had concluded there was insufficient evidence to

file charges. However, it also found that this justification was “weak,” because the police

had an “available” suspect who had supposedly confessed and they could have

investigated further.

       It is not clear what further investigation the trial court felt was warranted. It

asserted that defendant was “readily available to be questioned . . . .” That is not entirely

true, as he was out-of-state at that point. In any event, the police did have Clark conduct

a pretext call with defendant; in it, he denied knowing anything about a murder. There is

no reason to suppose that, if they had contacted defendant directly, he would have been




                                              32
any more forthcoming. Moreover, in 2010 and again in 2012, the police did interview

defendant, and he did, in fact, simply deny any involvement.

       Sergeant Seckinger never actually explained why he reopened the case in 2009.

Once he did, though, what shifted the balance in favor of prosecution was that two of

defendant’s ex-wives both independently stated that defendant had admitted killing a girl

in the desert. This evidence did not exist in 1976, when defendant had only recently

broken up with Clark. Indeed, if the police had interviewed defendant about the murder

in 1976, defendant would have been placed on his guard and might never have made the

admissions to his ex-wives that he ultimately did make.

       Defendant argues that his ex-wives’ statements were “not properly before the

court” because they were hearsay and because he objected to them. Although he did

object to them, he did not object on hearsay grounds; thus, he forfeited this particular

objection. (Evid. Code, § 353, subd. (a).) In any event, the statements were admissible

for a nonhearsay purpose; regardless of their truth, they were relevant to show why the

People decided to prosecute defendant.

       The record shows that “[t]he delay was investigative delay, nothing else.” (People

v. Nelson, supra, 43 Cal.4th at p. 1256.) We therefore conclude that it was more than

sufficient to justify the minimal prejudice that defendant was able to show.




                                             33
                                            IV

                                     DISPOSITION

       The order of dismissal is reversed, and the matter is remanded for further

proceedings.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                               RICHLI
                                                                                    J.

We concur:


RAMIREZ
                       P. J.


KING
                          J.




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