Filed 8/7/13 P. v. Rodriguez 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                        E057722

v.                                                                       (Super.Ct.No. SWF1100780)

GERMAN VALTIERRA RODRIGUEZ,                                              OPINION

         Defendant and Respondent.



         APPEAL from the Superior Court of Riverside County. Dennis A. McConaghy,

Judge. Affirmed.

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

Attorney, for Plaintiff and Appellant.

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

Appellant.




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                                                I

                                      INTRODUCTION1

        The People appeal from an order of the trial court dismissing a criminal complaint

for violation of defendant German Valtierra Rodriguez’s right to a speedy trial. When

the trial court dismisses a case based on a violation of defendant’s right to a speedy trial,

we review for an abuse of discretion. (Serna v. Superior Court (1985) 40 Cal.3d 239,

251.)

        The People assert that the trial court erred in finding actual prejudice and the court

abused its discretion in dismissing the complaint. We conclude defendant demonstrated

actual prejudice and the trial court did not abuse its discretion. We affirm the judgment.

                                               II

                     FACTUAL AND PROCEDURAL BACKGROUND

A. The Felony Complaint

        In October 2009, the victim first disclosed to a teacher that defendant had groped

her when she was younger. Eighteen months later, in April 2011, the People filed a

felony complaint against defendant alleging six counts in violation of section 288,

subdivision (a), lewd touching of a child under 14, occurring between 2004 and 2008.

An arrest warrant was issued in June 2011.

        A year later, in July 2012, defendant waived formal arraignment and pleaded not

guilty to all charges. In August and September 2012, defendant agreed to waive time.


        1   All statutory references are to the Penal Code.

                                               2
B. Defendant’s Motion to Dismiss

       In November 2012, defendant filed a motion to dismiss for violation of the right to

a speedy trial under the state and federal Constitutions. (§ 1050.) In reviewing the

motion, we are limited by the parties’ sparse submissions. The only evidence offered by

defendant in support of the motion is defendant’s declaration with exhibits attached to

show his address in San Marcos in April and July 2010 and March 2011. In opposing the

motion, the prosecution did not offer any evidence at all, only a memorandum of points

and authorities containing unsupported factual assertions. Nevertheless, we set forth a

summary of the information provided by the parties.

       In the motion, defendant asserted that the victim, defendant’s stepdaughter,

reported in October 2009 when she was 14 that defendant had touched her

inappropriately between the ages of 10 and 13, the years 2004 to 2008.

       In an Riverside Child Assessment Team (RCAT) interview2 in October 2009, the

victim apparently described the following incidents. Defendant touched her on the leg in

the car between 20 and 50 times. He tried to kiss her using his tongue when she was

watching a movie. Once he massaged her back and near her breasts. He touched her

breast and her body while playing in the swimming pool. He touched her buttocks while

wrestling.

       The victim finally spoke out after there was a discussion in one of her classes

about a young woman being kidnapped and because she had a nightmare about defendant


       2   The recorded RCAT interview is not part of the record on appeal.

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touching her sister. The victim did not want to participate in a pretext telephone call.

After the victim’s mother questioned defendant, whom she was divorcing, he admitted

some conduct, which defendant denied was sexual.

       In December 2009, an officer was able to locate defendant’s sister’s Oceanside

address and his telephone number using Department of Motor Vehicle (DMV) records.

The officer left a telephone message in English for defendant in February 2010. In

January 2011, officers went to the Oceanside address but defendant’s sister said he had

moved. In February 2011, an officer left a telephone message in Spanish for defendant.

       In March 2011, officers visited defendant’s current San Marcos address on

Richmar Avenue without contacting him and they left more telephone messages. The

officers seemed to be hampered in their investigation by their incorrect assumption that

defendant was in the country illegally. Possibly for that reason, they did not search for or

could not locate his driver’s license or social security number. They closed the case and

returned it to the district attorney who filed the complaint in April 2011.

       In actuality, defendant had lived at and paid taxes and bills at Richmar Avenue

since 2009. His driver’s license, issued April 23, 2010, shows that address. He had paid

child support to his ex-wife since August 2009 and engaged in weekly visitation with

their child.

       Defendant was not in the country illegally. To the contrary, he had possessed a

green card for many years. He first discovered the charges against him in May 2012

when he applied for citizenship and a background check disclosed the outstanding

warrant.

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       In support of his motion to dismiss, defendant declared that he has a poor memory

about the alleged incidents occurring between 2004 and 2008 and that other witnesses,

not identified, also lacked clear memories. Therefore, he suffered prejudice and his right

to a speedy trial was violated because he could not receive an adequate defense due to the

loss of witnesses and fading memories regarding the events. In his reply, defendant also

claimed he suffered prejudice because the evidence about what caused the victim to

report to her teacher in October 2009 could not be reconstructed. Defendant further

argued there was no reason why the police could not have contacted him in San Marcos

in 2009 and afterwards because he had a driver’s license and paid taxes and bills at the

Richmar address in San Marcos.

       In opposition, the People argued defendant had not shown actual and substantial

prejudice because the statements of the victim and other witnesses, also not identified,

were recorded in 2009 when their memories were still fresh. The People contended the

delay was justified because the detectives could not find defendant for several years. The

People also reasoned that defendant had constructive notice there could be a pending case

against him because the victim’s mother had confronted him about her daughter’s

accusations and obtained a restraining order. The People did not submit any factual

support—in the form of declarations or other admissible evidence—for their excuse for

the delay in prosecution.

       At the hearing on defendant’s motion, the court noted that defendant and the

victim’s mother were getting divorced at the time of the victim’s disclosure in October

2009. The prosecutor argued that law enforcement had made numerous attempts to find

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defendant in 2011. However, the prosecutor could not explain why defendant’s driver’s

license could not be located through the DMV. The prosecutor conceded defendant

probably did not know a complaint had been filed but she argued he should have known

the police might be investigating him because his ex-wife had confronted him. The court

described the prosecutor’s argument as “a pretty giant leap.” The prosecutor explained

the People did not have the resources to pursue “every single warrant.” She disputed that

memories could fade significantly between 2008 and when defendant was arrested in

2012.3

         Defense counsel observed that the proposed witnesses in the case—other than the

victim—were the mother, the teacher, a school friend, neighbors, family members, and a

brother. Except for the two pool incidents and the movie incident, the victim was vague

about the frequency and detail of the other incidents. Defense counsel explained the

prejudice, somewhat inarticulately, to defendant as follows: “[W]e have contacted one of

the witnesses, the teacher of the initial accusation that was made. And I think that the

circumstances surrounding the topic and the subject which is being discussed at the time

is certainly at issue in this case, because the fact that she is a mandated reporter. And I

think that even within the RCAT itself, the alleged victim is stating that she doesn’t want

any. It doesn’t really affect her. And she didn’t really want to go through the process in

the first place because—and it appears to have been more of a process of the mandated

reporting rather than whether the case itself is a legitimate case.”


         3   The prosecutor’s reference to 2011 instead of 2012 appears to be a mistake.

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        Defense counsel also disputed that police negligence or lack of manpower justified

the delay of almost three years from the victim’s disclosure to defendant’s arrest.

        The court commented, “it’s difficult for a person who is innocent to say on August

1st of 2008, I didn’t do that. You can make a general statement, I’ve never done this, but

to specifically say, I was someplace else or whatever, it’s difficult.” The court also

described law enforcement’s efforts as “inept.” The court finally concluded, “out of

fairness, we have to be concerned about the time that elapsed before . . . charges were

even filed, let alone before [defendant] was even notified . . . .” The court deemed it a

“close” call but granted defendant’s motion.

                                              III

                                        DISCUSSION

        The subject crimes purportedly occurred between 2004 and 2008 but were not

reported until October 2009. Eighteen months elapsed before the complaint was filed in

April 2011 and another 15 months before defendant was arrested and arraigned in July

2012.

        Under federal law, a defendant’s Sixth Amendment right to a speedy trial rule

comes into play only after the filing of the information or upon a defendant’s arrest.

(People v. Martinez (2000) 22 Cal.4th 750, 754-755, 760-762.) A federal claim of

unreasonable preindictment delay is determined under a Fifth Amendment due process

analysis. (Id. at pp. 760-761.) Federal due process requires “‘dismissal of the indictment

if it [is] shown at trial that the pre-indictment delay in [the] case caused substantial



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prejudice to [the defendant’s] rights to a fair trial and that the delay was an intentional

device to gain tactical advantage over the accused.’ [Citation.]” (Id. at p. 765.)

       Under state law, “Delay 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 . . . Constitution[].” (People v. Catlin (2001) 26 Cal.4th

81, 107.)

       We employ a three-step analysis to determine if defendant’s due process right to a

fair trial has been violated because of delay in filing the complaint or his arraignment:

(1) defendant must show that he has been prejudiced by the delay, whereupon (2) the

burden shifts to the People to justify the delay, and (3) the court balances the harm

against the justification. (Jones v. Superior Court (1970) 3 Cal.3d 734; People v.

Pellegrino (1978) 86 Cal.App.3d 776.)

       The California Supreme Court has indicated that this balancing analysis is to be

applied only where the delay was purposeful and oppressive. (See e.g., People v.

Archerd, supra, 3 Cal.3d at p. 640.) However, in Scherling v. Superior Court (1978) 22

Cal.3d 493, 507, the Supreme Court stated, “it makes no difference whether the delay

was deliberately designed to disadvantage the defendant, or whether it was caused by

negligence of law enforcement agencies or the prosecution.” Additionally, “[n]egligence

on the part of police officers in gathering evidence or in putting the case together for

presentation to the district attorney, or incompetency on the part of the district attorney in

evaluating a case for possible prosecution can hardly be considered a valid police purpose

justifying a lengthy delay which results in the deprivation of a right to a fair trial.”

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(Penney v. Superior Court (1972) 28 Cal.App.3d 941, 953.) Although delay may have

been caused only by the negligence of the government, the prejudice suffered by a

defendant may be sufficient when balanced against the reasons for the delay to constitute

a denial of due process. (Scherling v. Superior Court, supra, 22 Cal.3d at p. 507.)

A. Actual Prejudice

       Having reviewed the record, we conclude the trial court did not abuse its

discretion in granting defendant’s motion to dismiss. First, the trial court properly found,

whether express or implied, defendant showed actual prejudice caused by the state’s

delay. Prejudice may be shown by fading memory caused by lapse of time. In People v.

Jones, supra, 3 Cal.3d at page 740, the court found that the defendant was prejudiced by

a 19-month delay, holding, “[t]he most obvious prejudicial effect of the long pre-arrest

delay was to seriously impair his ability to recall and to secure evidence of his activities

at the time of the events in question.” (Ibid; see also People v. Hill (1984) 37 Cal.3d 491,

497-498 [fading memory of prosecution witness can support showing of prejudice];

Garcia v. Superior Court (1984) 163 Cal.App.3d 148, 151 [faded memory of defense

witness]; Ibarra v. Municipal Court (1984) 162 Cal.App.3d 853, 858 [even “minimal”

showing of prejudice in form of defendant’s fading memory sufficient to shift burden];

People v. Pellegrino (1978) 86 Cal.App.3d 776, 780 [faded memory of appellants after

17- to 24-month delay].)

       In the instant case, the subject crimes purportedly occurred between 2004 and

2008 and defendant’s arrest occurred nearly four years later in July 2012, 15 months after

the complaint was filed in April 2011. Defendant admits it is common for him to be

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affectionate with his family members but he denies remembering specific instances cited

by the victim and he clearly remembers never touching the victim with a prurient interest.

As the trial court acknowledged, it is plausible defendant’s memory has faded

significantly. The delay could impair his ability to recall and reconstruct activities

concerning the events in question. There may be no way of knowing or proving where

defendant was during the days and times of the alleged touching. Furthermore, defendant

had lost the ability to track down and secure the testimony of witnesses like his former

neighbors or the victim’s teacher to whom she confided.

       During the hearing, the court’s specific questioning about witnesses and the

difficulty posed to a defense makes it clear that the court was making a finding of actual

prejudice. Such a finding is supported by the vague nature of the conduct with which

defendant is charged. Defendant apparently habitually touched the victim’s leg while

driving. He gave her a massage without touching her breast. During horseplay in the

pool, he brushed against her twice, as well as touching her bottom while wrestling.

Finally—and perhaps most inappropriately—he may have tried to kiss her. But five of

the six kinds of incidents were ambiguous and capable of differing interpretations. If

defendant were to face trial now in 2013, it will have been between five and nine years

since the alleged crimes occurred, making it extremely hard to defend against them.

B. Justification For Delay

       Because defendant established and the court found actual prejudice, the next step

is to consider the reasonableness of delay. In Jones v. Superior Court, supra, 3 Cal.3d

734, the state made efforts to locate the defendant, including going to his apartment on

                                             10
three occasions, asking a woman at the location if she knew his whereabouts, obtaining

information about a different address, going to that address and receiving no answer,

obtaining information about where the defendant was taking classes and staking out the

premises on two occasions, telling the director of the location where he took classes that

law enforcement was looking for him, and speaking to the defendant in a telephone

conversation. However, the court concluded although the defendant knew that the police

suspected him of a narcotics offense, “he did not know when or how they believed the

crime was committed, and since at this stage of the proceedings the case has not been

tried and he must be presumed to be innocent, we cannot assume that he knew the details

of the crime charged from his commission of it. He was under no legal obligation to go

to the police station, and his failure to appear cannot justify an otherwise unreasonable

delay in apprehending him. Indeed the prejudice to his ability to reconstruct his activities

at some unknown date before he knew he was suspected of some offense may well have

been compounded by a false sense of security induced by the failure of the police to

follow up the telephone conversation with him for 19 months. Petitioner was not in

hiding and his whereabouts could have been discovered by a routine, uncomplicated

investigation. In far less time than 19 months he could have reasonably assumed that the

police no longer had an interest in him.” (Id. at p. 741.)

       In the instant case, there was no evidence defendant knew there were charges

pending against him. The police made one telephone call in 2010 and made a few more

attempts to find defendant before the complaint was filed in 2011 but not after. The

explanation that the police could not find a correct address for defendant was

                                             11
contradicted by the record that shows he was identified as living in Oceanside and then

San Marcos. When the complaint was filed in April 2011, defendant was living at the

San Marcos address listed on his driver’s license, he was paying taxes and child support,

and still sharing visitation of his child with the victim’s mother, who must have known

where he lived. Nevertheless, the prosecution did not try to find defendant or notify him

of the charges against him after the complaint was filed. In fact, defendant was only

located fortuitously because he applied to be a citizen.

       The prosecutor admitted defendant did not know about the charges. The

prosecutor blamed the lack of police manpower but admitted that was not an excuse for

failing to pursue a case or locate a suspect when a complaint has been filed. The People’s

weak investigation and prosecution suggest it was not a significant case.

       The record shows the trial court did balance the prejudice to defendant against the

justification for the delay, as well as considering the seriousness of the criminal charges.

There was no valid police purpose warranting a delay of almost three years between the

time of the initial report and the time of defendant’s arrest, and a 15-month delay between

the filing of the complaint and his arrest. The delay was prejudicial because defendant’s

memory had faded and he has lost contact with witnesses. Therefore, the trial court did

not abuse its discretion in granting defendant’s motion to dismiss.




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                                           IV

                                     DISPOSITION

      The trial court found actual prejudice to defendant and no justification for the

delay in prosecution. We conclude there was no abuse of discretion and affirm the

judgment.

      NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                               CODRINGTON
                                                                                         J.

We concur:


RAMIREZ
                       P. J.


MILLER
                          J.




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