P. v.
Filed 7/29/13 P. v. Hoover CA3
NOT TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE
PEOPLE,
Plaintiff and Respondent,
v.
BRADLEY
DEON HOOVER,
Defendant and
Appellant.
C069060
(Super. Ct. No. 11F02341)
In 1994, defendant Bradley Deon
Hoover kidnapped and murdered his victim.
He was first charged with these crimes in 1994, and was
incarcerated on an unrelated charge that same year, but his
proceed to jury trial until the year 2011--a 17-year delay. Before his trial commenced, he moved to
dismiss his case for dilatory prosecution.
The trial court denied his motion.
The jury found him guilty of
commission of the crime of kidnapping (count 1; Pen. Code,
190.2, subd. (a)(17)(B)) and kidnapping (count 2; § 207, subd. (a)), and
the trial court sentenced him to life in prison without possibility of
parole. Defendant appeals, contending
that the trial court erred by denying his pretrial motion to dismiss and the
delay in his prosecution deprived him of due
process. He adds that the jail
classification and booking fees imposed at sentencing should be stricken
because there was no showing he had the ability to pay. Disagreeing, we shall affirm the judgment.
1994-1995
The kidnapping and murder were
alleged to have occurred in Sacramento County on August
8, 1994,
but defendant was not immediately charged.
He was under investigation for an unrelated crime in
County as of March 1994 and was arrested in that case on October
20, 1994.
On November
1, 1994,
the People filed a felony complaint against defendant and Andrea Marie
Carvalho,
title="">[2] accusing both of the
murder and kidnapping of victim Michael Agustin. Carvalho’s preliminary hearing, held in
December 1994, ended in dismissal, with the magistrate finding insufficient
evidence on all counts.
name="_ftnref3" title="">[3] Defendant was not arraigned on the complaint
as his Solano County case was ongoing; he
was subsequently prosecuted, convicted, and sentenced to prison in the Solano County case.
On December
5, 1995,
the Sacramento County Sheriff’s Department filed a detainer against defendant,
notifying him of the present case and his right to request its disposition
under section 1381.
name="_ftnref4" title="">[4]
2011
On January
7, 2011,
defendant filed a demand for trial in the present case. On January
28, 2011,
the District Attorney’s investigator interviewed defendant in prison. Defendant told the investigator this case had
had “no bearing on [him] whatsoever for the last 16 years[,]†but he had filed
his request for trial now because he wanted to get a job in prison and the hold
on him from this case prevented it.
On February
7, 2011,
the court arraigned defendant on the original complaint; three days later, the
People filed an amended complaint, naming only defendant. He entered a plea of not guilty. On March 1,
2011,
the trial court held defendant to answer on the amended complaint, then deemed
it an information.
The People thereafter dismissed the
original case and rearrested defendant on March
29, 2011. Defendant waived
22, 2011,
the People filed a new information, case No. 11F02341.
On June 16, 2011, defendant filed a
“motion to dismiss or for other sanctions due to dilatory prosecution.†He argued that the People violated his speedy
trial rights under the California Constitution because the 17-year delay in
bringing the case to trial had prejudiced him by hindering his ability to
prepare his defense. As evidence, he
cited (1) his inability to recall the facts surrounding the alleged crimes; (2)
the alleged destruction of the preliminary hearing transcript in Carvalho’s
case; (3) the disappearance of witness John Wagner, who was never interviewed
by defense counsel; (4) the lack of any further investigation of the case since
defendant’s arrest in 1994 on the Solano County case; and (5) the
unavailability of witness Terry Walling.
Opposition
The People opposed the motion, arguing that because, aside
from Wagner and Walling (whose unavailability benefitted defendant), all material witnesses had been located and
subpoenaed, and all material physical evidence had been preserved, defendant
had not shown actual prejudice under the California Constitution.
Defendant cited the following as further evidence of
prejudice: (1) Wagner’s mother informed
the police in November 2009 that around the time Wagner disappeared, a cousin
named Sam Kissell had threatened to kill him over a drug debt; the police had
done nothing to follow up on this information, which might bear on Wagner’s
credibility.
title="">[6] (2) The police and the District Attorney’s
investigator had only just interviewed Dale Allbright, whose motorcycle broke
down near the Rio Vista Bridge around 2:00
a.m.
on August 9, 1994, and who was picked up
by an unidentified male in the only car Allbright had seen on the road that
evening. Timely investigation of his
story might have revealed that the unidentified male murdered the victim, or
led to the discovery that someone else other than defendant did so.
night of the crime had been destroyed or purged due to the passage of time.
The trial court ruled tentatively in
limine that defendant had shown “some evidence of actual prejudice†from the
delay in prosecution, based on the lack of a transcript of Carvalho’s
preliminary hearing and the destruction of the police dispatch logs.
in defendant’s briefing. It indicated it
did not find defendant’s claim of faded memory persuasive as to prejudice, but
that it might instruct the jury on faded memories and missing witnesses if the
evidence proved to warrant such instruction.
Having found prejudice from the
delay in prosecution, the trial court asked the prosecutor to justify the
delay. The court said it thought the
People might have been hoping witness Wagner would “resurface.†The prosecutor agreed: “That is the reason.†The trial court denied defendant’s motion to
dismiss, but left open the option to revisit the issue of “faded memories†if
warranted based on the evidence presented at trial.
Trial Evidence
On August 8, 1994, at 10:48
p.m.,
officers dispatched to a rural location near Rio Vista for a reported
pedestrian-vehicle accident found victim Agustin, fatally shot in the
head. Agustin had been shot first at one
location, then again at another location about 200 yards away, by a single
firearm.
title="">[9]
On the morning of August
8, 1994,
Agustin visited his sister, Cynthia Hylton, at her home in Vallejo. She knew he was “involved in the drug sceneâ€
and hung out at Terry Walling’s house.
He did not have a job or a regular place to live. He had become increasingly fearful and
paranoid in the last few months. He
arrived on a new motorcycle (which he did not have the money to buy, as far as
she knew) and put it in her garage; he also had a gun. He telephoned someone on her home phone,
yelling, “Hey, I told you not to tell†or “Why did you tell him?†He borrowed her car for a short time,
returned it, and left again.
Alfredo Ramirez, Agustin’s nephew,
saw Agustin on the afternoon of August 8, 1994.
Agustin’s behavior that he perceived to be related to methamphetamine use. Agustin called Ramirez from Hylton’s home,
asking for a ride in his car. Ramirez
took him to get money from someone, then drove him to Walling’s house and
dropped him off around 3:00 or 4:00
p.m. He did not see Agustin alive after that.
Terri Hussey, defendant’s friend, was
at Walling’s house, described as a “gathering place for people,†when Agustin
arrived. She had seen him there before,
but did not know him well.
Later, defendant came to the
house. After that, John Wagner (a drug
user who was down on his luck and living on the streets) arrived, but tried to
leave when he saw defendant. Defendant
said he needed to talk to Wagner and told him to sit down.
Defendant said something had
happened that he needed to talk about with Agustin. A “meeting†ensued, involving defendant,
Wagner, and Agustin, among others.
Defendant was the dominant person in the conversation.
“[T]earing up,†Agustin said to
Walling: “[P]lease don’t let him take
me. I don’t want to go. Help me.â€
Defendant, Wagner, and Agustin walked out of the house; defendant told
Agustin not to make a scene and to “act like it was a casual walk across the
street.†Several people were outside,
including Carvalho.
As defendant was leaving, Hussey
said to him: “I don’t know what’s going
on here, but is it as bad as what Don had did [sic][?]â€
name="_ftnref11" title="">[11] Defendant said it was worse. Hussey said she did not want to know any more
and went inside. After Wagner came to
the house and as he was leaving, Hussey saw a red convertible Chrysler LeBaron
parked outside. Wagner had borrowed a
red convertible Chrysler LeBaron from his friend in August 1994 and failed to
return it. It was later recovered,
inoperable, in Rio Vista.
The next day, police officers came
to the house. Hussey and the others
there denied any knowledge of what had happened to Agustin. Subsequently, Hussey had a conversation with
Patti Brown, at whose home she was staying.
According to Hussey, Brown said Carvalho, seeming “scared†and
“frantic,†had told Brown that she and defendant: “took [Agustin] to Yolo County out in the
slough, something like that. They shot
him. He was shot once in the head or
something, and then they drove off and then had a funny feeling and turned around
and came back and he had drug [sic]
himself up into the street and they shot him again.â€
On or around August 18, 1994,
Walling was arrested for a probation violation and held in custody in Fairfield. On August 25, 1994, Hussey called Detective
Richard Lauthier, the lead investigator on the case, and said she wanted to
make a statement. She went to the
place where Walling was being held and spoke privately with him. Thereafter, they made a joint videotaped
statement in which Hussey recounted the story she had heard from Brown.
20, 1994,
Lauthier interviewed Hussey alone. She
re-told the story she had heard from Brown.
On October
29, 1994,
Detective Lauthier interviewed Wagner.
On November 1, 1994, Wagner’s mother, who
knew he had been involved in the drug scene, saw him at a Motel 6 in Fairfield; he seemed scared, but
sober. She never saw him again. On December
16, 1994,
Wagner’s father filed a missing persons report naming him. Wagner’s mother notified the police around
that time that Wagner had been involved in a dispute with a relative.
District Attorney’s investigator Ron
Garverick testified that he had tried to determine Wagner’s whereabouts, but no
information subsequent to the missing persons report had turned up to indicate
that Wagner might still be alive. He
also tried to find Walling, who had left the state, but was unsuccessful.
Carvalho testified under a grant of
immunity. She denied that she or
defendant had anything to do with the death of Agustin. She claimed that on the day of the crime they
were eating dinner with her parents (now deceased).
Defendant did not present any
evidence.
Instruction
After the People rested,
observations from trial as further proof of prejudice from the delay and
renewed his request for dismissal: (1)
An officer who responded to the dispatch on the night of the crime testified
that he could not remember to whom he had spoken at the Rio Vista Police
Department, or whether it was that department or the California Highway Patrol
who had dispatched him. (2) Telephone
records showing with whom the victim spoke when he called from Cynthia Hylton’s
home on August 8, 1994, were no longer available. (3) It
was no longer possible to track down the person from whom the victim borrowed
money on that date. (4) Carvalho’s
parents, who might have been able to corroborate defendant’s alibi, were now
dead, and no one had ever taken statements from them.
The trial court did not explicitly
rule on the renewed request for dismissal, but indicated that it would inform
the jury regarding the lack of a transcript.
Ultimately,
the trial court instructed the jury:
“You have heard testimony in this case concerning the
government’s failure to preserve certain evidence. The failure of the government to preserve
this evidence may be relevant to the issues presented by this case. In evaluating the credibility and weight of
the evidence, you may consider the government’s failure to preserve certain
evidence, specifically the preliminary hearing transcript of People versus
Andrea Carvalho, December 8, 1994, and the dispatch record of various
government agencies to the scene of the incident which is the subject of this
case, the discovery of the body of Michael Agustin. [¶] From the fact that the government
did fail to preserve such evidence, you may draw an adverse inference against
the government, which may leave you with a reasonable doubt as to the
defendant’s guilt. It is for you to
determine whether to draw an adverse inference from the government’s failure to
preserve evidence. It is also for you to
decide the weight, if any, to be given to the government’s failure to preserve
such evidence.â€
I
Defendant first contends the trial
court erred by denying his pretrial motion to dismiss because he established
prejudice from the delay in prosecution and the People failed to justify the
delay; he further contends that the court’s instruction on the failure to
preserve evidence was an insufficient remedy.
The People respond that the record shows no prejudice to defendant from
the delay and, even if there were prejudice, the People’s justification was
sufficient. Defendant responds that a
holding of no prejudice would represent a factual finding contrary to the trial
court’s and the People have not made the appropriate arguments necessary to
obtain that result.
As we will explain, because we
conclude that defendant failed to show prejudice from the delay, we do not reach
his remaining contentions.
A. The Law
The state and federal Constitutions
guarantee a criminal defendant’s right to a speedy trial, and both guarantees
operate in state criminal prosecutions.
(Martinez, supra,
22 Cal.4th at p. 754.) Under the
federal Constitution, the speedy trial right takes effect only when the
defendant is formally charged by indictment or information, or when he is
arrested and held to answer. (
filing of a felony complaint triggers the speedy trial right. (Id.
at p. 754.)
Under state law, prejudice after the
filing of a complaint and before the filing of an indictment or information is
not presumed from the mere fact of delay.
The defendant must affirmatively demonstrate prejudice. (Martinez,
supra, 22 Cal.4th at p. 767; People
v. Mirenda (2009) 174 Cal.App.4th 1313, 1327 (Mirenda).) Once the
defendant has done so, the burden shifts to the People to justify the
delay. (Martinez, supra, 22 Cal.4th at pp. 766-767; accord,
937, 942 (Lowe).)
If the defendant shows even minimal
prejudice, and the People’s proffered justification for the delay is
insubstantial, dismissal may be required.
However, the trial court must balance the prejudice from the delay
against its alleged justification only if the defendant has shown actual
prejudice. (Lowe, supra, 40 Cal.4th at p. 942; Mirenda, supra, 174 Cal.App.4th at pp. 1327-1328.)
The same balancing test applies to
claims that the delay in prosecution resulted in a denial of the right to due
process and a fair trial under the state
and federal Constitutions. (
81, 107 (Catlin);
761, 772 (Boysen).)
Prejudice, under both the speedy
trial standard and the due process standard, may be shown from the loss of
evidence, whether from the loss of material witnesses or from fading memory
attributable to the delay, sufficient to hinder the defendant in preparing a
defense. (Catlin, supra, 26 Cal.4th at p. 107.)
We uphold the trial court’s ruling on appeal if supported by
substantial evidence. (
49 Cal.4th 846, 874; People v. Hill
(1984) 37 Cal.3d 491, 499.) If the
ruling is correct on any theory of law applicable to the case, it must be
sustained regardless of whether the court’s reasoning in support of the ruling
is correct. (Mirenda, supra, 174 Cal.App.4th at p. 1330.)
Ruling
Here,
the trial court found defendant had shown actual prejudice from the 17-year
delay in prosecution based on the lack of a transcript from Carvalho’s
preliminary hearing and the destruction of police dispatch logs from the date
of the crime. The absence of these items
at trial does not support a finding of prejudice.
First, the record does not show that
the lack of a transcript from Carvalho’s preliminary hearing is attributable to
the delay in prosecution. The People
declared that preliminary hearings where defendants were not held to answer
were not transcribed unless a party requested it. Defendant’s claim that a transcript once
existed but was destroyed was based only on a hearsay assertion by a person who
did not testify or submit a declaration on the motion to dismiss, as we
explained at footnote 8, ante.
Even were we to assume a transcript
did exist at one time, its absence at trial did not translate into a finding
that the delay in prosecuting defendant prejudiced
him. The People’s failure to show
probable cause to hold Carvalho over
had no apparent tendency to exculpate defendant. Although defendant asserted that Carvalho had
somehow impeached the version of events told by his accusers, he presented no
evidence in support of the assertion.
Nor did he explain how the
accusers’ version had been impeached, or why it was more difficult to impeach
that story in 2011 than in 1994. In
short, the absence of a preliminary hearing transcript in Carvalho’s case did
not establish that the delay in prosecution prejudiced defendant.
Similarly, the destruction of the
police dispatch logs did not establish prejudice. The police reports from 1994 were preserved,
and the officers who initially investigated the crime testified regarding the
details of their dispatch to the crime scene.
The record is devoid of an explanation for how the missing dispatch logs
could have even speculatively impeached the officers’ testimony regarding the
details of their dispatch to the murder scene, or how that testimony was even
relevant to the larger question of defendant’s culpability for the murder.
Further, we see no facts available
to the trial court that it could have properly cited to support a finding of
prejudice. The fact that two of the
three key witnesses against defendant (Wagner and Walling) were unavailable for
defendant’s trial in 2011 forced the People to rely entirely on the
double-hearsay account of Terri Hussey, whose credibility was suspect. The trial court properly discounted
defendant’s self-serving claim that his own memory had faded. Finally, defendant’s speculations about
failures to investigate the alleged threat to Wagner by his cousin, or the
possible role of the mystery man who picked up Dale Allbright somewhere in the
vicinity of the crime, did not tend to show that further investigation of these
matters in 1994 as opposed to 2011 would likely have produced anything helpful
to defendant.
In People v. Zapien (1993) 4
Cal.4th 929, 976, our Supreme Court upheld the trial court’s ruling to admit
evidence although the trial court gave an erroneous reason. The court noted: “‘No rule of decision
is better or more firmly established by authority, nor one resting upon a
sounder basis of reason and propriety, than that a ruling or decision, itself
correct in law, will not be disturbed on appeal merely because given for a
wrong reason. If right upon any theory of the law applicable to the case,
it must be sustained regardless of the considerations which may have moved the
trial court to its conclusion.’ [Citation.]†(D'Amico v. Board
of Medical Examiners (1974) 11 Cal.3d 1, 19.)
We conclude that the trial court’s
finding of prejudice was error. However,
the court properly denied defendant’s motion to dismiss.
reversed even though the trial court gave an incorrect
[Citation.]†(People v. Gilchrist (1982) 133 Cal.App.3d 38,
44.)
Since defendant failed to show
prejudice, we uphold the trial court’s ruling without considering the
prosecutor’s justification for the delay.
(See Lowe, supra,
40 Cal.4th at p. 942; Mirenda,
supra, 174 Cal.App.4th at pp. 1327-1328. ]
2. Motion for Reconsideration
Defendant’s later argument for
reconsideration based on evidence adduced at trial was similarly
unpersuasive. Although he cited one
failure of memory by a testifying officer, he failed to explain how that
failure of memory tended to prove prejudice from the delay in prosecution. Similarly, defendant’s references to persons
the victim contacted on the date of the crime that could not now be tracked
down and theory of third party perpetrators was entirely speculative and
undeveloped. Finally, the fact that
Carvalho’s alibi for defendant could not be corroborated by evidence from her
deceased parents was not proof of prejudice from delay, because there is no
reason to presume that they would have corroborated the alibi or that they
would have been credible had they done so.
Therefore, none of defendant’s arguments justified the requested relief
of dismissal.
II
Defendant contends that the trial court erred at sentencing
by imposing a $287.78 main jail booking fee and a $59.23 main jail
classification fee because the court did not find that he had the ability to
pay those fees. At the time of
sentencing, defendant did not object to the fees’ imposition.
The People argue defendant has
forfeited any challenge to the fees at issue because he raised no objection to
their imposition or amount in the trial court.
We agree. (People. v. McCullough
(2013) 56 Cal.4th 589, 597; see also People
v. Crittle (2007) 154 Cal.App.4th 368, 371.) Accordingly, we conclude defendant has
forfeited his claim.
The judgment is affirmed.
DUARTE , J.
We concur:
HULL , Acting P. J.
ROBIE , J.
name="_ftn1" title="">[1] Further undesignated statutory references are
to the Penal Code.
name="_ftn2" title="">[2] Carvalho later married defendant.
