Filed 8/7/26 P. v. Flores CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G064794
v. (Super. Ct. No. 23CF3252)
RODOLFO GUSTAVO FLORES, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County,
Terri K. Flynn-Peister, Judge. Affirmed.
Kristen Owen, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Arlene A. Sevidal, Assistant Attorney General,
A. Natasha Cortina and Alan L. Amann, Deputy Attorneys General, for
Plaintiff and Respondent.
* * *
A jury found defendant Rodolfo Gustavo Flores guilty of
committing lewd acts on two girls three years apart, one in 2016 and one in
2019. He was sentenced to three years, eight months in prison. Defendant
contends the trial court erred in denying his motion to dismiss the 2016
charge on the grounds (1) the eight-year delay between the time the offense
was committed and the charge was filed violated his state and federal
constitutional rights, and (2) law enforcement destroyed potentially
exculpatory evidence relating to the 2016 incident without justification and
in bad faith. Finding no error, we affirm.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
I.
2016 INCIDENT: COUNT 1
Just before 5:00 a.m. on August 14, 2016, a man later identified
as defendant entered a bedroom where 11-year-old S.M. was half-asleep, put
his bare hand under her clothes, and touched her thigh and buttocks. S.M.
sat up and saw the person who had touched her. This occurred while S.M.
was staying overnight at a residence in Moreno Valley in the County of
Riverside. Defendant’s sister and mother were babysitting S.M. and her little
sister that night in the home of defendant’s parents, where defendant was
living at the time. He had been up with members of his family drinking until
approximately 3:00 a.m. Immediately after defendant touched her, S.M.
called her mother, told her what had happened, and exchanged text messages
with her. That same day, S.M. spoke to deputy sheriffs from Riverside
County. The deputies showed her three photographs of the men who were at
2
the home at the time of the incident: one of defendant, one of defendant’s
brother, and one of defendant’s father. S.M. identified defendant from the
1
photograph as the man who molested her.
The Riverside Sheriff’s department arrested defendant and
referred the case to the Riverside County District Attorney’s office, which
2
elected not to pursue charges. There was no further investigation into the
case involving S.M. Two years later, in August 2018, some of the evidence
relating to the investigation was destroyed, including two CDs, miscellaneous
documents and photos, and recordings of the deputies’ initial contacts at the
scene. The destroyed materials included the photographs of defendant’s
father and brother that were shown to S.M. and audio recordings of
interviews with defendant, S.M., and S.M.’s mother.3 But not all the
investigative material was destroyed; some was maintained, including police
reports, the photograph of defendant that had been shown to S.M., and a
1
According to the deputy who showed S.M. the photographs, she
identified defendant within three seconds. She also pointed him out to her
mother when she arrived that morning to pick her up, saying “That’s him,”
and later identified defendant in person at his trial in 2024. S.M. testified she
had seen defendant’s father and brother before the incident and was certain
it was not them.
2
Both parties assume the District Attorney’s office declined to
prosecute the case based on its belief the evidence was insufficient at that
time to support a conviction.
3
According to defendant’s counsel, it is not clear what exactly
was included in the items that were destroyed because police did not
document the contents before destroying them.
3
screenshot from S.M.’s mother’s phone showing a text message between them
on the day of the incident.
II.
2019 INCIDENT: COUNT 2
After the incident involving S.M., defendant moved from Moreno
Valley to Riverside to live with his girlfriend, Catherine. On the night of
4
March 30, 2019, Catherine’s 15-year-old cousin, A.M., and defendant both
attended A.M.’s quinceañera, which was held in the backyard of A.M.’s home
in Santa Ana. Defendant was drunk. At approximately midnight, A.M. went
to bed in her bunk bed. While A.M. was lying on the top bunk facing the wall,
defendant entered the room, put his hand under her clothes, and touched her
buttocks. A.M. saw the man who touched her and recognized him as
defendant, who she knew to be Catherine’s boyfriend. A.M. told her mother
what happened, and the mother confronted defendant, who denied doing
anything to A.M. The incident was reported to police a month later on April
24, 2019.
After an approximate two-year delay in the investigation, police
interviewed A.M. in August 2021. They were unable to contact defendant
until November 20, 2023, and when they did, he admitted he was at the
quinceañera that night and had touched A.M. in her bedroom while she was
lying on the top bunk, although he said he accidentally did so after losing his
4
Although the last initial of the two victims’ names is the same,
they are not related.
4
balance. Police asked defendant if he had ever been accused of molestation
before, and he told them about the 2016 incident involving S.M.
III.
CHARGES AND DEFENDANT’S MOTION TO DISMISS
On November 28, 2023, the Orange County District Attorney’s
Office filed a felony complaint charging defendant with one count of
committing a lewd act on S.M., a child under the age of 14 (Pen. Code, § 288,
subd. (a); Count 1) and one count of committing a lewd act on A.M. (Pen.
5
Code, § 288, subd. (c)(1); Count 2). The preliminary hearing took place on
June 28, 2024, and defendant was held to answer. On July 8, 2024, the
People filed an information charging defendant with the same two counts.
On September 23, 2024, defendant filed a motion to dismiss the
information in its entirety on the grounds he had been denied due process
and a speedy trial pursuant to both the federal and state constitutions. As to
Count 1, defendant contended his rights to a speedy trial and due process
were violated due to the eight-year delay in filing charges against him.6
With respect to Count 1, the trial court ruled defendant had no
right to a speedy trial because defendant was never charged with the crime
5
The Orange County District Attorney’s Office obtained authority
from the Riverside County District Attorney’s office to assume jurisdiction
over and prosecute the 2016 case involving S.M. in Orange County.
6
Defendant also moved to dismiss Count 2 relating to the 2019
offense on the ground his due process rights were violated due to the delay
from the time the crime was reported to the time the investigation was
completed and a warrant was issued for defendant’s arrest. Defendant makes
no contention on appeal of unconstitutional delay in connection with Count 2,
but instead contends the delay in charging the 2016 incident prejudiced
defendant’s ability to defend against both charges.
5
7
during the eight-year delay. As to the due process argument, the trial court
found defendant had not demonstrated actual prejudice from the delay and,
even if prejudice had been shown, the prosecution showed good cause to
justify the delay in prosecution. The court denied the motion, but without
prejudice to the defense showing prejudice during trial.
Defendant’s motion also sought dismissal of the information
pursuant to California v. Trombetta (1984) 467 U.S. 479 (Trombetta) and
Arizona v. Youngblood (1988) 488 U.S. 51 (Youngblood) based on law
enforcement’s destruction of certain investigative materials relating to the
2016 incident.8 The trial court denied the motion, finding defendant had not
shown bad faith on the part of law enforcement in destroying the evidence,
defendant’s contention the evidence may have contained exculpatory material
was based on speculation, and both S.M. and S.M.’s mother would be
testifying at trial. The court stated it would permit defense counsel to
question police at trial about the destruction of evidence and would consider
giving jury instructions pertaining to the issue.9
The jury found defendant guilty on both counts on October 3,
2024. The trial court sentenced defendant to the low term of three years for
7
Defendant does not contest on appeal the trial court’s ruling
that there was no violation of his right to a speedy trial.
8
We cannot ascertain from the record whether it was law
enforcement personnel or the Riverside District Attorney’s office that
destroyed the materials relating to the investigation, but that is not relevant
to our analysis and conclusions. For ease of reference, we refer generally to
law enforcement when we discuss the destruction of the materials.
9
Ultimately, no jury instructions were requested or given on this
issue.
6
Count 1 and one-third the midterm of eight months for Count 2, to run
consecutively. Thus, the overall sentence was three years, eight months in
state prison.
DISCUSSION
I.
PRECHARGING DELAY REGARDING THE 2016 OFFENSE
Defendant contends the trial court’s denial of his motion to
dismiss the charge in Count 1 based on an eight-year precharging delay
constitutes reversible constitutional error. We disagree.
Both the United States and California constitutions protect
criminal defendants from “unjustified and prejudicial” precharging delay.
(People v. Nelson (2008) 43 Cal.4th 1242, 1250 (Nelson).) A defendant
asserting such a claim must demonstrate prejudice arising from the delay.
(Ibid.) Although prejudice may arise from “‘the loss or destruction of material
physical evidence,’” prejudice is not presumed and must be affirmatively
supported by specific facts. (Ibid.) A claim of prejudice may not be based on
mere speculation. (People v. Abel (2012) 53 Cal.4th 891, 909.)
Even when a defendant can show some prejudice from
precharging delay, “‘[t]he prosecution may offer justification for the delay,
and the court . . . balances the harm to the defendant against the justification
for the delay.’” (Nelson, supra, 43 Cal.4th at p. 1250.)10 There are “three types
10
As explained in Nelson, “[t]he state and federal constitutional
standards regarding what justifies delay differ. Regarding the federal
constitutional standard . . . ‘[a] claim based upon the federal Constitution
also requires a showing that the delay was undertaken to gain a tactical
advantage over the defendant.’” (Nelson, supra, 43 Cal.4th at p. 1251.)
Because “the law under the California Constitution is at least as favorable for
defendant in this regard as the law under the United States
Constitution. . . . we can and will apply California law.” (Ibid.) The parties
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of reasons for delay by the People in bringing charges to assess whether there
has been a due process violation: ‘[p]urposeful delay,’ ‘negligent’ delay, and
‘investigative delay.’” (People v. McInnis (2025) 115 Cal.App.5th 1259, 1289,
citing Nelson, supra, 43 Cal.4th at pp. 1255–1256.) “Under the California
standard, ‘negligent, as well as purposeful, delay in bringing charges may,
when accompanied by a showing of prejudice, violate due process.” (People v.
Cowan (2010) 50 Cal.4th 401, 431.) “‘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.’” (Ibid.)
Whether a delay was prejudicial to the defendant is a question of
fact. (People v. Dunn–Gonzalez (1996) 47 Cal.App.4th 899, 911–912.) We
review the trial court’s ruling for abuse of discretion, deferring to any
underlying factual findings made by the court so long as they are supported
by substantial evidence. (People v. Cowan, supra, 50 Cal.4th at p. 431.)
We first address defendant’s assertion of prejudice. In addition to
the passage of time and its potential impact on the memories of witnesses,
defendant contends law enforcement’s destruction of the investigative
materials relating to the 2016 incident prejudiced his ability to defend the
case because the destroyed material “likely was exculpatory.” We find no
agree the standard is more stringent under federal law, which requires that
defendant show intentional conduct by the prosecution in order to gain some
tactical advantage. The trial court denied defendant’s motion on the grounds
it did not meet either the federal or state standards. Defendant does not
dispute the portion of the ruling on appeal denying the motion under federal
law.
8
error in the trial court’s conclusion that defendant’s claim of prejudice is
speculative. In addition, the court denied the motion to dismiss without
prejudice and invited defendant to explore at trial potential prejudice arising
from the destruction of the materials. He was unable to do so.
For instance, defendant’s counsel elicited testimony at trial about
law enforcement’s destruction of evidence relating to their investigation,
including the recording of what S.M. and her mother told police that day, the
recording of defendant’s police interview, photographs of the scene, the
photographs of defendant’s brother and father that were shown to S.M., and
other possible text messages exchanged between S.M. and her mother that,
according to defendant, might have corroborated testimony from defendant’s
family that S.M. was homesick and wanted to go home. But there was
nothing elicited at trial or otherwise contained in the record below indicating
any of the destroyed materials may be exculpatory. (See People v. Lewis
(2015) 234 Cal.App.4th 203, 212 [defendant’s contention that lost records
“might have contained information he could have used to impeach” victim
inadequate to establish actual prejudice for due process violation].)
In addition, defendant was able to mitigate any potential
prejudice at trial. All individuals with knowledge of facts relating to the 2016
incident—including S.M., S.M.’s mother, defendant, and defendant’s
relatives—testified at trial, and defendant made no assertion that any
witness with information regarding the incident was unavailable or unable to
testify due to the passage of time. During trial, defense counsel fully
examined witnesses and argued about S.M.’s credibility, including the
possibility she concocted the accusation because she was homesick and just
9
wanted to go home. Defense counsel also exposed multiple inconsistencies in
S.M.’s testimony and statements to police.
Even assuming for the sake of argument that defendant
established a minimal amount of prejudice due to the destruction of the
investigative materials, the record shows a strong justification for the
prosecution’s delay in bringing charges, which heavily outweighs any
potential prejudice. After S.M. accused defendant of molesting her and the
Riverside County District Attorney’s office declined to prosecute, defendant
committed a nearly identical act of molestation just three years later in 2019.
That conduct constituted new evidence that bolstered the 2016 case. We
agree with the People that, with defendant’s molestation of A.M. in 2019,
there was a profound and qualitative shift in the strength of the evidence
against defendant as to the 2016 case, particularly given the sexual nature of
both offenses, the similar means by which defendant molested both victims,
the lack of any familial relationship between the victims, and the cross-
admissibility of sexual offense evidence under Evidence Code section 1108.
Indeed, defendant’s molestation of A.M. in 2019 was admissible
to show defendant’s propensity to commit the 2016 crime against S.M. “In a
criminal action in which the defendant is accused of a sexual offense,
evidence of the defendant’s commission of another sexual offense or offenses
is not made inadmissible by [Evidence Code] Section 1101, if the evidence is
not inadmissible pursuant to Section 352.” (Evid. Code, § 1108, subd. (a).)
Here, the jury was instructed that proof beyond a reasonable doubt that
defendant committed the 2019 case allows the jury to “conclude from that
evidence that the defendant was disposed or inclined to commit sexual
offenses, and based on that decision, also conclude that the defendant was
10
likely to commit and did commit the other sex offense [i.e., the 2016 incident]
charged in this case.” (See CALCRIM No. 1191B.)
In a recent decision by our colleagues in the Fourth Appellate
District, Division One, the court held that a 27-year delay in charging a
defendant with murder was justified where the evidence was insufficient to
charge him until, many years later, forensic technology and funding for cold
case investigations became available and enabled the prosecution to identify
the defendant as a suspect and establish his guilt through a DNA comparison
analysis. (People v. McInnis, supra, 115 Cal.App.5th at p. 1313.) The fact that
the inculpatory evidence was not available until years later constitutes
“investigative [delay] and weighs heavily in favor of the prosecution in the
balancing test.” (Id. at p. 1309.) In fact, “‘[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.’” (Nelson, supra, 43 Cal.4th at p. 1256.).
We find no error in the trial court’s determination that no due
process violation occurred as a result of the precharging delay in this case.
II.
LAW ENFORCEMENT’S SELECTIVE DESTRUCTION OF
INVESTIGATIVE MATERIALS FROM THE 2016 INCIDENT
Citing Trombetta, supra, 467 U.S. 479, and Youngblood, supra,
488 U.S. 51, defendant contends law enforcement’s destruction of potentially
exculpatory evidence violated his constitutional rights and the trial court
therefore erred in denying defendant’s motion to dismiss the information. We
11
review the court’s order denying the motion for substantial evidence (People
v. Duff (2014) 58 Cal.4th 527, 549 (Duff)), and find no error.
“‘Due process does not impose upon law enforcement “an
undifferentiated and absolute duty to retain and to preserve all material that
might be of conceivable evidentiary significance in a particular prosecution.”’
[Citations.] At most, the state’s obligation to preserve evidence extends to
‘evidence that might be expected to play a significant role in the suspect’s
defense.’ [Citations.] If the evidence’s exculpatory value is apparent and no
comparable evidence is reasonably available, due process precludes the state
from destroying it.” (Duff, supra, 58 Cal.4th at p. 549.)
“[I]f the best that can be said of the evidence is that it was
‘potentially useful,’ the defendant must also establish bad faith on the part of
the police or prosecution.” (People v. Alvarez (2014) 229 Cal.App.4th 761, 773;
see Youngblood, supra, 488 U.S. at p. 58 [bad faith required for a
constitutional violation for failure to preserve potentially exculpatory
evidence].) The Youngblood standard does not require a finding that law
enforcement acted with any kind of malicious intent. Instead, the standard
simply requires that law enforcement recognized the potentially exculpatory
value of the evidence it failed to preserve. (People v. Beeler (1995) 9 Cal.4th
953, 976 [the duty to preserve “‘necessarily turn[s] on the police’s knowledge
of the exculpatory value of the evidence at the time it was lost or
destroyed’”].) When evidence is only potentially useful to the defense, the
state’s failure to preserve it does not violate due process unless “the police
themselves by their conduct indicate that the evidence could form a basis for
12
exonerating the defendant [citation] and [nevertheless] fail to preserve it.”
(People v. Alvarez, supra, 229 Cal.App.4th at p. 777.)
The trial court denied defendant’s motion on the grounds that
(1) he failed to show bad faith relating to the destruction of the evidence, and
(2) he failed to show by anything other than speculation that the materials
had exculpatory value that was apparent before the evidence was destroyed
and the materials were of such a nature defendant would be unable to obtain
comparable evidence by other reasonably available means. The court denied
the motion without prejudice to the defense questioning witnesses at trial
about information that was destroyed.
Substantial evidence supports the trial court’s conclusion there
was nothing more than speculation supporting defendant’s contention that
the investigative materials destroyed in 2018 possessed exculpatory value
that was apparent before they were destroyed.11 (Trombetta, supra, 467 U.S.
at pp. 488–490.) And even assuming for the sake of argument the materials
contained information potentially useful to the defense, there is nothing in
the record to indicate the destruction was in bad faith. Following its
investigation into defendant’s alleged touching of S.M., the Riverside County
Sheriff’s department referred the matter for prosecution to the Riverside
County District Attorney’s office, which elected not to pursue charges against
defendant. It was two years after that decision that the materials were
destroyed. The only reason the 2016 case ended up being charged was
because defendant committed a similar act in 2019, prompting the Orange
11
During the hearing on defendant’s motion, the trial court
stated its belief that the information destroyed likely would be helpful for the
prosecution, but what it may have contained and its exculpatory value to the
defendant is speculative.
13
County District Attorney’s office to obtain the transfer of jurisdiction to
prosecute the case.
Defendant argues that law enforcement’s selective preservation
of only certain materials, such as defendant’s photograph shown to S.M. but
not the photographs of defendant’s brother and father, and the failure to
maintain a record of what was destroyed shows the materials had apparent
exculpatory value. Defendant also argues that destroying evidence just two
years after the incident occurred and before the statute of limitations had run
constitutes bad faith. We disagree with both contentions and agree with the
trial court’s conclusion they are based purely on speculation.
DISPOSITION
The judgment is affirmed.
GOODING, J.
WE CONCUR:
MOTOIKE, P. J.
DELANEY, J.
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