P. v. Grecu
Filed 6/14/07 P. v. Grecu CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SIXTH APPELLATE DISTRICT
Plaintiff and Appellant,
MICHAEL JOHN GRECU,
Defendant and Respondent.
(Santa Clara County
Super. Ct. No. CC476643)
This People's appeal is taken from an order dismissing charges against defendant Michael Grecu. The trial court concluded that defendant's "due process rights to a speedy trial" had been violated based on this court's decision in People v. Martinez (1995) 37 Cal.App.4th 1589. For reasons that follow, we disagree with the trial court and reverse the trial court's order.
At approximately 9 p.m. on June 25, 2004, Peter Mainwald was battered outside his residence at 228 Carlton Avenue in Los Gatos. According to Mr. Mainwald, defendant struck him in the face with his fist, breaking his nose in two places. Defendant continued to hit him in the face and the back of the head. Then, defendant kicked Mr. Mainwald in the ribs and face. Eventually, defendant placed a chokehold on Mr. Mainwald, but Mr. Mainwald broke free and escaped back to his apartment.
While Mr. Mainwald was on the phone to the police, defendant "took off" on a red motorcycle.
Defendant sent a Penal Code section 1381 demand form dated August 16, 2004, to the Santa Clara County District Attorney's Office wherein he claimed that he had been sentenced "to a term of 2yrs" after being "convicted of the crime of P.C. 11378." In this demand form, defendant stated under penalty of perjury that he believed that criminal action was pending against him in Santa Clara County for violations of "HS 11377, HS 11364." Defendant referenced a police report "# 04-207-0496."
Defendant sent another Penal Code section 1381 demand form dated August 29, 2004, to the Santa Clara County District Attorney's Office. This time he claimed that he had been sentenced "to a term of 2 yrs" after being "convicted of the crime of HS 11351.5 meth." In this demand form, defendant stated that he believed criminal action was pending against him in Santa Clara County for "P.C 245." The demand form referenced the number "04-1643" and "LGPD."
On August 31, 2004, the District Attorney's Office responded to defendant's first demand form stating that there were no outstanding warrants pending against defendant in Santa Clara County. The letter referenced the San Jose Police Department report #04-207-0496 and noted that no formal charges had been filed.
On September 15, 2004, the District Attorney's Office responded to defendant's second demand form stating that there were no outstanding warrants pending against defendant in Santa Clara County. The letter referenced the Los Gatos Police report
#04-1643 and noted that no formal charges had been filed.
On December 28, 2004, the District Attorney's Office issued a felony complaint in the current case. Defendant was charged with one count of violating Penal Code sections 242 and 243, subdivision (d). The complaint alleged that in the commission of the offense the defendant personally inflicted great bodily injury within the meaning of Penal Code sections 667 and 1192.7. In addition, the complaint alleged that defendant had suffered a prior strike conviction within the meaning of Penal Code section 667, subdivisions (b)-(i) and 1170.12 and three prison priors within the meaning of Penal Code section 667.5, subdivision (b). An arrest warrant was requested.
On January 19, 2005, the Los Gatos Police Department received the arrest warrant and mailed three letters to defendant notifying him of the outstanding arrest warrant. The letters were sent to each of the addresses that they had on file for defendant.
Defendant was arrested on the warrant on February 18, 2005. The People claim that he was out of custody at the time of his arrest. Defendant does not dispute this fact.
Following a preliminary hearing held on April 8, 2005, defendant was held to answer. Subsequently, the District Attorney's Office filed an information charging defendant with one count of battery causing serious bodily injury (Pen. Code, 242 and 243, subd. (d)), and one count of assault with a deadly weapon or by force likely to cause great bodily injury. (Pen. Code 245, subd. (a)(1).) The information contained the same allegations as the complaint.
On July 5, 2005, defendant moved to dismiss the case for "DUE PROCESS AND PENAL CODE SECTION 1381 VIOLATION."
On July 22, 2005, the motion was argued before the Honorable Judge Randolf Rice. The People called Ms. Bonnie Eckert, the custodian of records at the Los Gatos Monte Sereno Police Department, to testify as to how expeditiously the warrant was served once the complaint was filed. She told the court that her department received the warrant on January 19, 2005 and it was entered into the "Wanted Person System" on January 24, 2005. The reverse side of the arrest warrant indicates that letters were sent to defendant on January 19, 2005. At the end of the hearing, Judge Rice stated that he would make a written ruling.
In a written ruling filed on July 26, 2005, Judge Rice granted defendant's motion on the ground that defendant's "due process rights to a speedy trial were violated." Judge Rice found that defendant had shown "pre-accusation prejudice in that the People waited nearly four months from the date of Defendant's first 1381 demand to file the complaint in this case. Defendant lost the ability to serve concurrent time during this period. (People v. Salvador Martinez (Sixth Dist. 1995) 37 Cal.App.4th 1589.) The People provide no justification whatsoever for the delay and acknowledge that they had received the police report in this matter some two month before Defendant made his first 1381 demand. Therefore, the People were well aware of both Defendant's in-custody prison status and the pending charges against him in this case at the time Defendant made his 1381 demands. As the People have failed to justify the delay, the balancing test required under Scherling v. Superior Court (1978) 22 Cal.3d 493, 504-505 weighs in favor of Defendant."
The People filed a notice of appeal on July 29, 2005.
On appeal, the People raise two issues they ask this court to resolve. First, "[i]n the context of California's non-statutory speedy trial law, does the due process (fair trial) test set forth in People v. Denise Martinez (2000) 22 Cal.4th 75 apply to a defendant against whom no complaint has been filed but who is in custody on another case?" Second, "[d]oes the possibility of loss of concurrent sentencing on a case not yet filed qualify as due process (fair trial) prejudice?" We answer the first question in the affirmative and the second in the negative.
Standard of Review
We review the trial court's factual findings for substantial evidence and its legal rulings de novo. (See Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 800; Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632.) Ordinarily, a trial court's legal reasoning is not reviewable on appeal. (People v. Penoli (1996) 46 Cal.App.4th 298, 305.) An exception is made, however, when the court's comments unambiguously disclose that its ruling rested upon a misunderstanding of the law. (Id. at pp. 305-306.)
Federal and State Constitutional Rights to a Speedy Trial
"The state and federal Constitutions both guarantee criminal defendants the right to a speedy trial (U.S. Const., 6th Amend.; Cal. Const., art. I, 15, cl. 1), and both guarantees operate in state criminal prosecutions [citation], but there are two important differences in the operation of the state and federal constitutional rights as construed by our courts." (People v. Martinez, supra, 22 Cal.4th 750, 754.)
"The first difference concerns the point at which the speedy trial right attaches. Under the state Constitution, the filing of a felony complaint is sufficient to trigger the protection of the speedy trial right. [Citations.] Under the federal Constitution, however, the filing of a felony complaint is by itself insufficient to trigger speedy trial protection. [Citation.] The United States Supreme Court has defined the point at which the federal speedy trial right begins to operate: '[I]t is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment.' [Citation.]" (People v.Martinez, supra, 22 Cal.4th at pp. 754-755.)
"The second difference is in the showing that a defendant must make to obtain a dismissal for violation of the speedy trial right. For the federal Constitution's speedy trial right, the United States Supreme Court has articulated a balancing test that requires consideration of the length of the delay, the reason for the delay, the defendant's assertion of the right, and prejudice to the defense caused by the delay. [Citation.] Because delay that is 'uncommonly long' triggers a presumption of prejudice [citation], a defendant can establish a speedy trial claim under the Sixth Amendment without making an affirmative demonstration that the government's want of diligence prejudiced the defendant's ability to defend against the charge. [Citation.] Under the state Constitution's speedy trial right, however, no 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, supra, 22 Cal.4th at p. 755.)
Fifth Amendment Right to Due Process of Law
In addition to a speedy trial right, the Fifth and Fourteenth Amendments of the United States Constitution guarantee a defendant in a criminal case due process of law. The due process clause has been held to protect criminal defendants against oppressive delay between the alleged commission of the offense and its prosecution. (United States v. Lovasco (1977) 431 U.S. 783, 788 (97 S.Ct. 2044), rehg. den., 434 U.S. 881.)
In United States v. Marion (1971) 404 U.S. 307 (92 S.Ct. 455), the United States Supreme Court considered the significance, for constitutional purposes, of a lengthy preindictment delay. The Supreme Court held that as far as the Speedy Trial Clause of the Sixth Amendment is concerned, such delay is wholly irrelevant, since its analysis of the language, history, and purposes of the Clause persuaded it that only "a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge . . . engage the particular protections" of that provision. (Id. at p. 320.) The Supreme Court went on to note that statutes of limitations, which provide predictable, legislatively enacted limits on prosecutorial delay, provide " 'the primary guarantee against bringing overly stale criminal charges.' " (Id. at p. 322.) However, the Supreme Court did acknowledge that the "statute of limitations does not fully define [defendants'] rights with respect to the events occurring prior to indictment," and that the due process clause has a limited role to play in protecting against oppressive delay. (Id. at p. 324.)
In People v. Archerd (1970) 3 Cal.3d 615 (Archerd), the California Supreme Court considered what rules should apply when an accused claims there has been an unreasonable delay in arresting and charging him. The Archerd court held that the speedy trial right had no application to such a claim. "One does not become an accused until the filing of a complaint. The provisions of the Sixth Amendment contemplate a pending charge, not the mere possibility of a criminal charge." (Id. at p. 639.) Nevertheless, the California Supreme Court found that due process could be violated by a "preindictment delay" if the delay "were purposeful, oppressive, and even 'smack of deliberate obstruction on the part of the government' . . . ." (Id. at p. 640.)
In Scherling v. Superior Court, supra, 22 Cal.3d 493 (Scherling), the California Supreme Court affirmed the determination in Archerd, that due process is the appropriate test to be applied to a delay occurring after a crime is committed but before a formal complaint is filed or the defendant is arrested. (Id. at p. 505.) The Scherling court noted, "regardless of whether defendant's claim is based on a due process analysis or a right to a speedy trial not defined by statute, the test is the same, i.e., any prejudice to the defendant resulting from the delay must be weighed against justification for the delay." (Ibid.)
We note that the People and defendant agree that in this case defendant's Sixth Amendment right to a speedy trial is not implicated. As defendant points out, this case "involves only a delay between the identification of an individual as the probable perpetrator of an offense and the filing of criminal charges by the responsible prosecutorial agency. As such, it implicates due process guarantees rather than speedy trial rights." Further, defendant concedes that he is not entitled to any presumption of prejudice. Rather, he asserts that he was required to establish prejudice in order to succeed in his motion to dismiss.
In this case, the issue is whether a defendant may establish prejudice by demonstrating that the delay between identifying him as the possible perpetrator of a crime and the filing of charges cost him the opportunity to serve a sentence for the charged crime concurrently with the sentence being served in another case.
As noted, in concluding that the defendant in this case had established prejudice, the trial court relied on this court's decision in People v.Martinez, supra, 37 Cal.App.4th 1589.
Recently, however, the California Supreme court disapproved that decision in People v. Lowe (2007) 40 Cal.4th 937 (Lowe). In Lowe, the Supreme Court rejected the defendant's contention that under California's speedy trial right, a pending criminal charge must be dismissed solely because the delay in bringing the defendant to trial has cost the defendant the chance to serve the sentence on that charge concurrently with the sentence in another case. (Id. at p. 945.)
Nevertheless, this court's decision in People v.Martinez, supra, 37 Cal.App.4th 1589 and the California Supreme Court's decision in Lowe, supra, 40 Cal.4th 937 were decided under the speedy trial right provided by the California Constitution. (People v. [Salvador] Martinez, supra, 37 Cal.App.4th at pp. 1593-1596; Lowe, supra, 40 Cal.4th at pp. 939, 946.) The speedy trial right provided by the California Constitution is modeled on the United States Constitution and " 'reflects the letter and spirit of' the Sixth Amendment . . . ." (People v. Wilson (1963) 60 Cal.2d 139, 144, fn. 2.) However, as noted, here we are not concerned with either the federal or state speedy trial right, but with due process guarantees.
Accordingly, we must decide if the loss of the possibility of concurrent sentencing constitutes a denial of due process of 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 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.] A claim based upon the federal Constitution also requires a showing that the delay was undertaken to gain a tactical advantage over the defendant. [Citations.]" (People v. Catlin (2001) 26 Cal.4th 81, 107 (Catlin).)
The due process right protects the fairness of the trial itself. (United States v. MacDonald (1982) 456 U.S. 1, 8 (102 S.Ct. 1497); see United States v. Lovasco, supra, 431 U.S. 783, 790.) "The harm to the accused from extended pretrial delays has been compared to the harm from governmental suppression of material witnesses or evidence. (United States v. Marion, supra, 404 U.S. at p. 324 . . . ; see also People v. Alvarado (1968) 258 Cal.App.2d 756 . . . .)" (Serna v. Superior Court (1985) 40 Cal.3d 239, 269.) Similarly, the California Supreme Court has observed that " '[p]rejudice may be shown by loss of material witnesses due to lapse of time [citation] or loss of evidence because of fading memory attributable to the delay.' [Citation.]" (Catlin, supra, 26 Cal.4th at p. 107.)
"A prosecutor is entitled to reasonable time in which to investigate an offense for the purpose of determining whether a prosecution is warranted . . . ." (Archerd, supra, 3 Cal.3d at p. 640.) Furthermore, " '[p]rosecutors 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 . . . . 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.]" (Catlin, supra, 26 Cal.4th at p. 109.)
In People v. Martinez, supra, 22 Cal.4th at page 767 the California Supreme Court reaffirmed that the right to due process "protects a criminal defendant's interest in fair adjudication by preventing unjustified delays that weaken the defense through the dimming of memories, the death or disappearance of witnesses, and the loss or destruction of material physical evidence." In other words, due process protects fair trial rights and not sentencing considerations. Since defendant's claim of prejudice rested entirely on the loss of the possibility of serving concurrent time, the trial court abused its discretion in granting defendant's motion to dismiss.
As the Lowe court noted, "[t]he likelihood of serving a sentence on a pending charge concurrently with a sentence already being served in another case is speculative. Sometime imposition of concurrent sentences is legally barred. (See, e.g., 667.6, subd. (d); 1170.12, subds. (a)(6)-(a)(8).) Even when concurrent sentences are permitted, they often are not imposed because of the presence of certain aggravating factors. (Cal. Rules of Court, rule 4.425.)" (Lowe, supra, 40 Cal.4th at p. 496.)
Accordingly, we must reverse the Superior Court's ruling granting defendant's motion to dismiss and order the trial court to reinstate the charges against defendant.
The judgment is reversed and the matter is remanded to the trial court to reinstate the charges against defendant.
RUSHING, P. J.
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 The background facts are taken from the preliminary hearing transcript.
 Pursuant to Penal Code section 1381, " [w]henever a defendant has been convicted, in any court of this state, of the commission of a felony . . . and has been sentenced to and has entered upon a term of imprisonment in a state prison . . . and at the time of the entry upon the term of imprisonment . . . there is pending, in any court of this state, any other indictment, information, complaint, or any criminal proceeding wherein the defendant remains to be sentenced, the district attorney of the county in which the matters are pending shall bring the defendant to trial or for sentencing within 90 days after the person shall have delivered to said district attorney written notice of the place of his or her imprisonment or commitment and his or her desire to be brought to trial or for sentencing unless a continuance beyond the 90 days is requested or consented to by the person, in open court, and the request or consent entered upon the minutes of the court in which event the 90-day period shall commence to run anew from the date to which the consent or request continued the trial or sentencing. . . ."
 It appears that the Los Gatos Police Department forwarded the results of their investigation to the Santa Clara County District Attorney on July 16, 2004 requesting issuance of a complaint. Furthermore, since defendant is alleged to have committed the crime in the instant case in June 2004, it appears that at the time he sent his demand letters defendant was not serving a two-year sentence for his other convictions, but was serving time on a parole violation.
 It appears the court filed the warrant on December 30, 2004.
 Judge Rice held that the provisions of Penal Code section 1381 did not apply because no charges were pending against defendant at the time of his Penal Code section 1381 demands.
 We recognize that People v. Martinez, supra, 22 Cal.4th 750 deals with the speedy trial guarantees under the federal and state Constitutionsrights which attach after formal charges have been brought against a defendant. (Id. at p. 755.)
 In Archerd, there was an 11-year delay between the first of a series of murders committed by the defendant and the time an indictment was filed against him. The delay was caused by the absence of a scientific test to confirm the suspicion of the police that the defendant had murdered his victims by the injection of insulin. The California Supreme Court rejected the claim that the defendant was deprived of a speedy trial and determined that the test to be applied in assessing the delay was whether he had been denied due process of law. The Supreme Court affirmed the conviction, concluding that the defendant had demonstrated neither prejudice nor a delay that was unreasonable or deliberate. (Archerd, supra, 3 Cal.3d 615, 620, 639-640, 643.)
 In People v.Martinez, supra, 37 Cal.App.4th 1589, the defendant was arrested in March 1991 for possession of heroin, but he was released without being booked. Four months later, he was arrested for an unrelated offense that resulted in a conviction and a prison sentence of three years. In the spring of 1992, he was charged with possession of heroin based on the March 1991 arrest. Although an arrest warrant was issued, the prison where he was serving his sentence for the crime unrelated to the pending charge was apparently not notified of the warrant. While in prison, the defendant asked a prison legal counselor if there were any holds or warrants against him; the counselor determined there were none. In September 1993, after being released on parole, he was arrested for a new offense. In addition, he was charged with possession of heroin based on the March 1991 incident. He moved to dismiss the heroin charge, claiming a violation of his speedy trial rights. As to prejudice, he alleged only that the delay prevented him from serving his heroin possession sentence concurrently with the three-year prison sentence in the unrelated case. The trial court granted his motion to dismiss. The prosecution appealed. This court affirmed the trial court's dismissal of the heroin possession charge. In so doing, we rejected the prosecution's claim that the defendant's showing of prejudice was inadequate for failure to show "prejudice to a fair trial, as generally manifested by missing witnesses or evidence of failing memories." (Id. at p. 1594.)