Prosecution Must Justify a Delay in Charging a Defendant When Prejudice Has Been Shown

Dickerson v. Superior Court of Alameda Cty., 40 Cal. App. 5th Supp. 1, 252 Cal. Rptr. 3d 871, 874–82 (Cal. App. Dep’t Super. Ct. 2019)

Petitioners contend that delays in charging each of them resulted in a deprivation of due process rights under the California Constitution. In both cases, the trial court found that Petitioners suffered prejudice due to the prosecution’s delays in charging them. The trial court then erred in failing to require competent evidence justifying the delay by the prosecution.

People v. Buggs-Ten Month delay in filing of complaint

On October 26, 2017, California Highway Patrol officers arrested Ivory Maron Buggs for driving under the influence of alcohol and for driving on a suspended license. Buggs’ breath-test results showed a blood alcohol content of 0.14 percent.

The Alameda County District Attorney’s Office filed a criminal complaint against Buggs 287 days after the arrest… The complaint alleged counts for driving under the influence of alcohol, driving with a 0.08 percent or higher blood alcohol level, and driving with a suspended license. (Veh. Code § 23152(a), (b), & 14601.1.)

Motion to Dismiss Based On Pre-Accusation Delay

The trial court considered with whether Buggs suffered any actual prejudice as a result of the delay. (See Ibarra v. Municipal Court (1984) 162 Cal. App. 3d 853, 857) Buggs claimed his memory had faded, given the passage of time. The trial court found that given the minimal standard of Ibarra, Buggs had made a sufficient showing of actual prejudice to shift the burden.

 Burden Shifts to Prosecution to Justify the Delay

The trial court asked the People to justify the nearly ten-month delay. The deputy district attorney cited the number of cases it reviewed each year, 41,000. It stated that about 3,100 cases are reviewed per year per DA in order for charging. And that the case was reviewed within the statute of limitations. The public defender requested actual proof of the statistics given by the prosecution.

The Court then found that there was very weak proffer of actual prejudice although sufficient to shift the burden. It also found a very weak justification for the delay. Because there was no evidence of any purposeful delay for any tactical advantage, and the filing that was done well within the statute of limitations the court found no due process violation based upon the government’s conduct.

Petitioner filed a petition for a writ of mandate.

People v. Dickerson-over a year-long delay in filing misdemeanor case for gun possession

On March 23, 2017, a Fremont police officer arrested Dominique Dickerson for possessing a loaded firearm in a public place or vehicle. (Penal Code § 25805(a).)

On March 29, 2018 – 371 days later – the People filed a misdemeanor complaint charging Dickerson with carrying a loaded firearm in a vehicle in a city and carrying a concealed firearm in a vehicle, with a special allegation that Dickerson was not the registered owner of the firearm capable of being concealed. (Penal Code §§ 25850(a), (a)(1), 28550(c)(6).)

Motion to Dismiss based on 14-month Pre-accusation delay

Dickerson filed a motion to dismiss based on pre-accusation delay. He argued that he had suffered prejudice because the memory of the complaining witness had faded and because he could not locate a witness.

The trial court asked the deputy district attorney for information about the justification for the delay in filing a complaint. The District Attorney cited the number of felony cases that were filed as a reason for the delay. The trial court found a minimal prima facie case of actual prejudice, having to do with the loss of memory from the caller who reported Dickerson to the police.

The trial court found the justification does outweigh any potential and actual prejudice, and I’ll deny the motion at this point in time.

Petitioner filed a writ of mandate.

Writ of Mandate to review denial of motion to dismiss based on due process violation

Review of the denial of the motions to dismiss based on a violation of speedy trial rights by a writ of mandate is appropriate. (Serna v. Superior Court (1985) 40 Cal. 3d 239, 264 [reviewing felony speedy trial rights by writ]; Dews v. Appellate Division of the Superior Court (San Francisco) (2014) 223 Cal. App. 4th 660, 664 [reviewing speedy trial rights in misdemeanor case by writ].)

Although “[t]he due process right is distinct from a speedy prosecution complaint.” (Ibarra, 162 Cal. App. 3d at 857), the legal frameworks for analyzing both sets of rights, however, are substantially similar.

The California Constitution protects criminal defendants from “unreasonable delay between the time an offense is committed and an accusatory pleading is filed.” The Fifth and Fourteenth Amendments to the United States Constitution provide similar protection. “In the due process context, the issue is whether the defendant’s right to a fair trial has been impaired or prejudiced because of unreasonable delay.” (Ibarra, 162 Cal. App. 3d at 857)

Balance prejudice to the defendant resulting from the delay against justification for the delay

In the balancing process for pre-accusation delay, the defendant has the initial burden of showing some prejudice before the prosecution is required to offer any reasons for the delay.

Prejudice must be shown and may result from fading memory or loss of material evidence attributable to the delay “The overarching theme is that the loss of such evidence, especially when the defendant or victims cannot independently recall details of the crime, makes it difficult or impossible for the defendant to prepare a defense thus showing prejudice.” (People v. Mirenda (2009) 174 Cal. App. 4th 1313, 1328.)

Defendant must show actual prejudice

A defendant’s showing of prejudice must be supported by facts and not just bare conclusions. The defendant must show actual prejudice.  For example, in People v. Cordova, the California Supreme Court found the defendant had made no showing of “substantial prejudice” based on a claim that “some persons who assertedly could have supplied exonerating evidence had died.” (62 Cal. 4th at 120, 194) The Court explained, “the claimed prejudice is speculative. No reason exists to believe any of these witnesses would have supplied exonerating, rather than incriminating, evidence, or any evidence at all.”

Once the defendant makes a showing of prejudice, the burden then shifts to the prosecution to justify the delay and the court balances the harm against the justification.  The more reasonable the delay, the more serious the prejudice must be in order to state a constitutional violation that requires dismissal.

Due Process Violations Based on Pre-Accusation Delay Relies on a Balancing Test

The District Attorney may take a reasonable amount of time to investigate, determine whether to prosecute, and gather evidence. Investigative delay is typically the strongest justification for the passage of time between an arrest and the filing of charges. (People v. Nelson (2008) 43 Cal. 4th 1242, 1256)

The discretion and trust our system vests in the prosecution is why the test for assessing due process violations based on pre-accusation delay relies on a balancing test rather than on line-drawing based on statutes of limitations. (See Ibarra, 162 Cal. App. 3d at 858, 208 Cal.Rptr. 783 [“Even a minimal showing of prejudice may require dismissal if the proffered justification for delay be unsubstantial. By the same token, the more reasonable the delay, the more prejudice the defense would have to show to require dismissal. Therein lies the delicate task of balancing competing interests.”].)

Under California law, the trial court’s findings of prejudice shifted the burden to the People to provide a justification for the delay in filing the complaints. The trial court relied solely on attorney argument in finding an adequate justification. No evidence or declarations were submitted to support the justification offered by the district attorneys in these cases. The prosecutors gave no explanation about why these two cases were delayed many months.

No Competent Evidence to Justify the Delay

Evidence is at the core of our system of justice. It differentiates decision-making in court from decisions made in virtually any other forum. As we instruct our jurors:

The evidence that is presented in court can be tested; it can be shown to be right or wrong by either side; it can be questioned; and it can be contradicted by other evidence.

The statistics cited by the prosecution were not placed in the record as competent evidence in the trial court and are not properly before this one.

Conclusion

Substantial, competent evidence must support the alleged justification when evaluating whether a delay in prosecution is justified in the face of a finding of prejudice by the trial court,

Disposition

The court granted the Petitions and issue Writs of Mandate and directed the trial courts to consider the motions to dismiss anew. If the trial court finds that substantial, competent evidence supports the claim of prejudice, then substantial, competent evidence must be presented to support the alleged justification for the delay in charging the offenses. The trial court must then balance those factors to reach a decision on the motions.