People v. Abraham

• Decision Date: 29 September 1986
• Citation: 185 Cal.App.3d 1221,230 Cal.Rptr. 325
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Arthur Rohith ABRAHAM, Defendant and Respondent. A033425.

Page 325

230 Cal.Rptr. 325

185 Cal.App.3d 1221

The PEOPLE of the State of California, Plaintiff and Appellant, v. Arthur Rohith ABRAHAM, Defendant and Respondent.

A033425.

Court of Appeal, First District, Division 4, California.

Sept. 29, 1986.

Review Denied Jan. 28, 1987.

John K. Van de Kamp, Atty. Gen., John W. Runde, Deputy Atty. Gen., San Francisco, for plaintiff and appellant.

Frank O. Bell, Jr., State Public Defender, Theresa B. Doyle, Deputy State Public Defender, San Francisco, for defendant and respondent.

SABRAW, Associate Justice.

The People appeal from an order dismissing several refiled charges against respondent Arthur Rohith Abraham on the ground that trial thereof would violate respondent's due process right to a speedy trial. The question presented is whether

criminal charges that have been dismissed due to the victim's reluctance to proceed can be reinstituted after the victim is murdered by the accused. We answer this question in the affirmative and therefore reverse the order of dismissal.

BACKGROUND AND PROCEDURE

All of the charges filed against respondent pertain to Mary G., who was the victim and the complaining witness on the refiled charges. At a preliminary examination conducted on these latter charges in August of 1984, Ms. G. testified as follows:

She and respondent had lived together since 1977. They produced a son, N. Ms. G. left respondent in May of 1984, taking N. with her. Shortly thereafter respondent was awarded legal custody of N. On July 15th of that year Ms. G. went to respondent's apartment to retrieve some belongings and visit N. Once she was inside the apartment respondent produced a revolver, pointed it at her face, and told her that "he meant business." Respondent also stated that "he hadn't made love to a woman for over two months and he wanted to make love to me like he had never made love to me before." They went to a bedroom, where respondent tied up Ms. G. with rope. According to Ms. G., respondent "did oral on me ... went down on me." "After that was over he got on top of me and put his penis inside my vagina, ... and then he got on his knees and put his penis inside my mouth and ... ejaculated inside my mouth."

As a result of this incident respondent was charged with forcible rape (Pen.Code, § 261, subd. (2)), ¹ felony false imprisonment ( §§ 236, 237), and two counts of forcible oral copulation ( § 288a, subd. (c)), all of which involved his personal use of a firearm. ( §§ 1203.06, 12022.3, 12022.5.) Ms. G. was subsequently awarded exclusive legal custody of N. Sometime in September of 1984 Ms. G. advised the district attorney that she had reconciled with respondent and did not wish to proceed with prosecution of the charges. On September 26th the trial court granted the district attorney's motion to dismiss the charges against respondent for lack of prosecution.

The following events occurred in 1985:

Mary G. was killed on March 29th. She was pregnant at the time of her death. In June the district attorney filed complaints which included all of the recently dismissed charges plus charges of murder ( § 187) and causing a miscarriage. ( § 274.) As with the original charges, both of the new charges included allegations that respondent had personally used a firearm during the commission of the offense. ( §§ 1203.06, subd. (a)(1)(i), 12022.5.)

A second preliminary examination was conducted on August 5th. After hearing testimony from the deputy district attorney who had been responsible for the prosecution and dismissal of the original charges, and after taking judicial notice of a transcript of the first preliminary examination, the magistrate ordered respondent held to answer on the original charges. The magistrate denied a motion by respondent to dismiss these charges for delay amounting to a denial of respondent's right to a speedy trial.

On September 13th respondent noticed a "Motion to Dismiss For Lack of Speedy Trial." On October 10th the trial court conducted a hearing on the motion and granted it by minute order. This timely appeal followed. ²

REVIEW

The parties are in general agreement that the relevant timeframe is the period between dismissal of the original charges and their refiling nine months later. This period is not governed by constitutional guarantees of a speedy trial (U.S. Const., Amend. VI; Cal. Const., art. I, § 15) or by statutes providing for prompt adjudication of criminal charges. (See §§ 686, subd. 1, 1382.) Whether this delay commanded dismissal is instead to be measured by the far reaching but less specific requirements of due process. (United States v. MacDonald (1982) 456 U.S. 1, 7-8, 102 S.Ct. 1497, 1501-02, 71 L.Ed.2d 696; United States v. Marion (1971) 404 U.S. 307, 313, 320-324, 92 S.Ct. 455, 463-65, 30 L.Ed.2d 468; Scherling v. Superior Court (1978) 22 Cal.3d 493, 504-505, 149 Cal.Rptr. 597, 585 P.2d 219; People v. Bradford (1976) 17 Cal.3d 8, 18, 130 Cal.Rptr. 129, 549 P.2d 1225; People v. Price (1985) 165 Cal.App.3d 536, 540-541, 211 Cal.Rptr. 642; see United States v. Lovasco (1977) 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752; People v. Archerd (1970) 3 Cal.3d 615, 91 Cal.Rptr. 397, 477 P.2d 421.)

Before proceeding to a consideration of the merits, we first address a claim by the Attorney General that the trial court's dismissal was somehow defective because respondent's motion "should not have been entertained before trial." This claim is based upon People v. Price, supra, 165 Cal.App.3d 536, 211 Cal.Rptr. 642, wherein the court, in a virtually identical context, stated: "The appropriate time to seek relief from the prejudice resulting from prosecutorial delay is during or after trial when the claimed denial of due process can be appraised in the light of what the trial discloses. (People v. Archerd, supra, 3 Cal.3d 615, 641 [91 Cal.Rptr. 397, 477 P.2d 421].) The possible, or even likely deterioration of witnesses' memories, apparently relied on by the court below, is at this point in time speculative and at best a premature consideration. It is insufficient to support a trial court's finding of denial of due process. (United States v. Marion, supra, 404 U.S. 307, 326 ... )" (Id., at p. 542, 211 Cal.Rptr. 642 [emphasis added].) We cannot treat these comments as controlling.

The court in Archerd stated: "It is proper for the trial court to wait to appraise the reasonableness of the delay in light of what would be disclosed at and after the trial, which places him in an excellent position to rule on a renewed motion. [Citation.] That is what the court did here.... it reserved its ruling until the end of the trial." (People v. Archerd, supra, 3 Cal.3d 615 at p. 641, 91 Cal.Rptr. 397, 477 P.2d 421.) We read this as approval for a trial court deferring its ruling until completion of trial. But it is not authority for the propositions that dismissal may not be sought before trial or that a ruling must be held in abeyance until that time. The Price court's construction of Archerd is also defective insofar as it failed to take account of the Supreme Court's subsequent statement "the right to speedy trial is one which must be asserted prior to the actual commencement of trial, usually by means of a motion to dismiss." (Morse v. Municipal Court (1974) 13 Cal.3d 149, 156, 118 Cal.Rptr. 14, 529 P.2d 46 [emphasis added]; accord In re Yurko (1974) 10 Cal.3d 857, 866, 112 Cal.Rptr. 513, 519 P.2d 561 ["claim of denial of a speedy trial ... must be made by pretrial motion"]; People v. Wilson (1963) 60 Cal.2d 139, 146, 32 Cal.Rptr. 44, 383 P.2d 452 ["The right to a speedy trial must therefore be asserted ... prior to the commencement of trial"].) The Price court's reading of Marion is correct, although we take i Marion to state a rule of federal appellate practice (see United States v. Lovasco, supra, 431 U.S. 783 at pp. 788-789, fn. 7, 97 S.Ct. 2044 at pp. 2048, fn. 7, 52 L.Ed.2d 752; cf. Luce v. United States (1984) 469 U.S. 38, 39-43, 105 S.Ct. 460, 462-64, 83 L.Ed.2d 443, 447-448) which cannot override our Supreme Court's explicit approval of litigating speedy trial claims by pretrial motion.

Price is also factually distinguishable. The purported ground for dismissal there was the "deterioration of witnesses' memories." Here, the memory of the sole percipient witness other than respondent was not merely subject to hypothetical "deterioration," but was instead obliterated by her murder. This was fully demonstrable on a pretrial motion, thereby obviating any benefit from deferring a ruling until completion of trial. Not only was the issue ripe for decision, the ruling eventually made spared all concerned the necessity of a potentially futile trial. The trial court was fully justified in ruling on the pretrial motion made by respondent.

For each and both of these reasons Price will not be followed, and we conclude that the merits of the issue are now properly before us. It is to those merits that we now turn.

This court in People v. Lawson (1979) 94 Cal.App.3d 194, 198, 156 Cal.Rptr. 226, stated that delay occurring before the filing of an information will not be presumed prejudicial and that a due process claim was to be examined according to this analysis: "First, the defendant must show that he has been prejudiced by the delay. Second, the burden then shifts to the prosecution to justify the delay. Third, the court balances the harm against the justification." (Accord People v. Hartman (1985) 170 Cal.App.3d 572, 579, 216 Cal.Rptr. 641; People v. Reeder (1984) 152 Cal.App.3d 900, 909-910, 200 Cal.Rptr. 479.)

The first factor, prejudice, is a question of fact to be determined by the trial court. (People v. Hill (1984) 37 Cal.3d 491, 499, 209 Cal.Rptr. 323, 691 P.2d 989; People v. Cave (1978) 81 Cal.App.3d 957, 965, 147 Cal.Rptr. 371.) With respect to the second factor, "the appraisal of the reasonableness of the delay is ordinarily confided to the trial court's discretion." (People v. Washington (1979) 95...