People v. Allen

• Decision Date: 24 August 1979
• Docket Number: Cr. 18356
• Citation: 158 Cal.Rptr. 54,96 Cal.App.3d 268
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Edward Ike ALLEN, Jr., Defendant and Appellant.

Page 54

158 Cal.Rptr. 54

96 Cal.App.3d 268

PEOPLE of the State of California, Plaintiff and Respondent, v. Edward Ike ALLEN, Jr., Defendant and Appellant.

Cr. 18356.

Court of Appeal, First District, Division 3, California.

Aug. 24, 1979.

Hearing Denied Oct.18, 1979.

Quin Denvir, State Public Defender, Clifton R. Jeffers, Chief Asst. State Public Defender, Harriet Wiss Hirsch, Carol Jean Ryan, Deputy State Public Defenders, San Francisco, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., W. Eric Collins, Alvin J. Knudson, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

FEINBERG, Associate Justice.

Appellant was charged by information with a violation of Penal Code section 475a (possession of a completed check with intent to defraud). Thereafter he filed a motion to dismiss for denial of right to speedy trial. A two-day evidentiary hearing was held, at the conclusion of which the motion was denied.

Appellant waived his right to trial by jury and submitted the matter on the transcript of the preliminary examination. He was found guilty as charged. His appeal is now before us raising the sole issue that appellant was denied a speedy trial.

The Facts

Some checks were stolen from the business office of the College of Marin. On November 11, 1976, an individual attempted to cash one of the checks at a branch of the Bank of America in Novato, Marin County. The check was made out to "Edward Allen" and bore the forged signature of the college's business officer. A teller refused to cash the check because the individual had only one piece of identification. Later that day, the same or conceivably a different individual, presented the check and two pieces of identification, a driver's license and a fishing license to another teller who, after having compared the photograph and signature on the driver's license to the appearance of the individual and the endorsement on the check, cashed it. A few days later, the first teller identified appellant from photographs as the person who attempted to cash the check and did so as well when conditionally examined under Penal Code section 1335. It does not appear that she ever identified appellant "in person," because she did not testify at the preliminary examination and appellant waived his right to be present at the conditional examination. The second teller, however, could not identify appellant as the utterer of the check. The check had appellant's name written on it, the address of 550 Weber Lane, Santa Rosa, ¹ and a telephone number.

On the motion to dismiss, the evidence taken indicated the following: In November and December 1976, a sergeant for the Novato Police Department (Marin County) called the number twice and spoke to an unidentified person who informed him that appellant was not present but that he would give appellant a message to call the sergeant. Appellant did not return the call. The sergeant received a copy of appellant's driver's license showing his address to be 1 Laredo, Rohnert Park. On the basis of these facts, the sergeant "felt that either Mr. Allen was not at that address or the persons at that address were harboring Mr. Allen," so he did not visit it.

The sergeant wrote a report and sent it to the Department of Justice which sent him a report in January 1977. These reports were sent by the sergeant to the Marin County District Attorney's office which filed a complaint and obtained an arrest warrant in March 1977.

A warrants clerk for the Novato Police Department received the warrant and information from the sergeant that there was no current address for appellant. She checked the available computer systems and found only the Weber Lane address. Accordingly, she did not direct service of the warrant but entered it into the "PIN" and "CLETS" computer networks. On May 7, 1977, she checked again for a different address for appellant and found none. She did the same in November 1977. The result was the same, causing her to conclude that, if appellant were not living at the Weber Lane address, he continued to use it. She therefore requested the Sonoma County Sheriff to attempt service of the warrant at that address. A deputy went to that address in November or December 1977 and finding no one at home inquired of "a couple neighbors" who did not seem to know appellant.

Appellant was arrested in Sonoma County on other warrants in January 1978. He was in custody for 12 days. No computer check was done for other outstanding warrants. ² Appellant gave as his address at that time 550 Weber Lane.

In February 1978, the Novato warrant clerk learned of the January arrest and again requested Sonoma County to serve the warrant. A deputy went to 550 Weber every day from February 21 to 25, 1978, and on the last day spoke to appellant's father who informed him that appellant did not always stay there but was living in the Petaluma area. On March 1, 1978, the deputy, who was able to recognize appellant on sight, arrested him at a grocery store in Santa Rosa a couple of blocks from his father's home. Appellant gave the Weber Lane address.

Appellant testified that he was living with his father at 550 Weber at all relevant times except between June and November 1977, when he lived and worked in Nevada (during which time he kept his father informed of where he was staying and "called him about once a week.") Appellant's testimony was confirmed by his father. The father also testified that at some unspecified time, appellant spent a few months with his (appellant's) brother in Petaluma at an address known to the father and remained in daily contact with him. Appellant testified that he stayed with his brother a day or two at a time while living with his father.

Appellant testified further that not until March 1978 did he know of the March 1977 warrant. Appellant was not asked either on direct or on cross-examination any questions as to how he had been prejudiced by the delay. Thus there was no evidence at all of any actual prejudice to appellant before the court.

The trial court in denying the motion to dismiss stated, "I think, somewhat reluctantly, because I don't know whether there's that much excuse for the delay here and certainly more could have been done I don't think it's sufficient to dismiss the case for lack of prosecution."

Appellant claims that he has been deprived of due process of law and his right to a speedy trial because of the delay, approximately 16 months, between the commission of the crime and his arrest. In his argument, appellant, though recognizing the constitutional distinction between pre-complaint delay and pre-indictment delay, i. e., between due process rights and speedy trial rights, glides over certain distinctions and treats both kinds of delay as though they were one.

We proceed to discuss the law on the effect of state delay in the initiation and prosecution of a criminal charge as it impinges on the defendant's right to due process and speedy trial. Our discussion will focus primarily on the issue of prejudice. ³ For analytical purposes, we deal with each constitutional right separately.

I. Delay and Due Process of Law

The law is clear that a delay between the commission of a criminal offense and the arrest of or the filing of a criminal charge against the alleged perpetrator (whichever comes first) ⁴ may operate to deprive the defendant of due process but it does not involve speedy trial constitutional issues of law. (People v. Archerd (1970) 3 Cal.3d 615, 639-640, 91 Cal.Rptr. 397, 477 P.2d 421.) In such a case, the accused must "show two things in order to invoke an exercise of the court's supervisory power because of alleged basic 'unfairness' resulting from claimed delay in his arrest: that there was no legitimate reason for the delay, And that he was prejudiced by the delay. Appellant bears the burden of establishing such claim." (Emphasis added.) (Id., at p. 640, 91 Cal.Rptr. at 413, 477 P.2d at 437.) Recently, in Scherling v. Superior Court (1978) 22 Cal.3d 493, 149 Cal.Rptr. 597, 585 P.2d 219, the holding in Archerd was affirmed though phrased in different terms. There, the court said, "We reject defendant's suggestion that we hold a presumption of prejudice arises whenever there is a delay between the commission of a crime and the time a formal charge is filed." (id., at p. 504, fn. 8, 149 cal.rptr. at p. 604, fn. 8, 585 P.2d at p. 226, fn. 8.)

Ultimately, in determining whether a defendant has been denied a "fair trial," i. e., due process, the trial court must weigh the justification for the delay against the prejudice suffered by the defendant by reason of the delay. (Scherling v. Superior Court, supra, 22 Cal.3d at p. 505, 149 Cal.Rptr. 597, 585 P.2d 219.)

II. Delay and Speedy Trial

A. Post-Indictment Delay. ⁵ It is equally clear that where there is post-indictment delay, prejudice to the defendant is presumed. The burden is then upon the People to show good cause for the delay. If the People cannot show good cause, then the defendant has been denied a speedy trial and the action must be dismissed; there is No balancing of the justification for the delay against the prejudice to the defendant. But prejudice is presumed in such a situation because the Legislature has implemented the speedy trial guaranty of the California Constitution (art. I, § 15) and Penal Code section 686, subdivision (1), by enacting Penal Code section 1382, subdivision (2) providing that a defendant must be brought to trial within 60 days of the indictment or information, and if not so brought to trial, the action must be dismissed unless good cause is shown to the contrary. (Sykes v. Superior Court (1973) 9 Cal.3d 83, 89, 106 Cal.Rptr. 786, 507 P.2d 90; Harris v. Municipal Court (1930) 209 Cal. 55, 61, 285 P. 699.)

B. Pre-Arrest Delay. California has extended the protection of the guaranty of a speedy...