People v. Dontanville

• Decision Date: 24 August 1970
• Docket Number: Cr. 16700
• Citation: 89 Cal.Rptr. 172,10 Cal.App.3d 783
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Anthony David DONTANVILLE, Defendant and Appellant.

Page 172

89 Cal.Rptr. 172

10 Cal.App.3d 783

The PEOPLE of the State of California, Plaintiff and Respondent, v. Anthony David DONTANVILLE, Defendant and Appellant.

Cr. 16700.

Court of Appeal, Second District, Division 5, California.

Aug. 24, 1970.

Hollopeter & Terry and Harvey A. Schneider, Pasadena, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Howard J. Schwab, Deputy Atty. Gen., for plaintiff and respondent.

KAUS, Presiding Justice.

This is an appeal from a judgment of conviction of a violation of section 288 of the Penal Code. The circumstances surrounding the conviction are as follows:

On July 31, 1967, the offense charged in the present case was committed upon Kelly Lee Hopper.

On September 18, 1967, defendant was arrested and charged with the August 9, 1967, murder of two young girls, the Barili sisters.

On September 28, 1967, Kelly Lee Hopper and three of her brothers identified defendant by picking his photograph from a set of thirteen assembled from a file of about one hundred fifty by Sergeant Koury of the Los Angeles Sheriff's Office.

Defendant's trial on the murder charges started November 20, 1967. Kelly Lee Hopper, her mother, and her stepbrother, Raymond Marlow, testified at that trial on November 21, 1967. Defendant was convicted of murder in the first degree. Defendant obtained new counsel, moved for and was granted a new trial on the murder charges. After a month long trial a jury found him not guilty. No evidence concerning the instant charge was presented at the second murder trial. Following his acquittal defendant was committed to department 95 of the superior court where proceedings were conducted to determine whether he was mentally ill. Defendant was adjudicated sane. He was then arrested on the instant charge on a complaint filed April 23, 1968, which resulted in an information filed May 28, 1968.

Following the verdict in the instant case, criminal proceedings were adjourned and mentally disordered sex offender proceedings instituted. Defendant was found to be a probable mentally disordered sex offender and was ordered committed to Atascadero State Hospital for ninety days. He was returned to the court as unsuitable for hospital treatment. Criminal proceedings were reinstated and defendant was sentenced to state prison.

FACTS

On July 31, 1967, at about 11:00 a.m., Mrs. Audrey Hopper went to Legg Lake Park in the County of Los Angeles. With her were six children: ¹ Danny Hopper, age 11, Glen Marlow, age 10, Mark Hopper, age 8, Raymond Marlow, age 8, Kelly Lee On September 28, 1967, Glen, Mark, Raymond and Kelly identified defendant's picture as being one of the man in the park. All five children identified defendant at the trial.

Hopper, age 7, and Curtis Hopper, age 4. Mrs. Hopper sat on the grass with Curtis. The other five children left her presence and went to play elsewhere in the park. A man approached the five children and asked them to help him find his dog. He offered a fifty cent reward. He directed the three older boys to go in one direction and said he would take the younger ones and go in an opposite direction. The man took Kelly and Raymond by the wrist and walked a distance with them. He then left Raymond beside a tree and told him to stay there. The man walked away with Kelly. He took her behind some towers, squatted down in front of her, placed his hand inside her pants and rubbed her bare skin. He then took her to a tree, told her to wait there and walked off. Raymond meanwhile had run to his mother and told her a man had taken Kelly. Mrs. Hopper called the police. The older boys had become suspicious and had gone looking for Kelly. They found her hiding in some bushes, crying. Mrs. Hopper arrived at the scene at about the same time. Kelly said the man had put his hand inside her pants and rubbed her stomach. She repeated this complaint to her mother after they returned home at about 1:10 p.m.

Defendant attempted to establish an alibi defense.

DISCUSSION

1. Defendant claims that the People's delay in filing the charges in the instant case resulted in a denial of due process and of the right to a fair and speedy trial.

As defendant admits, the right to a speedy trial pertains to the time elapsing between the filing of a complaint, information or indictment and the time the defendant is brought to trial. (People v. Humphrey, 220 Cal.App.2d 451, 455, 33 Cal.Rptr. 822.) He contends, however, that an undue delay between the commission of the act and the filing of a complaint results in a denial of due process and of the right to a fair trial. A defendant's basic protection against unreasonable delay is, of course, the statute of limitations. (People v. Humphrey, Supra; People v. Aguirre, 181 Cal.App.2d 577, 579, 5 Cal.Rptr. 477.) In order to establish a denial of due process based upon a delay short of the statutory period the defendant must show that there was no legitimate reason for the delay and that he was prejudiced by it. (People v. Alvarado, 258 Cal.App.2d 756, 760, 66 Cal.Rptr. 41; People v. Gilmore, 239 Cal.App.2d 125, 129, 48 Cal.Rptr. 449.) Defendant has failed to carry that burden of proof.

Citing Ross v. United States, 121 U.S. App.D.C. 233, 349 F.2d 210 defendant claims that a showing of prejudice alone will suffice, even if the government's delay is based on a legitimate reason. Whether Ross so holds is doubtful. It appears that the court found the last three months of the delay to be unnecessary when viewed in the light of the particular circumstances of the case: that defendant had been convicted on the uncorroborated testimony of an undercover officer who, himself, had no recollection of the narcotics purchase he had made from defendant seven months before the arrest and whose testimony was admitted solely on the theory of 'past recollection recorded' in the agent's notebook. In any event Ross seems doubtful authority even in its own circuit: see Powell v. United States, 122 U.S.App.D.C. 229, 352 F.2d 705, 709. ² (See also People v. Campa, 1 Cal.App.3d 467, 469--470, 81 Cal.Rptr. 710.)

Here there were obvious and legitimate reasons for the delay. Had defendant been convicted of the murder charges and been sentenced to death or even to imprisonment for life, the present prosecution might have been regarded as futile since it could result in no greater punishment (Pen.Code § 669) and might never have been instituted, thereby sparing the victim of the instant offense the ordeal of testifying again.

Another legitimate reason for not filing a complaint on the present offense is this: it necessarily would have caused prejudicial publicity in connection with the murder trial. True, evidence of the July 31 incident was offered and admitted at the first murder trial, but that was done after the jury had been selected and only after the question of admissibility had, presumably, been ruled on by the court. Thereafter the presentation of this evidence was assigned as error on defendant's motion for a new trial. After that motion had been granted, the prosecution had to look forward to the necessity of picking another jury. Apparently at some time before the prosecution rested at the second murder trial, the decision had been made not to present Kelly's evidence. Since the People were so careful not to court error, it is perfectly understandable that they did not want to muddy the waters by the filing of the new complaint. The record before us contains a declaration signed by Joseph P. Busch, one of the prosecutors at the second murder trial. In this declaration he points out that the prosecution could have filed a 288 complaint before the second trial and attempted to consolidate the new charge with the pending one. If successful it might have been able to offer Kelly's evidence without having to rely on any 'common scheme or plan' theory. On the whole it seems that the prosecution leaned over backwards to be fair and that there was a legitimate reason for the delay.

We turn to prejudice. Defendant knew of the instant charges as early as November 20, 1967, when the first trial started. ³ His interest in refuting the charges was certainly as great, if not greater, at the murder trial as it was at the instant trial. He, therefore, could have begun to establish his alibi defense and line up his alibi witnesses as early as November 20, 1967. If he failed to do so, this failure is not the fault of the People. ⁴

With respect to the delay between September 28, 1967, the date defendant was identified as the prepetrator of the instant offense, and November 20, 1967, the date he learned of the accusation, any prejudice to the defendant is purely speculative. On that state of the record he cannot prevail. (Cf. United States v. Ewell, 383 U.S. 116, 122, 86 S.Ct. 773, 15 L.Ed.2d 627.)

2. Defendant contends that the photographic identification process by which the children identified him was unconstitutionally suggestive; that the People failed to prove by clear and convincing evidence that the in-court identification of defendant by the children was not tainted by the result of their exposure to the photographs; and that defendant was denied the right to counsel during the photographic identification. He argues that the court therefore should have suppressed the in-court identification.

With respect to the argument that defendant was denied the right to counsel the rule is otherwise. A photographic, as distinguished from an actual lineup, is not necessarily a critical stage at which the presence of counsel is required. This was established in Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247. There the Supreme Court recognized 'the hazards of initial identification by photograph' but said that any 'danger that use of the technique may result in convictions based on misidentification may be substantially lessened by a course of cross-examination at trial which...