People v. Luu

• Court: California Court of Appeals
• Writing for the Court: CAPACCIOLI; BRAUER, Acting P.J., and PREMO
• Citation: People v. Luu, 258 Cal.Rptr. 10, 209 Cal.App.3d 1399 (Cal. App. 1989)
• Decision Date: 31 March 1989
• Docket Number: No. H003827,H003827
• Parties: The PEOPLE, Plaintiff and Appellant, v. HEIN VAN LUU, Defendant and Respondent.

Page 10

258 Cal.Rptr. 10

209 Cal.App.3d 1399

The PEOPLE, Plaintiff and Appellant, v. HEIN VAN LUU, Defendant and Respondent.

No. H003827.

Court of Appeal, Sixth District, California.

March 31, 1989.

As Corrected April 27, 1989.

Certified for Partial Publication ^*

Review Denied June 22, 1989.

John K. Van de Kamp, Atty. Gen., and Steve White, John H. Sugiyama, Asst. Attys. Gen. and David D. Salmon, Gloria F. De Hart, Deputy Attys. Gen., San Francisco, for plaintiff and appellant.

Conflicts Admin. Program, Dallas Sacher, Santa Clara, for defendant and respondent.

CAPACCIOLI, Associate Justice.

Defendant Hein Van Luu was charged in an information with assault with a firearm. The superior court granted his motion to dismiss. (Pen.Code, § 995.) ¹ The People appeal from the order. ( § 1238, subd. (a)(1).) Defendant claimed in his motion that the magistrate denied him substantial rights at his preliminary examination by violating the 10-day rule set forth in section 859b and by negating opportunities to learn the address of the victim. We conclude that defendant was not denied a substantial right and therefore reverse.

STANDARD OF REVIEW

"It is settled that denial of a substantial right at the preliminary examination renders the ensuing commitment illegal and entitles a defendant to dismissal of the information on timely motion." (People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 523, 165 Cal.Rptr. 851, 612 P.2d 941.) Our review is an independent one where our task is to determine whether the defendant was denied a substantial right at the preliminary examination. (Id. at pp. 523-524, 165 Cal.Rptr 851, 612 P.2d 941; Wizar v. Superior Court (1981) 124 Cal.App.3d 190, 193-194, 177 Cal.Rptr. 88.)

FACTUAL BACKGROUND

At 2 a.m. on Halloween night, 1986, 16-year-old Tuan Ngo was leaving a pool hall with friends when defendant approached and asked if anyone had seen his sister. He addressed Ngo and repeated the question. Ngo responded no. Ngo had never seen defendant before. Ngo and his companions then departed in three automobiles. Defendant followed the group in his vehicle. Ngo was driving one of the automobiles and stopped at a gas station to ask defendant why defendant was following him. One of Ngo's friends made the inquiry and defendant related that he was looking for his sister. Ngo left the station and defendant continued to follow. Ngo drove to the home of one of his passengers and parked on the curb. Defendant parked in the middle of the street. Ngo got out of his car to approach defendant. Defendant lowered a window and shot Ngo in the stomach with a handgun.

PROCEDURAL BACKGROUND

Defendant's preliminary hearing was set for April 1, 1987 but was continued to May 8, apparently by stipulation. Defendant was out of custody on bail. On May 8 the prosecutor told the magistrate he was not ready to proceed because Ngo had not been located. He requested a continuance until at least May 14. He explained that the district attorney's investigator received the case on May 5 and, on May 6, learned that a realtor knew the whereabouts of a friend of Ngo. The realtor was out of town until May 11. Defendant's counsel objected to the prosecutor's request and asked that the case be dismissed. He argued that the prosecutor had not shown good cause for a continuance within the meaning of section 1050. According to defendant's counsel, the prosecutor had not demonstrated due diligence in attempting to locate Ngo and had not shown that Ngo could, in fact, be produced. The prosecutor indicated that the investigator believed Ngo was in the area and would be located as soon as Ngo's friend could be contacted. The magistrate found good cause and granted the prosecutor's request for a continuance. Defendant's counsel then stated he was unavailable until May 19 or 20. The magistrate therefore continued the preliminary hearing until May 20.

On May 20, 1987, the prosecutor informed the magistrate that Ngo was present and she was ready to proceed. However, defendant's counsel requested a two-week continuance for the purpose of talking to Ngo and his acquaintances. He stated that the district attorney's investigator refused to give him Ngo's address. The magistrate asked Ngo whether Ngo was willing to talk to defendant's counsel or investigator and Ngo stated, "No, I don't." Defendant's counsel responded to the magistrate: "I would still make the same request for a continuance, Your Honor, on the basis that in March I sent a letter to the District Attorney's office requesting names and addresses of all witnesses, including the victim. I still don't have that information. And even if this victim, alleged victim is not willing to talk to me, it seems to me there's still investigation that needs to be done with regard to this person's background and the background of other people that were with him that apparently, the District Attorney has not yet located, although we have an idea of the neighborhood that they lived in." The prosecutor responded as follows: "Your Honor, if anything is relevant, it would be the neighborhood of the victim, where the victim lived at the time of the incident and that was known to Counsel because all that is in the police report. The witnesses in the case, the names and identity of the victim were known to Counsel. I think Counsel believed that we would not be able to find the victim and that's why he was really not prepared to proceed today at all. We are ready to proceed." The magistrate then asked defendant's counsel the following question and received the following response: "You announced ready last time, Mr. Armstrong? [p] MR. ARMSTRONG: Yes, that's right. But that was after I had called the District Attorney's office every day that week and they--it was clear that they had no victim."

The magistrate assigned the matter to another department where defendant's counsel and the prosecutor reiterated the substance of their positions on the request for a continuance. The second magistrate ruled as follows: "I'm going to deny the request for continuance. I think the matter should proceed at this time for at least two reasons: One, I believe when the continuance was granted from May 8th to the 20th, it put both sides on notice that the matter was to proceed and that both sides would be ready. Your representation, Mr. Armstrong, that you would not be ready until the 20th and agreeing to that date, I think, is a representation to the court that you would or should be ready. [p] Number two, I think because, as [the prosecutor] says, the sensitiveness of the fact that we do have a victim who is, based on [the prosecutor's] representation, in fear for his safety because of this alleged incident, and probably that had something to do with the difficulty in having him present the last time. I think now that he's here, we should proceed."

Ngo was the sole witness. On cross-examination, defendant's counsel attempted to elicit information as to where Ngo resided. The prosecution's objections to these questions were sustained.

Defendant was held to answer in Superior Court. There, he filed a motion to dismiss the information. Defendant claimed in the motion that he was denied his right under section 859b to have his preliminary hearing held within ten days of arraignment or plea because the magistrate continued the preliminary examination from May 8 to May 20, 1987 over his objection without a showing of good cause. Defendant also maintained he was deprived of a reasonable opportunity to prepare his defense because the magistrate refused him a continuance and the right to learn the victim's address on cross-examination. ²

It is unclear on which basis the trial court granted the motion. However, neither is sufficient to justify the order of dismissal.

SECTION 859b

The legislature has enacted a number of statutes that are supplementary to and a construction of the Constitutional right to a speedy trial. (People v. Wilson (1963) 60 Cal.2d 139, 145, 32 Cal.Rptr. 44, 383 P.2d 452.) These statutes place time constraints on the government that are usually more specific and exacting than standards developed by the courts under constitutional interpretations. Most of these statutes provide specifically for dismissal of charges as a remedy if the designated time constraints are not met. (See, e.g., § 1382.) Some, however, do not provide a remedy even though the time constraints are set in mandatory language. (See, e.g., § 871.5, subd. (e).)

The purpose of the right to a speedy trial is to protect the accused from having criminal charges pending against him an undue length of time caused either by willful oppression, or the neglect of the state or its officers. (People v. Wilson, supra, 60 Cal.2d 139, 148, 32 Cal.Rptr. 44, 383 P.2d 452.) Therefore, where a speedy trial statute specifically provides for dismissal as a remedy, a defendant need not affirmatively show that he has been prejudiced to be entitled to a dismissal prior to the commencement of trial. (Id. at p. 151, 32 Cal.Rptr. 44, 383 P.2d 452.) On the other hand, once a defendant has been tried and convicted, no charges are pending against him and it is too late to relieve him of the delay in bringing him to trial. Thus, even where a speedy trial statute specifically provides for dismissal as a remedy, its violation is not reversible error on appeal in the absence of a showing of prejudice. (Ibid.)

The Attorney General contends defendant was required to show prejudice before his motion was granted because the applicable statute does not specifically provide for dismissal as the remedy for its violation. Defendant replies that the words of the statute are mandatory and thus compel dismissal as the remedy for its violation.

Section 859b is one of the statutes bearing upon the right to a speedy trial. It provides for the setting of a date for a preliminary examination before a magistrate in the case where a defendant is charged with a felony. The Attorney...