People v. Perez

• Decision Date: 12 April 1991
• Docket Number: No. B044806,B044806
• Citation: 229 Cal.App.3d 302,279 Cal.Rptr. 915
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. Julio Cestero PEREZ, Defendant and Respondent.

Page 915

279 Cal.Rptr. 915

229 Cal.App.3d 302

The PEOPLE, Plaintiff and Appellant, v. Julio Cestero PEREZ, Defendant and Respondent.

No. B044806.

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

April 12, 1991.

Review Denied July 11, 1991.

Ira Reiner, Dist. Atty., Arnold T. Guminski, and George M. Palmer, Deputy Dist. Attys., for plaintiff and appellant.

Michael J. Udovic, Pasadena, under appointment by the Court of Appeal, for defendant and respondent.

GEORGE, Associate Justice.

More than eight and a half years elapsed between the filing of an indictment, charging defendant with murder and conspiracy to commit murder, and defendant's arrest. During the intervening period, defendant was a fugitive living in Venezuela. The People appeal from an order dismissing the charges on the ground defendant was denied a speedy trial as guaranteed by the Sixth Amendment to the United States Constitution. For the reasons that follow, we conclude defendant waived his right to speedy trial and reverse the order of dismissal.

PROCEDURAL AND FACTUAL HISTORY

On September 13, 1978, an indictment was filed charging defendant and codefendants Jaime Vila and David Lopez with the murders of Ralph Dennis and Joni Scruggs (Pen.Code, § 187, subd. (a)) and conspiracy to commit murder (Pen.Code, § 182, subd. (a)(1)). Over eight and a half years later, on April 27, 1987, defendant was arrested in Venezuela, was expelled from that country and flown to the United States, and appeared in superior court on May 22, 1987.

On October 21, 1988, defendant filed a written motion to dismiss the present charges, asserting he had been denied a speedy trial. In a declaration attached to the motion, defendant stated that on September 19, 1978, six days after the indictment in the present case was filed, he was arrested on unrelated federal narcotics charges by agents of the Drug Enforcement Administration at his home in Puerto Rico. He appeared before the United States District Court in Puerto Rico that day, was released on his own recognizance, and was ordered to return to court the next day. In defendant's words: "I did not return to court. After hiding out in Puerto Rico for a few days I travelled to Venezuela.... [p] Shortly after arriving in Venezuela, I wrote to my wife in Puerto Rico. I used a false name and return address on the envelope...."

Defendant's declaration further states that on April 27, 1987, he was arrested by Venezuelan police officers at the American Embassy while attempting to renew his passport, and that three days later, he was driven to the airport, released to the custody of the United States Marshal's Service, and flown to Miami, Florida.

At a hearing held January 13, 1989, on defendant's motion to dismiss, Special Agent Saverio Weidel of the United States Drug Enforcement Administration testified that on September 18, 1978, he arrested defendant in San Juan, Puerto Rico, pursuant to an arrest warrant arising from federal narcotics charges. Defendant appeared before a federal district court judge and was arraigned that day. ¹ During a bail hearing, Agent Weidel informed the court, in defendant's presence, "that there were charges to be filed, very serious charges, by the State of California" against defendant. At the request of a Los Angeles police detective, Agent Weidel did not disclose the exact nature of the charges in the present case. ² Over the objection of Agent Weidel, defendant was released on his own recognizance and ordered to appear the following morning for a continuation of the bail hearing. Defendant failed to appear.

A declaration by defense counsel, attached to the motion to dismiss, states that on December 8, 1978, an arrest warrant issued in the present case was entered into a national computer system.

Barbara Moore, the Chief of Extradition Services for the Los Angeles District Attorney's Office, testified at length concerning her efforts, which began the day after the indictment was filed, to secure defendant's presence for trial. On that date, September 14, 1978, defendant's whereabouts were unknown. On December 19, 1978, Ms. Moore's office contacted the United States Attorney's Office, requesting it seek "an unlawful flight warrant." Such a warrant was issued on December 21, 1978.

Three years later, on December 21, 1981, the district attorney's office first learned of a "possible address [for defendant] in Venezuela." Ms. Moore decided to attempt to have defendant deported from Venezuela rather than seek extradition, which entailed a more lengthy and complicated process. During the next two years, with that objective, Ms. Moore sent letters and placed telephone calls to the appropriate departments of the federal government. On September 14, 1984, a federal official telephoned Ms. Moore and informed her that the Venezuelan authorities would not confirm the presence of defendant for the purpose of deportation, and that they desired a formal request for extradition.

In October or November of 1984, the district attorney's office decided to seek formal extradition of defendant but was hampered by its lack of knowledge of defendant's exact location. Although an agent of the Federal Bureau of Investigation had stated in a telephone conversation with Ms. Moore on October 22, 1984, that he had located defendant, the agent never provided such information to the district attorney's office. After several additional inquiries, officials of the Federal Bureau of Investigation stated on February 6, 1985, and again on April 22, 1985, that defendant's exact location was unknown.

On April 27, 1987, Ms. Moore learned that defendant had been arrested that day in Venezuela. Defendant was expelled from Venezuela and transported to Miami, Florida, three days later. On May 13, 1987, defendant waived extradition and, on May 20, 1987, was flown to Los Angeles.

Special Agent Robert Candelaria testified he interviewed defendant in Venezuela after defendant was arrested. Defendant stated "that he didn't want to come to the United States because he had killed two people in California ... and he was afraid he was going to be prosecuted on that."

In ruling on defendant's motion to dismiss, the superior court noted that defendant had made no showing he had suffered actual prejudice from the delay. The court agreed with the People that defendant had "fled the jurisdiction" but ruled that defendant's failure to assert his right to a speedy trial could not "be held against him" because there had been "a conscious decision on the part of the People not to inform [defendant] that there were charges pending against him."

Turning to the reasons for the delay, the court observed that "it took several years from the time that [defendant]'s whereabouts were established in Venezuela until he was arrested and brought back here." The court stated that the government's failure to allocate additional resources to securing defendant's return from Venezuela "balances out with [defendant's] having absented himself from the jurisdiction." The court found it "clear that the government has the burden to deal in an expeditious fashion with these cases." Accordingly, the court granted defendant's motion to dismiss.

DISCUSSION

BY FLEEING THE JURISDICTION TO AVOID PROSECUTION, AND REMAINING AT LARGE MORE THAN EIGHT YEARS, DEFENDANT WAIVED HIS RIGHT TO A SPEEDY TRIAL

The Sixth Amendment to the United States Constitution provides: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial...." ³ "[T]he right to a speedy trial is 'fundamental' and is imposed by the Due Process Clause of the Fourteenth Amendment on the States." (Barker v. Wingo (1972) 407 U.S. 514, 515, 92 S.Ct. 2182, 2184, 33 L.Ed.2d 101, fn. and citations omitted.) "A defendant has no duty to bring himself to trial; the State has that duty as well as the duty of insuring that the trial is consistent with due process." (Id., at p. 527, 92 S.Ct. at p. 2190, fns. omitted.) "[T]he primary burden [is] on the courts and the prosecutors to assure that cases are brought to trial." (407 U.S. at p. 529, 92 S.Ct. at p. 2191.) In stating this rule, however, the United States Supreme Court was careful to observe: "We hardly need add that if delay is attributable to the defendant, then his waiver may be given effect under standard waiver doctrine...." (Ibid., emphasis added.)

It has long been recognized that a convicted defendant who becomes a fugitive from justice forfeits the right to appeal that conviction. (Molinaro v. New Jersey (1970) 396 U.S. 365, 366, 90 S.Ct. 498, 499, 24 L.Ed.2d 586; Smith v. United States (1876) 94 U.S. 97, 97-98, 24 L.Ed. 32; People v. Redinger (1880) 55 Cal. 290, 298; People v. Brych (1988) 203 Cal.App.3d 1068, 1077, 250 Cal.Rptr. 402.) A defendant who becomes a fugitive by failing to appear for trial on felony charges that later are dismissed cannot invoke the statute of limitations to bar the refiling of those charges. (People v. Abayhan (1984) 161 Cal.App.3d 324, 332-333, 207 Cal.Rptr. 607.) Sanctions for negligent destruction of evidence may not be sought where evidence was lost while the defendant was a fugitive for a lengthy period. (People v. Lawrence (1985) 172 Cal.App.3d 1069, 1078, 218 Cal.Rptr. 345.) And delay while the defendant is a fugitive "may not be urged as contributing to any violation of due process." (People v. Albin (1970) 9 Cal.App.3d 31, 36, 88 Cal.Rptr. 422.) Accordingly, we conclude that a defendant who flees the jurisdiction of a court for the purpose of avoiding prosecution waives the right to a speedy trial. ⁴

The Supreme Court in Barker v. Wingo, supra, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, held a delay of well over five years did not deprive the defendant of a speedy trial, because he failed to object to the delay during most of that period. The court stated: "[B]arring extraordinary circumstances, we would be reluctant indeed to rule that a defendant was denied...