Serna v. Superior Court

Citation40 Cal.3d 239,219 Cal.Rptr. 420,707 P.2d 793
Parties, 707 P.2d 793 Joaquin Mario SERNA, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; The PEOPLE, Real Party in Interest. L.A. 31856.
Decision Date24 October 1985
CourtUnited States State Supreme Court (California)

Wilbur F. Littlefield, Public Defender, Laurence M. Sarnoff, Philomene J. Swenson and John Hamilton Scott, Deputy Public Defenders, Los Angeles, for petitioner.

No appearance for respondent.

Ira Reiner, City Atty., Jack L. Brown and Greg Wolff, Deputy City Attys., Los Angeles, for real party in interest.

GRODIN, Justice.

Petitioner, a defendant in a misdemeanor prosecution pending in the Municipal Court for the Los Angeles Judicial District, sought dismissal in that court on grounds that a more than four-year delay between the filing of the complaint and his arrest denied both his state and federal constitutional rights to a speedy trial. When the court denied his motion to dismiss, he sought a writ of mandate in the superior court to compel the municipal court to grant the motion. When the superior court denied his petition for writ of mandate, he sought further review in this court pursuant to Code of Civil Procedure section 904.1, subdivision (a). We granted an alternative writ to review two novel and important questions of statewide application thus presented.

The principal question concerns the time at which an accused misdemeanant's right to a speedy trial under the Sixth Amendment to the United States Constitution attaches. As we shall explain, opinions of the United States Supreme Court state, without qualification as to the level of offense charged, that the right attaches with the filing of the accusatory pleading or arrest, whichever is first. In accordance with the language and reasoning of these opinions, and with holdings by other courts, we shall conclude that when an offense is charged as a misdemeanor it is the filing of the complaint (or earlier arrest) which triggers the defendant's Sixth Amendment right to a speedy trial.

The second question of significance concerns the appropriate standard for finding an abuse of discretion in a superior court's denial of a petition for writ of mandate or prohibition filed pursuant to Code of Civil Procedure section 904.1, subdivision (a).

Before reaching either of these questions, it will be necessary to summarize the record and explain why the superior court was justified in rejecting petitioner's state constitutional speedy trial claim.


Although this matter is before the court on a petition for writ of mandate, in other contexts an original proceeding in which evidence may be taken and disputed factual allegations resolved by a judge or jury in appropriate circumstances (Code Civ. Proc., § 1090), the sole purpose of a petition filed in an appellate court pursuant to Code of Civil Procedure section 904.1, subdivision (a), 1 is to afford appellate review of a superior court action granting or denying a petition for writ of mandate related to a pending municipal court action. 2 The party seeking review of the superior court action must therefore provide the reviewing court with a record adequate to permit such review. (Sherwood v. Superior Court (1979) 24 Cal.3d 183, 186, 154 Cal.Rptr. 917, 593 P.2d 862.) Because the question to be decided is whether the superior court abused its discretion or exceeded its jurisdiction in granting or denying the petition filed in that court, the review authorized by section 904.1 is limited to the record made in the superior court. We shall not, therefore, consider allegations made in this petition, return, and traverse, or exhibits thereto, which were not before the superior court whose ruling is to be reviewed. 3

Petitioner, Joaquin Mario Serna, was charged by a misdemeanor complaint filed in the municipal court on September 29, 1978, 4 with violation of Penal Code section 508, 5 embezzlement. The complaint alleged that the offense was committed on or about September 8 or September 9, 1978. Police preliminary and follow-up investigation reports stated that the offense occurred when petitioner failed to deposit in the station safe receipts for gasoline sold during his shift as an attendant in a service station. The owner of the business was able to determine from the records of gallonage sold during the shifts preceding and following the shift worked by petitioner that $955 had been taken in, but not deposited. Petitioner had borrowed his mother's car on September 7 and had not been seen since he completed his shift at the gasoline service station at 6 a.m. on September 9.

The reports stated that petitioner had relieved the attendant whose shift preceded his and she had read the gasoline pump meters with him at that time. The attendant who relieved petitioner did not read the meters with him because he was too busy. The safe contained recorded money drops by those two attendants, but none by petitioner.

Another notation in the reports indicated that petitioner was a prior employee who was working in his father's shift when the money was taken.

Petitioner was arrested on February 16, 1983, and promptly moved to dismiss for lack of speedy prosecution. His motion was accompanied by a declaration in which he stated that he had no knowledge of the charge prior to the date of his arrest; that he had resided with his grandmother in Los Angeles on September 8, 1978, and continued to reside with her at the same address until he moved to Montebello in December 1978. He left a forwarding address with the United States Post Office. The Montebello address had been his permanent address since that time, mail from the prior address was forwarded to him there, and his father and grandmother who lived with him at the Montebello address had known his whereabouts at all times. Petitioner also alleged that he had no independent recollection of his activities on September 8, 1978, and that persons existed who might be witnesses in his behalf but he was unaware of their names or current whereabouts. Finally, the declaration asserted that petitioner had been available for service of process at all times, had done nothing to avoid service, and had in no way caused the delay in prosecution of which he complained.

The People's opposition to the motion did not dispute the factual allegations of the motion or supporting declaration, but noted that the police report indicated that petitioner had failed to report to work again after the end of the shift at which he had absconded with the money and was believed at that time to be en route to his grandmother's home in Florida. No evidence was taken at the hearing in the municipal court. The court denied the motion, ruling that the showing of prejudice was inadequate because the declaration lacked specificity with regard to the names of witnesses who had been but were no longer available. In the view of the judge the defendant was required to demonstrate at least who the witnesses were, why they would be witnesses, and why they were unavailable at the time of the trial. The judge noted that employment records were available that might have enabled petitioner to discover the names of persons who had worked at the station.

Although petitioner's counsel called the attention of the court to petitioner's reliance on both state and federal constitutional speedy trial guarantees, the court stated that denial of the motion was based on People v. Allen (1979) 96 Cal.App.3d 268, 158 Cal.Rptr. 54, and Overby v. Municipal Court, supra, 121 Cal.App.3d 377, 175 Cal.Rptr. 352, impliedly concluding that the burden of demonstrating prejudice existed under both.

II California Constitution

"The defendant in a criminal cause has the right to a speedy public trial...." (Cal. Const., art. I, § 15.) In a misdemeanor prosecution that right attaches under the California Constitution when a criminal complaint is filed. (Scherling v. Superior Court (1978) 22 Cal.3d 493, 504, 149 Cal.Rptr. 597, 585 P.2d 218; People v. Bradford (1976) 17 Cal.3d 8, 18, 130 Cal.Rptr. 129, 549 P.2d 1225; Jones v. Superior Court (1970) 3 Cal.3d 734, 739, 91 Cal.Rptr. 578, 478 P.2d 10; Harris v. Municipal Court (1930) 209 Cal. 55, 62, 285 P. 699; Rost v. Municipal Court (1960) 184 Cal.App.2d 507, 7 Cal.Rptr. 869.) 6 Inasmuch as this petitioner challenged only prearrest delay, not violation of statutory time limits adopted as legislative implementation of the state and federal constitutional speedy trial rights, the question to be decided by the trial court was whether the delay was shown to be unreasonable. Delays in arrest that are necessary for law enforcement purposes, i.e., those occasioned by inability to locate the accused or witnesses, or to conduct further investigation and gather evidence, do not violate the right to speedy trial unless the prosecution is delayed unreasonably. (Jones v. Superior Court, supra, 3 Cal.3d 734, 740, 91 Cal.Rptr. 578, 478 P.2d 10.) To determine if the delay is unreasonable and the right to speedy trial violated, "the prejudicial effect of the delay on [the accused] must be weighed against any justification for the delay." (Ibid.)

Under recent decisions of this court, the initial burden in establishing a violation of article I, section 15, is on the defendant seeking dismissal who must demonstrate prejudice attributable to the delay in arrest. (Crockett v. Superior Court (1975) 14 Cal.3d 433, 121 Cal.Rptr. 457, 535 P.2d 321.) Only after he has done so must the court determine if the delay was justified and engage in the balancing process. (Scherling v. Superior Court, supra, 22 Cal.3d 493, 505-507, 149 Cal.Rptr. 597, 585 P.2d 218.)

There is much force in the observation of the Chief Justice that these and other recent decisions accepting this interpretation and application of article I, section 15, appear to have departed from the assumption that the right to...

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