P. v. Bandy

Filed 9/28/06 P. v. Bandy CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

The People appeal from an order dismissing an information against James Bandy, an inmate in state prison, on the ground that the delay in filing a criminal complaint against him violated his due process right to a fair trial. Appellant challenges the sufficiency of the evidence to support the court’s ruling. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On May 13, 2004, the People filed a complaint, charging James Bandy, an inmate in state prison, with committing a felony battery on a non-inmate on or about April 8, 2003, and a felony battery on another non-inmate on or about December 7, 2003. After a preliminary hearing, an information was filed, alleging the same two felony counts.

Bandy filed a written motion to dismiss the information on the ground that the delay in filing the complaint violated his due process right to a fair trial, which motion was opposed by the People. At a hearing on the motion, the parties stipulated to the court’s admitting into evidence Bandy’s declaration under penalty of perjury in lieu of his testimony. Noting that the declaration was uncontested,[1] the court read into the record substantial portions of the declaration. Bandy averred the prosecution’s delay in filing a complaint against him had seriously impaired his ability to secure evidence of his activities or to recall the events or reconstruct his whereabouts on the days of the alleged incidents, and he had no way of knowing or proving where he was within the prison on the date and time the incidents allegedly happened.[2] He further averred the delay had created a false sense of security in that the prosecution knew where he was if they intended to criminally charge him, but because of the delay he did not gather or obtain any evidence and inmate witnesses had become unavailable. Bandy noted his counsel had sent letters to specific inmates who could serve as possible percipient witnesses, but a letter to one inmate was returned indicating the inmate was apparently deceased, and a letter to another inmate was returned with the notation “discharged.” Defense counsel confirmed the statements in Bandy’s declaration regarding the unavailability and difficulty in contacting specific inmates who were possible percipient witnesses.

With regard to the delay in filing the complaint, the deputy district attorney who represented the People at the hearing candidly conceded she did not know enough about the procedures for processing prison incident reports to even offer an explanation as to why the complaint in this case was not filed until six months after the second incident. The court liaison sergeant for the prison testified regarding the prison’s general procedures for processing incident reports of potential criminal conduct by inmates. Before any incident reports are referred to the District Attorney’s office, the reports are reviewed by certain prison officers, which could take three weeks to three months and as long as 18 months, depending on the severity of the incident. An additional review of the reports by an executive review committee could take “one day to two weeks.” After the reviews are completed, the prisoner’s incident packages are sent to the court liaison’s office for referral to the District Attorney’s office. Normally, a deputy district attorney and an investigator came to the prison to review the incident packages and decide whether to either accept or reject the case at that time. If the case is accepted, the prison reports are sent to the District Attorney’s office. A review of Bandy’s incident packages indicated that all the reports on the first incident were signed on the day of the alleged incident, and the reports regarding the second incident were either signed on the day of the alleged incident or within a month after the incident. However, the prison sergeant was not able to estimate how long the prison officials had taken to review the reports of the two incidents or when the District Attorney’s office received the incident reports on the two cases.

The trial court found that the filing of complaint thirteen months after the April 8, 2003 incident and six months after the December 7, 2003 incident was an “inordinate delay” given that any investigation was essentially completed within a short time after each incident occurred, and the delay was prejudicial because Bandy was unable to adequately investigate the case and locate potential percipient inmate witnesses. After further finding that the People had not met their burden of justifying the prejudicial delay, the court dismissed the charges.

DISCUSSION

“[A] delay between the time a crime is committed and the defendant is charged is to be tested . . . by whether the defendant has been denied due process of law.” (Scherling v. Superior Court (1978) 22 Cal.3d 493, 505.) “In order to establish a denial of due process the defendant must show that there was no legitimate reason for the delay or that it was intentional and that he was prejudiced by the delay. [Citations.]” (People v. Belton (1992) 6 Cal.App.4th 1425, 1433.) “[A]ny prejudice to the defendant resulting from the delay must be weighed against justification for the delay.” (Scherling v. Superior Court, supra, 22 Cal.3d at p. 505.) “The ultimate inquiry in determining a claim based upon due process is whether the defendant will be denied a fair trial. . . . “[A]lthough delay may have been caused only by the negligence of the government, the prejudice suffered by a defendant may be sufficient when balanced against the reasons for the delay to constitute a denial of due process.” (Id. at p. 507.)

We review the trial court’s factual finding that Bandy was prejudiced by the delay for substantial evidence. (People v. Hill (1984) 37 Cal.3d 491, 499; People v. Dunn-Gonzalez (1996) 47 Cal.App.4th 899, 911-912 (Dunn-Gonzalez).) In addressing the issue of prejudice, the trial court relied on Bandy’s declaration that at least one inmate witness was deceased and that other inmate witnesses had apparently been paroled or been released making them “virtually untrackable,” and the court drew the reasonable inference that because all of the witnesses were going to have their memories affected by the delay, it was going to be very difficult for the defense to get any sort of accurate account of what happened in this case. Although the prosecution’s witnesses had their observations recorded in their written reports, the court noted that “defense is now picking up a cold trail.”

Appellant argues Bandy’s declaration is insufficient to show he would suffer actual prejudice if the case went to trial, and that Bandy’s inability to recall the events was “speculative and incredible.” However, as an appellate court, we “will not substitute [our] evaluation of the evidence or [our] opinion as to the credibility of the witnesses for that of the trial court ‘even though to some triers of fact the evidence . . . . would have seemed so improbable, impossible and unbelievable that a judgment contrary to that . . . on appeal would have inevitably followed.’ [Citation.]” (Evje v. City Title Ins. Co. (1953) 120 Cal.App.2d 488, 492.) Any dispute as to whether Bandy was actually prejudiced by the delay “was to be won or lost at the trial level.” (People v. Hill, supra, 37 Cal.3d at p. 499.) Appellant essentially asks us to reweigh the evidence, which we decline to do.

Additionally, we see no reason to disturb the trial court’s determination that the prosecution failed to establish reasonable justification for the delay in this case. Appellant contends a legitimate need for investigation and the lack of resources in prosecutorial agencies may justify significant delays in filing complaints. However, unlike the situation in Dunn-Gonzalez, supra, 47 Cal.App.4th at p. 914, the prosecution merely presented evidence regarding the general time frames in which incident reports were processed through the prison system and referred to the District Attorney’s office for possible criminal prosecution, which the trial court was free to reject as insufficient justification for the delay in this matter. Given the absence of evidence relating specifically to the reason for the delay in Bandy’s case, we are not persuaded by appellant’s argument that the court dismissed the charges “simply to send a message” to the prison authority and the District Attorney’s office to streamline their procedures. Having determined the prejudicial delay in this case was not justified, the trial court appropriately dismissed the charges.

DISPOSITION

The order of dismissal is affirmed.

_________________________

McGuiness, P.J.

We concur:

_________________________

Parrilli, J.

_________________________

Siggins, J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line Lawyers.

[1] Before admitting into evidence Bandy’s declaration, the trial court asked the prosecutor if she had any objection to the declaration, or whether she wanted to cross-examine Bandy. The prosecutor replied she would stipulate to the declaration’s admissibility and that if Bandy were called to testify, he would testify to the statements in his declaration.

[2] Despite stipulating to the admission of Bandy’s declaration (see fn. 1, ante), the prosecutor later argued she would like the opportunity to question or cross-examine Bandy regarding his ability to recall “to find out if he has any kind of mental health issues or some sort of memory impairment,” and if he had an explanation as to why he could not recall the events. However, the prosecutor did not ask the court to continue the matter so that she could question Bandy.