Filed 9/19/17 P. v. Holloway CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. Don Penner, Judge.

Peggy A. Headley, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Christopher J. Rench, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Appellant Timothy Joel Holloway stands convicted of animal cruelty, a violation of Penal Code[1] section 597, subdivision (a), and residential burglary, a violation of sections 459 and 460, subdivision (a). It also was found true that he personally used a deadly or dangerous weapon, pursuant to section 12022, subdivision (b)(1), in committing the animal cruelty charge. Holloway had moved to dismiss the burglary charge and the weapon allegation, asserting vindictive prosecution; the trial court denied the motion. Holloway contends the trial court erred in denying his motion. We affirm.

FACTUAL AND PROCEDURAL SUMMARY

Holloway’s nephew, Christopher Holloway,[2] lived in Clovis. He frequently was out of town on business. When he was away from home, Christopher would leave his dog, Kane, at his father’s home where his grandmother, Janice Holloway, also lived.

On July 1, 2013, Katie Nelson and George Wayne were preparing to move into Christopher’s home; the three were going to share the house. Nelson, Wayne, and Christopher’s father were the only people with permission to enter onto Christopher’s property when he was gone.

As Nelson was cleaning in the home that day, she saw something at the bottom of the pool. Upon further inspection, she realized it was a dog at the bottom of the pool. Nelson began crying and screaming.

Wayne arrived at the house and saw Kane at the bottom of the pool. Kane was “[e]ssentially hogtied” with rope; the rope was tied “in every which way possible” around Kane’s body, including his muzzle. A backpack had been tied to Kane and inside were rocks weighing between 30 and 40 pounds. Wayne pulled Kane from the pool and removed the backpack and rope. Wayne called Christopher, who was shocked and asked Wayne to bury Kane.

Christopher spoke with his father and Janice. They told him Holloway killed Kane because they found one of their cats dead and assumed Kane had killed the cat. Christopher also spoke with Holloway, who indicated he wanted to shoot Kane but he was afraid neighbors would hear the gunshot. Holloway claimed Kane died peacefully.

Christopher filed a report with the sheriff’s office. When he returned home, Christopher found a dead cat in his freezer; the cat had belonged to Janice. An officer spoke with Holloway; Holloway admitted he killed Kane but would not state how he killed the dog.

A complaint was filed in July 2013 charging Holloway with animal cruelty. Holloway entered a general time waiver and the matter was continued numerous times over the next two years. On October 26, 2015, Holloway withdrew his time waiver and asserted his right to a speedy trial pursuant to section 1382.

A trial date was scheduled several times over the next few months but delayed due to lack of an available courtroom. On the morning of December 28, 2015, the prosecutor had lost her voice and requested the jury be empaneled and voir dired in the afternoon to allow her voice to rest.

The trial court denied the request and the People responded by dismissing and refiling the complaint. An amended information filed on April 19, 2016, charged Holloway in count 1 with animal cruelty and in count 2 with residential burglary. As to count 1, it also was alleged that Holloway personally used a deadly or dangerous weapon.

Dr. Janice Breech testified at trial as an expert in veterinary medicine. Breech explained that drowning is not a humane method of killing an animal. It can take three to four minutes for the animal to die, which causes anxiety in the animal and results in a violent death from cardiac arrest. The prescribed method for euthanizing an animal is to inject the animal with sodium pentobarbital, which causes a death without anxiety and suffering.

Holloway testified that Christopher’s residence was held in a family trust under Janice’s control. He stated Christopher never told him he did not have permission to enter the property and residence. Janice had told him that Kane killed one of her cats, and she told him to kill Kane.

Holloway’s niece, Krystal, who lived at Janice’s, testified she had seen Kane knock Janice down. Krystal also stated Kane had bitten her and had tried to kill a cat.

On April 28, 2016, the jury found Holloway guilty of both charges and the weapon enhancement was found true. At sentencing, the trial court struck the weapon enhancement and sentenced Holloway to the low term of two years in prison for the residential burglary and a concurrent 16 months in prison for the animal cruelty.

Holloway filed a timely notice of appeal on July 14, 2016.

DISCUSSION

Holloway contends the trial court should have presumed vindictive prosecution because the People added the burglary charge and the weapon enhancement after he invoked his right to a speedy trial. He is incorrect.

Factual Summary

Holloway moved to dismiss the burglary charge and weapon enhancement on the grounds of vindictive prosecution. He alleged that because the enhancement and burglary charge were added after he asserted his speedy trial rights, there was a presumption of vindictive prosecution.

The People opposed the motion, arguing there is no presumption of vindictive prosecution in a pretrial setting. The prosecutor also submitted a declaration stating why the burglary charge and weapon enhancement were added. Early in the original proceedings, the case was reassigned from her to another deputy district attorney and the prosecutor was assigned to the Rural Crimes Unit.

While in the Rural Crimes Unit, the prosecutor discovered inconsistencies in how crimes against animals were prosecuted and this led to the creation of an Animal Cruelty Unit. The case was reassigned to the original prosecutor and the Animal Cruelty Unit for evaluation and trial preparation. The prosecutor determined that facts warranted a burglary charge and weapon enhancement allegation in addition to the animal cruelty charge, but because the case had been pending for a long time and had been the subject of numerous motions to dismiss, the decision was made not to add the charge and allegation. The prosecutor decided that if the case had to commence anew, the burglary charge and weapon enhancement would be added.

After a contested hearing, the trial court denied the motion, finding there was no evidence establishing vindictive prosecution.

No Vindictive Prosecution

A prosecutor has broad discretion to decide whom to charge, and for what crime. (People v. Lucas (1995) 12 Cal.4th 415, 477.) “Prosecutorial discretion in determining the charges to be filed is basic to the framework of our criminal justice system.” (People v. Farrow (1982) 133 Cal.App.3d 147, 152.) A prosecutor violates due process when he or she seeks additional charges solely to punish a defendant for exercising a constitutional or statutory right, or “for doing something that the law plainly allowed him to do.” (United States v. Goodwin (1982) 457 U.S. 368, 384; accord, U.S. v. Gastelum-Almeida (9th Cir. 2002) 298 F.3d 1167, 1172.) Such improper governmental conduct warrants dismissal of an information only if it is so grossly shocking and so outrageous as to violate the universal sense of justice. (U.S. v. Doe (9th Cir. 1997) 125 F.3d 1249, 1254; People v. Watts (1999) 76 Cal.App.4th 1250, 1260–1261.)

In the case of Bordenkircher v. Hayes (1978) 434 U.S. 357, the United States Supreme Court considered an allegation of vindictiveness in the pretrial setting. In that case, the prosecutor had threatened that unless the defendant pled guilty, the prosecutor would return to the grand jury and pursue an additional charge that would greatly increase the defendant’s potential punishment if convicted. It was undisputed the additional charge was supported by the evidence that had been in the prosecutor’s possession when the original indictment was obtained and the additional charge was sought because the defendant refused to plead guilty. (Id. at pp. 358–359.)

The United States Supreme Court held that the prosecutor’s conduct in Bordenkircher was proper. There is no due process violation when a prosecutor brings additional charges against a defendant who refuses to plead guilty at pretrial because there is no element of punishment. (Bordenkircher v. Hayes, supra, 434 U.S. at pp. 363–365.) The United States Supreme Court distinguished between a “unilateral imposition of a penalty upon a defendant who had chosen to exercise a legal right” versus the situation presented by “‘the give-and-take negotiation common in plea bargaining.’” (Id. at p. 362.)

In the case of Twiggs v. Superior Court (1983) 34 Cal.3d 360, the California Supreme Court held that a defendant who demonstrates that the prosecution has increased the seriousness of the charges, and thus the potential punishment following a mistrial or grant of a new trial, has made a prima facie showing of prosecutorial vindictiveness. The prosecution then bears the burden of rebutting this presumption. (Id. at p. 371.) Twiggs distinguished between those cases where more serious charges were added before versus after the commencement of trial. (Id. at pp. 370, 373.)

Numerous California courts have followed Twiggs and have refused to find any presumption of vindictiveness for prosecutorial action taken before commencement of a trial. (See People v. Bracey (1994) 21 Cal.App.4th 1532, 1544; People v. Matthews (1986) 183 Cal.App.3d 458, 466–467; People v. Farrow, supra, 133 Cal.App.3d at p. 152.)

“Such a presumption would be unworkable in the pretrial context; since section 1009 allows the prosecution to amend the charges against a defendant at any time to include offenses shown by evidence at the preliminary hearing, and since a defendant can assert innumerable pretrial rights, a defendant could assert that retaliation was the motive for any amendment in the charges. [Citation.] Moreover, as the United States Supreme Court has observed, ‘[t]here is good reason to be cautious before adopting an inflexible presumption of prosecutorial vindictiveness in a pretrial setting. In the course of preparing a case for trial, the prosecutor may uncover additional information that suggests a basis for further prosecution or he simply may come to realize that information possessed by the State has a broader significance.’” (People v. Johnson (1991) 233 Cal.App.3d 425, 447–448, quoting United States v. Goodwin, supra, 457 U.S. at p. 381.)

While a defendant’s exercise of some pretrial procedural right may present an opportunity for vindictiveness, “a mere opportunity for vindictiveness is insufficient to justify the imposition of a prophylactic rule.” (United States v. Goodwin, supra, 457 U.S. at p. 384; see People v. Bracey, supra, 21 Cal.App.4th at p. 1544.) “A prosecutor should remain free before trial to exercise the broad discretion entrusted to him to determine the extent of the societal interest in prosecution. An initial decision should not freeze future conduct.” (Goodwin, supra, at p. 382; see Bracey, supra, at p. 1549.)

“Absent a presumption, a denial of due process on grounds of prosecutorial vindictiveness requires objective evidence ‘that the prosecutor’s charging decision was motivated by a desire to punish [the defendant] for doing something that the law plainly allowed him to do.’ [Citation.] ‘The charge of vindictive prosecution is not a substitute for evidence.’ [Citation.]” (Bracey, at p. 1549.)

Thus, in the pretrial context, “‘vindictiveness will not be presumed simply from the fact that a more severe charge followed on, or even resulted from, the defendant’s exercise of a right.’ [Citation.] Prosecutors often threaten increased charges and, if a guilty plea is not forthcoming, make good on that threat. [Citation.] Such prosecutorial actions as part of plea negotiations do not violate due process. [Citation.]” (U.S. v. Gastelum-Almeida, supra, 298 F.3d at p. 1172.) As the United States Supreme Court recognized in United States v. Goodwin, supra, 457 U.S. 368, “In the course of preparing a case for trial, the prosecutor may uncover additional information that suggests a basis for further prosecution or he simply may come to realize that information possessed by the State has a broader significance.” (Id. at p. 381.)

Holloway’s argument regarding vindictive prosecution rests on a claim that a presumption of vindictiveness arises from the mere filing of amended charges prior to commencement of trial after he has exercised his rights. There is no such presumption under the law. As the appellate court stated in Farrow, “If the assertion of such a claim required the prosecution to come forward with explanations of the motivations for exercise of its discretion to amend the charges, the defendant could delay the proceedings and deflect them from the true issue, the defendant’s guilt or innocence.” (People v. Farrow, supra, 133 Cal.App.3d at p. 152.)

Holloway’s claim of vindictive prosecution fails.

DISPOSITION

The judgment is affirmed.