Lead Opinion
Opinion
Mоre than eight and a half years elapsed between the filing of an indictment, charging defendant with murder and conspiracy to
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 Venezuelа, 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 .... [^Shоrtly 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
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 сhief 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
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 dеfendant’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 . . . .”
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)
It does not matter that defendant had not been informed of the exact nature of the charges in the present case before he fled to Venezuela. He had been informed the day before he failed to appear in federal court on narcotics charges and left United States territory “that there were charges to be filed, very serious charges, by the State of California” against him. His statement following his arrest “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,” demonstrates defendant was aware of the nature of the charges and actively sought to avoid prosecution.
In accord with our holding are decisions construing the statutory right to a speеdy trial found in Penal Code section 1382. Based on the ‘“familiar maxim of jurisprudence that “No man can take advantage of his own wrong,” ’ ” it is well settled that “the constitutional guaranty of a speedy trial and the provisions of section 1382 of the Penal Code adopted in pursuance thereof do not operate in favor of a fugitive from justice.” (In re Gere (1923)
Although several decisions of the United States Courts of Appeals state that the Sixth Amendment speedy trial guaranty applies to periods of delay while the defendant is a fugitive, “we are not bound by the decisions of the lower federal courts even on federal questions. However, they are persuasive and entitled to great weight. [Citations.]” (People v. Bradley (1969)
Rayborn v. Scully (2d Cir. 1988)
Smith v. Hooey (1969)
The opinion in Rayborn v. Scully also relies on the decision in United States v. Bagga, supra,
Significantly, the court in Bagga, in determining whether the defendant had been denied a speedy trial, considered only the period from the filing of
The opinion in Rayborn v. Scully relies on the decision in United States v. Deleon, supra,
The final case cited in Rayborn v. Scully in support of the proposition that the government’s delay in apprehending a fugitive who has fled prosecution may constitute a denial of the right to speedy trial is U.S. v. Diacolios (2d Cir. 1988)
The appellate court noted that the defendant was not subject to extradition under the treaty between the United States and Greece because the defendant was a Greek national, and the United States had a policy not to request the return of Greek nationals by means other than the extradition treaty. Accordingly, the court held the defendant was not denied a speedy trial as long as the government was willing to provide transportation at its expense, if necessary, should the defendant wish to return for trial. (U.S. v. Diacolios, supra,
The holding in Diacolios, that the government must offer free transportation for an accused who wishes to return for trial but lacks sufficient
Nevertheless, the reasoning employed in the decision in Diacolios suggests the result would have been different had the defendant been subject to extradition and the government negligently had delayed his return for trial. In support of this supposition, that delay in securing the return of a fugitive who is avoiding apprehension may constitute a Sixth Amendment violation, the court in Diacolios cited two cases. The first, Smith v. Hooey, supra,
When the defendant in Salzmann moved to Israel, his draft board revoked his student deferment, reclassified him I-A, and (аfter the defendant failed to report for a preinduction physical examination) ordered the defendant to report for induction into the military. The defendant failed to report and, nearly a year and a half later, an indictment was filed. The defendant asserted by letter to an Assistant United States Attorney, as the defendant had done in earlier correspondence, that he could not afford to return to the United States.
The government conceded “that its failure to offer [the defendant] travel funds in the face of his continued avowal of poverty constituted a lack of due diligence under the speedy trial rules, if, indeed, the [defendant] lacked the necessary travel funds.” (United States v. Salzmann, supra,
Another case suggesting denial of a speedy trial may be based upon the government’s failure to apprehend a fugitive is U.S. v. Blanco (2d Cir. 1988)
Finally, Garcia Montalvo v. U.S. (2d Cir. 1988)
The foregoing analysis demonstrates that those decisions of the federal Courts of Appeals holding or suggesting that a fugitive who actively avoids prosecution is denied a speedy trial if the government does not employ due diligence in attempting to locate and apprehend him, either do so without analysis or rely upon inapposite authority. Accordingly, we find those opinions unpersuasive and decline to follow them.
The conclusion reached by the dissenting opinion, that “[t]he Sixth Amendment rights of the accused cannot be summarily dismissed or deemed waived based solely on the fact that he has fled the jurisdiction” (dis. opn., p. 319), is directly contradicted by the United States Supreme
The dissenting opinion disregards this express recognition that the right to a speedy trial may be waived if the delay is attributable to the accused, instead discussing at length the rule announced in Barker that “the defendant’s assertion of or failure to assert his right to a speedy trial is one of the factors to be considered in an inquiry into the deprivation of the right.” (Barker v. Wingo, supra,
Even were we to hold that defendant had not waived his right to a speedy trial, however, we would conclude that he was not denied this right and that the superior court erred in dismissing the present сase.
In determining whether a defendant has been denied a speedy trial, four of the factors to be considered are “[l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant. [Fn. omitted.]” (Barker v. Wingo, supra,
Even were we to hold in the present case that, despite defendant’s efforts to avoid apprehension, the People were required to make a showing of due diligence to secure defendant’s presence for trial, we would conclude the trial court erred in finding that no such showing was made. The efforts of the district attorney’s office to obtain defendant’s presence for trial began the day after the indictment was filed and continued until defendant was apprehended. Although periods of inactivity of months and even years
The decision in United States v. Bagga, supra,
In United States v. Deleon, supra,
The court in Rayborn v. Scully, supra,
In Garcia Montalvo v. U.S., supra,
The efforts of the district attorney’s office to secure defendant’s presence for trial far exceed those efforts held sufficient to establish due diligence in the cases discussed above. We conclude the superior court abused its discretion in finding that the People failed to exercise due diligence in attempting to secure defendant’s presence for trial.
The third factor to be considered is defendant’s assertion of his right tо a speedy trial. Defendant made no attempt to assert his right to a speedy trial during the more than eight and a half years he was a fugitive. After his arrest, defendant asserted his right in a timely fashion. As was the situation in Barker v. Wingo, supra,
Of the applicable four factors, only the length of the delay supports defendant’s assertion that he was denied his right to a speedy trial. The remaining factors all weigh heavily against defendant. The conclusion is inescapable that defendant was not denied his right to a speedy trial and that the superior court erred in dismissing the murder and conspiracy charges against defendant.
Disposition
The judgment (order of dismissal) is reversed.
Epstein, J., concurred.
Notes
Defendant and Agent Weidel disagree whether this arrest and arraignment took place on September 18 or 19, 1978, but the discrepancy is not material to any issue on appeal.
Los Angeles Police Detective Henry Petroski, Jr., testified he did not want the nature of the charges disclosed because “we had two other suspects outstanding, and we wanted to find those people before it all came out that everybody had а warrant against them.”
The California Supreme Court held in Serna v. Superior Court (1985)
We do not hold that all fugitives from justice are foreclosed from raising speedy trial claims, because the term “fugitive” has been defined to include persons who are outside the court’s jurisdiction for rеasons other than to avoid prosecution. (Hogan v. O’Neill (1921)
The period after the defendant in Bagga learned of the indictment was considered only as bearing on whether he adequately had asserted his right to a speedy trial. The court held that the defendant’s failure to return to the United States or indicate a desire for a speedy trial after learning of the indictment indicated that “Bagga was a reluctant defendant who was not concerned with a speedy trial.” (
The court in Deleon chose to measure the period of delay from the issuance of the arrest warrant, although recognizing that the federal right to a speedy trial does not attach until the filing of a formal indictment or information, or until the defendant has been arrested. (United States v. Deleon, supra,
The dissenting opinion’s reliance on three additional federal Court of Appeals decisions is misplaced. The defendants in United States v. Mitchell (11th Cir. 1985)
Dissenting Opinion
Although I agree with the result in this case, I write to express my concern that the rationale upon which the majority’s decision is based is in conflict with the rule, announced in Barker v. Wingo (1972)
The People recognized this fact when, in this case, they acknowledged in the trial court that the length of the delay between indictment and arrest was sufficient to require a Barker v. Wingo analysis. They argued that since the defendant had not demonstrated prejudice from the delay, the primary focus of the balancing process should be on “the conduct of the two parties.”
The People do not contend in this appeal, and have never contended in this case, that the trial court erred in balancing all of the relevant factors. They contend only that the trial court came to the wrong conclusion in balancing in favor of dismissing this case. In fact, the People reiterate in this appeal that “[sjince the delay in the instant case was approximately 8 1/2 years, ... it seems clear that the remaining factors in the Wingo analysis must be considered.” More importantly, the People do not contend in this appeal and have never contended in this case, that they have no duty to diligently seek to apprehend a person whom they have accused of a crime. Inexplicably, the majority holds that the efforts of law enforcement agents to apprehend an accused, or the lack thereof, are irrelevant to the determination of whether the right to a speedy trial has been denied.
They reach this conclusion, in part, by criticizing as unsupported by authority the statement in Rayborn v. Scully (2d Cir. 1988)
Federal appellate cases have applied the Barker v. Wingo criteria in factual situations similar to those before us. For example, in United States v. Mitchell (11th Cir. 1985)
In U.S. v. Otero (7th Cir. 1988)
In U.S. v. DeClue (6th Cir. 1990)
These cases, and those which the majority dismisses as either lacking in analysis or relying upon inapposite authority, all follow the dictate of Barker v. Wingo, supra, that all relevant factors be considered. As the Barker court explained: “We regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process. But, because we are dealing with a fundamental right of the accused, this process must be carried out with full recognition that the accused’s interest in a speedy trial is specifically affirmed in the Constitution.” (
The meaning of this language is clear. The Sixth Amendment rights of the accused cannot be summarily dismissed or deemed waived based solely on the fact that he has fled the jurisdiction. Even when the defendant has made a concerted effort to avoid prosecution, a court must give effect to the holding of Barker v. Wingo by weighing the conduct of both sides.
The language in Barker, quoted by the majority, to wit, “that ‘if delay is attributable to the defendant, then his waiver may be given effect under standard waiver doctrine . . . .’ (Barker v. Wingo, supra,
Where the only circumstance which has caused the delay is the defendant’s flight, I agree with the court in U.S. v. Blanco (2d Cir. 1988) 861 F.2d
For this reason I reject the majority’s analysis and embrace the balancing approach applied in Rayborn v. Scully, supra,
Respondent’s petition for review by the Supreme Court wаs denied July 11, 1991. Broussard, J., was of the opinion that the petition should be granted.
I do not share the majority’s reluctance to follow the decision in Serna v. Superior Court (1985)
For example, would a deliberate delay in apprehending a fleeing felon excuse a similar period of delay if the purpose of the delay was to test the prosecution’s evidence in the trial of a codefendant? What if the defendant were hiding within the United States? Or if one governmental agency knew the defendant’s address and the prosecuting agency didn’t ask? Should the seriousness of the charge be considered? The variations are potentially many.