People v. Perez

WOODS (A. M.), P. J., Dissenting.

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) 407 U.S. 514 [ 33 L.Ed.2d 101 , 92 S.Ct. 2182 ], 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.” (Id. at p. 528 [ 33 L.Ed.2d at p. 116 ], italics added.) Some of the other factors which “courts should assess in determining whether a particular defendant has been deprived of his right” (id. at p. 530 [ 33 L.Ed.2d at p. 117 ], italics added) include the length of the delay, the reason for the delay, and prejudice to the defendant. (Ibid. [ 33 L.Ed.2d at p. 117 ].) The factors specified in the Barker decision were not intended to be an exhaustive list. Rather, the court sanctioned what it termed an “approach” to an analysis of the problem, “a balancing test, in which the conduct of both the prosecution and the defendant are weighed.” (Id. at p. 530 [ 33 L.Ed.2d at p. 116 ], italics added and fn. omitted.)

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.”

*317 In response to this argument, the trial court balanced the “very strong language in Barker v. Wingo regarding the responsibility of the People to bring the defendant to trial” with the fact that the defendant, by leaving the jurisdiction and living in a foreign country, obviously “was not anxious to assert his right to a speedy trialf.]” The court found that the reasons for the delay between indictment and arrest 1 included the prosecution’s “conscious decision” not to inform defendant that he had been indicted, and the fact that the district attorney’s office chose not to allocate additional resources to its office of extradition services, despite its “vastly increasing work load.”

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) 858 F.2d 84 , that “the government... is under an obligation to exercise due diligence in attempting to locate and apprehend the accused, even if he is a fugitive who is fleeing prosecution. [Citations.]” (Id. at p. 90.) The majority’s analysis of those appellate opinions, while interesting, does not justify its disregard of the United States Supreme Court’s directive in Barker v. Wingo , to evaluate the conduct of the government and the defendant to determine the extent to which each contributed to the delay.

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) 769 F.2d 1544 , an indictment of seven defendants was sealed at the prosecution’s request on the ground that three of the defendants had a propensity to flee. Defendant Mitchell learned of the indictment one year and four months later. He moved to dismiss the *318 indictment claiming that it was sealed for an excessive period because the government did not make a diligent, good faith effort to locate and apprehend the seven defendants. The trial court weighed the factors specified in Barker v. Wingo, supra, 407 U.S. 514 , and, upon finding that “ ‘the government did very little to find the defendants after each of the indictments was filed,’ ” (United States v. Mitchell, supra, 769 F.2d at p. 1546 ) granted the motion. The reviewing court agreed that “although the government agents did make some attempt to find the defendants, they certainly did not allow the search to interfere with their other activities.” {Id. at p. 1547.) The reviewing court nevertheless vacated the order of dismissal and remanded the matter for further proceedings because it was not clear whether the trial court had considered the issue of prejudice.

In U.S. v. Otero (7th Cir. 1988) 848 F.2d 835 , the government placed its case against the defendant on “fugitive status” nearly two years after charges had been filed. {Id. at p. 837.) The defendant was not arrested until more than seven years after the original charge, when he surrendered to authorities. On the day of trial the defendant moved to dismiss the charges against him alleging that the government made little, if any, effort to locate him between his indictment in 1977 and the date when his case was placed on “fugitive status.” His motion was denied. The reviewing court affirmed after balancing all “Barker factors” (U.S. v. Otero, supra, 848 F.2d at p. 840 ), but noted: “Why more than ten years passed between Otero’s indictment and trial is not clear from this record. That the case was assigned to the fugitive calendar in 1979 by the district court, however, suggests that the government had not just a missing witness but a missing defendant. As the government points out in its brief, ‘arguably, defendant’s fugitive status necessitated the delay in bringing him to trial.’ But this less-than-forceful assertion neither explains an appearance filed in the district court by a lawyer on Otero’s behalf in 1978, nor says anything about the scope of the government’s attempts to locate Otero in the two-year period before he was deemed a fugitive, [fl] . . . Absent any direct evidence on this point, we cannot presume anything. [Citation.] In short, this factor weighs in neither the government’s nor Otero’s favor.” {Id. at p. 840.) The only authority which the court found it necessary to cite in support of this approach was Barker v. Wingo, supra. (U.S. v. Otero, supra, 848 F.2d at p. 840 .)

In U.S. v. DeClue (6th Cir. 1990) 899 F.2d 1465 , the IRS began investigating the defendant for income tax evasion in 1979. An indictment and warrant for his arrest were issued against him in 1982. Both the initial investigation and attempts to execute the warrant were thwarted by the defendant who, when confronted, claimed to be someone else, and who used several different return addresses in his correspondence. In 1987, an IRS agent suggested trying to locate the defendant by finding out where his *319 Social Security checks were being sent. The defendant, who had been receiving Social Security benefits since 1980, was arrested on August 3, 1988, as he retrieved his Social Security check from a post office box held in the name of another person. The trial court denied his motion to dismiss. The reviewing court evaluated the six-year postindictment delay under the holding of Barker v. Wingo, supra, and concluded that “any negligence on the part of the government in causing the length of the delay [was] outweighed by defendant’s elusiveness, which initially precipitated the delay.” (U.S. v. DeClue, supra, 899 F.2d at p. 1470 .)

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.” ( 407 U.S. at p. 533 [33 L.Ed.2d at pp. 118-119], fn. omitted.)

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, 407 U.S. 514, 529 .)” does not undermine this conclusion. The Barker court, describing the right to speedy trial as “so slippery,” (id. at p. 522 [ 33 L.Ed.2d at p. 112 ]) rejected a rigid approach to any analysis of whether a defendant has been denied this right. Thus the quoted language must be read in the context of the entire opinion which emphasized that the balancing approach “allows the court to exercise a judicial discretion based on the circumstances” and permits the court to attach a different weight to different circumstances. (Id. at p. 529 [ 33 L.Ed.2d at p. 116 ].)

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 *320 773, 780 , that the claim of denial of the right to speedy trial carries almost no weight. To say, however, as the majority does, that no other factor need be considered in such cases is to set a dangerous precedent. It requires no great imagination to envision the misuse to which this ruling may be put. 2 The problems inherent in the majority’s holding could be avoided by simply following the dictate of the United States Supreme Court.

For this reason I reject the majority’s analysis and embrace the balancing approach applied in Rayborn v. Scully, supra, 858 F.2d 84, 90 , United States v. Mitchell, supra, 769 F.2d 1544 , U.S. v. Diacolios (2d Cir. 1988) 837 F.2d 79, 83 , U.S. v. Otero, supra, 848 F. 2d 835 , U.S. v. Blanco, supra, 861 F.2d 773, 778 , U. S. v. DeClue, supra, 899 F.2d 1465 , United States v. Deleon (7th Cir. 1983) 710 F.2d 1218, 1221 , United States v. Salzmann (2d Cir. 1976) 548 F.2d 395, 402-403 , and United States v. Bagga (11th Cir. 1986) 782 F.2d 1541, 1544 , where the conduct of the fleeing defendant was balanced with the prosecution’s attempts to apprehend him. No authority other than Barker v. Wingo, supra, need be cited in support of the balancing approach, and any case which does not implement that approach, including this one, violates its dictate.

Respondent’s petition for review by the Supreme Court was 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) 40 Cal.3d 239 [ 219 Cal.Rptr. 420 , 707 P.2d 793 ], “that the Sixth Amendment right to speedy trial attaches . . . with the filing of the accusatory pleading ... or arrest, whichever is first.” (Id. at p. 262, fn. omitted.) Nor do I find Chief Justice Lucas’s dissenting opinion to the contrary persuasive.

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.