Appendix — California v. Serna

eer ee Ne RL Se

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Op Ae 1D t US

QF ga pwr Supreme Court. U. .

ra) 1 OD FILED

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; = IL, JR.

~ CLERK al

In the Supreme Court

OF THE

United States

OCTOBER TERM, 1985

PEOPLE OF THE STATE OF CALIFORNIA,

Petitioner,

VS.

JOAQUIN MARIO SERNA,

Respondent.

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF CALIFORNIA

Appendix

PETITION FOR WRIT OF CERTIORARI

JAMES K. HAHN,

Los Angeles City Attorney

GREGORY EDWIN WOLFF,

Deputy City Attorney

1600 City Halli East

200 North Main Street

Los Angeles, California 90012

(213) 485-5483

Counsel for Petitioner

Bowne of Los Angeles. Inc.. Law Printers. (213) 742-6600.

APPENDIX

TABLE OF CONTENTS

Page

Opinion of the California Supreme Court in Serna v.

Superior Court, 40 Cal.3d 239 (1985) .......... A-l

Modification of Opinion, Serna v. Superior Court, 40

Se PE COED 6 vas ba 4 sides cee ck ectuses A-54

Order of the California Court of Appeal, Second

Appellate District denying petition for writ of

EPSP ee fee rr ry tee eee ree eee A-58

Minutes of the Superior Court of California denying

petition for writ of mandate.................. A-59

Order of the California Supreme Court denying

| RE SE re wre wr ek ees eee ee A-61

Peremptory writ of mandate issued by California

a a ee err reer ee rr re A-62

AE PRE yy Ante AB OA

APPENDIX

[40 Cal.3d 239]

[L.A. No. 31856. Oct. 24, 1985.]

[As modified Nov. 4, 1985. ]

JOAQUIN MARIO SERNA, Petitioner, v.

THE SUPERIOR COURT OF LOS ANGELES

COUNTY, Respondent;

THE PEOPLE, Real Party in Interest.

Counsel

Wilbur F. Littlefield, Public Defender, Laurence M.

Sarnoff, Philomene J. Swenson and John Hamilton Scott,

Deputy Publie Defenders, for Petitioner.

No appearance for Respondent.

Ira Reiner, City Attorney, Jack L. Brown and Greg

Wolff, Deputy City Attorneys, for Real Party in Interest.

[40 Cal.3d 245]

OPINION

GRODIN, J. — Petitioner, a defendant in a misde-

meanor 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

A-2

important questions of statewide application thus

presented.

The prinicpal question concerns the time at which an

accused misdemeanant’s right to a speedy trial under the

Sixth Amendment to the United States Constitution at-

taches. 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

ascordance with the language and reasoning of these

opirions, and with holdings by other courts, we shall

eonclude that when an offense is charged as a misde-

meanor 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 appro-

priate 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.

I

(1) 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 appro-

priate cireumstances (Code Civ. Proe., § 1090), the sole

purpose of a petition filed in an appellate court pursuant

to Code of Civil Procedure

A-3

[40 Cal.3d 246]

section 904.1, subdivision (a),’ is to afford appellate

review of a superior court action granting er denying a

petition for writ of mandate related to a pending munici-

pal court action.” 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 disere-

tion or exceeded its jurisdiction in granting or denying

the petition filed in that court, the review authorized by

"Section 904.1: “An appeal may be taken from a superior court in

the following cases: [{] (a) From a judgment, except ... (4) a

judgment granting or denying a petition for issuance of a writ of

mandamus or prohibition directed to a municipal court or a justice

court or the judge or judges thereof which relates to a matter pending

in the municipal or justice court. However, an appellate court may, in

its discretion, review a judgment granting or denying a petition for

issuance of a writ of mandamus or prohibition upon petition for an

extraordinary writ.”

*Prior to the amendment of Code of Civil Procedure section 904.1,

which became effective on January 1, 1983 (Stats. 1982, ch. 1198,

§ 63.2, p. 4323), an appeal could be taken to the Court of Appeal from

a superior court judgment granting or denying any petition for writ

of mandate or prohibition. If mandate or prohibition was sought in a

Court of Appeal to review an order made in a superior court

proceeding, however, there could be no such appeal since review of

the Court of Appeal action was available only on petition for hearing

to this court. (Cal. Rules of Court, rule 28.)

The apparent purpose of the amendment was to bring review of

municipal court interlocutory orders into conformity with the prac-

tice governing review of superior court orders. (Andrus v. Municipal

Court (1983) 143 Cal.App.3d 1041, 1047 [192 Cal.Rptr. 341]; see also

Overby v. Municipal Court (1981) 121 Cal.App.3d 377, 380 [175

Cal.Rptr. 352]; Burrus v. Municipal Court (1973) 36 Cal.App.3d 233

{111 Cal.Rptr. 539].)

lima le cae a

A-4

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.”

Petitioner, Joaquin Mario Serna, was charged by a

misdemeanor complaint filed in the municipal court on

September 29, 1978,* with violation

[40 Cal.3d 247]

of Penal Code section 508,” embezzlement. The eomplaint

alleged that the offense was committed on or about

September 8 or September 9, 1978. Police preliminary

*The single exception is a police report submitted by the People as

an exhibit to their return. Petitioner notes that this document was

before the municipal court and does not object to consideration of the

report by this court. The contents of the report reveal the factual

basis for the pending criminal charge, and, as will be shown, are

relevant to disposition of petitioner's claim that the showing of

prejudice he made in the 1aunicipal court was sufficient to shift the

burden to the People to justify the delay of which he complains.

Our conclusions that other matters that were not before the

superior court should not and will not be considered renders moot

petitioner’s motion to strike the People’s return or traverse allega-

tions made therein.

*The date on which the complaint was filed is among the matters

the People dispute in the return filed in this court. They allege that it

was not filed until October 5, 1978. The discrepancy is irrelevant to

any issue in this case, but we note that the forum in which such

factual disputes must be resolved is the municipal court since the

superior court review on petition for extraordinary writ, like appel-

late court review of the superior court ruling, must be on the reeord

made below.

All future references herein to statutory provisions are to the

Penal Code unless otherwise indicated.

A-5

and followup 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 kis mother’s ear 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 attend-

ant 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 ceports indicated that peti-

tioner 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 prosecu-

tion. 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

Section 508 reads: “Every clerk, agent, or servant of any person

who fraudulently appropriates to his own use, or secretes with a

fraudulent intent to appropriate to his own use, any property of

another which has come into his control or care by virtue of his

employment as such clerk, agent, or servant, is guilty of

embezzlement.”

A-6

moved to Montebello in December 1978. He left a for-

warding address with the United States Post Office. The

Montebello address had been his permanent address

since that time, mail from the prior address was for-

warded to him there, and his father and grandmcther 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 Sep-

tember 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 decla-

ration, but noted that the police report

[40 Cal.3d 248]

indicated that petitioner had failed to report to work

again after the end of the shift at which he had abseconded

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 availiable that might

A-7

have enabled petitioner to discover the names of persons

who had worked at the station.

Aithough 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, impliedly

eoncluding that the burden of demonstrating prejudice

existed under both.

Il

California Constitution

(2) “The defendant in a criminal cause has the right to

a speedy public trial....’’ (Cal. Const., art. I, § 15.) Ina

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 219}; 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].)° Inasmuch as this petitioner challenged only prear-

rest delay, not violation of statutory time limits adopted

‘When Jones was decided article I, section 13, provided: “In

crimina! prosecutions in any court whatever, the party shall have the

right to a speedy and public trial....” Present section 15 was

adopted and former section 13, repealed in the 1974 General Election

in Proposition 7. The new section simplifies the language guarantee-

ing a speedy trial, but no intent to change the substauce of prior

interpretation of the right is reflected in the ballot title, legistative

ee eee

A-8

[40 Cal.3d 249]

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 occa-

sioned 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.) To determine if the delay is unreason-

able and the right to speedy trial violated, “the prejudi-

cial effect of the delay on [the accused] must be weighed

against any justification for the delay.” (Ibid.)

(3) 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 demon-

strate 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.)

There is much force in the observation of the Chief

Justice that these and other recent decisions accepting

analyst’s explanation, or the arguments for and against the measure.

(Ballot Pamp., Proposed Amends. to Cal. Const. with arguments to

voters, Gen. Elec. (Nov. 5, 1974) pp. 26-29.)

Jones and Bradford were felony prosecutions, but they make clear

the rule that the right to a speedy trial attaches under the California

Constitution when the person becomes an “accused,” which occurs

ther when formal charges are filed or the person is subjected to the

restraint of arrest. A misdemeanor complaint is a formal accusation.

‘(§§ 691, subd. 4, 949.)

eT

A-9

this interpretation and application of article I, section 15,

appear to have departed from the assumption that the

right to speedy trial guaranteed by article I, section 15, is

coextensive with that of the Sixth Amendment. Nonethe-

less, the Crockett decision postdates Barker v. Wingo

(1972) 407 U.S. 514 [33 L.Ed.2d 101, 92 S.Ct. 2182], in

which the Supreme Court held that the Sixth Amendment

requires that the balancing process must be undertaken in

any case in which a postaccusation delay in prosecution

has become presumptively prejudicial. This court was

aware of that interpretation of the demands of the Sixth

Amendment when Crockett was decided. (Crocketi v. Supe-

rior Court, supra, 14 Cal.3d 433, 440, fn. 8.) We nonethe-

less held that the initial burden of showing prejudice is on

the accused under article I, section 13, and did not

question that rule when we subsequently imposed the

same burden on an accused seeking relief on due process

grounds for precomplaint delays. “[Rljegardless of

whether defendant’s claim is based on a due process

analysis or a right to a speedy trial not defined by statute,

the test is the same, i.e., any prejudice to the defendant

resulting from the delay must be weighed against justifi-

cation for the delay.” (Scherling v. Superior Court, supra,

22 Cal.3d 493, 505.)

The parties have not challenged this interpretation of

the speedy trial right guaranteed by article I, section 13,

in this case. We have no occasion therefore to consider

whether Crockett and the several other opinions in which

this rule has been stated were correctly decided. The

question was neither

es

A-10

[40 Cal.3d 250]

briefed nor argued. Our analysis assumes the applicabil-

ity of the Crockett-Scherling prejudice requirement to the

disposition of this case.

Although a lengthy delay, such as that which oceurred

here, may permit an inference of prejudice since memo-

ries fade and witnesses disappear, this is not invariably

so. We look therefore to determine whether the accused

has demonstrated actual prejudice from a prearrest de-

lay. Petitioner here undertook to meet his burder by

urging only “inherent” prejudice in the four-and-one-half-

year delay, and by his declaration in which he stated: “I

have no indep2ndent recollection of my activities on

September 8, 1978... [P]ersons exist who might be wit-

nesses in my behalf,...at this time I am unaware of the

full names or current whereabouts of these people.” The

trial court judge concluded that in the circumstances of

this ease this conclusory assertion of inability to recall

the events of September 8 or to recall the names of

witnesses was insufficient to permit a finding of prejudice.

As a result the People were not called upon to justify the

delay.

We agree that petitioner’s declaration was insufficient

to support a finding of prejudice. The declaration re-

flected no effort whatsoever by petitioner to refresh recol-

lection and omitted any reference to the incident

underlying the charge as described in the police reports.

The reports recite the facts on which the charge was

based and set forth the names of potential witnesses. If

petitioner is the suspect described in the reports a court

could properly conclude that the minimal effort of reading

the reports in an attempt to refresh his memory would not

be an unreasonable burden. If he is not the suspect, the

court could expect at least an assertion that he had no

A-11

recall of, or had not been employed at, the gasoline

station at which the embezzlement allegedly occurred.

We cannot, and do not, suggest that a judge may not

believe a defendant’s declaration or testimony that he has

no recall of events occurring many months earlier. The

court need not do so, however, and even if the assertion is

believed, the court need not accept a conclusory state-

ment that the lack of recail demonstrates prejudice where

no effort has been made to ascertain the basis for the

charge. Lack of recall may establish prejudice, but only

on a showing that the memory loss persists after reasona-

ble attempts to refresh recollection. “The showing of

actual prejudice which the law requires must be sup-

ported by particular facts and not... by bare conclusion-

ary statements.” (Crockett v. Superior Court, supra, 14

Cal.3d 433, 442.)

To the extent that the denial of the motion to dismiss

was based on a conclusion that petitioner had not demon-

strated a cognizable violation of the right to speedy trial

guaranteed by article [, section 15, of the California

[40 Cal.3d 251]

Constitution, we fine »o error. We therefore conclude that

the superior court did not abuse its discretion in denying

the petition for writ of mandate and prohibition on this

ground.

II]

Constitution of the United States

“In all criminal prosecutions, the accused shall enjoy

the right to a speedy and publie trial....” (U.S. Const.,

6th Amend.)

A-12

Because the right to a speedy trial is personal and is

waived if not properly asserted by a defendant, it has

been said that it is not a “favored” right. (People v.

Wilson (1963) 60 Cal.2d 139, 148 [32 Cal.Rptr. 44, 383

P.2d 452].) Nonetheless, when asserted it is as “‘funda-

mental as any of the rights secured by the Sixth Amend-

ment.” (Klopfer v. North Carolina (1967) 386 U.S. 213,

223 [18 L.Ed.2d 1, 8, 87 S.Ct. 988]; Barker v. Wingo,

supra, 407 U.S. 514, 515 [33 L.Ed.2d 101, 108].) (4) It

protects a criminal defendant against oppressive pretrial

ineareeration, anxiety, concern, and disruption of his

everyday life. (Barker v. Wingo, supra, 407 U.S. 514, 532

[33 L.Ed.2d 101, 118].) Delays leading to the initiation

of formal proceedings may also prejudice the defendant

in his ability to defend, for the same reason as delays

thereafter — death or disappearance of witnesses, fading

memories, and destruction of evidence — but those de-

lays do not violate the Sixth Amendment right to speedy

trial, which attaches only upon the filing of an accusatory

pleading. Formal charges must be pending. (United States

v. MacDonald (1982) 456 U.S. 1, 7 [71 L.Ed.2d 696, 703,

102 S.Ct. 1497].) Prearrest delay may give rise to a due

process claim, but only delay following formal accusation

or delay subsequent to arrest are considered in evaluating

a claim under the Sixth Amendment speedy trial clause.

(Ibid. )

In United States v. Marion (1971) 404 U.S. 307 [30

L.Ed.2d 468, 92 S.Ct. 455], the United States Supreme

Court explained the purposes of the speedy trial guaran-

tee and, in so doing, referred to filing of an information or

indictment as the triggering events, stating: “Inordinate

delay between arrest, indictment, and trial may impair a

defendant’s ability to present an effective defense. But

the major evils protected against by the speedy trial

guarantee exist quite apart from actual or possible

A-13

prejudice to an accused’s defense. To legally arrest and

detain, the Government must assert probable cause to

believe the arrestee has committed a crime. Arrest is a

publie act that may seriously interfere with the defen-

dant’s liberty, whether he is free on bail or not, and that

may disrupt his employment, drain his financial re-

sources, curtail his associations, subject him to public

obloquy, and create anxiety in him, his family and his

friends. These considerations were sub-

[40 Cal.3d 252]

stantial underpinnings for the decision in Klopfer v. North

Carolina, supra; s2e also Smith v. Hooey, 393 U.S. 374,

377-378 (1969). So viewed, it is readily understandable

that it 1s either a formal indictment or information or else

the actual restraints wmposed by arrest and holding to

answer a criminal charge that engage the particular protec-

tions of the speedy trial provision of the Sixth Amendment.”

(404 U.S. at p. 320 [30 L.Ed.2d at pp. 478-479], italics

added. )

(5) When a delay in bringing a defendant to trial after

the filing of formal charges has become presumptively

prejudicial, and the defendant seeks dismissal of the

charges on grounds that his Sixth Amendment right to a

speedy trial has been violated, the court must balance the

relevant factors — the length of the delay, the reason for

the delay, the defendant’s assertion of the right, and the

prejudice to the defendant — in assessing whether the

delay has deprived the defendant of that right. (Barker v.

Wingo, supra, 407 U.S. 514, 530 [33 L.Ed.2d 101, 117].)

The defendant need not establish actual prejudice as a

prerequisite to a hearing at which evidence relevant to

this balancing process is heard. (Moore v. Arizona (1973)

414 U.S. 25, 26 [38 L.Ed.2d 183, 185-186].)

A-14

Therefore, if a misdemeanor complaint also ttiggers

Sixth Amendment protections a defendant seeking dis-

missal on grounds that his right to speedy trial has been

violated need not demonstrate actual prejudice as a pre-

requisite to judicial consideration of his claim.

(6a) Petitioner here contends that the four-and-one-

half-year delay in arresting him following the filing of the

misdemeanor complaint is presumptively prejudicial and

thus the trial court must assume some inherent prejudice

and engage in this weighing process, putting the People

to the burden of justifying the delay by showing that

legitimate law enforcement concerns caused or contrib-

uted to the delay.

We agree that the delay here was presumptively preju-

dicial. The length of the delay between the filing of the

complaint and the arrest of defendant far exceeded the

one-year limitation period applicable to misdemeanors.

Had there been no complaint on file the prosecution

would have been statutorily barred. (7a) Statutes of

limitation reflect a legislative construction of the speedy

trial guarantee. (Barker v. Municipal Court (1966) 64

Cal.2d 806, 812 [51 Cal.Rptr. 921, 415 P.2d 809].) A

court may appropriately conclude that delays between the

filing of a complaint and the arrest of a defendant which

exceed the period of limitation applicable to the charged

offense are unreasonable and thus presumptively prejudi-

cial within the contemplation of the speedy trial guaran-

tee since these statutes implement and serve the

objectives of the constitutional provision. “[T]he concept

of a

[40 Cal.3d 253]

period of limitation developed in recognition of the ever

increasing difficulty faced by both the government and a

A-15

criminal defendant in obtaining reliable evidence (or any

evidence at all) as time passes following the commission

of a crime....[§] Other policy considerations which

underlie the concept of a period of limitation vary in

purpose. The possibility of self-reformation by the crimi-

nal offender may lessen the need for society to impose

corrective sanctions and society's impulse for retribution

may correspondingly diminish as time passes. ... Finally,

adoption of a period of limitation represents a legislative

recognition that for all but the most serious of offenses

(such as murder or kidnaping) a never-ending threat of

prosecution is more detrimental to the functioning of a

civilized society than it is beneficial.” (People v. Zamora

(1976) 18 Cal.3d 538, 546-547 [134 Cal.Rptr. 784, 557

P.2d 75].) It would be anomalous, in light of the congru-

ent objectives of the speedy trial guarantee and the

legislatively adopted periods of limitation which imple-

ment that guarantee, if the mere filing of a misdemeanor

complaint without further action by the state for a period

in excess of the applicable statute of limitation were not

presumed to be a violation of the right to speedy trial, and

the People compelled to justify the delay.

(6b) Our conclusion that a delay between the filing of a

misdemeanor complaint and the arrest and prosecution of

a defendant which exceeds the statutory period of limita-

tion is unreasonable and presumptively prejudicial is

virtually compelled by prior decisions of this court. In

Harris v. Municipal Court (1930) 209 Cal. 55 (285 P.

699], we noted that section 1382, which required dismis-

sal of a felony information if the defendant had not been

brought to trial within 60 days unless good cause for the

delay was shown was a legislative determination that a

trial after that unjustified delay was not a speedy trial,

and we extended to misdemeanants the same reasoning

even in the absence of a statutory requirement of dismis-

A-16

sal. In that case, in which the delay between the filing of

the complaint and the arrest of the defendant was 18

months, we stated: “It would be most unreasonable to

hold that a delay of eighteen months in the trial of the

action was not in violation of the constitutional! right to a

speedy trial when... the petitioner was at all times avail-

able for the service of process and that the delay was not

at all traceable to him.” [209 Cal. at pp. 62-63.) In a

companion misdemeanor case, Gutterman v. Municipal

Court (1930) 209 Cal. 65 [285 P. 703], again the com-

plaint had been filed some 18 months prior to the arrest of

the defendant, and again this court ordered dismissal

beeause the People failed to show good cause for the

delay. In each ease the delay was considered unreasona-

ble and thus prejudice was presumed with.dismissal being

constitutionally compelled in the absence of a demonstra-

tion of good cause for the delay.

(7b) The measuring period utilized by the court in

Harris and Gutterman was the 60-day period mandated by

the Legislature for felony prosecutions.

[40 Cal.3d 254]

The Legislature has since amended section 1382, which

now reflects a legislative determination that dismissal is

not required unless there is a delay in excess of 45 days

between arraignment and trial or 30 days if the defendant

is in custody. Although this manifests a legislative conelu-

sion that the delay between the filing of the complaint and

arraignment should not be considered in determining if a

delay in bringing a misdemeanor defendant to trial is

unreasonable, the statute of limitation remains as a touch-

stone for measuring the reasonableness of a delay be-

tween complaint and arrest. If a delay of one year in

charging a misdemeanor defendant is so unreasonable

A-17

that prosecution is statutorily barred, it follows that a

delay of similar duration must be considered unreasona-

ble and presumptively prejudicial within the contempla-

tion of the Sixth Amendment when, although a complaint

has been filed, the defendant is not arrested and ar-

raigned on the complaint for that period.

Therefore, although there may be cases in which a

defendant is able to demonstrate actual prejudice from

delays of shorter duration, he need not do so when the

delay exceeds the period of limitation established by the

Legisiature. Delays of that magnitude are presumptively

prejudicial.

(8) The People do not contend that the delay which

occurred in this case was not presumptively prejudicial.

They argue instead that the delay here is not subject to

consideration as a Sixth Amendment violation at all. In

support of this argument they suggest that a misde-

meanor complaint is not the kind of accusatory pleading

which triggers Sixth Amendment rights upon filing, bas-

ing this claim on the language used by the Supreme Court

in Marion. We therefore address the crucial question of

when the right to speedy trial attaches in misdemeanor

cases.

The People do not dispute the proposition that a misde-

meanor complaint is a formal accusation. Indeed, in a

misdemeanor prosecution, it is the only formal accusatory

pleading filed with the court. Without it the trial jurisdiec-

tion of the court has not been invoked. (City of San Diego

v. Municipal Court (1980) 102 Cal.App.3d 775, 778 [162

Cal.Rptr. 420].) The People argue, however, that because

Marion and other decisions of the United States Supreme

Court in which that court has held that the right to

speedy trial attaches upon the filing of a formal accusa-

tion or charge have all been cases in which an indictment

A-18

or information was used the question of when the right

attaches in misdemeanor prosecutions is not settled. In

addition, they rely on a literal application of the quoted

language in Marion stating that “it is either a formal

indictment or information or else the actual restraints

imposed by arrest and holding to answer a criminal

charge that engage the particular protections of the

speedy trial provision of the Sixth

[40 Cal.3d 255]

Amendment.” (United States v. Marion, supra, 404 U.S.

307, 320 [30 L.Ed.2d 468, 479], italies added.)

We do not think the question is as unsettled as the

People would have us believe, however. The Sixth Amend-

ment guarantees the right to a speedy trial to the accused

in “all eriminal prosecutions.” We find nothing in the

opinions of the United States Supreme Court which con-

strue and apply the Sixth Amendment speedy trial guar-

antee to support a conclusion that the right differs based

upon definitional labels attached to criminal offenses by

the Legislature. Indeed, many offenses are punishable as

either felonies or misdemeanors,’ while others have been

designated misdemeanors for a first offense and felonies

thereafter.” Some have been elevated from misdemeanor

to felony status when the Legislature determined that

penalties greater than those attached to misdemeanors

"Petitioner is charged with such an offense. (See fn. 5.) Other

offenses in this category inciude second degree burglary (§ 461);

some assaults (§§ 241.1, 241.4); some batteries (§ 243, subds. (c)

and (d)); vehicular manslaughter (§ 193, subd. (4)); and a variety of

offenses involving theft or forgery (§§ 470a, 470b, 473, 474, 475, 475a,

476, 476a, 481, 484b, 484i, subd. (b), 666.)

*See, e.g., sections 499b, 499b.1, subdivision (h), 647a.

A-19

are appropriate. On occasion the reverse may occur.’ And

at times in the history of our state, misdemeanor penal-

ties have exceeded some felony penalties.'? Were we to

accept the literal reading of the isolated language in

Marion relied on by the People the speedy trial right of a

minor initialiy charged with a felony in a petition filed

pursuant to Welfare and Institutions Code section 602,

but then certified for trial as an adult, would not attach

until arrest, while that of an adult, charged with the same

offense, would attach upon the filing of an information or

indictment. We do not understand the People to be

making such a claim or the Constitution to permit that

result.

See, e.g., section 137, subdivision (a), which was a misdemeanor

when enacted in 1872, but was elevated to a felony only a year later.

(Code Amend. 1873-1874, ch. 614, § 10, p. 425.)

The penalty for false personation (§ 529) for example was two

years in the county jail when the section was enacted in 1872, making

the offense a misdemeanor by definition. That for refusing to arrest

or receive a person charged with crime, applicable to peace officers

(§ 142), was five years in the county jail. Many felonies were punisha-

ble by imprisonment “not exceeding five years,’ while others had

lesser terms of imprisonment.

"We do not decide here, of course, whether the Sixth Amendment

right to a speedy trial extends to delinquency proceedings in a

juvenile court. While the United States Supreme Court appears not

to have decided that question, it has been held applicable in New

York (see Matter of Anthony P. (1980) 104 Mise.2d 1024 [430

N.Y.S.2d 479]; Matter of Patrick G. (1977)) 92 Mise.2d 126 [399

N.Y.S.2d 862]) and Alaska (RDSM v. Intake Officer (Alaska 1977)

565 P.2d 855), and was assumed to applv in State v. Boatman (Fla.

1976) 329 So.2d 309. That assumption has been made by one leading

authority in this state. (1 Cal. Juvenile Court Practice (Cont.Ed.Bar

1981) § 6.33, p. 196.)

A-20

In determining the applicability of other constitutional

rights, the Supreme Court has emphasized that the nature

of the proceeding and its consequences

[40 Cal.3d 256]

determine the applicability of the protections of the Bill

of Rights, not “labels of convenience.” (See, e.g., In re

Gault (1966) 387 U.S. 1, 50 [18 L.Ed.2d 527, 558, 87

S.Ct. 1428]; see also McKeiver v. Pennsylvania (1971) 403

U.S. 528, 541 [29 L.Ed.2d 647, 658, 91 S.Ct. 1976]; Matter

of Anthony P., swpra, 104 Mise.2d 1024 [430 N.Y.S.2d 479,

480]. Moreover, elsewhere in Marion the court uses lan-

guage generally applicable to any criminal proceeding,

referring to the time at which “the putative defendant in

some way becomes an ‘accused’”’ (404 U.S. at p. 313 [30

L.Ed.2d at p. 474] ); to “indictment, information, or other

formal charge” (id., at p. 321 [30 L.Ed.2d at p. 479]);

and to whether the defendant had been “arrested,

charged, or otherwise subjected to formal restraint prior

to indictment” (id., at p. 325 [30 L.Ed.2d at p. 481]), as

events triggering the right to speedy trial.

The People suggest no basis upon which to explain or

support a construction of the right to speedy trial that

extends to misdeameanor defendants different rights

than it accords felony defendants.” Nor do they offer any

basis for distinguishing between those defendants

charged with misdemeanors by indictment and those

charged by complaint.

2In attempting to develop a different rule for misdemeanors, the

People do not consider whether, if this petitioner's right to a speedy

trial had been presumptively violated because the offense had been

charged as a felony by indictment more than four years before his

arrest, it would be constitutionally permissible to avoid that conelu-

sion by reducing the charge to a misdemeanor.

A-21

That the Sixth Amendment guarantee does apply to

misdemeanants, and does so when an indictment is the

accusatory pleading is beyond dispute. That was the case

in Klopfer v. North Carolina, supra, 386 U.S. 213, in which

the Sixth Amendment guarantee of a speedy trial was

held to be applicable to the states by incorporation

through the Fourteenth Amendment. The defendant in

Klopfer had been charged with criminal trespass, a misde-

meanor, by indictment. After a prompt trial at which the

jury failed to reach a verdict, and two orders for continu-

ance of the case for a term, the prosecutor was granted

leave to enter a nolle prosequi which would have post-

poned trial indefinitely. The Supreme Court considered

the same interests that it had held were protected by the

Sixth Amendment in felony prosecutions. “The petitioner

is not relieved of the limitations placed upon his liberty

by this prosecution merely because its suspension permits

him to go ‘whithersoever he will.’ The pendency of the

indictment may subject him to public scorn and deprive

him of employment and almost certainly will foree eurtail-

ment of his speech, associations and participation in

unpopular causes. By indefinitely prolonging this oppres-

sion, as well as the ‘anxiety and concern accompanying

publie accusation,’ the criminal procedure ... clearly de-

nies the petitioner the right to a speedy trial which we

hold is

[40 Cal.3d 257]

guaranteed to him by the Sixth Amendment of the Consti-

tution of the United States.” (386 U.S. at pp. 221-222 [18

L.Ed.2d at p. 7], fn. omitted.)

Although Klopfer did not address the question

presented here — the time at which the Sixth Amendment

right to speedy trial attaches in a misdemeanor prosecu-

tion — it precludes any claim that the scope of the right

A-22

and the considerations relevant to finding a cognizable

violation of the right differ in felony and misdemeanor

prosecutions.

(9a) The People also seek support for their position in

inapposite decisions of this court. In People v. Hannon

(1977) 19 Cal.3d 588, 605 [138 Cal.Rptr. 885, 564 P.2d

1203], we concluded that the right to speedy trial did not

attach under the Sixth Amendment upon the filing of a

complaint. Hannon, however, involved a felony complaint,

a pleading to be followed upon the arrest of the defendant

by a preliminary hearing, and if probable cause was

shown, by an order binding the defendant over for trial

and the filing of an information. ($§ 859a, 859b, 872, 739.)

A felony complaint, unlike a misdemeanor complaint,

does not confer trial jurisdiction. It invokes only the

authority of a magistrate, not that of a trial court.

(§ 806.) The People’s argument ignores the distinet funce-

tion of the felony complaint as a preliminary accusation.

The felony complaint functions to bring the defendant

before a magistrate for an examination into whether

probable cause exists to formally charge him with a

felony. Only if probable cause exists may an information

invoking the trial jurisdiction of the superior court be

filed. In addition, the filing of a felony complaint, unlike

indictment or accusation by information, does not

threaten oppressive pretrial incarceiation. The time con-

straints within which the preliminary hearing must be

conducted or the complaint dismissed and the defendant

released (§ 859b) ensure that the defendant is not sub-

jected to extended anxiety or public opprobrium, and by

giving the defendant immediate notice of the charge and

opportunity to defend avoid prejudice to the defense. This

step, preliminary to formal accusation in the court with

jurisdiction over the prosecution of the charge, does not

implicate the Sixth Amendment right to speedy trial if

—

A-23

our interpretation of Marion is correct. The misdemeanor

complaint, by contrast, is not a preliminary accusation. It

is a formal charge, an accusatory pleading giving the

court jurisdiction to proceed to trial.’

[40 Cal.3d 258]

We are not alone in our conclusion that the right to

speedy trial under the Sixth Amendment is not depen-

dent upon the label placed on an accusatory pleading. The

Sixth, Ninth, and District of Columbia Circuits have

interpreted Marion as holding that the right attaches

upon the filing of formal charges. (United States v. Martin

(6th Cir. 1976) 543 F.2d 577, 579; United States v. Cor-

dova (9th Cir. 1976) 537 F.2d 1073, 1075; United States v.

Jones (D.C. Cir. 1975) 524 F.2d 834, 839, fn. 7.) Appellate

courts in several states interpret Marion in a similar

manner, referring in their decisions to “complaints” as

well as other charging documents. (See, e.g., Yarbor v.

State (Alaska 1976) 546 P.2d 564, 567; People v. Velasquez

(Colo. 1982) 641 P.2d 943, 951; People v. Nichols (1978)

60 Ill.App.3d 919 [18 Ill.Dee. 330, 377 N.E.2d 815, 819];

Commonwealth v. Conant (1981) 12 Mass.App. 287 [423

N.E.2d 1035, 1036]; State v. Browillette (Minn. 1979) 286

“The People also seek to rely on our statement in Scherling v.

Superior Court, supra, 22 Cai.3d 493, 504, that “under California as

well as federal law, the right to a speedy trial clearly attaches after

an arrest or the filing of an indictment or information.” But

Scherling, too, was a felony prosecution in which the defendant

sought dismissal after the information was filed. We had before us

neither a felony complaint nor a misdemeanor complaint. As the

People note in their effort to convince us that the question of when

the speedy trial right attaches in misdemeanor proceedings was not

resolved by Marion because that case involved a felony, “an opinion is

not authority for a proposition not therein considered.” (Ginns v.

Savage (1964) 61 Cal.2d 520, 524, fn. 2 (39 Cal. Rptr. 377, 393 P.2d

689].)

A-24

N.W.2d 702, 706; Bauhaus v. State (Okla.Crim. 1975) 532

P.2d 434, 439; Hstrada v. State (Wyo. 1980) 611 P.2d 850,

852-853.) Others recognize the right as applicable upon

the filing of formal charges or accusations. (See, e.g.,

State v. Bryson (1972) 53 Hawaii 652 [500 P.2d 1171,

1173]; State v. Roddy (R.1. 1979) 401 A.2d 23, 30, fn. 4;

Matter of Anthony P., supra, 104 Mise.2d 1024 [430

N.Y.S.2d 479, 480]; State v. Goltz (1982) 197 Mont. 361

[642 P.2d 1079, 1081]; State v. Tafoya (1977) 91 N.M. 121

{570 P.2d 1148, 1150]; Avants v. State (1974) 257 Ark. 22

[513 S.W.2d 805, 807].)

Considering procedures which, like those in this state

distinguish felony and misdemeanor complaints, the

Court of Appeals of Maryland reached the same conclu-

sion regarding the nature of the accusatory document

necessary to activate the speedy trial right. In State v. Gee

(1984) 298 Md. 565 [471 A.2d 712], the court reasoned:

“It is obvious that the issuance of the warrant of arrest

placed no actual restraint upon Gee’s liberty. Thus, the

‘arrest’ requirement of the speedy trial rule was in no way

satisfied by the mere issuance of the warrant. ... [{]

{ However a]s defined in the rules of the Maryland Dis-

trict Court, a warrant is a written order by a judicial

officer....There must be attached to it a copy of the

charging document....[{] A defendant may be tried in

the District Court upon the document consisting of the

warrant and the statement of charges when the offense

charged is under the jurisdiction of that court....["] We

think that the document consisting of a warrant of arrest

and statement of charges on which the warrant is based

(warrant-statement of charges) is a ‘formal charge’ in the

contemplation of the speedy trial right when a defendant

is subject to be tried on that document. In that event the

criminal prosecution has truly commenced and the puta-

tive defendant has become an ‘aceused.’ The State has

A-25

committed itself to prosecute and the adverse positions of

the State and defendant have solidified....A warrant-

statement of charges on

[40 Cal.3d 259]

which a defendant can be tried is tantamount to an

indictment or an information. Therefore, its mere issu-

ance marks the commencement of the ‘criminal prosecu-

tions’ to which alone the explicit guarantees of the Sixth

Amendment are applicable... .

“On the other hand when the defendant cannot be tried

under the warrant-statement of charges he is not held to

answer a criminal charge on the basis of that document.

Its issuance does not mark the onset of formal

prosecutorial proceedings to which the Sixth Amendment

guarantee is applicable, nor has the putative defendant

thereby become an ‘accused.’ The State has not by the

issuance of such a warrant-statement of charges commit-

ted itself to prosecute. Before it can proceed the grand

jury must indict or the State’s Attorney must file an

information. Neither is obliged to do so....In such eir-

cumstances the warrant-statement of charges is not the

equivalent of an indictment or an information. It is not a

‘formal charge’ and thus, its mere issuance does not

activate the speedy trial provision.” (471 A.2d 712, 715-

716, italies in original; accord Favors v. Eyman (9th Cir.

1972) 466 F.2d 1325.)

(10) The People argue alternatively that whether the

prosecution is for a felony or a misdemeanor the right

should not attach until the aceused is aware of the formal

charge. Until that time none of the interests sought to be

protected by the Sixth Amendment is implicated. The

accused is not incarcerated or otherwise restrained, his

life is not disrupted by the existence of the charge, and he

A-26

is not conscious of any public obloquy, stress, or anxiety.

To the extent that his ability to defend may be impaired,

adquate protection is available through application of due

process principles should he demonstrate prejudice. In

support of this approach to speedy trial rights the People

rely on what they perceive to be a shift in emphasis by the

Supreme Court in its refusal to apply the Sixth Amend-

ment in United States v. MacDonald, supra, 456 U.S. 1, 7.

“The Sixth Amendment right to a speedy trial is... not

primarily intended to prevent prejudice to the defense

caused by passage of time; that interest is protected

primarily by the Due Process Clause and by statutes of

limitations. The speedy trial guarantee is designed to

minimize the possibility of lengthy incarceration prior to

trial, to reduce the lesser, but nevertheless substantial,

impairment of liberty imposed on an accused while re-

leased on bail, and to shorten the disruption of life caused

by arrest and the presence of unresolved criminal

charges.” (United States v. MacDonald, supra, 456 U.S. 1,

8 [71 L.Ed.2d 696, 704].)

The People find significance in the omission from this

statement of purpose of referenve to “public obloquy,”

one of the consequences of delay mentioned by the Marion

court.

[40 Cal.3d 260]

In MacDonald the court held that the time after dismis-

sal of military charges and the defendant’s indictment on

civilian charges need not be considered in evaluating his

speedy trial claim, stating also that “[f]ollowing dismis-

sal of charges, any restraint on liberty, disruption of

employment, strain on financial resources, and exposure

to public obloquy, stress and anxiety is no greater than it

A-27

is upon anyone openly subject to a criminal investiga-

tion.” (456 U.S. at p. 9 [71 L.Ed.2d at p. 704].)

Contrary to the People’s understanding of MacDonald,

we find in that opinion a continued emphasis on the

importance of the speedy trial guarantee in protecting

against disruption of a defendant’s life which is the major

evil flowing from the considerations enumerated by the

eourt in Marion. And, as we observed above, the court

made express reference to “exposure to publie obloquy”

as an evil to be prevented in the MacDonald opinion.

Nor are we persuaded by the thesis which underlies the

People’s argument — an assumption that no adverse con-

sequences flow from a misdemeanor complaint of which

the defendant is unaware. A misdemeanor complaint is a

public document. (Estate of Hearst (1977) 67 Cal.App.3d

777, 782 [136 Cal.Rptr. 821].) Contrary to the assertion

of the People, statutes forbidding dissemination of erimi-

nal history information which implement citizens’ rights

to privacy’ do not ensure that an outstanding complaint

and arrest warrant will not become public or come to light

in a routine credit or employment check. An arrest war-

rant issued on the strength of a complaint (see § 1427) is

not confidential. The Attorney General has recently ex-

pressed his view that local officials may publish in a

newspaper the names of persons for whom warrrants of

arrest have been issued for the purpose of obtaining

publie assistance in locating them. He reasons that the

information that a warrant has been issued is a “public

fact.” (67 Ops.Cal.Atty.Gen. No. 83-906, Oet. 11, 1984.”

See, e.g., section 11105.

The Attorney General reasons in his opinion: “In this opinion we

are not concerned with the execution of the warrant of arrest. If the

whereabouts of the defendant is known to the police agency which has

A-28

[40 Cal.3d 261]

In urging us to reject a literal reading of the language

of Marion declaring that “either a formal indictment or

information or... the actual restraints imposed by arrest

and holding to answer” engage the protections of the

Sixth Amendment, the People place primary reliance on

United States v. Watson (2d Cir. 1979) 599 F.2d 1149, and

United States v. Hay (10th Cir. 1975) 527 F.2d 990. Those

decisions held that a delay between the filing of a sealed

indictment and the arrest of the defendant does not

implicate Sixth Amendment speedy trial rights. But even

if those decisions are correct in concluding that a sealed

indictment is not an accusatory pleading within the mean-

ing of Marion, they do not support the People’s argument

that a defendant is not accused until he is arrested on a

the warrant it is unlikely that such agency would publicly disclose the

existence of the warrant for fear that the defendant would flee before

it could be served. On the other hand, if the location of the defendant

is unknown the police agency may elect to send copies of the warrant

or abstracts thereof by telegraph, teletype or other electronic devices

to other police agencies to allow other police officers to locate and

apprehend the defendant. (Pen. Code, § 850.) The familiar ‘all points

bulletin’ often reaches the general public when media attention

focuses on the defendant sought through the arrest warrant....

“The fact of the filing of the criminal complaint and the fact of the

issuance of a warrant of arrest... are matters of record in the court.

(Pen. Code, § 1428.) Ordinarily, court records are publie records as

explained in Estate of Hearst (1977) 67 Cal.App.3d 777, 782-783 ....

[p. 261]

“

“The publication contemplated by the question presented to us is

dissimilar from a tortious disclosure of old facts. The district attor-

nes ould publish or cause to be published a current public fact that

a person was wanted on a criminal charge. The apprehension of such

person is a matter of legitimate publie concern, i.e., enforcement of

child support by the location of the absent parent... .”

A-29

misdemeanor complaint or has notice of it. Each recog-

nized that the Sixth Amendment right to speedy trial

attaches as soon as the indictment is unsealed and made

public, or when the accused has notice of it. (599 F.2d at

p. 1156; 527 F.2d at p. 994.) We cannot, therefore, equate

a misdemeanor complaint which is a prerequisite to issu-

ance of a warrant to a sealed indictment, nor can we

accept the People’s argument that if the defendant is

unaware of the complaint or warrant he will not be

subject to publie opprobrium or possible disruption of his

life. To the contrary, the opinion of the Attorney General

confirms the existence of a danger that a pending misde-

meanor complaint of which the defendant is unaware may

cause disruption of his life by affecting his credit rating,

job applications, admission to schools and other activities

in which background checks are routine.

Thus this aspect of the reasoning of the Watson court is

inapplicable. There the decision was based in part on

absence of notice to the public of the charge. “We hold

that the filing of a sealed indictment does not, in the light

of these purposes, trigger the speedy trial provision.

Because neither the indicted defendant nor the public has

notice of the charges, such an indictment does not bring

about ‘the major evils protected against by the speedy

trial guarantee.’ Marion, supra, 404 U.S. at 320, 92 S.Ct.

at 463, namely, public obloquy and anxiety to the ac-

eused.” (599 F.2d 1149, 1156, fn.5.) Similar reasoning

underlies the Hay decision. There the court noted that the

defendant had not been available for prosecution and that

because the indictment had been sealed he had not been

subject to restraints on his liberty or publie accusation

during the period between the indictment and arrest.

(527 £.2d 990, 994, and fn. 4.) The persuasive effect of

Watson and Hay is further undereut by the Supreme

A-30

Court s opinion in MacDonald where, several years after

those cases had been decided the court reiterated

[40 Cal.3d 262]

the rule enunciated in Marion stating without qualifica-

tion: “In United States v. Marion, 404 U.S. 307, 313

(1971), we held that the Speedy Trial Clause of the Sixth

Amendment does not apply to the period before a defen-

dant is indicted, arrested, or otherwise officially accused:

[{] ‘On its face, the protection of the Amendment is

activated only when a criminal prosecution has begun and

extends only to those persons who have been “accused” in

the course of that prosecution. ... The Amendment would

appear to guarantee to a criminal defendant that the

Government will move with the dispatch that is appropri-

ate to assure him an early and proper disposition of the

charges against him.’” (United States v. MacDonald,

supra, 456 U.S. 1, 6-7 [71 L.Ed.2d 696, 702-703], italics

added. )

(9b) In sum, the People do not offer a persuasive basis

on which to avoid what appears to be the controlling

impact of the decisions of the United States Supreme

Court which hold that the right attaches upon the filing of

a forma! accusatory pleading. We are persuaded by the

repeated reference in decisions of the United States

Supreme Court to formal accusation or charge, and by the

acceptance of that interpretation of Marion by the courts

of other jurisdictions, that the Sixth Amendment right to

speedy trial attaches in misdemeanor prosecutions, as it

does in felonies, with the filing of the accusatory pleading,

here a misdemeanor complaint, or arrest, whichever is

first.'° Therefore, since the more than four-year delay in

In Overby v. Municipal Court, supra, 121 Cal.App.3d 377, the

Court of Appeal reached a contrary conclusion, reasoning that the

A-31

arresting defendant is beyond question presumptively

prejudicial, the municipal court erred in failing to receive

evidence on the considerations relevant to the weighing

process and to resolve petitioner's motion to dismiss

pursuant to the dictates of Barker v. Wingo, supra, 407

U.S. 514: by weighing the interests of the defendant and

the prosecution to determine whether the right was vio-

lated in this case.

IV

Pretrial Writ Review

(lla) We next consider whether, in light of our conelu-

sion that the municipal court erred in failing to conduct

the hearing required by Barker

[40 Cal.3d 263]

v. Wingo, the superior vourt abused its discretion in

denying the petition for writ of mandate and prohibition

filed in that court.

rules in misdemeanor cases were no different than those in felony

eases, and holding on that basis that “the federal right does not

attach until the individual has been arrested, charged (in the statu-

tory 1382 sense) or otherwise subjected to formal restraint.” (121

Cal.App.3d at p. 387.) The reference to section 1382 was to the

requirement of subdivision 3 of that section which provides the time

limits within which a misdemeanor defendant must be brought to

trial after arraignment. Without explanation, citation of authority, or

analysis, the court assumed that the Sixth Amendment speedy trial

right attached at the same time that the statutory right did, at

arraignment. Inasmuch as we find no basis in the controlling deci-

sions of the United States Supreme Court for distinguishing felony

and misdemeanor speedy trial rights in this manner, Overby must be

disapproved to the extent that it is inconsistent with our conclusions

here.

A-32

(12) In criminal as well as civil proceedings review of

interlocutory rulings of tria] courts by extraordinary writ

generally is available only if there is no adequate remedy

by appeal. (Code Civ. Proe., $§ 1086, 1103; ef. Babb v.

Superior Court (1971) 3 Cal.3d 841, 851 [92 Cal.Rptr.

179, 479 P.2d 379] [“upon occasion our attention is

drawn to instances of such grave nature or of such

significant legal impact that we feel compelled to inter-

vene through the issuance of an extraordinary writ’’|.)

Although violation of the relatively short statutory time

limits of section 1382 by which the Legislature has sought

to implement the right to speedy trial does not implicate

the interests to be protected to the same degree as does

violation of the Sixth Amendment right itself, relief for

statutory speedy trial violations is available pretrial.

Prejudice is presumed when relief is sought on section

1382 grounds pretrial because the statute commands that

the court “must order the action to be dismissed.” How-

ever, when this and other statutory rights to speedy trial

have been violated, a defendant who seeks relief on appeal

must demonstrate actual prejudice. (People v. Wilson,

supra, 60 Cal.2d 139, 153; see also People v. Pompa-Ortiz

(1980) 27 Cal.3d 519, 529 [165 Cal.Rptr. 851, 612 P.2d

941].) Because the statutory time within which a defen-

dant must be brought to trial is short, it is not unreasona-

ble to require a defendant who does not seek or obtain

pretrial relief to demonstrate actual prejudice when re-

versal of a judgment is sought on this ground on appeal.

These rules are not appropriate means by which to

redress Sixth Amendment violations, however. When, in a

proper Barker v. Wingo hearing a Sixth Amendment

speedy trial violation has been established, reversal of a

subsequent judgment of conviction is necessary in every

ease. Where prejudice to the defendant’s ability to defend

has been established there can be no question but that

A-33

reversal is required. And where the balance of interests

establishes a violation of a defendant’s speedy trial right

because of the impact on his other interests — prolonged

restraint, public obloquy, anxiety, stress, and disruption

of everyday life — leaving him to his remedy on appeal

would exacerbate the harm by prolonging the period

during which he remained subject to those conditions and

would offer only the Pyrrhie victory of a reversal should

he ultimately be convicted.” Extraordinary writ review of

a misdemeanor defendant’s motion to dismiss made on

speedy trial grounds is therefore necessary because ap-

peal does not afford an adequate

[40 Cal.3d 264]

remedy for redress of these violations. Relief should be

granted whenever the trial court record establishes a

violation of the right to speedy trial guaranteed by the

Sixth Amendment. The defendant will thus be accorded

some redress for the violation of his interests as he will

not have to undergo the strain and expense of trial; the

publie fise will be spared the expense of a futile trial and

consequent appeal; and an effective means by which to

enforce the right to speedy trial will exist.

(11b) The writ should also issue in eases such as this in

which although the defendant offered evidence establish-

ing a presumptively prejudicial delay, and that evidence

was undisputed by the People in any essential aspect, the

trial court failed to put the People to its proof, i.e., it

failed to require the People to offer justification adequate

to demonstrate that the legitimate interests of law en-

‘lf a misdemeanant were unable to obtain his release on bail or on

his own recognizance during the pendency of the appeal, he might

serve his entire term while awaiting this hollow victory.

A-34

forcement warranted the disruption of defendant’s life

some four and one-half years after the charged offense

allegedly was committed. The superior court therefore

abused its discretion in denying the petition for writ of

mandate and prohibition and in failing to compel the

municipal court to conduct a hearing at which the People

would be called upon to justify the delay.

Let a peremptory writ of mandate issue directing the

Superior Court for the County of Los Angeles to vacate

its order denying the petition for writ of mandate and to

issue a new and different order directing issuance of a

writ of mandate to the municipal court ordering further

proceedings consistent with these views.

Mosk, J., Broussard, J., and Reynoso, J., concurred.

Birp, C. J., Coneurring and Dissenting. — I join in my

colleagues’ analysis of the federal constitutional speedy

trial right. (Maj. opn., ante, Part III.) However, I would

not be so quick to conelude that the state constitutional

guarantee offers any less protection to California citizens.

(/d., Part Ii.)

For many years, this vourt held that the California

speedy trial right “ ‘reflects the letter and spirit of the

Sixth Amendment to the United States Constitution”

(People v. Wilson (1963) 60 Cal.2d 139, 144, fn. 2 [32

Cal.Rptr. 44, 383 P.2d 452], quoting Harris v. Municipal

Court (1930) 209 Cal. 55, 60 [285 P. 699].) When this

court chose to reject. the letter and spirit of the federal

Constitution, it did so to hold that the state speedy trial

right was more protective, attaching at an earlier stage of

the proceedings than did the Sixth Amendment. (People

v. Hannon (1977) 19 Cal.38d 588, 604-608 [138 Cal. Rptr.

885, 564 P.2d 1203]; compare Umted States v. Marion

(1971) 404 U.S. 307 [80 L.Ed.2d 468, 92 S.Ct. 455].) Yet,

A-35

the majority now find that the state Constitution, as

interpreted in Scherling v.

[40 Cal.3d 265]

Superior Court (1978) 22 Cal.3d 493 [149 Cal. Rptr. 597,

585 P.2d 219], places on the accused who claims a

violation of his right to a speedy trial an initial burden of

showing prejudice, a burden which the federal Constitu-

tion does not impose.

I agree that the language of Scherling and its predeces-

sors suggests that an accused must demonstrate that his

defense has been prejudiced by a delay before any inquiry

need be made into the length or causes of that delay.

However, I strongly doubt that this court ever con-

sciously chose to construe the state speedy trial provision

to provide less protection against governmental abuse

than does the federal Constitution.

On the contrary, the Scherling language appears to

have evolved from earlier cases in which the speedy trial

right did not apply and in which the due process clause

alone was applicable. Those cases incorporated the

threshold prejudice requirement into speedy trial claims

without considering whether this constituted a step back-

ward from the development of federal law. Nor did they

expressly consider whether such a requirement was logi-

eally relevant to a claimed speedy trial violation. I would

urge my colleagues to reconsider the decision to establish

it as a fixed feature of the California constitutional

guarantee.

A.

The idea that an accused must in all eases affirmatively

show prejudice before a trial court may dismiss the

A-36

charges for violation of the constitutional right to a

speedy trial is apparently traceable to Jones v. Superior

Court (1970) 3 Cal.38d 734, 740 [91 Cal.Rptr. 578, 478

P.2d 10]. Before Jones, an unreasonable or oppressive

delay in bringing an accused to trial could result in

dismissal of the charges regardless of actual prejudice.

“When there has been an extended delay in bringing a

defendant to trial, ‘it is not necessary that the party

accused affirmatively show prejudice....It is enough for

the defendant to show that the prosecution has been

unreasonably delayed. It will not be presumed that good

cause for the delay in fact existed. If there was any good

cause it was for the prosecution to show it.’ (Harris v.

Municipal Court, supra, 209 Cal. 55, 64[.])” (Barker v.

Municipal Court (1966) 64 Cal.2d 806, 812 [51 Cal. Rptr.

921, 415 P.2d 809], italics added; see also McCullar v.

Superior Court (1968) 264 Cal.App.2d 1, 4 [70 Cal.Rptr.

21]; Zimmerman v. Superior Court (1967) 248 Cal.App.2d

56, 61 [56 Cal. Rptr. 226]; Rost v. Municipal Court (1960)

184 Cal.App.2d 507, 512-513 [7 Cal.Rptr. 869].)

In People v. Archerd (1970) 3 Cal.3d 615 [91 Cal. Rptr.

397, 477 P.2d 421], this court considered what rules

should apply when an accused claims

[40 Cal.3d 266]

there has been an unreasonable delay 1. srresting and

charging him. Archerd held that the speedy triai right had

no application to such a claim. “One does not become an

accused until the filing of a complaint. The provisions of

the Sixth Amendment contemplate a pending charge, not

the mere possibility of a criminal charge.” (/d., at p. 639.)

However, Archerd did not find that due process could be

violated by a preaccusatory delay — if the delay were

purposeful, oppressive, and prejudicial to the accused’s

- a

A-37

ability to defend himself. (/d., at p. 640.) Thus, Archerd

established prejudice as an essential element of a due

process claim.

Jones was filed a few weeks after Archerd. Addressing a

posteomplaint delay to which the speedy trial right was

applicable (3 Cal.3d at pp. 738-740), Jones held that to

determine whether that right was violated “(t]he prejudi-

cial effect of the delay on petitioner must be weighed

against any justification for the delay.” (Jd. at p. 740.) In

a footnote which appears to be the root source of the

majority's holding, Jones linked the speedy trial test to

Archerd’s preaccusatory due process test: “[A] claimed

denial of due process would be decided by the same

approach, namely, balancing the effect of the delay on the

defendant against any justification for the delay.” (Jd., at

p. 741, fn. 1.)

It should be pointed out that Jones itself did not treat

the prejudice factor as a threshold requirement. It found

that the delay was both unreasonable and prejudicial to

the accused and that dismissal] of the charge was there-

fore required. (Jones, supra, 3 Cal.3d at pp. 740-741.) It

did not consider whether dismissal would be required if

only an unreasonable delay had been established. It cer-

tainly did not purport to overrule such earlier cases as

Harris v. Municipal Court, supra, 209 Cal. 55 which, as the

majority note, recognized a presumption of prejudice

from an unreasonable delay. (Maj. opn., ante, at 253-254.)

A year and a half after Jones, the United States Su-

preme Court decided Barker v. Wingo (1972) 407 U.S. 514

{33 L.Ed.2d 101, 92 S.Ct. 2182]. Barker expressly did not

require a threshold showing of prejudice in order to

establish a speedy trial violation. On the contrary, it

adopted a balancing test in which actual prejudice was

A-38

only the fourth (and final) factor to weigh. (Jd. at pp.

530-533 [33 L.Ed.2d at pp. 116-119].)

Under Barker, a court must first inquire into the length

of the delay and the reasons for it. A sufficiently long

delay, Barker held, may be presumptively prejudicial. A

sufficiently long delay caused by improper or oppressive

governmental motives might in itself be grounds for

dismissal. (/bid.) As the United States Supreme Court

would later explain, “Barker v. Wingo expressly rejected

the notion that an affirmative demonstration of prejudice

[40 Cal.3d 267]

was necessary to prove a denial of the constitutional right

to a speedy trial[.]”. (Moore v. Arizona (1973) 414 U.S.

25, 26 [38 L.Ed.2d 183, 185, 94 S.Ct. 188].)

This court’s first post-Barker case was Sykes v. Superior

Court (1973) 9 Cal.3d 83 [106 Cal.Rptr. 786, 507 P.2d

90].' Sykes declined to apply Barker's balancing test to a

delay which was covered by the state constitutional guar-

antee but not by the statutory speedy trial provision. (/d.,

at pp. 90-92; see Pen. Code, § 1382.) However, Sykes

extended the statutory 60-day rule to cover the case at

bench and bottomed its decision on the equal protection

clause. (9 Cal.3d at p. 92.) Application of the statute, of

course, meant that the case had to be dismissed regard-

less of prejudice. (/d., at pp. 88-89; People v. Wilson,

supra, 60 Cal.2d at p. 151.) Sykes left open the possibility

‘People v. Mitchell (1972) 8 Cal.3d 164 [104 Cal.Rptr. 348, 501

P.2d 916], filed a few months after Barker, simply affirmed a iower

court’s dismissal on speedy trial grounds without discussion of

Archerd, Jones, or Barker.

*Burker had expressly approved the idea that the states could

adopt by statute reasonable time periods which would define when

A-39

that the Barker test or a similar one would apply where

there was no applicable statute. In fact, Sykes noted that

the balancing test used in Jones reached the same result

as Barker. (9 Cal.3d at p. 93.)

The first case to acknowledge that a _ threshold

prejudice requirement was inconsistent with Barker v.

Wingo was Crockett v. Superior Court (1975) 14 Cal.3d

433 [121 Cal.Rptr. 457, 535 P.2d 321]. Crockett found

that where charges once dismissed under Penal Code

section 1381 were refiled as permitted by section 1387, the

accused was entitled to a second dismissal only if his

constitutional right to a speedy trial was violated. (/d., at

p. 440.) Crockett then found that a state constitutional

claim must rest on an initial showing of prejudice, and

that no such showing had been made in the ease at bench.

However, in a footnote the court noted the possibility that

a federal constitutional claim under Barker v. Wingo

might prevail. (Jbid., fn. 8.) Justices Mosk and Tobriner,

dissenting, would have required dismissal without any

showing of prejudice where the delay is extended (citing

Barker v. Municipal Court, supra, 64 Cal.2d at p. 812) or

where it exceeds applicable statutory time periods (citing

Sykes, supra, 9 Cal.3d at p. 89). (Crockett, supra, 14

Cal.3d at pp. 445-446.)

Next came People v. Hannon, supra, 19 Cal.3d 588,

which addressed another aspect of the speedy trial right:

when does it attach? Hannon found that under federal law

(United States v. Marion, supra, 404 U.S. 307) the right

did not attach in a felony prosecution at the time the

complaint was

the speedy trial right was violated. (Barker, supra, 407 U.S. at p. 523

{33 L.Ed.2d at pp. 112-113].)

A-40

[40 Cal.3d 268]

filed.’ Hannon rejected this as an interpretation of the

California guarantee. It noted that California had histori-

cally extended the protection of the speedy trial right to

the prearrest stage in cases where a complaint has been

filed charging a felony. (Hannon, supra, 19 Cal.3d at p.

607.) It declined to retreat from this position simply to

follow the federal rule: “ ‘{[O]ur first referent is Califor-

nia law and the full panoply of rights Californians have

come to expect as their due....’ [{] ... We continue to

adhere to that higher standard of protection against the

abuses of pretrial delay.” (Id., at pp. 606-608, fn. omitted,

italics added.)

However, in analyzing the claim of speedy trial viola-

tion in the case before it, Hannon applied the old balance-

ing test of Jones. It found the right had not been violated

by a seven-month delay between complaint and arrest,

since there was neither prejudice to the accused nor

unreasonable behavior by the police. (/d., at pp. 608-610.)

Finally, there was Scherling v. Superior Court, supra,

22 Cal.3d 493. Scherling, like Archerd, involved a precom-

plaint, prearrest delay to which the speedy trial right was

inapplicable. (/d., at p. 505.) Turning to the due process

elaim, Scherling considered the accused’s proffered show-

ing of prejudice, as required by Archerd. Finding that no

prejudice had been established, Scherling declined to

*Marion’s requirement that there be “actual restraints imposed by

arrest and holding to answer a criminal charge” before the Sixth

Amendment came into play (404 U.S. at p. 320 [30 L.Ed.2d at p.

479]) meant that the federal right did not attach in California at

least until a magistrate ordered the accused bound over for trial

following a preliminary examination. (Hannon, supra, 19 Cal.3d at p.

588.)

A-41

inquire into the justification for the delay. (Jd., at pp. 506-

507.) Though Scherling noted that a speedy trial claim

would be reviewed in the same manner (id., at p. 505), it

made no mention of whether such review would be appro-

priate under Barker v. Wingo.

B.

The logical flaw in imposing a threshold prejudice

requirement is that it takes too narrow a view of the

interests which the speedy trial right protects. Those

interests are not limited to the ability to defend against

the charges. They include as well preventing oppressive

pretrial incarceration and minimizing the anxiety and

eonecern of the accused. (Barker v. Municipal Court,

supra, 64 Cal.2d at p. 813; Barker v. Wingo, supra, 407

U.S. at p. 532 (33 L.Ed.2d at p. 118]; United States v.

Marion, supra, 404 U.S. at p. 320: “[T]he major evils

protected against by the speedy trial guarantee exist

quite apart from actual or possible prejudice to an ac-

eused’s defense. To legally arrest and detain, the Govern-

ment must assert probable cause to believe the arrestee

has committed a crime. Arrest is a public act that may

seriously

[40 Cal.3d 269]

interfere with the defendant’s liberty, whether he is free

on bail or not, and that may disrupt his employment,

drain his financial resources, curtail his associations,

subject him to publie obloquy, and create anxiety in him,

his family and his friends.” See also United States v.

MacDonald (1982) 456 U.S. 1, 7-8 [71 L.Ed.2d 696, 703-

704, 102 S.Ct. 1497].)

A-42

Another purpose of the speedy trial right is to protect

against oppressive or negligent governmental delay in

bringing cases to trial. Underlying this right is the belief

that once charges have been filed, governmental delay

must be justified by necessity. “The government cannot

take property from the meanest inhabitant, without just

compensation paid or tendered in advance; but it takes

his liberty, which it has been justly said is to some extent

to take his life, upon a mere charge of crime. This is

necessary, that society may be protected. But necessity is

the only excuse, and to imprison beyond what is abso-

lutely necessary is tyrannous and oppressive. And that is

precisely what the state has covenanted with each inhabi-

tant that it will not do.” (Jn re Begerow (1901) 133 Cal.

349, 352 [65 P. 828].) Thus, charges have been ordered

dismissed when the delay is lengthy and unjustified,

regardless of its actual effect on the defense at trial.

(Barker v. Municipal Court, supra, 64 Cal.2d at p. 812;

Harris v. Municipal Court, supra, 209 Cal. at pp. 62-63.)

These purposes are distinct from those protected by the

prearrest due process right. Were they not, there would

be no point in determining the point at which the speedy

trial right attaches. (See Hannon, supra, 19 Cal.3d at pp.

603-608. )

The due process right protects the fairness of the trial

itself. (United States v. MacDonald, supra, 456 U.S. at p. 8

[71 L.Ed.2d at p. 704}; see United States v. Lovasco

(1977) 431 U.S. 783, 790 [52 L.Ed.2d 752, 759, 97 S.Ct.

2044], rehg. den., 434 U.S. 881 [54 L.Ed.2d 164, 98 S.Ct.

242].) The harm to the accused from extended pretrial

delays has been compared to the harm from governmental

suppression of material witnesses or evidence. (United

States v. Marion, supra, 404 U.S. at p. 324 [30 L.Ed.2d at

pp. 480-481]; see also People v. Alvarado (1968) 258

A-43

Cal.App.2d 756 [66 Cal.Rptr. 41].) Thus, it is logical to

require a showing of actual prejudice concerning the

ability to defend, in order to trigger an inquiry into

whether a governmental delay in initiating prosecution

has made a trial unfair.

Furthermore, at the preaccusatory stage courts are

reluctant to scrutinize whether a delay was really neces-

sary. Both this court and the United States Supreme

Court have recognized the difficulty of trying to second

guess the pace at which law enforcement investigation

should proceed or the moment at which the decision to file

charges should be made. (Archerd, supra, 3

[40 Cal.3d 270]

Cal.3d at p. 640; United States v. Lovasco, supra, 431 U.S.

at pp. 790-796 [52 L.Ed.2d at pp. 759-763].) The thresh-

old prejudice requirement ensures that this inquiry need

be made only in those select cases where the accused has

suffered harm.

Once charges are brought, however, the interests at

stake are different. The state’s need to investigate is

presumably satisfied once it has filed charges. At this

stage an inquiry into the reasons for delay does not

involve judicial interference with law enforcement. At the

same time, the state has tolled the statute of limitations,

which is the accused’s primary protection against the

prejudice inherent in defending against a stale charge.

(Umited States v. MacDonald, supra, 456 U.S. at p. 8;

Archerd, supra, 3 Cal.3d at p. 639.) Moreover, the other

interests protected by the speedy trial right come into

play, as does “the duty of all courts and judicial officers

and of all counsel, both the prosecution and the defense,

to expedite ... proceedings to the greatest degree that is

A-44

consistent with the ends of justice.” (Pen. Code, § 1050;

see Sykes, supra, 9 Cal.3d at p. 88.)

At this stage, it makes no sense to set up a threshold

requirement that the accused show prejudice to his ability

to defend before there can be an inquiry into the length of

and reasons for the state’s delay. The federal Constitu-

tion contains no such requirement, and I would not read

one into the California Constitution.

Lucas, J. — I respectfully dissent. The majority fails to

cite convincing caselaw or policy justifications to support

its holding that a misdemeanant’s federal speedy trial

rights attach upon the filing of a complaint even though

no arrest has yet occurred. The United States Supreme

Court has never extended speedy trial rights to prearrest

delays and our own court has held that the filing of a

criminal complaint does not trigger the federal speedy

trial guarantee. (People v. Hannon (1977) 19 Cal.3d 588

[138 Cal.Rptr. 885, 564 P.2d 1203].) The majority’s

attempt to distinguish Hannon is unsuccessful and its

attempt to link the filing of a misdemeanor complaint with

the policies underlying the speedy trial clause of the

Sixth Amendment are either misguided or based on un-

supported speculation.

The Sixth Amendment states that “In all criminal

prosecutions, the accused shall enjoy the right to a speedy

and public trial....” (U.S. Const., 6th Amend.) Our task

therefore is to decide when a misdemeanor suspect be-

eomes an “accused” for purposes of the speedy “trial

clause. In a passage applicable to the present case, the

United States Supreme Court explained the interests

protected by the speedy trial provision: “The Sixth

Amendment right to a speedy trial is... not primarily

intended to prevent prejudice to the defense caused by

passage of time; that interest is protected primarily

A-45

[40 Cal.3d 271]

by the Due Process Clause and by statutes of limitations.

The speedy trial guarantee is designed to minimize the

possibility of lengthy incarceration prior to trial, to re-

duce the lesser, but nevertheless substantial, impairment

of liberty imposed on an accused while released on bail,

and to shorten the disruption of life caused by arrest and

the presence of unresolved criminal charges.” (United

States v. MacDonald (1982) 456 U.S. 1, 8 = L.Ed.2d 696,

704, 102 S.Ct. 1497].)

MacDonald establishes that not all criminal accusations

automatically trigger the protections of the speedy trial

provision. The only ones so affected are those that present

a realistic possibility of (1) pretrial incarceration, (2)

anxiety to the accused, or (3) public scorn arising from

widespread knowledge of the charges. All three interests

are clearly implicated if a suspect is arrested and charged

with a felony or a misdemeanor. Therefore, arrest of a

suspect, providing he is subsequently charged, will always

trigger the federal speedy trial provision. But the high

court has never extended speedy trial rights to an ac-

cused before that court prior to his arrest,’ and United

States v. Marion, supra, 404 U.S. 307, 320-322 [30 L.Ed.2d

'See, for example, United States v. MacDonald, supra, 456 U.S. 1,

United States v. Lovasco (1977) 431 U.S. 783 [52 L.Ed.2d 752, 97

S.Ct. 2044], Moore v. Arizona (1973) 414 U.S. 25 [38 L.Ed.2d 183, 94

S.Ct. 188], Barker v. Wingo (1972) 407 U.S. 514 [33 L.Ed.2d 101, 92

S.Ct. 2182], and United States v. Marion (1972) 404 U.S. 307 [30

L.Ed.2d 468, 92 S.Ct. 455]. Even the dissenting opinions of the high

court have argued for applying speedy trial protection for prearrest

delays only when the suspect is aware of the investigation, a situation

that does not exist in the present case. (See, e.g., MacDonald, supra,

at pp. 12-21 [71 L.Ed.2d at pp. 706-712] [dis. opn. by Marshall, J.];

Lovasco, supra, at pp. 797-800 [52 L.Ed.2d at pp. 763-765] [dis. opn.

by Stevens, J.].)

A-46

468, 478-480], indicates that the court is not convinced

that speedy trial rights should ever attach before a sus-

pect is arrested.

In Marion the court stated, “[I]t is either a formal

indictment or information or else the actual restraints

imposed by arrest and holding to answer a criminal

charge that engage the particular protections of the

speedy trial provision of the Sixth Amendment. [{] Invo-

cation of the speedy trial provision thus need not await

indictment, information, or other formal charge. But we

decline to extend the reach of the amendment to the period

prior to arrest. Until this event occurs, a citizen suffers no

restraints on his liberty and is not the subject of public

accusation: his situation does not compare with that of a

defendant who had been arrested and held to answer.

Passage of time, whether before or after arrest, may

impair memories, cause evidence to be lost, deprive the

defendant of witnesses, and otherwise interfere with his

ability to defend himself. But this possibility of prejudice

at trial is

[40 Cal.3d 272]

not itself sufficient reason to wrench the Sixth Amend-

ment from its proper context.” (Jd., at pp. 320-322, italies

added, fns. omitted.)

*There is other evidence in Marion that the court considered only

postarrest delays as relevant to speedy trial claims. As an example of

a legislative interpretation of the speedy trial right, the court cited

Federal Rules of Criminal Procedure, rule 48(b) (28 U.S.C.) which

“authorizes dismissal of an indictment, information, or complaint

‘{i]f there is unnecessary delay ...in bringing a defendant to trial

.... The rule cléarly is limited to post-arrest situations.” (Marion,

supra, 404 U.S. at p. 319 [30 L.Ed.2d at p. 478], italies added.) This

is the only passage in Marion that specifically mentions a complaint.

A-47

Moore v. Arizona, supra, 414 U.S. 25, 27 [38 L.Ed.2d

183, 186], similarly implies that prearrest delays may be

outside the purview of the federa! speedy trial guarantee.

There, the court reiterated the disabilities caused by

“Ti]nordinate delay’” and observed that “ ‘they are inevi-

tably present in every case to some extent, for every

defendant will either be incarcerated pending trial or on

bail subject to substantial restrictions on his liberty.’ [ Cita-

tion.]”’ (Ibid., italies added; see also Barker v. Wingo,

supra, 407 U.S. 514, 532-533 and fn. 33 [33 L.Ed.2d 101,

118-119].)

Although the court in Marion concluded that the

speedy trial rights of the defendants in that case attached

upon their indictment (Marion, supra, 404 U.S. at p. 313

[30 L.Ed.2d at p. 474]), the defendants were apparently

indicted and arrested on the same day. Furthermore,

Marion's holding cannot be read in isolation from the

eourt’s clear refusal to extend speedy trial rights to the

prearrest period. Even, assuming arguendo, that issuance

of an indictment prior to arrest may trigger the federal

speedy trial provision,’ the majority is unjustified in

‘The court commented that delay following arrest, “ ‘wholly aside

from possible prejudice to a defense on the merits, may “seriously

interfere with the defendant’s liberty, whether he is free on bail or

not, and...may disrupt his employment, drain his financial re-

sources, curtail his associations, subject him to publie obloquy, and

create anxiety in him, his family and his friends.” United States v.

Marion, 404 U.S. 307, 320 (1971).’” (414 U.S. at p. 27 (38 L.Ed.2d at

p. 186].)

*Several federal appellate courts have held that speedy trial rights

are triggered by indictment, information, or arrest, whichever occurs

first. (See, e.g., United States v. Milhim (5th Cir. 1983) 702 F.2d 522,

525; United States v. Gonzales (11th Cir. 1982) 671 F.2d 441, 444, cert.

den. Gonzales-Hernandez v. United States, 456 U.S. 994 [73 L.Ed.2d

1291, 102 S.Ct. 2279]; United States v. Cordova (9th Cir. 1976) 537

A-48

extending speedy trial rights to a suspect upon the date a

complaint is filed. An indictment, of course, follows a

determination by a neutral factfinder (i.e., a grand jury)

that there is probable cause to believe a suspect has

committed a crime.’ A complaint, on the other hand, may

be filed merely on the information and belief of an

interested party (e.g., a policeman or the district attor-

ney). Given the different origins

[40 Cal.3d 273]

of these two kinds of pleading, as well as the disparity in

the severity of the crimes involved, it is evident that the

typical grand jury indictment will normally have a greater

impact on the accused and the public than the filing of the

typical misdemeanor complaint.

Indeed, we recognized the difference between a com-

plaint and an indictment for speedy trial purposes in our

decision in People v. Hannon, supra, 19 Cal.3d 588, when

we revised our interpretation of the Sixth Amendment

originally stated in Jones v. Superior Court (1970) 3

Cal.3d 734 [91 Cal.Rptr. 578, 478 P.2d 10]. In Jones,

without distinguishing between misdemeanors and felo-

nies, we held that a suspect’s federal and state speedy

trial rights attach upon the “filing of a complaint or other

charge.” (Jones, at p. 739.) However, seven years later, in

Hannon, we reinterpreted the federal speedy trial clause,

stating, “In contrast to the conelusion we reached in

Jones,...the language used by the Supreme Court in

F.2d 1073, 1075, cert. den. 528 U.S. 960 [50 L.Ed.2d 327, 97 S.Ct.

385].) The United States Supreme Court, however, has never so held.

°An information also follows a probable cause determination by a

neutral factfinder (i.e., a magistrate), but this can only occur after

the suspect has been arrested or concedes jurisdiction. (Pen. Code,

§ 738.)

A-49

delineating the scope of protection afforded by the federal

charter was more limited than that which we adopted in

Jones: ‘[I]t is either a formal indictment or information or

else the actual restraints imposed by arrest and holding to

answer a criminal charge that engage the particular pro-

teetions of the speedy trial provision of the Sixth Amend-

ment.’ ([Citing Marion, supra, 404 U.S.] at p. 320, italies

added.) Insofar as the filing of an indictment or informa-

tion is concerned the Supreme Court’s holding is coexten-

sive with our decision in Jones.... On the other hand,...

we conclude that the Supreme Court intended by its use

of the foregoing phrase to hold that the filing of a

complaint is by itself insufficient to trigger the protection

of the right to a speedy trial under the federal Constitu-

tion.” (Hannon, supra, at pp. 605-606, italics in original.)

That we made no distinction between felony and misde-

meanor complaints in our Hannon analysis is evidenced

by our later remark that the “United States Supreme

Court has apparently concluded that the Sixth Amend-

ment guarantee of the right to a speedy trial does not

extend to the prearrest stage when the sole accusation

against an individual consists of the filing of a criminal

complaint.” (Jd., at p. 608, italies added.) A misdemeanor

complaint is equally a criminal complaint.

The majority nonetheless attempts to confine Hannon’s

holding to felony complaints.° It notes that felony com-

plaints are not “accusatory pleadings”; they only give a

magistrate jurisdiction to conduct a preliminary hearing

to determine if there is probable cause to bind a defen-

‘Interestingly, the majority cites Jones,, supra, as applicable to

misdemeanors. (Ante, p. 248.) Yet, it insists that Hannon, which

expressly reinterpreted Jones, applies only to felonies.

A-50

dant over for trial. A misdemeanor complaint, on the

other hand, gives a municipal court judge

[40 Cal.3d 274]

jurisdiction to try the case. Granting this jurisdictional

distinction between felony and misdemeanor complaints,

the majority fails to show how it is relevant to the policies

underlying the speedy trial clause. The weakness of the

majority’s approach is demonstrated by its reliance on

State v. Gee (1984) 298 Md. 565 [471 A.2d 712].

In Gee, the Maryland Supreme Court relied on Kirby v.

Illinois (1972) 406 U.S. 682, 689 [32 L.Ed.2d 411, 92

S.Ct. 1877], to determine when a suspect’s speedy trial

rights attach. (See Gee, supra, 471 A.2d at pp. 715-716.)

Kirby, however, analyzed the Sixth Amendment right to

counsel and has no bearing on when the right to speedy

trial attaches. The United States Supreme Court made

this distinction abundantly clear only last term when it

reversed the Ninth Circuit for using speedy trial analysis

to determine when the right to counsel attaches. (United

States v. Gouveia (1984) — U.S. —, — [81 L.Ed.2d 146,

155, 104 S.Ct. 2292}.) The high court expressly declared

that the speedy trial guarantee need not attach at the

same time as the right to counsel because they “protect

different interests.” (Ibid. )

Apparently the majority believes a suspect is “accused”

to a greater extent upon the filing of a misdemeanor

complaint because of its jurisdictional function. But to

define an “accused” for speedy trial purposes, one must

look to the interests protected by that right. For example,

courts have held that issuance of a sealed indictment

cannot invoke the speedy trial rights of the person in-

dicted. (United States v. Watson (2d Cir. 1979) 599 F.2d

1149; United States vy. Hay (10th Cir. 1975) 527 F.2d 990.)

A-51

As stated in Watson, “Because neither the indicted defen-

dant nor the public has notice of the charges, such an

indictment does not bring about ‘the major evils pro-

tected against by the speedy trial guarantee’ [citation],

namely, publie obloquy and anxiety to the accused.” (599

F.2d 1149, 1156, fn. 5.) In a similar vein, I fail to see why

delays following a misdemeanor complaint filing would

cause any greater cognizable harm than delays following

a felony complaint filing.

In summary, the relevant United States Supreme Court

decisions not only do not support the majority’s holding,

but our own decision in People v. Hannon, supra, 19

Cal.3d 588, directly contradicts it. Furthermore, neither

the majority’s research nor my own discloses any case

after Marion, supra, 404 U.S. 307, that invokes a defen-

dant’s federal speedy trial rights upon the filing of a

eomplaint prior to arrest, information, or indictment.

(See ante, p. 256.) '

[40 Cal.3d 275]

In addition to the lack of supporting case authority, the

majority also fails to link suecessfully their result with

the interests protected by the speedy trial provision. The

majority first notes that a delay such as occurred in the

present case will likely cause witnesses to disappear,

memories to fade, and evidence to vanish. (Ante, p. 251.)

It bears emphasis here that these consequences will inevi-

“Although three of the cases cited do specifically mention a com-

plaint as triggering the federal speedy trial guarantee, they do so

only in dicta and without analysis. When read in [p. 275] context, the

eases support only the proposition that the federal guarantee does

not extend to delays prior to arrest, indictment, or information. (See

People v. Velasquez (Colo. 1982) 641 P.2d 943; Commonwealth v.

Conant (1981) 12 Mass.App. 287 [423 N.E.2d 1035]; People v. Nichols

(1978) 60 Ill.App.3d 919 [18 Ili.Dee. 330, 377 N.E.2d 815].)

A-52

tably result from any long delay, including a precom-

plaint delay, and they are as likely to benefit defendant as

to prejudice him. Perhaps for this reason, the United

States Supreme Court has clearly held that such conse-

quences are a concern of the due process clause of the

Fifth Amendment, not the speedy trial clause of the Sixth

Amendment. (MacDonald, supra, 456 U.S. at p. 8.) To

state a due process claim, a defendant must prove actual

prejudice, which the majority concedes defendant has

been unable to do in the present case.

Next, the majority speculates that a delay following the

filing of a misdemeanor complaint may disrupt the ac-

eused’s life “by affecting his credit rating, job applica-

tions, admission to schools and other activities in which

background checks are routine.” (Ante, p. 261.) Other

than observing that misdemeanor complaint filings may

be published, the majority does not indicate how wide-

spread public knowledge may come about. One would

suppose that, absent arrest, the typical misdemeanor

complaint filing, of which thousands throughout the state

oeceur daily, would be a rather unnewsworthy event.°

Furthermore, although some employers and schools may

routinely check misdemeanor filings, the majority pro-

vides no estimate of how prevalent this practice may be.

Most significantly, the majority fails to explain why this

parade of horribles follows from the filing of a misde-

meanor complaint, but not a felony complaint.”

*According to the 1985 Annual Report of the Judicial Couneil of

California, table A-30, at page 215, there were 717,974 nontraffiec

misdemeanor and infraction filings in California in the fiseal year

1983-1984. The total excludes felonies reduced to misdemeanors.

*Additionally, the majority points out the supposed unfairness in

postponing possible punishment for years while the suspect leads a

blameless life. First, the majority ignores the possibility that the

A-53

In conclusion, the majority’s position is unsupported by

the relevant caselaw, and its invocation of the interests

protected by the federal speedy trial right rests only on

surmise. I remain unconvinced there is any federal consti-

tutiona] basis for extending speedy trial rights to the

“prearrest stage

[40 Cal.3d 276]

when the sole accusation against an individual consists of

the filing of a criminal complaint.” (Hannon, supra, 19

Cal.3d at p. 608.)

I would deny the peremptory writ.

Kaus, J.,* concurred.

suspect might be more than happy to postpone punishment. Second,

the defendant in the present case was arrested after he passed out

from overindulgence of PCP; we are not presented with the hypothet-

ical defendant who shows no need for rehabilitation. Again, the

majority’s worries are based on mere speculation.

*Retired Associate Justice of the Supreme Court sitting under

assignment by the Chairperson of the Judicial Council.

A-54

[40 Cal.3d 702a]

[L.A. No. 31856. Dee. 19, 1985.]

JOAQUIN MARIO SERNA, Petitioner v.

THE SUPERIOR COURT OF LOS ANGELES

COUNTY, Respondent;

THE PEOPLE, Real Party in Interest.

[ Modification* of opinion (40 Cal.3d

239; — Cal.Rptr. —, — P.2d —).]

THE COURT. — The filed opinion herein is hereby modi-

fied in the following respects:

The first full paragraph commencing on page 16 (40

Cal.3d 239, advance report, p. 252, last par., and p. 253,

lines 1-30) is modified to read:

‘We agree that the delay here was presumptively preju-

dicial. The length of the delay between the filing of the

complaint and the arrest of defendant far exceeded the

one-year limitation period applicable to misdemeanors

generally. Had there been no complaint on file this prose-

eution would have been statutorily barred. Statutes of

limitation reflect a legislative construction of the speedy

trial guarantee. (Barker v. Municipal Court (1966) 64

Cal.2d 806, 812, [51 Cal.Rptr. 921, 415 P.2d 809].)

Although the period of limitation for some misdemeanors

*This modification requires editorial changes in headnotes (6a, 6b)

and (7a, 7b), pages 242-243 of the advance report. In the bound

volume report, headnote (6a, 6b), page 242, lines 12-13 will be

changed to read: “plaint and the arrest exceeds one year. Thus, a

defendant in....” In headnote (7a, 7b), page 243, the last sentence

will be changed to read: “Although there may be eases in which a

defendant is able to demonstrate actual prejudice from delays of

shorter duration, he need not do so when the delay exceeds one year.”

Movement of text will be made affecting pages 253-276 of the bound

volume report.

A-55

which might have been charged as felonies is now three

years (see § 805), the ~ne-year period of limitation for

“any misdemeanor” was part of the Penal Code on its

adoption in 1872. (See former § 801.) A court may appro-

priately conclude that delays between the filing of a

complaint and the arrest of a defendant which exceeds

the typical one-year period of limitation generally applica-

ble to misdemeanors are unreasonable and thus presump-

tively prejudicial within the contemplation of the speedy

trial guarantee. “{T]he concept of a period of limitation

developed in recognition of the ever increasing difficulty

faced by both the government and a criminal defendant in

obtaining reliable evidence (or any evidence at all) as

time passes following the commission of a crime....

[40 Cal.3d 702b]

[{] Other policy considerations which underlie the con-

cept of a period of limitation vary in purpose. The possi-

bility of self-reformation by the criminal offender may

lessen the need for society to impose corrective sanctions

and society’s impulse for retribution may correspondingly

diminish as time passes... . Finally, adoption of a period

of limitation represents a legislative recognition that for

all but the most serious of offenses (such as murder or

kidnaping) a never-ending threat of prosecution is more

detrimental to the functioning of a civilized society than

it is beneficial.” (People v. Zamora (1976) 18 Cal.3d 538,

546-547 [134 Cal.Rptr. 784, 557 P.zd 75j.) It would be

anomalous in light of the congruent objectives of the

speedy trial guarantee and the legislatively adopted one-

year period of limitation that has governed misdemeanors

for over a century if, after a decision has been made to

prosecute an offense as a misdemeanor, the mere filing of

a misdemeanor complaint without further action by the

A-56

state for a period in excess of one year were not presumed

to be a violation of the right to speedy trial, and the

People compelled to justify the delay.”

The first sentence in the first full paragraph ecommenc-

ing on page 17 (40 Cal.3d at p. 253, 1st full par., line 4) is

modified to substitute “one year” for “the statutory pe-

riod of limitation.”

The last sentence commencing on page 18 (40 Cal.3d at

p. 254, lines 6-14) is modified to read: “Although this

manifests a legislative conclusion that the delay between

the filing of the complaint and arraignment should not be

considered in determining if a delay in bringing a misde-

meanor defendant to trial is unreasonable, the one-year

period of the generally applicable misdemeanor statute of

limitations remains as a touchstone for measuring the

reasonableness of a delay between complaint and arrest.”

The first sentence of the first full paragraph commenc-

ing on page 19 (40 Cal.3d at p. 254, 1st full par., lines 4-6)

is modified to sutstitute “one-year” for "the period of

limitation established by the Legislature.”

The last full sentence commencing on page 37 (40

Cal.3d at p. 263, 1st full par., line 25) is modified by the

insertion of the word “felony” prior to the word “defen-

dant.” The last sentence commencing on page 37 (40

Cal.3d at p. 263, 1st full par., line 32) is modified by

inserting the word “felony” before the word “defendant”

on the last line of that page (in the second clause of that

sentence).

The second and third sentences of the first full para-

graph on page 38 (40 Cal.3d at p. 263, 2d full par., lines 3-

9) are modified to read: “When, in a proper Barker v.

Wingo hearing a Sixth Amendment speedy triai violation

A-57

has been established, reversal of a subsequent judgment

of conviction and

[40 Cal.3d 702c]

dismissal of the charge are necessary in every case. When

unjustified prejudice to the defendant’s ability to defend

has been established there can be no question that rever-

sal and dismissal are required.”

A-58

IN THE COURT OF APPEAL OF THE

STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

2d B001475

JOANQUIN MARIO SERNA,

Petitioner,

Vv.

SUPERIOR COURT OF THE

CouUNTY OF Los ANGELES,

Respondent,

THE PEOPLE,

Real Party in Interest.

(Sup.Ct.No. C 456799:

James N. Reese, Judge)

(L.A. Muni.Ct.No. 31106954:

Veronica Simmons McBeth, Judge)

ORDER

Filed: December 20, 1983

THE COURT:*

The petition for writ of mandate filed September 30,

1983, pursuant to section 904.1, subdivision (a), of the

Code of Civil Procedure, has been considered and is

denied. This result is controlled by Overby v. Municipal

Court (1979) 121 Cal.App.3d 377, 386.

“WOODS, P.J., AMERIAN, J.

I would issue the Alternative Writ.

*KINGSLEY, J.,

A-59

Dept. 70

SUPERIOR COURT OF CALIFORNIA,

COUNTY OF LOS ANGELES

C 456 799 (M.C. No. 31106954)

JOAQUIN MARIO SERNA

vs.

THE MUNICIPAL COURT OF THE

Los ANGELES JUDICIAL DISTRICT

AND

PEOPLE OF THE STATE OF CALIFORNIA,

Real Party in Interest

Honorable James N. Reese, Judge

B. J. Schneider, Deputy Clerk

Annette Schmitt, Reporter

HEARING ON PETITION FOR WRIT OF

MANDATE

Counsel for Plaintiff: Wilbur F. Littlefield, Public De-

fender, by John Hamilton Scott

Counsel for Defendant: Ira Reiner, City Attorney, by

treg Wolff

Date: September 22, 1983

Matter comes on for hearing.

The Court has read and considered the verified petition

and supporting points and authorities, the record of the

trial court proceedings, the answer of real party in inter-

est, and the reply thereto, and now considers oral

argument.

Matter is taken under submission.

LATER, the Court rules as follows:

Petition is DENIED.

A-60

Counsel for real party in interest is directed to prepare,

serve, and submit to this court the form of judgment.

Copies of this minute order are transmitted this date,

addressed as follows:

Los Angeles County Public Defender

Appellate Division

19-513 Criminal Courts Building

210 West Temple St.

Los Angeles, CA 90012

Presiding Judge

Los Angeles Municipal Court

110 N. Grand Ave.

Los Angeles, CA 90012

City Attorney

Appellate Division

1700 City Hall East

Los Angeles, CA 90012

A-61

Order Due: December 23, 1985

ORDER DENYING REHEARING

LA No. 31856

IN THE SUPREME COURT OF THE

STATE OF CALIFORNIA

IN BANK

JOAQUIN MARIO SERNA

Vv.

SUPERIOR COURT OF LOS ANGELES COUNTY, _

Respondent

PEOPLE,

Real Party in Interest

Opinion modified.

Appellant's petition for rehearing DENIED.

Lueas J., is of the opinion the petition should be

granted.

BIRD

Chief Justice

A-62

IN THE SUPREME COURT OF THE

STATE OF CALIFORNIA

No. L.A. 31856

(LASC No. C-456799)

JOAQUIN MARIO SERNA,

Petitioner,

Vv.

THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES,

Respondent,

THE PEOPLE OF THE STATE OF CALIFORNIA,

Real Party in Interest.

PEREMPTORY WRIT OF MANDATE

TO THE SUPERIOR COURT OF THE STATE OF

CALIFORNIA FOR THE COUNTY OF LOS

ANGELES:

GOOD CAUSE APPEARING THEREFOR and pur-

suant to the judgment of this court entered October 24,

1985 (as modified December 19, 1985), and the remittitur

filed December 20, 1985, it is hereby ordered that you

vacate and set aside your order denying the petition for

writ of mandate in the case entitled “Serna v. Municipal

Court”, ease number C-456799, and that you enter a new

and different order issuing a writ of mandate directed to

the Municipal Court of the Los’Angeles Judicial District.

That writ shall compel the municipal court to vacate and

set aside its order of May 16, 1983, denying petitioner's

motion to dismiss misdemeanor complaint number

31106954, and shall direct that court to thereafter con-

duct further proceedings upon petitioner's motion consis-

A-63

tent with the views of the California Supreme Court in

Serna v. Superior Court (1985) 40 Cal.3d 239.

Dated: January 15, 1986

LAURENCE P. GILL,

Clerk of the Supreme Court of

the State of California

By A. JOHNSON

Deputy