PEOPLE v. MIYAMOTO

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Court of Appeal, Second District, Division 2, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Byron Akira MIYAMOTO, Defendant and Appellant.

Cr. 43114.

Decided: August 16, 1983

Bledstein & Lauber by I. Mark Bledstein, Encino, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Robert R. Anderson, Alice E. Altoon, Deputy Attys. Gen., for plaintiff and respondent.

Defendant Byron Akira Miyamoto appeals from a judgment entered following a jury trial in which he was found guilty of four counts of forcible rape (Pen.Code, § 261(2), and (3), three counts of false imprisonment (Pen.Code, § 236), one count of attempted unlawful oral copulation (Pen.Code, § 664 and 288a(c)), one count of assault (Pen.Code, § 240), and one count of assault with a deadly weapon (Pen.Code, § 245.)

Defendant, prior to trial, admitted having suffered a prior conviction for forcible rape in 1970.   We affirm the judgment of conviction.1

The charges of which defendant was convicted arose out of sexual assaults on four separate victims and occurred on four separate dates during the period between August 1978 and December of 1980.

Defendant, in light of the record, quite wisely does not challenge the sufficiency of the evidence nor does he allege that the trial was infected by any substantial error.   His entire attack on the judgment is premised on certain alleged error which occurred prior to the filing of the information in the superior court.

Reduced to its simplest terms, defendant's primary contention on this appeal is that the magistrate who presided over the preliminary hearing should have dismissed the charges rather than committing defendant to the superior court for trial.

This contention, again, is not based on any lack of evidence to hold defendant to answer, but instead on defendant's claim that his right to due process and speedy trial were violated by a delay between commission of the crimes and the initiation of criminal proceedings against him.

The first of the four incidents involved here occurred late in August of 1978.   Defendant was arrested on the basis of the victim's report to the police.   He was, however, promptly released when the district attorney declined to prosecute because of lack of evidence to corroborate the victim's testimony.

In late March of 1980, police received another report accusing defendant of forcible rape on a different victim.   Although the defendant's modus operandi was similar to that of the 1978 rape and the evidence tended to strengthen the case against defendant, the district attorney was still of the opinion that a successful prosecution was improbable.   Defendant was neither arrested nor charged.

When a third report by yet another victim alleging that, under identical circumstances to the previous two crimes, defendant had committed a forcible rape, defendant was arrested and a complaint was filed in the Municipal Court of the Inglewood Judicial District.

The fourth incident, on the basis of which defendant was convicted of rape, occurred on November 5, 1979, but did not come to light until after the December 30, 1980 incident.

When the matter came on for preliminary hearing, defendant successfully moved to have the magistrate, erroneously in our opinion, dismiss the charges stemming from the 1978 and 1979 incidents on due process and speedy trial grounds.   The district attorney then moved to dismiss the remaining counts because of a belief that dismissal of the earlier charges decimated the case against defendant.

Subsequently, the district attorney filed in the Municipal Court of the Los Angeles Judicial District a new complaint embracing all of the previously dismissed charges.   Defendant again moved for a dismissal on the previously stated grounds and the additional ground that the district attorney was collaterally estopped from refiling those charges.   This time the motion was denied.   Defendant was held to answer.   He pleaded not guilty to the information and was subsequently tried and convicted.   At no time in the superior court did defendant challenge the magistrate's order of commitment.

Penal Code section 995 provides in part “․ the indictment or information shall be set aside by the court in which the defendant is arraigned, upon his or her motion, in either of the following cases: ․ (2) If it is an information:  (A) That before the filing thereof the defendant had not been legally committed by a magistrate․”

Penal Code section 996 provides:  “If the motion to set aside the indictment or information is not made, the defendant is precluded from afterwards taking the objections mentioned in Section 995.”

 Any claimed due process violation based upon prearrest delay or the refiling of previously dismissed charges could, of course, have been raised by a timely motion under Penal Code section 995, an independent motion to dismiss, or an objection to setting the case for trial.   Under the circumstances the failure to raise the issue in the superior court constituted a waiver.

“The Legislature has provided defendants in criminal cases with a statutory opportunity to test the legality of their commitment, and it is not an undue burden to expect defendants who wish to raise this issue to proceed by filing a timely motion under section 995․  But to permit a defendant to question the legality of his commitment for the first time on appeal would enable him to secure a reversal of his judgment of conviction even though he was found guilty after an errorless trial.”  (People v. Harris (1967) 67 Cal.2d 866, at 870, 64 Cal.Rptr. 313, 434 P.2d 609.)

 In any event, defendant's claim is totally lacking in merit.   Even though the charges had previously been dismissed, there was no constitutional or statutory bar to refiling the charges and the doctrine of res judicata and collateral estoppel simply did not apply.  (People v. Uhlemann (1973) 9 Cal.3d 662, 108 Cal.Rptr. 657, 511 P.2d 609;  People v. Luna (1983) 140 Cal.App.3d 788, 189 Cal.Rptr. 792;  Crockett v. Superior Court (1975) 14 Cal.3d 433, 121 Cal.Rptr. 457, 535 P.2d 321.)   This is especially true since, as we will indicate, the dismissal of the first complaint was patently erroneous.

 The subject of delay in criminal prosecutions must be considered in two contexts.   The constitutional guarantee of a right to a speedy trial embraced by the Sixth Amendment to the United States Constitution, and Article I, section 15 of the California Constitution deal with delays occurring between arrest or the filing of accusatory pleadings and commencement of trial.   (Scherling v. Superior Court (1978) 22 Cal.3d 493, 504, 149 Cal.Rptr. 597, 585 P.2d 219.)

On the other hand, delay between the crime and the arrest or the filing of an accusatory pleading, is basically governed by the statute of limitations, which is the primary protection against the prosecution of stale offenses.   (People v. Archerd (1970) 3 Cal.3d 615, 91 Cal.Rptr. 397, 477 P.2d 421.)

 In People v. Archerd, supra, the Supreme Court arrayed a number of cases, mostly from the federal courts, which had given “judicial consideration” to prearrest delay.   The rule evolved was that it is possible for a defendant to claim a violation of due process or basic “unfairness” as a result of the delay in arresting and charging him.   The burden is on a defendant to prove such a claim by showing prejudice from the delay and lack of justification therefor.   No prejudice is presumed.   Furthermore, it is proper for a trial court to delay a ruling on such a claim until after trial when it can be determined that prejudice in fact resulted.

The Archerd court squarely held that for a defendant to obtain relief he must prove that the delay was purposeful, oppressive or suggestive of deliberate obstruction on the part of the prosecution.   This requirement was apparently diluted by dicta in Scherling v. Superior Court, supra.   There the court stated that the test was whether defendant was deprived of a fair trial from unjustified delay, whether the result of deliberate or negligent conduct on the part of the prosecuting authorities.  (See also People v. Allen (1979) 96 Cal.App.3d 268, 274–275, 158 Cal.Rptr. 54.)

After making that statement, however, the court went on to conclude that in the case under consideration there was neither prejudice nor deliberate delay and hence no reason to invoke the rule.

We conclude that in order to establish a claim to relief on the grounds that there has been a delay in arresting or bringing charges against an individual, defendant has a heavy burden.

The rule which would grant relief under the very limited circumstances which have been recognized, is in derogation of the statute of limitations in that it is a judicial shortening of the statutory period.   Its application thus involves the court in a judgmental decision involving a very sensitive area.

 The duly constituted prosecuting official must, of necessity, have broad discretion in determining if and at what point he will bring the force of the state to bear on an effort to deprive an individual of his or her liberty.   Given the procedural restraints which control the gathering of evidence and the heavy burden of proof beyond a reasonable doubt which must be shouldered by the prosecution in electing to initiate criminal proceedings, the public official having that authority must be afforded an opportunity to proceed at a measured pace in developing the evidence he considers to be adequate.

Thus only the most egregious conduct, whether deliberate or negligent, or the most clear proof of prejudice can justify a court's intervention to block a prosecution instituted within the period of the statute of limitations.

 Defendant does not claim that the delay was unjustified and, except for saying that his memory had been diminished, does not show how the delay affected his trial.   Through our liberal discovery procedures he was provided with access to the prosecution's evidence and was allowed to examine each witness prior to trial.   He makes no claim that witnesses in his favor became unavailable or that evidence became stale as a result of the delay.

 Even were we to assume that defendant had demonstrated some form of prejudice flowing from the delay, we would be forced to conclude that it was justified.   The evidence firmly established that the only reason charges were not filed earlier was because of the district attorney's belief that defendant's guilt could not be proved beyond a reasonable doubt.   Given the unique circumstances of each sexual assault involved here, the prosecutor's decision to delay filing was eminently reasonable.

 It is well settled that the due process clause does not permit a court to abort criminal prosecutions merely because it disagrees with a prosecutor's judgment on when to seek an indictment or file an information.  “[P]rosecutors do not deviate from ‘fundamental conceptions of justice’ when they defer seeking indictments until they have probable cause to believe an accused is guilty;  indeed it is unprofessional conduct for a prosecutor to recommend an indictment on less than probable cause.   It should be equally obvious that prosecutors are under no duty to file charges as soon as probable cause exists but before they are satisfied they will be able to establish the suspect's guilt beyond a reasonable doubt․  From the perspective of potential defendants, requiring prosecutions to commence when probable cause is established is undesirable because it would increase the likelihood of unwarranted charges being filed, and would add to the time during which defendants stand accused but untried.”  (United States v. Lovasco (1977) 431 U.S. 783, 790–791, 97 S.Ct. 2044, 2048–49, 52 L.Ed.2d 752)

Defendant next argues that he was denied a fair trial due to Detective Korn's 2 destruction of her personal notes from interviews with three of the victims and the destruction of the tape of an interview with one of the victims, Mary O.   It was Detective Korn's standard practice to take rough notes during an interview with a victim and then make an official report.   Upon completing her report, she would discard the rough notes.   On occasion Korn would use her own tape recorder and tapes during an interview.   She would transcribe the tape and then reuse it during another interview.

Defendant contends that these rough notes and tapes could have shed some light on whether or not force was utilized as alleged during the rapes.

 As is stated in People v. Zamora (1980) 28 Cal.3d 88, 99, 167 Cal.Rptr. 573, 615 P.2d 1361, “We first observe that the courts enjoy a large measure of discretion in determining the appropriate sanction that should be imposed because of the destruction of discoverable records and evidence.   ‘[N]ot every suppression of evidence requires dismissal of charges․  The remedies to be applied need be only those required to assure the defendant a fair trial.’ ”   The court in Zamora, at page 100, 167 Cal.Rptr. 573, 615 P.2d 1361, went on to say that “[t]he sanction depends on the materiality of the evidence suppressed.”

 In the instant case, the court concluded that the information that might have been contained in the destroyed tape was not material evidence that would have assisted defendant.   In addition, the sanction imposed by the court—the suppression of any testimony relative to Detective Korn's taped interview with Mary O.—eliminated any possibility that defendant could be prejudiced because of the officer's unintentional destruction of the tape.

 As for the rough notes, “The California cases which have considered similar issues involving rough notes have concluded that neither [People v.] Hitch [12 Cal.3d 641, 117 Cal.Rptr. 9, 527 P.2d 361] nor the Constitution require police officers to act like pack rats, saving every scrap of paper generated in an investigation.  [Citations.]  The routine destruction of the officer's handwritten notes ․ did not call for sanctions under Hitch.”   (In re Jessie L. (1982) 131 Cal.App.3d 202, 211, 182 Cal.Rptr. 396.)

There was no error.

The judgment is affirmed.

FOOTNOTES

1.   After the briefs had been filed in the instant matter, defendant petitioned this court to abandon all arguments heretofore made, to reset briefing dates, and to allow him to retain new counsel.   After a thorough review of the record, we rejected this request.   It appears to us that defendant's present counsel has adequately addressed all relevant issues raised by this appeal, and that justice would not be served by permitting defendant to unnecessarily prolong these proceedings.

2.   Hawthorne Police Detective Janet Korn, assigned to the sex crimes division of the department, had been involved in the investigation of the instant case since 1978.

COMPTON, Associate Justice.

ROTH, P.J., and GATES, J., concur.

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