Reset A A Font size: Print

Court of Appeal, Sixth District, California.

The PEOPLE, Plaintiff and Respondent, v. Richard Miguel TOSTADO, Defendant and Appellant.

No. H001991.

Decided: May 04, 1988

Michael A. Kresser, Acting Adm'r, Conflicts Admin. Program In Ass'n with Dallas Sacher, Santa Clara, for defendant and appellant under appointment by the Court of Appeal. John K. Van De Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., John H. Sugiyama, Asst. Atty. Gen., Ronald E. Niver, Supervising Deputy Atty. Gen., Clifford K. Thompson, Jerry Engler, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

Following a jury trial, Richard Miguel Tostado was convicted of selling LSD (lysergic acid diethylamide) in violation of Health and Safety Code section 11379.   On appeal, he contends:  (1) the trial court erroneously denied his motion to dismiss based on precomplaint delay;  and (2) the court erred in refusing to instruct the jury on a theory of “vicarious entrapment.”   We affirm.


Applying the proper standard of review (People v. Johnson (1980) 26 Cal.3d 557, 576, 162 Cal.Rptr. 431, 606 P.2d 738), evidence at trial disclosed the following:

While working in San Jose, co-defendant Larry Francis met a fellow employee named Chuck.   Francis described Chuck as a “crazy type” “hard core drug person,” who claimed he had been in an insane asylum and had been kicked out of the service.   According to Francis, Chuck was the “type of person you did not want to mess with.”   Chuck and his wife, Charlene, sometimes sold “speed” to other employees.

Francis also managed a trio which, on several occasions, performed at a local bar frequented by Chuck and Charlene.   When she was not accompanied by Chuck, Charlene would “pick up” on people associated with the band.   Charlene also made romantic approaches to Francis.

At some point Chuck asked Francis if he could get him a large quantity of LSD.   Francis testified he initially refused but, after repeated requests, finally agreed because he was “a little scared of the guy ․ I was not sure how he would react if I said no.”   Francis stated that Charlene was “coming on to [him] more and more, and [he] was a little worried” about how Chuck would react if he found out.

In a telephone conversation which occurred on January 30, 1985, Chuck told Francis that because of their different work schedules, it would be easier if Francis “just went right through his friends․”   This was Chuck's last involvement in this case.   A few minutes later, Francis received a phone call from Michael Calvert, a California Bureau of Narcotics agent who was conducting a covert investigation.   Agent Calvert placed the call based on information he had received from a confidential informant.1  During that telephone conversation, which was taped and read for the jury, the following colloquy took place:

“[Francis]:  So, ․ I hear you're interested.

“[Calvert]:  Yeah․   They said you gave [X] a pretty good price for the thousand.

“[Francis]:  Yeah, it's a real good price and I might even be able to get it cheaper.”

Francis and Calvert then agreed to meet at Season's Restaurant in Milpitas the following Monday.   The telephone conversation went on:

“[Francis]:  That sounds good.   Oh, one question.   You're not a narc, are you?

“[Calvert]:  No.   Hell, no.

“[Francis]:  Okay.

“[Calvert]:  Geez.

“[Francis]:  And you know I got to ask these things.

“[Calvert]:  Laughter.   Yeah, I know, no problem.

“[Francis]:  All right.”

In accordance with their prearranged plan, Calvert and Francis met at Season's Restaurant on February 4, 1985.   Francis again asked Calvert whether he was a narcotics agent.   Calvert assured Francis he was not an agent and then stated he wanted to purchase one hundred hits of LSD rather than the thousand they had previously discussed.   The two then drove to San Lorenzo Park in Santa Cruz;  en route, they discussed the possibility of future drug transactions.

When they arrived at the park, defendant approached them and asked for a cigarette.   He then asked if they wanted “some paper,” a slang term for LSD blotter.   At that point, Francis asked defendant whether he had a “sheet,” a slang term for a piece of paper containing approximately a hundred doses of LSD.   Defendant said he could get it for them and told Francis he would be back in a few minutes.   Francis asked Calvert for the purchase money and Calvert gave him $120 (a $100 bill and a $20 bill).   While Francis waited for defendant on a park bench, Calvert sat on another bench nearby.   Several minutes later, defendant approached Francis and after a brief conversation, Francis signaled Calvert to join them at which point defendant directed them to Scribner Park.   They drove to the park and once there, defendant got out of Calvert's car and approached an individual, later identified as John Winfield Scott.   After a brief conversation, Scott retrieved a book from his backpack and handed defendant a small piece of paper.   Defendant then returned to the car and gave the paper, containing LSD, to Francis.   Defendant said the price was $90.   In response, Francis gave that sum to defendant.   At that point, defendant told Calvert where he could be reached for further transactions.   Francis then turned over the LSD to Calvert.

Calvert had never met defendant before and, based on the conversation, concluded that defendant and Francis were strangers.   During the drive home, Calvert and Francis again discussed future drug transactions.

Defendant was arrested on March 12, 1985 and, after the requisite Miranda2 admonishments and waiver, stated that he did not remember selling LSD on February 4th.   He admitted, however, that he “did sell LSD and had sold LSD in the past.”   He also stated he “liked taking LSD” and felt that everyone should take it “because it opened up one's conscious mind.”   Pursuant to a search warrant, police officers conducted a search of defendant's hotel room which resulted in the seizure of $200 in cash and a box of sandwich bags, commonly used for narcotics packaging.   Police officers were unable to locate and arrest Scott, a transient.

At trial, Francis relied on the defense of entrapment, and argued that his participation in the crime was induced by Chuck and Charlene, who he contended were paid informants.

Defendant intended to rely on the defense of vicarious entrapment and asked the court to instruct the jury that he should be given the benefit of the entrapment defense if the jury found that Francis had been entrapped.   But the court refused defendant's request to instruct on this theory.   Thus, during concluding argument, defendant argued the People had not proved beyond a reasonable doubt (1) that the paper which defendant handed to Francis contained LSD;  and (2) that defendant knew the paper contained LSD.   The jury acquitted Francis, but found defendant guilty as charged.

Prior to trial, defendant moved for a dismissal on the ground that he was denied due process of law by the 36–day delay between the date of the offense and his arrest.   In points and authorities filed in support of the motion, defense counsel argued that defendant had no memory of the events of February 4th and that the preparation of his defense had been substantially prejudiced thereby.   Counsel further argued that Scott's testimony “could establish a number of defenses,” and went on to speculate on what these defenses might be.   At the hearing on this matter, the parties stipulated that the court could accept as evidence declarations filed in conjunction with the motion.   The court accepted the stipulation and considered the following evidence, derived from those declarations.

Defense Counsel's declaration:  When defendant was arrested on March 12, 1985, he informed law enforcement officers that he did not recall selling LSD on February 4, 1985.   During the period between February 4 and March 12, defendant resided at the same address.   He had given this address to the police (presumably Agent Calvert) on February 4.   Defense and police investigators were unable to locate Scott.   Based on information and belief,3 defense counsel declared that Scott had left the area before March 12, 1985, the date of defendant's arrest.   Defense counsel's declaration purported to incorporate by reference the facts adduced at the preliminary hearing.

The People's Declaration:  Agent Calvert had received information that Francis could obtain large quantities of LSD and therefore planned to set up a series of buys with Francis in order to discover his source of supply.   The purpose of the sale on February 4th was to gain Francis's confidence and allow surveillance units to begin building a case on his supplier.   If there were any arrests at this point, law enforcement officials feared that Francis would never lead them to his source.

Officers involved in the investigation never had an address for Scott, a transient, and an arrest warrant issued as a result of his participation in the underlying transaction remained outstanding.

The deputy district attorney's declaration also included the statement defendant gave following his arrest.  (See discussion, ante.)

In denying the motion to dismiss, the trial court found that defendant had established “some prejudice,” but held that the delay was reasonable and justified.


Defendant claims the trial court erred in denying his motion to dismiss.   We disagree.

“[D]ue process is the appropriate test to be applied to a delay occurring after a crime is committed but before a formal complaint is filed or the defendant is arrested.”  (Scherling v. Superior Court (1978) 22 Cal.3d 493, 505, 149 Cal.Rptr. 597, 585 P.2d 219.)

 A three-step analysis is utilized in evaluating defendant's due process claim:  First, the defendant must establish that he has been prejudiced by the delay.   If he makes such a showing, the burden then shifts to the prosecution to justify the delay.   Finally, the court balances the harm against the justification.  (People v. Abraham (1986) 185 Cal.App.3d 1221, 1226, 230 Cal.Rptr. 325;  accord People v. Hartman (1985) 170 Cal.App.3d 572, 579, 216 Cal.Rptr. 641.)4

“The first factor, prejudice, is a question of fact to be determined by the trial court.  [Citations.]   With respect to the second factor, ‘the appraisal of the reasonableness of the delay is ordinarily confided to the trial court's discretion.’  [Citations.]   The third step involves the application of law to facts.   As is the case in questions of the constitutional reasonableness of a search [citation], this ultimate conclusion partakes of an issue of law on which this court exercises its independent judgment.  [Citation.]”  (People v. Abraham, supra, 185 Cal.App.3d at pp. 1226–1227, 230 Cal.Rptr. 325.)

Defendant correctly contends the trial court's ruling includes a finding that defendant did establish actual prejudice.   He further argues we are bound by the trial court's factual finding since it is supported by substantial evidence.  (See People v. Hill (1984) 37 Cal.3d 491, 499, 209 Cal.Rptr. 323, 691 P.2d 989;  People v. Johnson, supra, 26 Cal.3d 557, 578, 162 Cal.Rptr. 431, 606 P.2d 738.)   We disagree.

 The declaration submitted by defense counsel attempted to establish prejudice by relying on two factors:  (1) defendant's inability to recall the events of February 4th;  and (2) Scott's unavailability.

As to the former, counsel stated that when defendant was interviewed following his arrest on March 12th, defendant “informed Agent Hennig he did not recall selling any LSD on February 4, 1985.”   Nowhere in the declaration is there any showing that plaintiff's memory was actually defective or, for that matter, that it remained so.   In addition, this is a self-serving statement which could easily be made by every defendant in every case.   As to the latter, the declaration asserts that Scott could not “be located ․ by defense investigators and police investigators” and states on information and belief, that “Mr. Scott left Santa Cruz County before March 12, 1985.”   Completely absent is any showing that Scott could have been located earlier, or, if he were located, that he would have provided exculpatory evidence.5  “․ [S]peculation about prejudice because potential witnesses' memories have failed or because witnesses and evidence are now unavailable is insufficient to discharge defendant's burden.”  [Citation.]  (Shleffar v. Superior Court (1986) 178 Cal.App.3d 937, 946, 223 Cal.Rptr. 907.)   In Serna v. Superior Court (1985) 40 Cal.3d 239, 250, 219 Cal.Rptr. 420, 707 P.2d 793 the declaration was by the defendant himself rather than by counsel and stated categorically that “I have no independent recollection of my activities on September 8, 1978.”   The Supreme Court found “this conclusory assertion of inability to recall ․” (id. at p. 250, 219 Cal.Rptr. 420, 707 P.2d 793) insufficient as a matter of law to support a finding of prejudice.   In Ramariz v. County of Merced (1987) 194 Cal.App.3d 684, 690–691, 239 Cal.Rptr. 774, a contention of prejudice resulting from delay in filing a claim was supported by a declaration that in spite of due diligence the allegedly disadvantaged party had been unable to locate two crucial eye-witnesses.   The trial judge's conclusion of prejudice was reversed for want of a factual declaration that those witnesses would have been available if the claim had been filed in good time.  (See also generally Crockett v. Superior Court (1975) 14 Cal.3d 433, 442, 121 Cal.Rptr. 457, 535 P.2d 321;  People v. Reeder (1984) 152 Cal.App.3d 900, 910, 200 Cal.Rptr. 479;  U.S. v. Rogers (9th Cir.1983) 722 F.2d 557, 561–562;  U.S. v. Mills (9th Cir.1981) 641 F.2d 785, 788–789;  U.S. v. Saunders (9th Cir.1980) 641 F.2d 659, 665;  U.S. v. Mays (9th Cir.1977) 549 F.2d 670, 679–680.)   As the declaration submitted on behalf of defendant consisted of mere speculation and self-serving statements, we find that it was insufficient as a matter of law to establish actual prejudice.

 But we do not rest our decision on the absence of prejudice.   We hold that the delay which occurred in the instant case was too insubstantial to trigger a due process analysis.   In the criminal justice system, the shorter the delay the greater the frequency of its occurrence.   A 36–day interval between commission of the crime and arrest of the perpetrator occurs, we suspect, in a very large percentage of prosecutions faced by the superior court.   We hold, as a matter of law, that such a delay is normal and reasonable.   We are strongly disinclined to expand by a geometric ratio the number of cases in which a defendant is entitled to preempt the already overburdened judicial resources for a mini-trial on an issue collateral to the question of his guilt.   We are not called upon to specify the precise point in time at which a defendant will be heard to complain of delay;  we merely assert that it is far downstream from that here involved.   n U.S. v. Marion (1971) 404 U.S. 307, 324, 92 S.Ct. 455, 465, 30 L.Ed.2d 468 the High Court stated:  “Actual prejudice to the defense of a criminal case may result from the shortest and most necessary delay;  and no one suggests that every delay-caused detriment to a defendant's case should abort a criminal prosecution.  (fn. omitted.)”   See also U.S. v. Clardy (9th Cir.1976) 540 F.2d 439, 442 where the court questioned whether a five-month preindictment delay “could even be characterized as legally cognizable delay.”   Defendant cites no authority, and we have found no reported decision in the United States Supreme Court, the United States Court of Appeals for the Ninth Circuit or the California courts which has addressed a delay anywhere near as brief as that in the case at bench.6


The contention that the trial court erroneously refused to instruct the jury on the theory of vicarious entrapment can be quickly disposed of.   In making this argument, defendant concedes that there is case law directly contrary to his position and further acknowledges that “he is arguing for an extension of existing law in California.”   That plea falls on singularly unsympathetic ears.

Judgment affirmed.

Following the example of former Chief Justice Bird,1 I write a concurrence to an opinion authored by me in order to address an additional point.

Co-defendant Francis was acquitted after relying solely on the defense of entrapment.   Because of that acquittal, this case is not an appropriate vehicle for reexamination of the law governing that defense.   But the evidence outlined in the lead opinion and the acquittal of Francis in the face of that evidence persuasively argue for a reexamination of the Barraza2 doctrine which leaves jurors no option but to perpetrate such miscarriages of justice.

Barraza annulled preexisting law which had held that the entrapment defense concentrates on the defendant and weighs whether the intent to commit the crime originated in his mind or was suggested to him by a law enforcement officer.   The rule was designed to and did protect the person who, for example, was observed buying a lid of marijuana for his own use and then was inveigled into selling half of it by an undercover cop's representation that the officer had no supply source of his own.  Barraza shifted the focus to the conduct and language of the officer;  and the defense is now established if that conduct would induce a normally law-abiding person to commit the crime.3

This principle would have appealed to the citizens of Erewhon 4 who hospitalized criminals and imprisoned the sick.   The fact is that the motivation of your average drug dealer has as much to do with that of a normally law-abiding person as herring has with peanut butter.   Indeed, I find it difficult to visualize a set of circumstances in which a dealer can be truly entrapped.   He is anxious to deal, he is in the business of dealing (Francis:  “So, ․ I hear you're interested․   I might even be able to get it cheaper.”).   Of course, being streetwise, he knows that rip-off artists lurk everywhere and undercover cops are not uncommon.   And so, all prospective customers are subjected to a searching cross-examination as to their bona fides (Francis:  “You're not a narc, are you?”).   The officer, like other buyers unfamiliar to the dealer, may have to engage in cajolery before a transaction is consummated.   But the object of the exercise is not to importune an unwilling person to do business, it is simply to convince a seller eager to deal but unsure of the particular buyer that it is safe to deal with him.   What the officer did and said here—and my 23 years' experience as a trial judge persuades me that the scenario was typical—cannot possibly be characterized as reprehensible police conduct;  no public policy discernible to me was violated.   In 1979, the Barraza dissents of Justices Richardson and Clark (23 Cal.3d at pp. 692 and 694, 153 Cal.Rptr. 459, 591 P.2d 947) were merely eloquent and logical.   By today they have proved prophetic.   I respectfully suggest that our Supreme Court ponder whether a rule so extravagant, so unrealistic, and one which shields so many drug dealers from accountability, should be allowed to endure.


1.   Agent Calvert testified the informant was paid for his information on February 8th, after the sale was consummated.   Calvert agreed it was in the informant's economic interest for a sale to be completed and when asked whether the informant would have been paid if there had not been a sale, Calvert answered it would depend on “why the sale didn't culminate.”

2.   Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

3.   We adhere to our previously-expressed position that “information and belief” is a pleading concept which has no place anywhere else.   (City of Santa Cruz v. Superior Court (1987) 190 Cal.App.3d 1669, 1674, 236 Cal.Rptr. 155;  accord Lieppman v. Lieber (1986) 180 Cal.App.3d 914, 919, 225 Cal.Rptr. 845;  Thiebaut v. Blue Cross of Indiana (1986) 178 Cal.App.3d 1157, 1161, 224 Cal.Rptr. 277;  Star Motor Imports, Inc. v. Superior Court (1979) 88 Cal.App.3d 201, 204, 151 Cal.Rptr. 721.)   Affidavits and declarations must be made on the personal knowledge of the declarant in order to be admissible as an exception to the hearsay rule.  (1 Jefferson, Evidence Benchbook (2d ed. 1982) § 18.8 and cases there cited.)   The sufficiency of affidavits is tested by the same rules as oral testimony.  (McLellan v. McLellan (1972) 23 Cal.App.3d 343, 359, 100 Cal.Rptr. 258;  6 Witkin Cal. Procedure (3d ed. 1985) Proceedings Without Trial, § 30, p. 346.)  “The rules of evidence in civil actions are applicable also to criminal actions, except as otherwise provided in this Code.”  (Pen.Code § 1102;  see also Evid. Code §§ 12, subd. a and 105.)   Thus, there is no separate law of evidence for criminal trials.  (1 Witkin, Cal. Evidence (3d ed. 1986) § 19, p. 21.)

4.   Although it is stated somewhat differently, federal law utilizes essentially the same test for delays occurring prior to arrest or indictment.   The defendant must first establish actual prejudice resulting from the delay.  (U.S. v. Lovasco (1977) 431 U.S. 783, 788–790, 97 S.Ct. 2044, 2047–2049, 52 L.Ed.2d 752;  U.S. v. Moran (9th Cir.1985) 759 F.2d 777, 780–782;  U.S. v. Kidd (9th Cir.1984) 734 F.2d 409, 412–413;  U.S. v. Carruth (9th Cir.1983) 699 F.2d 1017, 1019;  U.S. v. Henry (9th Cir.1980) 615 F.2d 1223, 1232;  Arnold v. McCarthy (9th Cir.1978) 566 F.2d 1377, 1381–1382.)   Once this showing is made, the court must then balance the reasons for the delay against the prejudice to the accused.  (See U.S. v. Lovasco, supra, 431 U.S. at p. 790, 97 S.Ct. at p. 2048;  U.S. v. Moran, supra, 759 F.2d at p. 781–783;  U.S. v. Kidd, supra, 734 F.2d at p. 412–413;  U.S. v. Carruth, supra, 699 F.2d 1017, 1020;  U.S. v. Henry, supra, 615 F.2d at p. 1232;  Arnold v. McCarthy, supra, 566 F.2d at p. 1383.)

5.   This assumes Scott would not have asserted his privilege against self-incrimination.

6.   In each of the following cases, claims of prearrest, precomplaint, preindictment, or preinformation delay were rejected:  U.S. v. Lovasco, supra, 431 U.S. 783, 97 S.Ct. 2044 [18–monthpreindictment-delay];  U.S. v. Marion, supra, 404 U.S. 307, 92 S.Ct. 455 [38–month preindictment delay claim premature];  U.S. v. Wagner (9th Cir.1987) 834 F.2d 1474 [18–month preindictment delay];  U.S. v. Moran, supra, 759 F.2d 777 [Defendant was reindicted after government dismissed original indictment due to the disappearance of key prosecution witnesses.   Reindictment occurred two years after the return of the key government witnesses, over three years after the date of the original indictment, and five years after the date of the alleged criminal acts];  U.S. v. Horowitz (9th Cir.1985) 756 F.2d 1400 [seven-year preindictment delay];  U.S. v. Kidd, supra, 734 F.2d 409 [15–month preindictment delay];  U.S. v. Rogers, supra, 722 F.2d 557 [preindictment delay of at least five years];  U.S. v. Burns (9th Cir.1983) 701 F.2d 840 [one-year preindictment delay];  U.S. v. Carruth, supra, 699 F.2d 1017 [seven- to ten-year preindictment delay];  U.S. v. Cederquist (9th Cir.1981) 641 F.2d 1347 [four-year preindictment delay];  U.S. v. Mills, supra, 641 F.2d 785 [seven-month preindictment delay];  U.S. v. Saunders, supra, 641 F.2d 659 [three-year preindictment delay];  U.S. v. Erickson (9th Cir.1973) 472 F.2d 505 [preindictment delay of approximately one year];  U.S. v. Marsh (9th Cir.1971) 451 F.2d 219 [defendant waived claim of three-and-a-half-month preindictment/prearrest delay, but court observes the only prejudice alleged was caused by other unrelated factors];  U.S. v. Asteguieta–Luna (9th Cir.1971) 449 F.2d 149 [two-and-a-half-month prearrest delay, claim of error dismissed in one sentence];  Wilson v. U.S. (9th Cir.1969) 409 F.2d 184 [seven-month prearrest delay];  Serna v. Superior Court, supra, 40 Cal.3d 239, 219 Cal.Rptr. 420, 707 P.2d 793 [defendant arrested four-and-a-half years after complaint filed.   No state speedy trial violation since defendant failed to establish actual prejudice.   However, the delay was presumptively prejudicial under federal Sixth Amendment analysis];  Scherling v. Superior Court, supra, 22 Cal.3d 493, 149 Cal.Rptr. 597, 585 P.2d 219 [nine- to ten-year preinformation delay];  People v. Hannon (1977) 19 Cal.3d 588, 138 Cal.Rptr. 885, 564 P.2d 1203 [defendant arrested seven months after the complaint was filed];  People v. Bradford (1976) 17 Cal.3d 8, 130 Cal.Rptr. 129, 549 P.2d 1225 [nine-month preindictment delay];  People v. Archerd (1970) 3 Cal.3d 615, 91 Cal.Rptr. 397, 477 P.2d 421 [preindictment delay of approximately one, six, and eleven years];  People v. Abraham, supra, 185 Cal.App.3d 1221, 230 Cal.Rptr. 325 [nine-month delay between dismissal of original charges and their refiling];  Shleffar v. Superior Court, supra, 178 Cal.App.3d 937, 223 Cal.Rptr. 907 [27–month delay between filing of complaint and defendant's arrest];  People v. Prantil (1985) 169 Cal.App.3d 592, 215 Cal.Rptr. 372 [20–month preinformation delay];  People v. Almarez (1985) 168 Cal.App.3d 262, 214 Cal.Rptr. 105 [six-month delay between complaint and preliminary hearing];  People v. Price (1985) 165 Cal.App.3d 536, 211 Cal.Rptr. 642 [nine-month precomplaint delay];  People v. Reeder, supra, 152 Cal.App.3d 900, 200 Cal.Rptr. 479 [15–month precomplaint delay];  Overby v. Municipal Court (1981) 121 Cal.App.3d 377, 175 Cal.Rptr. 352, disapproved in Serna v. Superior Court, supra, 40 Cal.3d 239, 219 Cal.Rptr. 420, 707 P.2d 793 for its analysis of federal due process claim [no state or federal due process violation resulted from six-month delay between complaint and defendant's arrest];  Arlyn R. v. Superior Court (1981) 114 Cal.App.3d 1025, 171 Cal.Rptr. 151 [six-month delay in filing petition];  Blake v. Superior Court (1980) 108 Cal.App.3d 244, 166 Cal.Rptr. 470 [defendant arraigned 11 months after complaint filed];  People v. Allen (1979) 96 Cal.App.3d 268, 158 Cal.Rptr. 54 [four-month precomplaint delay and one-year delay between complaint and defendant's arrest];  People v. Jackson (1979) 95 Cal.App.3d 397, 157 Cal.Rptr. 154 [arrest five-and-a-half months after complaint filed];  People v. Lawson (1979) 94 Cal.App.3d 194, 156 Cal.Rptr. 226 [about 18–month prearrest delay];  People v. Harris (1979) 93 Cal.App.3d 103, 155 Cal.Rptr. 472 [95–day precomplaint delay];  People v. Shockley (1978) 79 Cal.App.3d 669, 145 Cal.Rptr. 200 [28–month preindictment delay];  People v. Sanford (1976) 63 Cal.App.3d 952, 134 Cal.Rptr. 155 [90–day delay between defendant's conviction on unrelated charges and the filing of the underlying complaint];  People v. Patejdl (1973) 35 Cal.App.3d 936, 111 Cal.Rptr. 191 [11–month preindictment delay];  People v. Sobiek (1973) 30 Cal.App.3d 458, 106 Cal.Rptr. 519 [two-year preindictment delay];  Roumbanis v. Superior Court (1972) 29 Cal.App.3d 542, 105 Cal.Rptr. 702 [nine-month delay between date original complaint was filed and the date it was amended to charge an additional offense];  People v. Dontanville (1970) 10 Cal.App.3d 783, 89 Cal.Rptr. 172 [nine-month precomplaint delay];  People v. Superior Court (1970) 5 Cal.App.3d 698, 85 Cal.Rptr. 327 [five- to six-month precomplaint delay];  People v. Wright (1969) 2 Cal.App.3d 732, 82 Cal.Rptr. 859 [five-month prearrest delay].In each of the following cases, defendant either prevailed on a due process claim or was found to have made a prima facie showing of prejudice which shifted the burden to the prosecution to justify the delay:  Jones v. Superior Court (1970) 3 Cal.3d 734, 91 Cal.Rptr. 578, 478 P.2d 10 [19–month delay between filing of complaint and defendant's arrest;  court upholds dismissal, finding defendant was prejudiced by an unreasonable delay];  People v. Kiihoa (1960) 53 Cal.2d 748, 3 Cal.Rptr. 1, 349 P.2d 673 [defendant deprived of due process where government intentionally delayed prosecution for approximately five months until material witness was unavailable.];  People v. Hartman, supra, 170 Cal.App.3d 572, 216 Cal.Rptr. 641 [seven-year preinformation delay resulted in due process violation];  Garcia v. Superior Court (1984) 163 Cal.App.3d 148, 209 Cal.Rptr. 205 [defendant made prima facie showing of prejudice resulting from 11–month precomplaint delay];  Ibarra v. Municipal Court (1984) 162 Cal.App.3d 853, 208 Cal.Rptr. 783 [arrest occurred 12 months after complaint and 13 months after original arrest;  defendant made minimal showing of prejudice];  Fowler v. Superior Court (1984) 162 Cal.App.3d 215, 208 Cal.Rptr. 408 [arrest occurred four months after offense and two-and-a-half months after complaint filed];  [defendant made a prima facie showing of prejudice];  People v. Pellegrino (1978) 86 Cal.App.3d 776, 150 Cal.Rptr. 486 [order of dismissal based on 17– to 24–month preinformation delay upheld];  People v. Cave (1978) 81 Cal.App.3d 957, 147 Cal.Rptr. 371 [five-month prearrest delay violated defendant's right to speedy trial where defendant was prejudiced and the delay was purposeful];  Rice v. Superior Court (1975) 49 Cal.App.3d 200, 122 Cal.Rptr. 389 [11–month prearrest delay justified dismissal];  People v. Vanderburg (1973) 32 Cal.App.3d 526, 108 Cal.Rptr. 104 [order of dismissal based on nine-and-a-half-month preindictment delay reversed;  trial court's implied finding of prejudice upheld but cause remanded since court failed to properly weigh “minimal prejudice” against legitimate justification for the delay];  Penney v. Superior Court (1972) 28 Cal.App.3d 941, 105 Cal.Rptr. 162 [defendant made a prima facie showing of prejudice resulting from six-year preindictment delay].

1.   Lyons v. Wickhorst (1986) 42 Cal.3d 911, 231 Cal.Rptr. 738, 727 P.2d 1019;  Perkey v. Department of Motor Vehicles (1986) 42 Cal.3d 185, 228 Cal.Rptr. 169, 721 P.2d 50;  People v. Howard (1984) 36 Cal.3d 852, 206 Cal.Rptr. 124, 686 P.2d 644;  Hartzell v. Connell (1984) 35 Cal.3d 899, 201 Cal.Rptr. 601, 679 P.2d 35.

2.   People v. Barraza (1979) 23 Cal.3d 675, 153 Cal.Rptr. 459, 591 P.2d 947.

3.   Compare current CALJIC Nos. 4.60, 4.61 and 4.61.5 with the pre-Barraza versions.

4.   Samuel Butler, Erewhon, Ch. X. (1872).

BRAUER, Associate Justice.

AGLIANO, P.J., and CAPACCIOLI, J., concur.