APPEAL from a judgment of the Superior Court of San Diego County, Charles R. Gill, Judge. Affirmed. (Super. Ct. No. SCD211222).
The opinion of the court was delivered by: Huffman, Acting P. J.
CERTIFIED FOR PUBLICATION
We are presented with a case where 26 years passed between the time the criminal charges were filed and the time when the prosecution actually started. The extraordinary delay in this case is made more remarkable because the defendant was actually arrested on the criminal complaint in 1982 and agreed to waive extradition. It was the prosecution that declined to return the defendant for trial. The defendant was then released and the prosecution changed its arrest warrant to "California only," apparently to prevent the defendant from again being arrested outside this state. Thereafter, the prosecution took no steps to prosecute this case until the defendant, notified by the Social Security Administration of the existence of the warrant, contacted San Diego authorities.
We find the quarter century delay not only remarkable, but on this record, we find it denied the defendant the right to a speedy trial under the California Constitution.
In this case, we reject the People's appeal and affirm the trial court's judgment of dismissal entered after granting Gregory Louis Mirenda's motion to dismiss his 2007 prosecution for the March 1981 attempted murder and assault with a deadly weapon on Willie A. Villagran based on prejudicial and unjustified preaccusation delay. In doing so, we find the People's contention the trial court abused its discretion in hearing Mirenda's motion pretrial meritless and conclude substantial evidence supports the trial court's decision the case must be dismissed because Mirenda's constitutional rights to a speedy and fair trial would be violated by proceeding to trial.
FACTUAL AND PROCEDURAL BACKGROUND
On March 2, 1981, Mirenda was involved in an altercation with his roommate Villagran, which ended with Mirenda shooting Villagran in the chest. After a brief investigation, the San Diego District Attorney (DA) filed a felony complaint on March 20, 1981, charging Mirenda with attempted murder (Pen. Code, §§ 187, subd. (a), 664), assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1), and alleged as to both counts that Mirenda personally used a firearm and inflicted great bodily injury upon Villagran (Pen. Code, §§ 12002.5, 12022.7). On April 2, 1981, the DA obtained a warrant for Mirenda's arrest, but could not locate him.
On August 17, 1982, Mirenda was arrested in Pennsylvania on the outstanding warrant. After receiving notification of the arrest, the DA attempted to locate Villagran but was unable to do so. Although Mirenda waived extradition and agreed to return to San Diego to face the charges filed against him, the DA declined to extradite Mirenda because it decided the prosecution of the case could not go forward without Villagran. When Mirenda was released from custody on the fugitive warrant nine days later, his public defender in Pennsylvania told him that the charges had been dismissed.
In 2007, when Mirenda applied for social security disability benefits in Arizona, he was informed that he needed to clear a California warrant for his arrest. He immediately contacted the Office of the Public Defender of San Diego (PD) to inquire about the warrant. When a paralegal at the PD could not locate any file there or at the San Diego courthouse, she contacted the DA's office about the matter. The DA's office confirmed that Mirenda had been arrested out of state and held on the outstanding warrant issued April 2, 1981, but advised that he had been released because the victim could not be located and that the warrant had been changed from "no extradition" to "California Only."
After the phone call, the DA successfully located Villagran and resumed the prosecution of Mirenda. The DA obtained a current warrant for Mirenda's arrest on September 26, 2007, and he was arrested in Arizona and extradited to California where he was booked into San Diego County Jail on October 17, 2007. Mirenda entered pleas of not guilty to the charges in the felony complaint at arraignment on October 22, 2007.
At a November 5, 2007 status conference, Mirenda waived the 10-day and 60-day statutory time periods for his preliminary hearing, which eventually was held on January 17, 2008. At that time, Villagran testified that on March 2, 1981, while he and Mirenda worked as cab drivers for the same company, he had been roommates with Mirenda and his young son for about a month. That night when Villagran returned home from a concert, he found Mirenda on the sofa with a woman, named Kim Phillips (now Kim Madruga), who was the wife of one of Villagran's friends. Villagran became upset with what he saw because his friend had earlier asked him whether he had seen his wife and Mirenda "tried to order [him] around."
When the argument escalated, Villagran suggested that Mirenda move out of his house. Mirenda responded by grabbing his son who had come into the living room after being awakened by all the noise and returned to the bedroom with his son to pack all his belongings. When Mirenda came back into the living room with his belongings, he was holding a .22 rifle and pointed it at Villagran, who asked, "What are you going to do, shoot me?" Mirenda then shot Villagran in the chest and the bullet went through and landed in the wall. When Villagran collapsed, Mirenda kneeled over him, told him he would be all right, grabbed his boy and Madruga, and left the house. Villagran called the operator for assistance who immediately contacted the police and paramedics who arrived shortly thereafter at Villagran's home.
Villagran testified he suffered a collapsed lung which needed surgery right away as a result of the shooting. He was in the hospital for about four days and remained under a doctor's supervision for some time after his release. Villagran identified Mirenda at the preliminary hearing as the person who had shot him in 1981. Villagran denied that he had a gun in the house or that he had made any threats toward Mirenda or Madruga at the time of the conflict with Mirenda.
On cross-examination, Villagran could not remember how old Mirenda's son had been 26 or 27 years earlier, but believed he had been only a "toddler" at that time and he believed they had lived with him only a month or less. He also did not think that Mirenda was working at the time they were living with him. Villagran conceded he drank about four or five beers at the concert the night of the shooting before returning home and finding Mirenda on the sofa with Madruga, who was "not clothed." Villagran said the police recovered the bullet from the wall and showed it to him, but he did not know what they did with it afterwards.
Although the DA had served Madruga with a subpoena to appear at the preliminary hearing as an eyewitness to the shooting, she failed to appear. Nonetheless, the magistrate held Mirenda to answer for the charges, finding probable cause to believe the offenses in the complaint had been committed and that Mirenda might be "guilty thereof."
On February 4, 2008, the DA filed a two count information charging Mirenda with the same charges and allegations as alleged in the felony complaint. At the February 5, 2008 arraignment, Mirenda again entered pleas of not guilty to the charges and allegations and waived statutory time for trial.
On April 10, 2008, Mirenda filed his motion to dismiss all charges relating to the shooting of Villagran due to prejudicial and unjustified preaccusation delay and a declaration of his attorney in support of dismissal. In addition to presenting the above timeline in his motion, Mirenda noted that since he had been released from custody on the original arrest warrant in 1982, he had remained in Pennsylvania until 1984 when he moved to El Cajon, California for about six months before moving to Las Vegas, Nevada where he stayed for the next 10 years before then moving to Bullhead City, Arizona. When he lived in Nevada, Mirenda legally changed his name to Greg J. Lombardi, but kept the same social security number that he had his entire life. In Nevada, he worked at various casinos, including working as an officer in charge of security, which required police and Federal Bureau of Investigation clearances. At no time was he ever told about a fugitive warrant for him. In 1994, he was arrested for attempted murder in Arizona after a fight in which he was shot in the eye. During the 12 and 1/2 years he spent in Arizona State Prison, no hold was ever placed on him for any outstanding warrants. It was only after he was released on parole and sought social security benefits that he learned there was an outstanding California warrant for his arrest.
Mirenda argued that the prejudice to him caused by dimming of witnesses' memories, death or disappearance and the loss or destruction of material physical evidence during the 27-year preaccusation delay could only be offset by a showing of good cause or justification and that the DA's office could not point to any justification for the lengthy delay other than their decision not to pursue the matter after he was first arrested in this case in 1982.
Mirenda specifically claimed that in the intervening 27 years since the 1981 shooting, only four faded Polaroid photographs of Villagran's living room where the shooting occurred were available as physical evidence and that the other physical evidence, including the bullet, had been destroyed or was missing. Mirenda also noted that the doctor who treated him was now dead, that there were no medical records other than a one page letter from the now deceased doctor regarding Villagran's injuries and subsequent medical care, and that the names of any of the emergency personnel who treated Villagran and took him to the hospital after the shooting were not included in any of the police reports. Mirenda additionally noted that neighbors of Villagran's who had been interviewed by police right after the shooting were now missing and could not be questioned as to what they may have heard that night. More importantly, the detective who had interviewed Madruga, the only independent, eyewitness to the shooting, was now dead. Because Madruga's statements to the detective were different than those she had recently given to a DA investigator, it would be impossible to corroborate her earlier statements or establish which set of statements was true for purposes of establishing any defense.
Mirenda further claimed that the police investigation of the shooting, which was essentially concluded on the night of the crime, with all evidence collected that night except for the victim's medical aftercare, was shoddy because they failed to take measurements of the crime scene, note any blood spatter evidence, or preserve the bullet, all items of evidence from which the trajectory of the bullet and the distance of the shooting might be determined and provide some arguments for the defense to impeach the victim and to negate any specific intent element. The police and DA's office also failed to keep track of the victim in the case and have not shown any due diligence in finding Villagran between 1982 and 2007 when they decided to reopen the prosecution of this case after Mirenda contacted the PD to try to clear the "California only" warrant.
Based upon the above showing of prejudice due to the lengthy delay, Mirenda requested the court to hear the motion to dismiss pretrial rather than after trial because he was not relying on the prejudice inherent in any delay and the court would be in no better position after the trial to determine ...