Trial court judge and counsel listing information Bruce C. Mills, Superior Court of Contra Costa County Trial Court No. 1-151284-7
The opinion of the court was delivered by: John W. Kennedy, Presiding Judge
Supreme Court publication order 7/11/12
APPEAL from the ON LIMITED JURISDICTION of the SUPERIOR COURT WALNUT CREEK County of Contra Costa State of California
This cause having been argued and submitted and fully considered, the appellate division rules as follows:
The People charged the defendant with failing to register as a sex offender pursuant to Penal Code section 290.013, subdivision (a), a misdemeanor. The People appeal from the trial court's order dismissing the charge against the defendant for violation of the defendant's Sixth Amendment speedy trial right.
Although no evidence was taken, the trial court decided the matter based on limited, but apparently undisputed, facts. On May 18, 2010, a Veteran's Affairs police officer in Oakland arrested the defendant for failure to register. The defendant was cite-released the same day. Concord Police Detective Werk met with the defendant, helped him file a current registration, and reported the incident.
On November 12, 2010, the People filed a complaint charging the defendant with failing to register and update his contact information pursuant to Penal Code section 290.013, subdivision (a). On the same day, the court mailed a notice to appear on January 3, 2011, but the notice was returned to the Court undelivered.
When the defendant failed to appear for arraignment on January 3, 2011, the Court issued a bench warrant.
On June 29, 2011, the sheriff arrested the defendant on the warrant. He made his first appearance June 30, 2011.
The issue presented is whether the defendant's right to a speedy trial under the United States Constitution attached at the time of his May 18, 2010, misdemeanor arrest and cite release. If so, the delay of more than one year between that arrest and the defendant's first appearance in court on June 30, 2011, triggers the speedy trial analysis and a presumption of prejudice.
The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . ." (U. S. Const., 6th Amend.) Thus, "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." (United States v. Marion (1971) 404 U.S. 307, 313 (Marion).)
The Sixth Amendment can be triggered by either the filing of charges or by the defendant's arrest with continuing restraint. In Marion, the Court stated, in the context of a felony, "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 provisions of the Sixth Amendment." (Marion, supra, 404 U. S. at p. 320.)
For purposes of determining whether the filing of charges activates the Sixth Amendment speedy trial right, the distinction between felonies and misdemeanors is critical. In a felony case, the filing of a complaint does not trigger the clock; only the filing of an indictment or information triggers the speedy trial right because it confers jurisdiction on the court to try the felony. (People v. Martinez (2000) 22 Cal.4th 750, 763 (Martinez); People v. Hannon (1977) 19 Cal.3d 588, 605-606.
In Serna v. Superior Court (1985) 40 Cal. 3d 239, 252-253 (Serna), the California Supreme Court held that, in a misdemeanor case, the federal speedy trial right is triggered by the filing of a misdemeanor complaint. In Serna, a complaint filed September 29, 1978, charged the defendant with misdemeanor embezzlement. He was not arrested until more than four years later. In holding that, in a misdemeanor case, the filing of a complaint triggers the speedy trial clock, the court relied on Marion and other United States Supreme Court cases addressing the application of the Sixth Amendment speedy trial right in felony cases. The court held, based on Marion, et al., that a misdemeanor ...