In re J.Z. CA4/2 ( 2013 )

Filed 12/12/13 In re J.Z. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re J.Z., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
E057107
Plaintiff and Respondent,
(Super.Ct.No. INJ019619)
v.
OPINION
J.Z.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Ronald L. Johnson,
Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant
to art. VI, § 6 of the Cal. Const.) Affirmed.
Cynthia D. Miller Jones, under appointment by the Court of Appeal, for Defendant
and Appellant.
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Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Michael T. Murphy, Sabrina Y.
Lane-Erwin and Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent.
J.Z. appeals from the juvenile court’s denial of his motion to dismiss based on
prosecutorial delay of less than four months in filing the juvenile delinquency petition.
As discussed below, we conclude that the juvenile court did not abuse its discretion
because it properly balanced the prejudice to J.Z. against the reasons for the delay and
found no due process violation.
FACTS AND PROCEDURE
On November 2, 2011, a security guard saw J.Z. and another male “wandering
around” a grocery store. The guard thought they looked suspicious. The guard saw J.Z.
go to the beer isle and stuff an 18-pack of beer inside his sweater under his left arm. J.Z.
walked out the front door of the store with the beer, but without paying for it. The guard
testified at the jurisdictional hearing that, once J.Z. exited the store, the guard yelled for
J.Z. to stop. J.Z. turned around to look at the guard and then attempted to run. The guard
put his hands on J.Z.’s shoulders. J.Z. turned and threw his right elbow at the guard’s
body, but the guard blocked the elbow with his right arm. The guard continued to hold
onto J.Z. J.Z. dropped the beer and continued to try to get away, spitting at the guard and
trying to hit him. The guard and a co-worker were eventually able to put J.Z. onto the
ground. They brought him inside the store and detained him in a back room until police
arrived. On cross-examination, the security guard clarified that J.Z. dropped the beer
after he elbowed the security guard in the arm, not before.
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On February 28, 2012, the People filed a subsequent1 petition under Welfare and
Institutions Code section 602, alleging J.Z. committed robbery (Pen. Code, § 211).
On March 18, 2012, J.Z. became 18 years old.
On August 21, 2012, before the jurisdictional hearing began, defense counsel
moved to dismiss the petition based in part on the fact that the incident took place on
November 2, 2011, the petition was not filed until February 28, 2012, and the store’s
videotape of the incident had been destroyed after 90 days. The juvenile court heard
from both sides and then denied the motion without prejudice, and without discussion.
After hearing testimony from the security guard, the court found that J.Z. had committed
robbery. The court then terminated J.Z.’s wardship. This appeal followed.
DISCUSSION
J.Z.’s Assertions of Error
The security guard testified that J.Z. used force on the security guard before
dropping the beer and in furtherance of the theft, thus making the crime robbery, rather
than after dropping the beer and in a mere attempt to get away, which would have made
the crime burglary. J.Z. argues the prosecution violated his right to due process because
the prosecution’s unjustified delay in filing the wardship petition resulted in the
1 J.Z. has a long history of juvenile wardship petitions and adjudications,
beginning in 2007 at age 13 when he threatened to shoot another student at school. J.Z.
then brought a homemade knife to school at age 14, possessed spray paint, placed graffiti,
defaced property, stole a bicycle and committed burglary (twice) at age 15, committed
assault with a deadly weapon and unlawfully used force at age 16, and committed
robbery (the current crime) and was found driving a vehicle that had just been carjacked
at age 17. Defendant committed another offense as an adult while this matter was
pending.
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destruction of the videotape. The videotape was the only objective evidence as to
whether J.Z. elbowed the security guard before or after dropping the beer. J.Z. argues the
juvenile court abused its discretion in that it failed to engage in the required balancing
test. Specifically, J.Z. asserts that he established prejudice from the delay, and the court
then failed to require the prosecution to offer its reasons for the delay so the court could
balance the two to determine whether J.Z. had been afforded due process.
Applicable Law
“[T]he right of due process . . . safeguard[s] a criminal defendant’s interest in fair
adjudication by preventing unjustified delays that weaken the defense through the
dimming of memories, the death or disappearance of witnesses, and the loss or
destruction of material physical evidence. [Citation.] [¶] ‘A defendant seeking relief for
undue delay in filing charges must first demonstrate resulting prejudice, such as by
showing the loss of a material witness or other missing evidence, or fading memory
caused by the lapse of time. [Citation.] Prejudice to a defendant from precharging delay
is not presumed. [Citations.] In addition, although “under California law, negligent, as
well as purposeful, delay in bringing charges may, when accompanied by a showing of
prejudice, violate due process. . . . If the delay was merely negligent, a greater showing
of prejudice would be required to establish a due process violation.” [Citation.] If the
defendant establishes prejudice, the prosecution may offer justification for the delay; the
court considering a motion to dismiss then balances the harm to the defendant against the
justification for the delay. [Citation.] But if the defendant fails to meet his or her burden
of showing prejudice, there is no need to determine whether the delay was justified.
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[Citations.]’ . . . [¶] ‘We review for abuse of discretion a trial court’s ruling on a motion
to dismiss for prejudicial prearrest delay [citation], and defer to any underlying factual
findings if substantial evidence supports them [citation].’ [Citation.] In evaluating the
correctness of a trial court’s denial of a defendant’s speedy trial motion, we consider all
evidence that was before the court at the time the trial court ruled on the motion. (Ibid.)”
People v. Jones (2013) 57 Cal. 4th 899, 921-922.)
Analysis
Here, J.Z. argues the trial court abused its discretion because it did not proceed to
the second step and third steps, inquiring into the prosecution’s justification for the delay,
and then balancing the reasons for the delay against the prejudice to J.Z. This is because,
J.Z. argues, the court wrongly failed to find prejudice to him based on the material nature
of the video.2
The trial court did not abuse its discretion. The record contradicts J.Z.’s claim that
it did not proceed to the second and third steps. At the hearing on J.Z.’s motion to
dismiss, defense counsel addressed the first step in the analysis when it argued that J.Z.
was prejudiced because counsel could not use the video of the event to attempt to
contradict the security officer’s testimony: “We did not receive a supplemental report,
and unfortunately, no video was ever produced and no video was ever brought out.
Because of the delay in the filing from November 2nd until February 28, the tape was
2 Because the juvenile court went on to perform the entire three-step analysis, we
need not address the arguments in J.Z.’s responsive brief that the first step requires a
defendant to establish only that the lost evidence is material, not that it is exculpatory.
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lost, which—what that means is that they only keep their tape for 30 days. This petition
was filed—I mean that they keep it for three months, is what it’s indicating. This was
filed three-and-a-half months later. So defense counsel could not go down and check it
out because the tape was gone. Because of that—the only objective evidence we had was
the videotape, and we don’t have it. I think that that was a detriment to my client because
they waited so long to file the petition.”
The court then allowed the People to explain the reasons for the delay, step two in
the three-step analysis. The People explained: “This individual has 13 petitions. He
picked up an adult case in the interim between this case being heard. He is already
serving time on an adult case for which he was given probation and custody time in the
adult jail. This case is extremely serious, and the timing of everything seems as fast as it
could be but for him continually picking up new arrests and having to switch back and
forth between the juvenile and adult system.”
J.Z. became an adult after this last petition was filed, and so his adult case was not
a factor in the delay. However, he appeared before the juvenile court on November 30,
2011, on a probation violation, which he admitted, and for which he received “eight days
in the work program.” He waived referral to probation and requested an immediate
disposition. He again appeared before the juvenile court on January 31, 2012, after
having been caught driving a car shortly after its owner was carjacked, and admitted to
felony driving a vehicle without permission. (Veh. Code, § 10851, subd. (a).) Again he
waived referral to probation and requested immediate disposition. These facts are the
basis of the People’s justification for the delay—that this robbery case was presumably
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too serious for the People to “work in” a petition containing the robbery charge during
these two very brief hearings on lesser matters. The gist of the People’s argument was
that it did not purposely delay the hearing on this serious matter, and that three and one-
half months was not unreasonably long under the circumstances.
The juvenile court then allowed defense counsel to respond, after which it denied
the motion to dismiss “without prejudice.” J.Z.’s assertions to the contrary, it appears to
us from this record that the juvenile court applied the balancing test after hearing
arguments as to both prejudice to J.Z. and the People’s reasons for the delay, even though
it did not engage in the balancing process aloud. Further, the court’s decision as a result
of the balancing test was not an abuse of its discretion, given the relatively short duration
of the delay, the seriousness of the charges, the absence of any indication that the delay
was purposeful, and the absence of any indication that the videotape would have been
helpful to J.Z.
DISPOSITION
The juvenile court’s ruling denying J.Z.’s motion to dismiss is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
HOLLENHORST
J.
KING
J.
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