It is not unusual for the police to assign an arraignment date for our client when the client is released from custody, or even when issued a citation and then, when the client appears in court (or has his attorney appear for him or her), to have no case filed.
The issue then arises of whether this “no file” means the prosecution has opted not to ever prosecute defendant or if there will be a filing within the statute of limitations (typically one year for a misdemeanor or three years generally for a felony).
When more than the statute of limitations passes after the case was filed in a misdemeanor, or one year, without defendant being arraigned, there is “presumed prejudice” to defendant and one may consider filing a Serna motion (Serna v. Superior Court (1985) 40 Cal. 3d 239) to dismiss based on a violation of defendant’s right to a speedy trial.
In a felony, a Serna motion may not be filed, as a felony charge is much more serious and the right to a speedy trial is less significant.
However, in a slightly different context, there are crimes with no statute of limitations, such as crimes punishable by death or a life sentence like murder. Other crimes also have no statute of limitations, such as felony rape by use of force, treason and embezzlement of public funds.
What due process rights does a defendant have to protect against unjustified delay in being charged with such offenses? What if defense witnesses die during the period of delay? What if exonerating evidence for the defense is lost or destroyed during the delay?
“Although precharging delay does not implicate speedy trial rights, a defendant is not without recourse if the delay is unjustified and prejudicial. ‘[T]he right of due process protects 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] Accordingly, ‘[d]elay in prosecution that occurs before the accused is arrested or the complaint is filed may constitute a denial of the right to a fair trial and to due process of law under the state and federal Constitutions. A defendant seeking to dismiss a charge on this ground must demonstrate prejudice arising from the delay. The prosecution may offer justification for the delay, and the court considering a motion to dismiss balances the harm to the defendant against the justification for the delay.” People v. Nelson (2008) 43 Cal. 4th 1242, 1250.
The recent murder conviction of Manual Bracamontes put this law to the test. In June 1991, Laura Arroyo disappeared one evening from a San Diego apartment complex. She had been playing outside with her best friend, Jessica, who also lived in the complex.
Mr. Bracamontes was the father of a one-year boy who lived with just his mother in the same apartment complex. Jessica was the sister of the one-year old boy, but Mr. Bracamontes was not her father. Mr. Bracamontes was in the apartment complex visiting his son at about the time Laura Arroyo disappeared.
Laura’s body was later found fully clothed about three miles away. The medical examiner found no evidence of sexual trauma to Laura and determined her cause of death was strangulation. Mr. Bracamontes was one of several suspects and provided the Chula Vista Police a blood sample, as well as clothing samples. He was also interviewed multiple times, denying any role in her disappearance or killing.
Eleven years later, the San Diego County District Attorney’s Office established a “cold case” unit and the evidence in Laura’s case was reexamined in 2003. New slides were prepared from the autopsy swabs using a new method that had not been employed in 1991.
The new slides revealed the presence of sperm in swabs from Laura’s mouth, neck and fingernails. A DNA profile was developed and found to match DNA from Mr. Bracamontes’ hair sample.
After confronting Bracamontes again about his role in Laura’s murder, he got in his car and led officers on a high speed chase, but was eventually arrested.
He was then tried and convicted of first-degree murder with the special circumstance that he committed the murder while engaged in kidnapping, as well as a lewd act on a child under age 14 and oral copulation. He was sentenced to death and a sentence of death was imposed.
On appeal, he raised many issues, but this article’s scope will narrow to just his argument that his due process rights were violated by the prefiling delay.
The California Supreme Court first acknowledged the general principals of Nelson, supra, regarding prosecutorial delays in charging. However, it found no negligence or purposeful charging delay and the prejudice to Bracamontes was negligible. Despite his claim that the delay caused him to present an incomplete picture of mitigating circumstances in sentencing, Bracamontes still produced twenty-one defense witnesses to testify that he was incapable of committing murder. The evidence was that he was a good father and a Little League coach. His work supervisor testified that he was a hard worker who got along with others.
The Supreme Court denied the appeal on this ground, noting there was no intentional or purposeful delay by the prosecution to gain an advantage and that there was strong public interest in prosecution.
We present this summary because there is often a delay in prosecution, particularly lately with COVID-19 staffing shortages, and this issue is often brought up by clients seeking to have charges dismissed.
For more information about pre-filing delay issues, please click on the following articles: