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Filed 1/5/15 P. v. Stolp CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Calaveras)

----

THE PEOPLE,

Plaintiff and Respondent,

v.
GERALD H. STOLP ,

Defendant and Appellant. C069983 (Super. Ct. No. 10F4767)

Defendant Gerald H. Stolp , aka Gerald H. Wise, appeals following conviction on three counts of first degree burglary , with findings he had two prior serious or violent felony convictions . ( Pen. Code, § § 459

- 460 , 667, subds. (d)

- (e) ; unless otherwise stated statutory references that follow are to the Penal Code.) A fourth burglary count was dismissed after the jury was unable to reach a verdict. On appeal, d efendant contends the trial court erred in denying his motion to dismiss the case for delay in prosecution, in violation of his rights to due process and a speedy trial under the federal and state Constitutions

. We conclude the two

- year delay2

between commission of the crimes and the fili ng of charges and the five

- year delay
between the filing of charges and defendant’s arrest in Virginia , did not violate defendant’s due process or speedy trial rights. We affirm the judgment.

F ACTS A ND P ROCEEDINGS
Several vacation homes in the Arnold area of Calaveras County were burglarized in late January or early February 2002. Defendant had lived in the area as a child. None of the victims knew defendant or gave him permission to enter their home. On February 7, 2002, victim Dav id Smith got a phone call from a neighbor saying Smith’s home on Murphys Drive had been burglarized. The burglar entered Smith’s home through a sliding glass door on the back deck. A rifle, shotgun, ammunition, hunting knives, and a pillowcase were missi ng. A shotgun had been discharged into a mattress. Smith had last been at the vacation home on January 21, 2002. On February 11, 2002, Des Martinez received a phone call that her home on Stanislaus Drive had been burglarized. A window pane in the fro nt door was broken, and
items were missing. She had last been at the house around noon on February 3, 2002. The count involving Martinez was ultimately dismissed after the jury was unable to reach
a verdict. On February 13, 2002, Ronald Peterson learn ed his home had been burglarized when he went there after receiving a phone bill for calls he did not make, including several “900” numbers, between January 27 and February 3, 2002. He had last been at the house on January 21, 2002. He found the door kic ked open. Inside was a mess, with food wrappers, clothing, alcohol bottles, and bullet casings lying around. There were bullet holes in the walls and a burnout spot in the linoleum. Items missing included knives, ammunition, a shotgun, silverware, telev isions, VCR, speakers, and a microwave. Defendant’s fingerprint s w ere found on bottles and an armrest

. Police also found a letter addressed to a Patty Miles , whose Subaru defendant admittedly stole on January 24,3

200 2 . One of the phone calls made from P eterson’s home was to defendant’s friend Gary Rowe. Peterson’s trash cans contained a February 2, 2002, grocery receipt from Big
Tree s Market; handwritten notes including several “ 900 ” numbers; and a receipt for a pizza ordered by “Jerry,” defendant’s nickname. Surveillance video from the market showed a person who looked like defendant buying the items listed on the receipt found in Peterson’s home. A prosecution investigator gave a lay opinion that the handwriting was defendant’s

. Smith’s knives, bag, ammunition, and Smith’s shotgun were also found
in the Peterson home. On February 14, 2002, Robert Mugford learned his home had been burglarized when he went there after receiving a phone bill for $1,800, including international calls and calls to 900 numbers, made between February 1st and 3rd, 2002. He found the door kicked in and a window broken. Mugford had last been at the house on January 15, 2002. Missing items included a la mp, clothing, most of the electronics, and a pillowcase. The pillowcase was later found in Peterson’s home. DNA from four cigarette butts in Mugford’s home matched defendant’s DNA profile. Peterson’s phone was found in Mugford’s house.
The defense ca lled as a witness defendant’s friend and former cellmate, Joseph Solar. Defendant stayed at Solar’s home for up to a week

- and

- a

- half in January or February 2002 , until they had an argument . Defendant later apologize d and ask ed for help cashing a check

. Defendant testified he was paroled on a prior conviction on January 17, 2002. He stayed with Rowe in Grass Valley for a couple of days and then stayed with Solar until their fight

. Defendant admitted he stole Miles’s Subaru on January 24, 2002. He sle pt in the car for a few nights and then called Rowe for a place to stay. After talking to Rowe , defendant went to meet a man at a bar. The man led defendant to a house (Peterson’s home). A woman was already inside. Defendant did not see any broken wind ows or doors . Defendant stayed there for three to five days until he obtained his final paycheck4

from a job he had before he went to prison

. Other people came in and out of the house.
Defendant did not recall using the house phone but may have. Defenda nt denied taking anything. He did not recall patronizing the market or restaurant but could not say for sure
that he did not , and he acknowledged it looked like him in the market surveillance video.
He did not think t he handwriting on the papers looked l ike his handwriting

. Defendant denied ever being in the other victims’ homes. He conceded cigarette
butts with his DNA were found in the Mugford house but felt “[s]omebody else put them there.”
Defendant said Solar helped him cash the pay check. Defendant then visited
Rowe . Rowe’s girlfriend , a flight attendant, booked a plane ticket to Virginia for him

. Defendant testified his girlfriend in Virginia had wired him money for the ticket. He drove to the Reno airport, where he left Miles’s car and caught his flight. He did not know what day this was but said he was “pretty sure” he was gone by February 2, 2002.
Pest control records indicated routine service to the Smith home on February 5,
2002. Pest control technician Louis Alexander testifie d he serviced the Smith house but had no independent recollection of that day . He did not recall seeing signs of a break

- in , but generally he just sprayed the perimeter , sometimes from 30 feet away

. Smith had
testified there were closed vertical blinds c overing the area of broken glass on the upper rear deck where the burglar entered. The upper deck sticks out over the hillside. Smith, who has taken over his own pest control, sprays under the deck where the house meets the ground but does not spray on t op of the deck. A defense handwriting expert opined the handwritten notes had more than one author and perhaps as many as four and were inconsistent with defendant’s handwriting

. The expert acknowledged some “6’s” were consistent with defendant’s handw riting, but said everyone’s 6’s have some similarity. During deliberations, the jury sent a question to the court, stating it had reached a decision on three counts but wanted to know how to complete the verdict form on Count5

II (victim Martinez) because the jury was “split 11

- 1 on the Defendant’s guilt. The one has no intention of changing their mind, as well as the 11 will not change.” The jury returned verdicts finding defendant guilty on three of the four burglary

counts (victims Smith, Peterson, and Mugford)

. The jury found true a special allegation that the prosecution commenced within the three

- year statute of limitations. The jury
found true that defendant had prior convictions for first degree burglary in 1991 and
2001.
T he court declared a mistrial on Count II (victim Martinez) and later dism issed it on the People’s motion. In December 2011, the trial court sentenced defendant to three consecutive terms of 25 years to life, for an aggregate term of 75 years to life.

D ISCUSSION Defendant argues the seven

- year delay between commission of t he offense s in
2002 and his 2009 arrest violate s his right to due process of law and his right to a speedy
trial . The People respond two time periods are at issue , because due process delay is measured from the date the crimes were committed, while the co nstitutional right to a speedy trial was triggered in 2004, when the complaint was filed

. ( People v. Cowan (2010) 50 Cal.4th 401, 430 ( Cowan ) .) We conclude defendant fails to show grounds for
reversal.

A. Legal Standards

1. Due Process

“ ‘ “ [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 g round must demonstrate prejudice arising from the delay. The prosecution may offer justification for the delay, and the court considering a motion to dismiss balances6

the harm to the defendant against the justification for the delay.” [Citation.]’ ” ( Co wan,
supra , 50 Cal.4th at p. 430.) “Prejudice may be shown by ‘ “loss of material witnesses due to lapse of time [citation] or loss of evidence because of fading memory attributable to the delay.” ’ [Citation s .] And although the federal constitutional s tandard for what constitutes sufficient justification for delay is unclear [citation], [the California Supreme Court has] noted that ‘the law under the California Constitution is at least as favorable for defendant in this regard’ as federal law [citation] . Accordingly,

. . . we apply California law here.” ( Cowan, supra , 50 Cal.4th at pp. 430

- 431.) “Under the California standard, ‘negligent, as well as purposeful, delay in bringing charges may, when accompanied by a showing of prejudice, violate due proc ess. This does not mean, however, that whether the delay was purposeful or negligent is irrelevant.’ [Citation.] Rather, ‘whether the delay was negligent or purposeful is relevant to the balancing proces s. Purposeful delay to gain an advantage is total ly unjustified, and a relatively weak showing of prejudice would suffice to tip the scales toward s finding a due process violation. If the delay was merely negligent, a greater showing of prejudice would be required to establish a due process violation.’ [Citation.] The justification for the delay is strong when there is ‘investigative delay, nothing else.’ [Citation.]” ( Cowan, supra , 50 Cal.4th at p. 431.)

“ ‘The statute of limitations is usually considered the primary guarantee against bringing

over ly stale criminal charges,’ . . . .” ( People v. Nelson (2008) 43 Cal.4th 1242, 1250.) “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 finding s if substantial evidence supports them [citation].” ( Cowan, supra , 50 Cal.4th at p. 431.)

2. Speedy Trial

U nder the state Constitution , the right to a speedy trial attaches with the filing of
the felony complaint , which in this case was April 2004 . ( People v. Martinez (2000) 227

Cal.4th 750, 754 ( Martinez ).) Where review is sought after trial, the defendant must show prejudice. ( Id . at p. 755.) “Under the state Constitution’s speedy trial right,

. . . no presumption of prejudice arises from delay after the filing of a complaint and before arrest or formal accusation by indictment or information [citation]; rather, in this situation a defendant seeking dismissal must affirmatively demonstrate prejudice [ citation].” ( Id

. at p . 755, original italics.) In reviewing application of facts found to the legal question whether the defendant was denied his right to a speedy trial, our review is de novo. ( People v. Cromer (2001) 24 Cal.4th 889, 894.)
T he federal constitutional right to a speedy trial allows prejudice to be presumed if the delay is “uncommonly long ,” but the federal right does not attach until the defendant is arrested or the information is filed. ( United States v. Marion (1971) 404 U.S. 307, 320 [30 L.Ed.2d 468]; People v. Williams (2013) 58 Cal.4th 197, 233; Martinez, supra , 22 Cal.4th at pp. 754

- 755 .) Here , the federal speedy trial right did not attach until January
2010 , when defendant was arrested , and d efendant does not claim any prejudicia l delay
after his arrest.

B

. Background In June 2011, b efo re trial, defendant moved to dismiss the case for delay in prosecution based on the seven

- year delay between commission of the crimes and his

arrest

. The prosecuto r opposed the motion. The trial court conducted evidentiary hearing s before and after trial. At the pretrial hearing , defendant testified and admitted he fled California in February 2002 in violation of parole. He went to Virginia, where he was arreste d in
March 2 002, released in early 2003, re arrested in the summer of 2003, pleaded guilty to nine counts of fraudulently using bank notes, and was sentenced to six years in prison in Virginia.8

In California, the prosecutor filed the complaint in April 2 004 and obtained an arrest warrant in May 2004 , naming defendant as Gerald H. Wise and giving a Virginia jail as defendant’s last known address

. While incarcerated in Virginia, d efendant learned
of the California case and in December 2004 wrote to the Cal averas County District Attorney’s office, asserting his Sixth Amendment right to a speedy trial on the California charges (which had not yet attached) and stating he would not contest extradition. The response was that his request failed to comply with st atutory requirements. Defendant claimed the Virginia prison denied him access to California law.
After defendant’s Virginia prison term ended in September 2009, he was kept confined pending word from California but was then released on his own recognizance

. A California arrest warrant issued in October 2009, using both surnames, Wise and Stolp

. Defendant testified he was served with the arrest warrant on December 28, 2009 , when he showed up for a hearing in a Virginia court, and he was arrested on the California warrant in January 2010. The prosecutor filed an information on February 25, 2010 , and an
amended information in March 2011.
Defendant made various motions to dismiss or set aside the information fo r delay. In opposition, the prosecutor submitted her own declaration attesting 18 burglaries had
been reported in the same area during January, February, and March of 2002. The District Attorney’s office received a police report in June 2002 on some of t he burglaries , requested additiona l reports, and requested follow up in February 2003. In early 2004, the
prosecu tor requested additional follow up by a prosecution investigator before filing the complaint. In September 2009, defendant was due to be releas ed from the Virginia prison. Because defendant would not waive extradition, the prosecutor sought a governor’s warrant, which was granted on November 2, 2009. The law and motion judge
denied defendant’s dismissal motion. Defendant’s attempt to obtain di smiss al on the ground of the three

- year s tatute of limitations ( § 801) was also denied

. For limitations purposes, the prosecution was commenced when the 2004 arrest was issued, plus the9

limitations period is tolled for up to three years if the defendant i s out of the state. (§ § 803

- 804.) In June 2011, defendant filed a motion to dismiss for delay in prosecution , asserting the prosecution knew in May 2002 that (1) the police investigation revealed defendant’s fingerprints were at one crime scene; (2) defendant had not kept in contact with his parole officer ; and (3) defendant was in custody in Virginia.
At the pretrial hearing on the dismissal motion, defendant argued he was prejudiced by the delay between the 2002 burglaries and his arrest seven ye ars later

. And he argued there was no legitimate justification for the delay , “particularly” from 2004
forward. He assertedly tried to gather evidence to s how he left California before February 5, 2002, the date a pest control technician performed routin e service at victim Smith’s home without noticing any sign of a break

- in. Since the burglaries appeared to be the work of a single perpetrator, defendant thought this would exonerate him. A defense investigator testified defendant said he left California in early February 2002 but did not recall the exact date, and the investigator was unable to gather supporting
evidence because business records such as airline records and airport parking records

were unavailable , and witnesses such as the pest control t echnician could not remember.
The prosecutor argued defendant failed to show prejudice. The trial court issued a written interim ruling in July 2011, finding “the facts regarding a showing of prejudice have not been fully developed. There are uncont acted witnesses who could potentially corroborate defendant’s account of when he left the State of California.” The court denied the dismissal motion without prejudice to revisit the
matter after trial

. Defendant noted his motion had also asserted intent ional delay by the People, relieving him from having to show prejudice. The trial court declined to dismiss on that ground. After the jury returned its verdicts on November 16, 2011, the court held another evidentiary hearing on the dismissal motion

. Defense counsel filed a declaration attesting10

he asked Reno airport security when the Subaru was parked at the airport but was told the information was unavailable. He obtained defendant’s employment records, but they did
not show the date defendant cashe d his last paycheck. He contacted the bank where
defendant cashed the check but was told they destroy records after seven years. The
defense did not directly contact the woman who wired defendant money, because she had been victimized by defendant and wa s terrified of him. The defense contacted her through a third party , but she did not remember when defendant arrived in Virginia and thought it was in January 2002. The defense investigator said Rowe did not return phone calls, so the investigator sugges ted contacting his mother, but defense counsel said Rowe
was in Australia (as the prosecutor apparently thought), and was not needed. The prosecution adduced evidence they easily reached Rowe , who said he spent less than a day in Australia due to a visa problem. The prosecutor also easily reached
Rowe ’s girlfriend, who said she did not remember making flight arrangements for defendant and would have remembered had she done so, because he was a “criminal type,” and she did not like criminal types and wou ld not have wanted to help him. The trial court, citing case law t hat faded memory may suffice for prejudice, asked the prosecutor if she wanted to present justification for the delay. She said, “Not at this time” and asserted the court had to make a f inding of prejudice before the burden shifted to the People. The trial court retorted even the slightest showing of prejudice could shift the burden, and “I really think for the purpose of the record, I would like to have the People’s justification so we don’t have to come back later and do this.” The prosecutor explained she was prepared only on the issue of prejudice, and “the People are not prepared to offer justification at this time.” In arguing the question of pr ejudice, the prosecutor noted the defense did not diligently pursue supporting evidence, as shown by their asserted inability to contact defendant’s friend, Rowe, whereas the prosecution had quick success in contacting him.11

On November 21, 2011, the trial court issued a written ruling d enying defendant’s dismissal motion. The court noted defendant admitted at the hearing of the motion that he was released on parole on January 17, 2002, stole a car, spent several days in the Peterson home, and then absconded from parole, flying out of Re no to Virginia. The ruling stated in part: “The defendant argues that he has been prejudiced by the delay in bringing his case to trial since evidence of the precise date in early February of 2002, circa February 2nd, when he fled the State of California cannot be corroborated due to the lack of records which have been purged and memories that have faded. The court finds the defendant has not made a sufficient showing of prejudice. Even assuming the defendant actually left

. . . California in early Febr uary of 2002, he was in the Arnold area within the alleged times of all of the burglaries with the exception of Count II, (on or about and between February 3, 2002, and February 11, 2002). The court notes that Count II was dismissed on the People’s motion follow ing a mistrial. “Assuming arguendo that the defendant has made a sufficient showing to shift the burden to the People to show a legitimate justification for the delay, that burden has been met. The delay in this case was primarily occasioned by th e defendant’s flight from

. . . California and his commission of additional crimes in the State of Virginia. As a result, he was in and out of custody and transferred between various penal institutions in the State of Virginia. “In balancing the competin g interests at this juncture, the court cannot overlook the overwhelming evidence of defendant’s guilt presented at trial and the jury’s guilty verdicts as to Counts I, III, and IV.”

C

. Analysis On appeal, defendant refers to the “seven

- year delay” between 2002 and 2009 without differentiation between the different rights asserted.12

We disregard defendant’s reliance on cases involving the federal speedy trial claim, because it was not triggered until defendant was arrested in 2009 , and defendant does not claim or demonstrate prejudice or unjustifiable delay after that point. Elimination of the federal speedy trial claim eliminates defendant’s ability to rely on a presumption of prejudice , and he must affirmatively demonstrate prejudice

. ( Martinez,

supra , 22 Cal.4th at p. 755.) As to the due process claim for the period between the 2002 commission of the crimes and the 2004 filing of the complaint, defendant fails to show prejudice. He fails to
show the two

- year period left him unable to gather evidence upon learning of the charges in 2004. He fails to show he attempted to gather evidence in 2004. Moreover, the delay was justified. Although defendant’s fingerprints were identified in April 2002 and there was probable cause to charge defendant on several counts by June 2002, t he record shows an ongoing investigation of 18 burglaries that were ultimately winnowed down to the
four counts charged against defendant. Defendant does not argue or show the investigation was deliberately slow in order to prejudice him. The record shows nothing more than investigative delay, which is strong justification for delay. ( Cowan, supra , 50 Cal.4th at p. 431.) As to the state speedy trial claim for the period between 2004 and 2009 , we see no basis f or reversal. D efendant focuses on his asserted inability to prove his claim that he
left California b efore February 3, 2002. But all three burglaries of which defendant was convicted could have occurred before February 3rd. Defendant argues the prosec ution used the telephone calls as evidence that the burglaries were committed by the same person. Since the last of those calls were made on February 3rd (8:24 p.m. from Martinez’s phone, 3:24 p.m. from Mugford’s phone), defendant argues he could have cas t reasonable doubt as to his identity as the perpetrator had he been able to show he left California by that date. However, defendant did not initially claim that date. At the pretrial hearing, the defense investigator testified he13

spoke with defendant, who said he left California in early February 2002 but did not know what date. Even though the defense knew before trial that the last pho ne calls were made February 3rd , defendant testified at the pretrial hearing that “we were trying to
establish that I was gone prior to February 5th”

-- the date of the pest control service. Proving he left before February 5th would not help defendant, because there is no evidence the pest control technician should have noticed signs of forced entry. Forced entry was by broken glass on an upper deck with closed vertical blinds. The technician merely sprayed the perimeter from as much as 30 feet away. Proving he left on February 3rd would not help defendant, because the last phone call was at 8:24 p.m. on February 3rd, and therefore defendant could have made that call and then left for the airport. He did not testify what time of day his flight left. Defendant’s presence in the crime area on February 2nd was established by the market
surveillance video. Moreover, the phone records would not exonerate defendant in any case, because there was a rash of burglaries of the unoccupied vacation homes in the area, not all of which were charged against defendant. He left behind the list of “900” numbers, and there was no evidence he secured the home when he left. Additionally, the defense did not even try to contact the woman who wired money
to defendant until after the trial began. The defense then communicated with her through a third person, because defendant victimiz ed her, and she is hostile toward and terrified by defendant

-- circumstances not the fault of the prosecution

. Thus, defendant failed to show prejudice. Even assuming defendant showed prejudice sufficient to shift the burden to the prosecution to just ify the delay , defendant fails to show grounds for reversal. Alth ough the prosecution did not present evidence as to why it declined to extradite defendant sooner, the trial court properly found the re was justifiable delay because defendant fled
Californi a . ( People v. Perez (1991) 229 Cal.App.3d 302, 308 [though not an absolute bar to a speedy trial claim, flight to avoid prosecution is a factor to be considered].)14

Defendant argues the delay was unjustified, because California authorities knew his
wherea bouts in the Virginia prison, and he even urged them to bring him to trial. The Attorney General does not argue inability to extradite defendant earlier, and we therefore
do not rely on the Virginia incarceration itself as justification for the five

- year delay in
California. By the same token, however, though the California authorities knew where defendant was in 2004, defendant in 2004 knew about the California burglary charges against him and , though incarcerated, could have undertaken to p in down evide nce of
when he left California . He did not testify to any such efforts

. Contrary to defendant’s contention, the fact the prosecution declined to extradite him in 2004 does not, in itself, suffice to show purposeful delay to weaken the defense

. Thus, any balancing of prejudice against delay would not weigh in defendant’s favor. Moreover, there was overwhelming evidence of defendant’s guilt on the three counts of which he stands convicted. His DNA was found in the Peterson and Mugford homes, and he admit ted staying at the Peterson home for several days. The receipt found in the home was from a February 2nd transaction captured by surveillance video showing a person who appeared
to be defendant. Moreover, a number of items stolen from the Smith home were found in
the Peterson home.
Defendant cites Dickey v. Florida (1970) 398 U.S. 30 [26 L.Ed.2d 26], which found a speedy trial violation under the federal Constitution where a person incarcerated in federal prison sought a speedy trial on state charges i n Florida, and the state prosecutor let eight years lapse before bringing him to trial. Dickey noted that, upon demand of the accused, the state had a constitutional duty to make a diligent and good faith effort to secure his presence from the custodial j urisdiction and afford him a trial. ( Id . at pp. 36

- 37.) However, we have explained the federal speedy trial did not attach until defendant ’s
arrest in 2009 , at which point he was no longer incarcerated in Virginia, and he makes no claim of prejudice or u njustified delay after his arrest.15

Defendant also cites People v. Mirenda (2009) 174 Cal.App.4th 1313. There, however, the delay was 25 years , and the defendant showed prejudice, e.g., death of the sole independent witness

. ( Id . at p p. 1331

- 1332.) The appellate court upheld the trial court’s determinations that delay in prosecution was justified until 1982, when the California authorities found the defendant in Pennsylvania, but the delay in prosecution between 1982 and 2007 was not justified under the circumstances of the case . ( Ibid .)
The circumstances included an admission by the prosecut or that nothing was done, and the prosecution not only declined to extradite the defendant but also changed the arrest warrant to “California only” thereby prevent ing execution of the warrant outside of the state. ( Id . at p. 1333.) We conclude defendant fails to show grounds for reversal.

D ISPOSITION The judgment is affirmed.

HULL , J.

We concur:

RAYE , P. J.

HOCH , J.