Filed 11/8/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Appellant,

v.

ROBERT AMBROSE BUCHANAN IV,

Defendant and Respondent.

 H049838

 (Santa Cruz County

Super. Ct. Nos. 20CR03618 & 

21AP00003)

THE PEOPLE,

Plaintiff and Appellant, 

 

 v.

KAREN GINGER DOWNS,

Defendant and Respondent.

 H049839

 (Santa Cruz County

 Super. Ct. Nos. 20CR03330 &

 21AP00002)

Among the rights the Sixth Amendment guarantees to a person accused in a 

criminal prosecution is the right to a speedy trial. These appeals by the Santa Cruz 

County District Attorney turn on whether a person cited and released on a written 

promise to appear under Penal Code section 853.61is “accused” for Sixth Amendment 

purposes in the interval between the promised appearance date and the state’s later filing 

of a misdemeanor complaint. Although we consider the citation to be an accusation 

1 Undesignated statutory references are to the Penal Code.
2

otherwise sufficient to initiate Sixth Amendment protection against delay, we conclude 

that the District Attorney’s election not to file formal charges by the appearance date 

ceased any legal restraint upon the accused and had the same effect, for constitutional 

speedy trial purposes, as a dismissal of charges. Accordingly, we reverse the trial court’s 

judgments dismissing the prosecutions of Robert Ambrose Buchanan IV and Karen 

Ginger Downs.

I. BACKGROUND

A. The Arrests and the Filing of the Complaints

The procedural history for each of these cases is, for our purposes, identical. Law 

enforcement officers separately arrested Buchanan and Downs for driving under the 

influence of alcohol or drugs (DUI) in violation of Vehicle Code section 23152 and 

released each with a Judicial Council of California Form TR-130 Notice to Appear. 

Buchanan and Downs each signed their respective notice to appear—each of which 

included the issuing officer’s declaration alleging the facts of the misdemeanor 

violation—agreeing to appear in court on a specified date and time more than 25 days

later. 

The court date specified on each notice to appear passed without the filing of 

charges as to either defendant, but the District Attorney ultimately filed charges against 

each defendant just as the one-year statute of limitations for misdemeanor DUIs was 

about to expire. 

Buchanan and Downs were arraigned about 90 days after the District Attorney 

filed charges, and nearly 15 months after arrest. 

Date Buchanan Downs

Arrest and Notice to Appear August 18, 2019 August 2, 2019

Noticed Court Date September 23, 2019 September 17, 2019
3

Complaint Filed August 17, 2020 July 31, 2020

Arraignment on Complaint November 16, 2020 October 23, 2020

B. Dismissal and Appeal

Following arraignment, Buchanan and Downs each moved to dismiss the 

complaint against them, asserting violation of their speedy trial rights. In a combined 

hearing, the trial court determined that (1) the defendants were and remained “accused” 

within the meaning of the Sixth Amendment speedy trial guarantee from the day law 

enforcement arrested and released them on notices to appear; (2) the lapse of more than 

one year from the issuance of the notice to appear was presumptively prejudicial under 

Barker v. Wingo (1972) 407 U.S. 514; and (3) although the delay of nearly a year from 

arrest to the filing of the complaints was justified by a commensurate delay in analyzing 

blood specimens collected upon arrest; (4) the further delay between the filing of the 

complaint and arraignment was unjustified. The trial court therefore dismissed both 

actions. 

The superior court’s appellate department reversed, in split decisions, but certified 

the cases for transfer to this court. This court ordered both cases transferred pursuant to 

California Rules of Court, rules 8.1002 and 8.1008 and ordered both cases considered 

together for the purposes of oral argument and disposition. 

II. DISCUSSION

Although we review a trial court’s grant or denial of a speedy trial motion for 

abuse of discretion (People v. Vila (1984) 162 Cal.App.3d 76, 85; People v. Cowan

(2010) 50 Cal.4th 401, 431), “the deference [this standard] calls for varies according to 

the aspect of a trial court’s ruling under review.” (Haraguchi v. Superior Court (2008) 

43 Cal.4th 706, 711.) We review de novo a trial court’s conclusions of law. (Id. at 

p. 712.) Here, the trial court’s decision to grant defendants’ speedy trial motions hinged 
4

on its threshold determination that defendants were entitled to a presumption of prejudice 

because the Sixth Amendment speedy trial time period ran uninterrupted from the date of 

citation. 

But because both Buchanan and Downs ceased to be under continuing restraint 

once the date originally noticed for their appearance passed without formal charge, their 

Sixth Amendment speedy trial right did not reattach until the District Attorney filed the 

operative charging document.2

A. Sixth Amendment Speedy Trial Right

“On its face, the protection of the [Sixth] 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.” (U.S. v. Marion (1971) 404 U.S. 307, 313 

(Marion).) “ ‘The Sixth Amendment right to a speedy trial is . . . not primarily intended 

to prevent prejudice to the defense caused by the passage of time; that interest is 

primarily protected by the Due Process Clause and by statutes of limitations.’ ” (Serna, 

supra, 40 Cal.3d at p. 259, quoting United States v. MacDonald (1982) 456 U.S. 1, 8

(MacDonald); see also Marion, supra, 404 U.S. at p. 320; People v. Martinez (2000) 22 

Cal.4th 750, 760-761 (Martinez).) Rather, the right’s purpose is to prevent prejudice to 

the defendant personally, as distinct from the defendant’s ability to answer the charges: 

although chief among the harms to be mitigated are “ ‘the possibility of lengthy 

incarceration prior to trial, [and] the lesser, but nevertheless substantial, impairment of 

liberty imposed on an accused while released on bail,’ ” the Sixth Amendment speedy 

trial right is also intended “ ‘to shorten the disruption of life caused by arrest and the 

presence of unresolved criminal charges.’ ” (Serna, supra, 40 Cal.3d at pp. 259-260.) 

2

In this court, defendants assert no violation of the California Constitution’s 

speedy-trial right, which attaches in a misdemeanor prosecution when a criminal 

complaint is filed. (See Serna v. Superior Court (1985) 40 Cal.3d 239, 248 (Serna); Cal. 

Const., art. I, § 5.) 
5

Delay exceeding one year before the trial of a person thus accused is presumptively 

prejudicial, and dismissal of the charges “constitutionally compelled in the absence of a 

demonstration of good cause for the delay.” (Id. at p. 254.) 

“[T]he Sixth Amendment right to speedy trial attaches in misdemeanor 

prosecutions, as it does in felonies, with the filing of the accusatory pleading, here a 

misdemeanor complaint, or arrest, whichever is first.” (Serna, supra, 40 Cal.3d at p. 262, 

fn. omitted.)3 An arrest represents the government’s assertion of probable cause to 

believe the arrestee has committed a crime. (Martinez, supra, 22 Cal.4th at p. 762, 

quoting Dillingham v. United States (1975) 423 U.S. 64, 65 (Dillingham).) “Arrest is a 

public act that may seriously interfere with the defendant’s liberty, whether he is free on 

bail or not, and that may disrupt his employment, drain his financial resources, curtail his 

associations, subject him to public obloquy, and create anxiety in him, his family and his 

friends . . . .” (Marion, supra, 404 U.S. at p. 320.) 

As our Supreme Court has explained, however, an “arrest” does not render a 

person an “accused” under the Sixth Amendment indefinitely: “it appears that the [Sixth 

Amendment right to a speedy trial] attaches upon arrest unless the defendant is released 

without restraint or charges are dismissed.” (Martinez, supra, 22 Cal.4th at p. 762; see 

also Dillingham, supra, 423 U.S. at p. 65; United States v. Loud Hawk (1986) 474 U.S. 

302, 311 (Loud Hawk); MacDonald, supra, 456 U.S. at pp. 8-9.) The Sixth Amendment 

speedy trial right does not apply once the defendants are “ ‘freed without restraint’ ” or 

“ ‘[o]nce charges are [initially] dismissed.’ ” (Martinez, supra, 22 Cal.4th at pp. 762-

3 Unlike in a misdemeanor proceeding, the filing of a felony complaint does not 

trigger the Sixth Amendment speedy trial right. (Martinez, supra, 22 Cal.4th at pp. 763, 

765 [Sixth Amendment “speedy trial right does not attach upon the filing of a felony 

complaint, but only upon either arrest with continuing restraint or the filing of an 

indictment, an information, or a complaint charging a misdemeanor”].) 
6

763, quoting Loud Hawk, supra, 474 U.S. at p. 311 and MacDonald, supra, 456 U.S. at 

p. 8.) 

B. Arrests by Citation under Section 853.6

To begin, we reject the District Attorney’s contention that defendants were not 

subject to continuing restraint from issuance of the citation and release upon their 

promises to appear.

4

 Issuance of the citation served defendants with notice not only of 

the issuing officer’s accusation and assertion of probable cause but of their obligation to 

appear in court on a date certain on pain of further criminal liability. (See § 853.7; Veh. 

Code, § 40508, subd. (a).) We conclude the statutory scheme at least initially subjected 

defendants to restraint sufficient to implicate Sixth Amendment protection.

Unless they demand to immediately appear before a magistrate, a person arrested 

for a misdemeanor offense, “in order to secure release, shall give their written promise to 

appear” for arraignment as directed in a citation, or notice to appear. (§ 853.6, subd. (d).)

The written notice to appear, prepared in duplicate, bears “the name and address of the 

person, the offense charged, and the time when, and place where, the person shall 

appear . . . .” (§ 853.6, subd. (a)(1).) As the arrestee’s copy of the notice warns, failure 

to appear is punishable as a misdemeanor. (§ 853.7; Veh. Code, § 40508, subd. (a); 

Judicial Council of California Form TR-130 [“WARNING: If you fail to appear in court 

as you have promised, you may be arrested and punished by 6 MONTHS IN JAIL 

AND/OR A $1,000 FINE regardless of the disposition of the original charge”]5.) 

4 We reject defendants’ contention that the District Attorney forfeited this 

contention by failing to raise it in the trial court: the District Attorney plainly argued that 

the speedy trial right did not attach upon the initial arrest and release. 

5 The reverse of the TR-130s issued to defendants is not in the appellate record. 

However, the standard language, last revised on June 26, 2015, is made publicly available 

on the California Courts’ website. We take judicial notice on our own motion of the 

standardized language. (See Evid. Code, §§ 459, subd. (a), 452, subds. (c) & (h).)
7

Under subdivision (e) of section 853.6, the prosecuting attorney can direct the 

officer to directly file the duplicate notice with the court as the operative misdemeanor 

charging document, as is the practice with infraction offenses; otherwise, the “duplicate 

notice and underlying police reports in support of the charge shall be filed with the 

prosecuting attorney.” (§ 853.6, subd. (e)(1)-(3)(A).) Where the officer files the notice 

with the prosecuting attorney in lieu of the court, “the prosecuting attorney, within their 

discretion, may initiate prosecution by filing the notice or a formal complaint with the 

magistrate specified in the duplicate notice within 25 days from the time of arrest. . . . 

The failure by the prosecutor to file the notice or formal complaint within 25 days of the 

time of the arrest shall not bar further prosecution of the misdemeanor charged in the 

notice to appear. However, any further prosecution shall be preceded by a new and 

separate citation or an arrest warrant.” (§ 853.6, subd. (e)(3)(B).)

Here, at the time of arrest, the government imposed actual restraints on 

defendants’ liberty by, as a condition of their release, requiring them to appear in court at 

a designated time to respond to a law enforcement officer’s accusation that they had 

committed a misdemeanor offense—actual restraints that would remain in effect unless 

and until the prosecuting attorney decided not to file charges. (See Serna, supra, 40 

Cal.3d at pp. 259-260.) 

To the extent People v. Williams (2012) 207 Cal.App.4th Supp. 1 (Williams) 

suggests these restraints are of no constitutional consequence, we disapprove it. (See 

Williams, 207 Cal.App.4th Supp. at p. 7 [holding that release on promise to appear did 

not amount to “actual restraint”].) In Williams, the Contra Costa County Superior

Court’s appellate department held that a defendant who “was arrested on a misdemeanor 

and cite released without bail or other apparent restraint” was not subjected to any actual 

restraints. (Ibid.) The court elaborated that the defendant was not “placed under any 

conditions of release, . . . restricted from travel, . . . or otherwise [subjected to] and of the 

actual restraints that normally accompany an arrest when charges are pending.” (Ibid.) 
8

The Williams court dismissed the significance of the requirement to appear on the date 

specified in the notice to appear, reasoning that if no complaint was actually filed before 

the noticed date then the court would have no basis for issuing an arrest warrant in 

response to the failure to appear. (Ibid.) 

Unlike the Williams court, we anticipate that a person released on a citation—

subject to a criminally enforceable promise to appear as directed—will take at face value 

the unambiguous threat of prosecution for failure to appear. As noted by the dissent in 

the appellate department proceedings here, a person released on a citation who willfully 

fails to appear on the noticed date could be subject to a new misdemeanor charge for that 

failure “ ‘regardless of the disposition of the charge upon which [they were] originally 

arrested.’ (Pen. Code, §§ 853.7 and 1320.)” The practical reality that courts may be 

unequipped to track failures to appear on citations not filed with the court by the 

appearance date does nothing to address the restraint that is “ ‘the disruption of life 

caused by arrest and the presence of unresolved criminal charges,’ ” which the Sixth 

Amendment right is also intended to mitigate. (See Serna, supra, 40 Cal.3d at p. 260.) 

The restraint imposed by the obligation to appear remains in effect unless and until the 

state ends it.

6

 

The logical conclusion of following Williams as urged by the District Attorney 

would be that an arresting officer could specify on the notice to appear an appearance 

6 Martinez, on which Williams relies, does not hold otherwise. (Compare 

Williams, supra, 207 Cal.App.4th Supp. at pp. 6-7.) In Martinez, the defendant was 

arrested for driving under the influence and provided an address at which she could be 

contacted. (Martinez, supra, 22 Cal.4th at p. 756.) Ten days later, the district attorney 

filed a felony complaint and sent an arraignment notice to the address provided. (Ibid.) 

The Supreme Court did not address the constitutional relevance of the initial arrest, 

because “defendant does not contend that her Sixth Amendment speedy trial right 

attached upon her initial warrantless DUI arrest in September 1991, apparently because 

she was promptly released without bail and without any sort of probable cause 

determination by a magistrate.” (Id. at p. 761.) 
9

date as much as 364 days from arrest, whether to accommodate delays in analysis of 

serological samples, court congestion, or any other bureaucratic or administrative failure 

not amounting to a constitutionally adequate justification for delay. As we have 

explained, the record before us reflects that, consistent with the statutory scheme,

defendants’ releases were contingent upon their promise to appear in court to answer “the 

offense charged” in the notice. (See § 853.6, subd. (a)(1).) Defendants, though released, 

remained subject to the “continuing restraint” of the obligation to comply with the notice. 

C. Cessation of Continuing Restraint

Nevertheless, the District Attorney elected not to formally charge defendants 

pursuant to the Notices to Appear before the deadline set forth in section 853.6, 

subdivision (e)(3)(B), or defendants’ court dates, as set forth in the notices. Once the 

appearance date passed without formal charges, defendants were effectively “freed 

without restraint,” even though they were subject to an ongoing investigation. Under 

controlling decisional law, they ceased to be “accused” within the meaning of the Sixth 

Amendment speedy trial clause.

In MacDonald, the United States Supreme Court distinguished, for speedy trial 

purposes, between an individual facing charges and an individual subjected to an ongoing 

investigation after charges have been dismissed. There, the Army formally charged 

MacDonald with murdering his pregnant wife and two children on a military reservation. 

(MacDonald, supra, 456 U.S. at pp. 3-4.) After collecting information from 56 

witnesses, the Army dismissed the charges. (Id. at pp. 4-5.) At the request of the Justice 

Department, however, the Army continued its investigation, enabling the Justice 

Department to secure a grand jury indictment charging MacDonald with the three 

murders more than four years after the Army dismissed its charges. (Id. at p. 5.) The 

United States Supreme Court held that the speedy trial guarantee did not apply to the 

period between the Army’s dismissal of its homicide charges and the grand jury 

indictment. (Id. at pp. 8-11.) The court explained that after dismissal “the formerly 
10

accused is, at most, in the same position as any other subject of a criminal 

investigation. . . . After the charges against him are dismissed, ‘a citizen suffers no 

restraints on his liberty and is [no longer] the subject of public accusation: his situation 

does not compare with that of a defendant who has been arrested and held to answer.’ 

[Citation.] Following dismissal of charges, any restraint on liberty, disruption of 

employment, strain on financial resources, and exposure to public obloquy, stress and 

anxiety is no greater than it is upon anyone openly subject to a criminal investigation.” 

(MacDonald, supra, 456 U.S. at pp. 8-9, fn. omitted.)

Similarly, an arrestee held in custody for 72 hours then released and informed that 

no charges were then being filed “stands in the same position as one against whom 

charges are filed and then dismissed.” (People v. Price (1985) 165 Cal.App.3d 536, 539, 

541 (Price).) Thus, applying MacDonald, the court in Price held that the delay between 

arrest and the eventual filing of charges by information did not support dismissal of the 

information on Sixth Amendment grounds. (See id. at p. 541; see also Loud Hawk, 

supra, 474 U.S. at pp. 307-308, 311-312 [applying MacDonald to exclude from the Sixth 

Amendment speedy trial analysis time during which defendants were freed without 

restraint while the government appealed the district court’s dismissal of the original 

indictment against them].)

The election by a prosecuting attorney not to file a complaint within the initial 

25 days contemplated by section 853.6 places the arrestee in a position that is 

indistinguishable, for Sixth Amendment speedy trial purposes, from an arrestee who is 

free pending an ongoing investigation pursuant to a dismissal or a release without 

charges. Once the dates on the Notices to Appear passed without the District Attorney 

filing a case against them, defendants were freed without restraint in a position 

indistinguishable from any other individual subject to an ongoing criminal investigation. 

(See MacDonald, supra, 456 U.S. at pp. 8-9; Loud Hawk, supra, 474 U.S. at p. 311; 

Price, supra, 165 Cal.App.3d at p. 541; Williams, supra, 207 Cal.App.4th Supp. at p. 7.) 
11

From that date until the District Attorney filed the operative misdemeanor complaints, 

they were no longer accused. Defendants accordingly were not entitled to count this time 

toward the one-year threshold at which we may presume prejudice.7(See Serna, supra, 

40 Cal.3d at pp. 251-253 [delay of more than one year from filing of the misdemeanor 

complaint to the arrest is presumptively prejudicial].) 

Although delays of shorter duration may result in actual prejudice warranting 

dismissal (see Serna, supra, 40 Cal.3d at p. 254), defendants did not introduce evidence 

of actual prejudice in the trial court. Thus, the record did not permit the trial court to 

grant defendants’ motions. 

III. DISPOSITION

The trial court’s orders dismissing the complaints in both actions are reversed.

7 We need not decide whether the time period between the arrest and the 

appearance date on the Notice to Appear may properly be aggregated with a 

noncontinuous period of post-complaint delay, as the combined total on this record would 

not support a presumption of prejudice. 
____________________________

LIE, J.

WE CONCUR:

____________________________

GREENWOOD, P.J.

_____________________________

GROVER, J.

People v. Buchanan

H049838

People v. Downs

H049839
Trial Court: Santa Cruz County

Superior Court Nos. 20CR03618, 

21AP00003, 20CR03330, and 

21AP00002

Trial Judge: The Honorable Samuel S. Stevens 

Attorney for Plaintiff and Appellant Jeffrey S. Rosell,

The People of the State of California: District Attorney

Tara L. George,

Chief Deputy District Attorney

Lauren Apter,

Assistant District Attorney 

Attorneys for Defendants and Respondents William Safford,

Robert Ambrose Buchanan IV and under appointment by the

Karen Ginger Downs: Court of Appeal for Respondents

People v. Buchanan

H049838

People v. Downs

H049839