1 Filed 12/4/14 P. v. Green CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 APPELL ATE DISTRICT DIVISION TWO

THE PEOPLE, Plaintiff and Appellant,

v. JAMES EDWARD GREEN, Defendant and Respondent. E060973 (Super.Ct.No. FWV902066) OPINION

APPEAL from the Superior Court of San Bernardino County. Stanford E. Reichert, Judge. Affirmed. Michael R. Ramos, District Attorney, and Stephanie H. Ze itlin, Deputy District Attorney, for Plaintiff and Appellant. Jason L. Jones, under appointment by the Court of Appeal, for Defendant and Respondent.2 I
INTRODUCTION 1 The original search warra nt in this case was executed in September 2005. Defendant James Edward Green was not charge d until August 2009 w ith 15 counts of forgery and 15 counts of identity theft. (§§ 476, 530.5, subd. (a).) Defendant was not arrested until seven years later in October 2012. The People appeal from the trial court’s order dismissing the entire complaint in February 2014. (§ 1238, s ubd. (a)(1).) The People contend the seven-year prearrest delay in prosecution did not prejudice defendant and was justified for budgetary reasons. ( People v. Dunn-Gonzalez (1996) 47 Cal.App.4th 899, 915- 916.) Given the procedural posture of this case, we focus our analysis on the due process not the speedy trial issue. ( People v. Horning (2004) 34 Cal.4th 871, 895.) Based on our review, we conclude the absence of a material witness—as well other evidentiary problems suggested in the re cord—support the trial court’s finding that the delay was prejudicial to defendant. Additionally, the record does not show any credible justification for prosecutorial dela y based on economic considerations. Instead, this appears to have been a marginal case that, for many years, no one in law enforcement cared to pursue. We affirm.

1 All further statutory references are to the Penal Code unless stated otherwise.3 II FACTUAL AND PROCEDUR AL BACKGROUND Our summary of the facts and proceedi ngs below is based on the reporter’s transcript and the clerk’s transcript, in cluding the two motions to dismiss filed by defendant and the opposition submitted by the People. A. August 2005-November 2012 On or about August 11, 2005, James W illiams was arrested and accused of fraudulently using stolen account informatio n at a department store. Apparently, Williams pleaded guilty at a pre-preliminary hearing in August 2 005 to misdemeanor offenses. Based on Williams’s admission that he wa s involved in a check-cashing scheme, a search warrant was executed at a reside nce in Rialto on September 30, 2005. Defendant was one of four o ccupants, all of whom were arrested. Defendant waited a year to be arraigned but the court eventually released defendant and exonerated all bail bonds. On August 11, 2009, ne arly four years later and barely within the four-year statute of limitations, the People filed a 30-count felony complaint against defendant and a codefendant, Dione Monique Davis. An a rrest warrant for defe ndant was issued on September 3, 2009. Defendant was not arrest ed until another three years later on October 31, 2012. He was finally arraigned on Nove mber 2, 2012, more than seven years after the original search warrant wa s executed in September 2005.4 B. Defendant’s Motions to Dismiss In March 2013, defendant filed his “Motio n to Dismiss for Lack of Speedy Trial and Violation of Due Process. ” In May 2013, defendant filed a second “Motion to Dismiss for Violation of Due Process.” In defendant’s dismissal motions, he asserts he was prejudiced by not being able to locate Williams, a material witness. In opposing defendant’s motions, the People submitte d declarations from two deputy district attorneys—Mi chael Abney and Grover D. Merritt—with three attached exhibits. Abney and Merritt declared that the case was under review by the district attorney’s office fo r three years from 2005 until 2 008. The attached exhibits— memorandums prepared by three different de puty district attorneys in October 2005, February 2008, and September 2008—character ized the case as “incomplete” and “very old and complicated.” In Abney’s memorandum of September 2008 , he stated criminal charges should not be filed for lack of suffici ent evidence: “Given the age of the case , we need to know whether witnesses will be availa ble for preliminary hearing and/or trial before we file this case.” Later, according to Abney, the sheriff’ s department “initially declined to give further assistance on the case out of frustra tion over delays.” Ab ney finally obtained some information from a detective and the Arrowhead Credit Union. Abney filed the felony complaint on Au gust 11, 2009. Arrest warrants were then issued for defendant and codefenda nt Davis. Davis was arraigned in De cember 2009. She pleaded guilty and was sentenced to a five-year prison term. Th e 15 victims did not ask for restitution.5 In November 2010, Merritt was assigned to be an identity th eft prosecutor. Merritt learned the sheriff’s department had taken no action on the warrant for defendant for the three years after its i ssuance until his arrest in Oct ober 2012. Merritt stated there are about 25 pounds (two and one-half banker’s boxes) of materials pertaining to the case, including a police report, personal in formation, bank statements, and other commercial records. Merritt was able to obt ain a date of birth for Willliams, the missing witness, and determine that he had comp leted a misdemeanor probation and he had a recent address in San Bern ardino County, current as of September 2012. C. The Hearing At the hearing in February 2014, defe ndant’s attorney to ld the court his investigator still had not been able to lo cate Williams. Merritt responded that Williams was not a necessary material witness. The court granted the motions to dismiss, finding “there was a delay in this matter that was not justified that has been prejudic [ial] to the defendant. The matter was initially investigated, started back in August of 2005. The case b ounced around the desert for a number of years. No action was taken. Ev idence has been lost. We can’t locate Mr. Williams anymore. And the Co urt finds that the delay wa s unjustified and prejudicial, and the Court grants the Serna [ 2 ] motion and dismisses the case. [¶] . . . [¶] . . . Mr. Williams is not here. We can’t find him an ymore. Even though there are documents,

2 Serna v. Superior Court (1986) 40 Cal.3d 239.6 apparently, that might substantiate this cl aim, it is—the Court finds Mr. Williams is essential to the defense claim. He’s gone.”
III DISCUSSION The delay in not charging defendant until August 2009 for a crime committed in September 2005 and not arre sting defendant until October 2012 may constitute a denial of due process under the federal and state Constitutions. ( People v. Nelson (2008) 43 Cal.4th 1242, 1250.) The parties disagree ab out whether the delays were prejudicial to defendant or justified by the prosecution. Defendant argues the loss of the material witness, Williams—who implicat ed defendant—was prejudicial. The People assert that Williams is not actually missing a nd he is not a material witn ess. The People blame the delay on the limited resources for law enfo rcement and prosecution caused by budgetary constraints. A. State and Federal Due Process The due process clauses of the Fifth and Fourteenth Amendments and article I, section 15 of the California Constitution “prote ct a defendant from the prejudicial effects of lengthy, unjustified delay between the commission of a crime and the defendant’s arrest and charging.” ( People v. Cowan (2010) 50 Cal.4th 401, 430 ( Cowan ).) “‘[T]he right of due process protects a criminal defe ndant’s interest in fair adjudication by preventing unjustified delays that weaken th e defense through the dimming of memories, the death or disappearance of witnesses, and th e loss or destruction of material physical7 evidence.’ [Citation.] Accordingly, ‘[d]elay in prosec ution that occurs before the accused is arrested or the compla int is filed may constitute a de nial of the right to a fair trial and to due process of law under the state and federal Cons titutions. A defendant seeking to dismiss a charge on this ground must demonstrate prejudice arising from the delay. The prosecution may offer justificati on for the delay, and the court considering a motion to dismiss balances th e harm to the defendant agai nst the justification for the delay.’ [Citation.]” ( People v. Nelson, supra, 43 Cal.4th at p. 1250.) The standard of review for a trial c ourt’s ruling on a motion to dismiss for prejudicial delay is reviewed for abuse of discretion with defere nce to any underlying factual findings if substantial evidence suppor ts them. ( Cowan, supra, 50 Cal.4th at p. 431.) “Under the abuse of discretion standard, ‘a trial court’s ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner th at resulted in a manifest miscarriage of justice.’” ( People v. Hovarter (2008) 44 Cal.4th 983, 1004.) “The trial court’s ruling in this regard will be sustaine d on review unless it falls outside the bounds of reason.” ( People v. Mirenda (2009) 174 Cal.App.4th 1313, 1330 ( Mirenda ).) The question of whether a defendant has established prejudice o ccasioned by delay is clearly a factual matter to be resolved by the trial court, its decisi on on that point will not be overturned by an appellate court if su pported by substantial evidence. ( People v. DunnGonzalez, supra, 47 Cal.App.4th at pp. 911-912.)8 The People argue that, to the extent de fendant’s motion to dismiss is based on speedy trial grounds, it should be heard afte r trial based on actual evidence. However, it is within the court’s discretion whether to ru le on a motion to dismiss on speedy trial or due process grounds before, during, or after trial. ( Cowan, supra, 50 Cal.4th at p. 431.) It is permissible but not necessary for a tria l court to delay hearin g the motion until after trial. ( People v. Martinez (2000) 22 Cal.4th 750, 769-770; People v. Boysen (2007) 165 Cal.App.4th 761, 781.) Here the trial cour t could properly deci de defendant’s motion based on due process grounds for delay in charging and arrest. The People assert that federal due pr ocess requires dismissal only where the prosecution’s delay is shown to be inten tional and tactically motivated and where substantial prejudice to the defendant’s right s is demonstrated. The California Supreme Court in Nelson ultimately concluded that, regardle ss of whether federal due process requires purposeful delay, “und er California law, negligent, as well as purposeful, delay in bringing charges may, wh en accompanied by a showing of prejudice, violate due process.” ( People v. Nelson, supra , 43 Cal.4th at p. 1255.) “[W]hether the delay was negligent or purposeful is relevant to the bala ncing process” but is not determinative. ( Id. at p. 1256.) B. Prejudice Prejudice cannot be purely sp eculative in nature but it ne ed not be significant to shift the burden to the People to justify the delay. Prejudice may be shown by “‘“loss of material witnesses due to lapse of time.”’” ( Cowan, supra , 50 Cal.4th at p. 430, quoting9 People v. Catlin (2001) 26 Cal.4th 81, 107.) The conc ept of materiality involves “the ‘tendency [of the evidence] in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.’” ( People v. Hill (1992) 3 Cal.App.4th 16, 29, disapproved on another ground in People v

. Nesler (1997) 16 Cal.4th 561, 582, fn. 5.) In a criminal case, material evidence is evidence that could prove or disprove a fact bearing on the defendant’s guilt.
In Nelson , the Supreme Court approved the appellate court’s holding that the defendant had demonstrated prejudice from the unavailability of witnesses who would have provided relevant testimony. ( People v. Nelson, supra , 43 Cal.4th at p. 1251.) In Dunn-Gonzalez , defendant’s motion was based on the fact that a relevant witness had died before the comp laint was filed. ( People v. Dunn-Gonzalez, supra, 47 Cal.App.4th at pp. 902, 906-907.) The trial court specifically found that the defendant suffered prejudice from the loss of the witness, even though the c ourt noted “[c]uriously that works both ways,” presumably because so me of that witness’s testim ony may have been favorable for the prosecution. ( Id . at p. 912.) Thus prejudice wa s established because the witness was material, not because the witness wo uld have offered ex culpatory evidence. The People argue defendant cannot estab lish prejudice because Williams is not missing and is not a material witness. To refute defendant’s a ssertion that Williams could not be located, the People contend hi s address is available based on an online search conducted by Merritt. Whatever information Merritt found was not specifically identified. Merritt did not state there has been any contact with Williams. No address for10 Williams was included. There is no way of knowing whether Merritt’s information was valid or verifiable. Additionally, in Februa ry 2014, defense counsel represented to the court that his investigator could not locate Williams using any address. No substantial evidence demonstrated to the trial court that Williams was available as a witness. Furthermore, substantial ev idence supported the trial court’s finding that Williams is a material witness. On appeal, the People argue Williams was not material because a possessory case can be prov en by possession alone and th erefore testimony by Williams was irrelevant. However, a violation of sec tion 530.5, subdivision (a), for identity theft cannot be shown simply by possession. It also requires proof that the offender used the identity material. (§ 530.5, subd. (a).) Williams could supply that element. After Williams was accused of using stolen account information at a Nordstrom’s department store, he was arrested and ad mitted being involved in a check-cashing scheme. The officers then searched defend ant’s residence and charged defendant with identity theft and forgery. Defendant’s presen ce at the residence, even if deemed to be constructive possession, is not enough to prov e a violation. Williams might be able to testify about how the check-cashing scheme operated and who was involved. Even if Williams is not necessary to pr ove the People’s case, he c ould have inform ation relating to a defense. However, the delay in this case—now more than nine years since August 2005 when Williams wa s arrested—means that Williams may have forgotten significant details, whether exculpatory or inculpatory. In balancing prejudice to the defense against11 justification for delay, the absence of W illiams, a material witn ess is sufficient to demonstrate prejudice. ( Cowan, supra , 50 Cal.4th at p. 430.) C. Justification for Delay Once prejudice is shown, the court must evaluate the reason for delay: “Even a minimal showing of prejudice may require di smissal if the proffered justification for delay is insubstantial. By the same token, the more reasonable the delay, the more prejudice the defense would have to show to require dismissal. Therein lies the delicate task of balancing competing interests.” ( People v. Dunn-Gonzalez, supra , 47 Cal.App.4th at p. 915 [due process context]; Mirenda, supra , 174 Cal.App.4th at p. 1327 [same prejudice standard used in state speedy trial context].) “The court’s ruling in this regard will be sustained on review unle ss it falls outside the bounds of reason.” ( Mirenda, at p. 1330.) The delay in prosecution occurred during tw o separate periods: a four-year delay from September 2005 until the complaint was f iled in August 2009 and a subsequent three-year delay from August 2009 until October 2012 befo re arresting defendant. Merritt summarized the justificati on for the delay as follows: “In response to defendant’s motions, I conducted an exhaustiv e search for any records exta nt anywhere to explain the pre-charging delay from October 2005 to September 2009 and the post-charging delay in the execution of the arrest wa rrant for [defendant].” Merr itt stated, “[t]he only useful recollections I obtained from that canvas ar e those reflected here,[] as well as the consensus that ‘this case bounced around in the desert for a number of years. The12 [sheriff’s office] expressed frustration th at the case[] was passed from DDA to DDA without any resolution. . . . These hazy recollections are not buttressed by any sort of interdivisional transfer memoranda, or Chie fs’ meeting minutes, or any document beyond what I found in the DAO’s STAR system.” Merritt’s only ju stifications for the delays were that several different attorneys had ha ndled the matter and the sheriff’s office had not enforced the arrest warrant . The People’s submissions do not establish a lack of funding or staffing. In other words, the dela ys were “unjustified” as found by the trial

court.
In Dunn-Gonzalez , the appellate court upheld the trial court’s finding that a short 12-month delay was justified wh ere “the delay in investiga tion and charging was caused by lack of adequate personnel to investigate and prosecute th e case” and “severe cuts in personnel handling fraud cases.” ( Dunn-Gonzalez, supra , 47 Cal.App.4th at p. 915.) Here the seven-year delay is not explained in any comprehensive wa y and contributed to the loss of a material witness. These circumstances do not establish justifiable delay.
IV CONCLUSION We agree with the trial court’s findings th at defendant suffered prejudice and that the prosecution’s delay was unjustified. Williams was the material witness who implicated defendant and who could testify about defendant’s invo lvement or lack of involvement. Although Merr itt claims he was able to lo cate Williams, Merritt does not state he had any actual contact with Williams.13 Our review of the People’s submissions shows this case was considered weak by prosecutors at the outset in October 2005. It was then ignored for three years until September 2008 when Abney succeeded in generating some activity. Nothing more happened from August 2009 un til October 2012 when defendant was fi nally arrested. The People also do not supply any persuasive evidence of b udgetary problems lasting for
seven years. Under the circumstances, the trial court’ s decision to dismiss—after balancing the prejudice to defendant against the lack of credible justific ation for the delay—did not fall outside the bounds of reason. We affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS CODRINGTON J.
We concur:

HOLLENHORST Acting P. J.

RICHLI J.