Supreme Court of California Justia
Docket No. S131879
People v. Lowe


Filed 3/29/07

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE ,
Plaintiff and Appellant,
S131879
v.
) Ct.App.
6
H026889
DANIEL LOWE,
Santa Clara County
Defendant and Respondent.
Super. Ct. No. CC03969

The California Constitution guarantees criminal defendants the right to a
speedy trial. (Cal. Const., art. I, § 15.) When a violation of that right arises from a
delay that occurs “after the filing of a complaint and before arrest or formal
accusation by indictment or information . . . a defendant seeking dismissal must
affirmatively demonstrate prejudice.” (People v. Martinez (2000) 22 Cal.4th 750,
755 (Martinez).)
The prosecution in this case filed criminal charges against defendant, but it
did not notify him thereof until he had completed a jail term in a neighboring
county for a probation violation. There is no evidence that the delay has impaired
defendant’s ability to defend against the charges. He contends, however, that he
should be allowed to establish prejudice from the delay simply by showing that he
lost the chance to serve any sentence stemming from the pending charges
concurrently with the jail term he was already serving on the probation violation.
We disagree.
1



I
The preliminary hearing transcript shows the following: On October 18,
2002, Mandy Isbell told San Jose Police Officer David Lee that defendant, her
estranged husband, was in arrears on child support payments and had been
sending her threatening messages. Officer Lee found defendant sitting in his
parked car, near Isbell’s mobile home. After speaking to defendant, Lee
concluded he was under the influence of methamphetamine. Lee retrieved from
defendant’s car a pipe bomb containing gunpowder. He arrested defendant for
possessing a destructive device and for being under the influence of
methamphetamine.
Defendant spent the next four days in jail. On October 22, 2002, the date
set for his arraignment, he was released because the Santa Clara County District
Attorney had not filed a complaint against him. (The record does not indicate why
no complaint was filed.)
At the time, defendant was on probation in Alameda County after a
conviction for an offense committed there. On November 28 or 29, 2002, he was
arrested in Santa Clara County on a warrant alleging that, based on the October
18, 2002, incident in San Jose, he had violated the conditions of his Alameda
County probation. Defendant was transported to Alameda County, and on
February 6, 2003, he admitted the probation violation. The trial court reinstated
probation on condition that defendant serve one year in the Alameda County Jail.
Four days later, on February 10, 2003, the Santa Clara County District
Attorney filed a complaint – based on the events of October 18, 2002 – charging
defendant with both possession of a destructive device (Pen. Code, § 12303.2),1 a

1
Unless otherwise stated, all statutory references are to the Penal Code.
2



felony, and being under the influence of methamphetamine (Health & Saf. Code,
§ 11550), a misdemeanor. The superior court issued an arrest warrant, which was
“activated” on March 13, 2003. Defendant was not notified of the complaint or
the warrant.
On June 26, 2003, four and a half months after issuance of the Santa Clara
County complaint, the Alameda County Jail was notified of the Santa Clara arrest
warrant. On July 8, 2003, defendant completed his jail term in Alameda County
for the probation violation. Thereafter, he was detained on the warrant and
transferred to Santa Clara County, where he was arraigned on July 11, 2003.
After being held to answer on the charges, defendant moved to have them
dismissed, alleging that the delay of nearly five months between the filing of the
complaint in February 2003 and his arraignment in July 2003 violated his right to
a speedy trial under the California Constitution. Defendant also asserted that the
nine-month delay from October 2002, when the conduct underlying the charges in
Santa Clara County occurred, to July 2003, when he was arraigned, violated his
right to due process of law under the state and federal Constitutions. Relying on
People v. Martinez (1995) 37 Cal.App.4th 1589, defendant contended the delay
had prejudiced him because he had lost the opportunity to serve any sentence that
might be imposed for the Santa Clara County offenses concurrently with his
sentence for the probation violation in Alameda County. He did not claim that the
delay had caused defense witnesses to become unavailable, or that the memories
of defense witnesses had faded; nor did he assert that the delay had in any other
way impaired his ability to defend against the charges.
In his points and authorities in opposition to defendant’s motion to dismiss
the charges, the Santa Clara County District Attorney made no attempt to justify
the delay in prosecuting defendant. Rather, he argued that to establish a violation
of the California Constitution’s speedy trial right, defendant had to show
3

“prejudice to his ability to defend [against the charges] that is attributable to the
delay,” and that because defendant had not alleged such prejudice the trial court
should deny his speedy trial motion.
The trial court granted defendant’s motion to dismiss the charges, ruling
that “[t]he delay in this case effectively removed [defendant’s] opportunity to
receive a sentence concurrent to his Alameda County sentence [and] [t]he People
provide no justification for the delay.” This delay, the court concluded, violated
defendant’s right to a speedy trial under the California Constitution. The court did
not address defendant’s alternative claim that the nine-month delay from October
2002, when the Santa Clara offenses allegedly were committed, to July 2003,
when the arraignment occurred, violated his right to due process of law under the
state and federal Constitutions. The district attorney appealed from the trial
court’s order dismissing the charges.
The Court of Appeal affirmed. It relied on its previous decision in People
v. Martinez, supra, 37 Cal.App.4th 1589, which held that when a defendant,
because of unnecessary delay by the prosecution, loses the opportunity to serve a
sentence concurrently with that in another case, the resulting prejudice to the
defendant justifies dismissal of the charges unless the prosecution establishes
justification for the delay. We granted the district attorney’s petition for review.
II
Both the state and federal Constitutions guarantee criminal defendants the
right to a speedy trial. (U.S. Const., 6th Amend.; Cal. Const. art. I, § 15.) But the
rights differ from each other in two significant respects. First, the state
constitutional right arises upon the filing of a felony complaint, whereas the
federal right does not come into play until an indictment or an information has
been filed or the defendant has been arrested and held to answer. Second, an
“uncommonly long” delay triggers a presumption of prejudice under the federal
4

Constitution, but not under the state Constitution. (Martinez, supra, 22 Cal.4th at
pp. 765-766.) Here, defendant raises only a claim under the state Constitution.
The defense has the initial burden of showing prejudice from a delay in
bringing the defendant to trial. Once the defense satisfies this burden, the
prosecution must show justification for the delay. If the prosecution does that, the
trial court must balance the prejudice to the defendant resulting from the delay
against the prosecution’s justification for the delay. (Serna v. Superior Court
(1985) 40 Cal.3d 239, 249.)
At issue here is whether the defense may satisfy its initial burden of
establishing prejudice from the delay by demonstrating that the delay has cost the
defendant the opportunity to serve a sentence for the charged crime concurrently
with the sentence being served in another case. In concluding that the defense
may do so, the Court of Appeal followed its decision in People v. Martinez, supra,
37 Cal.App.4th 1589. In that case, the defendant was arrested in March 1991 for
possession of heroin, but he was released without being booked. Four months
later he was arrested for an unrelated offense, which resulted in a conviction and a
prison sentence of three years. In the spring of 1992, he was charged with
possession of heroin based on the March 1991 arrest; although an arrest warrant
was issued, the prison where he was serving his sentence for the crime unrelated to
the pending charge was apparently not notified of the warrant. While in prison,
the defendant in People v. Martinez asked a prison legal counselor if there were
any holds or warrants against him; the counselor determined there were none. In
September 1993, after being released on parole, he was arrested for a new offense,
and he was also charged with possession of heroin based on the March 1991
incident. He moved to dismiss the heroin charge, claiming a violation of his
speedy trial rights. As to prejudice, he alleged only that the delay prevented him
from serving his heroin possession sentence concurrently with the three-year
5

prison sentence in the unrelated case. The trial court granted his motion to
dismiss. The prosecution appealed.
The Court of Appeal in People v. Martinez affirmed the trial court’s
dismissal of the heroin possession charge. It rejected the prosecution’s claim that
the defendant’s showing of prejudice was inadequate for failure to show
“prejudice to a fair trial, as generally manifested by missing witnesses or evidence
of failing memories.” (People v. Martinez, supra, 37 Cal.App.4th at p. 1594.) It
pointed out that “both the United States Supreme Court and our own California
Supreme Court have included the possibility of concurrent sentencing as a
potential aspect of prejudice” (ibid.), citing Barker v. Municipal Court (1966) 64
Cal.2d 806, 813 (Barker), and Smith v. Hooey (1969) 393 U.S. 374, 377-378
(Smith). We do not, however, so construe the holdings of those two decisions, as
discussed below.
While incarcerated in federal prison on certain federal offenses, the
defendants in Barker were charged in Monterey County, California, with
attempted murder. The county prosecutor placed a “detainer warrant” on the
defendants but refused to extradite them for trial, rejecting their repeated requests
that he either bring them to trial or dismiss the attempted murder charges. As a
result, the defendants continued to serve their federal sentences for almost 18
years before being brought to trial in state court.2

2
Under current law, the defendants in Barker could have insisted on an
earlier trial by invoking section 1381.5, which permits a defendant incarcerated in
federal prison to demand to be brought to trial within 90 days on charges pending
in a California state court. The California Legislature did not enact this law until
1963; thus, it was unavailable to the defendants in Barker “during the greater part
of [their] federal incarceration and at none of the times when they made requests
for trial.” (Barker, supra, 64 Cal.2d at p. 812.)
6



We held in Barker that the prosecutor’s delay in bringing the defendants to
trial violated their right to a speedy trial under the California Constitution. We
explained: “The guarantee of a speedy trial ‘serves a three-fold purpose. It
protects the accused . . . against prolonged imprisonment; it relieves him of the
anxiety and public suspicion attendant upon an untried accusation of crime; and
. . . it prevents him from being “exposed to the hazard of a trial, after so great a
lapse of time” that “the means of proving his innocence may not be within his
reach” – as, for instance, by the loss of witnesses or the dulling of memory.’
[Citations.] [¶] The foregoing purposes are equally served with respect to one
already imprisoned for another crime. Even the purpose of preventing undue
imprisonment is of some concern to a California prisoner, because if he is
promptly convicted of an additional offense he may be sentenced to serve a term
of imprisonment concurrently with the term already imposed . . . ; if a defendant is
brought to trial only after his sentence on another charge has been completed, the
possibility of concurrent sentences is denied him.” (Barker, supra, 64 Cal.2d at
p. 813, italics added.) It is this italicized phrase on which defendant here relies.
But that observation in Barker has to be read in context, not in isolation.
Immediately thereafter, Barker pointed to “the obvious prejudice which follows
when required to defend against criminal charges long after commission of the
alleged offenses” (Barker, supra, 64 Cal.2d at p. 813) when memories have
become clouded and witnesses inaccessible. Barker did not identify the type of
prejudice – loss of an opportunity to serve concurrent sentences, faded memories,
or inaccessible witnesses – suffered by the defendants in that case, in light of its
holding that prejudice was presumed because of the 18-year delay in bringing
them to trial. (Id. at p. 812.) Given that circumstance, Barker cannot be read as
holding that a defendant claiming violation of the right to a speedy trial under the
California Constitution can establish prejudice simply by demonstrating a loss of
7

the opportunity to serve any sentence in the pending case concurrently with the
sentence in another matter.
We now turn to the United States Supreme Court’s decision in Smith. The
defendant there was indicted for a violation of Texas law while he was serving a
sentence in federal prison in Kansas. For the next six years, the Texas authorities
rejected the defendant’s repeated requests for a speedy trial, making no effort to
extradite him. He finally moved for dismissal of the Texas charges, asserting a
violation of his speedy trial right under the federal Constitution. The Texas
Supreme Court held that a federal prisoner had no right to a speedy trial on state
charges. The United States Supreme Court disagreed. In holding that the state
had a constitutional duty to make a diligent, good faith effort to bring a defendant
to trial, the high court noted that “the possibility that the defendant already in
prison might receive a sentence at least partially concurrent with the one he is
serving may be forever lost if trial of the pending charge is postponed.” (Smith,
supra, 393 U.S. at p. 378.)
But the high court in Smith went on to explain: “[I]t is self-evident that ‘the
possibilities that long delay will impair the ability of an accused to defend himself’
are markedly increased when the accused is incarcerated in another jurisdiction.
Confined in a prison, perhaps far from the place where the offense covered by the
outstanding charge allegedly took place, his ability to confer with potential
defense witnesses, or even to keep track of their whereabouts, is obviously
impaired. And, while ‘evidence and witnesses disappear, memories fade, and
events lose their perspective,’ a man isolated in prison is powerless to exert his
own investigative efforts to mitigate these erosive effects of the passage of time.”
(Smith, supra, 393 U.S. at pp. 379-380, fn. omitted.)
Thus, in Smith loss of the opportunity to serve concurrent sentences was not
the only circumstance but one of several mentioned by the high court in explaining
8

why the state prosecutor in that case could not refuse to prosecute the defendant
while he was serving his federal sentence. Consequently, Smith cannot be said to
hold that an unjustified delay in bringing a defendant to trial violates the
defendant’s speedy trial right under the federal Constitution when, as here, the
only prejudice alleged by the defendant is the loss of the opportunity to serve the
sentence on the pending charge concurrently with the sentence in another case.
The federal courts have in those situations uniformly rejected defense
claims of prejudice. (See United States v. Gregory (9th Cir. 2003) 322 F.3d 1157,
1164 [“any sentencing prejudice that [the defendant] might suffer is speculative
rather than actual”]; United States v. White (6th Cir. 1993) 985 F.2d 271, 276 [loss
of the opportunity to serve concurrent sentences “is not sufficient to constitute
‘substantial prejudice’ ”]; United States v. Cabral (1st Cir. 1973) 475 F.2d 715,
719-720 [the defendant’s allegation that he lost the opportunity to serve
concurrent sentences “is highly speculative and falls far short of a demonstration
of actual prejudice”]; see also U.S. v. Sanchez (2d Cir. 2000) 225 F.3d 172, 177;
U.S. v. Lainez-Leiva (2d Cir. 1997) 129 F.3d 89, 92; U.S. v. Throneburg (6th Cir.
1996) 87 F.3d 851, 853; U.S. v. Tippens (5th Cir. 1994) 39 F.3d 88, 89.)
Consistent with these decisions construing the federal Constitution’s right
to a speedy trial, we reject defendant’s contention that under the California
Constitution’s speedy trial right, a pending criminal charge must be dismissed
solely because the delay in bringing the defendant to trial has cost the defendant
the chance to serve the sentence on that charge concurrently with the sentence in
another case. If that were so, a delay in bringing a defendant to trial would require
dismissal of even a very serious charge (such as murder), despite overwhelming
evidence of the defendant’s guilt, merely because the defendant was denied the
potential benefit of serving some slight portion (perhaps only a few months) of the
sentence for that crime concurrently with a sentence previously imposed in
9

another case. In that situation, the drastic sanction of dismissal would be grossly
disproportionate to the harm that the defendant actually suffered—the mere
possibility, however slight, that the sentence ultimately imposed for the dismissed
crime might have been effectively reduced in some measure, however small, by
concurrent service with the sentence for another crime.
One additional observation: The likelihood of serving a sentence on a
pending charge concurrently with a sentence already being served in another case
is speculative. Sometimes imposition of concurrent sentences is legally barred.
(See, e.g., §§ 667.6, subd. (d); 1170.12, subds. (a)(6)-(a)(8).) Even when
concurrent sentences are permitted, they often are not imposed because of the
presence of certain aggravating factors. (Cal. Rules of Court, rule 4.425.)
For the reasons given above, we hold that a defendant claiming a speedy
trial violation under the California Constitution must show that the delay has
impaired the ability to defend against the charged crime because, for instance, a
witness has become unavailable, evidence has disappeared, or the memory of a
potential witness has faded.3 If the defense makes that initial showing, the trial
court may then, consistent with Barker, supra, 64 Cal.2d at page 813, consider the
defendant’s loss of an opportunity to serve a concurrent sentence in weighing all
of the prejudice to the defendant against the prosecution’s justification for the
delay. In maintaining that the possibility of such loss alone should be sufficient to
establish prejudice, defendant asserts that to hold otherwise would encourage
prosecutors to “intentionally delay filing complaints and/or executing warrants
until a person serving another sentence was nearly finished with that sentence,”
thereby “unfairly prevent[ing] the defendant from even asking for concurrent

3
We disapprove People v. Martinez, supra, 37 Cal.App.4th 1589, to the
extent it is inconsistent with this opinion.
10



sentencing” and “unilaterally depriv[ing] trial judges of their discretion to impose
concurrent sentences.” We stress that engaging in such improper conduct would
be violating the prosecutor’s duty to expedite criminal proceedings “to the greatest
degree that is consistent with the ends of justice.” (§ 1050, subd. (a).) Here, there
is no evidence that the prosecution deliberately violated that duty.
In dismissing the charges against defendant, the trial court accepted
defendant’s claim of a violation of his right to a speedy trial. In doing so, the trial
court relied on People v. Martinez, supra, 37 Cal.App.4th 1589, a decision by the
Court of Appeal in the judicial district encompassing this trial court. Because for
reasons discussed earlier we now disapprove that decision, we conclude that the
trial court erred.
DISPOSITION
The judgment of the Court of Appeal is reversed, and the matter is
remanded to that court with directions to reverse the trial court’s dismissal and to
reinstate the charges against defendant.
KENNARD,
J.
WE CONCUR:

GEORGE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.

11



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Lowe
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 126 Cal.App.4th 1365
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S131879
Date Filed: March 29, 2007
__________________________________________________________________________________

Court:

Superior
County: Santa Clara
Judge: Marcel P. Poché

__________________________________________________________________________________

Attorneys for Appellant:

George W. Kennedy, District Attorney, Neal Kimball, Joseph Thibodeaux and Marilyn Masciarelli, Deputy
District Attorneys, for Plaintiff and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Jose R. Villarreal and Mary J. Greenwood, Public Defenders, and Brian J. Matthews, Deputy Public
Defender, for Defendant and Respondent.

Michael P. Judge, Public Defender (Los Angeles) and John Hamilton Scott, Deputy Public Defender, as
Amici Curiae on behalf of Defendant and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Marilyn Masciarelli
Deputy District Attorney
County Government Center, West Wing
70 West Hedding Street, Sixth Floor
San Jose, CA 95110
(408) 792-2629

Brian J. Matthews
Deputy Public Defender
120 West Mission Street
San Jose, CA 95110
(408) 299-7721


Opinion Information
Date:Docket Number:
Thu, 03/29/2007S131879

Parties
1The People (Plaintiff and Appellant)
Represented by George W. Kennedy
Santa Clara County District Attorney's Office
70 W. Hedding Street, 6th Floor
San Jose, CA

2The People (Plaintiff and Appellant)
Represented by Amy Haddix
Office of the Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA

3Lowe, Daniel (Defendant and Respondent)
Represented by Brian James Matthews
Santa Clara County Public Defender
120 W. Mission Street
San Jose, CA

4San Joaquin County District Attorneys Office (Pub/Depublication Requestor)
Represented by Kevin Hicks
San Joaquin County District Attorney's Office
222 E. Weber Avenue, Suite 202
Stockton, CA

5Los Angeles County Public Defender (Amicus curiae)
Represented by John Hamilton Scott
Office of the Public Defender, City of Los Angeles
320 W. Temple Street, Room 590
Los Angeles, CA


Disposition
Mar 29 2007Opinion: Reversed

Dockets
Mar 2 2005Received premature petition for review
  from counsel for pltf-aplt People. (the C/A subsequently ordered the opinion to be published on 2-18-05) the petn for review will be filed as of 3-22-05 see CRC rule 24(b)(5)
Mar 22 2005Request for depublication (petition for review pending)
  By The Office of the District Attorney, San Joaquin County. (NON-PARTY)
Mar 22 2005Case start: Petition for review filed
  c/a rec req
Mar 29 2005Received Court of Appeal record
  file jacket/briefs/transcripts
May 16 2005Time extended to grant or deny review
  to and including June 20, 2005
Jun 8 2005Petition for review granted (criminal case)
  Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Brown, and Moreno, JJ.
Jun 9 2005Note:
  Letter sent to Santa Clara Co. Pub. Def. acknowledging that they will continue to represent resp. Lowe
Jul 1 2005Opening brief on the merits filed
  by appellant (People)
Jul 28 2005Answer brief on the merits filed
  by respondent
Aug 16 2005Reply brief filed (case fully briefed)
  by appellant
Sep 15 2005Received application to file Amicus Curiae Brief
  on behalf of a/c Public Defender. (brief under same cover)
Sep 29 2005Permission to file amicus curiae brief granted
  by the Publid Defender of L.A. County in support of resp. Answers may be filed w/in 20 days.
Sep 29 2005Amicus curiae brief filed
  by the Public Defender of L.A. County in support of respondent.
Oct 14 2005Response to amicus curiae brief filed
  By counsel for appellant to AC Brief filed by The Public Defender of L.A. County.
Sep 6 2006Received:
  letter form Deputy Public Defender Brian J. Matthews re: schedueling of oral argument.
Sep 20 2006Received:
  letter from Santa Clara County District Attorney re: additional authorites.
Dec 5 2006Case ordered on calendar
  Wednesday, January 10, 2007, at 9:00 a.m., in San Francisco
Jan 10 2007Cause argued and submitted
 
Mar 28 2007Notice of forthcoming opinion posted
 
Mar 29 2007Opinion filed: Judgment reversed
  The judgment of the Court of Appeal is reversed, and the matter is remanded to that court with directions to reverse the trial court's dismissal and to reinstate the charges against defendant. Opinion by Kennard, J. -----joined by George, C.J., Baxter, Werdegar, Chin, Moreno & Corrigan, JJ.
Apr 13 2007Received:
  Amicus brief in support of Rehearing Petition Attorne John Hamilton Scott, Public Defender of Los Angeles County
Apr 13 2007Rehearing petition filed
  Daniel Lowe, Respondent by Brian J. Matthews, counsel
Apr 16 2007Time extended to consider modification or rehearing
  The time for granting or denying rehearing in the above-entitled case is hereby extended to and including June 27, 2007, or the date upon which rehearing is either granted or denied, whichever occurs first.
Jun 20 2007Rehearing denied
 
Jun 20 2007Remittitur issued (criminal case)
 
Jun 25 2007Received:
  receipt for remittitur CA/6.
Jul 9 2007Returned record
 
Nov 5 2007Note:
  Original Supreme Court record returned from CA/6.

Briefs
Jul 1 2005Opening brief on the merits filed
 
Jul 28 2005Answer brief on the merits filed
 
Aug 16 2005Reply brief filed (case fully briefed)
 
Sep 29 2005Amicus curiae brief filed
 
Oct 14 2005Response to amicus curiae brief filed
 
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