People v. Bartholomaus CA4/2 (2014) · DecisionDepot
People v. Bartholomaus CA4/2
California Court of Appeal Jun 11, 2014 No. E057789Unpublished
Filed 6/11/14 P. v. Bartholomaus 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plantiff and Appellant, E057789
v. (Super.Ct.No. CR45228)
MARLICE IRALENE OPINION BARTHOLOMAUS,
Defendant and Respondent.
APPEAL from the Superior Court of Riverside County. Helios (Joe) Hernandez,
Judge. Reversed.
Paul E. Zellerbach, District Attorney, and Alan D. Tate, Deputy District Attorney,
for Plaintiff and Appellant.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and
Respondent.
Defendant and respondent Marlice Iralene Bartholomaus moved to dismiss the
underlying 20-year-old charges against her on the ground that defendant’s constitutional
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right to a speedy trial had been violated. The trial court granted the motion and dismissed
the charges. The People appeal, contending that the trial court erred in granting
As we have noted, the trial court below was presented with arguments that may
have touched on some of the relevant factors, and the court appeared to be concerned
with the appropriate balancing of all the relevant considerations. However, except as to
the length of delay, neither party presented any actual evidence with respect to the Barker
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criteria. The court was obligated to make an inquiry into the remaining factors, but no
such actual inquiry took place.
Although defendant’s counsel represented to the court that defendant had been
living openly in the area for at least 18 of the 20 years elapsed since the information was
filed, defendant wholly failed to provide a declaration (or any other evidence) attesting to
the facts. Similarly, defense counsel represented to the court that it was unknown
whether the victim or any other witnesses were still present in the area, and stated, “I
have received no information of their whereabouts or are they even around anymore. I
don’t believe they are even around anymore.” These remarks suggest that counsel may
have made some sort of investigation or inquiry into the whereabouts of the relevant
persons, but again there was no declaration or affidavit averring to any such investigation
or inquiry. As to the delay in asserting the speedy trial right, there was no affidavit from
either defendant or her counsel to explain any reasons or justifications for the delay, or
what led defendant to calendar the matter. She was, as between the parties, the one who
acted earliest with respect to asserting a claim that the speedy trial right was violated.
However, there was no evidentiary explanation or justification for her delay in coming
forward. We also note that, “In the context of the Barker balancing, if the delay is caused
by the defendant (such as when the defendant deliberately fails to appear), that factor is
likely to be given far more weight than the failure of the People to track the defendant
down. (E.g., People v. Hsu (2008) 168 Cal.App.4th 397 [85 Cal.Rptr.3d 566].)”
(Leaututufu v. Superior Court (2011) 202 Cal.App.4th Supp. 1, 6.) So far as the record
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shows, the “cause” of the delay was defendant’s failure to appear for arraignment on the
information; she had been ordered to appear and failed to do so. That factor militates
against granting the motion.
As we have noted, defendant’s motion to dismiss was couched exclusively in
terms of her federal constitutional Sixth Amendment right to a speedy trial. The motion
did not assert violation of defendant’s state constitutional speedy trial right. Article 1,
section 15 of the California Constitution does guarantee the right to a speedy trial. To
show a violation of the state constitutional right, a defendant seeking dismissal must bear
the initial burden of demonstrating prejudice from the delay. (Serna v. Superior Court
(1985) 40 Cal.3d 239, 249.) Defendant here has relied solely on presumed prejudice, and
did not purport to demonstrate actual prejudice. Even had defendant made a claim under
the state constitutional speedy trial right, that claim would likewise fail because of the
failure to present any evidence on the issue of prejudice.
In short, defendant, as the moving party, failed to present any evidence upon
which the court could base a rational decision on the motion. “An act constituting an
abuse of discretion is described as one that is arbitrary, capricious, or beyond the bounds
of reason.” (County of Los Angeles Dept. of Regional Planning v. Superior Court (2012)
208 Cal.App.4th 1264, 1271.) It was beyond the bounds of reason—i.e., an abuse of
discretion—to rule on the motion in the absence of any evidence. The ruling on the
motion (and the judgment of dismissal) should therefore be reversed.
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DISPOSITION
The judgment of dismissal and the order granting the motion to dismiss are
reversed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER J. We concur:
RAMIREZ P. J.
HOLLENHORST J.
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AI Brief
AI-generated · verify before citing
Holding. The trial court abused its discretion by dismissing charges based on a Sixth Amendment speedy trial violation without requiring the defendant to present evidence to support the Barker v. Wingo balancing factors.
Issues
Whether the trial court abused its discretion in granting a motion to dismiss for a speedy trial violation without an evidentiary basis.
Whether a defendant must present evidence beyond mere assertions to support a claim of prejudice under the Barker balancing test.
Disposition. reversed
Quotations verified verbatim against the opinion
“It was beyond the bounds of reason—i.e., an abuse of discretion—to rule on the motion in the absence of any evidence.”
“The court was obligated to make an inquiry into the remaining factors, but no such actual inquiry took place.”