A three-year delay between a complaint and an arraignment did not violate the defendant’s constitutional right to a speedy trial, and should not have been dismissed, the Court of Appeal ruled Feb. 10.
The published ruling comes in the case against Richard Martinez, accused by prosecutors of working without a valid contractor’s license. Prosecutors alleged he was paid a total of $9,000 in 2017 out of a $27,000 pool construction project in Lake Elsinore, but failed to properly excavate the pool, and eventually abandoned the project.
In January 2018, prosecutors charged Martinez with felony grand theft, and misdemeanor charges of acting as a contractor without a license, requiring an excessive down payment and unlawfully receiving payments in excess of the work performed.
The alleged victim’s civil complaint against Martinez was dismissed in 2018.
The first preliminary hearing was held Feb. 7, 2023, three years after the criminal complaint was filed.
On Sept. 18, 2023, Martinez filed to dismiss the case, alleging pre-filing delay violated his right to a speedy trial.
“The four-and-a-half year delay in prosecuting this case constitutes actual prejudice… (constituting) speedy trial violations. Potential exonerating evidence including statements by potential witnesses has been irretrievably lost as memories have faded over this lengthy period of time,” the motion argued, according to the appellate ruling.
The alleged victim would never again be able to testify due to medical issues, the motion argued.
“Of note, virtually every witness in the Building and Construction department has retired, transferred or moved. Key witnesses who signed off on permits and inspected work are permanently unavailable. These witnesses would have been available to testify on behalf of (defendant) had this matter been prosecuted in a timely manner,” the argument continued.
Prosecutors argued that Martinez must, and failed to, prove actual prejudice, that retired witnesses could still testify, and that the case was reliant on documents, not witnesses.
“This is a documents case. There’s nothing that would suggest that some document is now no longer available, some witness is no longer available. There’s no prejudice,” their reply said.
During the motion hearing, temporary Judge Harry Elias asked prosecutors why Martinez was not arrested after the complaint was filed. Elias had retired from San Diego Superior Court.
“That, I don’t know,” the prosecutor said, according to the ruling. “I know that by and large once COVID happened, they were stopping doing sweeps for outstanding felony warrants, but I don’t know of any attempt to actually serve him.”
Elias ruled to dismiss the case.
“I don’t think to issue a warrant, put it in the system, and do absolutely nothing when you have an investigator who knows about the case—I’m granting the motion to dismiss,” he said, according to the ruling.
Appellate discussion
The Court of Appeal found that the federal right to a speedy trial begins at the point that the person is arraigned, not the point at which the complaint is filed. Martinez could not claim violation of his federal right to a speedy trial.
California law does state that a trial must be brought soon after the complaint is filed, unless the defendant waives their right to a fair trial. The defendant, however, must prove prejudice due to the delay.
In this case, Martinez did not prove his case was hurt by the delay, the Court of Appeal ruled.
“Defendant did not indicate which witnesses were permanently unavailable or the relevance of their testimony…Defendant failed to identify what ‘exonerating evidence’ had been lost…he did not specifically identify what documentary evidence had been lost nor how it was relevant to his defense,” the ruling said.
To prove prejudice, Martinez should have attempted to contact witnesses, find them unavailable, and explain how their unavailability would hurt his case, the Court of Appeal wrote.
Case information
Deputy District Attorney Kristen Allison brought the case.
Andrea S. Bitar, under appointment, represented Martinez.
Fourth District Court of Appeal, Division Two, Justice Art McKinster wrote the ruling, joined by Justices Douglas Miller and Richard Fields.
Case No. SWF1800105
Appellate Case No. E082657
Read the ruling here.
