Not to be published

Download 81.5 Kb.
Size81.5 Kb.
1   2   3   4   5   6
People v. Suite (1980) 101 Cal.App.3d 680, involved recordings by state university police of telephone calls to their emergency telephone line in which the defendant stated bombs were in various campus buildings. The defendant claimed the recording of his calls violated section 632. The Court of Appeal disagreed, holding among other things that the calls were exempt from section 632 under section 633.5. It determined a bomb threat–in this case, threats involving buildings other than the one housing the police department–involved the potential for the type of violence against the person made admissible under section 633.5. (Id. at pp. 688-689.) Again, the recordings were lawful even though the threats were not made against the persons who recorded the calls.

The language of section 633.5 and the holdings of these cases indicate section 633.5 applies to recorded confidential communications containing evidence that connects a party to the communication to any felony involving violence against any person, not just to a felony involving violence against one of the parties to the confidential communication. In this case, section 633.5 would have defeated a motion by defense counsel to exclude evidence of defendant’s recorded conversation. Accordingly, we conclude defense counsel did not render ineffective assistance by not moving to exclude the evidence.


Due Process Right Against Precharging Delay

Defendant contends he was denied his due process right against precharging delay because the prosecution delayed arraigning him for nearly three years after the homicide occurred. He claims he was prejudiced due to witnesses’ memories fading and the prosecution’s negligence. We conclude defendant forfeits this claim. He does so by raising an argument on appeal that was not raised at trial, and by failing to support his argument with any citations to the record. With no evidence before us, defendant fails to establish he was prejudiced.

A. Background

The homicide occurred on April 12, 2006. Defendant was arrested on February 21, 2009, and arraigned on February 24, 2009. On October 26, 2011, and prior to trial, defendant filed a motion to dismiss the action, claiming the action’s filing nearly three years after the homicide denied him his due process rights. At trial, defendant claimed he had been prejudiced by the late filing because a recording of a witness’s 911 call had been destroyed in the interim, and the witness’s statement to police differed from her statement to the 911 operator. The prosecution claimed the delay was caused by its initially determining that section 632 barred admission of the taped conversation between defendant and Vasily. When the prosecution later determined its interpretation of section 632 was mistaken, it immediately filed charges.

The trial court denied the motion to dismiss. The prosecution’s negligence did not prejudice defendant because there is no statute of limitations on murder, and he could still call the witness and the person who received the 911 call to testify.

On appeal, defendant argues the trial court erred in its ruling, although for a different reason. He argues the delay in filing the case was prejudicial because “the case is replete with witnesses, who because of the length of time, could not recall the specifics of the events.” Defendant provides no citations to the record to support this claim.

Defendant also contends the delay was prejudicial because it was based solely on a change of legal opinion within the district attorney’s office, not on a change of law or newly discovered evidence.

B. Analysis

We conclude defendant has forfeited his due process claims. He forfeits them on two grounds. First, he raises an argument here he did not raise at trial. He contended at trial that he was prejudiced due to the destruction of a 911 recording. Before us, he omits that argument and claims he was prejudiced in part because witness memories had faded. A criminal defendant “ ‘cannot argue the court erred in failing to conduct an analysis it was not asked to conduct.’ ” (People v. Tully (2012) 54 Cal.4th 952, 980.)

Second, defendant forfeits his claim because he failed to provide any citations to the record to show the case “was replete with witnesses” who could not remember the specifics of the event. Rule 8.928(a)(1)(B) of the California Rules of Court requires a party to support an argument with necessary citations to the record. Where a party does not comply with this rule, the party’s argument is deemed forfeited. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.)

Moreover, by providing no reference to the record, defendant fails to show he was prejudiced by the prosecution’s delay. “A defendant seeking relief for undue delay in filing charges must first demonstrate resulting prejudice, such as by showing the loss of a material witness or other missing evidence, or fading memory caused by the lapse of time. [Citation.]” (People v. Abel (2012) 53 Cal.4th 891, 908.) Because we do not assume prejudice (People v. Nelson (2008) 43 Cal.4th 1242, 1250), and defendant fails to establish any, our analysis of the due process claim ends here.


Share with your friends:
1   2   3   4   5   6

The database is protected by copyright © 2020
send message

    Main page