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Sample Serna Motion GARY WINDOM

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Sample Serna Motion GARY WINDOM Powered By Docstoc
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   GARY WINDOM, PUBLIC DEFENDER
 3 County of Riverside
   LEN GARBAGE, DEPUTY PUBLIC DEFENDER
   State Bar No. 911911
 4 4200 Orange Street
   Riverside, California 92501
 5 Telephone: (951) 955-6000
   Facsimile: (951) 955-6025
 6
     Attorney for Defendant
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                        THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
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                                      FOR THE COUNTY OF RIVERSIDE
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      THE PEOPLE OF THE STATE OF                           Case No. RIM436646
      CALIFORNIA,
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                                                           NOTICE OF MOTION AND MOTION
                      Plaintiff,                           TO DISMISS FOR DENIAL OF
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                                                           A SPEEDY TRIAL (Serna)
              vs.                                          [Penal Code § 686(1)]
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                                                           DATE: June 13, 2008
16    DEFENDANT NAME,                                      TIME: 8:30 a.m.
                                                           DEPT: 22
17                    Defendant.
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19 TO:       ROD PACHECO, DISTRICT ATTORNEY OF THE COUNTY OF RIVERSIDE AND TO
             THE CLERK OF THE MUNICIPAL COURT OF CALIFORNIA:
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             PLEASE TAKE NOTICE that on June 13, 2008, at 8:30am, or soon thereafter as the matter will
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     be heard, in Department 22 of the above-entitled court, defendant, DEFENDANT NAME (hereinafter,
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     “Movant”), by and through counsel, will and hereby does, move the court for an order dismissing the
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     accusatory pleading. Said motion is made on the grounds that the prosecution of the Movant has been
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     delayed such that his right to a speedy trial, guaranteed to her by the Sixth Amendment to the United States
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     Constitution and Article I, Section 15, of the Constitution of the State of California, and his right to due
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     process of law, under the Fourteenth Amendment to the United States Constitution, has been denied.
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                                                         -1-
                              MOTION TO DIMISS FOR DENIAL OF SPEEDY TRIAL
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               This motion is based upon the pleadings, files and records in this case, the accompanying
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     Memorandum of Points and Authorities, and such other evidence as will be presented at the hearing on this
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     motion.
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 6 DATED: June ___, 2008                            Respectfully submitted,
                                                    GARY WINDOM, PUBLIC DEFENDER
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 8                                                  By:
                                                             LEN GARBAGE
 9                                                           Deputy Public Defender
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                                                       -2-
                             MOTION TO DIMISS FOR DENIAL OF SPEEDY TRIAL
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                                          STATEMENT OF THE CASE
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             On May 15, 2003, Movant was cited for a violation of Penal Code 369 (1) (trespassing on railroad
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     property). A complaint alleging the violations was filed on June 18, 2003. Movant was cited to appear in
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     court on June 30, 2003. Movant was not present in court on that day, and the court issued a bench warrant.
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             Movant has resided at 911 SW 00th Street, Riverside, California 92509 since the time of the
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     incident. He has maintained a valid driver license or identification card with the Department of Motor
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     Vehicles listing the same 56th Street address. In February 2005, he was arrested and taken to a Riverside
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     county jail .
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             In mid-2008, Movant discovered that she had an outstanding warrant related to this case. It has
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     been nearly five years since the complaint was filed. The Riverside Public Defender was appointed to
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     represent her.
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                                 POINTS, AUTHORITIES AND ARGUMENT
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16                                            I.
                      THE DELAY BETWEEN THE FILING OF THE COMPLAINT AND
17                    MOVANT’S ARRAIGNMENT VIOLATED MOVANT’S RIGHT TO A
                      SPEEDY TRIAL UNDER THE SIXTH AMENDMENT TO THE UNITED
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                      STATES CONSTITUTION
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             The right of a criminal defendant not to be subjected to unreasonable delay in his prosecution is
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     embodied in the Sixth Amendment to the United States Constitution: “In all criminal prosecutions the
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     accused shall enjoy the right to a speedy and public trial.” (U.S. Const. VI Amend.)          The right is
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     enforceable against the states by virtue of the due process clause of the Fourteenth Amendment. (Klopfer
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     v. North Carolina (1967) 386 U.S. 213, 223 [18 L.Ed.2d 1, 87 S.Ct. 988].)
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             A person becomes an accused within the meaning of the Sixth Amendment upon the filing of an
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     accusatory pleading. (United States v. Marion (1971) 404 U.S. 307, 320 [30 L.Ed.2d 468, 92 S.Ct. 455].)
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     Therefore, the Sixth Amendment right to a speedy trial attaches in misdemeanor prosecutions with the
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     filing of the accusatory pleading…or arrest, whichever is first. (Serna v. Superior Court of Los Angeles
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                                                        -3-
                             MOTION TO DIMISS FOR DENIAL OF SPEEDY TRIAL
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     County (Serna) (1985) 40 Cal.3d 239, 262 [219 Cal.Rptr. 420, 707 P.2d 793].) Here, the right to a speedy
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     trial attached with the filing of the complaint on June 17, 2005.
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             Where a defendant raises the issue of unreasonable delay pretrial, he or she need not demonstrate
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     actual prejudice in order to secure judicial consideration of the claim. (Moore v. Arizona (1973) 414 U.S.
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     25, 26 [38 L.Ed.2d 183].) The court in Serna determined:
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 8                   The length of the delay between the filing of the complaint and the arrest of
                     defendant far exceeded the one-year limitation period applicable to
 9                   misdemeanors generally. Had there been no complaint on file this
                     prosecution would have been statutorily barred. (Serna, supra, 40 Cal.3d at
10                   252-253.)

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             The court in Serna recognized that the mere filing of a complaint, without further action by the
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     state for a period in excess of one year, is a presumed violation of the right to a speedy trial, thus
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     compelling the People to justify the delay. (Serna, supra, 40 Cal.3d at 253.) The People cannot simply file
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     a misdemeanor complaint, sit back and wait, and then years later decide to prosecute. The delay is made
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     even more egregious when the defendant was available and could have been located at any time.
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             This presumption of prejudice shifts the burden to the Prosecution to justify its delay in
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     prosecution. The case must be dismissed if the People cannot satisfactorily do so. The court in Serna
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     stated that only if the People have justified their delay in prosecution do we proceed to a balancing test,
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     because it is only in the context of a justification by the People that there would exist anything for the trial
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     court to then weigh or balance. (Id. at 253-254.) If the People cannot justify the delay, the presumption of
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     prejudice is dispositive and dismissal is constitutionally compelled. (Id.)
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             In the case at bar, it has been nearly five years since the date of the alleged offense. Movant has
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     never attempted to hide from the jurisdiction of the court. Rather, Movant has lived at the same residence
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     from the date of the alleged offense, has maintained identification with the Department of Motor Vehicles,
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     and was even arrested and taken into jail in the interim.
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             Movant’s Sixth Amendment right to a speedy trial has been violated without any justification by
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     the People. Prejudice to Movant is presumed based solely on the People’s delay in prosecution without
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     justification (Serna, supra, 40 Cal.3d at 253). The complaint against Movant should be dismissed as a

     violation of Movant’s Sixth Amendment right to a speedy trial.

                                                           -4-
                              MOTION TO DIMISS FOR DENIAL OF SPEEDY TRIAL
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                                                 II.
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                              MOVANT HAS SUFFERED ACTUAL PREJUDICE
 4                            AS A RESULT OF THE DELAY OF THE PEOPLE

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             A complaint was filed against Movant in June 2003. All tangible evidence against Movant has
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     either expired or been destroyed. It is fair to say that over the span of five years, memories fade, witnesses
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     are unable to be located and testimony is unable to be supported or controverted by any independent
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     evidence. There are few documents, no recordings, and no outside or independent media to assist Movant
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     with his defense.
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             Without that most basic of discovery elements, the Movant cannot begin to mount a defense
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     against the complaint. Movant cannot likely procure evidence or obtain information that could assist in his
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     defense due to the time lapse. As a result, Movant is unable to assemble an adequate defense that would
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     satisfy Constitutional requirements and has suffered actual prejudice.
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15                                                        III.

16                   A BALANCING TEST OF THE FOUR BARKER V. WINGO
                     FACTORS REVEALS THAT MOVANT'S RIGHT TO A SPEEDY
17                   TRIAL HAS BEEN VIOLATED, AND THE CASE MUST BE
                     DISMISSED
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19           The Court in Barker v. Wingo (1972) 407 U.S. 514 created a balancing test to analyze both the

20 prosecution’s and defendant’s conduct. The Court in Stabio v. Superior Court (1994) 21 Cal. App. 4th
21 1488, 1493, mandated that lower courts apply this balancing tests in circumstances before this court. The

22 balancing test consists of weighing the following four factors: "[1] Length of the delay, [2] the reason for

23 the delay, [3] the defendant's assertion of his right, and [4] prejudice to the defendant." Barker, supra, 407

24 U.S. at 530).

25           A balancing of these four factors reveals that Movant has been deprived of his right to a speedy

26 trial. Thus, this case must be dismissed.

27 ///

28 A.        LENGTH OF THE DELAY




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                              MOTION TO DIMISS FOR DENIAL OF SPEEDY TRIAL
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             The complaint against Movant was filed in June 2003. Movant appeared mid-2008. This almost
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     five year delay clearly shifts the burden to the prosecution to justify its delay.
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     B.      THE REASON FOR THE DELAY
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             The prosecution bears the burden of bringing the defendant to court. "A defendant has no duty to
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     bring himself to trial; the State has that duty as well as the duty of insuring that the trial is consistent with
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     due process." Barker, supra, 407 U.S. at 527). In Doggett v. United States (1992) 498 U.S. 1094, 112 S.Ct.
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     2686, The Supreme Court found that "mere negligence ... falls on the wrong side of the divide between
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     acceptable and unacceptable reasons for delaying a criminal prosecution once it has begun." (Doggett,
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     supra, 112 S.Ct. at 2693). Furthermore, "the risk of clerical error or neglect on the part of those charged
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     with official action must rest with the prosecution, not the defendant in a criminal action." (Svkes v.
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     Superior Court (1973) 9 Cal.3d 83, 94).
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             The court in Stabio v. Superior Court of San Diego County (1994) 21 Cal.App.4th 1488, 1495)
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     “proceeded to evaluate the prosecutorial significance of different kinds of delay. It placed justifiable delay
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     at one end of the scale, bad faith delay at the other and official negligence in between.” (Stabio, supra, 21
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     Cal.App.4th at 1495; Doggett v. United States, (1992) 112 S.Ct. 2686, 2693.)
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                      Condoning prolonged and unjustifiable delays in prosecution would both
20                    penalize many defendants for the state’s fault and simply encourage the
                      government to gamble with the interests of criminal suspects assigned a
21                    low prosecutorial priority. The Government indeed can hardly complain
                      too loudly, for persistent neglect in concluding a criminal prosecution
22                    indicates an uncommonly feeble interest in bringing an accused to justice;
                      the more weight the Government attaches to securing a conviction, the
23                    harder it will try to get it. (Doggett, supra, 112 S. Ct. at 2693-2694.)

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25           The People have not provided any justification for the unreasonable and neglectful delay in

26 bringing the Movant to court. Since the time of the offense, Movant has lived at the same address and has

27 been arrested once. The People did not bring Movant to court. Without justification, the People should not

28 be allowed to benefit from their own negligence and bring a case forward that the Movant cannot defend
     herself against. The delay is unjustifiable.


                                                           -6-
                              MOTION TO DIMISS FOR DENIAL OF SPEEDY TRIAL
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     C.      TIMELY ASSERTION OF RIGHT TO A SPEEDY TRIAL
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             "The defendant's assertion of his speedy trial ... is entitled to strong evidentiary weight in
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     determining whether the defendant is being deprived of the right." (Barker, supra, at 531-532). Movant
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     asserted his speedy trial rights as timely as possible.
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     D.      PREJUDICE TO DEFENDANT
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             "When unjustified prejudice to the defendant's ability to defend has been established there can be
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     no question that ... dismissal [is] required. And where the balance of interests establishes a violation of a
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     defendant's speedy trial right because of the impact on his other interests-prolonged restraint, public
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     obloquy, anxiety, stress, and disruption of everyday life-...[r]elief should be granted..." (Serna v. Superior
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     Court (1985) 40 Cal.3d 239 at pp. 263-264; 219 Cal. Rptr. 420, 707 P.2d. 793).
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             "[C]onsideration of prejudice is not limited to the demonstrable. . . Affirmative proof of
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     particularized prejudice is not essential to every speedy trial claim." (Doggett, supra, 112 S.Ct. at 2692;
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     Stabio v. Superior Court of San Diego County (1994) 21 Cal.App.4th 1488). Courts recognize that
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     impairment of one's defense is a difficult form of speedy trial prejudice to prove because time's erosion of
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     exculpatory evidence and testimony "can rarely be shown." (Barker, supra, at 532). However, prejudice
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     can be shown by loss of a material witness or other material evidence, or by fading memory caused by
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     lapse of time. (People v. Archerd (1970) 3 Cal. 3d 615; Barker v. Wingo (1972) 407 US 514; People v.
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     Sahagun (1979) 89 Cal.App.3d1.)
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             Movant could have immediately retained the aid of counsel if she had been brought to trial within
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     the statutorily and constitutionally prescribed guidelines. Armed with an attorney, Movant would have
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     immediately started the process of mounting his defense. He would have interviewed witnesses and
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     procured time-sensitive evidence. Instead, the government, through its neglect in prosecuting this case, has
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     denied Movant access to important evidence which would have led to further exculpatory evidence.
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             Additionally, Movant’s and witnesses’ ability to recall the facts and circumstances surrounding
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     events in May 2003 have been hindered by the delay in prosecution. Fresh in his mind, Movant would have



                                                               -7-
                              MOTION TO DIMISS FOR DENIAL OF SPEEDY TRIAL
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     provided information to his defense attorney surrounding the events that led up to the incident. The
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     prosecution's neglect has worked to substantially impair the preparation of Movant’s defense.
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                                                         IV.
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                     A DEFENDANT’S FAILURE TO APPEAR UPON A WRITTEN
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                     PROMISE TO APPEAR IS NOT FATAL TO HER CLAIM OF
 8                   DENIAL OF A SPEEDY TRIAL

 9           The Court in Ogle v. Superior Court (1992) 4 Cal. App. 4th 1007, 1021 held that a defendant’s
10 failure to appear on a written promise to appear is merely a factor to be considered in the Barker v. Wingo

11 balancing analysis. “Because Kern County authorities failed to make any effort to arrest Ogle at his known

12 address after Ogle failed to appear, the two-year delay was not “attributable to the defendant” within the

13 meaning of Barker v. Wingo. Rather, the Barker v. Wingo factors were relevant to Ogle’s failure to appear.

14 The significance of his actions depends on his state of mind when he failed to appear…” (Ogle, supra, 4
            th
15 Cal.App.4 at 1019.)

16           Movant, like the defendant in Ogle, failed to appear on a written promise to appear. As the court in

17 Ogle stated, this is not a dispositive factor. Rather, it is merely a factor to be considered in the court’s

18 Barker v. Wingo balancing analysis.

19           The People requested the court issue a bench warrant for Movant’s arrest when she failed to appear

20 in September 2004 and did nothing else. This can hardly be considered due diligence in bringing her to trial
21 on these charges.

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                                                         -8-
                             MOTION TO DIMISS FOR DENIAL OF SPEEDY TRIAL
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                                                    CONCLUSION
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             Movant has been denied the right to a speedy and public trial. There is no justification for the
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     government’s over two year denial of Movant’s right to speedy trial. The People's delay in bringing this
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     matter to trial is a violation of Movant’s fundamental, constitutional right to a speedy trial. Thus, Movant
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     respectfully requests this court grant this motion to dismiss the charges.
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     Dated: June ___, 2008                     Respectfully submitted,
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                                                      GARY WINDOM, PUBLIC DEFENDER
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                                                       By:
12                                                     LEN GARBAGE
                                                       Deputy Public Defender
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                                                          -9-
                              MOTION TO DIMISS FOR DENIAL OF SPEEDY TRIAL
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   GARY WINDOM, PUBLIC DEFENDER
 3 County of Riverside
   LEN GARBAGE, DEPUTY PUBLIC DEFENDER
   State Bar No. 911911
 4 4200 Orange Street
   Riverside, California 92501
 5 Telephone: (951) 955-6000
   Facsimile: (951) 955-6025
 6
     Attorney for Defendant
 7

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                           SUPERIOR COURT OF THE STATE OF CALIFORNIA
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                                  IN AND FOR THE COUNTY OF RIVERSIDE
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     THE PEOPLE OF THE STATE OF                          Case No. RIM436646
     CALIFORNIA,
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                                                         DECLARATION OF LEN GARBAGE IN
                     Plaintiff,                          SUPPORT OF MOTION TO DISMISS FOR
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                                                         DENIAL OF A SPEEDY TRIAL (Serna)
             vs.                                         [Penal Code § 686(1)]
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                                                         DATE: June 13, 2008
16   LEN GARBAGE,                                        TIME: 8:30 a.m.
                                                         DEPT: 22
17                   Defendant
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19

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21 Defendant, LEN GARBAGEdeclares, under penalty of perjury, as follows:

22       1. I am the Defendant in RIM000000.

23       2. I am informed and believe that a warrant was issued for my arrest sometime after the
            complaint was filed.
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         3. I have resided at 911 SW 00th Street, Riverside, California 92509 since the time of the incident.
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         4. I have maintained a California identification card or driver license with the Department of
26          Motor Vehicles and indicated the 00th Street address as my residence.

27       5. I was arrested in February 2005.

28 ///




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                              MOTION TO DIMISS FOR DENIAL OF SPEEDY TRIAL
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     By:
 3         LEN GARBAGE

 4   Dated: ____________________
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                                     -11-
                  MOTION TO DIMISS FOR DENIAL OF SPEEDY TRIAL
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                                               PROOF OF SERVICE
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     I.      BY PERSONAL SERVICE
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             I, the undersigned, declare:
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             I am a citizen of the United States and a resident or an employee of the County of Riverside; I am
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     over the age of eighteen years and not a party to the within-entitled action. That on __________________,
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     I caused a copy of the within:
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     NOTICE OF MOTION AND MOTION TO DISMISS COMPLAINT FOR DENIAL OF SPEEDY TRIAL;
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     POINTS AND AUTHORITIES IN SUPPORT THEREOF AND DECLARATION
10 To be personally served on the following:

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12 Clerk of the Superior Court
   4100 Main Street
13 Riverside, CA 92501

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   District Attorney
15 4075 Main Street
   Riverside, CA 92501
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             I declare under penalty of perjury that the foregoing is true and correct.
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19           Executed: ___________________, at Riverside, California.
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21                                                     By:

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                              MOTION TO DIMISS FOR DENIAL OF SPEEDY TRIAL

				
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