Due Process – Gun Charge Dismissed!

Pasadena Courthouse – January 23, 2017.

The federal and state Constitutions guarantee each citizen the right to a speedy trial and to due process of law.  When  the government violates these constitutional rights, often the only legal remedy is to dismiss the criminal case.


Recently, Mr. Hammond’s criminal defense client was charged with possession of a short-barreled shotgun in violation of California Penal Code section 33215.   Section 33215 is a wobbler, which means that prosecutors can file it either as a misdemeanor, or as a felony, with the sentence be served locally in this case under AB109, realignment.

Authorities discovered the short-barreled shotgun after Client was involved in an 8-vehicle crash in May 2015.  Client was a passenger in his pickup truck at the time of the crash.  He and others were injured in the crash, and taken to the hospital.  When authorities towed the vehicle, the California Highway Patrol conducted an inventory search, and discovered the short-barreled shotgun.  Police claim that they talked to Client about the firearm at the hospital and he admitted that it was his.  Client does not remember any such conversation.  Proving possession of the short-barreled shotgun would surely be an issue in the case, if it proceeded to trial.

The Criminal Charges

Thirty-one months later, in December 2017, the Los Angeles County District Attorney’s office finally filed misdemeanor criminal charges against Client.  In the meantime, the driver of the truck and the owner of the firearm both moved out of state.  One was in Mexico, and the other in rural Missouri.  Additionally, Client’s father, who could have testified about an important issue, passed away in early 2016.  If the case had been filed in May or June of 2015, these three witnesses would all have been available to the defense.  But, since the government waited 2.5 years to file the criminal charges, Client’s defense was decimated.

Recognizing the issue, Mr. Hammond offered to resolve the case with an informal diversion (stay out of trouble for a year, and the case would be dropped).  The prosecutor did not respond.  Mr. Hammond filed a motion based on the violation of Client’s state and federal due process and speedy trial rights – commonly known as a Serna motion.

Oral Argument

At the hearing, the prosecutor admitted that the government had no good reason for the delay.  But he insisted that there was no prejudice to the defense.  Even though the defense has no burden to prove prejudice, Mr. Hammond explained to the judge that the witnesses are now unavailable, because the government delayed filing the case.  The prosecutor insisted that the government’s case was solid, and that Client’s speedy trial rights were not violated because the government filed the case within the statute of limitations for a felony – three years.  Of course, this is exactly the problem.  The government’s case is solid, but because of the government’s delay, the defense cannot even investigate relevant facts.

Mr. Hammond argued that the statute of limitations didn’t matter because there was absolutely no reason for the delay.  No new evidence had been collected in the case since May 2015, and it’s unfair for the government to disrupt someone’s life under the threat of prosecution for such a long period of time, then file charges after the defense has lost its opportunity to investigate the facts underlying the criminal charges.  Client lived at the same address the entire time, and appeared in court promptly, once a criminal case was filed.

The Decision

San Pedro Criminal Defense Attorney

After some further research and consideration in chambers, the judge granted Mr. Hammond’s motion and dismissed the case.  The judge agreed that the government has the burden of bringing a case to court, and a lengthy delay without any justification can prejudice the defense.  The judge agreed that the unavailability of key witnesses, due to the government’s delay, was a violation of Client’s right to due process of law.

This case was referred to Mr. Hammond by a civil litigation attorney who represents Client regarding the 8-vehicle crash that gave rise to the criminal charge, and injuries that he suffered in that crash.  The referring attorney and Client are very happy with the outcome in this case.

If you’re ever facing serious criminal charges, like possession of a short-barreled shotgun, or being investigated for any criminal charges, it is important to consult with a qualified criminal defense attorney.  There may be defenses available or constitutional rights violations that mean you can win your case.  Only a qualified criminal defense attorney can properly evaluate the unique facts of each criminal case.  The Law Office of Donald R. Hammond stands ready to help, so give us a call at 323-529-3660.