Filed 2/7/25
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Appellant, E082657
v. (Super.Ct.No. SWF1800105)
RICHARD MARTINEZ, OPINION
Defendant and Respondent.
APPEAL from the Superior Court of Riverside County. Harry M. Elias, Judge.
(Retired Judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art.
VI, § 6 of the Cal. Const.) Reversed in part and remanded with directions.
Michael A. Hestrin, District Attorney, and Kristen Allison, Deputy District
Attorney, for Plaintiff and Appellant.
Andrea S. Bitar, under appointment by the Court of Appeal, for Defendant and
Respondent.
Defendant and respondent Richard Martinez filed a motion to dismiss based on a
purported violation of his rights to a speedy trial, which the court granted. On appeal,
1 plaintiff and appellant the People contend the court erred in granting defendant’s motion.
We reverse and remand in part.
I. FACTUAL AND PROCEDURAL BACKGROUND 1
Joel Walrath, a licensed plumber, lived with his mother-in-law, Gayle Jelley, in
Lake Elsinore. Walrath was present when Jelley contracted with defendant to construct a
pool in her backyard on January 21, 2017. The total contract price was for $26,900.
Defendant said that he was a licensed contractor.
Jelley wrote defendant a check for $3,000 as a deposit on January 21, 2017. On
February 14, 2017, Jelley wrote defendant another check for $3,000 for excavation of the
pool. Defendant excavated the pool but “not the shape that originally was designed and
submitted for the permit, and it was not deep enough in places and too deep in other
places; so it had to be corrected.” Defendant partially corrected it, but Walrath testified
“we ended up having to correct the rest of it ourselves.”
On February 28, 2017, at defendant’s request, Jelley wrote defendant a third check
for $3,000 for installation of the rebar. After defendant installed the rebar, he
“abandoned the project.”
Walrath testified numerous phone calls were made in an attempt to have defendant
return to the work; however, “he would never show back up.” Walrath investigated
defendant’s contractor’s license status and discovered that it had expired long before he
started the project.
1 Our factual recitation is taken from the evidence adduced at the preliminary hearing.
2 Matt Boeck, an investigator for the Department of Consumer Affairs, Contractors
State Licensing Board (CSLB), testified that any construction work for over $500
requires a license. Defendant obtained the permit for the construction of Jelley’s pool.
However, defendant never had a contractor’s license. The CSLB had issued three prior
administrative citations to defendant for contracting without a license.
On January 25, 2018, the People charged defendant by felony complaint with
grand theft (Pen. Code, § 487, subd. (a), count 1), acting in the capacity of a contractor
without a license (Bus. & Prof. Code, § 7028, subd. (a), count 2), requiring a
downpayment in excess of $1,000 or 10 percent of the contract amount (Bus. & Prof.
Code, § 7159.5, subd. (a)(3), count 3), and unlawfully receiving payments in excess of
the work performed (Bus. & Prof. Code, § 7159.5, subd. (a)(5), count 4). 2 The court
arraigned defendant on the complaint on December 9, 2021.
On October 22, 2018, a court dismissed a suit filed by Jelley against defendant in
small claims court, in which defendant declared he had “attended court in person
numerous times.” Defendant averred he had “walked in person numerous times to the
Riverside County Building Department to get copies of documents and paperwork I used
to defend myself against the lawsuit.”
2 The latter three charges are misdemeanors.
3 On February 7, 2023, 3 the court held the preliminary hearing, after which it held
defendant to answer. On February 15, 2023, the People charged defendant by
information with the same offenses in the complaint.
On September 18, 2023, 4 defendant filed a “motion to dismiss based on pre-filing
delay resulting in prejudice.” (All caps omitted.) Defendant contended “defendant’s
speedy trial rights under the State Constitution were triggered on February 15, 2006, [sic]
the date when the District Attorney’s Office filed this complaint.” 5 “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 loss of key witnesses due to the prosecution’s delay constitutes actual
prejudice to [defendant].” “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.”
3 On December 9, 2021, January 25, July 12, September 13, and November 15, 2022, defendant waived time, and the court continued the matter.
4 On May 8, and September 14, 2023, the court granted defendant’s requests to continue the matter for trial.
5 The complaint was actually filed on January 25, 2018.
4 “Should any witnesses to the events be found, there is no guarantee that the
witnesses are going to be able to recollect accurately the events that occurred four and a
half years prior to arraign[ment] (and over six years since the alleged incident.)
Additionally, [defendant] was never given an opportunity to even become aware that
charges were pending against him, so he was denied the chance to preserve physical
evidence such as check stubs, envelopes, letters, or other documents providing potentially
exculpatory evidence or defenses to the charges against him. [Defendant] was never
questioned or interviewed by the police about this incident so he would have no way to
be alerted to save key information that could become important to his defense later.”
Defense counsel attached as an exhibit to the motion an email reflecting that the
inspector who approved construction of the pool had retired three years earlier.
However, someone provided defense counsel a telephone number to obtain information
about the inspector.
On September 26, 2023, the People filed opposition to defendant’s motion
contending defendant’s state constitutional right to a speedy trial had not been violated.
Rather, the People maintained that under state constitutional speedy trial law, there could
be no presumption of prejudice, and that defendant had the burden to show actual
prejudice, which he had failed to do: “For example, there is no mention of a document
that has been lost to time, or a witness who would have had irreplaceable testimony who
is now unavailable.”
5 At the hearing on September 27, 2023, defense counsel noted, “the People are
proceeding . . . without the main named alleged victim, the one who, herself, signed the
contract. She medically will never be able to testify. She’s had some type of a traumatic
injury, so they are proceeding with another family member who states he was there. But
it’s very important that she’s not subject to cross-examination. And in a case like this, I
think it would be very important. We’re talking about what was in her mind at the time
she’s entering this contract, because that is key to [defendant’s] defense.” “So I do
believe there is ample showing of actual prejudice to him as well as that presumption of
prejudice that he’s entitled to . . . .”
The People responded, “Here, in the declaration, there’s not even an assertion of
prejudice. There’s no conversation about who would have been called, what they would
have testified to, how that’s at all relevant. The fact that people have retired doesn’t
mean they are unavailable as witnesses. They can be located. I would assert that nothing
they would testify to is actually relevant in this case.” “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.” “In fact, in the declaration, the
defendant discusses that he successfully defended a small claims action against the victim
in this case during the alleged delay.” “He says in his declaration that he was able to go
to the building and planning department to obtain documents that he used to defend
himself in the small claims action.”
6 The court asked the People, “What effort, if any, was made by law enforcement to
make an arrest after January 26, 2018?” The People responded, “That, I don’t know.” “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.” The
court replied, “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.”
II. DISCUSSION
The People contend the trial court erred in granting the motion to dismiss because
the court applied an incorrect legal standard in not requiring defendant to demonstrate
prejudice. Defendant responds that the excessive delay between the filing of the
complaint and defendant’s arraignment was sufficient, without further showing, to
establish prejudice on the misdemeanor counts. With respect to the felony count,
defendant maintains that he presented specific evidence reflecting prejudice due to the
delay.
A. General Law 6
The federal constitutional right to a speedy trial “is distinct from the state
constitutional right to a speedy trial and is analyzed differently . . . .” (Dews v. Superior
6 The briefing below, and by the People on appeal, conflate a defendant’s rights to a speedy trial under state and federal constitutional law and how those rights apply differently to misdemeanor and felony charges. Likewise, the court below did not address what law it was applying or how. Thus, it is impossible to determine precisely on [footnote continued on next page]
7 Court (2014) 223 Cal.App.4th 660, 664 (Dews).) “[S]tate speedy trial principles [are] not
coextensive with federal speedy trial jurisprudence and do[] not control speedy trial
analysis under the federal Constitution.” (Id. at p. 668.) “The federal and state
constitutional speedy trial rights differ from each other in certain respects . . . .” (People
v. Benhoor (2009) 177 Cal.App.4th 1308, 1316 (Benhoor).)
B. Felony Federal Speedy Trial Right 7
“It is settled that, for federal constitutional purposes, attachment of the right to
speedy trial occurs only upon ‘“either a formal indictment or information or else the
what basis or bases the court granted defendant’s motion. We differentiate those rights post and address each right as applied separately to the felony and misdemeanor charges.
At oral argument, the People maintained that because they charged defendant for both the felony and misdemeanor offenses in a single felony complaint, only felony law should apply. (Compare §§ 691, subd. (f) & 954 with Serna v. Superior Court (1985) 40 Cal.3d 239, 258 (Serna) [“[T]he right to speedy trial under the Sixth Amendment is not dependent upon the label placed on an accusatory pleading.”].) Defendant’s counsel noted that she had not had sufficient opportunity to address that issue because it had only been raised at that moment. “When an appellant fails to raise an issue in the opening brief, raising it for the first time in a reply brief or at oral argument, we generally decline to address the issue or address it in a summary manner.” (Ramirez v. Charter Communications, Inc. (2024) 16 Cal.5th 478, 500.) Thus, the People forfeited the argument by failing to timely raise it. Moreover, we note that for purposes of the statute of limitations, separate timeframes often apply for misdemeanor and felony charges regardless of whether they are charged in the same complaint. (See People v. Johnson (2006) 145 Cal.App.4th 895, 900-901; People v. Hamlin (2009) 170 Cal.App.4th 1412, 1439.)
7 Defendant did not expressly assert any federal speedy trial rights below. Rather, defendant contended “defendant’s speedy trial rights under the State Constitution were triggered on February 15, 2006, [sic] the date when the District Attorney’s Office filed this complaint.” (Italics added.) However, defendant relied heavily on Stabio v. Superior Court (1994) 21 Cal.App.4th 1488, which exposited several federal cases in concluding that, pursuant to a Sixth Amendment analysis, prejudice could be presumed in certain [footnote continued on next page]
8 actual restraints imposed by arrest and holding to answer a criminal charge.”’ [Citation.]
The filing of a felony complaint does not trigger federal speedy trial protection on the
charged crimes. [Citation.]” (People v. DePriest (2007) 42 Cal.4th 1, 26 (DePriest); see
People v. Buchanan (2022) 85 Cal.App.5th 186, 192, fn. 3; Martinez, supra, 22 Cal.4th at
p. 764.) “‘Under the federal Constitution . . . the speedy trial right does not attach upon
the filing of a felony complaint.’” (Benhoor, supra, 177 Cal.App.4th at p. 1316.)
“Unlike the filing of a misdemeanor complaint, the filing of a felony complaint does not
trigger federal speedy trial right protection because ‘[a] felony complaint, unlike a
misdemeanor complaint, does not confer trial jurisdiction. It invokes only the authority
of a magistrate, not that of a trial court.” (Ibid. at fn. 7.)
To the extent defendant contended below, or does on appeal, that the court should
or did dismiss defendant’s felony charge based on his federal speedy trial rights,
defendant has no federal speedy trial right based on prefiling delay. Thus, to the extent
the court below dismissed the count 1 charge based on defendant’s federal speedy trial
right, the court erred.
circumstances, i.e., a defendant was not necessarily required to prove prejudice. The California Supreme Court implicitly overruled Stabio in People v. Martinez (2000) 22 Cal.4th 750 (Martinez). (Id. at p. 755 [“Under the state Constitution’s speedy trial right, however, no presumption of prejudice arises from delay after the filing of a complaint and before arrest or formal accusation by indictment or information [citation]; rather, in this situation a defendant seeking dismissal must affirmatively demonstrate prejudice [citation].”].) Nevertheless, we will presume defendant preserved his federal speedy trial rights based on his heavy reliance on Stabio. The People do not argue otherwise.
9 C. Federal Misdemeanor Speedy Trial Right
“‘Under the federal Constitution . . . the speedy trial right . . . attach[es] upon the
filing of . . . a complaint charging a misdemeanor.’” (Benhoor, supra, 177 Cal.App.4th at
p. 1316.) 8 “[T]he filing of a misdemeanor complaint does trigger the protection of the
federal Constitution’s speedy trial right.” (Martinez, supra, 22 Cal.4th at p. 763; see
Dews, supra, 223 Cal.App.4th at p. 665 [“The [federal] right to a speedy trial attaches
when a person is arrested, or a misdemeanor complaint is filed, whichever occurs
first.”].)
The trial court is required “to determine ‘whether [the] delay before trial was
uncommonly long, whether the government or the criminal defendant is more to blame
for that delay, whether, in due course, the defendant asserted his right to a speedy trial,
and whether he suffered prejudice as the delay’s result.’ [Citation.]” (Dews, supra, 223
Cal.App.4th at p. 665; accord Serna, supra, 40 Cal.3d at p. 252 [“[T]he court must
balance the relevant factors—the length of the delay, the reason for the delay, the
8 At oral argument, the People argued defendant’s federal misdemeanor speedy trial right did not attach until the filing of the information on February 15, 2023, because the right does not attach until the filing of an accusatory pleading or formal charge, of which the People maintain a felony complaint is not, i.e., because the People did not charge defendant by misdemeanor complaint, his federal misdemeanor speedy trial right did not attach until the filing of the information. However, Benhoor, as noted, provides that the right attaches upon the filing of “‘a complaint charging a misdemeanor.’” (Benhoor, supra, 177 Cal.App.4th at p. 1316; accord Martinez, supra, 22 Cal.4th at p. 765 [“Under the federal Constitution . . . the speedy trial right [applies upon] . . . the filing of a . . . complaint charging a misdemeanor.”]; accord People v. Shane (2004) 115 Cal.App.4th 196, 201 [“Under the federal Constitution, the right attaches upon either an arrest with continuing restraint or the filing of a complaint charging a misdemeanor.”].) Thus, the filing of any criminal complaint, whether felony or misdemeanor, which charges a misdemeanor is sufficient for the right to attach.
10 defendant’s assertion of the right, and the prejudice to the defendant—in assessing
whether the delay has deprived the defendant of that right.”].) “None of the four factors
is ‘either a necessary or sufficient condition to the finding of a deprivation of the right of
speedy trial. Rather, they are related factors and must be considered together with such
other circumstances as may be relevant. In sum, these factors have no talismanic
qualities; courts must still engage in a difficult and sensitive balancing process.’
[Citation.]” (Dews, at p. 665.)
“[T]he length of the delay, ‘is to some extent a triggering mechanism. Until there
is some delay which is presumptively prejudicial, there is no necessity for inquiry into the
other factors that go into the balance.’ [Citation.] If the defendant makes a showing of
presumptive prejudice, ‘the court must then consider, as one factor among several, the
extent to which the delay stretches beyond the bare minimum needed to trigger judicial
examination of the claim.’ [Citation.]” (Dews, supra, 223 Cal.App.4th at p. 665.)
“A delay of more than one year in a misdemeanor case is presumptively
prejudicial . . . . [Citation.]” (Dews, supra, 223 Cal.App.4th at p. 665 [19-month delay
between arrest and arraignment presumptively prejudicial]; accord Serna, supra, 40
Cal.3d at p. 252 [Delay of four and one-half years was presumptively prejudicial].) “Our
review is limited to the record of the proceedings below, and asks whether the lower
court abused its discretion or exceeded its jurisdiction. [Citations.]” (Dews, at p. 664
[writ review in misdemeanor case].) The trial court abuses its discretion where it issues a
ruling without conducting the requisite analysis. (Id. at p. 669.)
11 Here, the 46-month delay between the filing of the complaint and defendant’s
arraignment was presumptively prejudicial. Thus, the court was required to weigh the
four factors discussed ante in conducting the “‘difficult and sensitive balancing process’”
as to whether the People violated defendant’s federal misdemeanor speedy trial rights by
the delay. (Dews, supra, 223 Cal.App.4th at p. 665; accord Serna, supra, 40 Cal.3d at
p. 252.)
We disagree with defendant’s contention that “[t]he trial court, below, conducted a
thorough analysis” in determining that defendant’s speedy trial rights had been violated.
The court did not discuss the four requisite factors when making its determination. The
court only asked the People what effort they had made to arrest defendant after filing the
complaint. After the People responded that they did not know, the court granted
defendant’s motion without conducting any analysis, let alone one consisting of the four
required factors. Thus, the matter must be remanded on the misdemeanor counts for the
court to conduct the requisite federal speedy trial analysis. (Dews, supra, 223
Cal.App.4th at p. 669 [Court issued a writ of mandate directing the trial court to vacate its
order on the defendant’s motion to dismiss for a speedy trial violation with directions to
conduct a new hearing expressly applying the requisite balancing test and making
appropriate factual findings.]; accord Serna, supra, 40 Cal.3d at p. 263 [Court issued writ
directing lower court to vacate its order and conduct a new hearing to weigh “the interests
of the defendant and the prosecution to determine whether the right was violated . . . .”].)
12 D. State Felony Constitutional Speedy Trial Right
“Unlike its federal counterpart, the speedy trial guarantee under the state
Constitution is triggered by the filing of a felony complaint. Hence, such a violation may
be premised ‘on delay occurring after the filing of the complaint and before the defendant
was held to answer the charge in superior court.’ [Citations.]” (DePriest, supra, 42
Cal.4th at p. 27; see Benhoor, supra, 177 Cal.App.4th at p. 1316 [“‘Under the state
Constitution, by contrast, the filing of a felony [or misdemeanor] complaint is sufficient
to trigger speedy trial protection.’ [Citations.]”].)
“‘[W]hen a defendant seeks dismissal based on delay after the filing of the
complaint and before indictment or holding to answer on felony charges, a court must
weigh “the prejudicial effect of the delay on defendant against any justification for the
delay.” [Citations.] No presumption of prejudice arises from delay after the filing of the
complaint and before arrest or formal accusation by indictment or information [citation];
rather, the defendant seeking dismissal must affirmatively demonstrate prejudice
[citation].’ [Citation]” (DePriest, supra, 42 Cal.4th at p. 27.)
“To warrant dismissal . . . the defendant must first show actual prejudice resulting
from the delay. [Citation.] The showing of actual prejudice must be made on competent
evidence and ‘must be supported by particular facts and not . . . by bare conclusionary
statements.’ [Citation.] Speculative arguments are inadequate to establish actual
prejudice. [Citations.] Instead, the defendant must affirmatively demonstrate having
13 suffered actual prejudice as a result of the delay, not just the possibility of prejudice.
[Citation.]” (People v. Manzo (2023) 96 Cal.App.5th 538, 541-542 (Manzo).)
“We review a trial court’s ruling on a motion to dismiss for prejudicial delay for
an abuse of discretion and defer to any underlying factual findings if supported by
substantial evidence. [Citation.] Whether a delay is prejudicial is a factual question that
we review for substantial evidence. [Citation.]” (Manzo, supra, 96 Cal.App.5th at
p. 542.)
Here, unlike the federal misdemeanor speedy trial right, there was no presumption
of prejudice due to the delay between the filing of the complaint and defendant’s
arraignment. Thus, defendant was required to affirmatively demonstrate actual prejudice.
Here, defendant did not affirmatively demonstrate actual prejudice. Defendant
below noted that “[k]ey 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.” However, defendant
did not indicate which witnesses were permanently unavailable or the relevance of their
testimony. Moreover, defendant later admitted there was a possibility these witnesses
would be found: “Should any witnesses to the events be found, there is no guarantee that
the witnesses are going to be able to recollect accurately the events that occurred four and
a half years prior to arraign[ment] (and over six years since the alleged incident.)” 9
9 We note that much of the additional time that had elapsed since defendant’s arraignment, of which defendant complained below, was the result of defendant’s own requests for continuances and waivers of time.
14 Defendant noted, “[p]otential exonerating evidence including statements by
potential witnesses has been irretrievably lost as memories have faded over this lengthy
period of time.” However, “potential” prejudice is not actual prejudice. Defendant failed
to identify what “exonerating evidence” had been lost.
Defendant additionally argued he “was never given an opportunity to even become
aware that charges were pending against him, so he was denied the chance to preserve
physical evidence such as check stubs, envelopes, letters, or other documents providing
potentially exculpatory evidence or defenses to the charges against him.” However, he
did not specifically identify what documentary evidence had been lost nor how it was
relevant to his defense. Moreover, defendant prevailed in the small claims action against
him based on the same conduct concerning the criminal matter, which presumably would
have required that he had preserved the relevant evidence.
On appeal, defendant contends “that at least two specific, named probable
witnesses . . . had retired, making contact with them . . . difficult at a minimum.” But
“probable” is not necessarily requisite and “difficult” is not impossible.
Indeed, as the People pointed out below, defendant had a contact number to obtain
information for both people. One had only been retired for two years, while the other had
retired three years earlier. To demonstrate actual prejudice, defendant would have had to,
at minimum, not only attempt to contact the witnesses at the phone number that he had
been provided and find them unavailable, 10 but defendant would also have had to
10 Of course, there would also be other methods to attempt to locate the witnesses.
15 demonstrate how the unavailability of the witnesses would have prejudiced his case. As
the People further noted below, available reports issued by the inspectors may very well
have made calling them as witnesses unnecessary.
Defendant argues that Jelley’s unavailability also prejudiced him. However, there
is no indication in the record as to when Jelley became unavailable. If her medical
inaccessibility occurred shortly after the People’s filing of the complaint, then the delay
thereafter had nothing to do with her unavailability.
Moreover, Walrath was available, and he testified that he was present at every
critical juncture related to the contracting for and building of the pool. Furthermore,
there was no showing by defendant that any information he obtained in successfully
fending off the small claims action against him would not suffice to replace the
inspectors’ or Jelley’s testimony.
Defendant’s assertions of prejudice are conclusionary and speculative. Thus,
defendant failed to affirmatively demonstrate actual prejudice, rather than the mere
possibility of prejudice. Therefore, to the extent the court granted defendant’s motion on
count 1 based on his state constitutional right to a speedy trial, it abused its discretion.
16 E. Misdemeanor State Constitutional Right to Speedy Trial
“The [state] right to a speedy trial attaches when a person is arrested, or a
misdemeanor complaint is filed, whichever occurs first. [Citation.]” (Dews, supra, 223
Cal.App.4th at p. 665; see Serna, supra, 40 Cal.3d at p. 248 [In a misdemeanor
prosecution the speedy trial “right attaches under the California Constitution when a
criminal complaint is filed. [Citations.]”]; Benhoor, supra, 177 Cal.App.4th at p. 1316
[“‘Under the state Constitution, by contrast, the filing of a felony [or misdemeanor]
complaint is sufficient to trigger speedy trial protection.’ [Citations.]”].)
Where the defendant challenges “only prearrest delay, . . . the question to be
decided by the trial court was whether the delay was shown to be unreasonable. Delays
in arrest that are necessary for law enforcement purposes, i.e., those occasioned by
inability to locate the accused or witnesses, or to conduct further investigation and gather
evidence, do not violate the right to speedy trial unless the prosecution is delayed
unreasonably. [Citation.] To determine if the delay is unreasonable and the right to
speedy trial violated, ‘the prejudicial effect of the delay on [the accused] must be
weighed against any justification for the delay.’ [Citation.]” (Serna, supra, 40 Cal.3d at
pp. 248-249.)
“[T]he initial burden in establishing a violation of article I, section 15, is on the
defendant seeking dismissal who must demonstrate prejudice attributable to the delay in
arrest. [Citation.] Only after he has done so must the court determine if the delay was
justified and engage in the balancing process. [Citation.]” (Serna, supra, 40 Cal.3d at
17 p. 249; accord Dews, supra, 223 Cal.App.4th at p. 668 [“[T]he standard for showing a
speedy trial violation under the state Constitution . . . requires a showing of actual
prejudice at the outset . . . .”].) 11
As discussed ante with respect to defendant’s felony constitutional right to speedy
trial, defendant failed to demonstrate actual prejudice. Thus, the court erred to the extent
it granted defendant’s motion based on his misdemeanor state constitutional right to a
speedy trial.
III. DISPOSITION
The court’s order dismissing the case is reversed. On the felony charge, the court
is directed to enter an order denying defendant’s motion to dismiss with respect to both
his federal and state constitutional rights to a speedy trial. On the misdemeanor charges,
the court is directed to enter an order denying defendant’s motion with respect to his state
constitutional right to a speedy trial. With respect to defendant’s federal constitutional
right to a speedy trial as to the misdemeanor charges, we remand the matter with
11 In its federal speedy trial analysis, Serna presumed prejudice where the delay between the filing of the complaint and the arrest exceeded a year. (Serna, supra, 40 Cal.3d at pp. 252-263 [“When a delay in bringing a defendant to trial after the filing of formal charges has become presumptively prejudicial, and the defendant seeks dismissal of the charges on grounds that his Sixth Amendment right to a speedy trial has been violated, the court must balance the relevant factors—the length of the delay, the reason for the delay, the defendant’s assertion of the right, and the prejudice to the defendant— in assessing whether the delay has deprived the defendant of that right.”], emphasis added.) However, even there, Serna held that the court was required to receive evidence and conduct an analysis in which it would weigh “the interests of the defendant and the prosecution to determine whether” the right was violated. (Id. at pp. 262-263.) Here, we apply Serna’s standard for determining whether defendant’s state misdemeanor speedy trial right was violated. (Id. at p. 250 [“We look therefore to determine whether the accused has demonstrated actual prejudice from a prearrest delay.”].)
18 directions to the court to conduct an analysis of the requisite four factors and articulate its
reasons for granting or denying the motion. (Dews, supra, 223 Cal.App.4th at p. 665.)
We express no opinion on how the court should rule on remand.
McKINSTER Acting P. J.
We concur:
MILLER J.
FIELDS J.