Filed 10/4/16 P. v. Vasquez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E062862
v. (Super.Ct.No. INF1400030)
VICTOR JEROME VASQUEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Anthony R. Villalobos,
Judge. Affirmed with directions.
Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, and A. Natasha Cortina and Seth
M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
1 I. INTRODUCTION
On June 15, 2008, defendant and appellant, Victor Jerome Vasquez, was arrested,
cited, and released in Banning, California for driving while under the influence of alcohol
(DUI). Between 2008 and 2011, defendant did not appear at four court appearances at
the Indio Superior Court, and bench warrants for his arrest were issued at each hearing.
Defendant was again arrested for the 2008 DUI on January 2, 2014.
On January 20, 2015, a jury convicted defendant of DUI (Veh. Code, § 23152,
subd. (a), count 1), and of driving a vehicle while having “0.08 percent or more, by
weight, of alcohol in his . . . blood” based on the 2008 DUI (Veh. Code, § 23152, subd.
(b), count 2). After the jury trial, the court found defendant had three prior DUI
convictions (Veh. Code, § 23152, subd. (a)) and one prison prior (Pen. Code, § 667.5,
subd. (b)) and sentenced defendant to three years in state prison—two years on count 1,
and a consecutive one-year term for the prison prior. Defendant was also sentenced to a
concurrent two-year term on count 2. Lastly, defendant was sentenced to county jail for
180 days, concurrent to his two-year term on count 1, pursuant to a guilty plea in count 3
to driving a vehicle without a valid driver’s license. (Veh. Code, § 12500, subd. (a),
count 3.)
On this appeal, defendant contends prosecuting him for the June 2008 DUI
offenses “six and a half years[1] after the alleged offenses resulted in a violation of his
1 Approximately five and a half years passed between the June 2008 DUI offense and the January 2014 arrest and felony complaint. A misdemeanor complaint charging the DUI offenses was filed in August 2008.
2 federal and state rights to a speedy trial.” (U.S. Const., 6th Amend.; Cal. Const., art. I,
§ 15.) We reject defendant’s contention and affirm the judgment with directions to
modify defendant’s sentence to stay his two-year, concurrent term on count 2. (§ 654.)
II. BACKGROUND FACTS
At approximately 4:30 a.m. on June 15, 2008, defendant was driving on Interstate
10 in Banning when his car was clocked traveling 95 miles per hour by the radar device
of a California Highway Patrol (CHP) vehicle that was parked on the shoulder of the
freeway monitoring traffic for speed violations. Two CHP officers performed a traffic
stop of defendant’s car. The officers suspected defendant had been driving while
impaired, as defendant’s eyes were red and glassy, the officers smelled alcohol inside the
vehicle, and there was an open beer can in the vehicle. Defendant told the officers he had
consumed only two beers earlier that evening and had stopped drinking around 7:00 p.m.
Defendant failed four different field sobriety tests, was arrested, and after electing to take
a chemical breath test rather than a blood test, twice registered 0.15 percent blood-alcohol
content on the chemical breath test.
At the time of his DUI arrest, defendant signed a notice to appear at the Banning
Superior Court on July 14, 2008 and was released from custody. The notice to appear
(citation No. 27248HU) listed defendant’s home address in Mira Loma, where defendant
had lived since 2000. On August 4, 2008, a notice of correction was mailed to
defendant’s home address, advising defendant that his July 14, 2008 court appearance
was rescheduled to October 8, 2008, and that he should appear at the Indio Superior
3 Court. The notice of correction referenced citation No. 27248HU, the same citation
number on the notice to appear defendant signed at the time of his June 15, 2008 arrest.
Defendant maintains he appeared at the Banning courthouse on October 24, 2008, but
was told by a court clerk no case against him had been filed.
Defendant did not appear at the October 8, 2008 hearing, or at three subsequent
hearings on September 4, 2009, March 1, 2010, and November 17, 2011, all at the Indio
Superior Court, and citations to appear and bench warrants for failure to appear (Pen.
Code, § 978.5, subd. (a)) were issued at or after each hearing. Defendant acknowledged
that he received citations to appear before the Indio Superior Court, and that he received
the bench warrants, but he believed they were erroneously sent to him since he was
arrested for DUI in Banning and “could not conceive of why he would have a warrant
from Indio.” According to defendant, he “never received any notice or any documents
indicating that a case had been filed against [him] in Indio, or ordering [him] to appear in
Indio on October 8, 2008.” He also believed the citations and bench warrants from the
Indio Superior Court were meant for another person with the same name, as he had
previously “been cited and otherwise mixed up with other people named Victor Vasquez
in the past. It is a fairly common name.”
On January 2, 2014, defendant was arrested for the 2008 DUI when he appeared at
the sheriff’s department for his annual registration as a registered sex offender. (Pen
Code, § 290.) Between 2008 and 2013, defendant registered annually, as required by
Penal Code section 290, but on these occasions he was not advised of, nor arrested for,
4 the 2008 DUI case, or the subsequent citations and bench warrants. Additionally, he was
a witness in an attempted murder case in 2009,2 but he was not informed of his pending
DUI case or of any outstanding citations or bench warrants during the multiple
interactions he had with the district attorney’s office and the police in connection with his
murder trial testimony.
III. PROCEDURAL HISTORY
On August 29, 2008, defendant was charged in a misdemeanor complaint of DUI
(Veh. Code, § 23152, subd. (a), count 1) with driving a vehicle with a blood-alcohol
content of 0.08 percent or more (Veh. Code, § 23152, subd. (b), count 2), and of driving
without a valid license (Veh. Code, § 12500, subd. (a), count 3) based on his June 15,
2008 DUI arrest. It was also alleged defendant had two prior DUI convictions, both in
2006.
On January 6, 2014, after defendant was again arrested for the 2008 DUI, the court
granted the People’s request to file an amended complaint to allege a third prior DUI
offense in 2013, based on a 2011 DUI arrest in Los Angeles County. Since defendant
had been convicted of DUI three times within a 10-year period, the People elected to
charge his 2008 DUI offenses as felonies. (Veh. Code, § 23550, subd. (a).) In their
January 6, 2014 felony complaint, the People also alleged defendant had four prior strike
convictions. (Pen. Code, §§ 667, subds. (c), (e)(2)(A), 1170.12, subd. (c)(2).)
2 People v. Gonzalez (May 31, 2011, E050275) [nonpub. opn.].
5 On January 27, 2014, the People filed an amended felony complaint alleging three
prior strike convictions (Pen. Code, §§ 667, subds. (c), (e)(2)(A), 1170.12, subd. (c)(2)),
and one prison prior (Pen. Code, § 667.5, subd. (b)). On February 20, 2014, the People
filed an information. The People filed an amended information on January 29, 2015,
after the jury trial, to correct an error related to defendant’s 2013 DUI conviction.
On October 15, 2014, the court granted defendant’s Romero3 motion to dismiss his
three prior strikes, since it had been 27 years since defendant committed the strikes in
1987,4 and defendant had “been relatively crime free,” other than some misdemeanor
violations, since that time. (Pen. Code, § 1385.)
The trial on defendant’s 2008 DUI charges was originally set for January 21,
2014, but was continued numerous times for good cause, with the majority of the
continuances requested by defendant. (Pen. Code, § 1050, subd. (d).) According to the
minute orders, each time the court granted a trial continuance, defendant waived the time
for trial to begin. On one occasion, he expressly waived the “time for speedy trial . . . .”
The parties stipulated the last day for trial to begin was January 15, 2015. The parties
appeared for the first day of trial on January 12, 2015, and argued motions in limine on
January 14, 2015. On January 15, 2015, after the jury had been selected but before
3 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
4 Defendant’s prior strike convictions are discussed in this court’s opinion in People v. Vasquez (1991) 226 Cal.App.3d 988.
6 opening statements, defendant pled guilty to the count 3 charge of driving without a valid
license. (Veh. Code, § 12500.)
A. Defendant’s Statute of Limitations Challenges
Defendant made three motions arguing his DUI charges were barred by the three-
year statute of limitations (Pen. Code, § 801): a pretrial motion to set aside the
information (Pen. Code, § 995), an oral motion during trial for entry of judgment of
acquittal for insufficient evidence (Pen. Code, § 1118.1), and a posttrial motion for a new
trial (Pen. Code, § 1181). In all three motions, defendant asserted the DUI charges were
barred because the People did not commence the felony DUI prosecution until January
2014, approximately five and a half years after defendant’s June 2008 DUI arrest.
The court denied all of defendant’s motions. In denying defendant’s Penal Code
section 995 motion to set aside the information, the court explained that the People filed
the information “in February of 2014, and that’s within the three years of the event [i.e.,
defendant’s 2013 DUI conviction] that could legally trigger the felony charge.” As for
the subsequent motions, the court ruled the statute of limitations challenges should have
been raised by writ.
B. Defendant’s Speedy Trial Motions
Both before and after the jury trial, defendant filed motions to dismiss the action,
asserting, as he does on this appeal, that “[t]he delay of five years [between his June 2008
DUI arrest and January 2014 felony prosecution] was a violation of the defendant’s right
7 to a speedy trial under both the California and United States Constitutions” (speedy trial
motion).
In support of his two speedy trial motions, and as noted, defendant stated he never
received the initial notice ordering him to appear on October 8, 2008 at the Indio Superior
Court instead of at the Banning Superior Court, and that he went to the courthouse in
Banning on October 24, 2008 “to try to determine if anything had been filed on my case,”
but was told by a clerk at the Banning Superior Court that no case against him had been
filed.
Defendant also admitted he received citations to appear in Indio, and he received
bench warrants for failure to appear, but “[h]e believed the citation was a mistake, and
that the prosecution, for whatever reason, had failed to file on his DUI from Banning.”
He also believed the citations to appear were mistakes because he registered annually
pursuant to Penal Code section 290, and “had come up ‘clean’ in background checks
several times after his 2008 Banning citation.” He also stated that he had “been cited and
otherwise mixed up with other people named Victor Vasquez in the past.”
Defendant also pointed out that he had multiple interactions with the district
attorney’s office and with the police when he testified as a witness for the prosecution in
the October 2009 murder trial, but he was never advised of the citations, bench warrants,
or of his pending DUI case during his interactions with the police and district attorney’s
office in connection with his testimony. Because he “was never made aware that a
8 misdemeanor warrant existed,” and because he believed the citations to appear in Indio
were mistakes, he “assumed that no [DUI] case had been filed” for the 2008 DUI.
The court denied defendant’s first speedy trial motion, explaining that “there are a
number of equities that [defendant] may have in terms of resolution of the case, but [the
court’s] problem is that almost all of the problem is of [defendant’s] making. He failed to
appear. It is not reasonable for someone who gets a citation in Indio, even though it was
a Banning case, to say, yeah, it must be somebody else’s, my name’s common, but I’m
not going to show up. Especially if you keep getting that notice. You take care of your
issues. Even if it isn’t you, you clear it up so warrants don’t keep getting issued.
[Defendant] didn’t do that. [¶] Memories have faded. Also, the CHP officer’s memory
has faded from what I read in the documents that quoted the preliminary hearing
transcript. [¶] I don’t find that there’s any intentional delay by the district attorney.
They attempted to prosecute, but [defendant’s] failures to appear [led] to his problems
where he finds himself now.”
In denying the second speedy trial motion, the court focused on the multiple trial
continuances that delayed the commencement of trial by nearly one year. The court
denied the motion since trial had commenced prior to January 15, 2015, the stipulated last
day for trial to begin.
IV. DISCUSSION
As noted, defendant contends his right to a speedy trial, guaranteed by both the
United States and California Constitutions, was violated due to “the delay of more than
9 six years in prosecuting [defendant] for the 2008 DUI offenses.” We conclude there was
no violation of defendant’s speedy trial rights.
A. Standard of Review
Contrary to defendant’s assertion that a de novo standard of review applies, a trial
court’s denial of a motion to dismiss based on a violation of speedy trial rights under the
state and federal Constitutions is reviewed for an abuse of discretion. (Dews v. Superior
Court (2014) 223 Cal.App.4th 660, 664, citing Serna v. Superior Court (1985) 40 Cal.3d
239, 245-246, 263-264 (Serna) & Ogle v. Superior Court (1992) 4 Cal.App.4th 1007,
1014 (Ogle).) The abuse of discretion standard applies even where the “court denied the
motion without expressly balancing the factors set forth in Barker [v. Wingo (1972) 407
U.S. 514] for evaluating a federal speedy trial claim.” (Dews v. Superior Court, supra, at
p. 663.)
B. The Trial Court Did Not Abuse Its Discretion in Denying Defendant’s Speedy Trial
Motions
1. Defendant’s Federal Constitutional Right to a Speedy Trial Was Not Violated
The Sixth Amendment of the United States Constitution guarantees an accused
“the right to a speedy and public trial . . . .” (U.S. Const., 6th Amend.) The right to a
speedy trial “‘is imposed by the Due Process Clause of the Fourteenth Amendment on the
States.’” (People v. Williams (2013) 58 Cal.4th 197, 232 (Williams), quoting Barker v.
Wingo, supra, 407 U.S. at p. 515.) “‘[I]t is either a formal indictment or information or
else the actual restraints imposed by arrest and holding to answer a criminal charge that
10 engage the particular protections of the speedy trial provision of the Sixth Amendment.’
[Citation.]” (Serna, supra, 40 Cal.3d at p. 252.)
In evaluating whether a defendant’s federal constitutional right to a speedy trial
has been violated, “Barker established a balancing test consisting of ‘four separate
enquiries: whether 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.]” (Williams, supra, 58 Cal.4th at p. 233.) “The burden of
demonstrating a speedy trial violation under Barker’s multifactor test lies with the
defendant.” (Ibid.) None of the four factors are “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.” (Barker v. Wingo, supra, 407 U.S. at p. 533; Williams, supra, at p. 233.)
(a) The Delay Before Trial Was Uncommonly Long
Defendant and the People agree that the first Barker factor has been met by the
approximately five and a half year delay between the June 2008 DUI citation and
misdemeanor complaint filed in August 2008, and defendant’s second arrest and felony
prosecution for the June 2008 DUI in January 2014. A “delay between the filing of a
misdemeanor complaint and the arrest and prosecution of a defendant which exceeds one
year is unreasonable and presumptively prejudicial . . . .” (Serna, supra, 40 Cal.3d at p.
253; accord, Dews v. Superior Court, supra, 223 Cal.App.4th at p. 665.)
11 (b) Defendant Is More to Blame for the Delay
Defendant argues the People offered no justification, other than to blame
defendant, for their delay in prosecuting him. Defendant points out he did not hide from
authorities and claims, since he had no duty to bring himself to trial, that the People’s
lack of diligence in pursuing him lessens his burden to show he suffered prejudice. He
also argues the People’s delay was inexcusable because “this was not a ‘serious and
complex case’ in which some delay in prosecution can be excused.”
Where a defendant is “aware of the pending charges and [is] fully able to appear in
court,” he cannot prevail on a speedy trial motion by arguing that the authorities failed to
exercise due diligence in attempting to locate and apprehend him, as “‘[s]uch a ruling
encourages defendants to become fugitives.’ [Citation.]” (People v. Hsu (2008) 168
Cal.App.4th 397, 406 (Hsu).)
In Hsu, the defendant failed to appear for sentencing in 1992 and fled the country.
(Hsu, supra, 168 Cal.App.4th at at p. 402.) He returned in 2003 and made no effort to
hide his identity. (Ibid.) The authorities only made “cursory efforts to locate [him],”
until he was finally arrested in 2007 and sentenced in 2008. (Id. at pp. 402-403, 405.)
Hsu claimed the trial court erred in denying his motion to dismiss the charges against him
because the delay in sentencing violated his constitutional right to a speedy trial. (Id. at
pp. 401, 403.) Although the Hsu court did not directly address the issue of whether the
right to a speedy imposition of sentence was included in the right to a speedy trial, it
explained “even were we to conclude that Hsu had a Sixth Amendment right to speedy
12 sentencing, he has failed to establish a violation of that right” under the Barker test.
(Hsu, supra, at pp. 403-404.) In evaluating the defendant’s claim, the Hsu court applied
“the four-part analysis of Barker . . . to Hsu’s speedy sentencing claim.” (Id. at p. 405.)
Hsu argued that the 15-year delay between his 1992 flight and his 2007 arrest must be
attributed to the government, as “he ‘led a very visible and public life using his own
identity. He did not act like a fugitive. He did not evade the authorities, but rather
openly associated with highly public politicians.’” (Ibid.)
Although the Hsu court expressed its concern that Hsu had “engaged in such
prominent political activity without being detected,” it concluded, “Hsu’s flight to avoid
being sentenced must be weighed more heavily than the ensuing failure of the
government to apprehend him.” (Hsu, supra, 168 Cal.App.4th at p. 406; see Leaututufu
v. Superior Court (2011) 202 Cal.App.4th Supp. 1, 6, fn. 3 [“In the context of the Barker
balancing, if the delay is caused by the defendant (such as when the defendant
deliberately fails to appear), that factor is likely to be given far more weight than the
failure of the People to track the defendant down.”].)
Although authorities must “‘exercise due diligence in attempting to locate and
apprehend the accused,’” the Hsu court believed “imposing such a duty [only] makes
sense in cases where a defendant cannot appear of his own volition . . . because he is
unaware of the pending charges [citations] . . . .” (Hsu, supra, 168 Cal.App.4th at p.
406.) The court also explained: “‘There is no requirement that law enforcement officials
“make heroic efforts to apprehend a defendant who is purposefully avoiding
13 apprehension”’ [citation] [as] the government should have discretion concerning how to
allocate its finite investigative resources and . . . it cannot be expected to pursue each of
these 100,000 individuals [who have outstanding arrest and bench warrants] with the
effort it might expend to capture, for example, a serial killer.” (Ibid.)
Here, defendant was ordered to appear before the Indio Superior Court on four
separate occasions, and he acknowledged receipt of the citations to appear and the bench
warrants for his arrest. Defendant did not appear at any of the hearings5 because he
believed the citations and bench warrants were sent to him in error, since he was cited for
DUI in Banning, not in Indio, and also because he believed they were intended for
someone who had the same name as him. Defendant could have resolved any uncertainty
by going to the Indio Superior Court to confirm the citations and warrants were meant for
someone else, yet he elected not to do so. Based on these facts, and despite the
government’s delay in arresting him, defendant is more to blame for the delay before
trial, and this Barker factor is weighed against him. (Hsu, supra, 168 Cal.App.4th at p.
406.)
Defendant relies on Ogle, supra, 4 Cal.App.4th 1007 for the proposition that the
People are solely to blame for the delay because authorities failed to make any effort to
arrest defendant at his known address, particularly where he did not hide to avoid
prosecution and had many contacts with law enforcement. Like defendant, Ogle was
5 After his 2011 DUI arrest in Los Angeles County, defendant failed to appear at his arraignment and a bench warrant for his arrest was issued.
14 cited for DUI and released based on his signed promise to appear, and a bench warrant
was issued after he failed to appear. (Id. at pp. 1011-1012.) Two years later, Ogle
appeared in court and, soon thereafter, moved to dismiss the DUI charges on the ground
the two-year delay violated his federal constitutional right to a speedy trial right. (Id. at
p. 1012.) At the time he appeared, Ogle still lived at the address listed on his notice to
appear. (Ibid.) The trial court denied the motion, concluding Ogle was not prejudiced by
the two-year delay. (Id. at p. 1018.) The Ogle court concluded that the trial court abused
its discretion in denying the motion and remanded the matter for further consideration.
(Id. at pp. 1021-1023.) The Ogle court explained: “Though the government bore
significant responsibility for the long delay, the court refused to consider the
government’s conduct in the balance.” (Id. at p. 1022.) Still, Ogle’s “own role in the
delay” could not be overlooked and was relevant in weighing the Barker factors. (Ogle,
supra, at pp. 1019, 1021.) Here, too, defendant’s own role in the delay in prosecuting
him cannot be overlooked. Ogle is also distinguishable because Ogle claimed he did not
recall being arrested or signing a promise to appear, even after reading the police report
of the incident. (Id. at p. 1012.) Defendant, by contrast, admitted he knew about his
2008 arrest and of the subsequent citations to appear, and he had never forgotten about
them.
Furthermore, defendant cannot focus on the conduct of the People while
overlooking his own role in the delay. (See Ogle, supra, 4 Cal.App.4th at pp. 1019,
1021.) As the court explained when it denied defendant’s first speedy trial motion,
15 defendant could have determined whether the citations and bench warrants were intended
for him by simply going to the Indio Superior Court, yet defendant chose not to do so.
As the Ogle court explained, “if [the defendant] willfully failed to appear, it would seem
fair to apportion some of the blame to [the defendant]” if the defendant’s conduct
contributed to the delay. (Id. at p. 1021.)
(c) Defendant Did Not Timely Assert His Right to a Speedy Trial
Defendant next claims he timely asserted his right to a speedy trial, both before
and after trial, and he maintains “[h]e could not have made the claim sooner, as he was
unaware of the pending charges.”
“‘[T]he defendant’s assertion of or failure to assert his right to a speedy trial is one
of the [Barker] factors to be considered in an inquiry into the deprivation of the right.’
[Citation.] ‘Whether and how a defendant asserts his right is closely related to the . . .
[remaining Barker factors]. The strength of his efforts will be affected by the length of
the delay, to some extent by the reason for the delay, and most particularly by the
personal prejudice, which is not always readily identifiable, that he experiences. The
more serious the deprivation, the more likely a defendant is to complain. The defendant’s
assertion of his speedy trial right, then, is entitled to strong evidentiary weight in
determining whether the defendant is being deprived of the right.’ [Citation.]”
(Williams, supra, 58 Cal.4th at pp. 237-238.)
“If [a defendant] knew or constructively knew of the pending case, his failure to
assert his right [to a speedy trial] might well be dispositive. ‘[F]ailure to assert the right
16 will make it difficult for a defendant to prove that he was denied a speedy trial.’
[Citation.] However, if [the defendant] did not know of the pending case, his failure to
assert his right would be excused.” (Ogle, supra, 4 Cal.App.4th at p. 1021; see Hsu,
supra, 168 Cal.App.4th at p. 407 [given his “undeniable knowledge of his pending
sentencing hearing . . . [the defendant’s] failure to assert his right to be sentenced for so
many years weighs strongly against him.”].)
Defendant acknowledged being arrested for DUI on June 15, 2008, and receiving a
number of citations to appear, as well as bench warrants for failure to appear, between
2008 and 2011. Based on these facts, defendant knew of the pending case since he
signed the DUI citation in June 2008 (see Ogle, supra, 4 Cal.App.4th at pp. 1019-1020),
but he delayed until August 2014, when he filed his first speedy trial motion, before
asserting his right to a speedy trial. By waiting more than six years after his 2008 DUI
arrest, and nearly seven months after the People commenced their felony prosecution in
January 2014, to assert his right to a speedy trial, defendant did not timely assert his
speedy trial rights, and we weigh this Barker factor against him.
People v. Vila (1984) 162 Cal.App.3d 76, which defendant relies on for the
proposition that “where the prosecution’s failure to bring a person to trial is
unjustified, . . . [the failure] must properly weigh heavily against the prosecution” is
distinguishable. In that case, the government filed a “‘secret’ indictment” against the
defendant, but it never informed the defendant or his counsel of the indictment until four
years later, when the defendant was brought into court and arraigned on the indictment.
17 (Id. at pp. 79-80.) Here, by contrast, there was no “secret indictment.” As discussed,
defendant concedes he knew of his 2008 DUI arrest and the subsequent notices to appear.
(d) Defendant Has Not Established the Delay Prejudiced Him
Defendant asserts the People’s delay in arresting him caused him actual prejudice
because, by the time of trial in January 2015, both he and the arresting CHP officer could
no longer recall details from the 2008 DUI.
“Whether defendant suffered prejudice as a result of the delay must be assessed in
light of the interests the speedy trial right was designed to protect: ‘(i) to prevent
oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and
(iii) to limit the possibility that the defense will be impaired.’ [Citation.]” (Williams,
supra, 58 Cal.4th at p. 235.) However, a defendant “cannot benefit from a presumption
of prejudice [where] the record does not show that the state was responsible for the delay.
[Citation.]” (Id. at p. 252.) He also cannot rely on claims of prejudice that are vague and
speculative, such as where defendant “has not specifically identified what witnesses
might have eluded the defense or what testimony might have been lost or distorted as a
result of the delay in this case.” (Id. at p. 236; see Serna, supra, 40 Cal.3d at p. 250 [“the
court need not accept a conclusory statement that the lack of recall demonstrates
prejudice where no effort has been made to ascertain the basis for the charge.”].)
As discussed, defendant is more responsible for the delay because he disregarded
four citations to appear before the Indio Superior Court. Although defendant contended
he believed those citations were mistakenly sent to him, he could have resolved any
18 mistake by going to the Indio Superior Court so that “warrants [for his arrest] don’t keep
getting issued.” He chose not to do so, and cannot now claim he was prejudiced by his
own delay. (Williams, supra, 58 Cal.4th at p. 252.)
Moreover, we reject defendant’s contention that he suffered actual prejudice due
to the passage of time that has faded both his memory and the memory of the arresting
officer. Defendant submitted a declaration that he “only vaguely recall[ed] [his] arrest on
June 15, 2008. [He] was drinking heavily during that period in [his] life and that drinking
has negatively impacted [his] memory from that time frame. For example, [he] do[es]
not recall how much [he] drank, what [he] was drinking, or how [he] was driving at the
time the officer stopped [him]. [¶] If [he] had been able to review the police reports on
[his] case within a few months of the incident [he] would have been much better able to
recall the facts of the incident.”
In Serna, the defendant submitted a declaration that he had no independent
recollection of his activities leading to his arrest. (Serna, supra, 40 Cal.3d at p. 250.)
The Serna court concluded the defendant’s “declaration was insufficient to support a
finding of prejudice,” and it explained the “[l]ack of recall may establish prejudice, but
only on a showing that the memory loss persists after reasonable attempts to refresh
recollection. ‘The showing of actual prejudice which the law requires must be supported
by particular facts and not . . . by bare conclusionary statements.’ [Citation.]” (Ibid.)
Here, defendant’s claim of actual prejudice is supported solely by his declaration
that he “only vaguely recall[ed] [his] arrest on June 15, 2008” and that he did not
19 remember the facts of his 2008 DUI arrest. However, as noted, defendant acknowledged
in his first speedy trial motion that he remembered his DUI arrest, he recalled receiving
multiple citations to appear and bench warrants for failure to appear, and he even went to
the Banning courthouse to check on the status of his DUI case. (Cf. Ogle, supra, 4
Cal.App.4th at p. 1012 [the defendant did not remember being arrested, or signing a
promise to appear, even after reading the police report of the incident].) Based on
defendant’s own admission, he has not established memory loss to support his claim of
prejudice. Furthermore, the record does not support defendant’s contention that the
arresting CHP officer “did not recall [defendant] as the person he stopped and cited on
June 18, 2008,” as the officer testified at trial that he was certain defendant was the
person he arrested on June 15, 2008, after he reviewed defendant’s booking photographs,
“which also had the booking numbers and things like that that correlated to [his] report.”
Defendant claims “the testimony of the arresting officer [at the preliminary hearing]
revealed that he did not recall [defendant] as the person he stopped and cited on June 18,
2008.” This claim overstates the CHP officer’s testimony, as the officer testified at the
preliminary hearing that, prior to the hearing, he had not reviewed any photographs of the
person he arrested in 2008 that would have refreshed his memory. However, the CHP
officer testified he recognized defendant’s face as someone he had come into contact with
at one point or another, but he “would need probably some photograph to refresh [his]
memory” that defendant was the person he pulled over in 2008. By the time of trial, the
20 officer had reviewed the photographs to refresh his memory, and his memory was
refreshed.
(e) Balancing of the Barker Factors Supports Trial Court’s Denial of
Defendant’s Speedy Trial Motion
As discussed, the delay between defendant’s 2008 DUI citation and his eventual
2014 arrest was unreasonably long. However, the delay was caused mostly by
defendant’s decision not to appear before the Indio Superior Court despite receiving
multiple citations to appear, and at least three bench warrants that were issued as a result
of his prior failures to appear. Defendant “cannot benefit from a presumption of
prejudice” that was his own doing (Williams, supra, 58 Cal.4th at p. 252), particularly
where he knew of his 2008 DUI arrest, yet waited more than six years to raise a claim
that his right to a speedy trial had been violated (Hsu, supra, 168 Cal.App.4th at p. 407;
Ogle, supra, 4 Cal.App.4th at p. 1021).
Based on our consideration and balancing of the four Barker factors, we conclude
the court did not abuse its discretion in denying defendant’s speedy trial motions, as
defendant’s Sixth Amendment “right to a speedy and public trial, by an impartial jury of
the state” (U.S. Const., 6th Amend.) was not violated.
2. Defendant’s State Constitutional Right to a Speedy Trial Was Not Violated
Under the California Constitution, “[t]he defendant in a criminal cause has the
right to a speedy public trial . . . .” (Cal. Const., art. I, § 15.) Unlike a federal
constitutional claim, in determining whether a defendant’s state constitutional right to a
21 speedy trial has been violated, there is no presumption of prejudice arising solely from an
unreasonable delay; rather, the “‘defendant seeking dismissal must affirmatively
demonstrate prejudice.’” (People v. Lowe (2007) 40 Cal.4th 937, 939; People v.
Martinez (2000) 22 Cal.4th 750, 755, 767.) If the defendant has demonstrated prejudice
by the delay, the prosecution must then offer justification for the delay, and the court
considering the motion to dismiss must balance the harm to the defendant against the
justification for the delay. (People v. Lowe, supra, at p. 942; People v. Martinez, supra,
at pp. 766-767.) Factors the court may consider include who is responsible for the delay
and whether the reason for the delay was deliberate. (People v. Dunn-Gonzalez (1996)
47 Cal.App.4th 899, 911.) “Even a minimal showing of prejudice may require dismissal
if the proffered justification for delay is insubstantial. By the same token, the more
reasonable the delay, the more prejudice the defense would have to show to require
dismissal.” (Id. at p. 915; People v. Mirenda (2009) 174 Cal.App.4th 1313, 1327.) If the
defendant fails to meet his or her burden of showing prejudice, there is no need to
determine whether the delay was justified. (Serna, supra, 40 Cal.3d at pp. 249-251;
People v. Dunn-Gonzalez, supra, at p. 911; accord, People v. Egbert (1997) 59
Cal.App.4th 503, 511.)
As noted, defendant claims that he has been prejudiced by the passage of time that
has faded his and the arresting officer’s memories. However, the arresting officer
testified at trial that, after reviewing the booking photographs and his arrest report, he
was certain defendant was the person he arrested on June 15, 2008. In addition, although
22 defendant may not recall the details of his 2008 DUI arrest, he knew he had been arrested
for DUI, that he received a number of citations to appear before the Indio Superior Court,
and that bench warrants were issued because he did not appear before the Indio Superior
Court. Despite this knowledge, he disregarded the citations to appear, as well as the
bench warrants, until he was arrested on January 2, 2014. Based on these facts,
defendant has not met his burden of affirmatively demonstrating prejudice.
On this basis, we conclude the court did not abuse its discretion in denying
defendant’s speedy trial motions, as defendant’s state constitutional right to a speedy
public trial (Cal. Const., art. I, § 15) was not violated.
C. The Count 2 Sentence Must Be Stayed Pursuant to Penal Code Section 654
At the sentencing hearing, the People requested the court to stay, pursuant to Penal
Code section 654, defendant’s count 2 sentence for driving with a blood-alcohol content
equal to or greater than 0.08 percent. (Veh. Code, § 23152, subd. (b).) In its oral
pronouncement, the court did not order the count 2 sentence stayed, and neither the
sentencing minute order nor the felony abstract of judgment reflects a stay on the count 2
sentence. Pursuant to Penal Code section 654, we now modify defendant’s sentence to
stay the concurrent two-year sentence on count 2. (See People v. Martinez (2007) 156
Cal.App.4th 851, 853, 857 [where the defendant was convicted of four separate DUI
counts, including violations of both Veh. Code, § 23152, subds. (a), (b), all arising from a
single act, the concurrent sentences on three of the four convictions were stayed pursuant
to Pen. Code, § 654]; see People v. Duarte (1984) 161 Cal.App.3d 438, 447 [where the
23 defendant was convicted of both subds. (a), (b) of Veh. Code, § 23153, “[t]he court
properly exercised discretion in choosing to stay the execution of sentence on the
subdivision (b) conviction.”].)
V. DISPOSITION
The sentence is modified to stay the concurrent two-year term on defendant’s DUI
conviction (Veh. Code, § 23152, subd. (b)) in count 2. As modified, the judgment is
affirmed. Pursuant to the modification, the trial court is directed to prepare a
supplemental sentencing minute order and an amended abstract of judgment to reflect
that defendant’s concurrent two-year sentence on count 2 has been stayed pursuant to
Penal Code section 654. The trial court is also directed to forward a certified copy of the
amended abstract of judgment to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P. J.
We concur:
McKINSTER J.
SLOUGH J.