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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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




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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



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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.




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