Filed 1/5/15 P. v. Stolp CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.



                                                       COPY

              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                      (Calaveras)
                                                            ----




THE PEOPLE,                                                                                  C069983

                   Plaintiff and Respondent,                                      (Super. Ct. No. 10F4767)

         v.

GERALD H. STOLP,

                   Defendant and Appellant.




         Defendant Gerald H. Stolp, aka Gerald H. Wise, appeals following conviction on
three counts of first degree burglary, with findings he had two prior serious or violent
felony convictions. (Pen. Code, §§ 459-460, 667, subds. (d)-(e); unless otherwise stated
statutory references that follow are to the Penal Code.) A fourth burglary count was
dismissed after the jury was unable to reach a verdict.
         On appeal, defendant contends the trial court erred in denying his motion to
dismiss the case for delay in prosecution, in violation of his rights to due process and a
speedy trial under the federal and state Constitutions. We conclude the two-year delay

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between commission of the crimes and the filing of charges and the five-year delay
between the filing of charges and defendant’s arrest in Virginia, did not violate
defendant’s due process or speedy trial rights. We affirm the judgment.

                                FACTS AND PROCEEDINGS

       Several vacation homes in the Arnold area of Calaveras County were burglarized
in late January or early February 2002. Defendant had lived in the area as a child. None
of the victims knew defendant or gave him permission to enter their home.
       On February 7, 2002, victim David Smith got a phone call from a neighbor saying
Smith’s home on Murphys Drive had been burglarized. The burglar entered Smith’s
home through a sliding glass door on the back deck. A rifle, shotgun, ammunition,
hunting knives, and a pillowcase were missing. A shotgun had been discharged into a
mattress. Smith had last been at the vacation home on January 21, 2002.
       On February 11, 2002, Des Martinez received a phone call that her home on
Stanislaus Drive had been burglarized. A window pane in the front door was broken, and
items were missing. She had last been at the house around noon on February 3, 2002.
The count involving Martinez was ultimately dismissed after the jury was unable to reach
a verdict.
       On February 13, 2002, Ronald Peterson learned his home had been burglarized
when he went there after receiving a phone bill for calls he did not make, including
several “900” numbers, between January 27 and February 3, 2002. He had last been at
the house on January 21, 2002. He found the door kicked open. Inside was a mess, with
food wrappers, clothing, alcohol bottles, and bullet casings lying around. There were
bullet holes in the walls and a burnout spot in the linoleum. Items missing included
knives, ammunition, a shotgun, silverware, televisions, VCR, speakers, and a microwave.
Defendant’s fingerprints were found on bottles and an armrest. Police also found a letter
addressed to a Patty Miles, whose Subaru defendant admittedly stole on January 24,


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2002. One of the phone calls made from Peterson’s home was to defendant’s friend Gary
Rowe. Peterson’s trash cans contained a February 2, 2002, grocery receipt from Big
Trees Market; handwritten notes including several “900” numbers; and a receipt for a
pizza ordered by “Jerry,” defendant’s nickname. Surveillance video from the market
showed a person who looked like defendant buying the items listed on the receipt found
in Peterson’s home. A prosecution investigator gave a lay opinion that the handwriting
was defendant’s. Smith’s knives, bag, ammunition, and Smith’s shotgun were also found
in the Peterson home.
       On February 14, 2002, Robert Mugford learned his home had been burglarized
when he went there after receiving a phone bill for $1,800, including international calls
and calls to 900 numbers, made between February 1st and 3rd, 2002. He found the door
kicked in and a window broken. Mugford had last been at the house on January 15, 2002.
Missing items included a lamp, clothing, most of the electronics, and a pillowcase. The
pillowcase was later found in Peterson’s home. DNA from four cigarette butts in
Mugford’s home matched defendant’s DNA profile. Peterson’s phone was found in
Mugford’s house.
       The defense called as a witness defendant’s friend and former cellmate, Joseph
Solar. Defendant stayed at Solar’s home for up to a week-and-a-half in January or
February 2002, until they had an argument. Defendant later apologized and asked for
help cashing a check.
       Defendant testified he was paroled on a prior conviction on January 17, 2002. He
stayed with Rowe in Grass Valley for a couple of days and then stayed with Solar until
their fight. Defendant admitted he stole Miles’s Subaru on January 24, 2002. He slept in
the car for a few nights and then called Rowe for a place to stay. After talking to Rowe,
defendant went to meet a man at a bar. The man led defendant to a house (Peterson’s
home). A woman was already inside. Defendant did not see any broken windows or
doors. Defendant stayed there for three to five days until he obtained his final paycheck

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from a job he had before he went to prison. Other people came in and out of the house.
Defendant did not recall using the house phone but may have. Defendant denied taking
anything. He did not recall patronizing the market or restaurant but could not say for sure
that he did not, and he acknowledged it looked like him in the market surveillance video.
He did not think the handwriting on the papers looked like his handwriting.
          Defendant denied ever being in the other victims’ homes. He conceded cigarette
butts with his DNA were found in the Mugford house but felt “[s]omebody else put them
there.”
          Defendant said Solar helped him cash the paycheck. Defendant then visited
Rowe. Rowe’s girlfriend, a flight attendant, booked a plane ticket to Virginia for him.
Defendant testified his girlfriend in Virginia had wired him money for the ticket. He
drove to the Reno airport, where he left Miles’s car and caught his flight. He did not
know what day this was but said he was “pretty sure” he was gone by February 2, 2002.
          Pest control records indicated routine service to the Smith home on February 5,
2002. Pest control technician Louis Alexander testified he serviced the Smith house but
had no independent recollection of that day. He did not recall seeing signs of a break-in,
but generally he just sprayed the perimeter, sometimes from 30 feet away. Smith had
testified there were closed vertical blinds covering the area of broken glass on the upper
rear deck where the burglar entered. The upper deck sticks out over the hillside. Smith,
who has taken over his own pest control, sprays under the deck where the house meets
the ground but does not spray on top of the deck.
          A defense handwriting expert opined the handwritten notes had more than one
author and perhaps as many as four and were inconsistent with defendant’s handwriting.
The expert acknowledged some “6’s” were consistent with defendant’s handwriting, but
said everyone’s 6’s have some similarity.
          During deliberations, the jury sent a question to the court, stating it had reached a
decision on three counts but wanted to know how to complete the verdict form on Count

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II (victim Martinez) because the jury was “split 11-1 on the Defendant’s guilt. The one
has no intention of changing their mind, as well as the 11 will not change.”
        The jury returned verdicts finding defendant guilty on three of the four burglary
counts (victims Smith, Peterson, and Mugford). The jury found true a special allegation
that the prosecution commenced within the three-year statute of limitations. The jury
found true that defendant had prior convictions for first degree burglary in 1991 and
2001.
        The court declared a mistrial on Count II (victim Martinez) and later dismissed it
on the People’s motion.
        In December 2011, the trial court sentenced defendant to three consecutive terms
of 25 years to life, for an aggregate term of 75 years to life.

                                         DISCUSSION

        Defendant argues the seven-year delay between commission of the offenses in
2002 and his 2009 arrest violates his right to due process of law and his right to a speedy
trial. The People respond two time periods are at issue, because due process delay is
measured from the date the crimes were committed, while the constitutional right to a
speedy trial was triggered in 2004, when the complaint was filed. (People v. Cowan
(2010) 50 Cal.4th 401, 430 (Cowan).) We conclude defendant fails to show grounds for
reversal.

A.      Legal Standards

        1.     Due Process

        “ ‘ “[D]elay in prosecution that occurs before the accused is arrested or the
complaint is filed may constitute a denial of the right to a fair trial and to due process of
law under the state and federal Constitutions. A defendant seeking to dismiss a charge on
this ground must demonstrate prejudice arising from the delay. The prosecution may
offer justification for the delay, and the court considering a motion to dismiss balances

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the harm to the defendant against the justification for the delay.” [Citation.]’ ” (Cowan,
supra, 50 Cal.4th at p. 430.)
       “Prejudice may be shown by ‘ “loss of material witnesses due to lapse of time
[citation] or loss of evidence because of fading memory attributable to the delay.” ’
[Citations.] And although the federal constitutional standard for what constitutes
sufficient justification for delay is unclear [citation], [the California Supreme Court has]
noted that ‘the law under the California Constitution is at least as favorable for defendant
in this regard’ as federal law [citation]. Accordingly, . . . we apply California law here.”
(Cowan, supra, 50 Cal.4th at pp. 430-431.) “Under the California standard, ‘negligent, as
well as purposeful, delay in bringing charges may, when accompanied by a showing of
prejudice, violate due process. This does not mean, however, that whether the delay was
purposeful or negligent is irrelevant.’ [Citation.] Rather, ‘whether the delay was
negligent or purposeful is relevant to the balancing process. Purposeful delay to gain an
advantage is totally unjustified, and a relatively weak showing of prejudice would suffice
to tip the scales towards finding a due process violation. If the delay was merely
negligent, a greater showing of prejudice would be required to establish a due process
violation.’ [Citation.] The justification for the delay is strong when there is
‘investigative delay, nothing else.’ [Citation.]” (Cowan, supra, 50 Cal.4th at p. 431.)
“ ‘The statute of limitations is usually considered the primary guarantee against bringing
overly stale criminal charges,’ . . . .” (People v. Nelson (2008) 43 Cal.4th 1242, 1250.)
       “We review for abuse of discretion a trial court’s ruling on a motion to dismiss for
prejudicial prearrest delay [citation], and defer to any underlying factual findings if
substantial evidence supports them [citation].” (Cowan, supra, 50 Cal.4th at p. 431.)

       2.     Speedy Trial

       Under the state Constitution, the right to a speedy trial attaches with the filing of
the felony complaint, which in this case was April 2004. (People v. Martinez (2000) 22


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Cal.4th 750, 754 (Martinez).) Where review is sought after trial, the defendant must
show prejudice. (Id. at p. 755.) “Under the state Constitution’s speedy trial right, . . . 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].” (Id.
at p. 755, original italics.) In reviewing application of facts found to the legal question
whether the defendant was denied his right to a speedy trial, our review is de novo.
(People v. Cromer (2001) 24 Cal.4th 889, 894.)
       The federal constitutional right to a speedy trial allows prejudice to be presumed if
the delay is “uncommonly long,” but the federal right does not attach until the defendant
is arrested or the information is filed. (United States v. Marion (1971) 404 U.S. 307, 320
[30 L.Ed.2d 468]; People v. Williams (2013) 58 Cal.4th 197, 233; Martinez, supra, 22
Cal.4th at pp. 754-755.) Here, the federal speedy trial right did not attach until January
2010, when defendant was arrested, and defendant does not claim any prejudicial delay
after his arrest.

B.     Background

       In June 2011, before trial, defendant moved to dismiss the case for delay in
prosecution based on the seven-year delay between commission of the crimes and his
arrest. The prosecutor opposed the motion. The trial court conducted evidentiary
hearings before and after trial.
       At the pretrial hearing, defendant testified and admitted he fled California in
February 2002 in violation of parole. He went to Virginia, where he was arrested in
March 2002, released in early 2003, rearrested in the summer of 2003, pleaded guilty to
nine counts of fraudulently using bank notes, and was sentenced to six years in prison in
Virginia.




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       In California, the prosecutor filed the complaint in April 2004 and obtained an
arrest warrant in May 2004, naming defendant as Gerald H. Wise and giving a Virginia
jail as defendant’s last known address. While incarcerated in Virginia, defendant learned
of the California case and in December 2004 wrote to the Calaveras County District
Attorney’s office, asserting his Sixth Amendment right to a speedy trial on the California
charges (which had not yet attached) and stating he would not contest extradition. The
response was that his request failed to comply with statutory requirements. Defendant
claimed the Virginia prison denied him access to California law.
       After defendant’s Virginia prison term ended in September 2009, he was kept
confined pending word from California but was then released on his own recognizance.
A California arrest warrant issued in October 2009, using both surnames, Wise and Stolp.
Defendant testified he was served with the arrest warrant on December 28, 2009, when he
showed up for a hearing in a Virginia court, and he was arrested on the California warrant
in January 2010. The prosecutor filed an information on February 25, 2010, and an
amended information in March 2011.
       Defendant made various motions to dismiss or set aside the information for delay.
In opposition, the prosecutor submitted her own declaration attesting 18 burglaries had
been reported in the same area during January, February, and March of 2002. The
District Attorney’s office received a police report in June 2002 on some of the burglaries,
requested additional reports, and requested followup in February 2003. In early 2004, the
prosecutor requested additional followup by a prosecution investigator before filing the
complaint. In September 2009, defendant was due to be released from the Virginia
prison. Because defendant would not waive extradition, the prosecutor sought a
governor’s warrant, which was granted on November 2, 2009. The law and motion judge
denied defendant’s dismissal motion. Defendant’s attempt to obtain dismissal on the
ground of the three-year statute of limitations (§ 801) was also denied. For limitations
purposes, the prosecution was commenced when the 2004 arrest was issued, plus the

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limitations period is tolled for up to three years if the defendant is out of the state.
(§§ 803-804.)
       In June 2011, defendant filed a motion to dismiss for delay in prosecution,
asserting the prosecution knew in May 2002 that (1) the police investigation revealed
defendant’s fingerprints were at one crime scene; (2) defendant had not kept in contact
with his parole officer; and (3) defendant was in custody in Virginia.
       At the pretrial hearing on the dismissal motion, defendant argued he was
prejudiced by the delay between the 2002 burglaries and his arrest seven years later. And
he argued there was no legitimate justification for the delay, “particularly” from 2004
forward. He assertedly tried to gather evidence to show he left California before
February 5, 2002, the date a pest control technician performed routine service at victim
Smith’s home without noticing any sign of a break-in. Since the burglaries appeared to
be the work of a single perpetrator, defendant thought this would exonerate him. A
defense investigator testified defendant said he left California in early February 2002 but
did not recall the exact date, and the investigator was unable to gather supporting
evidence because business records such as airline records and airport parking records
were unavailable, and witnesses such as the pest control technician could not remember.
       The prosecutor argued defendant failed to show prejudice.
       The trial court issued a written interim ruling in July 2011, finding “the facts
regarding a showing of prejudice have not been fully developed. There are uncontacted
witnesses who could potentially corroborate defendant’s account of when he left the State
of California.” The court denied the dismissal motion without prejudice to revisit the
matter after trial. Defendant noted his motion had also asserted intentional delay by the
People, relieving him from having to show prejudice. The trial court declined to dismiss
on that ground.
       After the jury returned its verdicts on November 16, 2011, the court held another
evidentiary hearing on the dismissal motion. Defense counsel filed a declaration attesting

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he asked Reno airport security when the Subaru was parked at the airport but was told the
information was unavailable. He obtained defendant’s employment records, but they did
not show the date defendant cashed his last paycheck. He contacted the bank where
defendant cashed the check but was told they destroy records after seven years. The
defense did not directly contact the woman who wired defendant money, because she had
been victimized by defendant and was terrified of him. The defense contacted her
through a third party, but she did not remember when defendant arrived in Virginia and
thought it was in January 2002. The defense investigator said Rowe did not return phone
calls, so the investigator suggested contacting his mother, but defense counsel said Rowe
was in Australia (as the prosecutor apparently thought), and was not needed.
       The prosecution adduced evidence they easily reached Rowe, who said he spent
less than a day in Australia due to a visa problem. The prosecutor also easily reached
Rowe’s girlfriend, who said she did not remember making flight arrangements for
defendant and would have remembered had she done so, because he was a “criminal
type,” and she did not like criminal types and would not have wanted to help him.
       The trial court, citing case law that faded memory may suffice for prejudice, asked
the prosecutor if she wanted to present justification for the delay. She said, “Not at this
time” and asserted the court had to make a finding of prejudice before the burden shifted
to the People. The trial court retorted even the slightest showing of prejudice could shift
the burden, and “I really think for the purpose of the record, I would like to have the
People’s justification so we don’t have to come back later and do this.” The prosecutor
explained she was prepared only on the issue of prejudice, and “the People are not
prepared to offer justification at this time.”
       In arguing the question of prejudice, the prosecutor noted the defense did not
diligently pursue supporting evidence, as shown by their asserted inability to contact
defendant’s friend, Rowe, whereas the prosecution had quick success in contacting him.



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       On November 21, 2011, the trial court issued a written ruling denying defendant’s
dismissal motion. The court noted defendant admitted at the hearing of the motion that
he was released on parole on January 17, 2002, stole a car, spent several days in the
Peterson home, and then absconded from parole, flying out of Reno to Virginia. The
ruling stated in part:
       “The defendant argues that he has been prejudiced by the delay in bringing his
case to trial since evidence of the precise date in early February of 2002, circa February
2nd, when he fled the State of California cannot be corroborated due to the lack of
records which have been purged and memories that have faded. The court finds the
defendant has not made a sufficient showing of prejudice. Even assuming the defendant
actually left . . . California in early February of 2002, he was in the Arnold area within
the alleged times of all of the burglaries with the exception of Count II, (on or about and
between February 3, 2002, and February 11, 2002). The court notes that Count II was
dismissed on the People’s motion following a mistrial.
       “Assuming arguendo that the defendant has made a sufficient showing to shift the
burden to the People to show a legitimate justification for the delay, that burden has been
met. The delay in this case was primarily occasioned by the defendant’s flight from . . .
California and his commission of additional crimes in the State of Virginia. As a result,
he was in and out of custody and transferred between various penal institutions in the
State of Virginia.
       “In balancing the competing interests at this juncture, the court cannot overlook
the overwhelming evidence of defendant’s guilt presented at trial and the jury’s guilty
verdicts as to Counts I, III, and IV.”

C.     Analysis

       On appeal, defendant refers to the “seven-year delay” between 2002 and 2009
without differentiation between the different rights asserted.


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       We disregard defendant’s reliance on cases involving the federal speedy trial
claim, because it was not triggered until defendant was arrested in 2009, and defendant
does not claim or demonstrate prejudice or unjustifiable delay after that point.
Elimination of the federal speedy trial claim eliminates defendant’s ability to rely on a
presumption of prejudice, and he must affirmatively demonstrate prejudice. (Martinez,
supra, 22 Cal.4th at p. 755.)
       As to the due process claim for the period between the 2002 commission of the
crimes and the 2004 filing of the complaint, defendant fails to show prejudice. He fails to
show the two-year period left him unable to gather evidence upon learning of the charges
in 2004. He fails to show he attempted to gather evidence in 2004. Moreover, the delay
was justified. Although defendant’s fingerprints were identified in April 2002 and there
was probable cause to charge defendant on several counts by June 2002, the record shows
an ongoing investigation of 18 burglaries that were ultimately winnowed down to the
four counts charged against defendant. Defendant does not argue or show the
investigation was deliberately slow in order to prejudice him. The record shows nothing
more than investigative delay, which is strong justification for delay. (Cowan, supra, 50
Cal.4th at p. 431.)
       As to the state speedy trial claim for the period between 2004 and 2009, we see no
basis for reversal. Defendant focuses on his asserted inability to prove his claim that he
left California before February 3, 2002. But all three burglaries of which defendant was
convicted could have occurred before February 3rd.
       Defendant argues the prosecution used the telephone calls as evidence that the
burglaries were committed by the same person. Since the last of those calls were made
on February 3rd (8:24 p.m. from Martinez’s phone, 3:24 p.m. from Mugford’s phone),
defendant argues he could have cast reasonable doubt as to his identity as the perpetrator
had he been able to show he left California by that date. However, defendant did not
initially claim that date. At the pretrial hearing, the defense investigator testified he

                                              12
spoke with defendant, who said he left California in early February 2002 but did not
know what date. Even though the defense knew before trial that the last phone calls were
made February 3rd, defendant testified at the pretrial hearing that “we were trying to
establish that I was gone prior to February 5th” -- the date of the pest control service.
       Proving he left before February 5th would not help defendant, because there is no
evidence the pest control technician should have noticed signs of forced entry. Forced
entry was by broken glass on an upper deck with closed vertical blinds. The technician
merely sprayed the perimeter from as much as 30 feet away.
       Proving he left on February 3rd would not help defendant, because the last phone
call was at 8:24 p.m. on February 3rd, and therefore defendant could have made that call
and then left for the airport. He did not testify what time of day his flight left.
Defendant’s presence in the crime area on February 2nd was established by the market
surveillance video. Moreover, the phone records would not exonerate defendant in any
case, because there was a rash of burglaries of the unoccupied vacation homes in the area,
not all of which were charged against defendant. He left behind the list of “900”
numbers, and there was no evidence he secured the home when he left.
       Additionally, the defense did not even try to contact the woman who wired money
to defendant until after the trial began. The defense then communicated with her through
a third person, because defendant victimized her, and she is hostile toward and terrified
by defendant -- circumstances not the fault of the prosecution.
       Thus, defendant failed to show prejudice.
       Even assuming defendant showed prejudice sufficient to shift the burden to the
prosecution to justify the delay, defendant fails to show grounds for reversal. Although
the prosecution did not present evidence as to why it declined to extradite defendant
sooner, the trial court properly found there was justifiable delay because defendant fled
California. (People v. Perez (1991) 229 Cal.App.3d 302, 308 [though not an absolute bar
to a speedy trial claim, flight to avoid prosecution is a factor to be considered].)

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Defendant argues the delay was unjustified, because California authorities knew his
whereabouts in the Virginia prison, and he even urged them to bring him to trial. The
Attorney General does not argue inability to extradite defendant earlier, and we therefore
do not rely on the Virginia incarceration itself as justification for the five-year delay in
California. By the same token, however, though the California authorities knew where
defendant was in 2004, defendant in 2004 knew about the California burglary charges
against him and, though incarcerated, could have undertaken to pin down evidence of
when he left California. He did not testify to any such efforts. Contrary to defendant’s
contention, the fact the prosecution declined to extradite him in 2004 does not, in itself,
suffice to show purposeful delay to weaken the defense. Thus, any balancing of
prejudice against delay would not weigh in defendant’s favor. Moreover, there was
overwhelming evidence of defendant’s guilt on the three counts of which he stands
convicted. His DNA was found in the Peterson and Mugford homes, and he admitted
staying at the Peterson home for several days. The receipt found in the home was from a
February 2nd transaction captured by surveillance video showing a person who appeared
to be defendant. Moreover, a number of items stolen from the Smith home were found in
the Peterson home.
       Defendant cites Dickey v. Florida (1970) 398 U.S. 30 [26 L.Ed.2d 26], which
found a speedy trial violation under the federal Constitution where a person incarcerated
in federal prison sought a speedy trial on state charges in Florida, and the state prosecutor
let eight years lapse before bringing him to trial. Dickey noted that, upon demand of the
accused, the state had a constitutional duty to make a diligent and good faith effort to
secure his presence from the custodial jurisdiction and afford him a trial. (Id. at pp. 36-
37.) However, we have explained the federal speedy trial did not attach until defendant’s
arrest in 2009, at which point he was no longer incarcerated in Virginia, and he makes no
claim of prejudice or unjustified delay after his arrest.



                                              14
       Defendant also cites People v. Mirenda (2009) 174 Cal.App.4th 1313. There,
however, the delay was 25 years, and the defendant showed prejudice, e.g., death of the
sole independent witness. (Id. at pp. 1331-1332.) The appellate court upheld the trial
court’s determinations that delay in prosecution was justified until 1982, when the
California authorities found the defendant in Pennsylvania, but the delay in prosecution
between 1982 and 2007 was not justified under the circumstances of the case. (Ibid.)
The circumstances included an admission by the prosecutor that nothing was done, and
the prosecution not only declined to extradite the defendant but also changed the arrest
warrant to “California only” thereby preventing execution of the warrant outside of the
state. (Id. at p. 1333.)
       We conclude defendant fails to show grounds for reversal.

                                       DISPOSITION

       The judgment is affirmed.



                                                       HULL                  , J.



We concur:



      RAYE                  , P. J.



      HOCH                  , J.




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