Filed 6/26/13 P. v. Cotton CA2/3
                 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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

                                    SECOND APPELLATE DISTRICT

                                                DIVISION THREE

THE PEOPLE,                                                                B235980

         Plaintiff and Respondent,                                        (Los Angeles County
                                                                          Super. Ct. No. PA059248)
         v.

WESLEY STANLEY COTTON,

      Defendant and Appellant.
_____________________________________
In re

         WESLEY STANLEY COTTON,                                            B242501

         on

         Habeas Corpus.


         APPEAL from a judgment of the Superior Court of Los Angeles County,
Clifford L. Klein, Judge. Affirmed.
         PETITION for Writ of Habeas Corpus. Writ denied.
         Winston Kevin McKesson, under appointment by the Court of Appeal, for
Defendant and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Margaret E. Maxwell and
Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
       Defendant and appellant, Wesley Stanley Cotton, appeals his conviction, by no
contest plea, for rape and forcible sodomy, with an enhancement for aggravating
circumstances (during commission of a burglary; multiple victims; tying and binding)
(Pen. Code, §§ 261, subd. (a)(2), 286, subd. (c)(2), 667.61, subd. (b)).1 Cotton has
also filed an accompanying habeas corpus petition. He was sentenced to state prison
for 28 years to life.
       The judgment is affirmed; the habeas corpus petition is denied.
                                   BACKGROUND
       On June 22, 1998, Cotton pled no contest in Los Angeles County Superior
Court case number PA0303612 to having committed a series of felony offenses against
multiple victims. Those offenses included: four counts of attempted rape committed
against four different victims; one count of rape with use of a deadly weapon
committed against a fifth victim; and, five counts of robbery committed against a sixth
victim and against four of the five sexual assault victims. Pursuant to a negotiated plea
bargain, Cotton was sentenced to a prison term of 25 years.
       On September 24, 2008, an information was filed in Los Angeles County
Superior Court case number PA059248, charging Cotton with having sexually
assaulted two additional victims around the same time he committed the 1998 crimes
to which he pled no contest. Cotton was now charged with having committed rape and
forcible oral copulation against Sheila C., and forcible sodomy against Linda R.
       As to Sheila C., the information pled an extension of the statute of limitations
under section 803, subdivision (g),3 alleging “the crimes of forcible oral copulation


1
       All further references are to the Penal Code unless otherwise specified.
2
       Another Los Angeles County Superior Court case, number PA030410, was
consolidated with case PA030361.
3
       Section 803, subdivision (g)(1) provides, in pertinent part: “Notwithstanding
any other limitation of time described in this chapter, a criminal complaint may be
filed within one year of the date on which the identity of the suspect is conclusively
established by DNA testing, if both of the following conditions are met: [¶] (A) The
                                            2
and forcible rape were committed on 03/16/98, . . . the biological evidence collected in
connection with the offense was analyzed for DNA type on 10/26/99, and . . . identity
was established by DNA testing on 08/07/06.” As to Linda R., the information pled
the same statute of limitations extension, alleging the crime had been “committed on
03/25/98, and the biological evidence collected in connection with the offense was
analyzed for DNA type on 10/26/99, and . . . identity was established by DNA testing
on 08/17/06.”
       Cotton moved to dismiss these new charges. One of his claims was that the
new charges were barred because the 1998 plea bargain agreement had been intended
to resolve the crimes against all of his victims, including Sheila C. and Linda R.
       On April 30, 2010, the trial court took testimony from Susan Mills, the deputy
district attorney who negotiated the 1998 plea bargain agreement. The trial court also
examined the reporter’s transcript from the 1998 proceeding at which Cotton entered
his no contest plea. That transcript included the following colloquy:
       “[Defense counsel]: Your Honor, just for the record, could I indicate we have
spent some time going over everything that’s been alleged, and I have advised
Mr. Cotton based on the circumstances, the police reports and the charges that have
been filed at this point, there was also the possibility of additional charges being filed
based on my review of the facts and my discussions with the district attorney’s office,
and certainly that was a fact they took into consideration in this decision.
       “The Court: The bargain is no additional charges will be filed?
       “[Defense counsel]: Yes, as relates to any of these crimes.
       “Ms. Mills: That’s right.” (Italics added.)




crime is one that is described in subdivision (c) of Section 290. [¶] (B) The offense
was committed prior to January 1, 2001, and biological evidence collected in
connection with the offense is analyzed for DNA type no later than January 1, 2004
. . . .” The felony complaint charging the offenses against Sheila C. and Linda R. was
filed on June 1, 2007.

                                             3
       At the hearing in 2010, Mills testified she had reviewed the 1998 transcript:
       “Q. And with regard to that, were there potentially additional charges that you
were considering adding as to the victims named in the complaint on your case?
       “A. Yes. Based on my review of the D.A. file and notes that I had contained in
the D.A. file, I was intending to add kidnapping charges to the . . . victims named in
the original complaint after the preliminary hearing.
       “Q. And as part of the disposition, then, was it contemplated that you would
not add additional charges as to those victims named in the complaint in your case?
       “A. Correct. I . . . would never say I’m not going to ever file charges against
other potential victims that might be out there.” (Italics added.)
       Mills also testified: “[M]y understanding from reading the file, it really wasn’t
clear back in that time period whether or not [Cotton] was connected [to the alleged
crimes against Sheila C. or Linda R.]. Other people had in fact disclaimed his
involvement and not been able to identify him . . . .” Mills asserted that if the plea
agreement had been intended to cover “other victims, it would have been specifically
spelled out in the plea. It would not be open to speculation as to what exactly was
meant by ‘these.’ ”
       Mills was questioned by the trial court:
       “A. My interpretation of ‘these crimes’ means the crimes involving the victims
named in the complaint, not any potential other possible crimes that the defendant may
have at some other point committed.
       “Q. Now, did you say earlier as a general statement that you would not have
been contemplating resolving potential charges involving other victims not mentioned
in that charging document. Is that right?
       “A. That’s correct, Your Honor.
       “Q. You want to explain what you mean by that?
       “A. It’s just beyond my comprehension that I could possibly think about stating
that I would never, ever file any other possible charges against a defendant, because it
could be the next day I find out that he committed murder and I’m going to be barred

                                            4
from charging that. I just would not do something like that. If I were going to exclude
the filing of additional charges regarding other victims, it would be specifically spelled
out in the plea agreement.”
       Mills testified that at the time of the plea agreement, Cotton had not been
definitively connected to any victims or crimes other than the ones named in the 1998
complaint.
       After hearing this testimony, the trial court denied Cotton’s motion to dismiss
the new charges. On June 27, 2011, Cotton pled no contest to one count of rape
against Sheila C. and one count of forcible sodomy against Linda R.
                                   CONTENTIONS
       1. The charges for sexually assaulting Sheila C. and Linda R. violated the
terms of Cotton’s 1998 plea bargain agreement.
       2. The new prosecution should have been dismissed for pre-charging delay.
                                     DISCUSSION
       1. The new prosecution was not barred by the 1998 plea bargain.
       Cotton contends he could not be prosecuted for assaulting Sheila C. and
Linda R. because those crimes were covered by the 1998 plea bargain agreement. This
claim is meritless.
                a. Proceedings below.
       In the trial court, Cotton argued the true meaning of the 1998 plea bargain
agreement could be gleaned from this exchange during the proceedings leading up to
his original no contest plea:
       “The Court: The bargain is no additional charges will be filed?
       “[Defense counsel]: Yes, as relates to any of these crimes.” (Italics added.)
       Cotton asserted the reference to “these crimes” demonstrates the parties
intended the agreement to encompass all the crimes arising out of his 1998 crime
spree. The trial court disagreed, concluding that could not have been the parties’
intention because, in 1998, the crimes against Sheila C. and Linda R. were still being
investigated.

                                            5
       As the trial court explained: “[I]t appears from the transcript of June 22nd of
1998 that there’s no indication that the attorneys were contemplating at that time that
all outstanding potential victims, including the two that are here before me in this
current case, would have been settled by way of that plea. . . . [¶] . . . [¶] . . . Sheila C.
and Linda R. were in the middle of their investigative phases at . . . the time of that
plea. They had no strong evidence that Mr. Cotton was the perpetrator of those
crimes. . . . And so I would say that the investigation of those two victims was not in
any sort of filing stage for a prosecution, let alone for a D.A. to contemplate folding
those two victims . . . into a complaint which was an 18-count complaint to begin with,
for the purpose of settling these two victims as part of that plea. It just doesn’t make
sense to me. In fact, there are statements within the transcript that advise me
otherwise.”
       As for the reference to “these crimes” during the plea-taking hearing, the trial
court concluded this had been intended to refer to “the 18 counts that were currently in
that complaint at the time. [¶] And that is corroborated by Ms. Mills, who testified
here . . . and provided her declaration. So on that score, I don’t believe that there’s a
strong argument to be made that there was . . . an expectation that those two victims
would have been resolved by way of that plea.”
               b. Legal principles.
       “When a guilty plea is entered in exchange for specified benefits such as the
dismissal of other counts or an agreed maximum punishment, both parties, including
the state, must abide by the terms of the agreement. . . . [¶] ‘ “[W]hen a plea rests in
any significant degree on a promise or agreement of the prosecutor, so that it can be
said to be part of the inducement or consideration, such promise must be fulfilled.”
[Citation.]’ ” (People v. Walker (1991) 54 Cal.3d 1013, 1024, disapproved on other
grounds in People v. Villalobos (2012) 54 Cal.4th 177.) “Not all terms of a plea
bargain have to be express; plea bargains may contain implied terms.” (People v.
Arata (2007) 151 Cal.App.4th 778, 787.)


                                               6
       “A negotiated plea agreement is a form of contract, and it is interpreted
according to general contract principles. [Citations.] ‘The fundamental goal of
contractual interpretation is to give effect to the mutual intention of the parties. (Civ.
Code, § 1636.) If contractual language is clear and explicit, it governs. (Civ. Code,
§ 1638.) On the other hand, “[i]f the terms of a promise are in any respect ambiguous
or uncertain, it must be interpreted in the sense in which the promisor believed, at the
time of making it, that the promisee understood it.” [Citations.]’ [Citation.] ‘The
mutual intention to which the courts give effect is determined by objective
manifestations of the parties’ intent, including the words used in the agreement, as
well as extrinsic evidence of such objective matters as the surrounding circumstances
under which the parties negotiated or entered into the contract; the object, nature and
subject matter of the contract; and the subsequent conduct of the parties.
[Citations.]’ ” (People v. Shelton (2006) 37 Cal.4th 759, 767.)
       “[T]he interpretation of contract provisions is . . . a legal issue subject to de
novo review, unless the contract is ambiguous and its interpretation turns upon the
credibility of witnesses or the resolution of factual disputes. [Citation.] If, however,
the essential facts necessary to interpret the contract are not in dispute, but give rise to
conflicting inferences, we are not bound to follow the trial court’s decision, and may
independently draw our own inferences. [Citation.]” (Arntz Builders v. City of
Berkeley (2008) 166 Cal.App.4th 276, 284-285.)
              c. Discussion.
       Cotton contends it had been his “understanding, and rightly so, that his 1998
[plea bargain agreement] was a bar to prosecution for the other crimes under
investigation for which he was a suspect.” He argues the Sheila C. and Linda R.
matters were no longer at the investigative stage by the time he pled no contest in 1998
because he was already the chief suspect. But this argument ignores the fact neither
Sheila C. nor Linda R. had been able to positively identify Cotton when shown a six-




                                             7
pack photo array containing his picture,4 despite the fact each victim had encountered
an unmasked assailant and conversed with him during the crime. Moreover, a review
of the 1998 trial court case files showed they did not contain the police reports relating
to the attacks on Linda R. and Sheila C.,5 which tended to demonstrate those crimes
were not being lumped together with the offenses included in the 1998 plea bargain
agreement.
       We conclude the record provides no support for Cotton’s assertion he
reasonably believed the 1998 plea bargain agreement covered his crimes against
Sheila C. and Linda R. The “these crimes” language on which Cotton pins his claim
does not appear necessarily ambiguous when read in context, nor does it make sense
the prosecutor would have been willing to forego unknown additional charges
involving different victims as part of the plea bargain. Thus, on the face of the
transcript it appears the parties had no intention of referring to the crimes against
Sheila C. and Linda R. when discussing the terms of the 1998 plea bargain. In



4
       A prosecutor told the trial court that Sheila C. could not identify Cotton in the
photo array, and that Linda R. circled Cotton’s picture and said, “He looks most like
the person.” But the prosecutor added: “So it was a tentative identification. However,
when shown other six-packs, she also pointed to three additional people and stated that
those also looked like the person who attacked her. So the record should be very clear
that her identification was less than tentative.”
5
        This review was done during the 2010 proceedings where the following
colloquy occurred: “The Court: . . . Part of the continuances in this case were to find
the original court files for these older cases for the purpose of seeing whether or not
the police reports relating to the two victims in our current case were in those files.
And so we had those files brought to court; and as I take it from argument at this point
or the representations, you’ve both reviewed the two files . . . [in] case No. PA030361
and case No. PA030410. And in neither of these files were there the police reports
that you’ve marked as defense exhibit C. [¶] Is that correct? [¶] [Defense counsel]:
That’s correct, Your Honor.” Defense counsel had apparently been told that Cotton’s
wife retrieved those police reports from the 1998 trial court files, but counsel
acknowledged there was no evidence to substantiate this claim. The trial court then
excluded the police reports from evidence.

                                             8
addition, as the trial court found, Deputy District Attorney Mills’s testimony
confirmed the logic of this conclusion.
       Hence, we agree with the trial court that the criminal charges filed against
Cotton for having sexually assaulted Sheila C. and Linda R. were not barred by his
1998 plea bargain.
       2. Claim of pre-charging delay was properly denied.
       Cotton contends this prosecution should have been dismissed because pre-
charging delay violated his due process rights. This claim is meritless.
              a. Background.
       In considering Cotton’s motion to dismiss the prosecution for pre-charging
delay, the trial court took testimony from Jennifer Francis, a criminalist with the Los
Angeles Police Department. Francis testified that in December 2005, a detective asked
to have the DNA sample from Linda R.’s case retested using STR analysis and
uploaded to the CODIS system. Francis testified this was done and that the sample
was then matched to Cotton. The following month, the detective asked to have
Sheila C.’s DNA typing retested using STR analysis and compared with Cotton’s
DNA profile. This was done and a match identifying Cotton was confirmed.6
       Francis also testified that, in 1998, rape kit evidence would have been analyzed
by a method known as DQ Alpha Poly Marker genetic testing, a more rudimentary
type of DNA analysis than is currently used. The modern CODIS database system,7

6
       It thus appears the original information filed in this case may have these dates
reversed, because it alleges Cotton was identified as the Linda R. perpetrator after
being identified as the Sheila C. perpetrator.
7
        CODIS refers to the FBI’s Combined DNA Index System. Section 295,
subdivision (g), provides: “The Department of Justice, through its DNA Laboratory,
shall be responsible for the management and administration of the state’s DNA and
Forensic Identification Database and Data Bank Program and for liaison with the
Federal Bureau of Investigation (FBI) regarding the state’s participation in a national
or international DNA database and data bank program such as the FBI’s Combined
DNA Index System (CODIS) that allows the storage and exchange of DNA records
submitted by state and local forensic DNA laboratories nationwide.”

                                            9
which is used to generate DNA cold case matches, operates with a different type of
DNA analysis, a method called STR. Francis testified the DQ Alpha Poly Marker
evidence in this case could not have been processed by the DNA databank in 1998:
        “Q. With respect to having any forensic evidence in this case uploaded into a
database, could the rape kits or the evidence included in the rape kits been uploaded
into CODIS on these two victims back in 1998?
        “A. No.
        “Q. Why?
        “A. My understanding is the actual type of DNA [? analysis] at the time, the
database for CODIS took STR’s. It did not take DQ Alpha. That’s my
understanding.”
        The trial court subsequently rejected Cotton’s claim of pre-charging delay after
“balancing an absence of a showing of prejudice with the justification for these
delays.” The court reasoned:
        “[W]hat I’m seeing here is, though there is some level of inactivity in acting on
certain leads, for example, some DNA leads, such as getting a court order to take
Mr. Cotton’s blood, which was not followed up on for some reason, I’m also looking
at the technology at the time, which is something you have to consider as you compare
it to today’s framework. Today you can literally put a person’s DNA into a CODIS
databank and get hits relatively quickly. . . . Back in 1998 it was a virtual infant in this
regard. In fact, the technology to upload information was so primitive that . . . the
L.A.P.D. itself was not in a position to even conduct their own analyses. They sent
them out to private labs, which was Cellmark at the time; and Cellmark was using Poly
Markers and DQ Alpha . . . . And those were not even uploadable into the database as
they are today with the STR’s and so on. It was just a whole different world back
then.
        “They didn’t have a clear picture of who committed these rapes. At the time,
Mr. Cotton was one of more than one suspect. I think the argument was made that he
was not the chief suspect. I don’t know if that’s the case or not, but it appeared from

                                            10
the information that was provided in this hearing that he was one of more than one
suspect.
       “And so, the People’s case at that time as to these two particular victims was
firmly in an investigative posture at the time of the pleas in this case and continued to
be until the DNA technology evolved to a point where they were able to get these cold
hits that are what bring this case back to us today.”
              b. Legal principles.
       “The due process clauses of the Fifth and Fourteenth Amendments to the
United States Constitution and article I, section 15 of the California Constitution
protect a defendant from the prejudicial effects of lengthy, unjustified delay between
the commission of a crime and the defendant’s arrest and charging. [Citations.]”
(People v. Cowan (2010) 50 Cal.4th 401, 430.)
       “[T]he right of due process . . . safeguard[s] a criminal defendant’s interest in
fair adjudication by preventing unjustified delays that weaken the defense through the
dimming of memories, the death or disappearance of witnesses, and the loss or
destruction of material physical evidence [citation]. [¶] A defendant seeking relief for
undue delay in filing charges must first demonstrate resulting prejudice, such as by
showing the loss of a material witness or other missing evidence, or fading memory
caused by the lapse of time. [Citation.] Prejudice to a defendant from precharging
delay is not presumed. [Citations.] In addition, although ‘under California law,
negligent, as well as purposeful, delay in bringing charges may, when accompanied by
a showing of prejudice, violate due process. . . . If the delay was merely negligent, a
greater showing of prejudice would be required to establish a due process violation.’
[Citation.] If the defendant establishes prejudice, the prosecution may offer
justification for the delay; the court considering a motion to dismiss then balances the
harm to the defendant against the justification for the delay. [Citation.] But if the
defendant fails to meet his or her burden of showing prejudice, there is no need to
determine whether the delay was justified. [Citations.]” (People v. Abel (2012)
53 Cal.4th 891, 908-909, fn. omitted.)

                                            11
       “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].” (People v. Cowan, supra, 50 Cal.4th at
p. 431.) “Prejudice is a factual question to be determined by the trial court.
[Citation.]” (People v. Hill (1984) 37 Cal.3d 491, 499.)
       As United States v. Lovasco (1977) 431 U.S. 783 [97 S.Ct. 2044], one of the
seminal cases analyzing pre-charging delay, explained: “It might be argued that once
the Government has assembled sufficient evidence to prove guilt beyond a reasonable
doubt, it should be constitutionally required to file charges promptly, even if its
investigation of the entire criminal transaction is not complete. Adopting such a rule,
however, would have many of the same consequences as adopting a rule requiring
immediate prosecution upon probable cause.” (Id. at p. 792.) Such a rule would
“cause numerous problems in those cases in which a criminal transaction involves
more than one person or more than one illegal act,” “pressure prosecutors into
resolving doubtful cases in favor of early -- and possibly unwarranted -- prosecutions,”
(id. at p. 793) and “preclude the Government from giving full consideration to the
desirability of not prosecuting in particular cases.” (Id. at p. 794.) “In our view,
investigative delay is fundamentally unlike delay undertaken by the Government
solely ‘to gain tactical advantage over the accused,’ [citation], precisely because
investigative delay is not so one-sided. Rather than deviating from elementary
standards of ‘fair play and decency,’ a prosecutor abides by them if he refuses to seek
indictments until he is completely satisfied that he should prosecute and will be able
promptly to establish guilt beyond a reasonable doubt. Penalizing prosecutors who
defer action for these reasons would subordinate the goal of ‘orderly expedition’ to
that of ‘mere speed,’ [citation]. This the Due Process Clause does not require. We
therefore hold that to prosecute a defendant following investigative delay does not
deprive him of due process, even if his defense might have been somewhat prejudiced
by the lapse of time.” (Id. at p. 795-796, fn. omitted, italics added.)


                                            12
              c. Discussion.
       Cotton contends this prosecution should have been dismissed because he was
prejudiced by a nine-year delay that had no legitimate justification. We cannot agree.
       Cotton argues he was prejudiced because, without the delay, he would have
been able to resolve these charges as part of the 1998 plea bargain agreement, thereby
reaping a sentencing benefit: “[I]n 1998, [Cotton] agreed to plead guilty to the charges
in an attempt to take care of all outstanding cases and serve a consolidated sentence,
with some charges meriting concurrent, rather than consecutive sentences. . . . He
agreed to a substantial period of incarceration (25 years) believing when he served his
sentence he would have ‘paid his debt to society.’ ” “The prosecution plea bargained
in that case, and there is no reason to believe they would not have bargained these
three counts as well. Moreover, the defendant could have gotten concurrent or stayed
sentences from the court.”
       These arguments are not persuasive. Cotton’s sentencing-benefit claim is
purely speculative, and we have already concluded (see Discussion section 1, ante) he
could not have reasonably believed the 1998 plea bargain covered the crimes he
committed against Sheila C. and Linda R.
       Cotton also argues the delay caused witness unavailability, the loss of physical
evidence, and memory lapses. He asserts, “It is likely that the people who preserved
evidence (prints, DNA materials, etc.) are no longer available to testify. Scientific
samples have degraded over the years. Witnesses as to this defendant’s whereabouts
on the days in question are gone from his memory. After all this time . . . the
defendant does not know where he was or what he was doing or who he was with on
the day Linda R. and Sheila C. were raped.”
       But Cotton fails to specify what particular physical evidence has been damaged,
or which particular witnesses are now unavailable. (See, e.g., People v. Cowan, supra,
50 Cal.4th at pp. 431-435 [multiple specified witnesses alleged to have lost memories;
specified physical evidence alleged to have been lost or destroyed]; People v. Catlin
(2001) 26 Cal.4th 81, 108 [two named witnesses died before trial; specific records

                                           13
allegedly lost; specific evidence allegedly destroyed].) Hence, Cotton’s entirely
abstract assertions, i.e., “it is likely witnesses will be unavailable,” do not demonstrate
prejudice. As for Cotton’s claim of personal memory loss, it is so vague as to be
nearly weightless; his “ ‘bare statement’ of inability to recall ‘realistically cannot be
considered more than minimal prejudice.’ ” (People v. Cowan, supra, 50 Cal.4th at
p. 432.)
       Regarding justification for the delay, the trial court properly concluded Cotton’s
identity as the perpetrator of the assaults against Sheila C. and Linda R. had not been
firmly established until 2006 when the DNA cold hit match was made. Before that
time, Cotton had just been one of several possible suspects and neither victim had been
able to positively identify him from a photo array.
       We might question the trial court’s apparent conclusion the delay was
essentially due to the 1998 limitations in forensic science, i.e., the inability to upload
the rape kit DNA into the CODIS system until years later. Cotton argues a DNA
match could have been made in 1998 if the rape kit evidence had been directly
compared to a sample of his blood. But this does not help Cotton’s claim of pre-
charging delay; a failure to immediately follow up on the blood sample investigation is
precisely the kind of discretionary choice the courts have left to the police and
prosecutors.
       As our Supreme Court has explained in People v. Nelson (2008) 43 Cal.4th
1242: “Defendant argues that the DNA technology used here existed years before law
enforcement agencies made the comparison in this case and that, therefore, the
comparison could have, and should have, been made sooner than it actually was.
Thus, he argues, the state’s failure to make the comparison until 2002 was negligent.
We disagree. A court may not find negligence by second-guessing how the state
allocates its resources or how law enforcement agencies could have investigated a
given case. ‘[T]he necessity of allocating prosecutorial resources may cause delays
valid under the Lovasco analysis. [Citation.] Thus, the difficulty in allocating scarce
prosecutorial resources (as opposed to clearly intentional or negligent conduct) [is] a

                                            14
valid justification for delay . . . .’ [Citation.] It is not enough for a defendant to argue
that if the prosecutorial agencies had made his or her case a higher priority or had
done things a bit differently they would have solved the case sooner.” (Id. at pp. 1256-
1257, italics added.)
       Finally, Cotton implies there was an improper, non-investigative reason for the
delay by asserting: “It was no accident that the cases are brought now, as the
defendant’s prison sentence is expiring.” But even if true, this would not mean the
People intended ever since 1998 to hold this prosecution in reserve just to be able to
extend Cotton’s time in prison. In any event, Cotton’s suggestion is not supported by
any evidence and remains entirely speculative. It cannot overcome the substantial
evidence showing that what occurred here was simply an investigative delay because,
in 1998, it was not entirely clear Cotton was the perpetrator.
       We agree with the Attorney General that, at most, Cotton has presented only a
weak showing of prejudice which is easily outweighed by justifiable investigative
delay. “[T]o prosecute a defendant following investigative delay does not deprive him
of due process, even if his defense might have been somewhat prejudiced by the lapse
of time.” (United States v. Lovasco, supra, 431 U.S. at p. 796, italics added.)
Therefore, we conclude the trial court did not abuse its discretion by refusing to
dismiss this case for pre-charging delay. (See People v. Cowan, supra, 50 Cal.4th at
p. 431.)8




8
       Given our conclusions, we also deny Cotton’s habeas corpus petition.

                                             15
                                 DISPOSITION
     The judgment is affirmed. The petition for writ of habeas corpus is denied.
     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                              KLEIN, P. J.


We concur:




             KITCHING, J.




             ALDRICH, J.




                                        16
