Filed 4/20/15 P. v. Schoen CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 8.111.5.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                  2d Crim. No. B256627
                                                                          (Super. Ct. No. 2012040638)
     Plaintiff and Respondent,                                                 (Ventura County)

v.

RYAN ARIEL SCHOEN,

     Defendant and Appellant.



                   Ryan Ariel Schoen appeals his conviction by jury for felony driving under
the influence of alcohol or drugs (DUI) with a prior felony DUI conviction. (Veh. Code,
§§ 23550.5/23152, subd. (a).) The trial court found that it was appellant's fifth DUI
conviction in ten years and sentenced appellant to the upper term of three years state
prison. The court also revoked probation on a 2008 felony DUI conviction (Case No.
2008041523) and sentenced appellant to a consecutive two year term. Appellant argues
that he was denied the right to speedy trial. We affirm.
                                         Facts and Procedural History
                   On December 5, 2010, Park Rangers Brian Lincoln and Katharine Wilson
observed appellant driving on Las Posas Road. It was dark and raining. Appellant
crossed the double yellow line and drove about 200 feet on the wrong side of the road.
Appellant drifted back into his lane, drove over the fog line, and crossed over to the
wrong side of the road for a couple of seconds. When Ranger Lincoln activated his siren
and red lights, appellant jerked to the side of the road, stopped abruptly, and almost
caused a collision.
              Appellant's pupils were constricted and his speech was slow and slurred.
Appellant said there was "weed" in the vehicle and he had a glass pipe and marijuana on
his person. Another glass pipe with residue was in the center console and an empty bottle
of Oxycotin was on the back seat.
              After appellant failed the field sobriety tests, a California Highway Patrol
(CHP) officer arrived at the investigation scene. Ranger Lincoln told the officer that
appellant was displaying all the signs and symptoms of driving impairment but was zero
on the alcohol a preliminary alcohol screening device (PAS). The CHP officer took
appellant's pulse, checked his pupils and symptoms, and opined that appellant was under
the influence of drugs.
              Appellant was transported to the Ventura County Jail where he provided a
urine sample that tested positive for Noradiazepan, Oxazepam, Temazepam and
Alprazolam (CNS depressants), Oxycodone (an narcotic analgesic), and THC metabolite
(marijuana). Before appellant was booked, California Highway Patrol Officer Robert
Smith conducted a drug recognition exam (DRE) and determined that appellant was
under the influence of CNS depressants and narcotic analgesics.
              Following the arrest, appellant was remanded to custody in another case
where he was on parole. In 2013, while in parole violation custody , appellant served a
                                                                   1
Penal Code section 1381 demand to bring the DUI charge to trial. After the prosecution
filed a felony DUI complaint (Case No. 2010043253), appellant entered into a
negotiated plea for probation and 240 days jail. The sentencing judge, however, refused
to grant probation based on appellant's chronic DUI history and permitted appellant to
withdraw his plea.

1
 Penal Code section 1381 provides that a defendant serving a term in state prison or
county jail for more than 90 days, may serve a written demand that the new charge be
brought to trial within 90 days. (See People v. Gutierrez (1994) 30 Cal.App.4th 105,
109.)


                                             2
               The prosecution dismissed the complaint and filed a new felony DUI
complaint on August 30, 2013. (Case No. 2012040638.) At the January 22, 2014
preliminary hearing, appellant claimed the court lacked jurisdiction. Defense counsel
stated that appellant filed a section 1381 demand and "[t]he case was subsequently
dismissed. I've explained to Mr. Schoen that the district attorney does have the right to
refile the case. [Appellant] believes that the court lacks jurisdiction in this matter given
that the 1381 was followed by dismissal. I've explained to him that simply is not the
state of the law. But he [appellant] wants his objection to all these proceeding be made
known. With that, we're ready to proceed."
               The court noted the "objection to jurisdiction" for the record and
proceeded with the preliminary hearing. After appellant was held to answer he entered a
plea of not guilty and was tried and convicted on April 10, 2014, more than three years
after the arrest.
                                     Speedy Trial Claim
               Appellant argues that the three year, four month delay violated his right to
speedy trial which is protected by the federal and California Constitutions. (U.S. Const.,
6th Amend.; Cal. Const., art. I, § 15; People v. Martinez (2000) 22 Cal.4th 750, 768 [state
Constitution's due process and speedy trial guarantees converge to protect same
interests].) To prevail on the claim, the defendant must show that the delay caused
prejudice, whereupon the burden shifts to the prosecution to justify the delay. (People v.
Archerd (1970) 3 Cal.3d 615, 640.) The court then balances the harm against the
justification. (Jones v. Superior Court (1970) 3 Cal.3d 734, 740.) If the defendant does
not show actual prejudice, the court need not inquire into the justification for the delay.
(People v. Dunn-Gonzalez (2008) 47 Cal.App.4th 899, 911.) "Although the right to a
speedy trial is grounded in both the United States and California Constitutions [citations]
the timely refiling of charges once dismissed for denial of a speedy trial has been deemed
constitutionally permissible absent a showing by the accused of actual prejudice.
[Citations.]" (Crockett v. Superior Court (1975) 14 Cal.3d 433, 437.)



                                              3
              That is the case here. Appellant claimed the trial court lost "jurisdiction"
after the first complaint was dismissed, but that is not the law. (Ibid.) Appellant did not
object on speedy trial grounds in the refiled case and he and is precluded from raising the
issue for the first time on appeal. (People v. Wright (1990) 52 Cal.3d 367, 389; People v.
Wilson (1963) 60 Cal.2d 139, 146.)
                                      Actual Prejudice
              Waiver aside, appellant makes no showing that he was actually prejudiced
by the trial delay. Appellant contends that he was unable to defend against the DUI
charge due to the faded memories of the witnesses. The argument is not supported by the
record. The officers' testimony was based on reports prepared at the time of the arrest.
Rangers Lincoln and Wilson relied on their reports to refresh their recollection, were
cross-examined about discrepancies in the reports, and had little difficulty testifying
about the facts and circumstances of the arrest. (Evid. Code, § 771.)
              Appellant argues that Ranger Lincoln did not recall asking when appellant
last took his medication. But that was of no consequence and does not establish
prejudice. The urinalysis and testimony of the toxicologist established that appellant had
drugs in his system, the lifespan of the drugs, and the time it would take for each drug
effect to wear off. "The showing of actual prejudice which the law requires must be
supported by particular facts and not, as in this case, by bare conclusionary statements."
(Crockett v. Superior Court, supra, 14 Cal.3d at p. 442.)
              Appellant argues that CHP Officer Smith had limited recollection of an eye
convergence test and complains that the empty Oxycontin bottle and an inventory of the
                                 2
physical evidence were purged.       To prevail on a speedy trial claim there must be actual
prejudice, which is absent here. (People v. Martinez, supra, 22 Cal.4th at p. 770.)
Ranger Lincoln testified that the Oxycontin bottle was on the back seat and had
appellant's name on it. The glass smoking pipes were in the center console and on

2
 Ranger Lincoln stated that the California Department of Parks and Recreation purged
the items two years after the arrest.


                                              4
appellant's person. Appellant did not dispute it. The inventory list was not material to
appellant's guilt or innocence.
              Appellant's complaint about the eye convergence test is equally without
merit. When CHP Officer Smith conducted the drug recognition exam, appellant had a
droopy face, slow and slurred speech, and blood shot and watery eyes. It was
symptomatic of someone under the influence of CNS depressants and narcotic analgesics.
Officer Smith took appellant's pulse, measured his eye pupils, and had appellant perform
horizontal and vertical nystagmus tests and an eye convergence test. Officer Smith,
however, failed to list the eye convergence test in his report and, at trial, could not recall
how appellant performed.
              Appellant argues that it is unknown whether the eye convergence test was
exculpatory but that does not establish prejudice for purposes of a speedy trial violation.
                                                                   3
The showing of actual prejudice must be specific and complete. (See e.g., Serna v.
Superior Court (1985) 40 Cal.3d 239, 250.) Officer Smith testified there would be lack
of eye convergence (the ability to cross one's eyes) if the person was under the influence
of a CNS depressant but the same person would have eye convergence if under the
influence of a narcotic analgesic.
              Appellant was under the influence of both a CNS depressant and a narcotic
analgesic. There is no likelihood that a written report of the eye convergence test would
have benefited appellant or resulted in a more favorable verdict. Officer Smith, an
experienced DRE expert, opined that appellant was under the influence of a CNS
depressant and a narcotic analgesic and too drug impaired to safely operate a vehicle.
Officer Smith's expert testimony was corroborated by the urinalysis and toxicologist's


3
 A speedy trial claim based on the federal Constitution also requires a showing that the
delay was undertaken to gain a tactical advantage over the defendant. (People v. Catlin
(2001) 26 Cal.4th 81, 107.) Here the filing delay was an administrative oversight
because appellant was in custody on another matter. Appellant's trial attorney conceded
that the DUI complaint "fell through the cracks" and there was no bad faith by the
prosecution.


                                               5
testimony, appellant's driving pattern and physical symptoms, and the testimony of
Rangers Lincoln and Wilson.
                                 More Favorable Sentence
              Appellant argues that he lost the opportunity to obtain a concurrent or
                                                                        4
eight month consecutive sentence on the 2008 felony DUI conviction. (Case No.
2008041523.) But that is not a speedy trial violation. The constitutional right to speedy
trial does not require that a criminal complaint be dismissed because the trial delay cost
the defendant the chance to serve his sentence concurrently with a sentence in another
case. (See People v. Lowe (2007) 40 Cal.4th 937, 945.) Appellant was not eligible for a
concurrent sentence because the 2008 and 2010 DUIs were committed at different times
and places, had different objectives, and were independent of one another. (See Cal.
Rules of Court., rule 4.425 [listing criteria affecting concurrent or consecutive
sentences].) The trial court so found and awarded 270 days presentence custody credit
on the 2008 DUI conviction and 297 days presentence custody credit on the 2010 felony
DUI.
              "Even when concurrent sentences are permitted, they often are not imposed
because of the presence of certain aggravating factors. [Citation.]" (People v. Lowe,
supra, 40 Cal.4th at p. 946.) Here there were three aggravating factors and no mitigating
factors. Appellant committed the DUI while on probation, had an abysmal record with
numerous attempts at probation, and posed a considerable risk of harm to the public.
Appellant also had a case pending for failure to use an ignition interlock device and five
new arrests, including arrests for drug use and possession. The July 11, 2013 arrest for
public intoxication was remarkable. Appellant was staggering about, admitted taking

4
 The probation report states that the 2008 felony DUI conviction was based on a DUI
incident in which appellant was found slumped over the steering wheel of a vehicle,
stopped in a left-turn lane leading to the 118 freeway. Appellant was driving with a
suspended license and admitted consuming three alcoholic beverages, Xanax, Oxycontin,
and marijuana. Although appellant's blood alcohol content was below the legal limit, the
blood sample tested positive for alcohol, benzodiazepines, cocaine, opiates, and
cannaboids.


                                              6
morphine pills and Percocet pills, and was carrying 84 Oxycodone pills, 95 morphine
sulfate pills, and 39 Xanax pills.
              More telling is appellant's presentence statement. Appellant told the
probation officer that it was his fifth DUI, that he was driving on a suspended license
because the "bus system sucks," and that "[h]e can drive 'really good' after drinking" and
was "lucky 'some idiot' did not crash into him and blame him. . . " In the words of
defense counsel, appellant "basically shot himself in the foot again and again" and has
done everything to undermine himself.
              Appellant makes no showing that he was prejudiced by the trial delay, or
that but for the delay, it is reasonably likely he would have received a more favorable
sentence.
              The judgment is affirmed.
              NOT TO BE PUBLISHED.



                                          YEGAN, J.

We concur:


              GILBERT, P.J.


              PERREN, J




                                             7
                                Charles W. Campbell, Judge

                            Superior Court County of Ventura

                           ______________________________


             Angelina Borrello, 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, Senior Assistant Attorney General, Susan Sullivan
Pithey, Supervising Deputy Attorney General, Esther P. Kim, Deputy Attorney General,
for Plaintiff and Respondent.




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