Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County., Ct. No. VCF187692, Darryl B. Ferguson, Judge.
Jai M. Gohel and W. Gordon Kaupp, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Kathleen A. McKenna and Sarah J. Jacobs, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Ardaiz, P.J.
The trial court, sitting without a jury, found appellant guilty of transportation of psilocybin (Health & Saf. Code, § 11379, subd. (a); count 1), possession of psilocybin for purposes of sale (Health & Saf. Code, § 11378; count 2), transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a); count 3), possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 4), being under the influence of methamphetamine while in the immediate personal possession of a loaded, operable firearm (Health & Saf. Code, § 11550, subd. (e); count 5), possession of oxycodone (Health & Saf. Code, § 11350, subd. (a); count 6), and the misdemeanor offenses of transporting not more than 28.5 grams of marijuana (Health & Saf. Code, § 11360, subd. (b); count 7), and driving while under the influence of an alcoholic beverage or drug (Veh. Code, § 23152, subd. (a); count 8). Special allegations that appellant committed the count 1 and count 2 offenses while personally armed with a firearm (Pen. Code, § 12022, subd. (c)) were also found by the court to be true.
Appellant agreed to allow the superior court to decide appellant’s case on the basis of testimony presented at his May 5, 2008 preliminary hearing and at his unsuccessful August 25, 2008 motion to suppress evidence, and also on the basis of various other facts contained in a written stipulation of the parties. Among these stipulated facts were that various substances (found on appellant’s person and in his rented vehicle at the time of his arrest) were examined and found to be methamphetamine, psilocybin and marijuana, all in particularly stated amounts, and that a urine sample taken from appellant tested positive for amphetamines and methamphetamines. The parties appear to have reached this agreement at least in part on the basis of an “indicated” sentence, which was the sentence the court ultimately imposed. Appellant presented no additional evidence and no argument in his defense. The parties refer to this procedure as a “slow plea” (see People v. Wright (1987) 43 Cal.3d 487, 495-497), apparently so named because when the defendant’s guilt is apparent on the basis of the evidence the parties have agreed to have the court consider, “‘conviction [is] a foregone conclusion if no defense [is] offered.’” (Id. at p. 497.) Although the California Supreme Court has determined that certain procedural safeguards (not in issue on this appeal) should be utilized when a slow plea procedure is used (see Bunnell v. Superior Court (1975) 13 Cal.3d 592), a slow plea is not actually a guilty plea. “[E]ven a bargained-for submission is not a plea of guilty.” (Bunnell, supra, 13 Cal.4th at p. 602, fn. 4.) “[T]he defendant who submits his cause on the transcript does not give up his right to any trial, only to a jury trial.…” (Id. at p. 604.)
The court sentenced appellant to a total state prison term of 11 years, but suspended execution of the sentence for three years, which was fixed as a term of probation, with the probation subject to various terms and conditions including 95 days in the county jail.
APPELLANT’S CONTENTIONS
Appellant contends that the court erred in denying three of his pretrial motions: (1) a motion to “compel discovery” and for “discovery sanctions pursuant to Trombetta/Youngblood;” (2) a motion to suppress evidence; and (3) a motion to dismiss the first amended information for “pre-accusation delay” and to dismiss counts 7 and 8 for violation of the statute of limitations. Respondent concedes that the court should have granted the dismissal of counts 7 and 8 (the misdemeanors) on the third motion due to the statute of limitations. The concession is well taken. With exceptions not applicable here, “prosecution for an offense not punishable by death or imprisonment in the state prison shall be commenced within one year after commission of the offense.” (Pen. Code, § 802, subd. (a).) Appellant’s misdemeanor offenses were alleged to have occurred on May 22, 2005, and he was not charged until more than two years later on July 25, 2007. As we shall explain, however, we find all of appellant’s other contentions to be without merit.
California v. Trombetta (1984) 467 U.S. 479; Arizona v. Youngblood (1988) 488 U.S. 51.
FACTS
On the morning of May 22, 2005, Deputy William Seymour of the Tulare County Sheriff’s Department noticed a white motor home make a left turn from a hotel parking lot onto Sierra Drive. In so doing, the motor home pulled out in front of another vehicle which was forced to swerve off the roadway and apply the brakes to avoid a collision. Officers attempted to make a traffic stop on the motor home, but it failed to yield for over two miles.
Deputy Seymour and Detective John Hamlin contacted appellant after the motor home stopped. They noticed appellant was sweating profusely, his hands were shaking, his pupils were dilated, and his pulse was rapid. Appellant went into the back living area of the motor home to retrieve his driver’s license. Because appellant failed to yield, and his symptoms were consistent with being under the influence of a controlled substance, Deputy Seymour asked appellant to step out of the motor home for officer safety reasons.
Detective Hamlin began a pat down search and felt a large bulge in both appellant’s pockets. When asked what was in his pockets, appellant initially stated “cash and stuff” but when asked again, appellant just shrugged and did not answer. Based on appellant’s symptoms and his actions, Detective Hamlin believed appellant was attempting to conceal narcotics. Detective Hamlin retrieved the bulge from appellant’s pocket and discovered it was a bag of hallucinogenic mushrooms. Appellant was then placed under arrest for being under the influence of a controlled substance and for possession of the hallucinogenic mushrooms. Officer’s also found an off-white crystal substance inside of a dollar bill, later determined to be methamphetamine, in appellant’s pockets.
Inside the motor home, officer’s found an operational, unregistered, and loaded nine-millimeter handgun and five large metal tanks containing nitrous oxide. Officers also found oxycodone, marijuana, and $660 inside the motor home. A urine sample confirmed that appellant was under the influence of methamphetamine.
I.
THE MOTION TO COMPEL DISCOVERY AND FOR SANCTIONS
A. Facts
Appellant’s crimes were committed on May 22, 2005. A June 7, 2005 Tulare County Sheriff’s Department supplemental report by Detective Zaragoza listed one of the items obtained in the search and investigation of appellant (item “24”) as: “Three 8 mm video cassettes on RV 20, 21 and 22 of May 2005. Surveillance van.” A criminal complaint was not filed against appellant until July 25, 2007. At appellant’s May 5, 2008 preliminary hearing Detective Hamlin testified that there was a Hell’s Angels event going on that weekend in Three Rivers. Detective Zaragoza testified that a surveillance camera had been set up to observe appellant’s RV (his rented recreational vehicle) for about three days, with the Sunday of appellant’s arrest being the third day. Zaragoza testified that he never viewed those tapes himself, and that he did not know where the tapes were as of the date of the preliminary hearing. Zaragoza himself did not conduct the surveillance. A September 13, 2007 report by a Detective Hallum was provided to the defense and stated: “The tapes in question were from a surveillance which occurred on 5-20-05 thru 5-22-05. The surveillance was on a Hell’s Angels gathering at the Holiday Inn in Three Rivers. I was detailed to operate the surveillance van and monitor and record the activity.[¶]... [¶] After the surveillance was completed the tapes were turned over to the Tulare County Gang Task Force and were not logged into evidence as they were not considered evidence.” In June of 2008 appellant filed his motion to compel production of the tapes or for dismissal of the case due to the failure of the prosecution to provide the tapes to the defense. The motion argued that “the loss or destruction of the three videotapes is highly suspicious and may have been done in bad faith.” The defense theory of the relevance of the tapes was that the tapes might have shown that appellant did not in fact make a dangerous entrance onto Sierra Drive when he drove his rented RV out of the hotel parking lot. Therefore, appellant argued, if there was no basis for the stop of appellant, he could make a successful motion to suppress all of the incriminating evidence found by the deputies when appellant’s vehicle was stopped.
At the hearing on the motion, the prosecutor told the court “We can’t find them [the tapes] anywhere” and “everybody I’ve talked to, no one knows where they’re at.” The prosecutor also told the court: “But I’d also note that Counsel indicated in his moving papers that the surveillance camera would have shown where the area where Detective Seymour testified was where he saw the Vehicle Code violation. And Detective Hallum, I’ve asked him, and he’s assured me that that surveillance camera never covered the roadway.” Appellant wished to call some officers to testify at the hearing, but he had no offer of proof that he had any witness who could testify that the tapes showed the roadway where the Vehicle Code violation occurred. When appellant filed his motion in June of 2008, he knew that the prosecution did not have the tapes. Appellant included with his motion his own June 17, 2008 declaration stating that he entered Sierra Drive “in a safe manner” and “did not cut off any pickup truck or other vehicle.” Appellant’s declaration further stated: “I believe any surveillance video which captured my driving as I drove out of the parking lot would show that I did not cut off any cars or otherwise violate any vehicle code laws.” The court told appellant: “If you provide me with a declaration from one of these officers that said that this camera from the location of the camera could have seen this stop, then I might reconsider. But right now I’m not going to put on a full evidentiary hearing on some speculation that this camera might have seen this stop.” The court denied the motion.
B. Analysis
“[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material to either guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” (Brady v. Maryland (1963) 373 U.S. 83, 87.) “A fair analysis of the holding in Brady indicates that implicit in the requirement of materiality is a concern that the suppressed evidence might have affected the outcome of the trial.” (United States v. Agurs (1976) 427 U.S. 97, 104.) “The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” (United States v. Bagley (1985) 473 U.S. 667, 682.) In California v. Trombetta, supra, 467 U.S. 479, the court found no violation of due process in the failure to preserve breath samples in a driving under the influence case. “[T]he Due Process Clause of the Fourteenth Amendment does not require that law enforcement agencies preserve breath samples in order to introduce the results of breath-analysis tests at trial.” (Id. at p. 491, fn. omitted.) “Whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect’s defense. To meet this standard of constitutional materiality..., evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” (Id. at pp. 488-489, fn. omitted.) Sanctions for a failure to preserve evidence are appropriate “only if then exculpatory value of the lost evidence was apparent to the police before its loss.” (People v. Medina (1990) 51 Cal.3d 870, 893; in accord, see also People v. Johnson (1989) 47 Cal.3d 1194, at pp. 1233-1234.)
In this case, appellant argues that the court erred in refusing to allow him “to conduct an evidentiary hearing.” Appellant had no evidence, however, that the lost tapes showed appellant’s entrance onto Sierra Drive. He had no witness who would so testify. His argument is based on the sheer speculation that one of the missing tapes would have shown his entrance onto Sierra Drive, and that the presumably depicted entrance would have corroborated his own declaration and would have contradicted Detective Seymour’s testimony about the manner in which appellant was driving the RV. This was not sufficient to show that the missing tapes had any exculpatory value.
Appellant’s reliance on Arizona v. Youngblood (1988) 488 U.S. 51 is likewise unavailing. Youngblood was a sexual assault case in which “the State had failed to preserve semen samples from the victim’s body and clothing.” (Id. at p. 52.) Youngblood dealt expressly with “the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.” (Id. at p. 57.) The court held that in this situation “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” (Id. at p. 58.) The Youngblood rule was applied again in Illinois v. Fisher (2004) 540 U.S. 544, where the lost item was a substance which had been tested (four times) and found to contain cocaine. The defendant in Fisher remained a fugitive for over 10 years, and by the time he was apprehended and prosecuted, the substance had been destroyed. “At most, respondent could hope that, had the evidence been preserved, a fifth test conducted on the substance would have exonerated him.” (Id. at p. 548.) “[T]he applicability of the bad-faith requirement in Youngblood depended not on the centrality of the contested evidence to the prosecution’s case or the defendant’s defense, but on the distinction between ‘material exculpatory” evidence and … ‘potentially useful’ evidence, and therefore Youngblood’s bad-faith requirement applies.” (Illinois. v. Fisher, supra, 540 U.S. at p. 549.) In the case presently before us, the videotapes were not something that “could have been subjected to tests, the results of which might have exonerated the defendant.” (Arizona v. Youngblood, supra, 488 U.S. at p. 57; Illinois v. Fisher, supra, 540 U.S. at p. 547.) Appellant had no evidence that the tapes contained any depiction of appellant’s RV entering Sierra Drive, and thus he had no evidence that they were material exculpatory evidence. There was no error.
II.
THE MOTION TO SUPPRESS EVIDENCE
A. Facts
At the hearing on appellant’s motion to suppress evidence, the People called Detective Seymour, who testified that appellant’s rented motor home turned left and southbound onto Sierra Drive from the Holiday Inn Express driveway, and a blue Dodge pickup also traveling southbound on Sierra Drive was forced to take evasive action to avoid colliding with the motor home. Because Seymour could not get directly behind appellant’s vehicle due to the single lane of traffic on Sierra Drive, he requested that another unit stop appellant’s vehicle for a violation of Vehicle Code section 28801. Another unit did so. Seymour then quickly arrived on the scene and saw that appellant was sweating, his hands were shaking, and his pupils appeared dilated. Detective Hamlin, who was also present, conducted a pat down of appellant and found him in possession of the psilocybin mushrooms and methamphetamine.
The court asked appellant’s counsel if appellant had any evidence to present. Appellant’s counsel replied: “No, your Honor. Submit.” Nor did appellant present any argument that the search of appellant was illegal. The court then denied the motion. The court pointed out that the traffic violation provided probable cause for the stop, that upon stopping appellant his objective symptoms (shaking, sweating, dilated eyes) of being under the influence justified a pat down, and that the discovery of the illegal mushrooms and methamphetamine on appellant’s person justified the further search of the vehicle.
B. Analysis
“The standard of appellate review of a trial court’s ruling on a motion to suppress is well established. We defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. [Citations.]” (People v. Glaser (1995) 11 Cal.4th 354, 362.) “[T]he power to judge the credibility of the witnesses, resolve any conflicts in testimony, weigh the evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor the exercise of that power, and the trial court’s findings on such matters, whether express or implied, must be upheld if they are supported by substantial evidence.” (People v. Lawler (1973) 9 Cal.3d 156, 160; in accord, see also People v. Leyba (1981) 29 Cal.3d 591, 596-597, People v. Loewen (1983) 35 Cal.3d 117, 123, and People v. Williams (1988) 45 Cal.3d 1268, 1301.)
“The Fourth Amendment of the United States Constitution, which is enforceable against the states as a component of the Fourteenth Amendment’s guaranty of due process of law (Mapp v. Ohio (1961) 367 U.S. 643...), provides in relevant part: ‘The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated....’ The United States Supreme Court has interpreted the Fourth Amendment as requiring state and federal courts to exclude evidence that government officials obtained in violation of the amendment’s protections. [Citation.]” (People v. Williams (1999) 20 Cal.4th 119, 125.)
Appellant’s brief, like his motion in the trial court, presents no argument whatsoever attempting to explain how he was subjected to an unreasonable search. On this basis alone his assertion that the court erred in denying his motion to suppress evidence fails. “‘It is well settled that all presumptions and intendments are in favor of supporting the judgment or order appealed from, and that an appellant has the burden of showing reversible error, and that, in the absence of such a showing, the judgment or order appealed from will be affirmed. [Citation.]’” (Walling v. Kimball (1941) 17 Cal.2d 364, 373.) Matters perfunctorily asserted without argument in support are not properly raised and need not be considered. (People v. Marshall (1990) 50 Cal.3d 907, 945, fn. 9; People v. Ashmus (1991) 54 Cal.3d 932, 985, fn. 15; People v. Williams (1997) 16 Cal.4th 153, 206.) Appellant has shown no error.
III.
THE MOTION TO DISMISS
A. Facts
Appellant’s crimes were committed on May 22, 2005. He says he was arrested on that date. He says nothing about the circumstances of his release, but he was apparently quickly released, and no criminal complaint was filed against him until more than two years later on July 25, 2007. An arrest warrant for appellant issued on that same date. Appellant was arraigned on August 2, 2007, and on that date or very shortly thereafter he was released on bail. His preliminary hearing was held on May 5, 2008. He was held to answer, and an information and first amended information were filed against him later that same month. His motion to compel discovery and for sanctions was filed on June 20, 2008, and was heard and denied on June 30, 2008. His motion to suppress evidence was filed on August 11, 2008, and was heard and denied on August 25, 2008. His motion to “dismiss information for violation of due process rights for pre-accusation delay” and to dismiss the misdemeanor counts for violation of the statute of limitations (this motion) was filed on October 7, 2008, and was heard and denied on October 28, 2008. He was subsequently found guilty by the court in the “slow plea” proceeding held on March 6, 2009, and was sentenced two months later.
The evidence presented by appellant on his motion to dismiss consisted primarily of his own declaration, which stated in pertinent part:
“3. Knowing that there was such a large police presence directly in front of me, I was very careful when I pulled the R.V. out of the parking lot, and when I took a left turn. When I did so, I did it in a safe manner. I did not cut off any pickup truck or any other vehicle. I believe any surveillance video which captured my driving as I drove out of the parking lot would show that I did not cut off any cars or otherwise violate any vehicle code laws.
“4. There were still numerous Hells Angel Motorcycle Club members, supporters and friends at the Holiday Inn Express when I left the parking lot just prior to my arrest, as the gathering was still going on.
“5. This arrest occurred about three years ago. My memory of the persons who came in and out of the R.V. and had access to the R.V. and its contents has faded over this time. If I was able to review the videotapes depicting persons coming into and out of the R.V., I believe my memory would be refreshed, and that this would aid me in identifying witnesses and other persons who would be of assistance in my defense of this case.”
Appellant also submitted a declaration of his counsel, Mr. Gohel, to which was attached various reports he had received in discovery and which stated in pertinent part:
“3. I had a licensed private investigator contract Cruise America, Inc., to determine the location of the Recreational Vehicle identified as being driven by my client on the date of arrest. He was informed that the R.V. was sold in April, 2006 to a private party. I would like to have inspected that vehicle to assist in my client’s defense, as the location of the contraband, and particularly the weapon, are important factors to defenses that may be presented at trial.”
At the outset of the hearing, appellant’s counsel explained “[j]ust if it wasn’t clear, and perhaps it wasn’t, from the People’s opposition papers, the claim that we’re making here is under California Constitution, for a pre-accusatory delay, it’s not a federal due process violation.” The court found “[t]here has been no actual showing of prejudice” and denied the motion.
B. Analysis
Article 1, section 15 of the California Constitution provides that “[t]he defendant in a criminal cause has the right to a speedy public trial” and also that “[p]ersons may not... be deprived of life, liberty, or property without due process of law.” “It is well established that the right to a speedy trial does not arise until after a prosecution is instituted against the accused, either under the state Constitution [citation], or under the federal Constitution [citation].” (People v. Wilson (1966) 239 Cal.App.2d 358, 364.) Pre-accusation delay thus does not implicate defendant’s right to a speedy trial, but “under certain circumstances an accused may be deprived of due process of the law, if the lapse of time between the alleged commission of the offense and the filing of the accusation makes it difficult or impossible for the accused to prepare his defense.” (People v. Wilson, supra, 239 Cal.App.2d at p. 365; People v. Archerd (1970) 3 Cal.3d 615, 640.) “[D]ue process is the appropriate test to be applied to a delay occurring after a crime is committed but before a formal complaint is filed or the defendant is arrested. But regardless of whether the defendant’s claim is based on a due process analysis or a right to a speedy trial not defined by statute, the test is the same, i.e., any prejudice to the defendant resulting from the delay must be weighed against justification for the delay.” (Scherling v. Superior Court (1978) 22 Cal.3d 493, 505, fn. omitted.) “‘In the balancing process, the defendant has the initial burden of showing some prejudice before the prosecution is required to offer any reason for the delay [citations]. The showing of prejudice requires some evidence and cannot be presumed. [Citations.]’” (People v. Morris (1988) 46 Cal.3d 1, 37; Garcia v. Superior Court (1984) 163 Cal.App.3d 148, 151.) “The showing of actual prejudice which the law requires must be supported by particular facts and not... by bare conclusionary statements.” (Crockett v. Superior Court (1975) 14 Cal.3d 433, 442; Serna v. Superior Court (1985) 40 Cal.3d 239, 250.)
It has been said that a “claim based upon 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; but see also People v. Boysen (2007) 165 Cal.App.4th 761, at pp. 775-776.) Appellant makes no claim here that any delay was undertaken to gain a tactical advantage, which perhaps explains why he makes his due process argument under the state Constitution only. Because “[t]he statute of limitations is usually considered the primary guarantee against bringing overly stale criminal charges” (People v. Archerd, supra, 3 Cal.3d at p. 639), claims of a denial of due process for pre-accusation delay are often seen in murder cases, where there is no statute of limitations. (See, e.g., People v. Nelson (2008) 43 Cal.4th 1242 (murder in 1976), People v. New (2008) 163 Cal.App.4th 442 (murder in 1973), People v. Boysen, supra, 165 Cal.App.4th 761 (murder in 1980), and People v. Catlin, supra, 26 Cal.4th 81 (1976 murder charged in 1985).
In People v. Catlin, supra, the court restated the applicable rule as follows: “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 the harm to the defendant against the justification for the delay.” (People v. Catlin, supra, 26 Cal.4th at p. 107.) With regard to the balancing process, the California Supreme Court has also recently stated: “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 difficulty in allocating scarce prosecutorial resources (as opposed to clearly intentional or negligent conduct) [is] a 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.” (People v. Nelson, supra, 43 Cal.4th at pp. 1256-1257.) Whether a defendant suffered prejudice from a delay is a factual question, and a trial court’s finding on that issue will be upheld if supported by substantial evidence. (People v. Dunn-Gonzalez (1996) 47 Cal.App.4th 899, 911-912; People v. Boysen, supra, 165 Cal.App.4th at p. 777; People v. Mirenda (2009) 174 Cal.App.4th 1313, 1330.) It is not clear whether the trial court’s actual balancing of prejudice to the defendant against the justification for the delay is reviewed de novo or for abuse of discretion (see People v. Catlin, supra, 26 Cal.4th at pp. 106-110 and People v. Nelson, supra, 43 Cal.4th at pp. 1249-1257). As we shall explain, however, under either standard the trial court here did not err in denying appellant’s motion to dismiss the felony charges for pre-accusation delay.
The trial court’s finding that appellant had suffered no prejudice is amply supported by the evidence. Appellant argues that the delay of more than two years between his initial arrest and the filing of charges against him was prejudicial because without this delay, the videotapes of the May 20, 21 and 22, 2005 surveillance of his rented RV would not have been lost. Even if we assume, without deciding the issue, that the tapes would not have been lost without the delay, appellant’s argument is premised on the unsupported assumption that the videotapes would have helped his defense. Psilocybin mushrooms (counts 1 and 2) were found in two different pockets of the clothes appellant was wearing. Methamphetamine (counts 3 and 4) was also found in a pocket of the clothes appellant was wearing. Appellant was observed by arresting officers to show symptoms of being under the influence, and his urine tested positive for amphetamines and methamphetamine. Appellant makes no attempt to explain how the surveillance videotape would assist him in the defense of any of these charges. Nor did he do so in the trial court. Nor did he actually even raise any defense in the trial court. At best, his “defense” was his unsuccessful contention, unsupported by any evidence except his own declaration, that he did not make an unsafe entry onto Sierra Road and that therefore the overwhelming evidence against him was illegally obtained. This “defense” failed when his motion to suppress was denied.
The oxycodone (count 6) and the gun were found in the RV. Appellant was the only person in the RV when it was stopped by the deputies. Even if we assume that knowledge of the identities of other persons who visited him in the RV over the three-day period would have been helpful to whatever appellant’s defense was, the court was not required to find prejudice to appellant from his vague and conclusory assertion that “[m]y memory of the persons who came in and out of the R.V. and had access to the R.V. and its contents has faded over this time.” (See Serna v. Superior Court, supra, 40 Cal.3d at p. 250.) Almost a year of “this time” (i.e., the period from his May 22, 2005 arrest to his June 18, 2008 declaration) occurred after he was charged on July 25, 2007, not before. A list of the names and phone numbers of other attendees at the Hell’s Angels rally was found in the RV when it was searched. A copy of it was provided to the defense in discovery. “[A] court could properly conclude that the minimal effort of reading the [police] reports in an attempt to refresh his memory would not be an unreasonable burden.” (Serna v. Superior Court, supra. 40 Cal.3d at p. 250.) Appellant’s declaration makes no assertion that someone else brought a gun and oxycodone to the RV and that appellant does not know or remember who that person was.
Appellant’s counsel’s declaration that he “would like to have inspected that vehicle to assist in my client’s defense” did not establish prejudice. The “location of the contraband, and particularly the weapon” were stated in the police reports. The gun, for example was located “in suspect motor home on shelf above the sink.” Also, this RV was not the only “2001 Ford Cutaway E450 Super Duty” to ever have existed. If the defense wanted to look at one, it could have done so. The defense was also provided with numerous pictures, which counsel’s declaration nowhere mentions.
The trial court also found that the delay “is not an excessive delay well within the statutory or statute of limitations for felonies.” The court added: “And the reason for the delay, well, there was a continued investigation. And the District Attorney should not file cases until they are ready to go.” The prosecutor explained that she had to wait for lab results on the testing of the suspected drugs, and pointed out that “a case involving mushrooms... is not commonly seen in these courts.” The court’s conclusion that any delay in this case was justified was correct. (See People v. Nelson, supra, 43 Cal.4th at pp. 1256-1257.) In this case, therefore, the court properly found no prejudice, and found justification for whatever minimal delay there was. The court did not err in denying appellant’s motion to dismiss as to the felony charges.
DISPOSITION
The matter is remanded to the superior court with directions to grant appellant’s motion to dismiss as to counts 7 and 8 only, and to amend its judgment accordingly. In all other respects, the judgment is affirmed.
WE CONCUR: Levy, J., Gomes, J.