Opinion
C083920
08-20-2018
THE PEOPLE, Plaintiff and Respondent, v. BRIAN JAMES CARTWRIGHT, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CM044271)
Following the denial of his motions to dismiss on speedy trial grounds, defendant Brian James Cartwright pleaded no contest to arson of an inhabited building and the trial court sentenced him to serve eight years in state prison. On appeal, he contends the trial court erred in denying his motion to dismiss. We affirm the judgment.
BACKGROUND
In 2014, the victim and defendant were friends; the victim allowed defendant to use his "property and residence." On August 6, 2014, someone set fire to the victim's home. In November 2014, the police interviewed defendant regarding the fire. Sometime shortly thereafter, the police obtained an arrest warrant, arrested defendant, booked him into the county jail, then released him.
On February 11, 2016, the People charged defendant with arson of an inhabited structure. On the following day a new arrest warrant was issued. On June 9, 2016, defendant was arrested a second time. The arresting officer took defendant to the hospital where he interviewed him. The officer asked defendant whether he started the fire; defendant said that "he may have thrown a cigarette while on the front porch of [the victim's] residence on the night of August 6, 2014, but, due to the lapse in time, he was not certain if he had done that or not."
Four months later, on July 12, 2016, the preliminary hearing took place and defendant was held to answer. On August 3, 2016, defendant pleaded not guilty. The People then filed an amended information alleging this was defendant's second strike offense and defendant was previously convicted of a serious felony.
On October 5, 2016, defendant filed a motion to dismiss the charge based on the violation of his rights to a speedy trial and due process. In support of the motion, defendant argued there was an unreasonable delay between the arson in August 2014 and the commencement of his prosecution in 2016. There was no justification for the delay, he argued, and he was prejudiced by the delay because witness memories were faded, witnesses favorable to defendant had moved, and critical evidence was gone.
The trial court denied defendant's motion, saying, "[i]n the event that defendant chooses to change his plea, the court is inclined to issue a certificate of probable cause if the defendant files an appeal regarding the court's denial of his [motion to dismiss]." Defendant later pleaded no contest to arson of an inhabited building and the trial court sentenced him to serve the upper term of eight years in state prison. The court dismissed the enhancement allegations and indicated it would issue a certificate of probable cause.
Defendant appealed with a certificate of probable cause.
DISCUSSION
Defendant contends the trial court's ruling on his motion to dismiss on speedy trial grounds was erroneous. However, "the cases are virtually uniform in holding that a claim of speedy trial violation--whether statutory or constitutional--does not survive a guilty plea" under Penal Code section 1237.5 (People v. Hernandez (1992) 6 Cal.App.4th 1355, 1357), and obtaining a certificate of probable cause does not render the issue cognizable on appeal. (Id. at p. 1361, citing People v. Kaanehe (1977) 19 Cal.3d 1, 9.) Moreover, defendant cannot, as he contends, preserve the issue with the assent of the trial court because we are not bound by any such agreement with the trial court. (Hernandez, at p. 1361.) We are "subject to the statutory limitations on our jurisdiction imposed by the Legislature and encompassed by [Penal Code] section 1237.5." (Id. at p. 1361.)
Defendant also contends he was denied due process by the delay in filing charges, and for that reason as well, the trial court erred in denying his motion to dismiss. Specifically, he argues he was prejudiced by the passage of time because it weakened his own memory so much that when he was interviewed by police in 2016, he could not remember whether he threw his cigarette off the porch to start the fire in 2014. Defendant did not, however, raise this argument in the trial court. Rather, he argued the passage of time was prejudicial because critical evidence no longer existed, witnesses' memories were faded, and witnesses favorable to defendant had moved. He cannot raise this new argument for the first time on appeal. (People v. Clark (1993) 5 Cal.4th 950, 988, fn. 13.)
DISPOSITION
The judgment is affirmed.
/s/_________
HOCH, J. We concur: /s/_________
RAYE, P. J. /s/_________
ROBIE, J.