Opinion
A118368
4-15-2008
THE PEOPLE, Plaintiff and Respondent, v. OSCAR MUNOZ SAMANIEGO, Defendant and Appellant.
NOT TO BE PUBLISHED
Counsel for defendant Oscar Munoz Samaniego has filed an opening brief in which he raises no issues and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436. Counsel represents defendant has been apprised of his right to file a supplemental brief. Defendant has not filed a brief. We have conducted the review requested by counsel, and finding no arguable issues, affirm the judgment.
DISCUSSION
On October 20, 2005, defendant was stopped for a Vehicle Code violation. He displayed signs of alcohol intoxication and failed field sobriety tests. At that time, authorities determined defendant was on parole. Defendant was arrested for driving under the influence. He was transported to the police station, and then to a hospital after it was determined he was suffering complications from diabetes. A blood test administered at the hospital indicated defendants blood alcohol level was . 19 percent. On October 25, 2005, defendants parole was revoked. He was sentenced to eight months in state prison, served four months and was released on February 22, 2006. On March 29, 2006, defendant was charged with unlawfully driving a vehicle while under the influence and combined influence of an alcoholic beverage and a drug while having suffered three prior convictions within the previous 10 years (Veh. Code, §§ 23152, subd. (a)); 23550.5), driving a vehicle while having a blood alcohol level of 0.08 percent or greater while having suffered three prior convictions within the previous 10 years (Veh. Code, §§ 23152, subd. (b); 23550.5), and driving at a time when his driving privilege had been suspended or revoked for driving under the influence of an alcoholic beverage and a drug, a misdemeanor (Veh. Code, § 14601.2, subd. (a)).
Police obtained an arrest warrant on April 1, 2006, but did not serve it on defendant until December 8, 2006. Defendant moved to dismiss the accusatory pleading, contending the delay in holding him to answer for the charges violated his right to a speedy trial. Defendant asserted he had believed he had served time for those crimes as part of the sentence imposed after his parole was revoked. Both the state and federal Constitutions guarantee criminal defendants the right to a speedy trial. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) The federal right does not attach until an indictment or information has been filed; i.e., until the defendant has become "an accused"; i.e., it does not attach upon the filing of a felony complaint. (People v. Martinez (2000) 22 Cal.4th 750, 758, 763, 765.) The state right arises upon the filing of a felony complaint. (People v. Lowe (2007) 40 Cal.4th 937, 942 (Lowe).) Here, defendant was not under restraint in connection with the charges until he was arrested in December 2006. His federal right to a speedy trial, therefore, was not implicated until that time and could not provide a basis for dismissing the charges against him.
In connection with the state right, the defense has the burden of showing prejudice resulting from the delay. If it does so, the prosecution is required to show a justification for the delay, and the trial court, ruling on the motion, balances the prejudice against the justification. (Lowe, supra, 40 Cal.4th at p. 942.) Defendant here, in attempting to meet his burden of showing prejudice, claimed the delay caused him to lose track of a woman who had been with him prior to arrest, who knew what alcohol he had consumed and what he had eaten. Defendants general claim that he lost track of a witness could not support a claim of prejudice, particularly in the absence of any allegations as to defendants attempts to locate her. (See People v. Sahagun (1979) 89 Cal.App.3d 1, 23-24.) Defendant also, citing People v. Martinez (1995) 37 Cal.App.4th 1589, 1595, complained he had lost the opportunity to serve concurrent sentences. The Supreme Court in Lowe disapproved Martinez, holding a defendant may not meet the burden of showing prejudice by claiming a lost opportunity to serve concurrent terms. (Lowe, supra, 40 Cal.4th at p. 946.) That defendant may have lost such a right, accordingly, did not suffice to shift the burden to the prosecution to establish a justification for the delay. The trial court, therefore, properly denied defendants motion.
On May 15, 2007, as part of a negotiated plea, defendant signed a waiver form and pleaded no contest to unlawfully driving a vehicle while under the influence and combined influence of an alcoholic beverage and having suffered three prior convictions within the previous 10 years. The other charges were dismissed. Defendant also admitted he had violated probation, and the court therefore properly reinstated probation but terminated it as unsuccessful. By pleading guilty to the charges, defendant admitted the sufficiency of the evidence establishing the charged offenses, and therefore is not entitled to review of any issue that merely goes to the question of his guilt or innocence. (People v. Hunter (2002) 100 Cal.App.4th 37, 42.) Defendant sought and obtained a certificate of probable cause, allowing him to raise the issue of the effective assistance of counsel. The record reveals no basis for a claim of ineffective assistance of counsel, however, as defendant was represented by private counsel, who provided competent representation, raising and arguing defendants speedy trial rights and obtaining a favorable negotiated plea bargain notwithstanding that the evidence against his client was overwhelming. The court ensured defendants plea was voluntary, questioning him about it in open court, and accepting the waiver form, which recited all the rights defendant was waiving, and which defendant filled out and initialed at all the appropriate places. Defendants attorney agreed there was a factual basis for the plea, and the evidence fully supports defendants admissions.
Defendant waived time for sentencing. The court then sentenced him, in accordance with the negotiated plea, to the midterm of two years for the offense and awarded him 240 days credits. The sentence and credits were those agreed on as part of the plea bargain. The court properly ordered defendant to pay a $1,651 fine, $200 restitution fine, a $200 parole revocation fine (suspended) and a $20 court security fee. (Pen. Code, §§ 1202.4, subd. (b)(1) & 1202.45; 1463.13; 1463.14; subd. (a); 1463.16, subd. (a); 1463.25; 465.8, subd. (a)(1); Govt. Code, §§ 70372, subd. (a); 76104.6; 76104.7; 76000.5; Veh. Code, §§ 42006; 23196.) The court properly ordered defendant to provide samples and specimens. (Pen. Code, § 296, subd. (a).)
CONCLUSION
In sum, we have thoroughly reviewed the record and find no arguable issues. While we have selected certain matters for discussion, we have scrutinized the record in its entirety. There are no issues requiring further briefing.
The judgment is affirmed.
We concur:
MARCHIANO, P. J.
SWAGER, J.