Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FWV039654, Raymond L. Haight III, Judge. Affirmed with directions.
Kathleen Woods Novoa, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Peter Quon, Jr. and Chandra E. Appell, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
King, J.
Defendant and appellant Jaime Ramirez was convicted by a jury of charges arising from the possession of methamphetamine and unlawful possession of a firearm and ammunition. He contends he was denied his constitutional and statutory rights to a speedy trial and, if his attorney failed to preserve these rights, he was denied the effective assistance of counsel. The People dispute these contentions. Defendant further contends the court failed to hold a postsentencing hearing on the determination of sentence credits. Following the augmentation of the record at our request, however, it appears that the subsequent hearing was held and the sentence credits corrected, although an amended abstract of judgment was not filed. For the reasons that follow, we affirm the judgment and direct the court to file an amended abstract of judgment.
Defendant was convicted of possession of methamphetamine for sale (count 1; Health & Saf. Code, § 11378), possession of methamphetamine while armed with a firearm (count 2; Health & Saf. Code, § 11370.1, subd. (a)), possession of a firearm by a felon (count 3; Pen. Code, § 12021, subd. (a)(1)), unlawful possession of ammunition (count 4; Pen. Code, § 12316, subd. (b)(1)), possession of a controlled substance (count 6; Pen. Code, § 11379, subd. (a)), and possession of methamphetamine (count 7; Health & Saf. Code, § 11377, subd. (a)). All further statutory references are to the Penal Code unless otherwise indicated. In a bifurcated court trial, the court found true certain enhancement allegations. He was sentenced to 14 years in prison.
I. SUMMARY OF RELEVANT FACTS
On August 9, 2006, a police officer observed defendant driving without a seat belt and swerve into oncoming traffic. After stopping defendant and obtaining his permission to search the car, the officer found a glass pipe and methamphetamine in the center console area of the car. Defendant was placed under arrest. He was thereafter released on bail.
On September 18, 2006, defendant appeared in court for arraignment. The minute order for this hearing indicates he had been charged with violations of Health and Safety Code sections 11350, subdivision (a), and 11377, subdivision (a). However, no complaint had been filed. The court continued the hearing and ordered defendant to appear in court on October 25, 2006.
On September 28, 2006, the San Bernardino County District Attorney filed a complaint charging defendant with possessing methamphetamine and heroin. (Health & Saf. Code, §§ 11377, subd. (a), 11350, subd. (a).) This complaint was assigned case No. FWV039293.
Defendant was arraigned on these charges on October 25, 2006. He pled not guilty and waived time for his preliminary hearing to December 18, 2006. He was released on bond.
On November 3, 2006, defendant appeared for a prepreliminary hearing conference and again waived time for the preliminary hearing, this time until January 2, 2007.
On November 7, 2006, the district attorney filed a separate felony complaint against defendant (case No. FWV039654), alleging crimes arising from a consensual search of defendant’s residence on November 4, 2006. Defendant was charged in this complaint with possessing methamphetamine for sale and being a felon in possession of a firearm. (Health & Saf. Code, § 11378; Pen. Code, § 12021, subd. (a)(1).) He was arraigned on these charges on November 7, 2006, and placed in custody. At that time, the court set a preliminary hearing for November 20, 2006.
On November 13, 2006, defendant appeared in court on both of the pending cases. At that time, prepreliminary conferences in both cases were set for November 28, 2006. In case No. FWV039654, defendant waived time for a preliminary hearing and the court noted in a minute order that “[t]ime runs” on January 12, 2007.
Over the next five months, dates for the preliminary hearings on the two cases were continued numerous times, with defendant’s waivers noted in the record when made.
On February 2, 2007, a third felony complaint (case No. FWV0700027) was filed against defendant. The charges in this complaint arose from an incident that took place on October 7, 2006. In the new complaint, the district attorney alleged that defendant unlawfully possessed methamphetamine and was under the influence of amphetamine. (Health & Saf. Code, §§ 11377, subd. (a), 11550, subd. (a).) Defendant was arraigned on these charges on March 9, 2007. At a prepreliminary conference held on March 14, 2007, defendant waived time for the preliminary hearing to May 9, 2007. Defendant subsequently waived time for the preliminary hearing to May 29, 2007.
Preliminary hearings for each of the three cases were held on April 30, 2007. Following the hearings, defendant was ordered held over for trial in each case.
On May 7, 2007, separate informations were filed in defendant’s cases. On May 7, 2007, defendant’s retained counsel was relieved and new counsel was appointed for him. He was arraigned the following day. At that time, the court set the cases for jury trial to begin June 18, 2007. The court noted that defendant’s statutory time to be brought to trial would expire on July 9, 2007.
On June 1, 2007, defendant appeared for pretrial hearings. The record does not include a reporter’s transcription of the oral proceedings. Minute orders for the hearings recite that pretrial hearings were set for June 22, 2007, and jury trials set for July 16, 2007. The minute orders further state: “Set Last Date for Trial to 07/16/2007. [¶] Time waived for Trial; plus 30 days. [¶] Time waived to 08/15/2007.”
At the June 22, 2007, pretrial hearings, the court issued minute orders in each case, stating: “Existing dates confirmed. [¶]... [¶] Jury Trial set for 7/16/07.... [¶]... [¶] Time previously waived to 7/16/07 plus 30 days. [¶] Time runs on 08/15/2007.” Substantially identical statements are made in minute orders for pretrial hearings on June 29, 2007.
On July 13, 2007, the cases were called on the trial readiness calendar. The minute orders state: “Hearing continued to 07/18/2007.... (also set for Marsden Motion)[.]” They further note: “Time previously waived to 7/16/07 plus 30 days. [¶] Time runs on 08/15/2007.”
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
On July 18, 2007, after defendant withdrew his request for a Marsden hearing, the court stated that it had “nowhere to send” defendant’s cases. The court placed the cases on the recall calendar for July 27, 2007, and set the trial date for July 30, 2007.
On July 30, 2007, defendant’s cases were placed on the recall calendar for the following day. The next day, the cases were placed on the recall calendar for August 2, 2007.
On August 2, 2007, the prosecutor assigned to the case was in trial on another matter. The court recommended that the district attorney’s office assign the cases to a different prosecutor. The cases were placed on the recall calendar for August 13, 2007.
On August 14, 2007, based upon information from defense counsel and pursuant to section 1368, the court declared a doubt as to whether defendant was mentally competent to stand trial. The court then suspended criminal proceedings in each case pursuant to subdivision (c) of section 1368.
Section 1368, subdivision (a), provides: “If, during the pendency of an action and prior to judgment, a doubt arises in the mind of the judge as to the mental competence of the defendant, he or she shall state that doubt in the record and inquire of the attorney for the defendant whether, in the opinion of the attorney, the defendant is mentally competent....”
Section 1368, subdivision (c) provides: “Except as provided in Section 1368.1, when an order for a hearing into the present mental competence of the defendant has been issued, all proceedings in the criminal prosecution shall be suspended until the question of the present mental competence of the defendant has been determined.”
Forty-five days later, on September 28, 2007, the court determined that defendant was competent and reinstated the criminal proceedings. The court set a trial readiness conference for November 2, 2007, and a trial date of November 5, 2007.
During an appearance on the recall calendar on October 1, 2007, the court reiterated the November 5, 2007, trial date and noted that the statutory time to be brought to trial would expire on November 28, 2007.
On October 29, 2007, defendant’s trial dates were reset to November 13, 2007.
On November 9, 2007, the court granted the district attorney’s motion to consolidate the three cases. The district attorney filed its consolidated and first amended information that day.
On November 13, 2007, defendant’s counsel expressed renewed concern for defendant’s mental competency. The court again suspended criminal proceedings pursuant to section 1368.
Eighty days later, on February 1, 2008, the court found that defendant was mentally competent and reinstated criminal proceedings. The court suggested a trial date of March 17, 2008. Counsel for both sides indicated that the date was acceptable. The following colloquy then took place:
“THE COURT: So I am going to set the following dates then:... The jury trial date will be March 17th with a readiness date of March 14th... in this court.
“THE DEFENDANT: That’s too long.
“THE COURT: [Defendant], we have
“THE DEFENDANT: It’s too long.
“THE COURT: [Defendant], we have 60 days to proceed because there was a doubt declared as to your competency, so we actually suspended your criminal proceedings, so I’m giving you your right to a speedy trial and it’s within the statutory time, so you are going to be back on February 29th for pretrial with your jury trial date of March 17th. The last day for trial is April 1st, so it’s within the statutory time, sir
“[DEFENDANT’S COUNSEL]: All right. [¶] Thank you, Judge.”
The court’s minute order for March 17, 2008, includes the note: “DEFENDANT DOES NOT WANT TO WAIVE ANY MORE TIME AND WOULD RATHER TRAIL THE CASE DAY-TO-DAY.” The matter then trailed until March 20, 2008, when trial began.
II. ANALYSIS
A. Statutory Right to Speedy Trial Under Section 1382
Section 1382 provides a statutory speedy trial right that is “‘supplementary to and a construction of’” the speedy trial provisions of the federal Constitution and our state Constitution. (People v. Wilson (1963) 60 Cal.2d 139, 145.) Section 1382 mandates specific time frames within which a defendant must be brought to trial. (§ 1382, subd. (a).) In a felony case, trial must generally begin within 60 days of the defendant’s arraignment unless the defendant requests or consents to the setting of a trial date beyond the 60-day period. (§ 1382, subd. (a)(2), (a)(2)(B).) When the defendant requests or consents to a delayed trial date, the court must dismiss the case if the defendant is not brought to trial “on the date set for trial or within 10 days thereafter,” “unless good cause to the contrary is shown” or the defendant again requests or consents to a delayed trial date. (§ 1382, subd. (a), (a)(2)(B).)
A dismissal of a criminal case pursuant to section 1382 does not necessarily preclude the district attorney from reinstituting the same charges. Under what is known as the “two dismissal rule,” the dismissal of a case pursuant to section 1382 can preclude a further prosecution for the same felony offenses if the case had been previously dismissed pursuant to section 1382 or certain other statutes. (§ 1387, subd. (a); People v. Mason (2006) 140 Cal.App.4th 1190, 1198.)
In this case, defendant contends that the case was subject to dismissal under section 1382 when it was not brought to trial within 10 days after July 16, 2007. The June 1, 2007, minute order states: “Set Last Date for Trial to 07/16/2007. [¶] Time waived for Trial; plus 30 days. [¶] Time waived to 08/15/2007.” (We do not have a transcript of any oral proceedings for the June 1 hearing.) Defendant interprets this to mean that he waived his statutory speedy trial right up until (and not beyond) July 16, 2007, and that the court erroneously added 30 days to this time when it should have added no more than 10 days pursuant to section 1382. Indeed, if defendant consented to a trial date of July 16, 2007, and said nothing more, then the court was required to bring him to trial within 10 days after July 16, 2007, or July 26, 2007. This was not done.
Another interpretation of the minute order, and one we think is more plausible, is that defendant expressly waived time for trial to July 16, 2007, “plus 30 days.” This interpretation is consistent with the sentence in the minute order that reads: “Time waived to 08/15/2007.” If this occurred, then defendant’s argument fails. Prior to August 15, 2007, the proceedings were suspended when the court declared a doubt as to defendant’s competency to stand trial.
Even if defendant’s interpretation of the minute order is correct, we reject his argument. If the failure to bring the case to trial by July 26, 2007, might have been a basis for dismissing the case under section 1382, defendant waived the right to do so. In People v. Wilson, supra, 60 Cal.2d 139, our Supreme Court stated: “The right to a speedy trial must therefore be asserted, if at all, in the court where the prosecution is pending, and prior to the commencement of trial. [Citation.] It is too late to raise the point for the first time on appeal [citations].... [¶] The right to a speedy trial, furthermore, will be deemed waived unless the defendant both objects to the date set and thereafter files a timely motion to dismiss. Such a rule is the logical consequence of the fact that the objection and the motion to dismiss serve different purposes; and it is the rule laid down by the California decisions. To begin with, it is settled that ‘When a defendant fails to object at the time a cause is set for trial beyond the statutory period, consent is presumed.’... [Citations.] The twofold purpose of this requirement is well explained in People v. Lind (1924) 68 Cal.App. 575, 579 [229 P. 990]: ‘First, by calling the attention of the trial court to the facts upon which the objection is founded, it may serve to procure an earlier trial of the defendant and thus earlier end his durance or encompass his conviction. Second, the objection must be made as a forerunner to a motion to dismiss, for it has been uniformly determined that on appeal an order denying the motion will be affirmed if the record does not show that the objection was made.’ [Citations.]” (Id. at pp. 146-147.) The court recently reaffirmed these principles in Barsamyan v. Appellate Division of Superior Court (2008) 44 Cal.4th 960: “A waiver of statutory speedy trial rights occurs when defense counsel consents to or requests a delay in the proceedings. Consent may be express or implied [citation], and is inferred from silence. ‘[F]ailure of defendant or his counsel to make timely objection to a postponement constitutes implied consent to the postponement.’ [Citations.]” (Id. at pp. 969-970.)
These waiver principles apply here. On July 18, 2007—eight days before the expiration of the 10-day grace period—defendant and his counsel were present when the court announced that there was nowhere to send defendant’s case for trial and set a new trial date of July 30, 2007. Neither defendant nor his counsel made any objection to the setting of the new trial date. Nor did defendant or counsel object when, on August 2, 2007, the trial was subsequently reset for August 13, 2007. Moreover, defendant never moved to have the case dismissed under section 1382. He has therefore waived the claim on appeal.
Even if the claim had not been waived, defendant has failed to show prejudice. A defendant who seeks postconviction review of a denial of a statutory speedy trial “must prove prejudice flowing from the delay of trial[.]” (People v. Johnson (1980) 26 Cal.3d 557, 562.) “‘[O]nce a defendant has been tried and convicted, the state Constitution in article VI, section 13, forbids reversal for nonprejudicial error,’ and so on appeal from a judgment of conviction a defendant asserting a statutory speedy trial claim must show that the delay caused prejudice, even though the defendant would not be required to show prejudice on pretrial appellate review.” (People v. Martinez (2000) 22 Cal.4th 750, 769.)
Defendant concedes that “the only prejudice [he] can demonstrate is the failure of trial counsel to obtain a first dismissal of the charges.” Defendant does not refer us to any authority that supports a finding of prejudice for this reason. We do not find it persuasive. If defendant had obtained a dismissal of his case under section 1382, the district attorney could have simply filed a new information reinstating the same charges; the first dismissal would thus have had the likely effect of merely further delaying the date that defendant was brought to trial.
Defendant argues, however, that the “overcrowding in the courts in Riverside and San Bernardino County” might have caused the reinstituted proceeding to have been dismissed a second (and final) time for failure to bring him to trial within the 60 days prescribed by law. This argument is based upon speculation and does not support a finding of prejudice. Therefore, even if defendant had not waived his statutory speedy trial argument by failing to assert it below, we would reject the argument because he has failed to establish prejudice.
B. Ineffectiveness of Counsel for Failure to Move to Dismiss Under Section 1382
Defendant contends that his attorney’s failure to seek a first dismissal when the time for bringing defendant to trial expired deprived him of the effective assistance of counsel. We disagree.
In order to prove that defendant had ineffective assistance of counsel, defendant has the burden of establishing that: (1) counsel’s performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient performance resulted in prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) To prove that counsel’s performance was deficient, defendant must affirmatively show counsel’s deficiency involved a crucial issue which cannot be explained on the basis of any knowledgeable choice of tactics. (People v. Floyd (1970) 1 Cal.3d 694, 709, disapproved on another point in People v. Wheeler (1978) 22 Cal.3d 258, 287, fn. 36.) “[W]here counsel’s trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel’s acts or omissions.” (People v. Weaver (2001) 26 Cal.4th 876, 926.) “To establish prejudice, ‘[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ [Citations.] ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citation.]” (People v. Montoya (2007) 149 Cal.App.4th 1139, 1147.)
Defendant has not established either of the two prongs necessary to show ineffective assistance. First, it is conceivable that defendant’s trial counsel decided, as a tactical matter, not to seek the dismissal of the defendant’s cases after the 10-day grace period expired in July 2007 because it would have been only the first dismissal and it would not result in a final termination of proceedings against defendant. Indeed, as a practical matter, it would merely delay the date when the charges would eventually be tried.
For the same reasons that defendant failed to show prejudice set forth in the preceding section, he has failed to show that he was prejudiced for purposes of the right to the effective assistance of counsel.
C. Federal Constitutional Right to a Speedy Trial
The Sixth Amendment provides that an accused in a criminal proceeding “shall enjoy the right to a speedy and public trial....” (U.S. Const., 6th Amend.) “The speedy trial guarantee is designed to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges.” (United States v. MacDonald (1982) 456 U.S. 1, 8.) It is a “fundamental” right imposed on the states by the due process clause of the Fourteenth Amendment. (Barker v. Wingo (1972) 407 U.S. 514, 515 (Barker).)
To determine whether defendant’s federal constitutional right to a speedy trial was violated, courts evaluate the length of the delay, the reason for the delay, defendant’s assertion of his right, and the prejudice to defendant. (Barker, supra, 407 U.S. at p. 530; People v. Harrison (2005) 35 Cal.4th 208, 227.) Regarding this factor, the Barker court explained that the “length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.” (Barker, supra, at p. 530.) As the high court subsequently explained, the inquiry into the length of the delay “is actually a double enquiry. Simply to trigger a speedy trial analysis, an accused must allege that the interval between accusation and trial has crossed the threshold dividing ordinary from ‘presumptively prejudicial’ delay,... If the accused makes this showing, the court must then consider, as one factor among several, the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim. [Citation.] This latter enquiry is significant to the speedy trial analysis because... the presumption that pretrial delay has prejudiced the accused intensifies over time.” (Doggett v. United States (1992) 505 U.S. 647, 651-652; see also People v. Horning (2004) 34 Cal.4th 871, 892.)
In Doggett, the high court noted that “courts have generally found postaccusation delay ‘presumptively prejudicial’ at least as it approaches one year.” (Doggett v. United States, supra, 505 U.S. at p. 652, fn.1.) However, the length of delay that will trigger an inquiry into the Barker factors “is necessarily dependent upon the peculiar circumstances of the case.” (Barker, supra, 407 U.S. at pp. 530-531, fn. omitted.) For example, “the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.” (Id. at p. 531.)
Defendant argues that the delay in bringing him to trial was either 14 months (if measured from his arraignment on the initial complaint) or 10 months, if measured from the arraignment on the informations. The People respond to this point by referring only to the postinformation 10-month delay. We reject these views and hold that the Sixth Amendment right attached upon his arrest.
The federal constitutional right to a speedy trial attaches upon “the filing of an indictment, information, ‘or other formal charge,’ or when a suspect ‘has been arrested and held to answer.’ [Citation.]” (People v. Martinez, supra, 22 Cal.4th at p. 761, quoting United States v. Marion (1971) 404 U.S. 307, 321.) Although a felony complaint by itself is not such a “formal charge” (People v. Martinez, supra, at p. 764), being “held to answer” in this context includes the arrest of a defendant “unless the defendant is released without restraint or charges are dismissed” (id. at p. 762). A defendant is subject to “the actual restraints imposed by arrest and holding to answer a criminal charge,” for purposes of triggering the Sixth Amendment speedy trial guarantee even when he has been released on bond. (Id. at pp. 761-762 [discussing Dillingham v. United States (1975) 423 U.S. 64, 65]; People v. Martinez, supra, at p. 761 [same].)
Here, defendant was arrested on August 9, 2006. Our record does not disclose any activity related to defendant’s case between that date and September 18, 2006. On that latter date, he appeared for an arraignment on charges of unlawful possession of controlled substances, but no complaint had been filed and the arraignment hearing was continued to October 25, 2006. His custody status is described in the minute order of the hearing as “Bail Bond” and “Current Bail Bond Continued.” Ten days later, on September 28, 2006, the district attorney filed the initial felony complaint. He was arraigned on the complaint on October 25, 2006. The minute order of that hearing again describes his custody as “Bail Bond.”
Although our record is not perfectly clear as to defendant’s status following his arrest, it appears he was released on bail at some point after his arrest and required to appear in court on September 18, 2006, to be arraigned. Under the authorities cited above, the fact that he was out on bail following his arrest and required to appear in court on a date certain subjected defendant to restraints on his liberty sufficient to trigger the Sixth Amendment speedy trial guarantee. (See People v. Martinez, supra, 22 Cal.4th at pp. 761-762.) At no point following his arrest were the charges against him dismissed. It thus appears from our record that he was arrested and held to answer for purposes of the Sixth Amendment speedy trial guarantee on August 9, 2006. Defendant’s trial began 19 and one-half months later.
The charges against defendant are drug possession charges and one charge of being a felon in possession of a firearm. The trial took five days and involved the testimony of nine witnesses. It was not comparable to a “complex conspiracy” case. (Barker, supra, 407 U.S. at p. 531.) In light of the nature of the case, the length of the delay in getting defendant to trial is sufficient to trigger an inquiry into whether defendant’s federal constitutional speedy trial right was violated. (See United States v. Avalos (5th Cir. 1976) 541 F.2d 1100, 1111 [15-month delay in complex conspiracy case was sufficiently serious to consider Barker factors].)
The second Barker factor is the reasons for the delay. This factor was recently discussed in Vermont v. Brillon (2009) ___ U.S. ___ [129 S.Ct. 1283]: “Barker instructs that ‘different weights should be assigned to different reasons’ [citation], and in applying Barker, we have asked ‘whether the government or the criminal defendant is more to blame for th[e] delay.’ [Citation.] Deliberate delay ‘to hamper the defense’ weighs heavily against the prosecution. [Citation.] ‘[M]ore neutral reason[s] such as negligence or overcrowded courts’ weigh less heavily ‘but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.’ [Citation.] [¶] In contrast, delay caused by the defense weighs against the defendant: ‘[I]f delay is attributable to the defendant, then his waiver may be given effect under standard waiver doctrine.’ [Citations.] That rule accords with the reality that defendants may have incentives to employ delay as a ‘defense tactic’: delay may ‘work to the accused’s advantage’ because ‘witnesses may become unavailable or their memories may fade’ over time. [Citation.]” (Id. at p. ___ [129 S.Ct. at p. 1290].)
Because our record of the pretrial proceedings consists almost entirely of minute orders, we are told little of the reasons for most of the continuances and time waivers that occurred in this case. We can, however, infer reasons for some of the delays. On November 13, 2006, the case was called for a prepreliminary hearing on the first two complaints. Defendant appeared with retained counsel and his appointed counsel was relieved. At that time, the preliminary hearing dates of November 17, 2006 (in case No. FWV039293) and November 20, 2006 (in case No. FWV039654) were vacated and a new date of November 28, 2006, was set in both cases. We can infer from these minute orders that the preliminary hearing dates were postponed as a result of defendant’s retention of new counsel. Later, another delay resulted when defendant sought the removal of his retained counsel and the reappointment of a public defender. A further delay appears to have resulted when the trial readiness conference was continued when defendant indicated he wanted to make a Marsden motion. When the matter was called five days later, defendant withdrew his Marsden motion.
Other continuances, both before the preliminary hearings and afterward, were agreed to by defendant. Although the reasons for the continuances are not disclosed in the minute orders, defendant’s waiver of time indicates that he did not oppose the delays and suggests that he benefitted from the postponement.
The most significant delays in this case occurred when the proceedings were twice suspended to determine defendant’s competence to stand trial. The first suspension lasted 45 days; the second, 80 days. In both instances, the suspensions were prompted by defendant’s attorney when he informed the court of his doubt as to defendant’s competence to stand trial. The suspension of proceedings to determine competency is to protect the defendant’s due process rights. (See People v. Blair (2005) 36 Cal.4th 686, 711.) Under such circumstances, the delay inherent in the suspension does not weigh against the state in evaluating a speedy trial claim. (See Craft v. Superior Court (2006) 140 Cal.App.4th 1533, 1544 [the necessity of ascertaining a defendant’s competency is a reasonable bases for prolonging pretrial incarceration]; People v. Lohman (1970) 6 Cal.App.3d 760, 769 [delay for suspension to determine sanity did not deprive the defendant of his right to a speedy trial], disapproved on another point in People v. Allen (1999) 21 Cal.4th 846, 863, 866, fn. 21.)
The record does indicate that approximately four weeks of the delay—from July 18, 2007, through August 13, 2007—can be attributable to the lack of an available courtroom and possibly to the prosecutor’s unavailability while he was in trial on another matter.
Based on our review of the record, the delays in getting the case to trial appear to be attributable primarily to defendant’s actions, with his consent, or for his benefit. To the extent that delays were caused by the prosecutor or the court, the reasons for such delays are not weighted heavily. (Barker, supra, 407 U.S. at p. 531.) Moreover, there is nothing in the record indicating “[a] deliberate attempt to delay the trial in order to hamper the defense[.]” (Ibid.) Accordingly, consideration of the reasons for the delay weighs in favor of finding no denial of defendant’s federal speedy trial guarantee.
Regarding the third Barker factor, the defendant’s assertion of the right to a speedy trial, the high court stated: “Whether and how a defendant asserts his right is closely related to the other factors we have mentioned. The strength of [a defendant’s] efforts will be affected by the length of the delay, to some extent by the reason for the delay, and most particularly by the personal prejudice, which is not always readily identifiable, that he experiences. The more serious the deprivation, the more likely a defendant is to complain. The defendant’s assertion of his speedy trial right, then, is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right. We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.” (Barker, supra, 407 U.S. at pp. 531-532.)
Here, the first time defendant said anything that could be construed as an assertion of his right to a speedy trial was on February 1, 2008. On that date, the court declared defendant competent to stand trial and set a trial date of March 17, 2008. Defendant said, “That’s too long.” The court correctly informed defendant that the trial date was within the time required by statute for bringing a case to trial following the reinstitution of proceedings. (See § 1382, subd. (a) [60 days to bring case to trial following reinstatement of proceedings].) On March 17, 2008, the matter was called for trial and then trailed for three days. Trial began on March 20, 2008. If defendant’s statement that the time to trial was “too long” constituted the invocation of his right to a speedy trial under the Constitution, its effect is limited because the defendant was thereafter brought to trial without any further significant delay.
The final Barker factor is prejudice from the delay. (See Barker, supra, 407 U.S. at p. 532.) Defendant concedes he cannot make any showing that any delay caused the loss of evidence, witnesses, or memories. Indeed, there is nothing in the record to indicate that the delay impaired him in preparing his case for trial in any way. He points only to the assertion that “he was entitled to a first dismissal of the charges against him.” As explained above, however, such prejudice is conjectural at best.
Defendant points out that particularized instances of prejudice need not necessarily be shown when the length of the delay itself is presumptively prejudicial. (See, e.g., Doggett v. United States, supra, 505 U.S. at p. 654.) Nevertheless, the failure to identify any impairment of the defense weighs strongly against finding a violation of the Sixth Amendment speedy trial guarantee.
Viewing the record in its entirety and balancing the four Barker factors—the 19 months from arrest to trial, the discernible reasons for the delay, the vague assertion of the right to a speedy trial, and the lack of evidence of prejudice—we conclude that defendant was not deprived of his federal constitutional right to a speedy trial.
D. State Constitutional Right to Speedy Trial
Article I, section 29 of our Constitution declares that: “In a criminal case, the people of the State of California have the right to due process of law and to a speedy and public trial.” In contrast to the federal constitutional guarantee, the California constitutional speedy trial right requires a defendant to first sustain the burden of showing that prejudice was caused by the delay. (People v. Lowe (2007) 40 Cal.4th 937, 942.) If the defendant “satisfies this burden, the prosecution must show justification for the delay. If the prosecution does that, the trial court must balance the prejudice to the defendant resulting from the delay against the prosecution’s justification for the delay.” (Ibid.) As explained above, defendant has not shown any cognizable prejudice for purposes of the state constitutional right to a speedy trial. We therefore reject this claim.
E. Sentencing Credits
At the sentencing hearing on June 2, 2008, defense counsel asserted that the amount of credits in the probation report was inaccurate and requested a hearing to determine the credits. The prosecutor agreed. The court then pronounced sentence. As to credits, the court stated: “[W]ithout prejudice, 577 actual, 228 conduct for a total of 865 days credit for time served.” The court then set a hearing date of June 30, 2008, on the issue of the credits for time served. The abstract of judgment filed on June 4, 2008, indicates 865 days for time served.
In his opening brief, defendant argued that the trial court failed to hold the hearing it ordered for June 30, 2008, and that we must direct the court to do so. The People agreed. Indeed, the clerk’s transcript and reporter’s transcript initially supplied to us and to the parties does not disclose that the subsequent hearing was ever held.
On our own motion, we ordered that the record be augmented to include a reporter’s transcript of oral proceedings in this case on June 30, 2008, and a clerk’s transcript of the minutes of the proceedings and any new or amended abstract of judgment filed as a result of such proceedings. We further ordered that the parties may file a supplemental letter brief with respect to issues raised by the augmentation.
The record was thereafter augmented to include a reporter’s transcript of the hearing on June 30, 2008, and a clerk’s transcript that includes a minute order of the proceeding. According to these transcripts, the court ordered that defendant be credited with a total of 871 days for time served (581 actual days and 290 days for conduct)—six more than the amount previously credited. The court clerk was directed to prepare an abstract of judgment and forward it to the Department of Corrections and Rehabilitation.
The augmented clerk’s transcript also includes an affidavit from a deputy clerk of the superior court indicating that an amended abstract of judgment was never filed.
Neither party filed a supplemental brief.
Based upon the augmented record, it is clear that the June 30, 2008, hearing to determine defendant’s sentence credits was held. Defendant’s contention otherwise is without merit and his request to hold a further hearing following remand is therefore moot.
Although the trial court directed the court clerk to prepare an amended abstract of judgment reflecting the changes made to the sentence at the June 30, 2008, hearing, the augmented recorded does not include an amended abstract of judgment and there is nothing to indicate that the clerk carried out the trial court’s direction. Following remand, the trial court should see that this is completed.
III. DISPOSITION
The judgment is affirmed. The trial court shall direct that an amended abstract of judgment be prepared to reflect that defendant shall receive 871 credits for time served (581 actual and 290 for conduct). The trial court is directed to send a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: Richli, Acting P.J., Gaut, J.
Section 1368, subdivision (b) provides: “If counsel informs the court that he or she believes the defendant is or may be mentally incompetent, the court shall order that the question of the defendant’s mental competence is to be determined in a hearing....”