CERTIFIED FOR PUBLICATION
ORDER DENYING PETITION FOR WRIT OF MANDATE
Petitioner Abraham Leaututufu (Petitioner) seeks a writ of mandate in aid of his federal right to a speedy trial. A petition for writ of mandate is appropriate where a defendant claims a violation of this right. (E.g., Ogle v. Superior Court (1992) 4 Cal.App.4th 1007, 1013-1014.) We defer to the court's factual findings. (E.g., Joseph v. San Francisco Housing Authority (2005) 127 Cal.App.4th 78, 81.)
We are called on to review the application of the now classic test to determine if post-arrest delay violates a defendant's speedy trial rights under the federal Constitution. (Barker v. Wingo (1972) 407 U.S. 514.) In the most general terms, in determining whether or not to dismiss for delay, courts are to weigh the length of the delay, the reason for the delay, the defendant's assertion of his rights, and prejudice to the defendant.
Petitioner claims the court below erred in failing to grant his motion to dismiss the charges. We determine the trial court arrived at the correct result, and deny the petition.
On September 13, 2008, Petitioner was arrested for violating Vehicle Code section 23152, subdivisions (a), and (b) (DUI), and Penal Code section 69 (resisting arrest). The matter was discharged on September 15, 2008 under "disposition code 27," indicating further investigation was necessary. On October 9, 2008, a complaint was prepared and attached to an affidavit for an arrest warrant. The warrant was filed with the Superior Court on October 20, 2008. Petitioner's address was known to the police through the incident report.
The warrant was not served until twenty-two months later. On July 11, 2010, Petitioner was discharged from an Alameda County jail, where he had been held in connection with an unrelated incident, and the Alameda authorities served him with the warrant based on the September 2008 DUI.
On July 29, 2010, Petitioner was arraigned and invoked his speedy trial rights. On August 4, 2010, he filed a motion to dismiss based on the violation of his federal speedy trial rights. At the August 27, 2010 hearing, the trial court found that the People's justification was not persuasive.*fn1 On September 27, 2010, Petitioner filed a request for a stay and a petition for writ of mandate with us. We issued an order staying the proceedings on October 1, 2010. On April 12, 2011, we granted the petition for writ of mandate with instructions to the trial court to expressly weigh the Barker speedy trial factors.
On June 14, 2011, a different trial judge heard Petitioner's motion to dismiss. She found that Petitioner was not served until well past the one year statute of limitations for misdemeanors, and stated that prejudice was presumed, but with the caveat that "it's not an irrebuttable presumption." The judge apparently concurred with the Petitioner's position that once prejudice is presumed, the prosecution had the burden to show a justification for the delay. The trial judge rejected the People's justification. Argument then devolved to whether Petitioner had shown actual prejudice, and the extent to which such actual prejudice was an element under Barker. The trial judge court found the 'presumption' of prejudice but reiterated her belief that the presumption was not "an irrefutable presumption." The trial court found there was no actual prejudice from the delay:
"My analysis is the delay was more than a year. It was not occasioned by the defendant. I have made that clear already...Secondly, I don't hear any really good justification - I don't hear any justification for the delay from the people. So again the only issue is whether - and I don't hear any actual prejudice. So the question is whether we get to that point or not or whether it's automatically dismissed once there's a delay of more than a year if the People don't show - if the People don't show a justification for the delay."
The trial court held that the presumption of prejudice was ultimately of no moment because no actual prejudice was shown:
"I'm weighing [the Barker v. Wingo factors]. There's no - there is a presumption of prejudice. There's no justification for the delay. And I'm going back; there's no ...