Filed 1/8/18 P. v. Dalby CA3
NOT TO BE PUBLISHED

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Yolo)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

WILLIAM MICHAEL DALBY,

Defendant and Appellant.
C078421

(Super. Ct. No. CR-F-99-3920)



In 2002 a jury convicted defendant William Michael Dalby of aggravated sexual assault against children under the age of 14, and the trial court imposed 16 consecutive indeterminate sentences of 15 years to life (240 years to life) plus a determinate term of six years eight months, for a total aggregate sentence of 246 years eight months to life in prison. Defendant appealed, and in a prior decision filed in 2004, this court remanded the matter to permit the trial court to exercise its discretion to sentence defendant either consecutively or concurrently on the 16 indeterminate life terms.
In 2015 the trial court exercised its discretion and once again imposed 16 consecutive indeterminate sentences of 15 years to life. Defendant had already served his six-year eight-month determinate term.
Defendant now contends (1) the delay in resentencing him following remittitur violated his constitutional right to a speedy trial and requires a reduced sentence; (2) if he forfeited any rights, he suffered ineffective assistance of counsel; and (3) his parole eligibility date should be advanced because his six-year eight-month determinate term became concurrent by operation of law before it was fully served.
Finding no merit in defendant’s contentions, we will affirm the judgment.
BACKGROUND
The jury convicted defendant on 16 counts of aggravated sexual assault (rape, sodomy and oral copulation). The victims were three girls under the age of 14; the daughters and a niece of his live-in girlfriend. Mistakenly believing that Penal Code section 667.6 did not permit concurrent sentencing for the crimes, the trial court imposed 16 consecutive sentences of 15 years to life, for a total of 240 years to life in prison. The trial court also imposed a determinate sentence of six years for the oral copulation of a fourth young victim, and eight months for failing to appear on felony charges while defendant was released on bail.
This court vacated the indeterminate sentences to permit the trial court to exercise its discretion to sentence defendant either consecutively or concurrently on the 16 indeterminate life terms. The remittitur issued in September 2005. Resentencing inadvertently “slipped through the cracks” until the Attorney General’s office brought the case to the trial court’s attention in 2013. Defendant has provided no evidence that he questioned or protested the delay.
In November 2013, the trial court set a resentencing hearing for January 31, 2014. After several uncontested continuances, the trial court held a resentencing hearing during which defendant argued that under section 669, his indeterminate sentences should run concurrently. The trial court exercised its discretion, referencing the evidence at trial, and imposed 16 consecutive determinate sentences of 15 years to life.
Defendant also raised an argument regarding his determinate six-year eight-month term, but the trial court declined to address the argument because that part of his sentence had already been served.
Additional facts are included in the discussion.
DISCUSSION
I
Defendant contends the trial court’s delay in resentencing violated his constitutional right to a speedy trial under the Sixth Amendment. He asks us to apply the four-part speedy trial analysis set out in Barker v. Wingo (1972) 407 U.S. 514 [33 L.Ed.2d 101], citing a California case that did so in a resentencing context, People v. Domenzain (1984) 161 Cal.App.3d 619.
The right to a speedy trial is guaranteed by the Sixth Amendment. (Barker v. Wingo, supra, 407 U.S. at p. 515 [33 L.Ed.2d at p. 108].) To determine whether a defendant has been denied that right, a court weighs four factors: the length of delay; the reason for delay; the circumstances of defendant’s assertion of the right; and prejudice to the defendant. (Id. at p. 530 [33 L.Ed.2d at p. 117].) The court in Domenzain applied the Barker test in a resentencing context, stating that “the criminal justice system is not served when a defendant is not promptly resentenced.” (People v. Domenzain, supra, 161 Cal.App.3d at p. 623.) Defendant cites no other California cases applying speedy trial concepts or analyses to resentencing and we have found none. Defendant identifies other states that have applied speedy trial concepts to sentencing but, after briefing was concluded in this case, the United States Supreme Court held that the Sixth Amendment right to speedy trial does not apply to the sentencing phase of a criminal prosecution. (Betterman v. Montana (2016) __ U.S. __ [194 L.Ed.2d 723].) Statutes of limitation protect against delay before arrest and the Sixth Amendment right to a speedy trial protects against delay between arrest and trial. (Id. at p. __ [194 L.Ed.2d at p. 727].) The Sixth Amendment right is based on the presumptive right of innocence and it “detaches upon conviction.” (Id. at p. __ [194 L.Ed.2d at p. 730].) Diminished due process rights arguably protect against fundamental unfairness in sentencing and resentencing, but due process principles were not analyzed in Betterman because the defendant had not raised them. (Id. at p. __ [194 L.Ed.2d at p. 734].)
In any event, although neither the trial court nor this court condones such a delay in resentencing, we do not discern any prejudice to defendant in this case. Defendant was serving a life sentence while he awaited a new sentence that could not have been anything less than a life sentence, and he never inquired about resentencing until after the resentencing hearing was scheduled. Defendant proposes that we apply the concept of “conclusively presumed prejudice” as discussed in Leaututufu v. Superior Court (2011) 202 Cal.App.4th Supp. 1, 9-10, but that case was not about sentencing and, as we have said, the principles applicable to delays between arrest and trial are not comparable. We will not presume prejudice where none is demonstrated.
II
Defendant next argues that if he forfeited any rights, he suffered ineffective assistance of counsel. But our decision is based on the merits, not forfeiture. Moreover, because we conclude there was no deprivation of the constitutional right to a speedy trial at the time of resentencing, defendant’s attorney was not deficient in failing to assert such a right. (See People v. Jones (1979) 96 Cal.App.3d 820, 827 [counsel is not required to advance meritless arguments to prove adequacy of counsel].)
III
In addition, defendant claims he is entitled to a reduction in his indeterminate sentence because his six-year eight-month determinate term became concurrent by operation of law before it was fully served. The argument is based on his interpretation of section 669.
Section 669, subdivision (b) provides that in the event a trial court has no knowledge of a prior existing judgment, or has knowledge of the prior existing judgment but fails to determine how the terms shall run in relation to each other, the trial court shall, within 60 days of notice of the prior existing judgment, determine how the terms shall run in relation to each other. If the trial court fails to make such a determination, the second or subsequent judgment will run concurrently to the first. (§ 669, subd. (b).) Defendant argues section 669 applies to his determinate six-year eight-month term because the sentence remained intact following the appeal and became a “prior existing term” at the time of remand. He adds that when the trial court failed to impose a new sentence within 60 days, his determinate term, by operation of law, began to run concurrently with one of his indeterminate terms. Because the determinate term already had been served at the time of resentencing, he urges vindication of his asserted right by an order subtracting time from his minimal parole eligibility, a remedy that is within our discretion under section 1260.
Section 669 “does not establish a presumption in favor of concurrent sentences; its requirement that concurrent sentences be imposed if the court does not specify how the terms must run merely provides for a default in the event the court fails to exercise its discretion.” (People v. Black (2007) 41 Cal.4th 799, 822.) Here, the trial court ordered the determinate sentence to run consecutively and the remand from this court did not require or authorize any change to that part of defendant’s sentence. The scope of issues within the jurisdiction of a trial court on remand is defined by the nature of the remand order and the remand order here did not direct any change to the consecutive nature of the determinate sentence. (See People v. Murphy (2001) 88 Cal.App.4th 392, 396-397 [“[i]n an appeal following a limited remand, the scope of the issues before the court is determined by the remand orders”].)
Defendant’s contention lacks merit.
DISPOSITION
The judgment is affirmed.






/s/
Mauro, Acting P. J



We concur:



/s/
Murray, J.




/s/
Hoch, J.