People v. Hernandez CA3

Filed 1/25/22 P. v. Hernandez CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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

THE PEOPLE, C092871

Plaintiff and Respondent, (Super. Ct. No. STKCRFDV20170001696) v.

ESPERANZA ANN HERNANDEZ,

Defendant and Appellant.

On December 15, 2016, defendant Esperanza Ann Hernandez and the victim, her boyfriend, were driving in defendant’s car. They had been drinking and they argued. Although they were on the freeway, at one point, the car stopped, the victim got out, and defendant struck the victim with her car and drove off. A jury found defendant guilty of driving under the influence of alcohol causing injury. Defendant’s only contention on appeal is that the trial court erred in denying her motion to dismiss the charges based on the violation of her speedy trial rights under the California Constitution. She asserts she sustained actual prejudice in the 17-month delay

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between the filing of the criminal complaint and her arrest. In asserting she established actual prejudice, defendant relies on the fact that she no longer owns the vehicle, which, she asserts, contained relevant evidence and that her memory of the incident has faded. We affirm. We conclude the trial court did not abuse its discretion in denying the motion. BACKGROUND On January 27, 2017, the prosecution filed a complaint charging defendant with assault with a deadly weapon not a firearm (Pen. Code, § 245, subd. (a)(1); count 1) and driving under the influence of alcohol or drugs causing injury (Veh. Code, § 23153, subd. (a); count 2). Defendant was arrested on or about June 5, 2018. She was arraigned on June 13, 2018. On January 8, 2019, the prosecution filed an information charging her with the same counts charged in the complaint. The Prosecution’s Case The victim was defendant’s boyfriend. They had been living together. On December 15, 2016, they had been drinking and driving around. Defendant was driving. They began to argue. The victim said he did not want to be with defendant anymore. Defendant stopped in the middle of the freeway and the victim got out of the car. The victim slammed the door and started walking. The next thing the victim remembered was waking up in the hospital. A tow truck operator observed a silver Honda Accord stopped on Interstate 5. He saw two people outside of the vehicle. One of the people ran towards the freeway shoulder. The Honda then started moving “[f]aster than normal.” The Honda struck the person who had run towards the shoulder, turned violently left, and drove off. California Highway Patrol Officer Jason Palmer found the victim lying on the shoulder of the freeway. He was conscious, obviously injured, and he appeared to be intoxicated. The victim was transported to the hospital. He sustained a fractured skull, a broken elbow, and other injuries.