This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6

STATE OF NEW MEXICO, 7 Plaintiff-Appellee, 8

v. NO. 28,865 (consolidated 9 with NO. 28,864) 10 DANIEL HERRERA, 11 Defendant-Appellant. 12 APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY 13 John M. Pasternoster, District Judge 14 Gary K. King, Attorney General 15 Anita Carlson, Assistant Attorney General 16 Santa Fe, NM 17 for Appellee 18 Chief Public Defender 19 Kathleen T. Baldridge, Assistant Appellate Defender 20 Santa Fe, NM 21 for Appellant 22 MEMORANDUM OPINION 23 WECHSLER, Judge. 242 Defendant appeals from a judgment and sentence entered after Defendant 1 entered into two underlying conditional plea agreements, reserving the right to 2 challenge his motions to dismiss the charge s based on alleged spee dy trial violations. 3 We conclude that the amount of delay in these consolidated cases was insufficient to 4 overcome the lack of a showing of particul arized prejudice. Accordingly, we affirm 5 the district court’s ruling that Defendant’s right to a speedy trial was not violated in 6 either proceeding. 7 BACKGROUND 8 On March 29, 2007, in two separate grand jury indi ctments, Defendant was 9 charged with eight felonies. In CR 2007-045, Defendant was charged with aggravated 10 battery on a household member, aggravated assault with a deadly weapon against a 11 household member, bribery or intimidation of a witness, two counts of child abuse, 12 and false imprisonment. In the other indictment, CR 2007-046, Defendant was 13 charged with kidnaping and aggravated battery on a household member. With the 14 exception of the child abuse charge, all of the charges involve d the same victim. 15 Accordingly, the indictments proceeded al ong the same path for purposes of setting 16 a trial. 17 Defense counsel filed an entry of appearance on April 6, 2007, including a pro 18 forma demand for speedy trial. As addressed below, the proceedings were thereafter 193 delayed by a series of continuances and vacated trial settings. On July 8, 2008, 1 Defendant filed a motion to dismiss on speedy trial grounds in CR 2007-046. 2 Defendant filed a similar motion in CR 2007-045 on July 18, 2008. Both motions 3 were addressed in a single hearing with th e district court ruling against Defendant. 4 The proceedings for both cases were thenaddressed in the same conditional plea 5 agreement with Defendant reserving the right to appeal the speedy trial rulings, and 6 a single judgment and sentence was issued. Defendant filed separate appeals, which 7 this Court consolidated. 8 SPEEDY TRIAL ANALYSIS 9 In addressing the speedy trial issue, we review the facts and circumstances 10 particular to this case to determine whether “actual and articul able deprivation” of 11 Defendant’s right to a speedy trial existed. State v. Garza , 2009-NMSC-038, ¶¶ 11- 12 12, 146 N.M. 499, 212 P.3d 387. We conduct our analysis by balancing four factors: 13 (1) the length of the delay in bringing the de fendant to trial, (2) the reasons for that 14 delay, (3) the defendant’s a ssertion of his right to speedy trial, and (4) the actual 15 prejudice suffered by the defendant as a result of the delay. Id. ¶ 13 (relying on 16 Barker v. Wingo , 407 U.S. 514 (1972)) . We adopt this balancing test to the varying 17 circumstances presented in each case involvi ng a claim of speedy trial violation. See 18 Garza , 2009-NMSC-038, ¶ 14. However, as noted by our Supreme Court in Garza , 194 our focus remains on the underlying purposes of the balancing test in analyzing the 1 right to a speedy trial. Id. While we give deference to findings made by the district 2 court that are supported by substantial ev idence, we must c onduct an independent 3 examination of the record before concluding that a speedy trial vi olation has or has not 4 occurred. See State v. Plouse , 2003-NMCA-048, ¶ 34, 133 N.M. 495, 64 P.3d 522; 5 see also State v. Manzanares , 1996-NMSC-028, ¶¶ 1, 10, 121 N.M. 798, 918 P.2d 714 6 (explaining that, in speedy trial cases, whenthe findings of the district court are 7 supported by substantial evidence, we weigh the findings de novo). 8 Length of the Delay 9 We first determine whether the entire length of the delay is “presumptively 10 prejudicial.” Our Supreme Court has recen tly adopted new guidelines for determining 11 when delay is “presumptively prejudicial.” Garza , 2009-NMSC-038, ¶¶ 48-50. The 12 new guidelines are applicable in cases, such as these, where a motion to dismiss based 13 on speedy trial is “initiated on or after August 13, 2007.” Id. ¶ 50. Under the new 14 guidelines, a delay of one year in a simplecase, fifteen months in an intermediate 15 case, and eighteen months in a complicated case is considered “presumptively 16 prejudicial.” Id. ¶ 48. We note that a “presumptiv ely prejudicial” delay is merely a 17 triggering mechanism for applying the balancing test and does not lead to a 185 presumption that Defendant’s right to speedy trial has been violated. Id. ¶ 21 (internal 1 quotation marks omitted). 2 Defendant’s right to a speedy trial att ached on March 29, 2007, when Defendant 3 was indicted. State v. Maddox , 2008-NMSC-062, ¶ 10, 145 N.M. 242, 195 P.3d 1254 4 (stating that “[w]e calculate the length of delay from the date the Sixth Amendment 5 right to a speedy trial attach ed when the defendant become s an accused, that is, by a 6 filing of a formal indictment or informati on or arrest and holding to answer” (internal 7 quotation marks and citation omitted)). Defendant pled guilty on August 4, 2008, 8 with a resultant delay between his indictment and plea of a few days more than sixteen 9 months. 10 We address first the district court’s de termination of the relative difficulty of 11 the two cases set against the length of the sixteen-month delay. See State v. Coffin , 12 1999-NMSC-038, ¶ 57, 128 N.M. 192, 991 P.2d 477 (holding thatthe trial court is in 13 the best position to assess the complexity of a case). The district court only issued a 14 written order in CR-2007-46, where it stated that “this case verges on the high end of 15 a simple case to the lo w end of an intermediate case dueto the fact that this case is 16 inextricably tied to [CR-2007-45] and involve d [the] need to release CYFD records 17 regulated by statute and regulations.” As indicated, the district court did not enter 18 written findings with respect to CR-2007-45, but concluded at the motion hearing that 196 “[t]his is a case of intermed iate complexity and not on th e low end.” In reaching its 1 conclusion, the district court noted thatthe case involved six felony counts, one of 2 which was witness intimidation of the al leged victim, and the “unusual aspect of 3 disclosure of the CYFD records.” 4 Defendant argues that both cases are of simple complexity because all of the 5 evidence other than CYFD records was tes timonial. “The question of the complexity 6 of a case, however, is best answered by a trial court familiar with the factual 7 circumstances, the contested issues and available evidence, the local judicial 8 machinery, and reasonable expectations fo r the discharge of law enforcement and 9 prosecutorial responsibilities.” State v. Rojo , 1999-NMSC-001, ¶ 52, 126 N.M. 438, 10 971 P.2d 829 (internal quotation marks and c itation omitted). As Defendant points 11 out, CR-2007-046 involved CYFD records that added to the complexity of the case. 12 CR-2007-045 involved the same records and six felony counts. Both cases had 13 several potential witnesses. We will defer to the districtcourt’s conclusions and use 14 the 15-month period for intermediate cases as a benchmark for our analysis. Because 15 the delay extended more than a month beyond that considered presumptively 16 prejudicial for these two cases, Defendant met his initial burden of showing that the 17 threshold length of delay was exceeded. Garza , 2009-NMSC-038, ¶ 21. Accordingly, 18 we proceed to a full analysis of the Barker factors. Id. 197 As we have stated, the delay was a littleover a month. We believe that this 1 factor weighs against the State, but only slightly. Cf. Zurla v. State , 109 N.M. 640, 2 642, 789 P.2d 588, 590 (1990) (weighing a seventeen-month delay in a simple 3 shoplifting case somewhat h eavily against the state), modified on other grounds by 4 Garza , 2009- NMSC-038; State v. Talamante , 2003-NMCA-135, ¶¶ 1, 21, 134 N.M. 5 539, 80 P.3d 476 (holding that a delay of thirty-one months in an intermediate or 6 complex case weighed heavily in favor of the defendant); State v. Marquez , 7 2001-NMCA-062, ¶ 12, 130 N.M. 651, 29 P. 3d 1052 (weighing heavily against the 8 state a delay of nine months beyond the pr esumptively prejudicial period for a simple 9 case). 10 Reasons for the Delay 11 The first trial setting, October 1, 2007, n early six months after the indictments, 12 was vacated on Defendant’s motion, so that he could compel disclosure of background 13 (NCIC) checks on three witnesses and certainrecords of the Children, Youth, and 14 Families Department (CYFD). Defendant argues that he should not be held 15 responsible for this delay because the State bears the burden to timely bring him to 16 trial, and he is entitled to present a defense. Although the State bears the ultimate 17 burden to timely bring Defendant to trial, we do not weigh this initial delay against it, 188 particularly in light of Defendant’s delay in requesting this discovery until so close to 1 the first trial date. 2 The remaining delay can be broken down into three time periods. The first 3 delay consisted of the period between the original trial setting, October 1, 2007, and 4 the next available trial setti ng, February 4, 2008. The district court determined that 5 this delay was caused “by the need for the Court to do an in camera review of CYFD 6 documents in [one of these two cases. D] efendant sought out these records in a 7 request for additional discovery and chose to delay the initial trial as a tactical 8 decision.” In addition, Defe ndant did not request the doc uments until one month prior 9 to the trial setting. We defer to the districtcourt’s factual interp retation of this delay, 10 Plouse , 2003-NMCA-048, ¶ 34, and we therefore agree with its conclusion that this 11 period of delay does not weigh against the State. 12 The October trial was vacated, and trial was reset for February 4, 2008. That 13 trial setting had to be vacated because of a snowstorm. We do not weigh this period 14 against the State. The district court addressed the snowstorm and the remaining delay 15 as follows: 16 The Court finds that the remaining delays regarding this case was 17 primarily caused by crowded dockets, court administration, judge 18 scheduling and an act of nature. [D]efendant was aware of the docket 19 issues when [he] chose to disqualify the assigned judge and seek the 20 judge in the other division of the District. These delays do not weigh 21 against the State or . . . Defendant. The State requested re-settings and 229 extension of time immediately as required upon the occasion of each 1 delay. The court does no t find any bad faith on the part of the State in 2 this regard. 3 The trial delay was caused by the distri ct court’s crowded docket and resulted 4 in postponement of the trial setting. We defer to the district court’s determination that 5 the State did not intentionally seek the delay or otherwise act in bad faith. See Garza , 6 2009-NMSC-038, ¶ 28; cf. Maddox , 2008-NMSC-062, ¶ 27 (weighing as neutral 7 period of time during which case moved toward trial “with customary promptness”). 8 We do, however, weigh this period of delay against the State because, by the court’s 9 own admission, the crowded docket was the primary reason for the delay. Garza , 10 2009-NMSC-038, ¶ 29 (“For purposes of analyz ing a speedy trial claim, this type of 11 delay [crowded dockets] is considered ne gligent delay and is weighed against the 12 State accordingly.”). 13 In summary, we weigh the reason for the de lay factor against the State, but only 14 slightly. 15 Assertion of Defendant’s Right 16 The assertion of the right to a speedy trial, we look at the timing of the assertion 17 and the manner in which the right was asserted. Id. ¶ 32 (stating that an appellate 18 court gives weight on asserti on of the right factor base d on frequency and force of a 19 defendant’s objections to delay). Here, the district court observed that Defendant had 2010 properly asserted his right, presumably a reference to Defendant’s filing of a pro 1 forma demand for speedy trial when counselfirst entered an appearance on April 6, 2 2007. However, pro forma pretrial motions are usually given relatively little weight 3 in a speedy trial analysis. See State v. Urban , 2004-NMSC-007, ¶ 16, 135 N.M. 279, 4 87 P.3d 1061. In both cases, Defendant did notfile a motion to dismiss until late in 5 the proceedings, on July 8 and July 18, 2008. In addition, the district court noted that 6 Defendant did not appear to even be rea dy for trial, since he was still filing late 7 motions. 8 We agree with the district court’s findi ng that Defendant a sserted his right to 9 a speedy trial. However, based on the timing of the assertions filed in this case, we 10 conclude that this factor weighs only slightly in Defendant’s favor. See Maddox , 11 2008-NMSC-062, ¶ 28 (reviewing assertion of right to speedy trial based on adequacy 12 and timeliness of the assertion); see also Marquez , 2001-NMCA-062, ¶ 22 (holding 13 that motion to dismiss on speedy trial grounds six days prior to trial justified weighing 14 assertion of right factor slightly in favor of the defendant). 15 Prejudice 16 We consider three interest s when analyzing the prejudi ce factor of the balancing 17 test. Those interests include (1) preven ting oppressive pretrial incarceration, (2) 18 minimizing anxiety and concern to the de fendant, and (3) limiting the possibility that 1911 the defense will be impaired. Garza , 2009-NMSC-038, ¶ 35. Defendant had the 1 burden to prove that he suffered from a leve l of anxiety and con cern that resulted in 2 the violation of his speedy trial right, and a mere possibility of prejudice would not 3 serve to meet that burden. Id . It was Defendant’s burde n to prove actual prejudice, 4 after which the burden would shift to the State to persuade the district court “on the 5 ultimate question of whether [D]efendant’s ri ght to a speedy trial has been violated.” 6 Id. ¶ 22. 7 Our Supreme Court in Garza held that, unless the length of and reasons for 8 delay weigh heavily in favor of the defendant, the defe ndant is required to show 9 “particularized prejudice of the kind against which the speedy trial right is intended 10 to protect.” Id. ¶ 39. A particularized showing of prejudice is not one based on 11 speculation or on the possibility of prejudice. Id. ¶ 35; cf. Maddox , 2008-NMSC-062, 12 ¶ 35. In addition, Defendant must show a nexus between the claimed prejudice and 13 undue delay. See Salandre v. State , 111 N.M. 422, 431, 806 P.2d 562, 571 (1991), 14 modified on other grounds by Garza , 2009-NMSC-038. 15 Defendant is essentially relying on three assertions of prejudice: the “potential” 16 witness recollection problems, anxiety and concern, and th e restrictions placed on him 17 by being subject to electronic monitoring. With regard to the “potential” witness 18 recollection problems, Defendant fails to makea particularized assertion as to how his 1912 defense would be impaired. See Garza , 2009-NMSC-038, ¶ 37 (holding that non1 particularized assertions of prejudice are not the kind of prejudice that the fourth 2 Barker factor is designed to address). 3 Because some level of concern accompanie s charges pending in a criminal case, 4 we look for a showing of undue concern or a showing that the concern has continued 5 for a period of time that is unacceptably long. See Coffin , 1999-NMSC–038, ¶ 69; see 6 also Garza , 2009-NMSC-038, ¶ 37 (holding that a non-particularized showing of 7 prejudice is not the kind of prejudice contemplat ed in a speedy trial analysis). We are 8 not convinced that Defendant’s level of concern went be yond that of any other person 9 facing charges in a criminal matter. See State v. Hayes , 2009-NMCA-008, ¶ 14, 145 10 N.M. 446, 200 P.3d 99 (determining that the defendant did not show prejudice based 11 on claims of anxiety because some amount of anxiety is inherent for persons jailed 12 while awaiting trial and the defendant was not in custody for the charges). 13 With respect to the ankle bracelet, Defe ndant concedes that he had been on 14 electronic monitoring since November 2006 in an unrelated case. As such, there was 15 no showing of actual prejudice. In sum, weconclude that Defe ndant did not make a 16 showing of actual or particularized prejudice. See Garza , 2009-NMSC-038, ¶ 37. We 17 do not weigh this factor in favor of Defendant. 18 Balancing the Factors 1913 The total delay in this case was sixteen months, just one month over the 1 applicable trigger date for a case of intermediate complexity. The period of delay 2 weighs slightly against the State. Defendant caused the initial delay. The cases were 3 then delayed due to the snowstorm on the February trial date. The district court 4 determined that the remaining delay was cau sed by the court’s crow ded docket. There 5 was no indication that the State acted in bad faith, or even that any of the delay was 6 attributable to its negligence. The assertion of the right factor weighs slightly in favor 7 of Defendant. Finally, Defe ndant failed to meet his bur den to show “particularized 8 prejudice of the kind against which the speedy trial right is intended to protect” as 9 required by Garza . 2009-NMSC-038, ¶ 39. On balan ce, we conclude that there was 10 no violation of Defendant’s speedy trial right in this case. 11 CONCLUSION 12 We affirm the denial of Defendant’s motions to dismiss the charges based on 13 speedy trial grounds. 14 IT IS SO ORDERED. 15

_______________________________ 16 JAMES J. WECHSLER, Judge 17 WE CONCUR: 1814 __________________________________ 1 CELIA FOY CASTILLO, Chief Judge 2

__________________________________ 3 LINDA M. VANZI, Judge 4