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Filed 10/17/23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Appellant,

v.

DANNY MANZO,

Defendant and Respondent.

E079991

(Super. Ct. No. RIF1700495)

OPINION

APPEAL from the Superior Court of Riverside County. Jeffrey Prevost, Judge. 

Reversed.

Michael A. Hestrin, District Attorney, Gary S. Rogh, and Kristen J. Allison, Deputy 

District Attorneys, for Plaintiff and Appellant.

Elisa A. Brandes, under appointment by the Court of Appeal, for Defendant and 

Respondent.
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I.

INTRODUCTION

Plaintiff and appellant, The Riverside County District Attorney appeals the trial 

court’s dismissal of three felony charges against defendant and respondent Danny Manzo 

due to evidence lost during the prosecution’s five-year delay in prosecuting the case after 

filing charges against defendant. Because there is no evidence that the loss of evidence 

prejudiced defendant, we reverse the order dismissing the complaint.

II.

FACTUAL AND PROCEDURAL BACKGROUND

On January 1, 2017, defendant was pulled over for using his cell phone while 

driving. After learning that defendant was driving with a suspended license, the officer 

ordered him out of the car. According to the officer, defendant admitted there was a gun

in the car. The officer searched the car and found a gun and a methamphetamine pipe 

with drug residue. The officer then learned that defendant was a convicted felon and 

arrested him.

While defendant was out on bail, he was arrested a few weeks later in San 

Bernardino County for armed robbery and booked into San Bernardino County jail, 

where he remained until May 2017, when he was sentenced to eight years in prison for 

the robbery.

In February 2017, however, the Riverside County District Attorney filed a

complaint charging defendant with being a felon in possession of a firearm (Pen. Code, 
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§ 29800, subd. (a)(1); count 1) and ammunition (Pen. Code, § 30305, subd. (a); count 2), 

and possessing a loaded firearm while under the influence of a controlled substance 

(Health & Safety Code, § 11550, subd. (e); count 3). Defendant did not appear at his 

arraignment on February 15, 2017, so his bail was forfeited, and a warrant for his arrest 

issued.

Five years later, after defendant completed his sentence in the San Bernardino 

robbery case, he was arrested and arraigned on the outstanding charges in Riverside 

County in April 2022. Defendant moved to dismiss the charges on the ground that the 

delay in prosecuting him violated his due process rights under article I, section 15 of the 

California Constitution. Defendant claimed that the delay between the filing of charges 

against him and his arraignment prejudiced him for several reasons, including that video 

footage of his arrest from the officer’s dashcam was no longer available. In opposition, 

the District Attorney’s only argument was that defendant suffered no actual prejudice 

from the delay.

The trial court found that the missing dashcam footage caused defendant 

prejudice. The court reasoned: “The existence of the dashcam is problematic. I tend to 

agree with the prosecution that the loss of any dashcam footage can be prejudicial to 

prosecution of the case just as much as it might be prejudicial to defense. But I think that

that doesn’t obviate the fact that there is some prejudice that ensued to the defense from 

the unavailability of such evidence, which could possibly substantiate defense claims that 

the circumstances of the arrest were not as claimed by the law enforcement agency 
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performing the arrest. I think to some extent that that does constitute prejudice.” The 

court therefore granted defendant’s motion to dismiss the complaint. The District 

Attorney timely appealed.

III.

DISCUSSION

The District Attorney argues the trial court erred in dismissing the case because 

defendant suffered no prejudice from the delay. We agree.

Under article I, section 15 California constitution, an unreasonable post-complaint

delay constitutes a denial of the right to a speedy trial. (Jones v. Superior Court (1970) 3 

Cal.3d 734, 739-740.) To warrant dismissal on such grounds, the defendant must first 

show actual prejudice resulting from the delay. (Id. at p. 740.) The showing of actual 

prejudice must be made on competent evidence and “must be supported by particular 

facts and not . . . by bare conclusionary statements.” (Crockett v. Superior Court (1975) 

14 Cal.3d 433, 442.) Speculative arguments are inadequate to establish actual prejudice. 

(See, e.g., People v. Jones (2013) 57 Cal.4th 899, 923; People v. Abel (2012) 53 Cal.4th 

891, 909; People v. Alexander (2010) 49 Cal.4th 846, 875-876 (Alexander).) Instead, the 

defendant must affirmatively demonstrate having suffered actual prejudice as a result of 

the delay, not just the possibility of prejudice. (People v. Abel, supra, at p. 909.)

If—and only if—the defendant shows actual prejudice from a delayed prosecution,

“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 
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prosecution’s justification for the delay. [Citation.]” (People v. Lowe (2007) 40 Cal.4th 

937, 942.) “[T]he more reasonable the delay, the more prejudice the defense would have 

to show to require dismissal.” (Ibarra v. Municipal Court (1984) 162 Cal.App.3d 853, 

858.) But if the defendant fails to satisfy the initial burden of showing actual prejudice, 

“there is no need to determine whether the delay was justified.” (People v. Jones, supra, 

57 Cal.4th at 921.)

We review a trial court’s ruling on a motion to dismiss for prejudicial delay for an 

abuse of discretion and defer to any underlying factual findings if supported by 

substantial evidence. (People v. Cowan (2010) 50 Cal.4th 401, 431.) Whether a delay is 

prejudicial is a factual question that we review for substantial evidence. (Alexander, 

supra, 49 Cal.4th at p. 874.)

There is no evidence that the missing dashcam footage prejudiced defendant in 

any way. He offered only unsupported speculation that the footage had exculpatory value 

in that it might have contradicted the arresting officer’s version of events. But “‘[t]he 

showing of prejudice requires some evidence and cannot be presumed.’” (People v. 

Morris (1988) 46 Cal.3d 1, 37, italics added.) Speculation is not enough. (People v. 

Abel, supra, 53 Cal.4th at p. 909.)

For instance, in People v. Lewis (2015) 234 Cal.App.4th 203, the defendant argued 

“that he was prejudiced by the loss of the child welfare agency, police, prosecution, and 

court records.” He claimed that “the lost records might have contained information he 

could have used to impeach” the victim. (Id. at p. 212.) The Lewis court rejected the 
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defendant’s argument that the loss of the records prejudiced him because it was “wholly 

speculative.” Like defendant here, the defendant in Lewis failed to make any showing 

that the lost records had exculpatory value, so it was “entirely speculative” that he was 

prejudiced by their disappearance. (Id. at p. 213.)

Alexander, supra, 49 Cal.4th 846 is also instructive. There, the defendant claimed 

that he was prejudiced by the loss of witness interview audio tapes. He argued that the 

tapes “may have included statements not contained in, or that contradicted, the 

investigators’ reports or witnesses’ testimony.” (Id. at p. 875.) Our Supreme Court 

rejected the defendant’s argument that the loss of the tapes prejudiced him because it was 

“based on speculation, not proof of actual prejudice.” (Ibid.)

So too here. As the trial court acknowledged, the missing dashcam footage might

help defendant’s case, but it is entirely possible that it could help the prosecution’s case. 

Although the footage could have contradicted the officer’s version of events, it also could 

have confirmed it. As it stands, nothing in the record suggests that the footage had any 

exculpatory value. Defendant’s claim of prejudice is therefore based wholly “on 

speculation, not proof of actual prejudice.” (Alexander, supra, 49 Cal.4th at p. 875.)

Defendant argues otherwise, relying on People v. Mirenda (2009) 174 Cal.App.4th 

1313 (Mirenda), and People v. Cave (1978) 81 Cal.App.3d 957 (Cave), but both cases are 

distinguishable. In Mirenda, the defendant was actually prejudiced by the 26-year delay 

between the filing of charges and the actual prosecution of the case, the death of a key 

witness, and “the irreparable fading of memory,” all of which resulted in “the complete 
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inability to mount a defense.” (Mirenda, supra, at p. 1333.) The defendant in Cave was

also actually prejudiced by the prosecution’s “‘purposeful’” delay, which resulted in the 

disappearance of a “material witness”—an informant who was the only witness to an 

undercover operation where the defendant sold heroin to an undercover officer. (Cave, 

supra, at p. 965; see also People v. Cowan, supra, 50 Cal.4th at p. 430 [“Prejudice may 

be shown by [the] ‘“loss of material witnesses”’ . . .”].) But here the only lost evidence is 

the dashcam footage, which could be immaterial or even harmful to defendant’s case. 

Because nothing in the record shows that the loss of this evidence hurts defendant’s case, 

defendant failed to meet his burden of showing its disappearance actually prejudiced him.

In short, there is no substantial evidence supporting the trial court’s finding that 

defendant was prejudiced by the delay in prosecuting him and the resultant loss of the 

dashcam footage. We therefore reverse the order dismissing the complaint.

IV.

DISPOSITION

The trial court’s order dismissing the complaint is reversed.

CERTIFIED FOR PUBLICATION

CODRINGTON

J.

We concur:

RAMIREZ

P. J.

McKINSTER

J.