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Overby v. Municipal Court for Livermore-Pleasanton Judicial District of Alameda County7/8/1981
statute, the defendant must show actual prejudice which prejudice, must then be balanced against such justification for the delay as may exist, in order to resolve defendant's claim." (Italics added, fn. omitted.) In Allen we specifically rejected a third test of presumed prejudice from extended delay to be balanced against justification. (Id., at p. 276.) We believe that Scherling supports this conclusion.
The defendant, then, has the initial burden to show actual prejudice. That burden cannot, it seems, be met merely by a defendant's allegations in his moving papers that he has been prejudiced or, for example, by affidavits making the same allegations. Scherling itself implies that the defendant must put on evidence.
We believe the rule to be no different in misdemeanor cases.
Here, appellant put on no evidence of prejudice. He had the burden to do so because the delay did not violate his statutory right to a speedy trial. The People were thus not required to put on any evidence of justification. The trial court correctly denied his motion.
2. Federal Speedy Trial Violation
Finally, appellant contends that his right to a speedy trial under the federal Constitution has also been violated. The United States Supreme Court has made it clear, however, that the federal right does not attach until the individual has been arrested, charged (in the statutory 1382 sense) or otherwise subjected to formal restraint. (United States v. Marion (1971) 404 U.S. 307 [30 L.Ed.2d 468, 92 S.Ct. 455]; see also Jones v. Superior Court (1970) 3 Cal. 3d 734 [91 Cal. Rptr. 578, 478 P.2d 10].)
The judgment is affirmed.
Disposition
The judgment is affirmed.
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