Where a defendant’s claim of a speedy trial violation is based on his state constitution rights to due process and speedy trial, the prejudice from the delay claimed by the defendant must be weighed against the justification for the delay in prosecution. A trial court has the discretion to fashion a suitable remedy for the established violation. As with the analogous situation of governmental destruction of evidence (People v. Zamora (1980) 28 Cal.3d 88), the severity of the remedy for the violation will depend on the materiality of the evidence lost to the defense. If the evidence lost to the defense through prosecutorial delay is material but does not conclusively demonstrate innocence, dismissal is not appropriate. In this case, appellant was charged by complaint filed March 9, 2004, with violations of Penal Code section 290 but he was not arraigned until June 28, 2004. The state proffered no justification for the delay. At some time, appellants brother had advised defendants parole officer that appellant had stayed [visited] with him during some of the time in question. However, he was not available as a defense witness at trial as he died June 27, 2004. The trial court granted appellants speedy trial motion and dismissed the case. The appellate court found that dismissal was too severe a remedy under these facts. Instead, the court should have instructed the jury that defendant stayed with the brother during the time in question but that he was unavailable to testify as he died during the time the prosecution unjustifiably delayed in filing the complaint.