A determination as to whether a Sixth Amendment right to speedy trial has been violated is fact intensive, and the conduct of both the prosecution and the defendant is relevant. Analysis of a claimed federal speedy trial violation considers (a) the length of the delay; (b) whether the government or defendant is more responsible for the delay; (c) whether defendant asserted his right to a speedy trial; (d) and whether defendant suffered prejudice. (Doggett v. United States (1992) 505 U.S. 647; Barker v. Wingo (1972) 407 U.S. 514.) In 1992, Hsu pled guilty to one count of grand theft resulting from a Ponzi or pyramid scheme, and admitted taking in excess of $100,000. His plea agreement was for a stipulated three-year prison term and a promise that he would be sentenced by the judge who took the plea. Hsu then failed to appear for sentencing, fled to Asia, but then returned to the United States in 2003. Following his return, he made no attempt to conceal himself, and even made large campaign donations and was a regular fixture at fund raisers. Nevertheless, he was not arrested until 2007 when he surrendered himself upon learning that his arrest on the warrant was imminent. Following his arrest, he posted $2,000,000 bail, and again failed to appear. He was arrested a month later after he became ill on an AMTRAK train. At sentencing, he claimed that the delay violated his right to a speedy trial and that the action should be dismissed. The court agreed that the Sixth Amendment right to a speedy trial includes sentencing and that, in this case, no certificate of probable cause was required to raise a speedy trial violation on appeal. Although some courts find waiver when a defendant has intentionally absented himself, this court chose to review the matter. On the facts of the case, the court found that the delay caused by Hsu, who knew he had a pending matter, was critical in the analysis of the claimed violation. There is no requirement that the government make heroic efforts to apprehend a defendant purposefully avoiding apprehension, and when the defendant is responsible for the delay, he must show prejudice; it is not presumed. The trial court’s denial of Hsu’s claim of a speedy trial violation was affirmed.
Although People v. Arbuckle (1978) 22 Cal.3d 749, holds that when a judge accepts a plea bargain, an implied term of the bargain is that the same judge will sentence defendant, this term contains the additional condition that the judge still be actively exercising judicial power. Hsu argued that the action should be dismissed because the judge who took his plea had since retired and was not available to sentence him. The court rejected this argument, holding that Arbuckle applies only where the original judge is unavailable for sentencing due to internal administrative scheduling problems. People v. Cruz (1988) 44 Cal.3d 1247 does not apply because appellant received what he bargained for (three years in prison) and no additional punishment was imposed.