Does the statute of limitation and the Sixth Amendment apply to the sentencing phase of a criminal prosecution?

right to speedy trial does not apply to the sentencing phase of a criminal prosecution. (Betterman v. Montana (2016) ___ U.S. ___ [194 L.Ed.2d 723].) Statutes of limitation protect against delay before arrest and the Sixth Amendment right to a speedy trial protects against delay between arrest and trial. (Id. at p. ___ [194 L.Ed.2d at p. 727].) The Sixth Amendment right is based on the presumptive right of innocence and it "detaches upon conviction." (Id. at p. ___ [194 L.Ed.2d at p. 730].) Diminished due process rights arguably protect against fundamental unfairness in sentencing and resentencing, but due process principles were not analyzed in Betterman because the defendant had not raised them. (Id. at p. ___ [194 L.Ed.2d at p. 734].)

In any event, although neither the trial court nor this court condones such a delay in resentencing, we do not discern any prejudice to defendant in this case. Defendant was serving a life sentence while he awaited a new sentence that could not have been anything less than a life sentence, and he never inquired about resentencing until after the resentencing hearing was scheduled. Defendant proposes that we apply the concept of "conclusively presumed prejudice" as discussed in Leaututufu v. Superior Court (2011) 202 Cal.App.4th Supp. 1, 9-10, but that case was not about sentencing and, as we have said, the principles applicable to delays between arrest and trial are not comparable. We will not presume prejudice where none is demonstrated.

Defendant next argues that if he forfeited any rights, he suffered ineffective assistance of counsel. But our decision is based on the merits, not forfeiture. Moreover, because we conclude there was no deprivation of the constitutional right to a speedy trial at the time of resentencing, defendant's attorney was not deficient in failing to assert such a right. (See People v. Jones (1979) 96 Cal.App.3d 820, 827 [counsel is not required to advance meritless arguments to prove adequacy of counsel].)

Page 5