Carreon v. Superior Court

Filed 10/16/09 Carreon v. Superior Court CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

ORIGINAL PROCEEDINGS; petition for writ of mandate. David B. Downing, Judge. Petition granted.

John Patrick Dolan for Petitioner.

No appearance for Respondent.

Rod Pacheco, District Attorney, and Rebecca Marie Madrid, Deputy District Attorney, for Real Party in Interest.

In this matter, we have reviewed the petition and the opposition filed by real party in interest. We have determined that resolution of the matter involves the application of settled principles of law and that issuance of a peremptory writ in the first instance is therefore appropriate. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)

Although the procedural posture of the matter is somewhat confusing, the essential error was made by the trial court on May 19, 2009, when it found that the fact that a necessary witness would be serving as an investigating officer in another case for severalweeks justified a delay in petitioners trial for the full period during which the other trial was expected to last.

We recognize that an investigating officers status is recognized by Penal Code section 868 and we will accept, arguendo, that such an officer may at times serve an important tactical and informational role for the prosecutor. However, the trial court should not have accepted the prosecutors implicit claim that the officer could not be spared at anytime during the other trial. It defies belief that had a good faith effort been made, the officer could not have been made available for the time necessary to testify in petitioners trial. As the party seeking a continuance, the burden was on the People to establish good cause (People v. Howard (1992) 1 Cal.4th 1132, 1171) and certainly the record is utterly inadequate to support any finding of the officers blanket unavailability.

As petitioner pointed out, there is authority recognizing that a motion to dismiss may be made after an unsuccessful effort to challenge the prosecutions request for continuance (see Mendez v. Superior Court (2008) 162 Cal.App.4th 827) and renewed argument is proper. Even if it were not so, we do not agree with the People that petitioner waived his right to challenge the original order where there are no statutory time limits governing a petition for extraordinary writ. The result is the same in either case.

In our analysis, we follow the main thrust of the petition and need not discuss whether the nurses apparent disinclination to respect a subpoena, and the Peoples apparent unwillingness to insist that she do so, would have justified the continuance.

We do not lightly take the step of dismissal, but the statutory time limits for bringing a defendant to trial are clear and may only be extended for good cause. The People must take their burden seriously in these matters and must provide a specific factual showing of good cause; here, they failed to do so.

DISPOSITION

Let a peremptory writ of prohibition issue, prohibiting the Superior Court of Riverside County from taking any further action in this matter other than to enter an order of dismissal.

Petitioner is directed to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

Acting P. J.

We concur:

GAUT

J.

KING

J.

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