Rodriguez v. Superior Court
Filed 12/12/08 Rodriguez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
MARIO VASQUEZ RODRIGUEZ, Petitioner, v. THE SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent; THE PEOPLE, Real Party in Interest. | E046793 (Super.Ct.No. RIF120670) OPINION |
ORIGINAL PROCEEDINGS; petition for writ of mandate. Elisabeth Sichel, Judge. Petition granted.
Gary Windom, Public Defender, and William A. Meronek, Deputy Public Defender, for Petitioner.
No appearance for Respondent.
Rod Pacheco, District Attorney, and Matt Reilly, 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.)
The trial court determined that the delay in prosecution had prejudiced petitioner with respect to the charge of assault. This ruling was certainly sustainable in that the witnesses who can no longer be found might have given favorable evidence with respect to the identity of the person who assaulted the victim. However, nothing in the record supports an inference that the person seen with a knife in the vicinity of the bleeding victim was not also the person who had just robbed the victim and taken his car. The evidence, in fact, pointed clearly to a single perpetrator. Thus, the evidence of the missing witnesses as to identity would have been equally relevant to the remaining charges. This is also true with respect to evidence they could have given impeaching testimony of the victim in general.
Accordingly, the trial court should have dismissed all charges on due process grounds. We will grant the relief requested. Real party in interests procedural arguments to the contrary are not persuasive.
Let a peremptory writ of mandate issue, directing the Superior Court of Riverside County to vacate its order denying dismissal of the charges of robbery and carjacking, and to enter a new order dismissing those charges.
The stay of proceedings previously ordered is dissolved.
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
GAUT
Acting P. J.
We concur:
HOLLENHORST
J.
McKINSTER
J.
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