Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; Petition for writ of mandate Super.Ct.No. INF062146, 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.
OPINION
McKINSTER Acting P. J.
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 petitioner’s trial for the full period during which the other trial was expected to last.
We recognize that an “investigating officer’s” 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 prosecutor’s 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 petitioner’s 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 officer’s 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 prosecution’s 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 nurse’s apparent disinclination to respect a subpoena, and the People’s 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.
We concur: GAUT J. KING J.