Rosser v. Sup. Ct.

Filed 4/25/06 Rosser v. Sup. Ct. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

ORIGINAL proceedings in mandate. Jack W. Morgan, Judge. Writ granted.

Michael P. Judge, Public Defender, Cedric L. Payne and John Hamilton Scott, Deputy Public Defenders, for Petitioner.

No appearance for Respondent.

Steve Cooley, District Attorney, Lael Rubin, Head Deputy District Attorney, Patrick D. Moran and Shirley S. N. Sun, Deputy District Attorneys, for Real Party in Interest.

Defendant Charles Rosser petitions for a writ of prohibition or mandate directing the trial court to vacate its order denying his motion under Penal Code section 1382 to dismiss the information against him and to enter a new order granting the motion.[1] We grant the petition.

BACKGROUND

All relevant events took place in the year 2005. An information filed on July 6 accused Rosser of various crimes related to an alleged carjacking. Rosser alleges he was arraigned on July 6; the People allege the arraignment was on July 7. Regardless, there is no dispute that because of the Labor Day holiday, the date set for trial, September 6 (a Tuesday), was the last court day of the initial 60-day period under section 1382.

On August 31 (six days before the trial date), the People filed a motion for a continuance, on the ground that the deputy district attorney assigned to prosecute the case was scheduled to begin an attempted murder trial in another case on the same date that Rosser's trial was scheduled to begin. Citing Batey v. Superior Court (1977) 71 Cal.App.3d 952 (Batey), the People argued that in conjunction with a codefendant's illness, â€