Kensie v. Sup. Ct

Filed 3/15/06 Kensie v. Sup. Ct. CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 ONE

ORIGINAL PROCEEDING; petition for writ of mandate. Cynthia Rayvis, Judge. Petition granted.

Michael P. Judge, Public Defender, Sylvia Degado and John Hamilton Scott, Deputy Public Defenders, for Petitioner.

No appearance for Respondent.

Steve Cooley, District Attorney, Patrick D. Moran and Tracey Lopez, Deputy District Attorneys, for Real Party in Interest.

___________________________

INTRODUCTION

We hold that respondent court should have granted the request of petitioner Kevin Jermaine Kensie to testify on his own behalf at the hearing on his motion to dismiss the matter on his claim that his speedy trial rights were violated. We acknowledge that the People do not oppose issuance of a writ to enable petitioner to testify on his own behalf, so long as the prosecution may present evidence regarding whether petitioner's testimony establishes actual prejudice for the purposes of a speedy trial analysis.

FACTS

In November 1999, Lourdes Sousa was robbed at gunpoint in her residence. The robber entered and exited her residence from the adjacent garage. Kensie's fingerprints were found on a jewelry box in the garage. Lourdes Sousa picked Kensie's photo in a six-pack photo line-up. At the preliminary hearing, Lourdes Sousa did not recollect the circumstances of her having picked Kensie's photograph out of the six-pack of photographs. (Her parents--who were present during the robbery but have since died--were not shown the six-pack.)

In support of his motion to dismiss for violation of his speedy trial rights, Kensie asserted that his defense had been prejudiced because, during the intervening years, Lourdes Sousa's parents have died, the 9-1-1 audiotape was destroyed, and Lourdes Sousa's memory has faded. Below, Kensie had claimed he was prejudiced by loss of his employment, but he has now dropped that contention.

On the first hearing date, September 23, 2005, Kensie's counsel requested that Kensie be permitted to testify, but did not specify as to what matters the testimony would cover. At the September 30 hearing, Kensie's counsel again requested that Kensie be allowed to testify, stating that Kensie â€