Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for writ of mandate Nos. APP004838 & SWM080106, Michele D. Levine, Judge.
Christopher J. Whelton for petitioner.
No appearance for Respondent.
Rod Pacheco, District Attorney, and Alan D. Tate, Deputy District Attorney, for Real Party in Interest.
OPINION
RICHLI, J.
INTRODUCTION
In this matter, we have reviewed the petition and the People’s response in which they concede that the trial court erred in denying the motion to dismiss. In light of that concession and our determination that resolution of the matter involves the application of settled principles of law, 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.)
It is undisputed that the last day on which petitioner could be brought to trial under Penal Code section 1382, in the absence of good cause, was May 26, 2009. On that date, sometime after 3:00 p.m., petitioner’s case was called in Riverside and the parties were informed that there was a courtroom available in Palm Springs. Petitioner’s counsel was asked whether he would waive time and stipulate that the following day, May 27, would be “10 of 10.” When counsel declined to do so, the parties were ordered to proceed to Palm Springs, despite counsel’s protest that he could not arrive before 4:30 p.m. All the parties, including the deputy district attorney, arrived at the Palm Springs courthouse after 4:30 p.m. No judge was available at the courthouse when they arrived and the jury panel had been dismissed. A clerk was present, who contacted the Riverside court. A Riverside judge ordered the parties back to Palm Springs the next morning.
The final day of the 10-day grace period under Penal Code section 1382, subdivision (a)(2)(B), regarding felonies, and subdivision (a)(3)(B), regarding misdemeanors or infractions.
The following day, petitioner moved to dismiss on the ground that he had not been brought to trial within the time limit specified in Penal Code section 1382. The trial court denied the motion, but did not state a basis for doing so other than commenting that the matter would be “best resolved with the defendant’s wish to pursue with a writ to the Appellate Department.”
Thereafter, the appellate division summarily denied petitioner’s writ petition. The motion to dismiss should have been granted, as the People now concede. The eleventh-hour assignment of this case for trial was a sham because there was no realistic expectation that trial proceedings would actually commence on May 26, 2009.
Let a writ of mandate issue directing the Appellate Division of the Superior Court of Riverside County to vacate its order summarily denying the petition and to enter a new order directing the trial court to grant defendant’s motion to dismiss.
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: McKINSTER Acting P. J., KING, J.