Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for writ of mandate. Edward D. Webster, Judge. Super. Ct. No. RIF135372
Rod Pacheco, District Attorney, and Matt Reilly, Deputy District Attorney, for Petitioner.
No appearance for Respondent.
Gary Windom, Public Defender, and William A. Meronek, Deputy Public Defender, for Real Party in Interest.
OPINION
HOLLENHORST, Acting P. J.
The court has read and considered the record in this proceeding and has concluded that an alternative writ would add nothing to the presentation already made and would cause undue delay in bringing the action to trial. We therefore issue a peremptory writ in the first instance. (Code Civ. Proc., § 1088; Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178-179; Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1222-1223, disapproved on another groundin Hassan v. Mercy American River Hospital (2003) 31 Cal.4th 709, 724, fn. 4.)
Penal Code section 1050, subdivision (g)(1), provides that the trial court may find good cause to continue trial for 10 days in certain types of cases when the assigned prosecutor has another trial, preliminary hearing, or motion to suppress in progress. This provision applies to cases involving alleged murder, stalking, sexual assault, child abuse, domestic violence, hate crimes, or cases being handled under the Career Criminal Prosecution Program. Only one 10-day continuance may be granted for causes involving stalking, hate crimes, or those in the Career Criminal Prosecution Program.
All further statutory references are to the Penal Code unless otherwise stated.
These brief continuances are permitted in cases that require extensive pretrial preparation to prosecute successfully and where it is important for the prosecutor to have a good relationship with the witnesses, the victim, and victim’s family. The Legislature obviously concluded that it would be senseless to compel last minute reassignments in such cases because the prosecutor was involved in another case. (Assem. Com. on Public Safety, Rep. on Assem. Bill No. 1754 (1997-1998 Reg. Sess.) Mar. 17, 1998.)
Defendant has requested that we take judicial notice of certain documents reviewed by the Legislature pertaining to the enactment and amendment of section 1050, subdivision (g). Those documents are the Legislative Counsel’s Digest of Assembly Bill No. 2452 (1987-1988 Reg. Sess.) and the Assembly Committee on Public Safety, Report on Assembly Bill No. 1754 (1997-1998 Reg. Sess.) March 17, 1998. We grant the request for judicial notice, although we point out that judicial notice is not necessary—citation to the material is sufficient. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 45-46, fn. 9.)
This present case involves a prosecution for sexual assault to which the provisions of section 1050, subdivision (g), apply. In fact, the trial court granted one continuance under this statute because the prosecutor was then involved in trying other cases. In support of that request, the prosecutor had declared that a few days earlier the court had sent him out on four back-to-back trials that he contemplated completing within a month. He was still involved in trial 10 days later and requested another 10-day continuance.
The trial court denied the prosecutor’s request, finding that the continuances could not be “stacked,” i.e., the prosecutor could not be granted consecutive 10-day continuances. The statute contains no express limitation on the number of 10-day continuances that can be granted except the three categories specified in section 1050, subdivision (g)(3), the trial court concluded that a subsequent continuance was permissible only if there had been intervening events, which had caused delays in the trial. We disagree.
By limiting stalking and career criminal cases to one 10-day continuance under section 1050, subdivision (g)(3), it is implicit that the same restriction does not apply to the other category of cases specified in subdivision (g)(2). “Under the maxim of statutory construction, expressio unius est exclusio alterius, if exemptions are specified in a statute, we may not imply additional exemptions unless there is a clear legislative intent to the contrary.” (Sierra Club v. State Bd. of Forestry (1994) 7 Cal.4th 1215, 1230.)
The trial court apparently reasoned that the Legislature must have realized that a prosecutor might be engaged for longer than 10 days, but provided only for a short continuance and during that time another prosecutor could be secured. However, the Legislature recognized the desirability of having only one prosecutor involved in certain cases. Certainly in a murder prosecution, for example, it might frequently be the case that it would take the prosecutor longer than 10 days to complete a pending prosecution. Moreover, the trial court’s opinion that there could be more than one 10-day continuance, but that they could not be consecutive, finds no support in the statutory language.
In the end, it seems much more reasonable to conclude that the Legislature mandated only short continuances, but did not limit the number to be granted in certain cases because it wanted the court to monitor the delay and ensure that it was as short as possible. We are not deciding that the prosecution is entitled to an unlimited number of 10-day continuances or that the trial court lacks discretion to deny a continuance under this statute when it appears that the assigned prosecutor will not be available within a reasonable amount of time. Here, we are deciding only that the basis of the trial court’s ruling was an erroneous statutory interpretation.
DISPOSITION
Let a peremptory writ of mandate issue directing the Superior Court of Riverside County to set aside its ruling denying petitioner’s motion for a 10-day continuance under section 1050, subdivision (g)(2), and to issue a new order in accordance with the views expressed herein.
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.
“(2) For purposes of this section, ‘good cause’ includes, but is not limited to, those cases involving murder, . . . allegations that stalking, . . . a violation of one or more of the sections specified in subdivision (a) of Section 11165.1 [sexual assault] or Section 11165.6, or domestic violence . . . or a case being handled in the Career Criminal Prosecution Program pursuant to Sections 999b through 999h, or a hate crime, as defined in Title 11.6 (commencing with Section 422.6) of Part 1, has occurred and the prosecuting attorney assigned to the case has another trial, preliminary hearing, or motion to suppress in progress in that court or another court. A continuance under this paragraph shall be limited to a maximum of 10 additional court days.
“(3) Only one continuance per case may be granted to the people under this subdivision for cases involving stalking, hate crimes, or cases handled under the Career Criminal Prosecution Program. Any continuance granted to the people in a case involving stalking or handled under the Career Criminal Prosecution Program shall be for the shortest time possible, not to exceed 10 court days.” (Pen. Code, § 1050.)