P. v. Gonzalez 10/30/09 CA4/2

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: E048022

Case Date: 01/14/2010

Preview:Filed 10/30/09 P. v. Gonzalez CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

THE PEOPLE, Plaintiff and Appellant, v. LORENA GONZALEZ, Defendant and Respondent. E048022 (Super.Ct.No. INF063176) OPINION

APPEAL from the Superior Court of Riverside County. Edward D. Webster, Judge. Affirmed. Rod Pacheco, District Attorney, and Alan D. Tate, Deputy District Attorney, for Plaintiff and Appellant. Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Respondent.

1

This is an appeal by the People from the dismissal of the misdemeanor vandalism case against defendant Lorena Gonzalez pursuant to Penal Code section 13821 because the trial court found there were no courtrooms available to hear the last-day case in a timely manner, and there was no good cause to continue the case. The People contend on appeal that the trial court, pursuant to section 1050, subdivision (a), should have given precedence to the instant case over civil cases; in particular, it should have used a courtroom designated as a civil-only department in the downtown Riverside courthouse and the "Hawthorne" civil courtrooms.2 Moreover, the trial court should have contacted the family, probate, and other designated noncriminal courtrooms to inquire if they could hear the instant matter. The refusal to make such inquiry, the denial of the request to continue the case, and resultant dismissal constituted errors of law by the trial court, and the charges against defendant should be reinstated.3 We find the trial court here did not abuse its discretion by dismissing defendants case based on the unavailability of any courtrooms to try the case and by denying a continuance. We affirm the dismissal of the case.
1

All further statutory references are to the Penal Code unless otherwise

indicated. Three courtrooms have been set up on a temporary basis at the Hawthorne Elementary School to hear civil cases. (People v. Flores (2009) 173 Cal.App.4th Supp. 9, 13 (Flores).) This court decided People v. Wagner (2009) 175 Cal.App.4th 1377 [Fourth Dist., Div. Two], which addressed the same issues raised here. The Supreme Court granted review on September 30, 2009 (S175794). On October 5, 2009, the People filed a request to stay the instant case until a decision is reached in Wagner. We denied that request on October 9, 2009.
3 2

2

I FACTUAL BACKGROUND4 On September 14, 2008, Indio Police Officer Paul McClain was dispatched to 46200 Calhon Street in Indio and came in contact with Alvaro Ochoa and Sergio Gonzalez. Both advised Officer McClain that they had seen defendant and her boyfriend or husband fighting in front of their mobile home. They had both told defendant they were going to call the police. They then observed defendant pick up a rock and throw it at Sergio. The rock hit Sergio on his foot and hand. Defendant picked up another rock and threw it at Sergios truck. It hit the front windshield and broke it. The estimated damage at the preliminary hearing was $750. II PROCEDURAL BACKGROUND On September 16, 2008, defendant was charged in a felony complaint with one count of vandalism (Pen. Code,

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