P. v. Herring 2/19/10 CA4/2

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State: California

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

Docket No: E048775

Case Date: 04/29/2010

Preview:Filed 2/19/10 P. v. Herring 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. KEVIN LEE HERRING, Defendant and Respondent. E048775 (Super.Ct.No. RIF145497) 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. Eleanor M. Kraft, under appointment by the Court of Appeal, for Defendant and Appellant.

1

This is an appeal by the People from the dismissal of a felony domestic violence case against defendant Kevin Lee Herring pursuant to Penal Code section 1382,1 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 the "Hawthorne" civil courtrooms.2 Moreover, the People maintain the trial court should have conducted an individual determination as to whether the family, probate, and other designated noncriminal courtrooms could hear the instant matter. Finally, the People contend that the refusal to make such an inquiry, the denial of the request to continue the case, and resultant dismissal constituted errors of law by the trial court, and that the charges against defendant should be reinstated.3 We hold that the trial court did not abuse its discretion by dismissing defendants case based on the unavailability of any courtrooms to try the case or by denying a continuance. We affirm the dismissal of the case.

1 2

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 13, 2009.
3

2

FACTUAL BACKGROUND4 On November 3, 2007, defendant and his wife, the victim, went out for beers. After returning home, the victim fell asleep. One of their "boarders" woke the victim to inform her that defendant was "a little out of control." Defendant wanted to let his small son ride the victims horse. The victim refused to permit defendants son to ride her horse because she believed it would be unsafe. Defendant and the victim then got into an argument. Defendant picked up the victim and threw her into a wall unit. She incurred severe bruising and sores on her side as a result of the assault. PROCEDURAL BACKGROUND On September 5, 2008, defendant was charged in a felony complaint with one count of corporal injury upon a cohabitant. (Pen. Code,

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