(Mendocino County Super. Ct. No. SC-UK-CR-CR 08-84982). Richard Henderson, Judge.
The opinion of the court was delivered by: Simons, Acting P.J.
CERTIFIED FOR PUBLICATION
On the date scheduled for the hearing on a defense motion to suppress evidence under Penal Code section 1538.5,*fn1 the trial court denied a prosecution motion to continue the hearing under section 1050 because proper notice of the motion had not been provided and no good cause existed for the failure to provide notice or for the continuance itself. Because the prosecution was unable to proceed, the court ordered the evidence suppressed. Lacking the suppressed evidence, the prosecution announced it could no longer successfully prosecute the case, and the trial court dismissed the action.
The trial court erred in refusing to continue the hearing. Sections 1050 and 1050.5 prohibit the dismissal of an action due to the absence of good cause for a continuance or for the prosecutor's failure to provide proper notice of a request for a continuance. Although the trial court did not dismiss the action as an express sanction for the failure to show good cause, dismissal was the reasonably foreseeable result of denial of the motion to continue. Cases involving requests for continuances in the preliminary hearing and trial contexts support a conclusion that the Legislature did not intend to permit denial of a motion for a continuance in the present circumstances, where an information supported by probable cause was dismissed on a procedural ground not implicating defendant's speedy trial rights. We reverse and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND*fn2
On June 5, 2008, Mendocino County sheriff's deputies executed a search warrant at the property of Roberto Leon on Blue Lake Road in Willits. The deputies discovered a large marijuana growing operation, including more than 200 live plants, 26 pounds of processed marijuana, and $11,700 in cash. Nestor Mauricio Ferrer (defendant) drove up to the property during the search and was detained. A search of defendant uncovered a set of keys to various buildings on the property. Defendant told the deputies that he was working cutting firewood and changing the oil in generators on the property. He admitted he knew marijuana was being cultivated there.
On June 26, 2008, the Mendocino County District Attorney filed a felony complaint charging defendant with cultivation of marijuana (Health & Saf. Code, §á11358) (count one), possession of marijuana for sale (Health & Saf. Code, §á11359) (count two), and management of a location used for unlawful manufacture or storage of a controlled substance (Health & Saf. Code, §á11366.5, subd. (a)) (count three). After the preliminary hearing, defendant was held to answer on count one and the other two counts were dismissed. On October 20, the Mendocino County District Attorney filed a felony information charging defendant with cultivation of marijuana (Health & Saf. Code, §á11358). Defendant subsequently waived time, and trial was set for February 2, 2009.
On November 18, 2008, defendant filed a section 1538.5 motion to suppress the fruits of the June 2008 warrantless detention and search, essentially the keys seized from defendant's person and the statements he made to the deputies. A hearing on the motion was calendared for December 5, which was 17 days after the motion was filed and approximately two months before trial. The People filed an opposition on December 2, and defendant filed a reply the next day.
At the suppression hearing on December 5, 2008, the prosecutor requested continuance of the hearing, stating she had not subpoenaed her witnesses due to a "mix up." Defendant objected to the request. The trial court deferred ruling on the request and then, on December 11, issued a written order denying the People's "oral motion" for a continuance under section 1050. The court also granted defendant's motion to suppress because the People had failed to meet their burden of presenting evidence establishing the lawfulness of the warrantless detention and search.
On December 19, 2008, the People suggested they might be able to proceed against defendant with evidence found on Roberto Leon's property that was not subject to the motion to suppress. On January 6, 2009, the People announced that without the suppressed evidence they were unable to proceed against defendant. The trial court dismissed the information.
Relying primarily on People v. Henderson (2004) 115 Cal.App.4th 922 (Henderson), the People contend the trial court lacked authority to deny the request for a continuance and grant the motion to suppress, where there was adequate time for the motion to be heard on another date before trial.
The parties agree that section 1050 applied to the People's request to continue the hearing on defendant's motion to suppress. Section 1050, subdivision (b), provides that a party seeking to continue a hearing in a criminal proceeding must file and serve notice of the request at least two court days before the scheduled hearing. (See also Henderson, supra, 115 Cal.App.4th at p. 933.) Section 1050, subdivision (d), provides: "When a party makes a motion for a continuance without complying with the requirements of subdivision (b), the court shall hold a hearing on whether there is good cause for the failure to comply with those requirements. At the conclusion of the hearing, the court shall make a finding whether good cause has been shown and, if it finds that there is good cause, shall state on the record the facts proved that justify its finding.á.á.á. If the moving party is unable to show good cause for the failure to give notice, the motion for continuance shall not be granted."
In the present case, the prosecutor failed to provide notice; instead, she verbally requested a continuance at the suppression hearing. As explanation for the need for a continuance, the prosecutor told the trial court that there had been a "mix up" in her office, resulting in a failure to subpoena her witnesses. Specifically, she explained that defendant's suppression motion was filed November 18, 2008; she went on a one-week vacation on November 21; and, although she managed to file an opposition upon her return, the file had been routed to someone ...