City and County of San Francisco Superior Court, No. 216967, Newton Lam, Judge. (San Francisco City & County Super. Ct. No. 216967
The opinion of the court was delivered by: Simons, J.
CERTIFIED FOR PUBLICATION
Penal Code section 1050, subdivision (g)(2)*fn1 provides that " 'good cause' " for continuing a trial in a murder case includes the circumstance that "the prosecuting attorney assigned to the case has another trial, preliminary hearing, or motion to suppress in progress in that court or another court." In this case, we resolve two unanswered questions regarding that section: Under what circumstances is another trial "in progress" and may a prosecutor obtain more than one such continuance.
On December 27, 2011, Maria Burgos (petitioner) was arraigned on an information charging her with committing first degree murder. Under section 1382, she is entitled to dismissal of the action if she is not brought to trial within 60 days of her arraignment, unless "good cause" is shown for any delay.*fn2 Pursuant to section 1050(g)(2), the respondent trial court on four occasions granted the request of real party in interest, the People, for continuance of petitioner's trial; the court concluded the section applied because the prosecutor was occupied in another murder case with hearings on motions in limine in the courtroom assigned for trial. Petitioner seeks writ relief, contending the trial court erred in granting the continuances and denying her motions to dismiss the case, because the trial in the other matter was not "in progress" within the meaning of the statute. Petitioner also contends it was improper for the trial court to grant serial continuances of 10 court days each; she contends the court only could continue trial under section 1050(g)(2) for a total of 10 court days. We reject petitioner's contentions and deny her petitions for writ of mandate/prohibition.*fn3
On December 23, 2011, the San Francisco District Attorney filed an information charging petitioner with premeditated murder (§ 187, subd. (a)), with an enhancement for use of a knife (§ 12022, subd. (b)(1)). On December 27, petitioner was arraigned and did not waive time for trial. The case was set for trial on February 3, 2012; under section 1382, the last day for trial was February 27, 2012.*fn4
By motion dated February 23, 2012, the prosecutor assigned to the case moved for a continuance pursuant to section 1050(g)(2). In a declaration, the prosecutor averred she is also assigned to the cases of People v. Frazier and People v. Walker, which are being tried jointly (hereafter, the Frazier/Walker cases). She further averred that trial began in the Frazier/Walker cases on February 21, the cases are "estimated to take an additional [six to eight] weeks," and "[b]ecause [she is] in trial in another homicide case [she] must request a continuance of" petitioner's case. Petitioner opposed the motion.
On February 27, 2012, the trial court held a hearing on the motion for a continuance. The prosecutor acknowledged it was the last day for trial under section 1382, but reiterated she was "currently in trial in Department 26 before Judge Giorgi, in the [Frazier/Walker cases]. [¶] That matter started jury trial. It was sent out the week of the 6th. It started the actual trial the 21st. It is also a homicide case." Defense counsel objected, arguing that the trial in the Frazier/Walker cases was not "in progress" within the meaning of section 1050(g)(2). She asserted the Frazier/Walker cases had "not even begun jury selection yet." The court granted the request for a continuance.
On February 28, 2012, petitioner moved to dismiss the instant case under section 1382 for violation of her statutory speedy trial rights. Petitioner contended that the prosecutor did not have another trial "in progress" within the meaning of section 1050(g)(2). In a supplemental declaration, defense counsel averred that she had spoken to an attorney representing Walker in the Frazier/Walker cases, who informed her that jury selection in those cases was scheduled to begin March 12.
At the March 6, 2012 hearing on the motion to dismiss, the prosecutor stated that in the Frazier/Walker cases she had "been in court nearly every day doing [Evidence Code section] 402 hearings and motions." They had "done more than a dozen lengthy motions, and . . . have hearings scheduled with witnesses as well prior to picking a jury." She explained that February 21 was the last day to bring the Frazier/Walker cases to trial under section 1382. The trial court denied petitioner's motion to dismiss. The court observed that if it were "to remove [the assigned prosecutor] from her present case and try [petitioner's] case, that essentially causes a dismissal in that other case. [¶] That's why [section] 1050(g) comes into play."
On March 8, 2012, the prosecutor again moved for a continuance of petitioner's case pursuant to section 1050(g)(2). At a March 12 hearing, petitioner objected, incorporating her previous arguments and asserting the statute "doesn't explicitly provide for more than a single 10-day continuance." The parties agreed that jury selection had not commenced in the Frazier/Walker cases. The court granted the continuance.
On March 14, 2012, petitioner again moved to dismiss the instant case under section 1382. The prosecutor stated that in the Frazier/Walker cases, the parties had "finished all the evidentiary hearings" and "anticipated calling a jury, beginning hardships either Thursday, which is tomorrow, or at the latest, Monday." The trial court stated it understood "the complexity of the particular case" and the prosecutor was "not replaceable in that case." The court denied the motion to dismiss.
Petitioner filed her first petition for writ of mandate/prohibition (A134928) in this court on March 22, 2012, contending the trial court was required to dismiss the case against her under section 1382 because there was no good cause under section 1050 for the continuances. She argues the prosecutor's other trial was not "in progress" because jury selection had not yet begun in the Frazier/Walker cases, and section 1050(g)(2) does not permit multiple 10-day continuances.
Also on March 22, 2012, the prosecutor moved for a third continuance of petitioner's case under section 1050(g)(2). In a supporting declaration, the prosecutor estimated it would take an additional six weeks to complete trial in the Frazier/Walker cases. Petitioner objected and defense counsel asserted that jury selection still had not commenced in those cases. On March 26, the trial court granted the motion for a continuance and, on March 27, denied a third motion to dismiss by petitioner. On April 6, the prosecutor moved for a fourth continuance under section 1050(g)(2). In a supporting declaration, the prosecutor estimated that it would take an additional five weeks to complete trial in the Frazier/Walker cases. On April 10, the trial court granted the motion for a continuance and, on April 11, denied a fourth motion to dismiss by petitioner.
On April 11, 2012, petitioner filed her second petition for writ of mandate/prohibition in this court (A135090), making the same claims of error made in the first petition, but including the March 26 and April 11 continuances.*fn5
This court consolidated the two petitions for purposes of briefing, oral argument if any, and decision, and issued an order to show cause. The parties have submitted ...