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Name: Osman v. Superior Court
Case #: B181672
Court: CA Court of Appeal
District 2 DCA
Division: 1
Opinion Date: 11/16/2005

A defendant who fails to object to an order granting the prosecution 33 days to amend a defective complaint has forfeited the right to a ten-day filing period. Penal Code section 1007 sets a ten-day limit on amendment to a defective complaint after a defendant’s demurrer has been sustained, and section 1008 requires dismissal if the complaint is not amended within that period. Here, the order sustaining the defendant’s demurrer granted the prosecution 33 days to amend the complaint, and the defendant did not object. After 22 days, the defendant moved to dismiss the complaint. The Court of Appeal denied the defendant’s petition seeking a writ of mandate, holding that by failing to object to the original order, she waived the application of the ten-day limit.