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Name: People v. Graves
Case #: B220129
Court: CA Court of Appeal
District 2 DCA
Division: 3
Opinion Date: 10/25/2010
Subsequent History: review denied but depublished 2/23/11

Forcing an unprepared prosecutor to trial violates the legislative intent behind Penal Code section 1050 and 1382. The People appealed a dismissal of a misdemeanor charge of spousal battery and battery of a mother-in-law. The case was transferred to the Court of Appeal to address the People’s right to trail a case within the period of the speedy trial statute and the trial court’s right to deny a continuance when good cause for a continuance has not been shown. The case was set for trial on day 28 of 30 days for purposes of the speedy trial statute for misdemeanors. The two victims had been ordered to return to court, but on the day set for trial the People could not show that they had been served with subpoenas, and thus there was no good cause for a continuance. The case was transferred to a trial department where the court refused to hear the People’s motion for a continuance. A jury was selected and sworn. The prosecutor refused to participate. The defense made a motion to dismiss pursuant to Penal Code section 1118.1 and it was granted without any objection from the People. The People have a right to appeal the decision of acquittal after jeopardy had attached because it resulted from a sham trial, one in which the judge’s label of acquittal was not determinative since there was no determination about the factual elements of the offense. The sham trial did not trigger double jeopardy. The People had a right to continue the trial within the deadline of section 1382 without the need for showing good cause. Section 1050, requiring good cause, does not trump section 1382. The Rules of Court and section 1050 require a showing of good cause, but that does not authorize a dismissal so long as the requested date is within the speedy trial statute or grace period. The order of dismissal was reversed and the case remanded to reschedule trial.