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People v. Engleman2/4/1981
test results was prejudicial. (People v. Watson (1956) 46 Cal. 2d 818, 837 [299 P.2d 243].)
Retrial is necessary, however, as the admissible evidence, including the officers' observations and the defendant's field sobriety performance are substantial enough to support a conviction if the jury chooses to disbelieve Ms. McGrath. (People v. Hanggi (1968) 265 Cal. App. 2d Supp. 969, 972 [70 Cal. Rptr. 540].) Retrial is not barred by People v. Pierce (1979) 24 Cal. 3d 199, 210 [155 Cal. Rptr. 657, 595 P.2d 91].
We must deal with the contention that defendant's rights were prejudiced by the three-week continuance in the trial of the case occurring after the People had rested. This continuance was ordered by the trial judge so that he could return to his "home court" -- he having been temporarily assigned by the Chairperson of the Judicial Council to the Antelope Judicial District. It should have been apparent to the judge, before the trial started, that he would be unable to conclude it before returning home. Under Penal Code section 1053, the judge should have had the other judge in Antelope Judicial District finish the case or notify the Chairperson of the Judicial Council of his inability to continue trying the case. Our record does not indicate that this code section was complied with. In People v. Katzman (1968) 258 Cal. App. 2d 777, 787 [66 Cal. Rptr. 319], the court held a judge erred in granting a 13-day continuance while he attended a judicial conference. However, in Katzman, only the jury had been impanelled before the continuance and the court did not find defendant was prejudiced. In our case, however,
the defendant was prejudiced. The delay came after the jury had heard the People's case and before the defendant had a chance to introduce his evidence. Thus the jury was left with a one-sided presentation for three weeks. We feel this would cause the jurors to determine the case before hearing both sides. Given the length of the delay, we think it must have been practically impossible for the jurors to keep an open mind as to possible answers to the People's case. We hold that this was inherently prejudicial to defendant's receiving a fair trial, even though it is hard to demonstrate what effect this delay had on the jurors' thought processes. (See Gordon v. Justice Court (1974) 12 Cal. 3d 323, 329 [115 Cal. Rptr. 632, 525 P.2d 72, 71 A.L.R.3d 551], for analogous situations.) This defect independently requires a new trial for defendant. (Katzman, supra, at p. 789; People v. Watson, supra, 46 Cal. 2d 818.)
The judgment is reversed.
Disposition
The judgment is reversed.
General Footnotes
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