OKORIE OKOROCHA (State Bar No. 226658)
117 E. Colorado Blvd. • Suite 465
Pasadena, California 91101
(626) 792-1301 Telephone
(626) 340-4141 Facsimile
OO@CASEHELP.COM
Attorneys for Defendant
SUPERIOR COURT FOR THE COUNTY OF ORANGE
CENTRAL DISTRICT OF CALIFORNIA
APPELLATE DIVISION
| CLIENT ONE AND HIS ATTORNEY OF RECORD OKORIE OKOROCHA
PETITIONER,
vs.
THE SUPERIOR COURT FOR THE COUNTY OF ORANGE
RESPONDENTS. |
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IMMEDIATE STAY REQUESTED
Appellate Case No.:
Trial Court Case Number: 0000000
WRIT OF PROHIBITION AND MANDAMUS
CONCURRENT WRIT ON THE SAME GROUNDS FILED IN PEOPLE V. CLIENT ONE, CASE NUMBER 0000000 FILED |
Petitioner and his counsel hereby request a writ of mandamus and/or prohibition preventing the trial Court from continuously ordering the Defendant and his attorney to be present every single day in the above trial Court while Defense Counsel is engaged in another trial and denying a continuance of the above case as punishment for choosing to exercise the right to go to trial. This trial court ruling action further forces Defense Counsel to expend tremendous resources locating and hiring appearance attorneys for the entire time he is in trial. Further, by forcing the Defendant to waste a lot of time and resources by going to Court repeatedly if he chooses to go to trial or have counsel of his choice, he is also being denied the right to trial and Counsel in violation of the most prized rights in the U.S. and California Constitutions.
MEMORANDUM OF POINTS AND AUTHORITIES
I. FACTS
ALTHOUGH ALL LAWYERS WHO BELIEVE IN THE CONSTITUTION AND THE RIGHT TO A JURY TRIAL OVER THEIR OWN FINANCIAL GAIN AND AT THEIR PERIL, THE RIGHTS THEY PROTECT ARE SACRED AND ARE ABOVE ALL ELSE
It is an unfortunate but undeniable fact that any lawyer who refuses to go to trial can churn cases and make a fast dollar. Equally as unfortunate is the perilous plight a lawyer faces for believing in the constitution and placing clients first and the repercussions that will result in some quarters.
Nevertheless, the underlying motions must be made pursuant to Penal Code 1050, although it regrettably causes inconvenience.
In this case, we are now going into the THIRD day in a row (March 2, 2011) that defense counsel is being harassed by being ordered to be in Court for no reason. Defense Counsel is being harassed for taking cases to trial and NOT being dishonest by collecting retainers and forcing his clients to plead guilty, as it the custom and practice of the majority of lawyers that “defend” driving under the influence cases. This is forcing defense counsel to expend large amounts of time, resources and money finding attorneys to cover his hearings for him and there is no end in sight.
II. LAW
Penal Code section 1050(b) provides that:
To continue any hearing in a criminal proceeding, including the trial, (1) a written notice shall be filed and served on all parties to the proceeding at least two court days before the hearing sought to be continued, together with affidavits or declarations detailing specific facts showing that a continuance is necessary….
Penal Code section 1050(e) further provides that “Continuances shall be granted only upon a showing of good cause.” The request must be supported by declarations, unless the court first finds good cause to excuse the notice and declaration requirement. The declaration must be executed under penalty of perjury. (Brown v Superior Court (1987) 189 CA3d 260, 265, 234 CR 416.)
The grant or denial of a motion for continuance is an act within the Court’s discretion (Ungar v Sarafite, (1964) 376 US 575, 589, 11 L Ed 2d 921, 931, 84 S Ct 841), but this discretion is not without bounds:
While the determination of whether in any given case a continuance should be granted normally rests in the discretion of the trial court, that discretion may not be exercised in such a manner as to deprive the defendant of a reasonable opportunity to prepare his defense. (Jennings v Superior Court (1967) 66 C2d 867, 59 CR 440.)
Although the Court must consider the welfare of witnesses (Pen C §1050(g)) and the right of the People to a speedy disposition (Pen C §1050(a)), it must also consider the defendant’s right to a fair trial. (People v Courts (1985) 37 C3d 784, 794, 210 CR 193. See also People v Murphy (1963) 59 C2d 818, 31 CR 306 (error to deny continuance to prepare following last-minute amendment by prosecution).)
When a defendant joins in requesting a continuance caused by defense counsel’s court commitments on behalf of other clients, the court must grant the continuance until either defense counsel can appear or the defendant can obtain other counsel. (People v. Manchetti (1946) 29 C2d 452, 458, 175 P2d 533.)
There are no provisions in the Judicial Council or superior court rules or in any statute that would authorize a judge in one department to make a blanket order creating a priority for that department over other departments of the superior court with respect to the services of an attorney — be he in private practice or a member of the public defender’s office
Glen Mowrer, Jr., v. The Superior Court (Los Angeles County), 83 Cal. Rptr. 125, 3 Cal.App.3d 223, 231 (1969).
III. CONCLUSION
The Petitioner therefore requests that the instant Petition be granted.
DATED: March 1, 2011
_________________________
Okorie Okorocha
DECLARATION RE VERIFICATION, TRANSCRIPTS AND MINUTE ORDERS
1. I, OKORIE OKOROCHA, am the attorney for the Defendant in the instant case.
2. I declare that the contents of this writ are true and accurate.
3. I will obtain all transcripts and minute orders as soon as possible.
4. I have not been able to do so as this is an emergency writ filed while in trial.
5. A COPY OF THIS PETITION IS BEING SERVED ON THE TRIAL COURT THAT MADE THE RULINGS BEING CHALLANGED.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Executed this 1st day of March, 2011.
___________________________
Okorie Okorocha
PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
I am over the age of 18 and not a party to the within action. My address is 1055 E. COLORADO BLVD. · PENTHOUSE, PASADENA, CALIFORNIA 91105
On March 1, 2011, I served the foregoing document described as: writ of prohibition and mandamus on all interested parties as follows:
DEPARTMENT H13
Harbor Justice Center
Newport Beach Facility
4601 Jamboree Road
Newport Beach, CA 92660-2595
DISTRICT ATTORNEY
Harbor Justice Center
Newport Beach Facility
4601 Jamboree Road
Newport Beach, CA 92660-2595
DEPARTMENT W13
West Justice Center
8141 13th Street
Westminster, CA 92683-4593
DISTRICT ATTORNEY
West Justice Center
8141 13th Street
Westminster, CA 92683-4593
xxxxx (BY PERSONAL SERVICE) I caused such envelope to be hand-delivered to the above-referenced parties.
XXXX (STATE) Pursuant to the California Rules of Civil Procedure.
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I declare under penalty of perjury under the laws of the State of California that the above is true and correct.
Executed on March 1, 2011, at Pasadena, California.
________________________
Okorie Okorocha
FILE AT THE MISDEMEANOR APPEALS WINDOW
SANTA ANA SUPERIOR COURT.
