People v. Coats

Opinion

RACANELLI, P. J.

Defendant appeals a judgment of conviction of second degree burglary entered upon a jury’s guilty verdict. Upon granting rehearing, we reverse the judgment under the authority of

People

v.

Hosner

(1975) 15 Cal.3d 60 [123 Cal.Rptr. 381, 538 P.2d 1141].

Facts

The procedural facts essential to our determination may be briefly stated:

On February 10, 1982, an order of mistrial was entered due to the jury’s inability to reach a verdict (the jury stood nine to three for acquittal) and the cause transferred to the master calendar department for resetting on February 18, 1982.

On February 18, 1982, the cause was continued for trial on April 12, 1982.

On April 6, 1982, defendant moved for a continuance of trial on the grounds that the transcript of the first trial, formally ordered prepared by the trial judge on March 30, 1982, was unavailable due to the reporter’s illness; although no objection to a continuance was raised by the People based on the grounds stated by defense counsel, the motion was denied.

[1155]

On April 12, 1982, defendant renewed his motion for continuance on the same grounds; the motion was again denied by the master calendar judge with the statement that the reporter “will be available for purposes of prior inconsistent statements and things of that nature, if . . . . [¶] . . . something should come up.” Thereafter, trial commenced before the original trial judge.

I

Hosner Error

Relying on

People

v.

Hosner, supra,

15 Cal.3d 60, defendant argues that denial of his timely motion for a continuance of trial requiring him to proceed to trial without benefit of a transcript of his first trial constituted per se reversible error. We agree.