Little v. Superior Court

Opinion

TAYLOR, P. J.

Petitioner, charged by information with a violation of section 273a, subdivision (1) of the Penal Code (willful cruelty toward child) seeks a writ of prohibition to restrain respondent superior court from taking any further action in this matter other than to grant defendant’s motion to set aside the information. Petitioner contends (1) that his commitment is illegal because the magistrate, by denying him a continuance, denied him his right to counsel, and (2) that he had been committed without reasonable or probable cause.

1

[670]

The record reveals that the matter was set for preliminary hearing on April 28, 1980. At the time called, Deputy Public Defender Gary Faldesy appeared and advised the court that because of a calendaring error, Deputy Public Defender Noel Marcovecchio, who had been assigned the case, was not present in court. Faldesy, who was Marcovecchio’s supervisor, moved for a continuance to permit Marcovecchio, who had prepared the case, to represent petitioner at the preliminary hearing.

Assistant District Attorney William Fazio, representing the People, objected to a continuance on the ground that he had summoned a witness from Monterey and that his other witness, one Dr. Sanchez, was a busy pediatrician. Fazio contended that Faldesy was competent to proceed to represent petitioner at the hearing. Faldesy objected on the ground that he was unfamiliar with the facts and circumstances of the case, had never spoken to the petitioner, whom he had met in the courtroom but 10 minutes earlier, that he did not know whether Marcovecchio had planned to call witnesses on petitioner’s behalf, and that he was totally unprepared to proceed. The magistrate thereupon suggested that the preliminary hearing commence with the witness from Monterey, and that the proceeding then be continued to another date when the other witness could be called. Faldesy pointed out to the magistrate that because of his total ignorance of the facts and circumstances of the case, his participation would deny competent representation to petitioner, even as to the one witness, who could be the crucial witness.

The request for a continuance was denied, and although Faldesy informed the magistrate that he would not participate and would remain silent, the magistrate ordered the preliminary hearing to proceed. The prosecution called the witness from Monterey and the pediatrician who had treated the victim. Although codefendant’s counsel cross-examined the witnesses, called one witness on behalf of his client, and argued the matter, Faldesy remained silent. At the conclusion of the hearing, petitioner was held to answer to the superior court.