People v. Foster CA1/4

I.

INTRODUCTION

A jury found appellant Davon Foster guilty of attempted robbery. (Pen. Code, §§ 664, 211.)1 After the jury returned its guilty verdict, the trial court found that the new conviction established a violation of probation previously granted and sentenced appellant to a total term of three years in state prison. On appeal, appellant contends the trial court abused its discretion, and denied him his constitutional right to a meaningful opportunity to present a complete defense, when it denied his motion to continue the trial. The motion was made after a defense witness, who was under subpoena, failed to appear. We conclude the trial court’s denial of a continuance was an abuse of discretion because the testimony of the missing witness was shown to be material to the defense. The denial also was prejudicial to appellant because if that testimony was credited by the jury, there

1 All undesignated statutory references are to the Penal Code.

1 existed a reasonable probability that the result would have been different. Consequently, we reverse the judgment.

II.

FACTS

At about 8:30 p.m. on July 26, 2012, Abdulsalam Jobah was the sole employee working at the ABB Market…