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The court did not, by these rulings, abuse its discretion or deprive the defense of a reasonable opportunity to prepare.  Counsel’s bare assertion that they would need 30, 45, or 60 days to complete their examination of the paint samples did not constitute good cause for such a lengthy continuance, especially as the prosecution had not even begun to present its own case.  Nor does the record indicate the defense was actually prejudiced by the denial of a lengthy continuance for examination of the paint materials.5  Nor, finally, has defendant even attempted to demonstrate he was prejudiced by the trial court’s swearing in the jury panel before his writ petition was heard and decided.  

C.  Trial continuance granted June 12, 1990

The jury returned its guilt verdict and special circumstance finding on June 4, 1990.  On request of defense counsel, the court ordered the penalty trial to begin on June 12.  On June 11, however, attorney Miller filed a continuance motion asserting that counsel needed additional time for penalty investigation and consultation.  At a hearing on June 12, Miller estimated they needed 30 to 45 days to complete their investigation.  Despite its “astonish[ment]” that counsel, having previously represented defendant in a penalty trial and having been reappointed for more than two years, was still unprepared, the court granted the motion for continuance, setting July 17 for the start of the penalty trial.

The penalty trial began on July 17, 1990, with presentation of the People’s opening statement and evidence.  After the prosecution rested, the defense also rested without giving a statement or presenting any evidence.  Defense counsel did

5 When, on Tuesday, May 8, 1990, the prosecution called its expert, Schliebe, defense counsel Maple protested that the defense had not yet completed its examination and was therefore unprepared to cross-examine Schliebe.  At the court’s suggestion, Schliebe’s testimony was postponed to Monday, May 14.  Maple agreed that was satisfactory, noting that the defense evaluation of the evidence would be complete by then.  

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