Continuances

Overview // Good Cause Requirement // Good Cause Requirement: Exceptions

Overview

PC 1050 regulates the granting of continuances in criminal cases. (People v. Johnson (2013) 218 Cal.App.4th 938, 942.)
- Generally, there are two requirements: Two-Day Notice + Good Cause
Two-Day Notice: written notice at least two court days before the hearing. (PC 1050(b).)
- Failure to Comply + No Good Cause for Failure: potential sanctions under PC 1050.5.

Good Cause Requirement

Good Cause: continuances shall be granted only upon a showing of good cause. (PC 1050(e).)
- See People v. Sutton (2010) 48 Cal.4th 533 for good discussion of good cause caselaw.
Domestic Violence Cases: Assigned DDA Conflict. Good cause includes DDA assigned to the DV case has another trial, preliminary hearing, or motion to suppress in progress.
- Continuance shall be up to 10 additional court days. (PC 1050(g)(2).)
- Another trial is “in progress” only when the judge overseeing the other trial is “available and ready to try the case to the conclusion, the court has committed its resources to the trial, and the parties are ready to proceed.” (Burgos v. Superior Court (2012) 206 Cal.App.4th 817, 836.)
PH & Co-Defendants. good cause for a co-D to continue a PH is good cause for all co-Ds. (PC 1050.1.)
- This does not apply beyond the 60th Day if TNW
Unavailable Witness.
- (Owens v. Superior Court (1980) 28 Cal.3d 238, 250-251.) Constitutes good cause if:
  - (1) Party seeking the delay has exercised due diligence in securing the attendance of the witness at trial by legal means
    - Service of subpoena upon a witness meets the burden to show the exercise of due diligence to obtain their presence at trial. (People v. Perez (1989) 207 Cal.App.3d 431, 436.)
    - Issuing subpoena 4 days before JT does not, as a matter of law, establish a lack of due diligence. (People v. Shane (2004) 115 Cal.App.4th 196.)
    - Issuance of subpoena on 6/21/21, (JT set for 6/24/21) where witness had been out of state since 6/1/21, no lack of due diligence b/c court “will not speculate about whether his availability would have changed if the prosecutor issued the subpoena a week or two earlier.” (Elias v. Superior Court (2022) 78 Cal.App.5th 926, 939.)
    - Determination of diligence is fact specific and made on a case-by-case basis. (Elias v. Superior Court (2022) 78 Cal.App.5th 926, 939.)
  - (2) The testimony of the witness is material
  - (3) Testimony is not merely cumulative
  - (4) Attendance of the witness can be obtained within a reasonable time; and
  - (5) Facts about which the witness is expected to testify cannot otherwise be proven.
- EC 240. Witness is unavailable if:
  - (1) Exempted or precluded on the ground of privilege from testifying
  - (2) Disqualified from testifying to the matter
  - (3) Dead or unable to testify at the hearing because of then-existing physical or mental illness or infirmity
  - (4) Absent from the hearing and the court is unable to compel his attendance by its process
  - (5) Absent from the hearing and the proponent has exercised reasonable diligence but has been unable to procure his attendance by the court’s process; OR
    - Delayed investigation into unknown witness’s whereabouts and lack of urgency in pursuing leads will undermine finding of reasonable diligence. (People v. Cromer (2001) 24 Cal.4th 889.)
    - Reasonable Diligence. Relevant factors:
      - Timeliness of the search
      - Importance of proffered testimony
      - Whether leads of the witness’s possible location were competently explored. (People v. Wilson (2005) 36 Cal.4th 309, 341.)
    - Hearsay. Officer’s efforts to exercise due diligence in securing a witness’s attendance in court is NOT hearsay. (People v. Smith (2003) 30 Cal.4th 581, 609-611.)
  - (6) Persistent in refusing to testify concerning the subject matter of the declarant’s statement despite having been found in contempt for refusal to testify
Public Health Crisis: can constitute good cause. (Stanley v. Superior Court (2020) 50 Cal.App.5th 164.)
Defense attorney unavailable in another trial. Good cause to continue beyond statutory max. (People v. Sutton (2010) 48 Cal.4th 533, 551.)
- Even over D’s objection. (People v. Superior Court (Lerma) (1975) 48 Cal.App.3d 1003, 1009.)
Defense attorney needs time to prepare. Good cause to continue beyond statutory max. (People v. Superior Court (Lerma) (1975) 48 Cal.App.3d 1003, 1009.)
- Even over D’s objection. (Ibid.)
- If counsel seeks reasonable time to prepare a defendant’s case, and the delay is for defendant’s benefit, a continuance over the defendant’s objection is justified. (People v. Lomax (2010) 49 Cal.4th 530, 556.)
Delay caused by defendant’s conduct. (Greenberger v. Superior Court (1990) 219 Cal.App.3d 487, 508.)
Testimony of Defendant or Defense Witness. Prosecutor is entitled to a reasonable continuance on request when the defendant or a defense witness testifies at trial, unless the court finds that the prosecutor was, or with due diligence should have been, aware of such evidence.
- If continuance granted b/c of D’s testimony, cannot exceed 1 day. (PC 1051.)
NOT Good Cause
- Court Congestion: when D objects and the new date would exceed the time limits of PC 1382 for bringing a case to trial. (People v. Engram (2010) 50 Cal.4th 1131, 1160.)
- Convenience of Parties: not good cause for a continuance. (PC 1050(e).)

Good Cause Requirement: Exceptions

Where these exceptions apply, Court cannot dismiss case despite failure to comply with PC 1050
Preliminary Hearings
- TNW PH 10-Day Exception (PC 1050(k)):
  - No Notice OR good cause required to continue PH if:
    - Current PH Date < 10 Court Days from D’s ARR; AND
    - Future PH Date ≤ 10 Court Days from D’s ARR
  - Exception applies to 10 court days from the date of either D’s ARR or plea. (People v. Smith (2016) 245 Cal.App.4th 869, 874.)
- TW (10-day) PH w/n 60-days & out-of-custody:
  - The trial court has no authority to dismiss an action, even when the People have failed to show good cause for a continuance under section 1050, so long as the requested date for the preliminary hearing is within the statutory time limit established in PC 859b.
  - In this case, D waived the 10-day rule. P requested a continuance to a date w/n the 60-day period, b/c of unavailable witnesses but due diligence to secure attendance not shown. CT found no good cause & dismissed case. REVERSED.
  - (People v. Henderson (2004) 115 Cal.App.4th 922, 939.)
Jury Trials
- TNW JT 10-Day Grace Period (PC 1382(a)(2)(B)):
  - No showing of good cause necessary for a continuance to a date which is within the 10-day grace period. The statutory grace period is an exception to the good cause requirement in the introductory clause of [PC 1382]. (People v. Hernandez (1979) 97 Cal.App.3d 451.)
  - Requirements:
    - (1) D agreed, express or implied, to a trial date beyond the applicable period; and
    - (2) D is objecting to further postponement
  - Whenever D requested or agreed to begin a trial on a date beyond the applicable period (i.e. the 60th day), the case must be brought to trial no later than 10 days after that date. (People v. Brown (2023) 14 Cal.5th 530, 539.)
  - Trailing Day-To-Day Attributable to People Does Not Restart The Clock. A defendant’s failure to object to a prosecutor’s request to trail from day to day within the 10-day grace period does not initiate a new 10-day period each time the case is trailed. (Barsamyan v. Appellate Division of Superior Court (2008) 44 Cal.4th 960, 978.)
  - Codefendants. “[T]here is always good cause to continue a codefendant’s trial within section 1382’s 10-day grace period to maintain joinder…no particularized or case-specific showing or finding of good cause is required.” (Smith v. Superior Court (2012) 54 Cal.4th 592, 606.)
  - Last Day: if it lands on weekend or court holiday -> last day is next available court date. (People v. Taylor (1975) 46 Cal.App.3d 513, 534-535; Code Civ. Proc. § 12a.)
- TNW Misdemeanor JT w/n 45 days & out-of-custody:
  - Ct abused discretion dismissing case under PC 1385 despite lack of good cause for continuance. (People v. Rubaum (1980) 110 Cal.App.3d 930.)
- TNW Felony JT w/n 60 days:
  - Even where good cause is not shown, a court should not deny the prosecution a continuance “when to do so would foreseeably result in dismissal.” (People v. Johnson (2013) 218 Cal.App.4th 938, 943.)
    - PC 1050(l) explains that PC 1050 “is directory only and does not mandate dismissal of an actions by its terms.” (Id. at pp. 942-943.)
  - Trial courts “must postpone the hearing to anther date within the statutory period.” (People v. Henderson (2004) 115 Cal.App.4th 922, 940.)
  - The court has no power to deny the People’s unjustified motion to continue trial unless delay would violate PC 1382 statutory time limits. (People v. Rubaum (1980) 110 Cal.App.3d 930, 935-936.)
  - “[A]n action that can be brought to trial within the applicable section 1382 time limit may not be dismissed despite the absence of good cause for the continuance.” (People v. Brown (2023) 14 Cal.5th 530, 540, internal citation omitted.)
PC 1538.5 Hearing
- Where Dismissal Reasonably Foreseeable: it is an abuse of discretion for the court to deny continuance of a suppression hearing when it is reasonably foreseeable that dismissal of the case will result, unless dismissal would be in furtherance of justice [under PC 1385(a)]. (People v. Brown (2023) 14 Cal.5th 530, 534.)
  - Dismissal cannot be justified under PC 1385(a) in furtherance of justice where there had been no showing of prejudice to the defendant. (Ibid.)