Continuance
Category > Continuance
Updated 2/3/2024Trial court can deny a continuance of suppression motion for good cause even if the decision should result in dismissal of the case. If a trial court finds that the request for a continuance of a motion to suppress lacks good cause under Penal Code section 1050(e), the trial court has the authority to deny the requested continuance on that basis even if this decision may forseeably result in a dismissal of the prosecution. id: 27510
Updated 2/3/2024The trial court erred in denying defendant’s request for a continuance so he could develop facts to support a motion under the Racial Justice Act.The California Racial Justice Act became effective after the remittitur and before the resentencing hearing. Defense counsel had less than a week after she was appointed to familiarize herself with a case, prepare a sentencing brief, and prepare a motion for discovery under the CRJA. The trial court abused its discretion in denying defendant’s request for a continuance of the sentencing hearing so that he could develop facts to support a motion for discovery under the Act.id: 27591
Updated 2/3/2024The trial court should grant a continuance of a hearing on a suppression motion even absent good cause where the refusal to do so would result in dismissal. A trial court errs by denying a continuance of a hearing on a Penal Code section 1538.5 suppression motion solely because good cause is lacking when doing so would result in the dismissal of charges and the continuance can be granted without violating the defendant’s speedy trial rights.id: 27707
The trial court erred in finding the 10 day speedy trial grace period applicable to one defendant who requested a continuance applied to a jointly charged codefendant who did not waive time.Smith and Sims were jointly charged defendants. Smith did not waive his statutory speedy trial right. April 13 was the last day to begin the trial, and on April 10, counsel for codefendant Sims became ill and was unavailable for trial that day. The prosecution argued this amounted to good cause to continue the case for both defendants and severance was not required. The 10 day grace period that applied to Sims (who had requested a continuance due to his counsel’s unavailability) did not apply to the trial of Smith. And Penal Code section 1050.1, on these facts and absent a showing of good cause, did not extend the 10 day grace period to a jointly charged defendant. The trial court erred in denying defendant’s motion to dismiss.id: 21847
The trial court erred by denying defendant’s request for a one-day continuance after granting his Faretta motion during jury selection.The trial court granted defendant’s request to replace appointed counsel several times before trial. During jury selection the court ultimately granted defendant’s request for self-representation, a request defendant initially made several days earlier. The trial court abused its discretion by denying defendant’s request for a one-day continuance.id: 23982
The trial court did not err by dismissing the case pursuant to section 1382 due to the court’s refusal to assign criminal cases to a limited number of civil trial departments.The Riverside superior court did not violate Penal Code section 1050 in declining to assign criminal cases to the limited number of trial court departments reserved for specialized civil matters or to the several judges from outside the county who had been assigned specifically to that court to assist in the trial of long-delayed civil matters. The trial court did not abuse its discretion in determining that good cause did not exist under section 1382 to continue the trial to a later date over defendants’ objection.id: 21843
Minor was denied his speedy trial right where prosecutor misrepresented his readiness for the jurisdictional hearing, only later telling the court his key witness was unavailable for another week.The prosecutor misrepresented his readiness for the juvenile jurisdictional hearing, and informed the court only after the hearing was underway that his key witness, the only one who could tie the minor to the assault, was unavailable to testify for another week. The misconduct effectively violated his right to a speedy trial. Moreover, the court abused its discretion when it subsequently granted the prosecutor's request for an eight day recess in the hearing until the witness became available. However, the only prejudice the minor asserted was that additional crucial evidence was produced after the lengthy recess period. This was not a miscarriage of justice and the jurisdictional order was affirmed.id: 18889
Continuance of the jurisdictional hearing, over the minor's objection, more than seven days beyond the minor's requested continuance required his release.The minor was entitled to be released once the juvenile court continued the case more than seven days from the date to which the matter had been continued at the minor's request. While the minor had been released pending the outcome of the present writ petition, the issue was not moot since it was one of broad public interest that is likely to recur.id: 19031
The unavailability of codefendant’s counsel did not constitute good cause to continue defendant’s trial beyond the statutory speedy trial deadline.The joint trial of Sutton ans Jackson began six days after the statutory deadline set fourth in Penal Code section 1382. Over Sutton’s objection, the court continued the trial solely because Jackson’s attorney was engaged in another matter. However, the unavailability of codefendant’s trial counsel, did not constitute good cause to continue defendant Sutton’s trial beyond the statutory deadline. Because Sutton was prejudiced by the delay, his conviction was reversed.id: 20475
The sentencing judge abused his discretion in refusing to continue sentencing for three days until the trial judge was available.Defendant did not have a right to be sentenced by the judge who presided over the trial. Nevertheless, the sentencing judge abused his discretion in refusing to continue the sentencing hearing for three days until the trial judge was available.id: 19914
The trial court abused it's discretion in granting a continuance beyond the section 1382 deadline based on the unavailability of a witness due to a vacation.Defendant's trial was continued without good cause past the statutory speedy trial deadline set forth in Penal Code section 1382(a)(3)(A). The fact that the police officer/witness planned to be on vacation did not constitute good cause for a continuance past the deadline.id: 18575
Defense counsel was not required to pay witness fees and costs in order to obtain a continuance.Trial court did not have the authority to order defense counsel to pay the prosecution's witness fees and expenses incurred upon a continuance granted to the defense.id: 11935
Court erred in denying defendant's motion for a continuance to prepare a defense where defendant had just taken over his own defense.On August 5, 1988, the date initially set for trial, and the first time appellant was in court after his arraignment, appellant requested to represent himself in propria persona. On that date appellant requested time in which to prepare a defense. During the trial appellant regularly asserted he was unprepared, had not yet received pro per privileges and needed access to legal materials. All appellant's requests for a continuance to properly prepare were denied. Failure to grant the continuance deprived appellant of his right to counsel and to due process. Moreover, appellant was denied his statutory right under Penal Code section 1049, to at least five days to prepare a defense.id: 11933
Adjourning deliberations of a murder trial for 11 days without good cause was reversible error.Appellant was charged with first degree murder with special circumstances. The record disclosed no administrative duties, congested calendar or other exceptional circumstances to explain the continuance other than that the judge was to be away. The trial court committed reversible error when it adjourned jury deliberations for 11 days without good cause, despite both the availability of an alternative to interrupting the deliberations and the prejudice to appellant inherent in the timing and duration of the adjournment.id: 11928
Court prejudicially erred in denying continuance request of defendant who was deprived of pro per privileges following his transfer from county jail to state prison.Defendant chose to proceed in pro per regarding retrial of the great bodily injury enhancement. His theory of defense was that the gunshot wound was minor. The trial court erred in denying his request for a continuance made on the day of trial. He was diligent in attempting to prepare his defense and timely requested the trial transcript of the prosecution's medical expert which he never received. Moreover, his defense materials were lost by jail personnel and the court prevented him from having meaningful pro per privileges through apparently arbitrary removal to state prison three days after his full pro per privileges had been restored at the jail.id: 11934
The trial court erred in concluding it did not have the power to continue the trial and subsequently did not abuse its discretion in ordering a new trial on that basis.Defendant was convicted of attempted murder among other things. The trial court thereafter ordered a new trial, concluding it had erred in refusing to continue the original trial and that as a result, defendant was denied a fair trial. The trial court's refusal to continue the trial had been in deference to the supervising judge's earlier ruling. However, the trial court had the power and discretion to continue the trial and erred in concluding it lacked the power. The trial court did not abuse its discretion in concluding the pro per defendant was denied a fair trial and in ordering a new trial. Moreover, the denial of a fair trial in itself results in a miscarriage of justice, without the defendant having to show it is reasonably probable that a more favorable result would have been reached absent the error.id: 15811
Updated 2/3/2024The continuing effects from the pandemic established good cause to continue the trials.Defendants moved to dismiss their cases due to a violation of their speedy trial rights under Penal Code section 1382 maintaining that the courts could no longer rely on the “exceptional circumstances” resulting from the COVID-19 pandemic. However, the continuing, but abating backlog at the time in question was primarily the result of exceptional circumstance arising from the continuing consequences of the pandemic and the trial court did not err in finding good cause existed to continue the trials.id: 27691
The trial court did not err by denying recently retained counsel a continuance to explore potential bases for a new trial motion.The trial court did not err in denying a continuance so that recently retained counsel could investigate and prepare a motion for new trial. The trial court seemed intent on proceeding to sentencing of an 18 year-old facing a life without parole term where defendant was not the shooter. Nevertheless, counsel had been retained a month earlier and had some time to explore possible bases for a new trial. The court’s ruling did not deny defendant’s right to counsel of his choice as the issue was simply whether there was good cause for a continuance.id: 24622
Good cause need not be shown for continuances requested within the 10 day statutory speedy preliminary hearing time period.The trial court erred in denying the prosecution’s request to continue the preliminary hearing for lack of good cause and dismissing the complaint. When Penal Code sections 859b and 1050 are read together, section 1050 does not apply to a request to continue a preliminary hearing, where as here, the request and requested future date fall within the statutory 10-day time limit. No showing of good cause was required.id: 24592
Although no good cause justified continuing the probation revocation proceeding, defendant suffered no prejudice from the two-week delay.The trial court erred by granting the prosecution’s request to continue defendant’s probation revocation proceeding for two weeks absent good cause. However, defendant suffered no prejudice from the delay because the revocation hearing was held within a reasonable time.id: 23295
There was good cause for a continuance in a murder case where the prosecutor was arguing in limine motions in another case, and the court could continue the trial for more than 10 days. Penal Code section 1050, subd.(g)(2) provides there is good cause to continue a murder trial where the prosecutor has another matter “in progress.” The prosecutor had another trial “in progress” where he was litigating motions in limine in that case. Moreover, the trial court was not limited to one 10-day continuance. id: 22725
The trial court erroneously denied the prosecution’s request to trial within the statutory speedy trial period.The prosecution is not required to show good cause in order to justify a continuance within the statutory period set forth in the speedy trial statute (Penal Code section 1382.) Penal Code section 1050 does not trump section 1382, and an Advisory Committee Comment to the Rules of Court, suggesting that unprepared prosecutors may be forced to trial, is inappropriate. The prosecution is entitled to use the entire statutory period provided for by section 1382 to prepare a case for trial.id: 21842
The trial court erred in denying the prosecutor’s request to continue the hearing on the suppression motion since it was foreseeable that denying the continuance would result in the dismissal of the case.The trial court denied the prosecution’s request for a continuance on the day of a scheduled hearing on a suppression motion because proper notice of the motion had not been provided to the defense. Because the prosecution could not proceed, the court ordered the evidence suppressed. Absent that evidence the prosecution could not proceed and the case was dismissed. However, the court erred in refusing to continue the hearing because it was reasonably foreseeable that the denial would result in dismissal of the case.id: 21568
The trial court did not err by denying the capital defendant a continuance to wait for legislative guidance on how to handle the Atkins decision.The Supreme Court decided Atkins v. Virginia (2002) 536 U.S. 304, weeks before defendant’s penalty phase retrial began. Contrary to defendant’s claim, the trial court did not err by denying his motion to continue the trial to investigate the factors described in Atkins and wait for the Legislature to define “mental retardation.” The decision in Atkins did not require that defendant’s trial be conducted in any particular fashion and it did not require that a defendant be permitted to present evidence of retardation as a mitigating factor.id: 20796
The trial court did not err in denying a penalty phase continuance after the arrest of the defense mental health expert. The defense psychologist was arrested during the guilt phase of the trial for an unrelated incident regarding his killing of chinchillas to use them as pelts. Defendant argued the trial court erred in denying his request to continue the penalty phase in light of the adverse publicity concerning his expert witness. However, the trial court did not err in denying the motion where the few jurors who had heard of the incident knew little about it and assured the court it would have no impact on them.id: 20441
The DMV hearing officer did not err by continuing the license suspension hearing to allow a CHP officer to testify that he was on duty at the time of the incident.The hearing officer for the Department of Motor Vehicles in a drunk driving administrative proceeding did not abuse her discretion in granting a continuance of the hearing to allow the DMV to present an officer to testify that he was on duty at the time of the incident. The matter had been questioned by the defendant at the hearing, and was an unexpected development on a fairly small matter. There was no lack of diligence by the DMV. Moreover, the suspension of defendant’s license was stayed until after the DMV issued its findings. id: 20521
The trial court did not err in finding good cause to grant the prosecution a continuance where a properly subpoenaed police officer took a vacation during the time set for trial.Defendant argued a police officer’s unavailability to testify at trial did not constitute good cause for the continuance. The officer had been subpoenaed, had not been released by the prosecutor, but nonetheless took his vacation outside the court’s jurisdiction. The proper remedy for disobeying the subpoena would be contempt of court, not dismissal of a criminal case.id: 20307
The trial court, in ruling on the speedy trial motion, could consider information not presented at the continuance hearing, and the lack of written notice did not violate the good cause finding. The trial court did not err in denying defendant’s Penal Code section 1382 speedy trial motion based on information not presented at the hearing on the prosecutor’s section 1050 motion for a continuance. Moreover, the lack of written notice did not invalidate the trial court’s good cause finding where the prosecutor lacked sufficient time under the circumstances to provide written notice and pleadings.id: 20306
Good cause existed to continue the trial beyond the section 1382 time where the prosecutor had sent the subpoena to the police department but the department failed to notify the officer until he was on vacation.The prosecutor sent a subpoena to the police department several weeks before trial. However, the police department than failed to ensure the subpoena was timely delivered to the officer/witness. The day before trial, the prosecutor was informed the officer was already on vacation, and therefore unavailable for trial. The trial court did not abuse its discretion in ruling good cause existed to justify a short continuance beyond Penal Code section 1382 speedy trial time to try the misdemeanor offense.id: 20096
Trial court did not abuse its discretion in denying defendant a continuance to investigate and prepare a change of venue motion.The trial court did not abuse its discretion in denying the defense a five week continuance in order to investigate and prepare a motion to change venue. Moreover, defendant's failure to exhaust his peremptory challenges and failure to object to the final composition signify a recognition that the jury selected was fair and impartial.id: 19521
The court did not err in denying the requested continuance in the capital case where defense counsel had been threatened by defendant.After working on the capital case for 15 months, defense counsel requested a continuance one week before the trial date. He requested the delay because defendant refused to cooperate and, in fact, threatened him. However, counsel did not explain how the continuance would resolve the problems with defendant. The trial court did not abuse its discretion in concluding that cocounsel had a fair opportunity to prepare and that defendant was attempting to manufacture delay.id: 18500
The trial court did not abuse its discretion in denying defendant's midtrial request for a continuance where the defense knew long before trial the thrust of the gang expert's testimony.Defendant argued the trial court erred in denying his requested continuance, made midtrial, to meet the testimony of the prosecution's gang expert whose identity was provided to the defense three weeks before trial. However, because defendant knew the thrust of the witness's testimony long before trial, he waived any right to a continuance by failing to request one earlier. Additionally, he failed to describe any prejudice flowing from the absence of a continuance and he failed to specify in what way he was foreclosed from calling a defense gang expert in the absence of a continuance.id: 18387
The court erred in dismissing the complaint based on the prosecutor's failure to show good cause for a continuance prior to the preliminary hearing.The prosecutor argued the trial court lacked the authority to dismiss the complaint, even where the prosecutor failed to show good cause for the continuance, so long as the requested date fell within the statutory period required for a preliminary hearing under Penal Code section 859b. A dismissal of a complaint for noncompliance with the requirements for a continuance within the time limits set forth in the preliminary hearing statute would not be in furtherance of justice. The magistrate erred in dismissing the complaint.id: 17747
Last minute continuance request was properly denied where counsel had investigated leads provided by defendant, and there was no basis for granting a Marsden motion or continuing the case to seek private counsel.The trial court did not abuse its discretion in denying defendant's motion to continue for the purpose of further investigation. The case had been continued several times over 15 months, and defendant had twice earlier asserted the same justification. Defendant failed to show good cause for the delay in reporting the important information to counsel. The court also did not err in denying defendant's Marsden motion where counsel acknowledged hostile conversations with defendant, but said he had investigated all leads given by defendant. Finally, the court did not err in denying defendant's last minute request for a continuance to seek private counsel where he had not attempted to retain counsel, and had not even taken steps to secure funds to hire counsel.id: 17611
Defense counsel's concern over when the case would be presented to the penalty phase jury was not good cause to continue the closing arguments.Defense counsel moved to continue the penalty phase closing arguments for two hours to ensure the case would not be given to the jury until Tuesday morning. This would have prevented them from reaching a quick verdict on Friday so they could begin a long holiday weekend. However, defense counsel's tactical concern over when the case would be submitted to the jury was not good cause for a continuance.id: 16376
Good cause for a continuance of the Kelly-Frye hearing regarding DNA evidence was not established where defendant "believed" his expert would comment on a report which specifically rejected defendant's argument.Defendant filed a motion to exclude DNA evidence claiming the PCR analysis was not generally accepted in the scientific community. He then sought to continue the hearing for a month in order to obtain an expert to review a report by the National Research Council regarding use of DNA in court, which had recently been discussed in a New York Times article. However, defendant failed to establish good cause for the continuance. He merely "believed" that his expert - who had not yet read the report - would testify that the NCR report recommended a moratorium on use of the PCR technique. His belief was incorrect since the report stated there was no need for such a moratorium.id: 15809
Motion to continue penalty phase was properly denied where it was based on defendant's refusal to cooperate with counsel prior to that phase.The trial court did not abuse its discretion in denying defendant's motion to continue the penalty phase where the asserted need for the continuance was defendant's persistent failure to cooperate with counsel during the period leading up to the penalty phase.id: 15810
Court did not abuse its discretion in denying defendant's second continuance to allow facial injuries to heal where the injuries were the result of defendant's provocation.During the jury selection process in defendant's capital case he appeared in court with numerous abrasions on his face, as well as a swollen and bandaged eye, which were the result of a fight with prison guards. The court granted a two-day continuance to allow the wounds to heal. After the two days, defendant requested another one-week continuance due to the blackened eye. However, the court did not abuse its discretion in denying the second continuance motion. The court offered to admonish the jury to disregard the black eye and stated it was not inclined to grant the second motion because the injuries were the result of defendant's provocation.id: 11931
Court did not err in denying request for sixth continuance after the death verdict based on counsel's statement that defendant might have brain damage.The trial court did not abuse its discretion in denying defendant's request for a sixth continuance prior to sentencing in the capital case after a jury had returned a death verdict. Counsel's declaration was all the court had before it and it simply stated that defendant might have brain damage that might be relevant. Counsel failed to show a continuance was required.id: 11932
Denial of continuance was not an abuse of discretion and removal of defense counsel in light of his representation of incompetence to proceed to trial did not violate due process.The trial court denied defendant's request for a two week continuance. Defense counsel stated at the hearing that he would be incompetent to proceed to trial even if the case trailed four more days and he could not assure the court that he would be ready to proceed at that time. Denial of the requested continuance was not an abuse of discretion as defense counsel made no offer of proof at the hearing concerning his efforts to locate missing witnesses nor any explanation why they had not been subpoenaed earlier. Moreover, removal of defense counsel in light of his representation of incompetence to proceed to trial was not violative of his due process rights.id: 11936
Court did not abuse its discretion in denying continuance request made five days before penalty trial in order to investigate a psychiatric defense.The trial court did not abuse its discretion in denying defendant's motion for a continuance made 12 days after the guilt verdict was rendered and five days before the penalty trial was set to begin. The request was based on an estimate from a psychiatrist that investigation of a psychiatric defense would take four to six weeks. The record disclosed ample opportunity to investigate defendant's background by the time the continuance request was made. The court could reasonably conclude that the request for a continuance was brought solely for purposes of delay, and that it was not likely to uncover information that would materially assist the defense.id: 11929
Court did not abuse its discretion in denying the requested continuance based on the witness's invocation of the privilege against self-incrimination where it was not likely he would testify in appellant's trial after his own sentencing.Appellant called Henry Gonzales as a defense witness at trial. Gonzales declined to answer questions by invoking his privilege against self-incrimination. Defense counsel then requested a continuance of the trial until after Gonzales had been sentenced in his criminal trial. He claimed the court erred in denying the motion. However, there was no guarantee that Gonzalez would not continue to invoke the privilege during the pendency of the appeal. Moreover, Gonzales' attorney indicated he would attempt to continue his client's sentencing as long as necessary so that it would take place after the conclusion of appellant's trial. The court did not abuse its discretion in denying the requested continuance.id: 11930
Grant of a continuance for the preliminary hearing in a multiple defendant case does not require O.R. release for codefendants.Codefendants sought release from custody pursuant to Penal Code section 859b on their own recognizance after the preliminary hearing was continued. The trial court erred in ruling section 1050.1 was inapplicable to preliminary hearings and that section 859b mandated an O.R. release. Harmony can be achieved between section 859b and section 1050.1 by construing defendant in section 859b, subdivision (b)(1) to mean all jointly charged defendants such that a request for a continuance by one defendant is deemed a request by all jointly charged defendants. The magistrate maintains the discretion to release any defendant from custody but such release is not mandatory.id: 11613
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
Case of the Day
The case of the day summarizes a current case and is viewed by lawyers and judges around the state every day.
Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245