Motion to Continue Preliminary Hearing Penal Code 1050

UpdatedMay 30, 2020

What is a motion to continue? Penal Code 1050 PC

Penal Code 1050 PC is the California statute that sets forth the procedures for filing a continuance. A 1050 motion to continue is a request by a party in a criminal caseto postpone a court date. The date can be for a pretrial matter or a trial.

1050 PC states that "to continue any hearing in a criminal proceeding, including the trial…a written notice shall be filed and served on all parties to the proceeding at least two court days before the hearing sought to be continued…"

A judge will only grant a motion to continue if there isgood cause to do so. Good cause is determined by the facts of the case.

Note that a continuance motion can be brought by either:

• aprosecutor, or
• adefense attorney.

Ifgranted, the hearing or trial is put off for a period of time that isnecessary to resolve the issue forcing the continuance.

Our California criminal defense attorneys will highlight the following in this article:

• 1. What is a 1050 motion to continue?
• 2. Does 1050 PC require good cause to be shown?
• 3. Can both the prosecution and defense request a continuance?
• 4. How long will the judge grant a continuance for?

A continuance is a request by a party in a criminal case to reschedule a court date. The date can be for a hearing or a trial.

1. What is a 1050 motion to continue?

A continuance is a request by a party in a criminal case toreschedule a court date. The date can be for either:

• a hearing, or
• a criminal trial.

PerPenal Code 1050b, a party initiates a continuance by providingnotice of such to:

• the other party, and
• the judge.¹

The party also has to provide these persons with thereasons for seeking the continuance.²

A judge will then eithergrant or deny the request after examining all of the facts of the case.

2. Does 1050 PC require good cause to be shown?

A judge will only grant a motion to continue if he/she finds that there isgood cause to do so.³

The party seeking the continuance has the burden to show that there isa good cause to continue a matter.

In ruling on good cause, the judge will consider:

• thegeneral convenience of a new date to any witnesses, and
• anyprior commitments of the witnesses.⁴

Courts have found good cause in the past for the following reasons:

• the accused needed extra time to hire an attorney,
• parties required more time to prepare for trial,⁵
• a party's witness was not available for the original court date,
• a party got sick,
• a prosecutor or defense attorney had a conflict with another case.

Example:A trial is scheduled to start on April 16th. The defendant, however, gets in a car accident on the 14th and the doctor puts him on bed rest for a week. Here, a judge would likely find good cause to re-schedule the trial until the defendant recovers.

However, consider now that instead of a car accident on the 14th, the defendant gets a small case of the flu. He sees a doctor and the physician tells him he is not contagious, and he is well enough to go to work. Here, a judge is less likely to find good cause to allow a continuance.

Note that a judgeis less likely to grant a continuance request if it comeswith delay. This means that the party bringing the request caused some type of delay in doing so.⁶

Example:  A defendant wants to get a second mental health evaluation in order to raise an insanity defense. The defense attorney has been wanting to get this evaluation for months but keeps pushing it off. Trial is approaching in a week and he makes a motion for a continuance to get the appointment.

Here, the judge is likely to deny the motion. While an evaluation to support a legal defense is "good cause," the attorney procrastinated in scheduling the appointment and delayed in following through.

3. Can both the prosecution and defense request a continuance?

Both the prosecution and defense can request a continuance.

Note that speedy trial issues can sometimes occur when a prosecutor requests a continuance.

A defendant has aconstitutional right to a speedy trial. This means the right to receive ajury trialreasonably quickly after one of the following:

• the filing of a criminal complaint,⁷
• the defendant's arrest,
• the filing of an indictment, or
• the issuance of a holding order after a preliminary hearing.⁸

If a prosecutor seeks a continuance, and the delayviolates the defendant's speedy trial rights, then the case could getdismissedunder Penal Code 1382 PC. The defendant may have to bring a Serna motion to do this.

Note, however, that a dismissal would not happen if the accusedwaived his right to a speedy trial.

4. How long will the judge grant a continuance for?

A judge shall grant a continuance only for that period of time that is "necessary."⁹

A necessary time is determined by the facts of the case.

A general rule, though, is that a continuance will be for enough time to resolve the issue that forced the continuance.

Example: A prosecutor is scheduled to begin two trials on March 1^st. The first will last one week. The second will last two months. The prosecutor files a continuance to push back the longer trial so he can complete the first one.

Here, a judge would probably grant the continuance. The judge would likely push the longer trial back by a couple of weeks. This time is "necessary" for the prosecutor to complete his short trial and get organized for the longer one.

For additional help…

Contact us for additional help.

For additional guidance or to discuss your case with a criminal defense attorney, we invite you to contact us at Shouse Law Group.

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Legal References:

gowllandpaut1973.blogspot.com

Source: https://www.shouselaw.com/ca/defense/penal-code/1050/#:~:text=Penal%20Code%201050%20PC%20is,pretrial%20matter%20or%20a%20trial.

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