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Continuing a criminal trial or hearing in California

by Stan Burman

Continuing a criminal trial or hearing in California is the topic of this blog post.

The requirements for continuing a criminal trial or hearing in California are found in California Penal Code section 1050 et seq.

A careful reading of these requirements is essential as failure to comply may result in the motion being denied as well as possible sanctions.

Written notice must be filed and served on all parties at least two court days before the hearing sought to be continued and must include affidavits or declarations detailing specific facts showing that a continuance is necessary. See Penal Code § 1050(b)(1).

Unless a waiver of service has been obtained, service of the required notice is not deemed satisfied until the nonmoving party actually receives the documents. See Penal Code § 1050(b).

If a party files a motion to continue without providing the two court days notice, the court is required to hold a hearing to determine if good cause exists for the failure to provide notice. If the moving party is unable to show good cause, the motion to continue must be denied. See Penal Code § 1050(d). In addition the moving party is subject to sanctions, including a fine of up to $1,000. See Penal Code §§ 1050(c), 1050.5.

The moving party is also required to establish good cause to have the motion granted on its merits. See Penal Code § 1050(e). Even if good cause is established, the case should be continued only for the period of time necessary as shown by evidence considered at the hearing on the motion. See Penal Code § 1050(i).

The trial court has very broad discretion to determine whether good cause exists to grant a continuance. However that discretion must be not exercised so as to result in a manifest miscarriage of justice resulting from inadequate time to prepare a defense.

A party who requests a continuance in order to secure the testimony of a witness must show due diligence in securing the attendance of the witness, the witness would not be available to testify within a reasonable time, that the testimony was material and not cumulative, and the facts about which the witness is expected to testify cannot otherwise be proven.

Other situations that may constitute good cause for a continuance include when defense counsel or a self-represented defendant needs additional time to prepare and investigate the case. And if  new counsel takes over for previous counsel, and the late substitution was not made in bad faith, it is error to deny new counsel a continuance to prepare.

Attorneys or parties in California who would like to view a portion of a 14 page sample motion to continue a trial or hearing in a criminal case that includes brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declarations by a defendant and counsel for defendant, and proof of service by mail sold by the author can use the link shown below.

Sample motion to continue trial or hearing in California criminal case by Stan Burman on Scribd

 

Attorneys or parties in California that would like to view all of the California criminal defense documents created by the author of this blog post can use the link shown below.


http://www.scribd.com/collections/14493553/California-criminal-defense-documents  

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for sale.

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DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

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