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Criminal motion practice
By Hon. Thomas Rubinson

Properly making and responding to criminal motions can often make the difference in the outcome of a case. Both bench officers handling criminal cases and attorneys practicing in this field must be familiar with motions that frequently arise.

The objective of this article and self-study test is to acquaint attorneys and bench officers with the most salient features and procedural requirements of some important and common motions made in criminal cases. This article will cover motions to continue, motions to suppress, and Penal Code Section 991 motions to dismiss.

Motion to Continue

Penal Code Sections 1050 et seq describe the requirements that the prosecution and defense must satisfy in order for the court to grant a motion to continue a case. Written notice must be filed and served on all parties at least two court days before the hearing sought to be continued. The notice must include affidavits or declarations detailing specific facts showing that a continuance is necessary. Section 1050(b)(1). Absent a waiver, service of the required notice is not deemed satisfied until the nonmoving party actually receives the documents. Section 1050(b).

When a party makes a motion to continue without providing the two days' notice, the court must 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 (Section 1050(d)) and the moving party is subject to sanctions, including a fine of up to $1,000. Sections 1050(c), 1050.5.

The moving party must also establish good cause to have the motion granted on its merits. Section 1050(e); People v. Harvey, 193 Cal.App.3d 767 (1987). When 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. Section 1050(i).

In general, the court has broad discretion to grant or deny continuance motions. People v. Jenkins, 22 Cal.4th 900 (2000). But the court may not exercise its discretion in a way that deprives the defendant or the attorney of a reasonable opportunity to prepare. People v. Sakarias, 22 Cal.4th 596 (2000).

Although neither the convenience of the parties nor their stipulation is good cause (Section 1050(e)), convenience and prior commitments of all witnesses, including peace officers, should be considered in the good cause determination. Section 1050(g)(1). If an appointed counsel's unavailability is not attributable to the fault or neglect of the state, his or her continuing engagement in another client's trial may be good cause for a reasonable delay of trial. People v. Sutton, 48 Cal.4th 533 (2010); People v. Superior Court (Alexander), 31 Cal.App.4th 1119 (1995); People v. Johnson, 26 Cal.3d 557 (1980).

One common reason for requesting a continuance is because counsel seeks to secure the attendance of a witness. To establish good cause in this circumstance, counsel must show not only diligence in his or her efforts to locate and serve the witness, but also that the witness's testimony is relevant, not cumulative, and that the facts to which the witness would testify cannot otherwise be proved. The witness must also be available within a reasonable time. Owens v. Superior Court, 28 Cal.3d 238 (1980). When a party waits until just before a hearing or trial is set to begin to attempt to subpoena a witness, and fails to do so, good cause is lacking. People v. Avila, 131 Cal.App.4th 163 (2005).

If defense counsel needs additional time to prepare and investigate the case, he or she may establish good cause. People v. Maddox, 67 Cal.2d 647 (1967). For example, 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. People v. Courts, 37 Cal.3d 784 (1985).

Co-defendant matters can present challenges when one defendant seeks a continuance while the other objects. As a general matter, if the court finds that good cause exists for one defendant's motion to continue, that continuance constitutes good cause to continue the co-defendant's case as well, so as to maintain joinder. Section 1050.1.

In certain limited circumstances, the People may be entitled to continue cases beyond the statutory period. In cases charging murder, stalking, sexual assault, domestic violence, or hate crimes, if the prosecutor assigned to the case has another trial, preliminary hearing, or motion to suppress in progress, good cause to continue the matter is established. The length of the continuance in these circumstances is limited to a maximum of 10 additional court days. Section 1050(g)(2).

Motion to Suppress

Motions to suppress evidence are governed by Section 1538.5. This statute covers only the suppression of evidence obtained as a result of a purportedly illegal search or seizure - meaning a violation of the Fourth Amendment, not the Fifth or Sixth (People v. Whitfield, 46 Cal.App.4th 947 (1996)). A motion to suppress the defendant's statement to police, for example, based on a violation of the requirements of Miranda, is not the proper subject of a Section 1538.5 motion. Section 1538.5 may be used to challenge searches that were conducted either with or without a search warrant.

A motion pursuant to Section 1538.5 must be made in writing and must be accompanied by a memorandum of points and authorities that lists the specific items of property or evidence sought to be suppressed and the factual basis and legal authorities in support of the motion. Section 1538.5(a)(2).

As a preliminary matter, the defendant must establish that he or she has standing to challenge the search or seizure in question. A full discussion of the law of standing is outside the scope of this article, but at its essence, the defendant has the burden to show that he or she had a reasonable expectation of privacy in the place searched or items seized. See People v. Contreras, 210 Cal.App.3d 450 (1989).

The burden of proving that a warrantless search was justified lies with the prosecution. People v. Smith, 95 Cal.App.4th 283 (2002). But the burden lies with the defendant if a search is conducted pursuant to a search or arrest warrant to prove that the warrant was invalid. The standard of proof is a preponderance of the evidence.

In misdemeanor cases, the motion must be made and heard before trial. Section 1538.5(g). The defense is entitled to a continuance of up to 30 days in misdemeanor cases to prepare for the hearing on the motion. Section 1538.5(l). But if the defendant was not aware of the grounds for the motion until the case is already in trial, the motion may be made and heard during trial. Section 1538.5(h).

In felony matters, the motion may be made either at the preliminary hearing or later, upon filing of the information. If made at the preliminary hearing, the motion is restricted to evidence that the prosecution seeks to introduce at the preliminary hearing. Section 1538.5(f)(1). The defense must file and serve the motion and points and authorities at least five court days before the date set for the preliminary hearing. If no motion is made before the commencement of the preliminary hearing, and during the course of the hearing, grounds for the suppression motion become known to defense counsel, the hearing may be continued to provide the defense with time to file the motion at least five court days before the hearing resumes. Section 1538.5(f)(2). The People's response to any Section 1538.5 motion must be filed at least two court days before the hearing. Section 1538.5(f)(2).

If no suppression motion is made at the preliminary hearing, or if the prosecution proceeds by indictment, meaning no preliminary hearing takes place, the suppression motion may be made at a "special hearing" after the information is filed or indictment is returned. At such a "special hearing," the defense is entitled to fully litigate the validity of the search or seizure. Section 1538.5(i).

If a suppression motion was made and denied at the preliminary hearing, the defense is still entitled to a "special hearing" after the information is filed, but the evidence at the hearing is limited to the transcript of the preliminary hearing and to evidence that could not reasonably have been presented at the preliminary hearing. The People, however, may recall any witnesses who testified at the preliminary hearing. At the "special hearing," the court is bound by the findings made by the magistrate at the preliminary hearing as to evidence not affected by evidence presented at the "special hearing." Section 1538.5(i).

The defense must give 10 court days' notice of its request for a "special hearing," and the People's response must be filed and served at least two court days before the hearing. Section 1538.5(i).

If a Section 1538.5 motion was granted at the preliminary hearing and the case is dismissed, and the People then refile the case, the ruling granting the motion to suppress is not binding in any subsequent proceeding. Section 1538.5(j). If the motion, however, is granted at the preliminary hearing and the defendant is nevertheless held to answer, the ruling is binding on the People unless the People, within 15 days after the preliminary hearing, request a "special hearing" on the issue, at which the validity of the search or seizure is litigated de novo. If such a request is made, the defense is entitled to up to 30 days to prepare for the hearing. Section 1538.5(j). The People have no right to this "special hearing" if the defendant's Section 1538.5 motion has been granted twice. Section §1538.5(j).

Similarly, if the defendant's Section 1538.5 motion has been granted twice, the People may not refile the case to relitigate the issue of the search or seizure at a "special hearing" unless the People have discovered additional evidence. In such a situation, relitigation of the motion must be heard by the same judge who granted the first motion, if he or she is available. Section 1538.5(p). That judge is not subject to challenge by the prosecution pursuant to CCP Section 170.6. People v. Superior Court (Jimenez), 28 Cal.4th 798 (2002).

Penal Code Section 991 Motion

This motion is applicable only in misdemeanor cases when the defendant is in custody at the time of arraignment. If the defendant enters a not-guilty plea, he or she may move for the magistrate to determine whether probable cause exists to believe that an offense has been committed and that the defendant committed it. Penal Code Section 991(a).

The magistrate's decision must be based on his or her reading of the arrest warrant and any affidavits, as well as the complaint and any other reports incorporated into the warrant or complaint - meaning, in most instances, the police reports. Section 991(b). Testimony is not taken at the hearing on the motion. If requested by the defendant, the court must consider the lawfulness of the detention or arrest in determining whether there is probable cause to believe the defendant has committed the crime. People v. Ward, 188 Cal.App.3d Supp 11 (1986).

The motion must be heard immediately, but the court may grant a continuance of the hearing for up to three days upon a showing of good cause, during which time the prosecution often seeks to obtain additional reports with which to supplement its showing of probable cause. See Section 991(b).

If the magistrate finds probable cause to exist, the matter proceeds toward trial as would any other case. If not, the case is dismissed. When a case has been dismissed pursuant to Section 991, the prosecution may refile it within 15 days. Section 991(e).

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