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self-study / Criminal Practice

Apr. 27, 2018

Criminal continuances: Court culture creates calendar congestion

Jaime R. Román

Judge (ret),

All courts have congested calendars. When counsel serially continue matters, a defendant's supportive family members begin to disappear from the courtroom -- no doubt born from the experience that "it is just going to get continued again."

A criminal defendant held hostage by counsel's repeated continuances has his or her life on hold: "Do I marry?" "Can I enroll or finish school?" "Should I have a child?" "Can I take a new job?" "Can I move?" Each defendant deserves better. (Admittedly, delay may serve a defendant's interests: "Delay is not an uncommon defense tactic." People v. Williams, 58 Cal. 4th 197, 233 (2013), quoting Barker v. Wingo, 407 U.S. 514, 522 (1972)).

Same for a victim: "Do I cancel the family vacation -- again?" Or, worse, "We're taking the vacation."

All of these people -- defendants, victims, witnesses -- deserve better. Medical professionals serially postponing surgeries would be vilified, and potentially subject to liability.

These people's lives have been disrupted by the criminal process. Delay effects each person who is subject to serial continuances awaiting disposition. It is tragic. It is costly to parties, the courts, victims, witnesses, court justice partners, and the public fisc.

A Culture of Continuance

The Commission on the Future of California's Court System 2017 report to the chief justice of California [report attached below] outlines some factors contributing to the abuse of continuances. Despite the legislative mandate that motions for a continuance be in writing, there is a plethora of oral motions for continuances of hearings and trials permitted by pervasive statewide court cultures. In one court, "for every 100 continuances granted, only one written motion was filed."

Although sanctions are in place to prevent misuse and abuse of continuance requests, ... they are rarely imposed." Nevertheless, trial courts are being dutifully admonished for delay to trial disposition. People v. Peyton, 229 Cal. App. 4th 1063, 1081 (2014). To that end, the 2017 report made a recommendation for "[c]reating and implementing training for presiding judges and new judges on the statutory requirements for granting continuances."

Costs to the Administration of Justice

The 2017 Future Commission report makes clear that the setting of hearings only to be continued is not without cost: "Continuances have a ripple effect on other criminal cases by taking up additional court calendar time and delaying the setting of other cases. Criminal continuances also impact civil cases by consuming the resources of courts and justice system partners."

Although no doubt the cost has increased, a "2011 California study estimated that the court operational cost of each continuance is over $230." Operational costs include courtroom security, attorneys, court and other staff support, inmate transportation and security, "none of which move the case toward trial." To illustrate court administrative cost, operational expenses "include, but are not limited to, staff time and court resources to re-file, then re-pull the case file on the new calendar date, along with new data entry, and preparation of new minute orders."

"If a typical case is continued 10 times, the continuances alone can cost the taxpayers $2,300 for a single case." Albeit dated, a "report titled Felony Hearing and Trial Date Certainty Study (October 6, 2011), for fiscal year 2008-2009, indicated that by reducing the number of continuances by one in each felony case, the courts would realize savings of approximately $60 million." "A reduction by four continuances results in a statewide savings of $6,275,235.360." Additional but directly related "costs include loss of productivity and costs to victims, witnesses, defendants, and families or supportive friends "who must repeatedly change their schedules when a continuance is granted."

Penal Code Section 1050 is the statute that sets forth the procedure and requirements for a continuance in a criminal case. (All statutory references herein are to the Penal Code.) That statute begins with an observation in subsection (a): "The welfare of the people of the State of California requires that all proceedings in criminal cases shall be set for trial and heard and determined at the earliest possible time."

Earliest Possible Time

"Except for capital cases, all felony cases disposed of should have a total elapsed processing time of no more than one year from the defendant's first arraignment to disposition." California Rules of Court, Rule 2.2(j). To that end, the "goal for felony cases at the time of the preliminary examination," per Rule 2.2(l) is: 90 percent within 30 days of arraignment; 98 percent with 45 days of arraignment; 100 percent within 100 days of arraignment.

California's goal relating to felonies is a modest contrast to other national standards:

COSCA: 100 percent within 180 days.

ABA Standard: 90 percent with 120 days; 98 percent within 180 days; 100 percent within 362 days.

Model Standard: 75 percent within 90 days; 90 percent within 180 days; 98 percent with 36 days.

See National Center for State Courts, Model Time Standards for State Trial Courts (2011).

The National Center for State Courts notes that standards function for courts to have achievable goals, for the bar to have a temporal "framework within which to conduct their fact-gathering, preparation, and advocacy activities, and for the public to define what can be expected."

The California Supreme Court has observed that courts "have generally found post-accusation delay 'presumptively prejudicial' at least as it approaches one year." People v. Williams, 58 Cal. 4th at 234. Excessive continuances contribute to court congestion. Section 1050(a) notes that defendants in custody, subject to temporal delay in attorney investigation, preparation and advocacy, suffer "longer periods of presentence confinement." Concomitant overcrowding and increased incarceration expenses ensue and hardship on victims and witnesses follow with delay or, worse, repeated delays.

Continuance Procedure

Without excusing judges reported willingness to proceed with oral motions for continuances in criminal volume assignments, congested calendars explain that propensity. But repeated continuances without awareness of what occurred to grant an earlier continuance only functions to further congest a court's calendar.

In an evident effort by the California Legislature to assist courts in determining good cause, Section 1050 sets forth the process and obligations imposed on all parties in a criminal case seeking a continuance. Judicial officers directing counsel to comply with Section 1050's written motion requirement will be met with bar resistance. Admittedly, oral motions, part of many courts' culture, are permissible but such motions require a hearing with judicial findings (Section 1050(d)) for the moving party to show "good cause for the failure to comply" or risk the imposition of a sanction (Section 1050(c)) and denial of the motion (Section 1050(d)). A written motion requires the following:

Notification to the Court and Parties. "To continue any hearing in a criminal proceeding, including the trial" (Section 1050(b)), counsel are required to:

(1) File and serve a written notice on all parties (2) at least two court days before the hearing sought to be continued (3) with affidavits or declarations detailing specific facts compelling a continuance (Section 1050(b)(1)) and (4) notify their respective witnesses of the motion, date and right to be heard. Section 1050(b).

Notification to the Court Calendar Clerk. When a party learns of "a conflict in the scheduling of any court hearing, including a trial," an attorney:

(1) Shall notify the calendar clerk, in writing, of each affected court (2) indicating "which hearing was set first." Section 1050(b)(2).

Continuance Required Hearings. A hearing for continuance is required with a judicial determination and expression of good cause in the following particular matters (Section 1048(b)):

• When a minor is detained as a material witness.

• When a minor is a victim of the alleged offense.

• When a person who was 70 years of age or older at the time of the alleged offense was a witness of the alleged offense or victim of the alleged offense.

• When a person is a dependent adult and witness or victim.

• When a person is a victim of an alleged violation involving the use of force, violence, or threat thereof of Sections 261, 262, 264.1, 273a, 273d, 285, 286, 288, 288a, 289.

Good Cause. "Continuances shall be granted only upon a showing of good cause." Section 1050(e). Good cause may involve:

• Despite the defendant's objection, counsel requires more time to prepare and investigate. In re Kowalski, 196 Cal. App. 3d 174 (1987).

• With the defendant's acquiescence, counsel has court commitments on behalf of other clients. People v. Manchetti, 29 Cal. 2d 452, 458 (1946).

• Despite the defendant's objection, counsel is engaged in another trial People v. Sutton, 48 Cal. 4th 533, 547 (2010). An attorney's multiple trial obligations may compel court focus with particular regard to Section 987.05; see also Williams v. Superior Court, 46 Cal. App. 4th 320 (1996).

• The defendant, unrepresented, seeks time to secure counsel. Cf. Sections 859 and 860.

• Counsel requires more time to adequately prepare a defense. People v. Maddox, 67 Cal. 2d 647, 651 (1967); Cooper v. Superior Court, 55 Cal. 2d 291, 302 (1961).

• Despite due diligence, a material witness is unavailable but will be available within a reasonable time. Owens v. Superior Court, 28 Cal. 3d 238, 250 (1980).

• Counsel, the defendant, or prosecutor are incapacitated. People v. Avila, 117 Cal. App. 4th 771 (2004) (defendant); People v. Crovedi, 65 Cal. 2d 199 (1966) (defense counsel); People v. McJimson, 135 Cal. App. 3d 873, 881 (1982) (prosecutor); Section 1053 (judge).

• The prosecutor, with a time waiver from the defendant, has conflicting court commitments. Section 1050(b)

• Prejudicial pretrial publicity threatens the defendant's right to a fair trial Maine v. Superior Court, 68 Cal. 2d 375, 387 (1968).

• The defendant needs time to prepare a motion to return property or suppress evidence in a misdemeanor case, or in a felony preliminary hearing when the defendant is not held to answer. Sections 1538.5(l), and 1538.5(j).

• The case, involving codefendants, supports good cause for a codefendant. Section 1050.1; In re Samano, 31 Cal. App. 4th 984 (1995).

• A defense witness, including the defendant, testifies at trial and the prosecutor was unaware of the evidence or could not have been with due diligence. Section 1051 (one-day continuance).

• The prosecutor has amended the pleadings substantially affecting the defendant's rights. Section 1009; People v. Murphy, 59 Cal. 2d 818 (1963).

• Counsel is surprised by evidence during trial. People v. Bittaker, 48 Cal. 3d 1046, 1094 (1989).

• The sentence is unusual or complex. Turner v. Calderon, 281 F.3d 851, 895 (9th Cir. 2002); People v. Jacobs, 156 Cal. App. 4th 728 (2007).

• The trial judge is temporarily unavailable. Calderon; Jacobs.

• Mindful of codefendant objection, exceptional circumstances compel delay with respect to his/her codefendant to permit the selection and use of an expert. People v. Johnson, 26 Cal. 3d 557, 572 (1980); Maddox; Cooper.

• Counsel, a member of the State Legislature, must attend legislative session or meeting, permitting "a reasonable continuance not to exceed 30 days." Section 1050(h).

• The prosecutor to a case involving murder (as defined in Section 187(a)), stalking (as defined in Section 646.9), a violation of one or more sections of Section 11165.1 or 11165.6, domestic violence (as defined in Section 13700), or a case being handled in the Career Criminal Prosecution Program, has another trial, preliminary hearing, or motion to suppress in that court or another court, may receive a continuance of no more than 10 additional court days. Section 1050(g)(2). Evidently excepting murder, only "one continuance per case may be granted to the people for cases involving stalking, hate crimes, or Career Criminal Prosecution Program cases, with the latter being limited to "the shortest time possible, not to exceed 10 court days." Section 1050(g)(3).

Despite the parties' convenience or a stipulation of the parties, neither constitutes good cause. Section 1050(e). In a court's consideration of good cause, "the court shall consider the general convenience and prior commitments of all witnesses, including peace officers" particularly in selecting a continuance date if the motion is granted. Section 1050(g)(1).

Court Findings

Following hearing, the court shall (1) "make a finding whether good cause has been shown and" (2) if "it finds there is good cause, shall state on the record the facts proved that justify its finding" (Section 1050(f)) and (3) the facts proved that justify the period selected (Section 1050(i)), (4) which statement of facts proved shall be entered in the minutes. Section 1050(f) and (i); see also Sections 1048 (detained minor victim or witness, 70 or older defendant, victim or witness, dependent adult witness or victim, and forcible sexual assault victim) and 1049.5 (continuing a trial).


The Legislature has provided for sanctions. (Caveat: Judicial error in the imposition of sanctions may result in judicial discipline compelling judicial restraint.) Section 1050.5 provides that when pursuant to Section 1050(c) the court imposes sanctions for failure to comply with Section 1050(b)'s written notice requirement, in addition to other authority or power available to the court, except dismissal, "the court may impose one or both of the following sanctions when the moving party is the prosecuting or defense attorney: (1) a fine not exceeding one thousand dollars ($1,000) upon counsel for the moving party; (2) the filing of a report with an appropriate disciplinary committee." See Future Commission report.

In Williams (58 Cal. 4th 197), the California Supreme Court stated that "the trial court has an affirmative constitutional obligation to bring the defendant to trial in a timely manner ... And to that end, it is entirely appropriate for the court to set deadlines and to hold the parties strictly to those deadlines unless a continuance is justified by a concrete showing of good cause for the delay." Indeed, the court further observed that "trial courts must be vigilant in protecting the interests of the defendant, the prosecution, and the public in having a speedy trial." Experience however has shown that judicial focus on counsel is met with significant resistance.

But to be fair to the bar courts do bear some responsibility for the practice and culture that has defaulted to oral motions for continuance and their frequency with abandon. That practice, with congested calendars, understandably arose from expediency. And, in part, during a time when matters were still set within a brief period that such motions were deemed unnecessary. With cases now being continued over years -- not mere months -- that practice has outgrown its usefulness. Courts and counsel serve their respective interests by utilizing judicial time for judicial matters -- not serial continuances.


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