Penal Code 1050 PC – Continuances in California Criminal Cases

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 case to 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 is “good cause” to do so. Good cause is determined by the facts of the case.

Note that a continuance motion can be brought by either:

  • a prosecutor, or
  • a defense attorney.

If granted, the hearing or trial is put off for a period of time that is “necessary” to resolve the issue forcing the continuance.

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

judge considering continuance
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 to reschedule a court date. The date can be for either:

  • a hearing, or
  • a criminal trial.

Per Penal Code 1050b, a party initiates a continuance by providing notice of such to:

  • the other party, and
  • the judge.1

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

A judge will then either grant 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 is “good cause” to do so.3

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

In ruling on good cause, the judge will consider:

  • the general convenience of a new date to any witnesses, and
  • any prior 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 judge will normally not grant a continuance request if it comes with 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 a constitutional right to a speedy trial. This means the right to receive a jury trial reasonably 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 delay violates the defendant's speedy trial rights, then the case could get dismissed under 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 accused waived 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 1st. 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.

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Legal References:

  1. California Penal Code 1050b PC.

  2. See same.

  3. California Penal Code 1050d PC. See also People v. Johnson (2013) 218 Cal.App.4th 938.

  4. California Penal Code 1050g PC.

  5. See People v. Boyden (1960) 181 Cal.App.2d 48.

  6. People v. Leavel (2012) 203 Cal.App.4th 823.

  7. Serna v. Superior Court (1985) 40 Cal.3d 239.

  8. People v. Martinez (2000) 22 Cal.4th 750.

  9. California Penal Code 1050i.

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