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:
- 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?
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 is less likely to 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.
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.
- California Penal Code 1050 PC. The language of the statute reads that:1050. (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. To this end, the Legislature finds that the criminal courts are becoming increasingly congested with resulting adverse consequences to the welfare of the people and the defendant. Excessive continuances contribute substantially to this congestion and cause substantial hardship to victims and other witnesses. Continuances also lead to longer periods of presentence confinement for those defendants in custody and the concomitant overcrowding and increased expenses of local jails. It is therefore recognized that the people, the defendant, and the victims and other witnesses have the right to an expeditious disposition, and to that end it shall be the duty of all courts and judicial officers and of all counsel, both for the prosecution and the defense, to expedite these proceedings to the greatest degree that is consistent with the ends of justice. In accordance with this policy, criminal cases shall be given precedence over, and set for trial and heard without regard to the pendency of, any civil matters or proceedings. In further accordance with this policy, death penalty cases in which both the prosecution and the defense have informed the court that they are prepared to proceed to trial shall be given precedence over, and set for trial and heard without regard to the pendency of, other criminal cases and any civil matters or proceedings, unless the court finds in the interest of justice that it is not appropriate.(b) To continue any hearing in a criminal proceeding, including the trial, (1) 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, together with affidavits or declarations detailing specific facts showing that a continuance is necessary and (2) within two court days of learning that he or she has a conflict in the scheduling of any court hearing, including a trial, an attorney shall notify the calendar clerk of each court involved, in writing, indicating which hearing was set first. A party shall not be deemed to have been served within the meaning of this section until that party actually has received a copy of the documents to be served, unless the party, after receiving actual notice of the request for continuance, waives the right to have the documents served in a timely manner. Regardless of the proponent of the motion, the prosecuting attorney shall notify the people’s witnesses and the defense attorney shall notify the defense’s witnesses of the notice of motion, the date of the hearing, and the witnesses’ right to be heard by the court.(c) Notwithstanding subdivision (b), a party may make a motion for a continuance without complying with the requirements of that subdivision. However, unless the moving party shows good cause for the failure to comply with those requirements, the court may impose sanctions as provided in Section 1050.5.
(d) When a party makes a motion for a continuance without complying with the requirements of subdivision (b), the court shall hold a hearing on whether there is good cause for the failure to comply with those requirements. At the conclusion of the hearing, the court shall make a finding whether good cause has been shown and, if it finds that there is good cause, shall state on the record the facts proved that justify its finding. A statement of the finding and a statement of facts proved shall be entered in the minutes. If the moving party is unable to show good cause for the failure to give notice, the motion for continuance shall not be granted.
(e) Continuances shall be granted only upon a showing of good cause. Neither the convenience of the parties nor a stipulation of the parties is in and of itself good cause.
(f) At the conclusion of the motion for continuance, the court shall make a finding whether good cause has been shown and, if it finds that there is good cause, shall state on the record the facts proved that justify its finding. A statement of facts proved shall be entered in the minutes.
(g) (1) When deciding whether or not good cause for a continuance has been shown, the court shall consider the general convenience and prior commitments of all witnesses, including peace officers. Both the general convenience and prior commitments of each witness also shall be considered in selecting a continuance date if the motion is granted. The facts as to inconvenience or prior commitments may be offered by the witness or by a party to the case.
(2) For purposes of this section, “good cause” includes, but is not limited to, those cases involving murder, as defined in subdivision (a) of Section 187, allegations that stalking, as defined in Section 646.9, a violation of one or more of the sections specified in subdivision (a) of Section 11165.1 or Section 11165.6, or domestic violence as defined in Section 13700, or a case being handled in the Career Criminal Prosecution Program pursuant to Sections 999b through 999h, or a hate crime, as defined in Title 11.6 (commencing with Section 422.6) of Part 1, has occurred and the prosecuting attorney assigned to the case has another trial, preliminary hearing, or motion to suppress in progress in that court or another court. A continuance under this paragraph shall be limited to a maximum of 10 additional court days.
(3) Only one continuance per case may be granted to the people under this subdivision for cases involving stalking, hate crimes, or cases handled under the Career Criminal Prosecution Program. Any continuance granted to the people in a case involving stalking or handled under the Career Criminal Prosecution Program shall be for the shortest time possible, not to exceed 10 court days.
(h) Upon a showing that the attorney of record at the time of the defendant’s first appearance in the superior court on an indictment or information is a Member of the Legislature of this state and that the Legislature is in session or that a legislative interim committee of which the attorney is a duly appointed member is meeting or is to meet within the next seven days, the defendant shall be entitled to a reasonable continuance not to exceed 30 days.
(i) A continuance shall be granted only for that period of time shown to be necessary by the evidence considered at the hearing on the motion. Whenever any continuance is granted, the court shall state on the record the facts proved that justify the length of the continuance, and those facts shall be entered in the minutes.
(j) Whenever it shall appear that any court may be required, because of the condition of its calendar, to dismiss an action pursuant to Section 1382, the court must immediately notify the Chair of the Judicial Council.
(k) This section shall not apply when the preliminary examination is set on a date less than 10 court days from the date of the defendant’s arraignment on the complaint, and the prosecution or the defendant moves to continue the preliminary examination to a date not more than 10 court days from the date of the defendant’s arraignment on the complaint.
(l) This section is directory only and does not mandate dismissal of an action by its terms.
(Amended by Stats. 2003, Ch. 133, Sec. 1. Effective January 1, 2004.)
- See same.
- California Penal Code 1050d PC. See also People v. Johnson (2013) 218 Cal.App.4th 938.
- California Penal Code 1050g PC.
- See People v. Boyden (1960) 181 Cal.App.2d 48.
- People v. Leavel (2012) 203 Cal.App.4th 823.
- Serna v. Superior Court (1985) 40 Cal.3d 239.
- People v. Martinez (2000) 22 Cal.4th 750.
- California Penal Code 1050i.