California Penal Code § 1382 grants defendants the right to be tried within 60 days of being charged with a felony. For a misdemeanor or infraction, one has the right to trial
- within 45 days if out of custody or
- within 30 days if in custody.
These time requirements help protect your right to a speedy trial. This right is protected by the United States and California constitutions.
PC 1382 states that:
“The court, unless good cause to the contrary is shown, shall order the action to be dismissed in the following cases… In a felony case, when a defendant is not brought to trial within 60 days of the defendant’s arraignment…[or] when a defendant in a misdemeanor or infraction case is not brought to trial within 30 days after he or she is arraigned or enters his or her plea, whichever occurs later…”
Note that there are exceptions that allow a trial to take place after the time periods set forth in this statute. For example, a trial may get lawfully postponed if:
- you consent to or request a later date, or
- there is a “showing of good cause.”
If you are not brought to trial within the time specified in PC 1382, then the judge may dismiss the case.
This dismissal only happens, though, if the defense counsel brings a successful Serna speedy trial motion. A Serna motion is a legal argument stating that your right to a speedy trial has been violated. The motion is brought during the pretrial process.
| Your California case | When your trial must occur* |
| Felony | Within 60 days of your arraignment |
| Misdemeanor or infractions, and you are in custody | Within 45 days of your arraignment |
| Misdemeanor and infractions, and you are out of custody | Within 30 days of your arraignment |
| *Unless you enter into a time waiver, you request or consent to a later trial, or there is good cause to delay the trial. | |
Our California criminal defense attorneys will highlight the following in this article:
- 1. Speedy Trial Rights
- 2. Are there exceptions?
- 3. What is a Serna motion?
- 4. U.S. Constitutional Analysis
- Additional reading
Penal Code 1382 PC is the California statute that requires criminal trials to begin within a set time after your arraignment.
1. Speedy Trial Rights
Penal Code 1382 helps protect your constitutional right to a speedy trial.
Every criminal defendant in the State of California has this trial right in criminal proceedings.
The right is set forth in both:
- the Sixth Amendment to the United States Constitution,1 and
- Article I, Section 15, of the California Constitution.2
The right to a speedy trial is the right to receive a jury trial reasonably quickly after the beginning of a criminal case (for example, after the preliminary hearing or an arraignment).
To enforce this, PC 1382 sets time limits on when trial dates must occur.
As to felony cases, the statute says that you must be brought to trial within 60 days of the date of either:
- the arraignment,
- reinstatement of the case (for example, re-establishing a case that was dismissed), or
- an order granting a new trial after a mistrial.3
As to misdemeanor cases and infractions, the law says that you must be brought to trial within a 30-day period after you are:
- arraigned, or
- enters a plea to the charges (whichever occurs later).4
However, if a misdemeanor case or an infraction, and you are in custody, then you must be brought to trial in Superior Court within 45 days of:
- the arraignment, or
- the plea (whichever occurs later).5
2. Are there exceptions?
California law provides a few exceptions that allow you to be brought to trial after the expiration of the time periods set forth in PC 1382.
For example, you may:
- enter into a time waiver of the statutory requirements, or
- request or consent to a trial date after the dates in the statute.6
Note that it is often in your interest to postpone a trial. This delay gives the defense counsel more time to gather evidence and discredit the arguments of the prosecuting attorney.
In addition to the above exceptions, the time limits in PC 1382 will not apply if the trial court finds “good cause” to hold the trial later.
Examples of when there is a showing of good cause include when:
- you are incapacitated,
- new evidence has come to light,
- the case is too complex for a speedy trial,
- there is a preference for a joint trial (if multiple defendants),7
- the clerk of the court made a filing mistake,8 and
- there is a global pandemic (for example, COVID-19) and it has a severe impact on the State.9
If any of the above exceptions arises, then the rules in PC 1382 do not apply. This means you can be brought to trial after the law’s mandated:
- 30-day period,
- 45-day period, or
- 60-day period (whichever is applicable).
A “Serna motion” is a motion to dismiss a criminal case because you were denied your constitutional right to a speedy trial.
3. What is a Serna motion?
A “Serna motion” is a motion to dismiss a criminal case because you were denied your constitutional right to a speedy trial.10
A defense counsel brings the motion in open court when the D.A. or court fails to adhere to the timing requirements in Penal Code 1382.
Serna motions are also known as “speedy trial motions.” They are filed as part of the pretrial process under California criminal law.
After defense counsel files the motion, the judge holds a hearing to determine whether speedy trial rights have been violated. The judge then decides whether to grant the motion or to dismiss it.
A successful Serna motion will result in the judge dismissing any charges filed against you.
4. U.S. Constitutional Analysis
A judge does not always use the same analysis when ruling on a Serna motion.
As stated above, your right to a speedy trial is guaranteed by both:
- the U.S. Constitution, and
- the California Constitution.
The court uses a different standard in reviewing a Serna motion depending on whether it is brought under U.S. constitutional grounds or the laws of California.11
In deciding whether to grant a Serna speedy trial motion under the U.S. Constitution, the judge will consider the following four factors to determine whether to grant or deny the motion:
- the length of the delay in a trial,
- the reason for the delay,
- your assertion of the right to a speedy trial, and
- any prejudice to you from the delay (this is presumed to exist if the delay is uncommonly long).12
In contrast, the judge only considers the following when the motion is based upon California law:
- actual prejudice to you from the delay, and
- the prosecution’s justification for the delay.13
“Prejudice” simply means a loss or injury to you.
Additional Reading
For more in-depth information, refer to these scholarly articles:
- Beyond Pollard: Applying the Sixth Amendment’s Speedy Trial Right to Sentencing – Stanford Law Review.
- Victims’ Right to a Speedy Trial: Shortcomings, Improvements, and Alternatives to Legislative Protection – Washington University Journal of Law and Policy.
- The Not So Speedy Trial Act – Washington Law Review.
- The Right to a Speedy Trial – Stanford Law Review.
- Speedy Trial Rights in Application – Fordham Law Review.
Legal References:
- U.S. Const., amend. VI.
- Cal. Const., art. I, sec. 15.
- California Penal Code 1382. The full language of the code section reads that:
(a) The court, unless good cause to the contrary is shown, shall order the action to be dismissed in the following cases:(1) When a person has been held to answer for a public offense and an information is not filed against that person within 15 days.(2) In a felony case, when a defendant is not brought to trial within 60 days of the defendant’s arraignment on an indictment or information, or reinstatement of criminal proceedings pursuant to Chapter 6 (commencing with Section 1367) of Title 10 of Part 2, or, in case the cause is to be tried again following a mistrial, an order granting a new trial from which an appeal is not taken, or an appeal from the superior court, within 60 days after the mistrial has been declared, after entry of the order granting the new trial, or after the filing of the remittitur in the trial court, or after the issuance of a writ or order which, in effect, grants a new trial, within 60 days after notice of the writ or order is filed in the trial court and served upon the prosecuting attorney, or within 90 days after notice of the writ or order is filed in the trial court and served upon the prosecuting attorney in any case where the district attorney chooses to resubmit the case for a preliminary examination after an appeal or the issuance of a writ reversing a judgment of conviction upon a plea of guilty prior to a preliminary hearing. However, an action shall not be dismissed under this paragraph if either of the following circumstances exists: (A) The defendant enters a general waiver of the 60-day trial requirement. A general waiver of the 60-day trial requirement entitles the superior court to set or continue a trial date without the sanction of dismissal should the case fail to proceed on the date set for trial. If the defendant, after proper notice to all parties, later withdraws, in open court, his or her waiver in the superior court, the defendant shall be brought to trial within 60 days of the date of that withdrawal. Upon the withdrawal of a general time waiver in open court, a trial date shall be set and all parties shall be properly notified of that date. If a general time waiver is not expressly entered, subparagraph (B) shall apply. (B) The defendant requests or consents to the setting of a trial date beyond the 60-day period. In the absence of an express general time waiver from the defendant, or upon the withdrawal of a general time waiver, the court shall set a trial date. Whenever a case is set for trial beyond the 60-day period by request or consent, expressed or implied, of the defendant without a general waiver, the defendant shall be brought to trial on the date set for trial or within 10 days thereafter. Whenever a case is set for trial after a defendant enters either a general waiver as to the 60-day trial requirement or requests or consents, expressed or implied, to the setting of a trial date beyond the 60-day period pursuant to this paragraph, the court may not grant a motion of the defendant to vacate the date set for trial and to set an earlier trial date unless all parties are properly noticed and the court finds good cause for granting that motion. (3) Regardless of when the complaint is filed, when a defendant in a misdemeanor or infraction case is not brought to trial within 30 days after he or she is arraigned or enters his or her plea, whichever occurs later, if the defendant is in custody at the time of arraignment or plea, whichever occurs later, or in all other cases, within 45 days after the defendant’s arraignment or entry of the plea, whichever occurs later, or in case the cause is to be tried again following a mistrial, an order granting a new trial from which no appeal is taken, or an appeal from a judgment in a misdemeanor or infraction case, within 30 days after the mistrial has been declared, after entry of the order granting the new trial, or after the remittitur is filed in the trial court, or within 30 days after the date of the reinstatement of criminal proceedings pursuant to Chapter 6 (commencing with Section 1367). However, an action shall not be dismissed under this subdivision if any of the following circumstances exists: (A) The defendant enters a general waiver of the 30-day or 45-day trial requirement. A general waiver of the 30-day or 45-day trial requirement entitles the court to set or continue a trial date without the sanction of dismissal should the case fail to proceed on the date set for trial. If the defendant, after proper notice to all parties, later withdraws, in open court, his or her waiver in the superior court, the defendant shall be brought to trial within 30 days of the date of that withdrawal. Upon the withdrawal of a general time waiver in open court, a trial date shall be set and all parties shall be properly notified of that date. If a general time waiver is not expressly entered, subparagraph (B) shall apply. (B) The defendant requests or consents to the setting of a trial date beyond the 30-day or 45-day period. In the absence of an express general time waiver from the defendant, or upon the withdrawal of a general time waiver the court shall set a trial date. Whenever a case is set for trial beyond the 30-day or 45-day period by request or consent, expressed or implied, of the defendant without a general waiver, the defendant shall be brought to trial on the date set for trial or within 10 days thereafter. (C) The defendant in a misdemeanor case has been ordered to appear on a case set for hearing prior to trial, but the defendant fails to appear on that date and a bench warrant is issued, or the case is not tried on the date set for trial because of the defendant’s neglect or failure to appear, in which case the defendant shall be deemed to have been arraigned within the meaning of this subdivision on the date of his or her subsequent arraignment on a bench warrant or his or her submission to the court. (b) Whenever a defendant has been ordered to appear in superior court on a felony case set for trial or set for a hearing prior to trial after being held to answer, if the defendant fails to appear on that date and a bench warrant is issued, the defendant shall be brought to trial within 60 days after the defendant next appears in the superior court unless a trial date previously had been set which is beyond that 60-day period. (c) If the defendant is not represented by counsel, the defendant shall not be deemed under this section to have consented to the date for the defendant’s trial unless the court has explained to the defendant his or her rights under this section and the effect of his or her consent. (Amended by Stats. 2009, Ch. 424, Sec. 1. (AB 250) Effective January 1, 2010.)
- California Penal Code 1382(a)(3) PC.
- See same.
- See, for example, California Penal Code 1382a2A and B PC.
- People v. Sutton (2008) 161 Cal.App.4th 350.
- People v. Stiehl (2011) 198 Cal.App.4th 720.
- Stanley v. Superior Court (Cal.App.1st Dist. June 9, 2020) 2020 Cal.App. LEXIS 506.
- Serna v. Superior Court (1985) 40 Cal.3d 239.
- People v. Martinez (2000) 22 Cal.4th 750.
- See same.
- People v. Hannon (1977) 19 Cal.3d 588.