Penal Code § 1382 PC – Speedy Trial Rights & Grounds for Dismissal

California Penal Code § 1382 grants you the right to be brought trial within 60 days of being charged with a felony. For a misdemeanor or infraction, you have a right to trial within 45 days if you are out of custody or within 30 days if you are 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.

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

• 1. What are the speedy trial requirements under PC 1382?
• 2. Are there exceptions?
• 3. What is a Serna motion?
• 4. Will a judge always use the same analysis when ruling on these motions?

1. What are the speedy trial requirements under PC 1382?

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:

1. the Sixth Amendment to the United States Constitution,¹ and
2. 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?

There are a few exceptions under California law 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).

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. Will a judge always use the same analysis when ruling on these motions?

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:

1. actual prejudice to you from the delay, and
2. the prosecution’s justification for the delay.¹³

“Prejudice” simply means a loss or injury to you.

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