A “Serna motion” is a motion to dismiss California misdemeanor or felony charges because the defendant was denied his / her constitutional right to a speedy trial, in violation of California’s fast and speedy trial law. 1
Serna motions (also known as “speedy trial motions“) are filed by criminal defense attorneys as part of the pretrial process in California criminal law. A successful Serna motion will result in the criminal charges against you being dismissed. 2
What is my constitutional right to a speedy trial?
The notion of a Serna motion is based on the right to a speedy trial that is set forth in both:
- The Sixth Amendment to the United States Constitution;3 and
- Article I, Section 15, of the California Constitution.4
- The filing of a criminal complaint;5
- The defendant’s arrest;
- The filing of an indictment; or
- The issuance of a holding order after a preliminary hearing.6
Serna motions to dismiss
Even though the right to a speedy trial is set forth in both the US Constitution and the California Constitution, the analysis of whether a defendant’s right to a speedy trial has been denied is different under the two constitutional sections.7
In deciding whether to grant a Serna speedy trial motion (ie, dismiss the charges against the defendant) under the US Constitution, the judge will balance the following four (4) factors:
- The length of the delay;
- The reason for the delay;
- Defendant’s assertion of the right to a speedy trial; and
- Prejudice to the defendant from the delay (this is presumed to exist if the delay is uncommonly long--which means over one (1) year in misdemeanor cases).8
In contrast, under the California Constitution, the judge only considers:
- Actual prejudice to the defendant from the delay; and
- The prosecution’s justification for the delay.9
Below, our California criminal defense attorneys10 will address the following:
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
A California Serna motion (also known as a “speedy trial motion” or a “speedy trial demand”) is a kind of pretrial motion--that is, a motion that you and your criminal defense attorney can file before your actual trial begins.
Serna motions are filed in cases where there has been an unusual delay in bringing the defendant to trial. If the delay is determined to violate his/her right to a speedy trial, then the criminal charges must be dismissed. 11
Serna motions are named after the 1985 California Supreme Court case of Serna v. Superior Court. The following example summarizes the facts of that case:
Example: In September 1978, Joaquin is accused of misdemeanor embezzlement for allegedly stealing funds from a gas station where he is working at the time. A criminal complaint is filed against him at that time--but Joaquin does not know about this.
Eventually Joaquin is arrested for this crime in February 1983--almost 4 and a half years after the complaint was filed.
This lengthy delay is presumed to have harmed Joaquin’s ability to defend himself by making it harder for him to recall what happened when the alleged crime occurred--and to produce witnesses who can do so.
So if the prosecution cannot show any good reason for the delay, the charges against Joaquin should be dismissed in response to a Serna motion.12
After your defense attorney files a Serna motion on your behalf, the next step will be for the judge in your case to hold a hearing at which evidence relevant to the speedy trial demand will be presented.
The judge will then decide--prior to your trial--whether to grant the motion and dismiss the charges.
A Serna motion can be based on either or both of:
- The Sixth Amendment to the United States Constitution;13 and/or
- Article I, Section 15, of the California Constitution.14
Because the law surrounding these two constitutional sections is different, we will discuss each separately below.
The law on the right to a speedy trial under the federal (US) Constitution is as follows:
The first major aspect of the US Constitution’s right to a speedy trial is the federal law on when the right to a speedy trial “attaches” – that is, when the clock starts running for purposes of determining a Serna delay.
For purposes of Serna motions that rely on the Sixth Amendment to the US Constitution, the clock starts running as soon as either of the following occurs in a misdemeanor case:
- The filing of a complaint;15 or
- The defendant’s arrest--but only if the arrest is followed by some kind of actual or continuing restraint (like a California bail requirement or travel restrictions).16
But in felony cases, the Serna clock starts running when one of the following occurs:
- The defendant is arrested;
- A holding order is issued for the defendant following a preliminary hearing; or
- An indictment or information is filed. 17
A felony complaint does not activate the right to a speedy trial under the US Constitution.18
Example: Timothy is accused of raping and murdering a woman in Orange County in December of 1989. Weeks after that crime, he is arrested and charged with several other crimes in the state of Missouri.
In February of 1990, the Orange County District Attorney’s office files a complaint accusing Timothy of the felony crimes of rape and murder. But Timothy is in custody in Missouri, where he is tried and convicted of other crimes.
Finally, in late 1991, the Orange County and Missouri authorities arrange for Timothy to be transferred to custody in California.
A preliminary hearing is held on the rape and murder charges, and this results in an information being filed in February of 1992. Timothy’s trial begins shortly after that.
Two years elapsed between the initial complaint against Timothy and his trial. But a complaint does not trigger speedy trial rights in felony cases--only an indictment or information will do so.
And because Timothy’s information was issued right before his trial, he does not have valid grounds for a successful Serna motion that relies on the federal constitutional right to a speedy trial. 19
When you file a Serna/speedy trial motion, the judge will determine whether the delay in bringing you to trial is unreasonable under the Sixth Amendment to the US Constitution.
In making this determination, s/he is required to weigh the following four (4) factors:
- The length of the delay in bringing you to trial;
- The prosecution’s reasons for the delay;
- Your assertion of the right (that is, whether you made efforts to speed up the process during the delay); and
- Prejudice to you from the delay. 20
Prosecution’s reasons for the delay
The reasons why the prosecution delayed bringing your case to trial will be an important factor in the federal Serna motion analysis.
If the government deliberately delayed the trial to make it more difficult for you to mount a defense, then that is a substantial factor supporting the finding that your rights were violated.21 (This kind of behavior can amount to a form of prosecutorial misconduct.)
More “neutral” excuses such as negligence and overcrowded courts still weigh against the government--but not as strongly. And valid reasons such as a witness being unavailable will count in the prosecution’s favor. 22
Example: Charlene is pulled over by Mike, a highway patrol officer, late one night. Mike notices that she is acting intoxicated and administers a DUI breath test to her. It shows that her blood alcohol level is well above the legal limit.
A complaint is filed against Charlene, charging her with misdemeanor California DUI.
Mike is a member of the Army Reserve. Not long after Charlene is charged, he is called up to serve in Iraq and is sent overseas. Because he will be a key witness in Charlene’s case, the prosecution decides to put off her trial until he comes back. Mike is gone for 13 months.
Charlene did experience a serious delay between the filing of her misdemeanor complaint and her trial. However, the prosecution had a good reason for the delay--Mike’s absence--which means that this factor in the federal speedy trial test will probably count in their favor.
Prejudice to the defendant
The degree of “prejudice”--that is, harm--to the defendant from the delay is another major factor that helps determine whether a speedy trial motion under the US Constitution will be successful.
Prejudice to the defendant can take the form of:
- Long periods of pretrial incarceration;
- Anxiety and concern over the pending criminal charges; and/or
- Impairment of his/her ability to defend against the charges--through the death or disappearance of witnesses, for example, or through the weakening of witnesses’ memory of what occurred.23
You and your attorney can present evidence along with your Serna motion to show that any or all of these forms of prejudice exist.
Remember that in misdemeanor cases, the filing of a complaint is enough to trigger the speedy trial clock.
Also, the judge will presume that prejudice exists--even without any evidence thereof--if the delay to trial was “uncommonly long.”24
In misdemeanor cases, any delay of more than one (1) year is long enough to create a presumption of prejudice.25
Example: Let’s return to Charlene from our previous example.
During the 13 months between the filing of her complaint and her trial, she suffers severe anxiety over the potential consequences if she is convicted. She also finds that her memory of the night she was arrested is getting weaker.
Her defense plan includes calling as witnesses two friends who were with her on the night when she allegedly drove drunk. But one of these friends moves out of the country and can no longer testify. The other admits that he is having a hard time remembering what happened.
Plus, because the delay exceeds a year in a misdemeanor case, the judge reviewing Charlene’s speedy trial motion under federal law will presume that she was prejudiced by the delay even without evidence of these specific harms.
As a result, prejudice to the defendant will likely be a powerful factor in support of a federal Serna motion if Charlene and her attorney choose to file one.
According to Bakersfield criminal defense attorney Neil Shouse26:
“If your criminal defense attorney is filing a Serna motion on your behalf, he or she will probably want to make two different speedy trial arguments: one based on the US Constitution, and one based on the California Constitution That is because federal and California speedy trial law are slightly different from each other, and each has potential advantages that the other does not. “
The fast and speedy trial law under California’s state constitution is as follows:
Under Article I, Section 15, of the California Constitution, your right to a speedy trial begins at the earlier of:
- The date a complaint or any other charging document is filed against you; and
- The date you are arrested (if that arrest is followed by actual or continuing restraint of some kind).27
This is one major difference between the federal and state law on Serna motions. Under federal law, a felony complaint does not start the speedy trial clock running--only an indictment or information can do that.
But under state law, a complaint activates your speedy trial rights for either misdemeanors or felonies.28
Example: Earlier in this article, we presented the example of Timothy. A felony complaint was filed against Timothy, accusing him of rape and murder, in 1990. But he was not indicted or brought to trial until 2 years later.
Under federal law fast and speedy trial, Timothy could not bring a successful Serna motion because his speedy trial rights did not begin until the indictment was issued. But under the state constitutional law on speedy trials, Timothy’s speedy trial right began when the felony complaint was filed.
Because there was a two-year delay between the complaint and his trial,he may be able to claim successfully in a Serna motion that his right to a speedy trial under the California Constitution was violated.
For Serna motions to dismiss under the California Constitution, the judge will consider only two (2) factors in deciding whether your speedy trial rights were violated:
- The justification for the delay; and
- Prejudice to you resulting from the delay.29
Unlike with the federal standard, prejudice will not be presumed if there is an unusually long delay. If you cannot show that there was some harm to you from the delay, then you are unlikely to get your case dismissed through a Serna motion under the state constitution.30
Example: Earlier in this article, we summarized the facts of the case of Serna v. Superior Court, for which Serna motions were named.
Joaquin, the defendant in that case, is charged with embezzlement through a criminal complaint in September 1978. But he is not arrested and tried until 1983.
Under federal speedy trial law, Joaquin is presumed to have been harmed by that long delay.
But under state fast and speedy trial law, there is no such presumption. Joaquin needs to show that there was concrete harm to him from the delay--for example, witnesses disappearing or forgetting what happened on the day of the alleged crime.
Without an affirmative showing of prejudice Joaquin is unlikely to succeed on his Serna motion under the California Constitution.31
A Serna (speedy trial) motion is a motion to dismiss the charges. If the prosecution has violated your speedy trial rights, then all charges against you must be dropped.32
In other words, a successful speedy trial motion will clear you of the current criminal charge--the best of all possible outcomes!
If your Serna motion is unsuccessful initially, then you are not out of luck. You may use the California criminal appeals process to appeal this decision.
If your Serna motion is denied--and you are then convicted of the charges – you can appeal your conviction arguing, in part, that your Serna motion should not have been denied because in fact your constitutional right to a speedy trial was violated.
Call us for help …
For questions about California Serna motions / speedy trial motions to dismiss, or to discuss your case confidentially with one of our attorneys, do not hesitate to contact us at Shouse Law Group.
We have local criminal law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
2 See same.
3 U.S. Const., amend. VI. (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial [enforceable through Serna motions], by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, . . . .”)
4 Cal. Const., art. I, sec. 15. (“The defendant in a criminal cause has the right to a speedy public trial [enforceable through Serna motions], . . . .”)
5 Serna v. Superior Court, endnote 1, above, at 248. (“”The defendant in a criminal cause has the right to a speedy public trial . . . ” In a misdemeanor prosecution that right attaches under the California Constitution when a criminal complaint is filed.”)
6 People v. Martinez (2000) 22 Cal.4th 750, 755. (“The United States Supreme Court has defined the point at which the federal speedy trial right begins to operate: “[I]t is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment [enforceable through Serna motions].” (United States v. Marion (1971) 404 U.S. 307, 320, 92 S.Ct. 455, 30 L.Ed.2d 468.)”)
7 Same. (“The second difference is in the showing that a defendant must make to obtain a dismissal for violation of the speedy trial right. For the federal Constitution’s speedy trial right, the United States Supreme Court has articulated a balancing test that requires consideration of the length of the delay, the reason for the delay, the defendant’s assertion of the right, and prejudice to the defense caused by the delay. (Barker v. Wingo (1972) 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101.) Because delay that is “uncommonly long” triggers a presumption of prejudice (Doggett v. United States (1992) 505 U.S. 647, 651–652, 656–657, 112 S.Ct. 2686, 120 L.Ed.2d 520), a defendant can establish a speedy trial claim under the Sixth Amendment without making an affirmative demonstration that the government’s want of diligence prejudiced the defendant’s ability to defend against the charge. (Moore v. Arizona (1973) 414 U.S. 25, 26, 94 S.Ct. 188, 38 L.Ed.2d 183.) Under the state Constitution’s speedy trial right, however, no presumption of prejudice arises from delay after the filing of a complaint and before arrest or formal accusation by indictment or information (Scherling v. Superior Court (1978) 22 Cal.3d 493, 504, fn. 8, 149 Cal.Rptr. 597, 585 P.2d 219); rather, in this situation a defendant seeking dismissal must affirmatively demonstrate prejudice (Serna v. Superior Court (1985) 40 Cal.3d 239, 249, 219 Cal.Rptr. 420, 707 P.2d 793).”)
See also Serna v. Superior Court, endnote 1, above, at 254. (“Therefore, although there may be cases in which a defendant is able to demonstrate actual prejudice from delays of shorter duration, he need not do so when the delay exceeds one year. Delays of that magnitude are presumptively prejudicial.”)
9 See People v. Hannon (1977) 19 Cal.3d 588, 608. (“Accordingly, we proceed to the next step of analysis [of a Serna motion under the state constitution] – weighing the prejudicial effect of the delay on defendant against any justification for the delay.”)
10 Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
11 Serna v. Superior Court, endnote 1, above.
12 Serna v. Superior Court, endnote 1, above, at 264. (“The writ should also issue in cases such as this in which although the defendant offered evidence establishing a presumptively prejudicial delay, and that evidence was undisputed by the People in any essential aspect, the trial court failed to put the People to its proof, i.e., it failed to require the People to offer justification adequate to demonstrate that the legitimate interests of law enforcement warranted the disruption of defendant’s life some four and one-half years after the charged offense allegedly was committed. The superior court therefore abused its discretion in denying the petition for writ of mandate and prohibition and in failing to compel the municipal court to conduct a hearing [in response to a Serna motion] at which the People would be called upon to justify the delay.”)
13 U.S. Const., amend. VI, endnote 3, above.
14 Cal. Const., art. I, sec. 15, endnote 4, above.
15 Serna v. Superior Court, endnote 1, above, at 262. (“We are persuaded by the repeated reference in decisions of the United States Supreme Court to formal accusation or charge, and by the acceptance of that interpretation of Marion by the courts of other jurisdictions, that the Sixth Amendment right to speedy trial attaches in misdemeanor prosecutions, as it does in felonies, with the filing of the accusatory pleading, here a misdemeanor complaint, or arrest, whichever is first.”)
16 People v. Williams (2012) 207 Cal.App.4th Supp. 1, 6-7. (“An arrest that precedes the filing of a charging document begins the speedy trial clock only if the arrest comes with “actual” or “continuing” restraint. . . . Based on the record before us, the evidence does not indicate that the defendant was required to post bail, was placed under any conditions of release, was restricted from travel, or otherwise suffered any of the actual restraints that normally accompany an arrest when charges are pending. Absent such actual restraints, the Sixth Amendment speedy trial right did not attach.”)
17 People v. Martinez, endnote 6, above.
18 People v. DePriest (2007) 42 Cal.4th 1, 26. (“However, contrary to what defendant apparently would have us assume or conclude, the Sixth Amendment’s speedy trial provision never applied in the first place. “[B]efore [a] defendant may allege [such] a violation [in a Serna or speedy trial motion] . . ., he must establish the right attaches.” ( People v. Roybal (1998) 19 Cal.4th 481, 513 [79 Cal.Rptr.2d 487, 966 P.2d 521] ( Roybal); see id. at p. 512.) It is settled that, for federal constitutional purposes, attachment of the right to speedy trial occurs only upon “`either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge.'” ( Martinez, supra, 22 Cal.4th 750, 755, 760, quoting United States v. Marion (1971) 404 U.S. 307, 320 [30 L.Ed.2d 468,92 S.Ct. 455] ( Marion).) The filing of a felony complaint does not trigger federal speedy trial protection on the charged crimes. ( Martinez, supra, 22 Cal.4th at pp. 754-755, 763, 764, 765.) The reason is that the Sixth Amendment requires “formal accusation in the court with jurisdiction over the prosecution of the charge” ( Martinez, at p. 763), or “arrest with continuing restraint” on such charge. ( Id. at p. 765; accord, People v. Horning (2004) 34 Cal.4th 871, 891 [22 Cal.Rptr.3d 305,102 P.3d 228] ( Horning).) Here, defendant did not stand formally accused or subject to the requisite restraint for Sixth Amendment purposes until February 1992, when he was *2727 held to answer on capital charges and the information was filed in Orange County Superior Court. . . Nor, for reasons we have explained, was the Sixth Amendment right triggered on February 1, 1990, by the mere filing of the complaint in Orange County Municipal Court.”)
19 Based on the facts of the same.
20 Barker v. Wingo (1972) 407 U.S. 514, 530-533.
21 Same, at 531. (“Closely related to length of delay is the reason the government assigns to justify the delay [in response to a speedy trial motion to dismiss]. Here, too, different weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.”)
23 Same, at 532. (“A fourth factor [to be considered in a Serna/speedy trial motion] is prejudice to the defendant. Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.33 Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past. Loss of memory, however, is not always reflected in the record because what has been forgotten can rarely be shown.”)
24 People v. Martinez, endnote 7, above.
25 Serna v. Superior Court, endnote 7, above.
26 Bakersfield criminal defense attorney Neil Shouse is the founder and Managing Attorney of Shouse Law Group. He served five years in the Los Angeles County District Attorney’s office, prosecuting more than 60 criminal trials with an astonishing 96% success rate in felony jury trials to verdict. Mr. Shouse is equally skilled at defending clients in jury trials and at using key pretrial processes, such as speedy trial motions, to advance his clients’ interests.
27 People v. Hannon (1977) 19 Cal.3d 588, 608. (“Nevertheless, our independent examination of the speedy trial question [addressed by Serna motions], in light of California law and “the full panoply of rights Californians have come to expect as their due,” has led us to conclude that the right to a speedy trial guaranteed by article I, section 15 of the California Constitution applies once a criminal complaint is filed. We continue to adhere to that higher standard of protection against the abuses of pretrial delay.”)
See also People v. Williams, endnote 16, above.
28 People v. Martinez, endnote 6, above, at 754-55. (“The first difference concerns the point at which the speedy trial right attaches. Under the state Constitution, the filing of a felony complaint is sufficient to trigger the protection of the speedy trial right. (People v. Hill (1984) 37 Cal.3d 491, 497, fn. 3 [209 Cal.Rptr. 323, 691 P.2d 989]; People v. Hannon (1977) 19 Cal.3d 588, 607-608 [138 Cal.Rptr. 885, 564 P.2d 1203] (Hannon).) Under the federal Constitution, however, the filing of a felony complaint is by itself insufficient to trigger speedy trial protection.”)
29 People v. Hill (1984) 37 Cal.3d 491, 496. (“Prejudice has been deemed more important under the state standard, however, for this court weighs the prejudicial effect of delay against any justification for it [in ruling on speedy trial motions].”)
30 People v. Martinez, endnote 7, above.
31 Serna v. Superior Court, endnote 1, above, at 798-99. (“Under recent decisions of this court, the initial burden in establishing a violation of article I, section 15, is on the defendant seeking dismissal who must demonstrate prejudice attributable to the delay in arrest. (Crockett v. Superior Court (1975) 14 Cal.3d 433, 121 Cal.Rptr. 457, 535 P.2d 321.) Only after he has done so must the court determine if the delay was justified and engage in the balancing process.”)
32 See, e.g., People v. Hill, endnote 29, above, at 494. (“The People appeal from an order of the Santa Clara Superior Court dismissing multiple felony counts against defendant Hill, a state prison inmate, on the ground that he had been denied his federal and state constitutional rights to speedy trial [dismissal of all charges in response to a Serna motion].”)