Friday, February 22, 2008
Good cause required for prosecutor continuances
san diego dui attorney news
No Prosecution continuances without good cause!
The prosecutors believe that the law guarantees their “right” to trail a case during a trailing period even though they cannot show good cause to so trail. Really. I think it’s the 3.1 Amendment: “prosecutors have a right to trail on demand. So there.” The prosecutors now claim that an amended COMMENT to a court rule is illegal because it conflicts with this “right.”
This has manifested itself in a truly bizarre sequence of events still unfolding. Before I get too far, I need to address what “trailing period” means. If you go outside the initial statutory period in a felony or a misdemeanor, the case must be dismissed if it is continued more than ten days after the last date consented to by the defendant. This ten-day period is called the “grace period” or “trailing period.” Of course, sometimes the case trails from day 50 to day 60, or day 20 to day 30, or day 35 to day 45. And cases trail for a preliminary hearing as well, though the prosecution can trail within the initial ten-day period without showing good cause.
The Rules of Court were amended effective January 1, 2008. Rule 4.115(b) says, “Any request for a continuance, including a request to trail the trial date, must comply with rule 4.113 and the requirement in section 1050 to show good cause to continue a hearing in a criminal proceeding.” In turn, Rule 4.113 says, and has said since 1985, “Motions to continue the trial of a criminal case are disfavored and will be denied unless the moving party, under Penal Code section 1050, presents affirmative proof in open court that the ends of justice require a continuance.”
Now here’s the big change. The Comment to Rule 4.115 was amended, also effective January 1, 2008. Here’s the Comment. I know it’s long, but read it all, slowly, please:
Subdivision (b) clarifies that the “good cause” showing for a continuance under section 1050 applies in all criminal cases, whether or not the case is in the 10-day grace period provided for in section 1382. The Trial Court Presiding Judges Advisory Committee and Criminal Law Advisory Committee observe that the “good cause” requirement for a continuance is separate and distinct from the “good cause” requirement to avoid dismissals under section 1382. There is case law stating that the prosecution is not required to show good cause to avoid a dismissal under section 1382 during the 10-day grace period because a case may not be dismissed for delay during that 10-day period. (See, e.g., Bryant v. Superior Court (1986) 186 Cal.App.3d 483, 488.) Yet, both the plain language of section 1050 and case law show that there must be good cause for a continuance under section 1050 during the 10-day grace period. (See, e.g., section 1050 and People v. Henderson (2004) 115 Cal.App.4th 922, 939-940.) Thus, a court may not dismiss a case during the 10-day grace period under section 1382, but the committees believe that the court must deny a request for a continuance during the 10-day grace period that does not comply with the good cause requirement under section 1050.
The decision in Henderson states that when the prosecutor seeks a continuance but fails to show good cause under section 1050, the trial court “must nevertheless postpone the hearing to another date within the statutory period.” (115 Cal.App.4th at p. 940.) That conclusion, however, may be contrary to the plain language of section 1050, which requires a court to deny a continuance if the moving party fails to show good cause. The conclusion also appears to be dicta, as it was not a contested issue on appeal. Given this uncertainty, the rule is silent as to the remedy for failure to show good cause for a requested continuance during the 10-day grace period. The committees note that the remedies under section 1050.5 are available and, but for the Henderson dicta, a court would appear to be allowed to deny the continuance request and commence the trial on the scheduled trial date.
If you didn’t quite get that, let me try to explain. You need to understand that there are two different points here. During a trailing period, a court can’t dismiss a case because the prosecution isn’t ready. But that is a completely different point than the rules governing continuances. As the Comment makes clear, NEITHER SIDE gets to continue cases without showing good cause, even during the trailing period.
How does this actually work? The prosecutor seeks to “trail” within the trailing period. Unless the prosecutor is seeking to trail the case until later the same day, this IS a motion to continue. You object (if you don’t object, you consent to the delay, which may start a NEW trailing period). Maybe the prosecutor has good cause. But if not, DON’T MOVE TO DISMISS! Got that? Instead, object to delay, cite the Court Rule and the Comment, and ask the judge to deny the prosecutor’s motion to continue. If the judge does so, the prosecutor could proceed with whatever he or she has, or could move to dismiss. Don’t ask the court to dismiss under PC 1385. Ask the judge to inquire of the prosecutor: are you moving to dismiss? If not, proceed. They then do whatever they can; you then ask the court to find insufficient evidence under PC 1118.1 or, if it’s a preliminary hearing, PC 871.
The right way to think about this is to envision a true last day. The prosecutor moves for a continuance and that’s denied. Then what? Well, the prosecutor could move to dismiss. If they do that, they surely can’t appeal. Otherwise, if the prosecutor refuses to move to dismiss, what should happen? The judge should tell the prosecutor to proceed. The prosecution can present anything it has. If they don’t have enough or don’t have anything, the right thing for the judge to do isn’t a dismissal under PC 1385 or PC 1382. It’s a finding of insufficient evidence under PC 1118.1.
OK, now for the fun part. Steve Cooley, LA DA, has sent a letter (ex parte, naughty, naughty) to the LA presiding judge. He complains about the Comment to the Court Rule and asks that any sanction be imposed on him personally. Incidentally, we don’t want any monetary sanction; we want the case to proceed, right? Anyway, Cooley attaches a letter from his appellate unit, a letter sent to the Judicial Council in opposition to the then-proposed Comment. Remember, it appears that after considering that letter, the Judicial Counsel ADOPTED the Comment.
Of course, not surprisingly, the letter doesn’t cite any provision giving the prosecution the “right” to trail without good cause. They simply cite all the law, which we concede, that courts can’t dismiss cases when the prosecutor can’t show good cause during the trailing period. Again, we don’t want dismissal; we want the continuance denied and the prosecutor forced to proceed or move to dismiss.
It isn’t clear how all this is going to play out. But the big point is that we’ve been making this distinction between dismissal and denial of the continuance for years. Apart from the Comment, here’s a case making this precise distinction: People v. Alvarez (1989) 208 Cal.App.3d 567. At the risk of beating a dead horse, let me review what you should do when the prosecutor wants to “trail” within the trailing period. Object. If the prosecutor doesn’t have good cause, cite the Comment to your judge and urge your judge to deny the prosecutor’s motion to continue. Don’t move to dismiss. If the judge denies the motion to continue, the prosecutor has to either proceed with what he or she has to present, or move to dismiss. Don’t ask the court to dismiss under PC 1385. Ask the court to find insufficient evidence under PC 1118.1 or, if it’s a preliminary hearing, PC 871.
No Prosecution continuances without good cause!
The prosecutors believe that the law guarantees their “right” to trail a case during a trailing period even though they cannot show good cause to so trail. Really. I think it’s the 3.1 Amendment: “prosecutors have a right to trail on demand. So there.” The prosecutors now claim that an amended COMMENT to a court rule is illegal because it conflicts with this “right.”
This has manifested itself in a truly bizarre sequence of events still unfolding. Before I get too far, I need to address what “trailing period” means. If you go outside the initial statutory period in a felony or a misdemeanor, the case must be dismissed if it is continued more than ten days after the last date consented to by the defendant. This ten-day period is called the “grace period” or “trailing period.” Of course, sometimes the case trails from day 50 to day 60, or day 20 to day 30, or day 35 to day 45. And cases trail for a preliminary hearing as well, though the prosecution can trail within the initial ten-day period without showing good cause.
The Rules of Court were amended effective January 1, 2008. Rule 4.115(b) says, “Any request for a continuance, including a request to trail the trial date, must comply with rule 4.113 and the requirement in section 1050 to show good cause to continue a hearing in a criminal proceeding.” In turn, Rule 4.113 says, and has said since 1985, “Motions to continue the trial of a criminal case are disfavored and will be denied unless the moving party, under Penal Code section 1050, presents affirmative proof in open court that the ends of justice require a continuance.”
Now here’s the big change. The Comment to Rule 4.115 was amended, also effective January 1, 2008. Here’s the Comment. I know it’s long, but read it all, slowly, please:
Subdivision (b) clarifies that the “good cause” showing for a continuance under section 1050 applies in all criminal cases, whether or not the case is in the 10-day grace period provided for in section 1382. The Trial Court Presiding Judges Advisory Committee and Criminal Law Advisory Committee observe that the “good cause” requirement for a continuance is separate and distinct from the “good cause” requirement to avoid dismissals under section 1382. There is case law stating that the prosecution is not required to show good cause to avoid a dismissal under section 1382 during the 10-day grace period because a case may not be dismissed for delay during that 10-day period. (See, e.g., Bryant v. Superior Court (1986) 186 Cal.App.3d 483, 488.) Yet, both the plain language of section 1050 and case law show that there must be good cause for a continuance under section 1050 during the 10-day grace period. (See, e.g., section 1050 and People v. Henderson (2004) 115 Cal.App.4th 922, 939-940.) Thus, a court may not dismiss a case during the 10-day grace period under section 1382, but the committees believe that the court must deny a request for a continuance during the 10-day grace period that does not comply with the good cause requirement under section 1050.
The decision in Henderson states that when the prosecutor seeks a continuance but fails to show good cause under section 1050, the trial court “must nevertheless postpone the hearing to another date within the statutory period.” (115 Cal.App.4th at p. 940.) That conclusion, however, may be contrary to the plain language of section 1050, which requires a court to deny a continuance if the moving party fails to show good cause. The conclusion also appears to be dicta, as it was not a contested issue on appeal. Given this uncertainty, the rule is silent as to the remedy for failure to show good cause for a requested continuance during the 10-day grace period. The committees note that the remedies under section 1050.5 are available and, but for the Henderson dicta, a court would appear to be allowed to deny the continuance request and commence the trial on the scheduled trial date.
If you didn’t quite get that, let me try to explain. You need to understand that there are two different points here. During a trailing period, a court can’t dismiss a case because the prosecution isn’t ready. But that is a completely different point than the rules governing continuances. As the Comment makes clear, NEITHER SIDE gets to continue cases without showing good cause, even during the trailing period.
How does this actually work? The prosecutor seeks to “trail” within the trailing period. Unless the prosecutor is seeking to trail the case until later the same day, this IS a motion to continue. You object (if you don’t object, you consent to the delay, which may start a NEW trailing period). Maybe the prosecutor has good cause. But if not, DON’T MOVE TO DISMISS! Got that? Instead, object to delay, cite the Court Rule and the Comment, and ask the judge to deny the prosecutor’s motion to continue. If the judge does so, the prosecutor could proceed with whatever he or she has, or could move to dismiss. Don’t ask the court to dismiss under PC 1385. Ask the judge to inquire of the prosecutor: are you moving to dismiss? If not, proceed. They then do whatever they can; you then ask the court to find insufficient evidence under PC 1118.1 or, if it’s a preliminary hearing, PC 871.
The right way to think about this is to envision a true last day. The prosecutor moves for a continuance and that’s denied. Then what? Well, the prosecutor could move to dismiss. If they do that, they surely can’t appeal. Otherwise, if the prosecutor refuses to move to dismiss, what should happen? The judge should tell the prosecutor to proceed. The prosecution can present anything it has. If they don’t have enough or don’t have anything, the right thing for the judge to do isn’t a dismissal under PC 1385 or PC 1382. It’s a finding of insufficient evidence under PC 1118.1.
OK, now for the fun part. Steve Cooley, LA DA, has sent a letter (ex parte, naughty, naughty) to the LA presiding judge. He complains about the Comment to the Court Rule and asks that any sanction be imposed on him personally. Incidentally, we don’t want any monetary sanction; we want the case to proceed, right? Anyway, Cooley attaches a letter from his appellate unit, a letter sent to the Judicial Council in opposition to the then-proposed Comment. Remember, it appears that after considering that letter, the Judicial Counsel ADOPTED the Comment.
Of course, not surprisingly, the letter doesn’t cite any provision giving the prosecution the “right” to trail without good cause. They simply cite all the law, which we concede, that courts can’t dismiss cases when the prosecutor can’t show good cause during the trailing period. Again, we don’t want dismissal; we want the continuance denied and the prosecutor forced to proceed or move to dismiss.
It isn’t clear how all this is going to play out. But the big point is that we’ve been making this distinction between dismissal and denial of the continuance for years. Apart from the Comment, here’s a case making this precise distinction: People v. Alvarez (1989) 208 Cal.App.3d 567. At the risk of beating a dead horse, let me review what you should do when the prosecutor wants to “trail” within the trailing period. Object. If the prosecutor doesn’t have good cause, cite the Comment to your judge and urge your judge to deny the prosecutor’s motion to continue. Don’t move to dismiss. If the judge denies the motion to continue, the prosecutor has to either proceed with what he or she has to present, or move to dismiss. Don’t ask the court to dismiss under PC 1385. Ask the court to find insufficient evidence under PC 1118.1 or, if it’s a preliminary hearing, PC 871.
# posted by SanDiegoDUI @ 6:08 PM 
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