What is a motion to continue?

A motion to continue is a motion to postpone your hearing or trial. This motion can be very important if your attorney is not yet ready to proceed to the hearing or trial.

1. The California Penal Code Requires A Continuance Upon The Showing of Good Cause

                  Penal Code section 1050 is unambiguous. “Continuances shall be granted only upon a showing of good cause.” (Pen. Code, § 1050, subd. (e).) The California Supreme Court has articulated the well-settled standard of review as follows: “While the determination of whether in any given case a continuance should be granted ‘normally rests in the discretion of the trial court’ (People v. Buckowski (1951) 37 Cal.2d 629, 631 [233 P.2d 912]), that discretion may not be exercised in such a manner as to deprive the defendant of a reasonable opportunity to prepare his defense.” (People v. Murphy (1963) 59 Cal.2d 818, 825 [31 Cal.Rptr. 306, 382 P.2d 346].) “[A] myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality.” (People v. Butcher (1969) 275 Cal.App.2d 63, 69-70 [79 Cal.Rptr. 618] [brackets added; citations omitted].) The California Supreme Court has cautioned that a judge’s “goal of expediting the adjudication of cases …, though laudable, should not blind [a judge] to the fundamental elements of a fair criminal proceeding,” and should not “outweigh a defendant’s right to a fair trial ….”  (McCullough v. Commission on Judicial Performance (1989) 49 Cal.3d 186, 195, 196 [260 Cal.Rptr. 557].) “On June 9, 2020, Division Four of this District denied a petition for writ of mandate filed by a defendant claiming violation of his statutory speedy trial rights under section 1382. (Stanley v. Superior Court (2020) 50 Cal.App.5th 164 [263 Cal. Rptr. 3d 735] (Stanley).) As noted in Stanley, supra, “ ‘A contrary holding would require trial court personnel, jurors, and witnesses to be exposed to debilitating and perhaps life-threatening illness.  Public health concerns trump the right to a speedy trial.’ (Id. at p. 1314.)” (Stanley v. Superior Court (2020) 50 Cal.App.5th 164, 169 [263 Cal.Rptr.3d 735].)

2. An Accused Has The Right To Effective Assistance of Counsel

The Supreme Court of California has stated in no uncertain terms:

“It cannot be doubted that the right to counsel guaranteed by both the federal and state Constitutions includes, and indeed presumes, the right to effective counsel ( United States v. Cronic (1984)    U.S.   ,      [80 L.Ed.2d 657, 669, 104 S.Ct. 2039, 2044]; Strickland v. Washington (1984)    U.S.   ,     [80 L.Ed.2d 674, 693 104 S.Ct. 2052, 2064]; McMann v. Richardson (1970) 397 U.S. 759, 771, fn. 14 [25 L.Ed.2d 763, 773, 90 S.Ct. 1441]; People v. Fosselman (1983) 33 Cal.3d 572, 581-583 [189 Cal.Rptr. 855, 659 P.2d 1144]; Keenan v. Superior Court (1982) supra, 31 Cal.3d 424, 428; People v. Pope (1979) 23 Cal.3d 412, 423-425 [152 Cal.Rptr. 732, 590 P.2d 859, 2 A.L.R.4th 1]), and thus also includes the right to reasonably necessary ancillary defense services. ( Keenan, supra, 31 Cal.3d at p. 428 [‘The right to effective counsel also includes the right to ancillary services necessary in the preparation of a defense’]; In re Ketchel (1968) 68 Cal.2d 397, 399-400 [438 P.2d 625] [‘‘A fundamental part of the constitutional right of an accused to be represented by counsel is that his attorney . . . is obviously entitled to the aid of such expert assistance as he may need . . . in preparing the defense’’]; Puett v. Superior Court (1979) 96 Cal.App.3d 936, 938-939 [158 Cal.Rptr. 266] [‘the right to counsel encompasses the right to effective counsel which in turn encompasses the right of an indigent and his appointed counsel to have the services of an investigator’]; People v. Faxel (1979) 91 Cal.App.3d 327, 330 [154 Cal.Rptr. 132] [‘The due process right of effective counsel includes the right to ancillary services necessary in the preparation of a defense’]; cf. Mason v. State of Arizona (9th Cir. 1974) 504 F.2d 1345, 1351 [‘the effective assistance of counsel guarantee of the Due Process Clause requires, when necessary, the allowance of investigative expenses or appointment of investigative assistance for indigent defendants’].)”

(Corenevsky v. Superior Court (1984) 36 Cal.3d 307, 319-320 [204 Cal.Rptr. 165, 682 P.2d 360] [bold added].)

3. An Accused Has A Constitutional Right To Put On A Defense

 An accused has a constitutional right to present exculpatory evidence. (Chambers v.  Mississippi (1973) 410 U.S. 284, 299-302; Washington v. Texas (1967) 388 U.S. 14.) The Ninth Circuit has reversed several convictions for California Courts failure to allow the defendant to put on a defense. (See e.g., Mordick v. Valenzuela (9th Cir. 2019) 780 F.App’x 430, 432 [“We do conclude, however, that Mordick is entitled to habeas relief based on the trial court’s limitation of Bonnie Pioch’s testimony, in violation of Mordick’s due process right to present a defense. See Chambers v. Mississippi, 410 U.S. 284, 302, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973)].) In addition, the California Supreme Court has reversed convictions for failure to allow defense expert testimony. (People v. Stoll (1989) 49 Cal.3d 1136, 1140 [265 Cal.Rptr. 111, 783 P.2d 698].)