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Can Judge Deny Trial Continuance if it Means Dismissal?

On July 13, 2016, about 11:30 p.m., San Jose Police Department Officer Nader Yasin, working in uniform, observed Dajah Brown loitering in an area known for prostitution.  Ms. Brown walked away from the officer and began talking on her cell phone.

The officer followed Brown and eventually spoke with her.  Brown acknowledged to the officer that she was working as a prostitute, but had not had any “dates” yet.  When the officer asked if she had any condoms, she showed him four.

The officer then gave Brown Miranda warnings (Miranda v. Arizona (1966) 384 U.S. 436) and Brown waived those rights and again stated that she was working as a prostitute.  Officer Yasin did not secure a search warrant at any point in his investigation of Brown.  He then cited her for violating Penal Code § 653.22(a), loitering with the intent to commit prostitution (Penal Code § 653.22 was repealed on July 1, 2022 under Senate Bill 357).
In a Nutshell: A judge may deny a Motion to Continue filed by the prosecution, even if it foreseeably means a motion to suppress may be granted, resulting in dismissal of the case.  We naturally like this ruling, as it reverses Ferrer, a favorite DA case barring such a 1050 denial.
About five months later, Brown was arraigned in Santa Clara County Superior Court.  She thereafter filed a motion to suppress under Penal Code § 1538.5, seeking to suppress any statements she had made to Officer Yasin and any evidence obtained from her interaction with him. 

The trial court judge set a hearing date of February 17, 2017, and ordered Brown to be present.  On the day of the hearing, the parties appeared for the hearing.  The prosecutor had not filed a written motion to continue, but at the hearing, requested a continuance.  He stated that shortly before the hearing was scheduled to begin, he received a phone call from Officer Yasin, the sole prosecutor witness to support the charge, in which the officer said he needed to interview a witness in another case.

Although the officer had been subpoenaed for the hearing on the motion to suppress, the prosecutor told the officer “it would be okay for him to do that.”  The prosecutor then asked for a continuance of the hearing, noting that Ms. Brown had waived time for trial.

The judge commented that the People had not shown good cause for a continuance but agreed to “pass” the matter until later in the afternoon so the prosecutor could request that the officer come to court that same day.

That afternoon, the prosecutor told the judge that the officer would not be appearing that day, but argued that the unforeseen circumstances of the other investigation constituted good cause. 

The judge denied the prosecution’s motion to continue the suppression hearing as lacking in good cause under Penal Code § 1050 and, in the absence of any evidence offered by the prosecution to justify the warrantless search, granted Brown’s motion to suppress.

The prosecution later filed a motion for reconsideration of the trial court orders on the motion for continuance and for suppression of the evidence, stating the People were unable to proceed with the case and, therefore, the trial court lacked authority to deny their motion for a continuance of the suppression motion under People v. Ferrer (2010) 184 Cal. App. 4th 873, 877.

In Ferrer, the First District Court of Appeal decided that when it is reasonably foreseeable that denial of the prosecutor’s request for a continuance under section 1050 will result in dismissal of the case, the trial court may not deny the requested continuance of a defendant’s section 1538.5 motion.  Ferrer, at 886.

Based on Ferrer, the trial court granted the People’s motion for reconsideration, vacated its prior ruling on the motion to suppress, and granted a continuance of Brown’s motion to suppress, which it ultimately denied.  Brown was subsequently convicted and appealed to the appellate division of the Santa Clara Superior Court, arguing that Ferrer was wrongly decided. 

The appellate division, concluding it was bound by Ferrer, affirmed the judgment, but one of its members in a concurring opinion urged the court to reconsider the rule announced in Ferrer.

Brown then filed a petition in the Sixth Appellate District to transfer the matter, which this court granted.  The Sixth Appellate District then reversed the judgment, declining to follow Ferrer

The Sixth Appellate District held that if a trial court finds that a request for a continuance of a motion to suppress lacks good cause, under Penal Code § 1050(e), the trial court has the authority to deny the requested continuance on that basis even if this decision may foreseeably result in a dismissal of the prosecution.

We obviously like this ruling, as it suggests that prosecutors and police officers must prioritize their time for events that involve subpoenas, as otherwise subpoenas really mean they are only binding unless something else arises, as in this case.

The citation for the Sixth Appellate District Court ruling discussed above is People v. Dajah Brown (6th App. Dist., 2021) 69 Cal. App. 5th 15, 285 Cal. Rptr. 3d 1.

For more information about trial continuances, please click on the following articles:
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