Metropolitan News-Enterprise


Wednesday, September 22, 2021


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Court of Appeal:

Court May Deny Delay of Hearing on Motion to Suppress Even If Dismissal Likely Result

Sixth District Opinion Repudiates 2010 Decision by First District


By a MetNews Staff Writer


A judge may deny a motion to continue a hearing on a suppression motion based on lack of good cause for a delay even if this could mean a granting of the motion, leaving the prosecution unable to proceed, the Sixth District Court of Appeal held yesterday, repudiating a contrary decision from the First District’s Div. Five.

Yesterday’s opinion by Justice Allison M. Danner reverses a decision of the Santa Clara Superior Court’s Appellate Division affirming a conviction of a woman for loitering with the intent to commit prostitution, a misdemeanor.

At an initial hearing on defendant Dajah Brown’s motion pursuant to Penal Code §1538.5 to suppress her admissions to the arresting officer as to her intent, the prosecutor said he had told the officer it was all right for him to skip his scheduled appearance that morning in light of a need to conduct an interview, and asked for a continuance. Santa Clara Superior Court Judge Jesus Valencia Jr. said good cause had not been shown under Penal Code §1050(e) to delay the matter and instructed that the witness be present in the afternoon.

He wasn’t. Valencia said he was denying a continuance; the prosecutor advised that he could not proceed; the motion was granted.

First District’s Opinion

The prosecution moved for reconsideration, citing the First District’s May 14, 2010 decision in People v. Ferrer. There, it was declared:

“Because it was reasonably foreseeable that denial of the prosecutor’s request for a continuance would result in dismissal of the case, we conclude the trial court erred in denying the requested continuance of defendant’s section 1538.5 motion.”

Reconsideration was granted in Brown’s case, a new suppression was held, and the motion was denied. Brown pled guilty and her appeal to the Appellate Division, based on denial of the suppression motion, failed in light of Ferrer.

The Court of Appeal transferred the matter to itself and yesterday reversed, declaring Ferrer to have been incorrectly decided.

Statutory Provisions

Danner pointed to Penal Code §1050(e) which says: “Continuances shall be granted only upon a showing of good cause” and §1050(b) which requires a written notice of a request for a continuance at least two days in advance of the hearing.

She also noted that §1050.5 provides:

“(a) When, pursuant to subdivision (c) of Section 1050, the court imposes sanctions for failure to comply with the provisions of subdivision (b) of Section 1050, the court may impose one or both of the following sanctions when the moving party is the prosecuting or defense attorney: [¶] (1) A fine not exceeding one thousand dollars ($1,000) upon counsel for the moving party. [¶] (2) The filing of a report with an appropriate disciplinary committee, [¶] (b) The authority to impose sanctions provided for by this section shall be in addition to any other authority or power available to the court, except that the court or magistrate shall not dismiss the case.”

Sec. 1050.5 Inapplicable

Danner wrote:

“At the outset, we observe that section 1050.5 by its terms was not applied in this case. Section 1050.5 sets out sanctions for failure to comply with section 1050(b). Section 1050(b), in turn, codifies the requirement that a motion to continue be made in writing two court days before the hearing. (§ 1050(b).) Here, the trial court did not impose sanctions for the prosecution’s failure to make a written motion to continue— instead, the trial court found that the prosecution’s request for a continuance was not supported by good cause.”

She continued:

“Therefore, the only basis for the rule announced in Ferrer and urged by the Attorney General here—that a trial court may not deny a request to continue a motion to suppress where it is reasonably foreseeable that denial of the continuance would result in dismissal of the case—must be section 1050 itself.

“We see no basis in the statutory text for such a rule. Section 1050 states that the section ‘is directory only and does not mandate dismissal of an action by its terms.’ ”

Won’t Create Exception

The justice said that while the Legislature has enacted exceptions to the “good cause” requirement of §1050, none applies, and declared, “[W]e decline to add an exception for hearings on motions to suppress under section 1538.5,” remarking:

“[W]e find no statutory support in either section 1050 or section 1050.5 for the rule announced in Ferrer.”

The opinion instructs:

“The trial court is ordered to reinstate its orders denying the prosecution’s request for a continuance and granting Brown’s motion to suppress.”

The case is People v. Brown, 2021 S.O.S. 5220.


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