On thе date scheduled for the hearing on a defense motion to suppress evidence under Penal Code section 1538.5, 1 the trial court denied a prosecution motion to continue the hearing under section 1050 because proper notice of the motion had not been provided and no good cause existed for the failure to provide notice or for the continuance itself. Because the prosecution was unable to proceed, the court ordered the evidence suppressed. Lacking the suppressed evidence, the prosecution announced it could no longer successfully prosecute the case, and the trial court dismissed the action.
The trial court erred in refusing to continue the hearing. Sections 1050 and 1050.5 prohibit the dismissal of an action due to the absence of good cause for a continuance or for the prosecutor’s failure to provide proper notice of a request for a continuance. Although the trial court did not dismiss the action as an express sanction for the failure to show good cause, dismissal was the reasonably foreseeable result of denial of the motion to continue. Cases involving requests for continuances in the preliminary hearing and trial contexts support a conclusion that the Legislature did not intend to permit denial of a motion for a continuance in the present circumstances, where an information supported by probable cause was dismissed on a procedural ground not implicating defendant’s speedy trial rights. We reverse and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND 2
On June 5, 2008, Mendocino County sheriff’s deputies executed a search warrant at the property of Roberto Leon on Blue Lake Road in Willits. The deputies discovered a large marijuana growing operation, including more than 200 live plants, 26 pounds of processed marijuana, and $11,700 in cash. Nestor Mauricio Ferrer (defendant) drove up to the property during the search and was detained. A search of defendant uncovered a set of keys to various buildings on the property. Defendant told the deputies that he was working cutting firewood and changing the oil in generators on the property. He admitted he knew marijuana was being cultivated there.
On June 26, 2008, the Mendocino County District Attorney filed a felony complaint charging defendant with cultivation of marijuana (Health & Saf. Code, § 11358) (count one), possession of marijuana for sale (Health & Saf. Code, § 11359) (count two), and management of a location used for unlawful
On November 18, 2008, defendant filed a section 1538.5 motion to suppress the fruits of the June 2008 warrantless detention and search, essentially the keys seized from defendant’s person and the statements he made to the deputies. A hеaring on the motion was calendared for December 5, which was 17 days after the motion was filed and approximately two months before trial. The People filed an opposition on December 2, and defendant filed a reply the next day.
At the suppression hearing on December 5, 2008, the prosecutor requested continuance of the hearing, stating she had not subpoenaed her witnesses due to a “mix up.” Defendant objected to the request. The trial court deferred ruling on the request and then, on December 11, issued a written order denying the People’s “oral motion” for a continuance under section 1050. The court also granted defendant’s motion to suppress because the People had failed to meet their burden of presenting evidence establishing the lawfulness of the warrantless detention and search.
On December 19, 2008, the People suggested they might be able to proceed against defendant with evidence found on Roberto Leon’s property that was not subject to the motion to suppress. On January 6, 2009, the People announced that without the suppressed evidence they were unable to proceed against defendant. The trial court dismissed the information.
DISCUSSION
Relying primarily on
People v. Henderson
(2004)
The parties agree that section 1050 applied to the Peoplе’s request to continue the hearing on defendant’s motion to suppress. Section 1050, subdivision (b), provides that a party seeking to continue a hearing in a criminal proceeding must file and serve notice of the request at least two court days before the scheduled hearing. (See also
Henderson, supra,
115
In the present case, the prosecutor failed to provide notice; instead, she verbally requested a continuance at the suppression hearing. As explanation for the need for a continuance, the prosecutor told the trial court that there had been a “mix up” in her office, resulting in a failure to subpoena her witnesses. Specifically, she explained that defendant’s suppression motion was filed November 18, 2008; she went on a one-week vacation on November 21; and, although she managed to file an opposition upon her return, the file had been routed to someone else who was on vacation. The prosecutor did not explain her failure to provide the two-day notice required under section 1050, subdivision (b).
To show good cause for a continuance, a party must make a showing of diligence. “Particularly, when the party seeks a continuance to secure a witness’s testimony, the party must show that he exercised due diligence to secure the witness’s attendance, that the witness would be available to testify within a reasonable time, that the testimony was material and not cumulative.”
(Henderson, supra,
Normally, the prosecutor’s failure to show good cause would require the trial court to deny the motion for a continuance under section 1050, subdivisions (d) and (e). (§ 1050, subd. (d) [“If the moving party is unable to show good cause for the failure to give notice, the motion for continuance shall not be granted.”]; § 1050, subd. (e) [“Continuances shall be granted оnly upon a showing of good cause.”];
People v. Harvey
(1987)
This court must determine whether sections 1050, subdivision (/), and 1050.5, subdivision (b), prohibited the trial court from refusing to continue the hearing on defendant’s section 1538.5 motion in the circumstances of this case. In doing so, “we apply well-established rules of statutory construction. The goal of statutory construction is to ascertain and effectuate the intent of the Legislature. [Citation.] Often, the words of the statute provide the most reliable indication of legislative intent. [Citation.] However, when the statutory language is itself ambiguous, we must examine the context in which the language appears, adopting the construction that best harmonizes the statute internally and with related statutes. [Citation.] ‘ “When the language is susceptible of more than one reasonable interpretation ... we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part.” ’ [Citation.]”
(Rothschild
v.
Tyco Internal (US), Inc.
(2000)
Sections 1050, subdivision (l), and 1050.5, subdivision (b), are ambiguous. Although section 1050, subdivisions (d) and (e), prohibits the granting of continuances in the absence of good cause, did the Legislature, in prohibiting dismissals, intend to prohibit courts from refusing to continue cases in certain circumstances? If so, did the Legislature only intend to prohibit denial of a continuance where a dismissal would inevitably result, or did the Legislature also intend to prohibit denial of a continuance where the probable consequence of the denial would be dismissal of the case?
The legislative history to Assembly Bill No. 1273 is instructive. The Senate Committee on Public Safety’s analysis of thе bill explained: “Penal Code section 1050 allows for the continuance of a criminal proceeding upon a showing of good cause. According to the [bill’s] sponsor, courts have apparently dismissed cases after the prosecutor failed to establish good cause
At the outset, it is clear that in prohibiting a dismissal due to a failure to show good cause, the Legislature intended to restrict the authority of trial courts to deny continuances in certain circumstances. In
People v. Ferguson
(1996)
The court in
Henderson
expanded upon the reasoning in
Ferguson
and applied it to the preliminary hearing context.
(Henderson, supra,
In
Henderson,
the lower court did not literally dismiss the criminal case as a sanction for the prosecutor’s failure to show good cause, but denial of the motion to continue meant the prosecution lacked the necessary evidence to present at the preliminary hearing, which led to dismissal of the case.
(Henderson, supra,
In
Henderson, supra,
In particular, it was clear the People bore the burden of justifying the warrantless seizure and search of appellant under a recognized exception to the warrant requirement.
(People v. Williams
(1999)
On appeal, defendant attempts to distinguish
Henderson
by arguing that denying the continuance and granting the motion to suppress did not inevitably result in dismissal of the information. The court in
People
v.
Bonds
(1999)
Thеre is an additional reason why the cases in the preliminary hearing and trial contexts support a conclusion that the Legislature intended to prohibit denial of a continuance of a hearing on a motion to suppress where a dismissal will foreseeably result. A defendant’s interest in a prompt preliminary hearing and trial are protected by sections 859b and 1382, which buttress the constitutional right to a speedy trial.
(Owens v. Superior Court
(1980)
While the Legislature has provided statutory protection for the rights to a speedy preliminary hearing and trial, it has not provided any independent right to a speedy suppression hearing. And no such right exists in either the state or federal Constitutions. Instead, the statutory and constitutional rights to a speedy trial ensure that a criminal defendant is able to insist on a prompt resolution of any suppression motion. In interpreting section 1050, there is no reasonable basis to concludе the Legislature intended to provide greater protection to a defendant’s interest in a prompt section 1538.5 hearing than it provided to a defendant’s interest in a prompt preliminary hearing and trial. Instead, we conclude the Legislature did not intend for a dismissal to result unless the requested continuance results in violation of a statutory time limit (such as § 859b or § 1382) or defendant’s constitutional right to a fair trial (see
Henderson, supra,
We recognize that our decision restricts the options available to the trial court in responding to a motion for continuance that is not properly noticed and is unsupported by good cause. However, other sanctions, including fines and the filing of reports with appropriate disciplinary committees, are available under section 1050.5, subdivision (a), when a prosecutor fails to comply with the notice requirements of section 1050, subdivision (b).
(Henderson, supra,
Because it was reasonably foreseeable that dеnial 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.
DISPOSITION
The trial court’s orders granting defendant’s motion to suppress and dismissing the information are reversed and the case is remanded for further proceedings consistent with this opinion.
Needham, J., and Bruiniers, J., concurred.
A petition for a rehearing was denied June 7, 2010, and the opinion was modified to read as printed above. Respondent’s petition fоr review by the Supreme Court was denied September 15, 2010, S183831. Kennard, J., was of the opinion that the petition should be granted.
Notes
All further undesignated section references are to the Penal Code.
The facts herein are taken from the transcript of the preliminary hearing in this case.
“Generally speaking, ‘the “directory-mandatory” distinction is concerned only with whether a particular remedy—invalidation of the ultimate governmental action—is appropriate when a procedural requirement is violated; even when invalidation is not appropriate, other remedies—such as injunctive relief, mandamus, or monetary damages—may be available to enforce compliance with the statutory provision. . . .’ [Citation.]”
(People
v.
Allen
(2007)
Section 859b also specifies an initial period of 10 court days for conducting a preliminary hearing; an in-custody defendant may obtain a dismissal if that limit is violated, but an out-of-custody defendant may obtain dismissal due to such a violation only on a showing that the delay was prejudicial. (Henderson, supra, 115 Cal.App.4th at pp. 930-931.)
Rubaum involved a shorter 45-day period applicable to misdemeanors and infractions. (Rubaum, supra, 110 Cal.App.3d at pp. 932-933; § 1382, subd. (a)(3).)
This court need not decide under what circumstances grant of a continuance or a prosecutor’s bad faith in requesting a continuance would violate a defendant’s right to a fair trial. (See
Henderson, supra,