People v. Brown ( 2023 )

IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
DAJAH BROWN,
Defendant and Appellant.
S271877
Sixth Appellate District
H048462
Santa Clara County Superior Court
17AP002184, C1646856
March 27, 2023
Justice Corrigan authored the opinion of the Court, in which
Chief Justice Guerrero and Justices Kruger and Jenkins
concurred.
Justice Groban filed a concurring and dissenting opinion, in
which Justices Liu and Evans concurred.
PEOPLE v. BROWN
S271877
Opinion of the Court by Corrigan, J.
As part of their inherent power to control the litigation
before them, trial courts enjoy broad discretion to deny
continuances unsupported by a showing of good cause.
However, established case law holds that it is an abuse of
discretion to deny a trial continuance, solely because good cause
is lacking, when doing so will result in dismissal of the charges
and the continuance can be granted without violating the
defendant’s speedy trial rights. (See People v. Ferguson (1990)
218 Cal.App.3d 1173 (Ferguson); see also Pen. Code., §§ 1050,
subd. (l), 1050.5, subd. (b).)1
This case involves a motion to continue the hearing on a
suppression motion. (§ 1538.5.) We conclude the Ferguson
principles apply when the People are unable to proceed with
such a hearing. If the challenged evidence is so critical that its
suppression would require dismissal of the case, the court must
generally grant a continuance unless dismissal would be in
furtherance of justice. The burden is on the prosecution to show
an inability to go forward without the evidence in dispute. The
court, however, must ultimately determine whether dismissal of
the case is reasonably probable absent a continuance.
1
All statutory references are to the Penal Code unless
otherwise noted.
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PEOPLE v. BROWN
Opinion of the Court by Corrigan, J.
I. BACKGROUND
Near 11:30 p.m. on July 13, 2016, San Jose Police
Department Officer Nader Yasin saw defendant and another
woman standing in an area known for prostitution. Upon
noticing the officer’s patrol car, the women walked away in
opposite directions. Officer Yasin followed defendant and
detained her. Defendant admitted she worked as a prostitute
but said she had not had any “dates” that night. When asked if
she had any condoms, she produced four. After an advisement,
defendant waived her Miranda rights and admitted she had
been loitering for purposes of prostitution. (Former § 653.22,
subd. (a); Miranda v. Arizona (1966) 384 U.S. 436.) She was
cited and released.
Defendant was arraigned, entered a plea of not guilty, and
waived her right to a speedy trial. On January 19, 2017, she
moved to suppress both her statements and the physical
evidence gathered by Officer Yasin as the fruit of an unlawful
detention. (§ 1538.5.) On the date scheduled for the suppression
hearing, the prosecutor orally requested a continuance. He
explained that Yasin was under subpoena but had called during
the lunch recess to report that he was the only gang unit officer
available to interview a percipient witness to a shooting. The
interview was scheduled at the same time as the hearing.
Without consulting the court or notifying opposing counsel, the
prosecutor told Yasin “it would be okay” for him to conduct the
interview rather than come to court. Defendant objected to a
continuance, arguing a lack of good cause. The court agreed and
passed the matter to the afternoon to allow the prosecutor to
secure the officer’s presence.
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PEOPLE v. BROWN
Opinion of the Court by Corrigan, J.
When the case was recalled, Officer Yasin did not appear
and the prosecutor gave no further explanation. Nevertheless,
he urged the court to continue the matter, noting Yasin’s
testimony was needed to respond to the motion and the
challenged evidence was critical to the People’s case. He
observed that the People needed only a brief continuance and
argued defendant would suffer no prejudice because she was out
of custody and had waived her speedy trial rights. The court
rejected these arguments and denied the continuance for lack of
good cause. Because the People had no witness, the suppression
motion was granted. Asked how he wished to proceed, the
prosecutor relayed his understanding that “a lot of the evidence
in this case was evidence obtained by . . . observation from the
police officer before any contact with the defendant.” He asked
the court not to dismiss the case but instead to give the People
additional time to determine whether they could proceed
without the suppressed evidence. Defense counsel responded
that the People had no remaining evidence sufficient to prove
the charges and invited the court to dismiss the case under
section 1385. Defendant then withdrew her time waiver,
making March 20, 2017 the last day on which trial could begin
under section 1382. The court set a trial date of March 6, 2017.
On March 2, the People moved for reconsideration based
on People v. Ferrer (2010) 184 Cal.App.4th 873 (Ferrer), which
held that a court abuses its discretion by denying a prosecutor’s
request to continue a suppression hearing when the denial will
foreseeably result in dismissal of the case. The prosecutor
stated that the People would be unable to proceed to trial if the
evidence was suppressed. The court declined to impose
monetary sanctions because it found the prosecutor had not
acted in bad faith. Based on Ferrer, the court vacated its prior
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PEOPLE v. BROWN
Opinion of the Court by Corrigan, J.
orders and held a new suppression hearing on March 17. After
hearing testimony from both Officer Yasin and defendant, the
court denied the suppression motion.
When the case was called for trial on March 20, 2017,
defendant agreed to a “slow plea” pursuant to Bunnell v.
Superior Court (1975) 13 Cal.3d 592. Under this procedure, a
defendant waives the right to jury trial and allows the court to
decide the case based on police reports or other agreed-upon
evidence. (People v. Robertson (1989) 48 Cal.3d 18, 39–40.) The
court accepted defendant’s plea, found her guilty, and placed her
on probation for three years. It imposed fines and fees of $235
but ordered no jail time.
Defendant appealed, challenging the court’s decision to
reconsider its continuance and suppression rulings. The
superior court’s appellate division affirmed, noting the Ferrer
decision was dispositive. (See Auto Equity Sales, Inc. v. Superior
Court (1962) 57 Cal.2d 450, 455.) A lengthy concurrence urged
that Ferrer was wrongly decided. The Sixth District Court of
Appeal granted defendant’s petition to transfer (Cal. Rules of
Court, rule 8.1006) and issued an opinion disagreeing with
Ferrer. The Court of Appeal concluded Ferrer’s rule was
unsupported and criticized the rule’s “difficulties in
application.” (People v. Brown (2021) 69 Cal.App.5th 15, 31
(Brown).) Instead, the court held that trial courts retain
authority to deny a continuance unsupported by good cause even
if the decision will foreseeably result in dismissal of the case for
lack of evidence. (Id. at p. 32.) We granted review to resolve the
conflict. We reverse the Court of Appeal’s judgment and clarify
the Ferrer rule.
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PEOPLE v. BROWN
Opinion of the Court by Corrigan, J.
II. DISCUSSION
The trial court’s authority to grant continuances in
criminal cases is governed by statute. Accordingly, we begin
with an examination of the relevant provisions, guided by
familiar principles. “ ‘ “We first examine the statutory
language, giving it a plain and commonsense meaning. We do
not examine that language in isolation, but in the context of the
statutory framework as a whole in order to determine its scope
and purpose and to harmonize the various parts of the
enactment. If the language is clear, courts must generally follow
its plain meaning unless a literal interpretation would result in
absurd consequences the Legislature did not intend. If the
statutory language permits more than one reasonable
interpretation, courts may consider other aids, such as the
statute’s purpose, legislative history, and public policy.” ’ ” (City
of San Jose v. Superior Court (2017) 2 Cal.5th 608, 616–617.)
Issues of statutory construction are reviewed de novo. (People
v. Jimenez (2020) 9 Cal.5th 53, 61.)
A. Statutory Text
Originally enacted in 1927 and amended many times
since, section 1050 regulates the granting of continuances in
criminal cases.2 Its initial subdivision describes the statute’s
aim as follows: “The welfare of the people of the State of
California requires that all proceedings in criminal cases shall
be set for trial and heard and determined at the earliest possible
2
Early versions of section 1050 placed limits only on
continuances of trial (see People v. Iocca (1974) 37 Cal.App.3d
73, 78), but amendments have expanded the statute’s reach to
all criminal hearings. (See People v. Johnson (2013) 218
Cal.App.4th 938, 942 (Johnson).)
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PEOPLE v. BROWN
Opinion of the Court by Corrigan, J.
time. To this end the Legislature finds that the criminal courts
are becoming increasingly congested with resulting adverse
consequences to the welfare of the people and the defendant.
Excessive continuances contribute substantially to this
congestion and cause substantial hardship to victims and other
witnesses. Continuances also lead to longer periods of
presentence confinement for those defendants in custody and
the concomitant overcrowding and increased expenses of local
jails. It is therefore recognized that the people, the defendant,
and the victims and other witnesses have the right to an
expeditious disposition, and to that end it shall be the duty of all
courts and judicial officers and of all counsel, both for the
prosecution and the defense, to expedite these proceedings to the
greatest degree that is consistent with the ends of justice.”
(§ 1050, subd. (a).) Later provisions set out both procedural
requirements and the necessary substantive showing.
Subdivisions (b) through (d) of section 1050 address
procedure. As relevant here, subdivision (b) requires that
motions for a continuance be supported by written notice, filed
and served at least two court days before the hearing in
question, together with “affidavits or declarations detailing
specific facts showing that a continuance is necessary.” (§ 1050,
subd. (b).) Subdivision (c) provides that a party who has not
followed the procedures in subdivision (b) may still request a
continuance, but “unless the moving party shows good cause for
a failure to comply with those requirements, the court may
impose sanctions as provided in Section 1050.5.” (§ 1050,
subd. (c).) Those sanctions may include a fine of up to $1,000
and a report to “an appropriate disciplinary committee”
(§ 1050.5, subd. (a)), but they may not include dismissal of the
case (§ 1050.5, subd. (b)). Finally, when the moving party has
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PEOPLE v. BROWN
Opinion of the Court by Corrigan, J.
failed to satisfy the procedural requirements of section 1050,
subdivision (b), subdivision (d) requires the court to hold a
hearing to determine whether good cause excuses the lack of
procedural compliance. If the moving party cannot show good
cause for that failure, subdivision (d) states that “the motion for
continuance shall not be granted.” (§ 1050, subd. (d).)
Other subdivisions of section 1050 go on to explain the
substantive requirements for obtaining a continuance.
Subdivision (e) states: “Continuances shall be granted only
upon a showing of good cause. Neither the convenience of the
parties nor a stipulation of the parties is in and of itself good
cause.” (§ 1050, subd. (e).) Convenience of witnesses is,
however, a factor for the court to consider both in deciding
whether good cause has been shown and in selecting the new
date. (§ 1050, subd. (g)(1).) If the court concludes that a
continuance is necessary, it must state on the record the facts
justifying that finding. (§ 1050, subd. (f).) Any permitted
continuance must be limited to “only . . . that period of time
shown to be necessary by the evidence considered at the hearing
on the motion.” (§ 1050, subd. (i).) Section 1050, then, provides
for two different good cause showings. If the moving party has
not complied with the procedures of subdivision (b), it must
show that there is good cause to excuse that failure. If such a
showing is not made the court may impose sanctions. As to the
merits of a continuance motion, subdivision (e) requires a good
cause showing that a continuance is necessary.
A trial court’s exercise of its broad discretion when ruling
on a continuance motion is accorded substantial deference on
appeal. (People v. Mora and Rangel (2018) 5 Cal.5th 442, 508;
People v. Beames (2007) 40 Cal.4th 907, 920 (Beames).)
Although section 1050 states conditions under which
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PEOPLE v. BROWN
Opinion of the Court by Corrigan, J.
continuances “shall” and “shall not” be granted, case law has
long recognized that various aspects of section 1050 are
directory rather than mandatory.3 This principle is confirmed
by the statute’s final subdivision. Enacted in 2003,
subdivision (l) states: “This section is directory only and does
not mandate dismissal of an action by its terms.” (§ 1050,
subd. (l).) Accordingly, “a failure to comply with a particular
directive set forth in section 1050 does not, in itself, require
dismissal of a criminal proceeding.” (Engram, supra, 50 Cal.4th
at p. 1151, fn. 8, italics added; see Johnson, supra, 218
Cal.App.4th at pp. 942–943; see also Malengo v. Municipal
Court (1961) 56 Cal.2d 813, 816; People v. Brown (1956) 141
Cal.App.2d 299, 302–303.) Thus, despite the seemingly
mandatory phrasing of some portions of section 1050, a number
of appellate decisions have recognized the trial court’s discretion
to allow a continuance even without a factual showing of
necessity. (See Johnson, at pp. 942–943; Brown, at p. 303.)
Section 1050.5 was also added in 2003. After prescribing
sanctions for a movant’s failure to comply with section 1050’s
procedural requirements, section 1050.5 states that these
sanctions “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.” (§ 1050.5, subd. (b).)
3
As we explained in People v. Engram (2010) 50 Cal.4th
1131, 1148, footnote 7 (Engram) in regard to another aspect of
section 1050: “[T]he term ‘directory,’ when used in reference to
a statute, has been employed to denote different concepts —
sometimes referring solely to the lack of (or limited type of)
remedy prescribed when the statute is violated, and sometimes
referring to whether a statute is simply ‘directive’ or ‘permissive’
rather than ‘obligatory,’ ‘compulsory,’ or ‘mandatory.’ ”
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PEOPLE v. BROWN
Opinion of the Court by Corrigan, J.
The text of section 1050 speaks only to continuances; it is
not an independent source of dismissal authority. It is
important to keep the distinction in mind. Although
section 1050, subdivision (l) makes clear that dismissal of an
action is never required, the statute does not explicitly forbid
dismissals that may result from a continuance denial. Further,
section 1050.5 is inapplicable here. The sanctions statute
forbids dismissal of an action as punishment for a party’s failure
to satisfy procedural requirements (§ 1050.5, subd. (b)), but it
does not speak to the court’s authority in ruling on a motion that
fails to demonstrate a continuance is necessary.
The language of section 1050 thus does not resolve the
issue before us, because it neither authorizes nor prohibits
dismissals. To consider how the relevant statutes can be read
together, we turn to their legislative history and interpretative
case law.
B. Case Law Context and Legislative History
Both section 1050, subdivision (l) and the language of
section 1050.5, subdivision (b) discussed above were added by
Assembly Bill No. 1273 (2003–2004 Reg. Sess.). The Legislature
acted in response to a series of cases, which we discuss before
reviewing the bill’s legislative history.
1. Cases Addressing Continuance of Trial
Several opinions have examined how the time limits in
section 1382 affect the court’s discretion in ruling on
continuances that would delay the start of trial. Without the
defendant’s waiver or consent, or a showing of “good cause to the
contrary,” section 1382 requires that the court dismiss an action
not brought to trial within: (1) 60 days after the defendant’s
arraignment or plea in felony cases; (2) 30 days after the
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Opinion of the Court by Corrigan, J.
arraignment or plea in misdemeanor cases when the defendant
is in custody; or (3) 45 days after the arraignment or plea in
misdemeanor cases when the defendant is not in custody.
(§ 1382, subd. (a)(2)–(3).) Whenever the defendant has
requested or agreed to begin trial on a date beyond the
applicable period, the case must be brought to trial no later than
10 days after that date. (Id., subd. (a)(2)(B), (a)(3)(B).)
An early decision touching on the interplay between
section 1382 and continuances was People v. Kessel (1976) 61
Cal.App.3d 322 (Kessel). On the day set for trial, the People
moved for a seven-day continuance because the deputy district
attorney assigned to the case was unavailable. The court denied
the continuance and dismissed the case under section 1382.
(Kessel, at pp. 324–325.) Although the Court of Appeal did not
separately address the propriety of the continuance ruling, it
held that dismissal of the case was an abuse of discretion
because the seven-day continuance would have resulted in a
trial date set within section 1382’s 10-day grace period. (Kessel,
at p. 325.) Further, the dismissal could not be justified under
section 1385, which permits an action to be dismissed “in
furtherance of justice” (§ 1385, subd. (a)), because there had
been no showing of prejudice to the defendant. (Kessel, at
p. 325.) The court explained: “The People’s right to be heard
cannot be frustrated to accommodate judicial convenience or
because of court congestion. A dismissal under section 1385 for
such a reason is an abuse of discretion.” (Id. at p. 326; see People
v. Orin (1975) 13 Cal.3d 937, 946–947 (Orin).)
People v. Flores (1978) 90 Cal.App.3d Supp. 1, 6 (Flores),
highlighted the distinction between continuances and
dismissals. On the date of trial, the prosecution requested a one-
week continuance because the arresting officer was unavailable
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Opinion of the Court by Corrigan, J.
to testify. The court denied the request and dismissed the case
because the People were not ready to proceed. (Ibid.) The
superior court’s appellate division reversed. First, it observed
that the requested continuance was “well within” the time limit
prescribed by section 1382. (Flores, at p. 6.) So that statute
provided no basis for dismissing the action. (Id. at p. 7.) Nor
would a continuance have impinged on the defendant’s
constitutional speedy trial rights. (Id. at pp. 7–8.) The appellate
division then considered section 1050’s requirement that
continuances be granted “only upon a showing of good cause.”
(§ 1050, subd. (e); see Flores, at pp. 8–9.) Noting that
section 1050’s provisions are not mandatory, the court relied on
the language of section 1382 to conclude an action that can be
brought to trial within the applicable section 1382 time limit
may not be dismissed despite the absence of good cause for a
continuance. (Flores, at p. 9.) Finally, the court concluded
dismissal was not appropriate under section 1385 because such
a dismissal arbitrarily prevents the People from prosecuting an
offense supported by probable cause, without any showing of
detriment to the defendant. (Flores, at p. 9.)
Subsequent Court of Appeal decisions reached the same
conclusion. In People v. Arnold (1980) 105 Cal.App.3d 456, 458
(Arnold), the prosecution sought a trial continuance to locate an
essential witness, requesting a date within section 1382’s 10-
day grace period. The request was denied and the case
dismissed, assertedly pursuant to section 1382. (Arnold, at
p. 459.) The Court of Appeal held the ruling erroneous, under
both section 1382 and section 1385. A dismissal within the 10-
day grace period was directly contrary to section 1382. In
addition, because such a dismissal undermined the legislative
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Opinion of the Court by Corrigan, J.
policy expressed in section 1382, it was not “in furtherance of
justice” under section 1385. (Arnold, at p. 459.)
Similarly, People v. Hernandez (1979) 97 Cal.App.3d 451(Hernandez) held that a trial court lacks discretion to dismiss a
criminal case before expiration of section 1382’s 10-day grace
period. (Hernandez, at p. 454.) Although the prosecution had
failed to show good cause for its inability to proceed, the court
reasoned no such showing was necessary because section 1382’s
grace period operates as an exception to the statute’s good cause
requirement. (Hernandez, at pp. 454–455.) Echoing Kessel,
Arnold, and Flores, the Hernandez court also concluded the
dismissal contravened the legislative policy underlying
section 1382’s grace period. As a result, the dismissal was not
in furtherance of justice, as required by section 1385.
(Hernandez, at p. 455.) People v. Rubaum (1980) 110 Cal.App.3d
930 (Rubaum) was in accord, holding the trial court abused its
discretion in denying a continuance and dismissing the case
under section 1385 when the People’s requested a continuance
date within section 1382’s time limit.
Ferguson, supra, 218 Cal.App.3d 1173 reaffirmed these
decisions. The court there concluded the trial court had
improperly dismissed a case under section 1385 after denying a
brief continuance for the prosecutor to complete a different trial.
(Ferguson, at pp. 1176–1177, 1180.) The Court of Appeal’s
reasoning was “strongly guided” (id. at p. 1181) by our decision
in Orin, which had explained that the furtherance of justice
determination under section 1385 “ ‘requires consideration both
of the constitutional rights of the defendant, and the interests of
society represented by the People, in determining whether there
should be a dismissal.’ ” (Orin, supra, 13 Cal.3d at p. 945.) The
dismissal in Ferguson was held to be “without proper and
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Opinion of the Court by Corrigan, J.
adequate reason” and “served no policy objective.” (Ferguson, at
pp. 1182–1183.) Nor would the requested continuance have
harmed the defendant, who was not in custody and had
previously “seemed in no rush to get to trial.” (Ibid.)
However, People v. Torres (1984) 159 Cal.App.3d Supp. 8(Torres) articulated an important limitation on these general
rules. There, a prosecutor sought continuances of trial in two
cases within the section 1382 time period but offered no showing
of why the People could not proceed. Instead, the prosecutor
disclosed a strategy of seeking “ ‘to always drag things out till
[sic] the last possible moment so that even if the case was lost or
dismissed, the defendants paid the price through the hassle of
multiple appearances and the expenses of private counsel.’ ”
(Torres, at p. 11.) Finding no good cause for delay, the trial court
denied the continuances and dismissed the cases under
section 1385. (Torres, at pp. 11, 15–16.)
The appellate division affirmed. It explained that a trial
court has “ ‘discretion to dismiss pursuant to section 1385’ ”
provided “ ‘that the reasons for the court’s decision be such as
“would motivate a reasonable judge.” . . . There must be ‘a
balancing of society’s interest against that of the defendant.’
[Citation.] There must also be a showing of detriment to the
defendant.” (Torres, supra, 159 Cal.App.3d Supp. at pp. 12–13.)
The court distinguished the line of cases discussed above
because none involved a situation in which the People were
capable of proceeding to trial but chose not to in order to
manipulate the court and harass the defendant. (Ibid.) Torres
explained, “It was never the intent of [the case law] to shift the
control of the calendar from the court to the prosecutor,” and
emphasized that trial courts retain discretion to dismiss a case
under section 1385 to address “a flagrant abuse” of power or “an
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attempt by the prosecutor to usurp the inherent right of the
court to control the courtroom.” (Id. at p. 13.)
2. Assembly Bill No. 1273
The Legislature responded to these decisions by enacting
Assembly Bill No. 1273 (2003–2004 Reg. Sess.), which added
subdivision (l) to section 1050 to make clear that the statute “is
directory only and does not mandate dismissal of an action by
its terms.” The bill also amended section 1050.5, subdivision (b)
to add the final clause: “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.” (§ 1050.5, subd. (b),
italics added.) Legislative history confirms that the purpose of
these amendments was to codify holdings in the Ferguson line
of cases. (See, e.g., Assem. Com. on Pub. Safety, Rep. on Assem.
Bill No. 1273 (2003–2004 Reg. Sess.) as amended May 1, 2003,
pp. 2–3; Sen. Com. on Pub. Safety, Rep. on Assem. Bill No. 1273
(2003–2004 Reg. Sess.) as amended May 1, 2003, pp. 2, 5–6.)
A report prepared by the Senate Committee on Public
Safety described the need for Assembly Bill No. 1273 as follows:
“Current law (Penal Code section 1382) provides the People and
the defendant with a right to a speedy trial, but that right is
balanced against the right of both parties to have at least 60
days to prepare their case. [¶] The problem AB 1273 attempts
to resolve involves situations when a court seeks to dismiss a
case before the expiration of the statutory 60 day time limit.
[¶] The confusion involves an apparent conflict between two
Penal Code sections. . . . [O]ne section (Penal Code Section 1050)
requires a showing of good cause to trail a case within the 60
day statutory period and the other section (Penal Code
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Opinion of the Court by Corrigan, J.
Section 1382) does not require a showing of good cause within
the 60 day period.” (Sen. Com. on Pub. Safety, Rep. on Assem.
Bill No. 1273, supra, pp. 4–5.)4 According to the bill’s sponsor,
courts had sometimes “dismissed cases after the prosecutor
failed to establish good cause to continue the trial of the matter
even though it was still within the 60-day statutory speedy trial
period.” (Id. at p. 5.) The report stated that Assembly Bill
No. 1273 was intended to codify Ferguson’s holding that
section 1050 “ ‘is directory only and does not mandate any
dismissal of an action by its terms.’ ” (Id. at p. 6.)5 “Thus, under
this bill a case could not be dismissed as a sanction for failing to
comply with the rules governing continuances if the statutory
time for a speedy trial has not run.” (Ibid.)
By clarifying that sections 1050 and 1050.5 do not
independently authorize dismissal for failure to satisfy either
the procedural or substantive requirements, the Legislature
confirmed that trial courts may dismiss a case, or force a
dismissal by denying a continuance, only under the aegis of
some other conferred authority. Despite limits on their
discretion imposed by case law and these statutory
amendments, trial courts retain the power to dismiss “in
4
This analysis addressed the final version of the bill, after
it had passed in the Assembly.
5
Although the report cited Ferguson, the language was in
fact a quotation from Rubaum, supra, 110 Cal.App.3d at
page 935. (See Ferguson, supra, 218 Cal.App.3d at p. 1181.)
The original source of this language appears to be Malengo v.
Municipal Court, supra, 56 Cal.2d at page 816 (“section 1050 . . .
is directory only and contains no provision for the dismissal of a
case when its terms are not complied with”).
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Opinion of the Court by Corrigan, J.
furtherance of justice” (§ 1385, subd. (a); see Torres, supra, 159
Cal.App.3d Supp. at pp. 12–13.)
It is evident from committee reports on Assembly Bill
No. 1273 that the Legislature was specifically concerned with
continuances of trial. But, in codifying Ferguson, the
Legislature would have been aware of its factual context: The
People were not ready to proceed on the scheduled date because
the deputy district attorney assigned to the case was engaged in
a different trial. (Ferguson, supra, 218 Cal.App.3d at p. 1176.)
When the Legislature amended section 1050 to clarify that the
statute does not require dismissal in such a circumstance, it also
effectively placed constraints on the court’s ability to deny
continuances. “In codifying the result in Ferguson, the
Legislature must have understood that it was obligating trial
courts to grant continuances where necessary to avoid a
dismissal, even in the absence of a showing of good cause”
(Ferrer, supra, 184 Cal.App.4th at p. 881), unless dismissal
would be in furtherance of justice. Broad language in the
legislative history is consistent with applying Ferguson’s
reasoning to continuance requests in other proceedings. For
example, committee reports consistently stated that passing
Assembly Bill No. 1273 would mean that “courts may not
dismiss a case due to a failure to meet the good cause
requirements for a continuance” before the statutory period has
expired. (Sen. Rules Com., Rep. on Assem. Bill No. 1273 (2003–
2004 Reg. Sess.) as amended May 1, 2003, p. 1; see Sen. Com. on
Pub. Safety, Rep. on Assem. Bill No. 1273, supra, p. 2; Off. Crim.
Justice Planning, Enrolled Bill Rep. on Assem. Bill No. 1273
(2003–2004 Reg. Sess.) prepared for Governor Davis (July 15,
2003) p. 1.)
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Opinion of the Court by Corrigan, J.
C. Applications Beyond the Trial Continuance Context
The Courts of Appeal have considered how these
principles apply to continuances of proceedings other than trial,
like preliminary hearings and motions to suppress evidence
(§ 1538.5). With the exception of the Court of Appeal below, all
courts addressing the question have concluded the trial court’s
discretion to deny a continuance is also limited in such
circumstances. We agree with this prevailing view.
1. Preliminary Hearings
Shortly after the passage of Assembly Bill No. 1273,
People v. Henderson (2004) 115 Cal.App.4th 922 (Henderson)
considered whether Ferguson’s limits on continuance denials
apply to preliminary hearings. In Henderson, the People sought
to continue a preliminary hearing because the victim was
absent. Although the victim had been mailed a subpoena, the
prosecutor made no additional efforts to secure attendance.
(Henderson, at p. 928.) Finding the request lacked good cause,
the magistrate denied the continuance. (Id. at p. 929.) The
People were unable to proceed, and the case was dismissed.
(Ibid.) The Court of Appeal held the ruling was improper.
First, the court concluded dismissal was not appropriate
under section 859b, which requires that a felony preliminary
hearing be held 10 days after a defendant’s arraignment or plea
unless the prosecution establishes good cause for a continuance
or the defendant waives time. If there is such a showing or
waiver, the statute sets an outside date of 60 days after the
arraignment or plea. That period that can be extended only with
the defendant’s personal consent. (§ 859b.) The complaint is
subject to dismissal if a preliminary hearing is not held within
these statutory deadlines. (Ibid.; see Henderson, supra, 115
17
PEOPLE v. BROWN
Opinion of the Court by Corrigan, J.
Cal.App.4th at pp. 930–931.) Henderson had waived the 10-day
deadline. (Henderson, at p. 928.) Thus, a continuance was
permissible under section 859b without a showing of good cause
so long as the continued hearing date was within the 60-day
window. (Henderson, at pp. 931–932.)
Next, the court considered whether any other statute
authorized dismissal. Although section 1050 sets out
procedural requirements and section 1050.5 permits sanctions
for non-compliance, neither statute authorizes dismissal of the
case when a continuance is denied. (Henderson, supra, 115
Cal.App.4th at p. 934.) The court discussed Assembly Bill
No. 1273’s amendments prohibiting dismissal as a sanction for
failure to comply with the continuance statute’s procedural
requirements and concluded “dismissal is a disfavored and
possibly unauthorized remedy” under the circumstances
presented. (Henderson, at p. 936.)
Nor was dismissal appropriate under section 1385.
Henderson observed that several decisions, including Ferguson,
had “rejected the application of section 1385 to dismiss cases
before trial after a failed request for a continuance made within
the statutory period.” (Henderson, supra, 115 Cal.App.4th at
p. 936.) The court concluded “the same analysis applies to
section 859b” and preliminary hearing continuances.
(Henderson, at p. 936.) “[B]oth sections 1382 and 859b establish
statutory limits to safeguard a defendant’s constitutional right
to a speedy trial,” yet neither statute authorizes dismissal when
its prescribed time period has not expired. (Id. at p. 939.)
Henderson declined to confine the Ferguson line of cases to the
trial context. It held “the trial court has no authority to dismiss
an action, even when the People have failed to show good cause
for a continuance under section 1050, so long as the requested
18
PEOPLE v. BROWN
Opinion of the Court by Corrigan, J.
date for the preliminary hearing is within the statutory time
limit established in section 859b.” (Ibid.) The court stressed
that lesser sanctions are available to punish belated
continuance requests, and trial courts need not reschedule the
hearing to the prosecutor’s preferred date. (Henderson, at
pp. 939–940.) But, so long as the continuance is “ ‘not sought
arbitrarily or for an unlimited period,’ ” it must be granted if the
alternative is dismissal, since a dismissal under these
circumstances would not be “in the furtherance of justice within
the meaning of section 1385.” (Henderson, at p. 941.)
2. Suppression Hearings
The Ferrer decision was the first to consider these
questions in the suppression hearing context. After Ferrer was
held to answer, he moved to suppress statements made and
evidence seized during a warrantless detention and search.
(Ferrer, supra, 184 Cal.App.4th at pp. 877–878.) The prosecutor
appeared at the suppression hearing but requested a
continuance, explaining “she had not subpoenaed her witnesses
due to a ‘mix up.’ ” (Id. at p. 878.) The court denied the
continuance and then granted the suppression motion because,
due to the witness’s absence, the People failed to establish the
lawfulness of the detention and search. (Ibid.) After a short
delay, the People announced that they were unable to proceed
against Ferrer without the suppressed evidence, and the court
dismissed the information. (Ibid.)
On appeal, the People conceded they had failed to show
good cause but argued the court nevertheless could not deny a
continuance because there was adequate opportunity to conduct
the suppression motion before the timely trial date. (Ferrer,
supra, 184 Cal.App.4th at pp. 878–879.) The Ferrer court
19
PEOPLE v. BROWN
Opinion of the Court by Corrigan, J.
agreed, applying Henderson’s analysis in the suppression
motion context. It explained: “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, 115 Cal.App.4th at p. 929.) The
Henderson court treated the dismissal as an unauthorized
sanction for the failure to show good cause even though the
dismissal was a consequence of the denial of the continuance
rather than an express sanction. (Id. at p. 935.)” (Ferrer, at
p. 882, italics added.) This application of the statutes was
consistent with legislative intent, Ferrer reasoned, because
Assembly Bill No. 1273 sought to prevent dismissals resulting
from a prosecutor’s temporary inability to proceed. (Ferrer, at
p. 882, citing Sen. Com. on Pub. Safety, Rep. on Assem. Bill
No. 1273, supra, pp. 5–6.) “Thus, the Legislature intended that
a dismissal that causally follows from denial of a motion for a
continuance be treated as a sanction of dismissal.” (Ferrer, at
p. 882.)
Ferrer found the suppression hearing context “analogous”
to the preliminary hearing and trial situations addressed in
Henderson and Ferguson. (Ferrer, supra, 184 Cal.App.4th at
p. 882.) It reasoned that, although the trial court did not
literally dismiss the action as a sanction, it was clear that the
continuance denial was likely to lead to dismissal of the case.
(Ibid.) The People bore the burden to justify the warrantless
search and seizure, and the unavailability of their witnesses
“would necessarily result in” the motion being granted. (Id. at
p. 883.) If the evidence in question, which was the only support
for the charges, was no longer available, a dismissal of the case
20
PEOPLE v. BROWN
Opinion of the Court by Corrigan, J.
for lack of evidence would follow. (Ibid.) Ferrer ultimately held
that “[w]here it is reasonably foreseeable that granting a motion
to suppress will result ultimately in dismissal of the case, the
fact that the dismissal is not inevitable or immediate does not
create a material distinction from the circumstances involved in
Henderson and Ferguson.” (Ibid.)
Ferrer grounded its analysis on the language of
sections 1050 and 1050.5. (Ferrer, supra, 184 Cal.App.4th at
pp. 879–881.) However, the court went on to discuss the
conclusions in Ferguson and Henderson that dismissals based
solely on a failure to show good cause are not “in furtherance of
justice.” (§ 1385, subd. (a)); see Henderson, supra, 115
Cal.App.4th at p. 940; Ferguson, supra, 218 Cal.App.3d at
p. 1182.) It reasoned that the same can be said for dismissals
resulting from the court’s refusal to continue a hearing to
determine whether evidence supporting the charges was legally
obtained. (Ferrer, supra, 184 Cal.App.4th at p. 885.) Indeed,
the policy balance is arguably even more compelling in the
suppression hearing context because, unlike preliminary
hearings and trial, the Legislature “has not provided any
independent right to a speedy suppression hearing.” (Id. at
p. 884.) It would be anomalous to conclude the Legislature
intended greater protection for a defendant’s interest in a
prompt suppression hearing than in a prompt preliminary
hearing or trial. (Ibid.)6 Accordingly, Ferrer concluded, “the
Legislature did not intend for a dismissal to result unless the
6
And, because a suppression hearing is usually conducted
before trial or in connection with a preliminary hearing (see
§ 1538.5, subds. (f)–(g)), the time limits required in those
contexts protect a defendant’s right to speedy adjudication.
21
PEOPLE v. BROWN
Opinion of the Court by Corrigan, J.
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, 115 Cal.App.4th at
p. 940).” (Ferrer, at p. 884, fn. omitted.)
The Court of Appeal below disagreed with Ferrer’s reading
of both the statutory text and legislative history. Construing
section 1050, subdivision (l)’s statement that the statute “does
not mandate dismissal of an action by its terms,” the court noted
that the provision does not require dismissal but does not
preclude dismissal either. It observed the statute “can hardly
stand for proposition that the trial court has no authority — for
example, under section 1385 . . . — to dismiss an action in the
first place.” (Brown, supra, 69 Cal.App.5th at p. 26, fn. omitted.)
The court concluded there was no basis in the statutory text for
Ferrer’s rule. (Id. at p. 25.)
In disagreeing with Ferrer’s reading of legislative history,
the Court of Appeal focused on language that was removed from
the original version of Assembly Bill No. 1273. As introduced,
the bill proposed to add an express exception to section 1050’s
good cause requirement. Proposed subdivision (e)(2) would have
stated: “The good cause requirement shall not apply to a
prosecution or defense motion to continue a felony trial to a date
not more than 60 days from the date of the defendant’s
arraignment on the information, or to a date not more than 10
days from a trial date set following the defendant’s waiver
pursuant to [section 1382, subdivision (a)(2)(B)]. This exception
to the requirement of a finding of good cause is intended to codify
existing case law.” (Assem. Bill No. 1273 (2003–2004 Reg. Sess.)
as introduced Feb. 21, 2003, § 1.) Amendments removed this
proposed language, which would have eliminated the good cause
requirement for continuances within the speedy trial period,
22
PEOPLE v. BROWN
Opinion of the Court by Corrigan, J.
and replaced it with subdivision (l) and an amendment to
section 1050.5, subdivision (b) specifying that “the court or
magistrate shall not dismiss the case” as a sanction. (Assem.
Amend. to Assem. Bill No. 1273 (2003–2004 Reg. Sess.) May 1,
2003, § 2.)
As discussed, even after the amendment, committee
reports consistently stated that Assembly Bill No. 1273’s
purpose was to codify case law holding that dismissals resulting
from a party’s failure to satisfy the requirements for a
continuance are disfavored. (See, e.g., Sen. Com. on Pub. Safety,
Rep. on Assem. Bill No. 1273, supra, p. 2; Sen. Rules Com., Off
of Sen. Floor Analyses, 3d reading of analysis of Assem. Bill
No. 1273, supra, p. 1.) The Court of Appeal below asserted these
statements of purpose should be disregarded because they were
erroneously referring to the original version of the bill. (See
Brown, supra, 69 Cal.App.5th at p. 29.) Instead, the court
stressed that the changes to sections 1050 and 1050.5 actually
enacted did not eliminate the good cause requirement and did
not prohibit dismissals. Accordingly, the court concluded, trial
courts have authority to deny a continuance unsupported by
good cause “even if this decision may foreseeably result in a
dismissal of the matter for lack of evidence.” (Brown, at p. 32.)
That reading is overly expansive.
Although legislative history does not disclose why the
original bill was amended, it is evident that the Legislature did
not want to abandon the requirement that parties seeking a
continuance show good cause for the attendant delay or
potentially face sanctions. That choice is consistent with the
statute’s express intent to discourage unwarranted
continuances and to change a legal culture in which
continuances had become unacceptably commonplace. (See
23
PEOPLE v. BROWN
Opinion of the Court by Corrigan, J.
§ 1050, subd. (a).) But it does not follow that the amendment
signaled an intent to read a new dismissal authority into
section 1050 and upset the balance between the court’s control
of its calendar and a strong policy preference for cases to be
resolved on their merits. Because the Legislature chose to
retain the good cause requirement, prosecutors who seek a
continuance within the speedy trial window remain obligated to
provide the court with a showing of necessity. But if they do not,
case law codified in Assembly Bill No. 1273 places limits on the
court’s ability to deny the continuance when such a denial will
foreseeably result in dismissal of the case.
D. Limits on the Court’s Discretion To Deny a Continuance
As we explain, a review of the relevant statutory text,
legislative history, and case law leads us to a different
conclusion from that reached by the Court of Appeal below.
However, we do not completely embrace Ferrer’s statutory
analysis, either. The court below was correct to observe that the
trial court retains its discretion to dismiss a case under
section 1385. But it overlooked the line of cases, codified in
Assembly Bill No. 1273, holding it is an abuse of that discretion
to dismiss a case based solely on a failure to show good cause
when a continuance can be granted within the section 1382
window. The Ferrer court was correct in concluding that the
trial court abuses its discretion when it declines such a request
to continue a suppression hearing if a dismissal of the
underlying case is reasonably foreseeable. But it went astray in
basing its analysis on sections 1050 and 1050.5.
Sections 1050 and 1050.5 continue to require a showing of
good cause that the continuance of any criminal hearing is
necessary. They do not prohibit the trial court from denying a
24
PEOPLE v. BROWN
Opinion of the Court by Corrigan, J.
continuance when the prosecutor fails to make such a showing.
Because the continuance statutes do not themselves authorize
dismissal, however, a dismissal under these circumstances is
appropriate only if it is “in furtherance of justice.” (§ 1385,
subd. (a).)
Section 1385 grants trial courts the power to dismiss if,
under the totality of the circumstances, after weighing “ ‘the
constitutional rights of the defendant, and the interests of society
represented by the People’ ” (Orin, supra, 13 Cal.3d at p. 945),
the court finds that dismissal would be “in furtherance of
justice” (§ 1385, subd. (a)). In conducting this inquiry, a court
may consider whether the prosecution acted abusively or in bad
faith (Torres, supra, 159 Cal.App.3d Supp. at pp. 12–13),
whether the defendant has suffered prejudice (Kessel, supra, 61
Cal.App.3d at p. 325), society’s interest in the prosecution of the
crime (Orin, at p. 945), and other relevant factors.
When the People are unable to proceed to trial because the
court has suppressed evidence following a hearing on the merits,
a dismissal is generally appropriate under section 1385. (See
People v. Laiwa (1983) 34 Cal.3d 711, 722; People v. Bonds
(1999) 70 Cal.App.4th 732, 738–740.) But there is a “distinction
between evidence that does not exist and evidence that is simply
unavailable at the moment.” (Henderson, supra, 115
Cal.App.4th at p. 942.) Dismissals under section 1385 are
disfavored when “the People are thereby prevented from
prosecuting defendants for offenses of which there is probable
cause to believe they are guilty as charged. Courts have
recognized that society, represented by the People, has a
legitimate interest in ‘the fair prosecution of crimes properly
alleged’ [Citation] ‘ “[A] dismissal which arbitrarily cuts those
25
PEOPLE v. BROWN
Opinion of the Court by Corrigan, J.
rights without a showing of detriment to the defendant is an
abuse of discretion.” ’ ” (Orin, supra, 13 Cal.3d at p. 947.)
For nearly 50 years, appellate decisions have held that it
is an abuse of discretion for the court to deny a continuance
within the speedy trial period, absent countervailing factors
warranting dismissal. (See Ferguson, supra, 218 Cal.App.3d at
p. 1183; Rubaum, supra, 110 Cal.App.3d at p. 935; Arnold,
supra, 105 Cal.App.3d at p. 459; Hernandez, supra, 97
Cal.App.3d at p. 455; Flores, supra, 90 Cal.App.3d Supp. at p. 9;
Kessel, supra, 61 Cal.App.3d at pp. 325–326; see also Henderson,
supra, 115 Cal.App.4th at p. 936.) The Legislature was aware
of this settled case law and expressly set out to codify it in
Assembly Bill No. 1273. When time remains to bring the matter
to trial, and thus to hear the defendant’s motion to suppress, it
typically does not further justice for the court to force a
dismissal and forestall a legitimate prosecution conducted in
compliance with the speedy trial statutes. As we have observed
in other circumstances, “[I]t would frustrate the orderly and
effective operation of our criminal procedure as envisioned by
the Legislature if without proper and adequate reason
section 1385 were used to terminate the prosecution of
defendants for crimes properly charged in accordance with legal
procedure.” (Orin, supra, 13 Cal.3d at p. 947.)
Accordingly, consistent with Ferrer and the case law
codified in Assembly Bill No. 1273, we hold that it is an abuse of
discretion for the court to deny continuance of a suppression
hearing when it is reasonably foreseeable that dismissal of the
case will result, unless dismissal would be in furtherance of
justice. (§ 1385, subd. (a).)
26
PEOPLE v. BROWN
Opinion of the Court by Corrigan, J.
This is not to say that the court’s hands are tied when the
prosecution seeks a continuance without satisfying
section 1050’s requirements. It may impose fines, refer the
prosecutor for discipline, and impose any other sanctions at its
disposal short of dismissal for procedural noncompliance.
(§ 1050.5, subd. (b); see § 1050, subd. (b).) “And, of course, the
trial court may exercise its discretion in selecting the length of
a continuance; it need not necessarily accede to the prosecutor’s
preferred date.” (Ferrer, supra, 184 Cal.App.4th at p. 886.)
The court below criticized Ferrer’s “reasonable
foreseeability” standard as posing some practical difficulties in
application. (See Brown, supra, 69 Cal.App.5th at pp. 31–32.)
In determining whether the denial of a continuance will make it
reasonably foreseeable that a case will be dismissed, the court
must consider the totality of the extant circumstances. One of
the factors to be considered is the People’s representation that
they will be unable to proceed without the challenged evidence.
But the court must independently examine that representation.
In the end it is the court’s determination, not the People’s
representation, that is dispositive. The reasonable
foreseeability standard comes into play when the case cannot be
tried absent the evidence, not when the case will simply be more
difficult to prove. The standard requires the prosecution to
defend its assertion that the contested evidence is vital. At the
same time, the defense, in possession of discovery, will be poised
to argue against this assertion, as it did here. Of course the
defense cannot be put to the burden of arguing the strength of
the prosecution’s case. And while the court is generally
precluded from reading the police reports and other supporting
documents (see § 1204.5), the defense may give its consent for
the court to do so, to assist in its consideration of the question.
27
PEOPLE v. BROWN
Opinion of the Court by Corrigan, J.
In the final analysis, the burden is on the People to make this
showing. If that showing falls short, the court is free to deny the
continuance and proceed with the suppression hearing. Since
Ferrer was decided more than a decade ago, neither parties nor
trial courts appear to have struggled unduly with this
procedure.
As an alternative to the reasonable foreseeability
standard, the Attorney General argues trial courts should
simply rely on prosecutors’ representations as to their ability to
proceed. We reject this suggestion. That approach would
abrogate the court’s independent responsibility and deprive the
defense of its legitimate opportunity to challenge the
prosecutor’s assertions. Although the prosecutor’s
representation is certainly a relevant consideration, we stress
that trial courts are obliged to take into account all facts and
arguments presented on the issue and to make their own
independent determination of whether dismissal of the case is
reasonably foreseeable if a continuance is denied.
E. Application
Here, the prosecutor failed to satisfy either the procedural
or substantive requirements of section 1050 in moving for a
continuance. He provided neither advance written notice nor
documentary support for the motion. (See § 1050, subd. (b).) He
also failed to present a showing of good cause. (See § 1050,
subd. (e).) The prosecutor had unilaterally excused a
subpoenaed witness from attending a court hearing, for reasons
the court rightly viewed with skepticism. The trial court was
thus correct in concluding good cause did not support the
continuance request, even if the prosecutor acted with poor
judgment rather than bad faith. We emphasize that the
28
PEOPLE v. BROWN
Opinion of the Court by Corrigan, J.
prosecutor’s unilateral decision to tell Officer Yasin he need not
appear is not condoned under these circumstances. The
subpoenaing of witnesses is part of the process by which courts
and parties can ensure cases will be ready to proceed when
scheduled. In subpoenaing witnesses, the parties ultimately
rely on the authority of the court to compel those summoned to
appear. Parties who release a witness from that duty do so at
their peril. The prosecutor’s action here, without consultation
with the court, was distinctly ill-advised.
When the prosecution moved for reconsideration of the
court’s ruling, it alerted the court to Ferrer’s holding and
represented that the People would be unable to proceed to trial
if the challenged evidence was suppressed. After reviewing
Ferrer, the court vacated its prior orders, held a suppression
hearing, and ultimately denied the suppression motion. This
decision reposed within the court’s sound discretion. Defendant
was out of custody, and the continuance was within the speedy
trial timeframe. There is no indication that she suffered any
prejudice by the hearing’s delay. The court also expressly found
that the prosecutor had not sought the continuance in bad faith.
The court said it had reviewed portions of the police report at
the initial suppression hearing, and it was provided additional
facts in the People’s opposition to the suppression motion. From
these materials, the court would have readily appreciated the
centrality of defendant’s incriminating statements and the
items collected by Officer Yasin. The trial court repeated that it
had not suppressed the officer’s observations, but then
concluded the People were unable to proceed “because those
were the — all of the facts that were available.” This record is
sufficient to show the trial court made an independent
conclusion that the People could not proceed without the
29
PEOPLE v. BROWN
Opinion of the Court by Corrigan, J.
suppressed evidence. Defendant has not established that the
court abused its discretion by concluding that dismissal of the
case was reasonably foreseeable should a continuance be
denied.7
In summary, reading the statutes together, the following
legislative intent is evident. Requests for continuances in
criminal cases are to be justified by good cause following the
procedures and showings required in section 1050. Failure to
follow the required procedures can be sanctioned under
section 1050.5. While the statutory requirements cannot be
ignored without consequences, they are not intended to be so
7
In speculating that the trial court “may have” based its
ruling on the prosecutor’s representation alone (conc. & dis.
opn., post, at p. 13, fn. 3) and arguing reversal is necessary
because “we simply cannot determine . . . whether the trial court
understood or applied” Ferrer’s reasonable probability standard
(id. at p. 11), the concurring and dissenting opinion loses sight
of our standard of review. The California Constitution prohibits
a judgment from being set aside on appeal absent an error that
“has resulted in a miscarriage of justice.” (Cal. Const., art. VI,
§ 13.) The separate opinion identifies no such error. Nor can
reversal be justified on the theory that our opinion announces a
new legal standard (see conc. & dis. opn., post, at pp. 13–14). We
have merely affirmed and elaborated on the standard set forth
in Ferrer. That case, contrary to the separate opinion’s
assertion, considered the totality of the circumstances and never
suggested courts should abdicate their role and rely solely on
prosecutors’ representations. (See Ferrer, supra, 184
Cal.App.4th at p. 883.) Because the trial court applied a legal
standard we have now approved, reversal of its decision would
be appropriate only if the court had abused its discretion by
acting arbitrarily or basing its decision on insufficient evidence.
(See Beames, supra, 40 Cal.4th at pp. 920–921.) As the party
opposing continuance, it is the defendant’s burden to show such
an abuse of discretion. (See id. at p. 920.) She has not done so.
30
PEOPLE v. BROWN
Opinion of the Court by Corrigan, J.
rigidly applied as to require dismissal of the case. Thus
understood, the statutes empower the court to hold accountable
those who fail to comply with them. But they should not be
applied so stringently that legitimate prosecutions cannot be
pursued within statutory time frames and constitutional
protections.
III. DISPOSITION
The Court of Appeal’s decision is reversed. The trial
court’s judgment, finding defendant guilty of the charge, is
affirmed. While this appeal was pending, the Legislature
decriminalized the act of loitering for purposes of prostitution,
the offense of which defendant was convicted. (See Stats. 2022,
ch. 86 (Sen. Bill No. 357), § 4, effective Jan. 1, 2023.) In doing
so, the Legislature provided a mechanism for those previously
convicted of that offense to request resentencing or dismissal
and sealing of their case, as applicable. (See § 653.29.) Nothing
we say here prohibits defendant from seeking that relief.
CORRIGAN, J.
We Concur:
GUERRERO, C. J.
KRUGER, J.
JENKINS, J.
31
PEOPLE v. BROWN
S271877
Concurring and Dissenting Opinion by Justice Groban
I agree with the majority’s conclusion that the Penal Code
provisions governing continuances and dismissals (see, e.g.,
Pen. Code, §§ 1050; 1385)1 do not permit a trial court to deny a
continuance of a suppression hearing “solely because good cause
is lacking, when doing so will result in dismissal of the charges
and the continuance can be granted without violating the
defendant’s speedy trial rights.” (Maj. opn., ante, at p. 1.) I
write separately for two reasons.
First, I share the Court of Appeal’s concerns that the
statutory procedures governing continuance requests of
suppression hearings pose various practical complications for
defendants and our trial courts. (See People v. Brown (2021)
69 Cal.App.5th 15, 31–32 (Brown); cf. maj. opn., ante, at p. 27.)
Whether those complications warrant amendment of the
controlling statutes, however, is ultimately a question for the
Legislature to decide.
Second, I do not agree with the majority’s conclusion that
the record in this case demonstrates the prosecution and the
trial court complied with the standards articulated in today’s
opinion. Because I am not persuaded the record supports such
a finding, I dissent from that portion of the opinion and the
disposition affirming Brown’s judgment of conviction. I would
1
All further statutory references are to the Penal Code.
1
PEOPLE v. BROWN
Groban, J., concurring and dissenting
reverse the judgment and remand the matter to the trial court
with directions to conduct a hearing on whether the prosecution
has satisfied (or can satisfy) its burden to show “the case cannot
be tried absent the [challenged] evidence.” (Maj. opn., ante, at
p. 27, italics omitted.)
I.
Although I find the language of Penal Code section 1050,
and in particular subdivision (l), to be susceptible to more than
one reading, I agree that the statutory scheme is most
reasonably construed as requiring trial courts to grant a
continuance of a suppression hearing if the prosecution shows
“the challenged evidence is so critical that its suppression would
require dismissal of the case.” (Maj. opn., ante, at p. 1.)
Nonetheless, I agree with the Court of Appeal that this
“reasonable foreseeability standard” (maj. opn., ante, at p. 27)
poses some “distinctive difficulties in application” (Brown,
supra, 69 Cal.App.5th at p. 31; see People v. Brown (Santa Clara
App.Div., Aug. 20, 2020, No. 17AP002184) [nonpub. opn.], conc.
opn. of Saban, J. [describing practical difficulties of requiring
trial courts to determine whether dismissal is likely]; cf. maj.
opn., ante, at p. 27). It is unclear, for example, what type of
evidentiary showing the prosecution must make to establish
that denial of a continuance will result in dismissal. Nor is it
clear how a trial court should go about making an “independent
determination of whether dismissal” will occur. (Maj. opn., ante,
at p. 28.) Is the prosecution required to describe all of the
admissible evidence that remains in the case and explain why
that evidence is insufficient to continue? Does the court have a
duty to independently review the entire record to ensure the
prosecution’s representations are accurate? Should the court
2
PEOPLE v. BROWN
Groban, J., concurring and dissenting
hold an evidentiary hearing to determine the remaining
strength of the prosecution’s case? At a minimum, forcing the
trial court to assess the state of the prosecution’s evidence,
without having heard or seen that evidence, seems to place the
court in a very difficult position.
The “reasonable foreseeability” inquiry places defendants
and their counsel in an even more difficult position. The
majority notes that the defense can challenge the prosecution’s
assertion that denial of a continuance is likely to result in
dismissal. (See maj. opn., ante, at p. 27.) It seems highly
unusual, however, to place defense counsel in the position of
arguing in favor of the strength of the State’s case. I agree with
the majority that the “burden of arguing the strength of the . . .
case” ultimately resides with the prosecution, and not the
defendant. (Ibid.) I also agree with the majority’s rejection of
the Attorney General’s proposal that trial courts should simply
rely on prosecutors’ representations as to their ability to
proceed. (Id. at p. 28.) Even so, our decision today leaves
defense counsel in a quandary. Take the situation here: Brown
surely would have benefitted if the trial court had denied a
continuance and forced the prosecution to proceed to trial
without Officer Yasin’s challenged statements. But to advocate
for such a result, defense counsel would have had to argue that
the prosecution’s remaining evidence against Brown was strong
enough to move forward with the case. Does the possibility of
having the continuance denied, and thus the challenged
evidence suppressed, warrant arguing in favor of the strength of
the State’s case? Perhaps, but that is a tricky position for any
defense lawyer to be in.
Moreover, requiring our trial courts to grant continuance
requests of suppression hearings that are unsupported by good
3
PEOPLE v. BROWN
Groban, J., concurring and dissenting
cause diminishes their ability to manage their calendars. As we
have previously explained in interpreting section 1050, “one
important element of a court’s inherent judicial authority . . . is
‘the power . . . to control the disposition of the causes on its
docket with economy of time and effort for itself, for counsel, and
for litigants.” (People v. Engram (2010) 50 Cal.4th 1131, 1146.)
Creating a rule that trial courts must grant continuances of
suppression hearings, regardless of good cause, undoubtedly
cuts against those interests. This case is illustrative. Without
consulting the defense or the trial court, the prosecution
instructed a subpoenaed police officer that he could skip the
suppression hearing to conduct a routine witness interview in
another matter. As a result of such conduct, Brown, her defense
counsel and the trial court were all required to expend time and
resources to reschedule a hearing for which there was no good
reason to delay. One might fairly question whether that
outcome is consistent with the purposes underlying subdivision
(e)’s good cause requirement. (See § 1050, subd. (a) [“the
Legislature finds that . . . . [e]xcessive continuances contribute
substantially to th[e] congestion [of criminal courts] and cause
substantial hardship to victims and other witnesses”].)
The complications described above take on added
significance given that, at least in the context of felony cases,
section 1538.5 substantially mitigates the consequences of the
trial court’s grant of a suppression order. If a suppression
motion is granted in a felony case, the prosecutor is statutorily
authorized to dismiss the case, refile, and relitigate the
suppression ruling. (See § 1538.5, subd. (j).) Thus, when a court
grants a suppression motion, the prosecution is left to determine
whether the suppressed evidence is sufficiently important to go
through the inconvenience of refiling the case and relitigating
4
PEOPLE v. BROWN
Groban, J., concurring and dissenting
the motion. One might wonder why that remedy — which places
the onus on the prosecution rather than the courts to evaluate
the importance of the evidence in question — is not equally
appropriate when a prosecutor lacks good cause for being
unprepared to participate in a suppression hearing.
In the end, however, whether these practical
complications warrant changing the statutory procedures that
govern continuance requests of suppression hearings, or
otherwise warrant giving our trial courts more discretionary
authority to deny such requests when unsupported by good
cause, are questions for the Legislature to decide.
II.
I agree that the reasonable foreseeability standard places
the burden on the People to show the contested evidence “is so
critical that its suppression would require dismissal of the case.”
(Maj. opn., ante, p. 1; see id. at pp. 27–28.) I also agree that trial
courts cannot “simply rely on prosecutors’ representations as to
their ability to proceed” (id. at p. 28), but rather must make
their “own independent determination” (ibid.) whether the
prosecution has shown “the case cannot be tried absent the
evidence” (id. at p. 27, italics omitted).
I do not agree, however, with the majority’s further finding
that the record here shows the prosecution and the trial court
actually complied with these requirements — requirements that
are articulated for the first time in today’s opinion. I would
therefore reverse the judgment of guilt and remand the matter
to allow the trial court to hold further hearings on whether the
prosecution can proceed without the suppressed evidence.
5
PEOPLE v. BROWN
Groban, J., concurring and dissenting
A. Factual summary
Prior to trial, Brown filed a motion to suppress evidence
that had been gathered by Officer Yasin during an allegedly
unlawful detention. (See § 1538.5.) On the day of the
suppression hearing, the People requested a continuance. The
prosecutor explained that he had told Yasin, who was then
under subpoena, that he could skip the hearing to conduct a
witness interview in another case. The prosecutor described
Yasin as the People’s only witness, but provided no description
of what Yasin would testify to or the nature of the evidence at
issue in the suppression hearing.2
The court concluded the prosecution had failed to establish
good cause and then granted the motion to suppress due to
Yasin’s absence. The court clarified it was excluding all
statements Brown had made to Yasin during the allegedly
unlawful stop but was not excluding any of Yasin’s observations
of Brown. Defense counsel argued that the case should be
dismissed in light of the suppression ruling. The prosecutor,
however, requested time to evaluate whether to proceed,
explaining that he believed the State might be able to continue
with the case because “a lot of the evidence in this case was
evidence obtained by . . . observation from the police officer
2
The majority asserts that the prosecution told the court
that “the challenged evidence was critical to the People’s case.”
(Maj. opn., ante, at p. 3.) However, the hearing transcript shows
the prosecution merely asserted that Yasin was the State’s only
witness; it did not make any representations about the
importance of the evidence at issue in the suppression hearing.
Indeed, as discussed below, later in the same hearing, the
prosecutor clarified that he believed much of the evidence Yasin
had gathered came in the form of observations that were not at
issue in the suppression motion.
6
PEOPLE v. BROWN
Groban, J., concurring and dissenting
before any contact with the defendant.” The court then set the
matter for trial.
Two weeks later, the People filed a motion for
reconsideration arguing that the court was required to grant a
continuance under People v. Ferrer (2010) 184 Cal.App.4th 873(Ferrer). The motion and accompanying memorandum of points
and authorities contained an extensive discussion of Ferrer but
did not include any discussion of the evidence against Brown or
otherwise explain why the prosecution could not continue
without the suppressed evidence. At the hearing on the motion,
the prosecution asserted that it intended to dismiss if the
suppression order was left in place but again presented no
argument regarding the state of the remaining evidence. The
prosecution did not mention its earlier claim that much of the
evidence against Brown consisted of “observation[s] from the
police” that were not subject to suppression, nor did it explain
why the State’s evaluation of the case had apparently changed.
The court concluded that Ferrer required it to grant the
continuance, explaining that the People had stated “they were
unable to go forward.” The court withdrew its prior orders,
rescheduled the suppression hearing, and ultimately denied the
suppression motion. Brown was later found guilty.
On appeal, Brown argued that even if Ferrer, supra,
184 Cal.App.4th 873, was correctly decided, the prosecution had
failed to satisfy the “reasonable foreseeability” standard because
it had presented no argument that the remaining evidence was
insufficient to move forward with the case. The Attorney
General’s answer brief did not respond to that argument.
Instead, the Attorney General argued that the appropriate
inquiry under Ferrer “is not whether it is reasonably foreseeable
that the case will still be strong enough to prosecute without the
7
PEOPLE v. BROWN
Groban, J., concurring and dissenting
suppressed evidence,” but rather “whether it is reasonably
foreseeable that the district attorney’s office, in its discretion,
will express an inability to proceed or prove the case beyond a
reasonable doubt once the evidence is suppressed.” The People
further contended that applying that standard here, the trial
court had properly granted a continuance because it had been
“advised [by the prosecution] that the case would be dismissed
absent the suppressed evidence.” Because the Court of Appeal
ultimately rejected Ferrer’s conclusion that a trial court must
grant a continuance of a suppression hearing when it is
reasonably foreseeable that denying such a request will result
in dismissal, the court did not address what showing the
prosecution must make under the reasonable foreseeability
standard or whether the prosecution had in fact made such a
showing.
In its briefing before this court, the Attorney General has
again declined to evaluate the state of the remaining evidence
against Brown. While acknowledging that Ferrer does “not
provide any specific guidance for determining when a denial of
a continuance may result in a dismissal,” the Attorney General
instead reiterates that the People believe the appropriate “test
. . . is whether . . . the prosecutor expresses an inability to
proceed to trial. If so, the continuance must be granted.”
Indeed, the Attorney General goes so far as to argue that “[t]he
prosecutor’s assessment of the case without the challenged
evidence must necessarily be the determinative factor in
deciding whether denial of the continuance will lead to
dismissal,” and that it would be improper for “a court or
magistrate to conduct an ‘independent review’ of the evidence.”
While the majority rejects the Attorney General’s proposed
approach (see maj. opn., ante, at p. 28), it nonetheless concludes
8
PEOPLE v. BROWN
Groban, J., concurring and dissenting
that the record here shows the continuance was properly
granted in accord with the procedures that we have articulated
in today’s opinion.
B. Analysis
On this record, I am not persuaded we can conclude that
the prosecution satisfied its burden to show “the case cannot be
tried absent the [suppressed] evidence.” (Maj. opn., ante, at
p. 27, italics omitted.) Nor do I believe we can assess whether
the trial court did “not simply rely on prosecutors’
representations as to their ability to proceed” (id. at p. 28), but
rather made an “independent determination” (ibid.) that
dismissal would be required.
The fact that the record provides no indication that the
prosecutor or the trial court complied with these requirements
is not particularly surprising given that, before today, it was
unclear what standards courts should apply when evaluating a
continuance request of a suppression hearing that is
unsupported by good cause. There is nothing in Ferrer, supra,
184 Cal.App.4th 873, signifying that the prosecution has the
burden to show the “challenged evidence is so critical that its
suppression would require dismissal of the case” (maj. opn.,
ante, at p. 1) or that trial courts must “make their own
independent determination of whether dismissal of the case is
reasonably foreseeable” (id. at p. 28). Indeed, the Attorney
General has consistently argued that under Ferrer, a trial court
can (and indeed should) rely solely on the prosecution’s
representation regarding dismissal and not make any
independent determination of that question — a proposition
that the majority correctly rejects.
9
PEOPLE v. BROWN
Groban, J., concurring and dissenting
Nor do I find anything in the record that suggests the trial
court intuited the standards we have articulated in our opinion
today. As noted, the court provided no indication that it had
independently evaluated the state of the evidence or that it
believed the prosecution had a burden to show the case could not
proceed without the disputed evidence. Nor did the court make
any inquiry regarding the People’s prior representation that “a
lot of evidence” in the case consisted of “observations from the
police officer before any contact with the defendant.” The fact
that the court made no inquiry about the remaining evidence,
and instead seems to have relied on the prosecution’s assertion
that it would dismiss, suggests it may well have wrongly
interpreted Ferrer’s standard in accordance with the Attorney
General’s position.
And it appears beyond dispute that the prosecution did not
believe it had any burden to show the suppressed evidence was
“so critical that its suppression would require dismissal of the
case.” (Maj. opn., ante, at p. 1.) Instead, the State has
consistently taken the position that the prosecution’s
representation to the court that it would dismiss was, in itself,
sufficient to require a continuance. (See ante, at pp. 7–8.)
Indeed, I find it noteworthy that despite multiple opportunities
to do so, neither the prosecution nor the Attorney General has
ever argued that the case would not merely “be more difficult to
prove” (maj. opn., ante, at p. 27) without the suppressed
evidence, but rather would require dismissal.
The majority, however, appears to conclude that various
items in the record demonstrate the trial court did make an
independent determination that the case could not proceed
without the suppressed evidence. First, the majority surmises
that the court “would have readily appreciated the centrality of
10
PEOPLE v. BROWN
Groban, J., concurring and dissenting
defendant’s incriminating statements” (maj. opn., ante, at p. 29)
based on the police report and the factual summary set forth in
the People’s opposition to the original suppression motion, both
of which were provided to the court before the prosecution had
ever requested a continuance. Those materials, however,
merely contain a brief description of the events that preceded
Yasin’s stop of Brown. The prosecution never represented to the
court, nor was it ever asked, whether the summary contained in
either document represented a full description of the evidence
against Brown. Indeed, at the time those materials were
presented to the court, the prosecutor argued against dismissal,
contending that “a lot” of the evidence against Brown was not
subject to the suppression order. (See ante, at p. 6.)
But even if these materials could be said to support a trial
court’s “independent determination” (maj. opn., ante, at p. 28)
that the denial of a continuance would result in dismissal, they
do nothing to show the trial court actually made such an
independent determination here or otherwise understood that it
was required to do so. To be clear, the relevant problem as I
view it is not that the record contains insufficient evidence to
support a finding that the denial of a continuance would result
in dismissal. Rather, the problem is that on this record we
simply cannot determine (and indeed have reason to doubt)
whether the trial court understood or applied the standards we
have articulated for the first time in today’s opinion. The
materials submitted at the initial suppression hearing do
nothing to rectify that problem.
The majority next asserts that during the hearing on the
prosecution’s motion for reconsideration, the trial court stated
that it did not believe the People could proceed with the case
because the suppressed statements were “ ‘all of the facts that
11
PEOPLE v. BROWN
Groban, J., concurring and dissenting
were available.’ ” (Maj. opn., ante, at p. 29.) Contrary to the
majority’s characterization, however, the record shows the trial
court did not state that it had found the suppressed statements
made up all the facts of the case. Rather, the record makes clear
that the court was referring to statements defense counsel made
at the initial hearing on the motion to suppress. The full
statement at issue made by the court is: “The Defense at the
time conceded, uh, as much because those were the — all the
facts that were available.” (Italics added.)
The discussion from the initial suppression hearing (that
the court is referring to above) is illuminating. It shows that
after the court had denied a continuance and granted the motion
to suppress, the court had an exchange with the parties about
how to proceed. During that exchange, the court explained that
it intended to dismiss unless the prosecution believed there was
“other evidence” in the case that would allow it “to proceed.”
Defense counsel argued dismissal would be appropriate because
Yasin’s suppressed statements comprised “essentially
. . .everything” in the case and there was no longer sufficient
evidence to prove the charges. Crucially, the trial court noted in
response that defense counsel’s evaluation of the remaining
evidence was “not necessarily” accurate. The prosecution then
expressly disagreed with the defense, contending that the
People might be able to proceed because “a lot of the evidence”
against Brown was comprised of observations that were not
subject to the suppression order. The trial court, apparently
having accepted the prosecution’s representations, declined to
dismiss the case and set the matter for trial.
On this record, I cannot conclude that the trial court
understood the prosecution had a burden to show the People
could not proceed without the suppressed evidence or that the
12
PEOPLE v. BROWN
Groban, J., concurring and dissenting
court made an independent determination that the case would
have to be dismissed. In my view, the trial court’s reference to
statements and arguments defense counsel made during the
original suppression hearing, which was held before any party
had even brought Ferrer to the court’s attention, does not show
that the court evaluated the prosecution’s continuance request
under the standards we have articulated today.
Indeed, the only thing that appears to have changed
between the suppression hearing and the hearing on the motion
for reconsideration was the prosecution’s representations about
whether the case could continue: When faced with dismissal at
the first hearing, the prosecution argued that it might be able to
continue, but after identifying the Ferrer holding (which
requires the court to grant a continuance if dismissal would
otherwise result) the prosecution asserted that it could not
proceed without the suppressed evidence. As noted, the trial
court granted the continuance without ever asking the
prosecution why its evaluation of the case had changed or
otherwise inquiring about the state of the remaining evidence.
In my view, the court’s actions suggest that rather than making
any independent determination of the issue, it may have
granted the continuance based solely on the prosecution’s
representation that it would dismiss.3
3
While noting that a presumption of correctness generally
applies to judgments on appeal, the majority appears to agree
that remand is appropriate when a reviewing court has
announced a new legal standard. (See maj. opn., ante, at p. 30,
fn. 7.) The majority insists, however, that today’s opinion does
nothing more than “approve” (ibid.) standards that were already
articulated in Ferrer, supra, 184 Cal.App.4th 873. This
conclusion is at odds with the parties’ reading of that opinion.
13
PEOPLE v. BROWN
Groban, J., concurring and dissenting
Because I understand our decision today to clarify the
legal standards that govern continuance requests in the context
of suppression hearings, and because I do not believe we can
discern from this record whether the trial court applied those
standards here — indeed, if anything the record suggests it did
not — I would reverse the judgment of guilt and remand the
matter to the trial court with directions to hold a hearing as to
whether the prosecution can satisfy its “burden . . . to show an
inability to go forward without the evidence in dispute.”4 (Maj.
The Attorney General explains that Ferrer does “not provide any
specific guidance for determining when a denial of a continuance
may result in a dismissal,” while Brown’s briefing before the
Court of Appeal notes that the decision raises “fundamental
uncertainties” regarding how trial courts should decide that
question. I agree with the parties.
Although the majority adopts the same “reasonably
foreseeable” parlance as Ferrer, I find nothing in Ferrer
directing that the prosecution has an initial burden to show the
case “cannot be tried” (maj. opn., ante, at p. 27, italics omitted)
without the challenged evidence. Nor does Ferrer direct trial
courts that they must make an independent assessment of the
prosecution’s representations about its ability to proceed.
Although the majority characterizes these requirements as
mere “elaborat[ions]” (maj. opn., ante, at p. 30, fn. 7) on what
was already said in Ferrer, I view them as addressing an issue
Ferrer simply did not reach: What standards should trial courts
apply in assessing whether it is reasonably foreseeable that
denial of a continuance will result in dismissal?
4
As the majority notes, while this appeal was pending, “the
Legislature decriminalized the act of loitering for purposes of
prostitution, the offense of which defendant was convicted. (See
Stats. 2022, ch. 86 (Sen. Bill No. 357), § 4, effective Jan. 1,
2023.)” (Maj. opn., ante, at p. 31.) Were we to reverse the
judgment and remand, I would direct the trial court to consider
whether this intervening legislation requires the People to
14
PEOPLE v. BROWN
Groban, J., concurring and dissenting
opn., at p. 1; see People v. Jimenez (1978) 21 Cal.3d 595, 609,
overruled by People v. Cahill (1993) 5 Cal.4th 478 on another
ground [where opinion clarified uncertainty in the law,
reviewing court would not “presume[] that the trial court
applied the correct standard in those cases in which the record
is silent in this regard”]; Richards v. CH2M Hill, Inc. (2001) 26
Cal.4th 798, 824 [“proper course” is to remand for application of
“new” standard “to the facts of this case”].)
GROBAN, J.
We Concur:
LIU, J.
EVANS, J.
dismiss this case. Under the majority’s approach, however,
Brown’s judgment of conviction has now been affirmed, meaning
that she must file a petition or application in the trial court
(which will presumably require the assistance of counsel)
requesting dismissal of her conviction. (See § 653.29, subds. (a),
(b).)
15
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion People v. Brown
__________________________________________________________
Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published) XX 69 Cal.App.5th 15Review Granted (unpublished)
Rehearing Granted
__________________________________________________________
Opinion No. S271877
Date Filed: March 27, 2023
__________________________________________________________
Court: Superior
County: Santa Clara
Judge: Jesus Valencia, Jr.
__________________________________________________________
Counsel:
William M. Robinson, under appointment by the Supreme Court, for
Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters,
Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant
Attorney General, Seth K. Schalit and Bridget Billeter, Deputy
Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
William M. Robinson
Attorney at Law
95 South Market Street, Suite 570
San Jose, CA 95113
(408) 241-6171
Bridget Billeter
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102
(415) 510-3763