by Douglas Ankney

The Court of Appeal, Sixth Appellate District, held that a trial court has authority to deny a request for a continuance of a motion to suppress under California Penal Code § 1050(e) even if the decision may foreseeably result in dismissal of the prosecution. (All statutory references are to the California Penal Code.) In so holding, the Court concluded it found no statutory support for the contrary holding by the First District Court of Appeal in People v. Ferrer, 184 Cal.App.4th 873 (2010), and expressly declined to follow it.

Daja Brown was arrested by San Jose Police Department Officer Nader Yasin on misdemeanor charges related to prostitution. She subsequently filed a motion to suppress her statements pursuant to § 1538.5.

Prior to the hearing on the motion, the prosecutor did not file a written request for a continuance, as mandated by § 1050(b), but at the hearing, he orally requested a continuance. The prosecutor told the trial court that shortly before the hearing began, he received a phone call from Yasin who told the prosecutor that he needed to interview witnesses in an unrelated ongoing investigation. Even though Yasin had been subpoenaed for the hearing, the prosecutor told Yasin he need not attend the suppression hearing.

Brown objected, arguing that the prosecution had not shown good cause under § 1050. The trial court determined that the People had not shown good cause for a continuance. The judge observed that other investigators could interview witnesses and that what Yasin was doing was not so indispensable that it required his absence from the hearing. The trial court denied the requested continuance. The prosecutor announced it could not proceed with the suppression hearing without Yasin. In light of that declaration, the trial court granted the motion to suppress and set the case for trial.
On March 2, the prosecutor moved for reconsideration, arguing that denial of the requested continuance and granting the motion to suppress left the prosecution unable to proceed with the case. Citing Ferrer, the prosecutor contended that under §§ 1050 and 1050.5, the trial court had no authority to refuse to grant a continuance—even in the absence of good cause—where the foreseeable result of that denial would be dismissal of the charges.

In light of the prosecutor’s motion, the trial court vacated its previous rulings. Believing it had no authority under Ferrer to deny the requested continuance, the trial court set a new § 1538.5 hearing. At this hearing, Yasin testified. The court denied the motion to suppress. Brown subsequently entered a guilty plea and appealed to the Santa Clara County Superior Court. Her judgment was affirmed, and the case was ultimately transferred to the Sixth Appellate District of the Court of Appeal, where Brown argued that Ferrer was wrongly decided and it conflicts with the plain language of “sections 1050 and 1050.5 and undermines the intent of section 1538.5.”

The Court began with a lengthy discussion and analysis of the Ferrer decision, which relied heavily on the relevant legislative history together with People v. Henderson, 115 Cal.App.4th 922 (2004), and People v. Ferguson, 218 Cal.App.3d 1173 (1990). After its detailed examination of the Ferrer decision, the Court stated that it agreed with the Ferrer Court’s discussion of the statutory background but declared that “we do not concur in the opinion’s construction of sections 1050 and 1050.5.”

After its own detailed review of the governing statutes and legislative history, the Court determined that “the only basis for the rule announced in Ferrer and urged by the Attorney General here … must be section 1050 itself.” However, the Court stated that it doesn’t see any basis for Ferrer’s rule in the statutory text, noting that § 1050 provides that it “is directory only and does not mandate dismissal of an action by its terms.” § 1050(l). It explained that the characterization “directory” means that trial courts are not required to dismiss an action due to a party’s failure to comply with § 1050. But that’s not the same as concluding that trial courts have no authority to dismiss an action in the first place, the Court stated.

The Court again closely examined the relevant statutes and concluded: “we find no statutory support in either section 1050 or section 1050.5 for the rule announced in Ferrer.” It explained that Henderson and Ferguson addressed a different question than the one at issue in Ferrer and the present case. The Court noted that those cases “examined whether the trial court had erred in dismissing the case after the denial of a continuance and found error based in part on section 1385.” In contrast, Ferrer ruled that the trial court didn’t have the authority to deny a continuance based on its “strained statutory construction of sections 1050 and 1050.5,” the Court stated. As a result, it concluded that those cases “do not support the rule announced in Ferrer.”

The Court announced: “We hold that if the trial court finds that the request for a continuance of a motion to suppress lacks good cause, the court has the authority to deny the requested continuance for lack of good cause under section 1050, subdivision (e), even if this decision may foreseeably result in a dismissal of the matter for lack of evidence.”

Accordingly, the Court reversed and remanded with orders to the trial court to reinstate its orders denying the People’s request for a continuance and granting Brown’s suppression motion. See: People v. Brown, 69 Cal. App. 5th 15 (2021). 

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