Pursuing a Continuance in a California Court

A continuance request should be made as soon as the need becomes known. In most criminal proceedings, Penal Code § 1050 requires written notice to be filed and served on all parties at least two court days before the hearing sought to be continued. The notice must be accompanied by affidavits or declarations containing specific facts showing why the continuance is necessary.

A party may ask the court to excuse the notice requirements, but must show good cause for failing to comply as well as good cause for the continuance itself. Under § 1050(d), the motion shall not be granted if the moving party cannot show good cause for the failure to give notice. The court may also impose sanctions under Penal Code § 1050.5.

Early requests give the court, witnesses, prosecutors, and defense counsel time to adjust. Last-minute requests can still be granted in emergencies, but require a specific explanation for both the delay and any failure to provide notice. Special rules may apply to particular proceedings, including certain preliminary examinations.

• Penal Code § 1050(b)–(d), (k): Notice requirements and exceptions(opens in a new tab)

“Good cause” depends on the facts. The court considers whether the requesting party acted diligently, whether the delay is necessary, how long the continuance would last, and how it would affect witnesses, the other party, and the administration of justice.

Importantly, neither the convenience of the parties nor an agreement between the defense and prosecution is, by itself, good cause for a continuance.

When deciding whether good cause exists and selecting a new date, the court also considers the convenience and prior commitments of witnesses, including peace officers. Under § 1050(i), a continuance may last only for the period shown to be necessary by the evidence.

• Penal Code § 1050(e)–(i): Good cause, witnesses, and length of delay(opens in a new tab)

Judges may grant a continuance when there is a legitimate reason the case is not ready to proceed. These circumstances may support a request, but none guarantees that it will be granted:

• Insufficient preparation time. Counsel may need time to investigate, interview witnesses, review discovery, retain experts, or prepare motions. The request should explain why diligent preparation could not reasonably be completed earlier.
• A witness is unavailable. The party generally must show that the witness is material, that reasonable efforts were made to secure attendance, and that the witness can testify within a reasonable time.
• New evidence or witnesses. If the prosecution discloses significant new evidence shortly before trial, the defense may need time to investigate and respond.
• Unexpected testimony. A witness may provide testimony that could not reasonably have been anticipated, requiring the other side to gather material rebuttal evidence.
• A scheduling conflict. A conflict with another court proceeding may support a request. Section 1050(b) requires an attorney to notify the calendar clerks of each court in writing within two court days of learning of a conflict and identify which hearing was set first.
• Replacing counsel. A defendant may request time for newly retained counsel to prepare, but courts consider whether the request was timely and whether the delay is justified.
• Illness, death, or another excusable circumstance. An unexpected illness, a death affecting an essential participant, or another documented emergency may support good cause, depending on the circumstances.

• Penal Code § 1050: Criminal continuances and scheduling conflicts(opens in a new tab)
• Justia: Continuances in criminal proceedings(opens in a new tab)

A continuance can affect a defendant’s speedy-trial rights. Penal Code § 1382 sets statutory trial deadlines that depend on the type of case, custody status, the procedural stage, and whether the defendant has waived time or consented to a later trial date.

Requesting a continuance is not necessarily the same as entering a general time waiver. However, requesting or consenting to a trial date beyond the statutory period can change the applicable deadline even without a general waiver. Section 1382 includes provisions requiring trial on the agreed date or within 10 days afterward in specified circumstances.

Discuss the timing consequences with defense counsel before agreeing to or requesting a delay. In some cases, a continuance is necessary to prepare an adequate defense; in others, it may extend the time the case remains pending. Constitutional speedy-trial protections also require a separate analysis.

• Penal Code § 1382: Trial deadlines, waivers, and consent to later dates(opens in a new tab)

In a California criminal case, the usual process involves:

• 1. Identify the specific reason. Vague requests such as “more time” are unlikely to succeed without supporting facts.
• 2. Act promptly. File the request as soon as the need is known.
• 3. Prepare supporting declarations. Include specific facts, dates, efforts made, and why the requested period is necessary.
• 4. Serve all parties. Follow Penal Code § 1050’s notice and service requirements, including its actual-receipt provisions.
• 5. Notify witnesses. Regardless of which side requests the continuance, the prosecution must notify its witnesses and defense counsel must notify defense witnesses of the request, hearing date, and their right to be heard.
• 6. Be ready to propose a new date. A specific, reasonable date shows the court that the request is focused rather than intended merely to delay.

Filing a request does not itself change your court date. Unless the court grants the continuance or your attorney confirms a lawful excuse from appearing, continue to comply with existing court orders and appearance requirements.

• Penal Code § 1050(b): Filing, service, and witness notice(opens in a new tab)

Judges commonly deny continuances when the request appears to be a delay tactic, lacks supporting evidence, could have been anticipated earlier, or would unfairly prejudice the other side.

A judge may also deny a request if the party seeking it has not been diligent—for example, waiting until the eve of trial to seek a witness who could have been subpoenaed months earlier. An agreement between the parties does not eliminate the need for good cause.

If a request is denied, speak with your attorney about how to proceed and preserve any appropriate objections. Do not assume that an unsuccessful request excuses you from attending the scheduled hearing.

• Penal Code § 1050: Findings required for a continuance(opens in a new tab)

In most criminal proceedings, § 1050 requires written notice and supporting affidavits or declarations to be filed and served at least two court days before the hearing to be continued. Court days are not the same as calendar days. Exceptions exist, but a late request generally requires good cause for failing to meet the notice requirements as well as for the continuance.

Good cause is a specific, fact-supported reason that makes a delay necessary despite reasonable diligence. Examples may include an essential witness’s unavailability, significant new evidence, or a documented emergency. Convenience or the parties’ agreement alone is not enough.

Yes. A request for, or consent to, a later trial date can affect statutory deadlines even without a general time waiver. The effect depends on the case and what is requested or agreed to. Review the consequences with your attorney before consenting to a delay.

If you need to change a court date in a San Diego criminal case, speak with a defense attorney before filing a request. The right approach depends on the type of hearing, your speedy-trial rights, the evidence, witness availability, and the judge’s local practices.

Attorney James N. Dicks of jD LAW Criminal Defense Attorney is a Certified Criminal Law Specialist and former police detective. He represents clients in criminal matters throughout San Diego County and North County.

For a free consultation, call (760) 630-2000 or visit our Contact page.