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The Spodek Law Group understands how delicate high-profile cases can be, and has a strong track record of getting positive outcomes. Our lawyers service a clientele that is nationwide. With offices in both LA and NYC, and cases all across the country - Spodek Law Group is a top tier law firm.

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Penal Code 1382 PC – Speedy Trial Rights & Grounds for Dismissal

By Spodek Law Group | July 9, 2021

The California statute Penal Code 1382 PC mandates that criminal trials commence within a certain amount of time after a defendant’s arraignment. The time limit for felony cases is normally 60 days. It is 30 or 45 days for misdemeanors and violations.

These deadlines serve to ensure that a criminal defendant’s right to a quick trial is protected. The United States Constitution and the California Constitution both safeguard this right.

In particular, PC 1382 says that “The court, unless good cause to the contrary is shown, shall order the action to be dismissed in the following cases… In a felony case, when a defendant is not brought to trial within 60 days of the defendant’s arraignment…[or] when a defendant in a misdemeanor or infraction case is not brought to trial within 30 days after he or she is arraigned or enters his or her plea, whichever occurs later…”

There are few circumstances that allow a trial to take place outside of the time limits set out in this statute. A trial, for example, may be lawfully postponed if the accused agrees to or requests a new date, or if there is a “showing of good cause.”

If a defendant is not brought to trial within the time frame set forth in PC 1382, the case may be dismissed by the judge.

This dismissal is only possible if the defense attorney files a successful Serna motion for a quick trial. A Serna motion asserts that the defendant’s right to a speedy trial has been infringed. During the pre-trial process, the motion is filed.

The California criminal defense attorneys at Spodek Law Group will explain to you the following in this article:

1. What are the requirements of speedy trial under PC 1382?

2. What exceptions are there?

3. What exactly is a Serna motion?

4. Will a judge use the same analysis everytime they rule on these motions?

1. What are the requirements of speedy trial under PC 1382?

The constitutional right to a quick trial is protected by Penal Code 1382.

In criminal proceedings, every criminal defendant in the state of California has this right to a trial.

This right is enshrined in both:

  1. the Sixth Amendment  to the United States Constitution, and
  2. Article I, Section 15, of the California Constitution.

The right to a swift trial is the right to a jury trial within a reasonable amount of time after the start of a criminal prosecution (e.g., after the preliminary hearing or an arraignment).

PC 1382 establishes time restrictions for when trial dates must take place in order to enforce this.

In felony cases, a defendant must be brought to trial within 60 days following the arraignment, reinstatement of the case (i.e., re-establishing a case that was dismissed), or an order providing a new trial after a mistrial, according to the statute.

When it comes to misdemeanors and infractions, the law states that a defendant must be brought to trial within 30 days of being arraigned or entering a plea to the charges (whichever occurs later).

If the offender is in custody and the matter is a misdemeanor or infraction, he or she must be brought to trial in Superior Court within 45 days of: 

  • the arraignment, or 
  • the plea (whichever takes place later).

2. What exceptions are there?

There are a few exceptions to California law that allow a defendant to be tried after the time limits set forth in PC 1382 have expired.

For example, a defendant may: 

  • request or accede to a trial date after the statute’s deadlines; or 
  • go into a time waiver of the statutory requirements.

It’s worth noting that postponing a trial is frequently in a defendant’s best interests. This delay provides the defense attorney additional time to gather evidence and refute the prosecutor’s assertions.

In addition to the exclusions listed above, the time limits in PC 1382 will not apply if the trial court finds “good reason” to postpone the trial.

Some examples of when there is a showing of good cause include scenarios in which:

  • the accused becomes incapacitated,
  • new evidence has been discovered,
  • the case is too complex to allow a speedy trial,
  • a preference for a joint trial arises in a case with multiple defendants,
  • the court clerk made a filing mistake, and
  • a global pandemic, such asCOVID-19 has a severe impact on the State.

The regulations in PC 1382 do not apply if any of the foregoing exceptions apply. This indicates the defendant can be tried after the law requires it a 30-day period, a 45-day period, or a 60-day period is available (whichever applies).

3. What exactly is a Serna motion?

A “Serna motion” is a motion to dismiss a criminal case on the grounds that the defendant’s constitutional right to a speedy trial was violated.

When the District Attorney or the court fails to follow the timing standards under Penal Code 1382, a defense attorney files a motion in open court.

Serna motions are frequently referred to as “speedy trial motions.” They are submitted as part of the California criminal justice system’s pre-trial phase.

Following the filing of the request by defense counsel, the court holds a hearing to decide whether the defendant’s right to a speedy trial has been violated. The judge next determines whether to approve or deny the motion.

If the Serna motion is successful, the judge will dismiss all accusations brought against the defendant.

4. Will a judge use the same analysis every time they rule on these motions?

When deciding a Serna motion, a judge does not always apply the same analysis.

As previously noted, both The United States Constitution and the California Constitution ensure a defendant’s right to a prompt trial.

Depending on whether the Serna motion is brought under US constitutional grounds or California laws, the court applies a different approach in reviewing it.

The court will consider the following four considerations in deciding whether to grant or deny a Serna request for a speedy trial under the United States Constitution:

  • the length of a trial delay,
  • the cause of the delay, 
  • the defendant’s assertion of the right to a speedy trial, and 
  • any prejudice to the defendant as a result of the delay (this is presumed to exist if the delay is uncommonly long).

When the motion is based on California law, however, the judge merely considers the following:

  1. the defendant’s genuine harm as a result of the delay, and 
  2. the prosecution’s reason for the delay.

A loss or injury to the defendant is simply referred to as “prejudice.”

For extra assistance from a team of highly qualified and experienced defense attorneys, go to:

We invite you to contact Spodek Law Group for more information or to speak with a criminal defense attorney about your case. People from all around California, including San Diego and Los Angeles County, are represented by us.

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