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Speedy Trial Motions in California

Posted by Sam Israels | Feb 22, 2021

Review of a Serna Motion in California to Dismiss Criminal Charges for Lack of Speedy Prosecution

Speedy Trial Motions in California
A Serna motion can be filed for lack of a speedy trial to ask judge to dismiss charges.

In California, a “Serna motion” (known as speedy trial motions) is a legal motion to dismiss misdemeanor or felony charges because you were denied your constitutional right to a speedy trial, which violates the fast and speedy trial law.

One of the primary reasons there are laws to ensure a speedy trial is that you might be prejudiced defending your case because the memory of witnesses fades, and crucial evidence could be lost or destroyed.

Any reasons for a delay in having your trial must be significant and not caused by your own behavior.

Misdemeanor and felony charges 

In the state of California, you have a right to a trial in misdemeanor cases within 45 days after being criminally charged if not in custody, and within 30 days if you are in custody.

If you were charged with a felony crime, you have a right to have a trial within 60 days.

The right to a speedy trial is the legal right to have a jury trial reasonably fast after one of the following steps in the criminal case process:

  • date of arrest;
  • filing of criminal charges or indictment;
  • being held over to answer for charges after preliminary hearing.

If you were denied a right to a speedy trial, then your defense attorney can file a motion requesting the judge to dismiss your charges.

This motion is claiming you were denied a constitutional right to a speedy trial violates the California Constitution and the Sixth Amendment to the United States Constitution.

Our Los Angeles criminal defense lawyers will provide a more detailed review below.

Serna v. California Superior Court

A “Serna” motion, or “speedy trial motion” got its name after the 1985 California Supreme Court decision in Serna v. Superior Court. The court made a ruling in this case that:

  • an unjustified delay can violate a defendant's Constitutional rights to a speedy trial and
  • it can provide grounds for dismissing the criminal charges.

Serna motions are often complicated and needs to be prepared by an experienced criminal defense lawyer who understands when speedy trial rights begin.

California Penal Code 1382 PC

Penal Code 1382 PC is the statute requiring criminal trials to begin within a certain time frame after the arraignment.

Felony cases 

California Penal Code 1382 PC
If charged with a misdemeanor crime, the time frame to appear in court is 30 or 45 days.

On a California felony charge, a prosecutor must get the defendant to trial within 60 days of their arraignment or indictment unless they can show good cause for a delay.

Misdemeanor cases 

On most misdemeanor charges, the time frame is 30 or 45 days and a defendant is normally released and told to appear at a future court date.

There are situations where a defendant will sign a written promise to appear for their court arraignment.

In other cases, a prosecutor will mail a letter to a defendant about their arraignment date, or even file their case as an arrest warrant.

This type of action will allow police to arrest and detain them and then bring them to the criminal court.

If there was an unreasonable delay in bringing the defendant to trial, a Serna motion can be filed with the court in order to determine if your rights were violated.

Next, the judge will then hold a hearing where evidence to a speedy trial is presented. If the judge rules in favor of the defendant, their criminal charges will be dismissed.

What are the Legal Justifications for a Speedy Trial?

There are a wide range of legal justifications for a defendant's right to a speedy trial, including:

  • To avoid an unfair, lengthy time in jail;
  • To protect their ability to defend themselves;
  • To minimize defendant's anxiety while waiting to resolve their case;
  • To ensure defendant's constitutional right to a speedy trial;
  • To ensure proper use of legal resources.

It should be noted that defendants have the right to waive their constitutional rights to a speedy trial.

When Do Speedy Trial Rights Start?

When Do California Speedy Trial Rights Start?
A defendants right to a speedy trail starts at date or arrest or date of filing complaint.

According to Article I, Section 15 of the California Constitution, a defendant's right to a speedy trial either begins:

  • date of arrest, if followed by continued restraint;
  • date of the filing of a complaint.

Factors consider by the judge 

For a Serna motion to dismiss, the judge will consider three main factors in order to decide whether a defendant's speedy trial rights were violated:

  • length of the delay:
  • justification for the delay; and
  • extent the delay adversely affected defendant's interest.

Prejudice is not presumed if there is a long delay, rather a defendant has to show the delay caused some type of harm.

If it can be proven that a prosecutor did violate a defendant's speedy trial rights, then the criminal charges have to be dismissed.

If the Serna motion is unsuccessful, then a defendant could still appeal the decision through the California criminal appeals process.

Speedy Trials and Federal Law

Based on the Sixth Amendment to the US Constitution, the clock starts on a misdemeanor case after the:

  • filing of a complaint, or;
  • date of arrest and restraint.

In a felony case, the clock will start running after the:

  • arrest;
  • holding order was issued for a preliminary hearing, or;
  • indictment has been filed.

Under federal law on speedy trials, a felony complaint doesn't start the clock running until an actual indictment is filed.

Once a speedy trial motion has been filed under the US Constitution, the judge will then need to decide whether the trial delay was unreasonable under the Sixth Amendment based on:

  • the length of the delay;
  • the prosecution's reasons for the delay;
  • if an effort was made during the delay to speed up the process, and;
  • if there was prejudice to you because of the delay.

The two most crucial factors considered by a judge in a federal Serna motion are:

  • the specific reasons why the prosecutor delayed bring you to trial;
  • the degree of prejudice, commonly known as “harm” to a defendant.

Criminal Defense for a California Speedy Trial Motion

If you want to discuss your case and how a California speedy trial motion could be relevant, contact our criminal defense lawyers to review the details of your case.

Criminal Defense for a California Speedy Trial Motion
Contact our law firm to review the details and legal options of your case.

Your legal rights as related to a speedy trial motion can become complex, and our attorneys will need to review every detail of the case closely.

If you were arrested for any type of crime, we will review the information and provide legal advice.

We serve clients throughout Southern California, including Orange County, Ventura County, Riverside, Santa Barbara County, San Bernardino, and the San Fernando Valley.

Cron, Israels & Stark is a top-rated criminal defense law firm located at 11755 Wilshire Blvd, 15th Floor, Los Angeles, CA 90025.

We also have an office at 401 Wilshire Blvd #1200, Santa Monica, CA 90401. Contact our office for a free case evaluation at (424) 372-3112.

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About the Author

Sam Israels

Sam J. Israels is a Law Firm partner with the Law Offices of Cron, Israels, & Stark. Mr. Israels received his J.D. degree from the Santa Clara University School of Law. Mr. Israels also previously worked at the Los Angeles Office of the City Attorney. He is admitted to practice law in the State o...

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