Motions Dates

A View from the Bottom – Motions Dates

By Victor VeVea

 

Tradition

Kern County differs from most (perhaps all) other counties by setting a specific date that motions must be heard for each felony case in Bakersfield.  The outlying courts don’t appear to set a motions date, but rather have certain days of the week that are available for hearing motions.  The motions date stems neither from statutory law nor from local rules, but rather seems to be a matter of tradition.  In theory, setting a specific motions date about three weeks after arraignment on the Information allows motions to be heard in an orderly fashion, and the theory holds true in most cases.  However, the system does have some problems that are costly to the county.

Transfers and Transcripts

Cases are often transferred between attorneys for a variety of reasons, but it is common for a case to be reassigned at the arraignment on the Information.  This often happens when the preliminary hearing was conducted in one of the outlying courts, but trial is set in Bakersfield.  For defendants assigned to the local conflict panel, this often causes delays in receiving the case file and the transcripts of the preliminary hearing.

An example from a recent case will shed light on the problem.

  • October 8 – Last day to file Pitchess motion by mail
  • October 10 – Defendant arraigned; case assigned to IDP
  • October 11 – Case assigned to attorney
  • October 12 – Discovery requested
  • October 13 – Last day to file a Pitchess motion with personal service
  • October 16 – Preliminary hearing transcript received
  • October 23 – Last day to file substantive motions
  • November 6 – Scheduled motions date
  • November 17 – Discovery received

Note that the last day to file a Pitchess motion is before the defendant was even arraigned.  This oddity sometimes happens because a Pitchess motion is a civil motion, and must comply with Code of Civil Procedure §1005, which requires:

(a) Written notice shall be given, as prescribed in subdivisions (b) and (c), for the following motions:… (6) Hearing for Discovery of Peace Officer Personnel Records pursuant to Section 1043 of the Evidence Code… (b) Unless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing… However, if the notice is served by mail, the required 16-day period of notice before the hearing shall be increased by five calendar days.

This example is a prison case, so personal service is not an option.  This case is an extreme example of delay in receiving discovery.  A thirty-five-day delay is not common, but a delay of one or two weeks is common, and a delay of even a week will prevent timely filing of a Pitchess motion in many cases.  A delay of two weeks will usually prevent timely filing of any substantive motions.

It is also common to have a delay in the receipt of preliminary hearing transcripts because the transcripts are usually sent to prior counsel (often outside Bakersfield) who must then forward the transcripts to new counsel.

Motion for Motions

If the scheduled motions date is missed, the attorney can request a new motions date, but this creates its own set of problems.  A Motion for Motions Date requires ten days’ notice (Rules of Court, Rule 4.111), and then the actual motions will require additional notice time.  This can be a timely and costly proposition.

Assuming, arguendo, that a Motion for Motions Date was attempted in the case example above, the dates would be as follows:

  • November 20 – Motion for Motions Date to be filed.  This is the first reasonable date because discovery was received on Friday, November 17.
  • November 22 – Readiness conference
  • December 4 – Scheduled trial date
  • December 6 – Earliest date a Motion for Motions Date can be heard because of the ten-court-day notice requirement and the two holidays.
  • January 3 – Earliest date possible for the new motions date if a Pitchess is to be heard.  This is caused by the two holidays, the sixteen-court-day notice requirement, and the five-calendar-day mailing requirement.

Naturally, this is an impossible schedule because the earliest date to hear any motion is after the trial date.  Counsel may shorten notice requirements by seeking Orders Shortening Time, but this will require extra effort at extra expense to the county.  In most cases, a missed motions date will require a continuance, which is also at extra expense to the county.  The expenses associated with scheduling a new motions date, whether by way of a Motion for Motions Date or Motion to Continue, is not insignificant.  The lowest IDP rate for hearing of a felony motion is $72 plus an hourly rate for preparation of the motion.  The county also bears to the expense of the prosecuting attorney, transportation of in-custody defendants, the judge, bailiffs, and courtroom staff.

Motions Based on Motions

Often one motion will be dependent on the outcome of an earlier motion.  The viability of a Pitchess motion may depend on the outcome of a motion to discover video recordings of the alleged crime.  The need for a suppression motion may not be clear until after the outcome of a Hobbs motion.  The need for a Trombetta motion may be revealed after hearing of a motion to split blood evidence.  Sometimes, it is not practical to bring all necessary motions on one Motions Date, but the court only sets one date.  A continuance or a Motion to Set Motions date is necessary for a second motions date, and the county bears the cost of either method to obtain a date.

Quirky Oddity

Motions Dates sometimes create an interesting but frustrating quirk when a case has more than one defendant.  The oddity is difficult to explain except by example.

Def and Codef had a Motions Date of November 16, and each properly served and filed motions for hearings on that date.  Additional discovery was produced by the prosecution, so Codef filed a Motion to Continue his pending Motion to Traverse.  Other motions were heard as scheduled, but the Traverse was continued to December 12.  Def joined the Traverse, but Def also filed a motion for hearing on December 12 seeking to discover photographs necessary for proper litigation of the Traverse.  Before reading further, try to guess what happened to the Joinder and the Discovery Motion.

The Joinder was accepted and calendared, but the Discovery Motion was rejected with a note indicating that the defense must request a new Motions Date.  Even though a motion in the case is being heard on December 12, the computer does not indicate that December 12 is the Motions Date.  December 12 is just a motion date, not a Motions Date.  It would be in the interest of judicial economy to have the Discovery Motion heard on that date, but instead, the case will be delayed for a month or more because of the quirky difference between a motion date and a Motions Date.

It is almost a certainty that the prosecution does not want this outcome, and it is nearly axiomatic that any judge presiding over the proceedings would not want this outcome, but no judge will see the Discovery Motion or the rejection of this meritorious (and probably unopposed) motion because the rejection is made at a clerical instead of a judicial level.

Solution

Proceedings necessary to set a motions date are costly to the county, wasteful of judicial resources, and wasteful of attorneys’ time.  However, having a set motions date is beneficial, but a few improvements to the system could result in significant savings to the county.

First, an order shortening time should not be required for a Motion to Set Motions Date.  The motion should be treated as a Continuance under Penal Code §1050 because the motion is merely continuing the earlier motions date to a new date.  Adopting such a policy would allow the motion to be filed on two-days’ notice (Penal Code §1050(b)) without the added expense and burden of an Order Shortening Time.

Second, allow motions that are based on the result of earlier motions to be filed for hearing on the day before the scheduled Readiness conference, and shorten the time for bringing a Pitchess motion on this date to ten days.  This gives enough time for proper service of motions.

As an alternative to these two suggestions, the court could allow motions dates to be set ex parte with no showing of good cause.

Third, designate any date already scheduled for hearing of motions as a Motions Date.