Continuance to Permit Defendant to Be Represented by a Lawyer
In People v. Courts (1985) 37 Cal.3d 784, the Supreme Court found that the trial court had abused its discretion by refusing to grant a continuance to permit the defendant to be represented by an attorney he retained just prior to trial.
In that case, the trial was scheduled for October 26. in September, the defendant, then represented by the public defender, called a private attorney to discuss retaining him. The defendant lacked funds but hoped to raise them. In early October, the attorney went on vacation but planned to return October 18. At a trial setting conference that day, the defendant asked for a continuance to hire private counsel, whom he had not yet formally retained.
The court denied the request as untimely. On October 21, the attorney agreed to take the case if the trial date were continued; he then unsuccessfully tried to calendar motions to substitute attorneys and for a continuance. On the trial date, the defendant's motion for continuance was renewed. The private attorney appeared and said he would take the case but needed a continuance given the seriousness of the charges.
The court denied the request. In a declaration, the defendant summarized his efforts to retain counsel and reiterated his desire to substitute attorneys and continue the case. He asserted that the public defender was too inexperienced, the defense investigation had begun only recently, and new information was being developed; he also noted that he only obtained the money to hire counsel the previous week. After reconsideration, the court denied the motion again. (Courts, supra, 37 Cal.3d at pp. 787-789.)
In concluding that the trial court abused its discretion by denying the continuance, the court emphasized that the defendant had "engaged in a good faith, diligent effort to obtain the substitution of counsel before the scheduled trial date" (Courts, supra, 37 Cal.3d at p. 791), that "nearly two months before trial, he contacted private counsel and discussed representation and the fee" and that, during the following weeks, he "attempted to raise the necessary funds" and "conscientiously informed the court of his efforts as early as October 18th and made a motion for continuance on that date." (Ibid.)
The court added, "Moreover, as private counsel's testimony revealed, a lawyer-client relationship had been established-certainly by October 21st, if not before." (Ibid.)
Significantly, the court inserted a footnote that contrasted the defendant's motion with "the eve-of-trial, day-of-trial, and second-day-of-trial requests" made and denied in several specific cases. "In those cases, the Courts of Appeal found the lateness of the continuance request to be a significant factor which justified a denial where there were no compelling circumstances to the contrary. " (Courts, supra, 37 Cal.3d at p. 792, fn. 4.)
And it also inserted a footnote that contrasted the defendant's motion with "cases which have upheld the denial of a continuance on the ground that participation by a particular private attorney was still quite speculative at the time the motion for continuance was made." (Id. at p. 791, fn. 3.)
In short, when a continuance is requested on the day of trial, the lateness of the request is a significant factor justifying denial absent compelling circumstances to the contrary. And the certainty of the hiring is a factor as well.