Skip to content
Name: Jensen v. Superior Court, Los Angeles
Case #: B200619
Court: CA Court of Appeal
District 2 DCA
Division: 7
Opinion Date: 02/20/2008

Due diligence justifying a request for a continuance of a jury trial is established when a criminal subpoena is served on a peace officer pursuant to Penal Code section 1328, subdivision (c), even if the officer did not personally receive the subpoena. To establish good cause for a continuance because of the unavailability of a witness, the party seeking the continuance must establish that he/she exercised due diligence to secure the witness’s attendance; the witness’s expected testimony is material and not cumulative; the testimony could be obtained within a reasonable period of time; and the facts to which the witness would testify could not be otherwise proven. (People v. Howard (1992) 1 Cal.4th 1132.) Penal Code section 1328, subdivision (c) provides that a peace officer may be served either by personal delivery or by delivering two copies to the officer’s immediate supervisor or designated agent. Here, the district attorney’s office timely issued the subpoena for the arresting officer and it was received by a representative who placed it in the officer’s box. Apparently without actually knowing of the subpoena, the officer went on vacation and was not available for the scheduled trial date. The court found that the prosecution exercised due diligence in issuing and serving the subpoena pursuant to section 1328, subdivision (c) and should not be held liable for the police department’s failure to ensure that the officer was made aware of the subpoena. Petitioner’s writ of prohibition to compel dismissal of the prosecution on the basis of speedy trial violation was denied.