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Name: People v. Johnson
Case #: B240837
Court: CA Court of Appeal
District 2 DCA
Division: 1
Opinion Date: 08/08/2013

While no good cause justified continuing appellant’s probation revocation hearing, he did not suffer any prejudice from the delay. Appellant was convicted of two counts of robbery and sentenced to six years in state prison. Execution of sentence was suspended and he was placed on probation for three years. On January 13, 2012, he was arrested for possession of marijuana and debit and credit cards not belonging to him. His request for a continuance of his probation violation hearing was granted and the matter was continued for a month. Over appellant’s objection, the court then granted the prosecution’s request for a two-week continuance. At the April 27, 2012 continued hearing, appellant was found in violation and execution of sentence was ordered. On appeal, he argued that the trial court violated his right to receive a timely probation revocation hearing when it continued the hearing without good cause. Affirmed. Penal Code section 1050 provides for continuances “in any hearing in a criminal proceeding” if good cause is shown. A probation revocation hearing is a hearing in a criminal case. As a result, good cause must be shown before the hearing may be continued. Here the prosecutor merely stated that witnesses were unavailable and did not establish that he exercised diligence to secure their attendance and gave no assurance that anticipated testimony would be material and noncumulative. Thus, good cause for the continuance was not established. However, the trial court did not abuse its discretion when it granted the continuance because, under section 1050, subdivision (l), courts may not deny a continuance when doing so would foreseeably result in dismissal of the case. Although a defendant additionally has a due process right to a probation revocation hearing within a reasonable time after being taken into custody, appellant did not establish prejudice resulting from the approximate three-month delay in the probation revocation hearing which was caused, in part, by his request for a continuance.