CRIMINAL RULE 5: LAW AND MOTION
Law and Motion matters shall be heard as follows:
(1) MISDEMEANOR CASES
All motions shall be heard in the pretrial department to which that misdemeanor case is assigned.
(2) FELONY DRUG/NARCOTIC CASES (NON-THREE STRIKE CASES)
All motions shall be heard by the Judge specifically assigned to hear such motions.
(3) DOMESTIC VIOLENCE CASES
All motions shall be heard in the pretrial department to which that domestic violence case is assigned.
(4) OTHER MOTIONS
Motions in all other cases shall be heard by the Judge assigned to the Criminal Law and Motion department in the designated courthouse.
Unless indicated otherwise, the following shall apply to ALL law and motion matters:
(1) COURT FILING
The party filing any motion paper must file the original in the Criminal Court Clerk’s office in which the case is to be heard and on general jurisdiction matters provide a courtesy copy for the research attorney/law clerk of the Court assigned to hear the matter.
(2) SERVICE OF COPIES
A copy of all moving and responding papers must be served upon opposing counsel, co-counsel and counsel for all co-defendants the same day that the originals are filed, unless previously served. Service upon the District Attorney and Public Defender can be accomplished by depositing the documents in those offices’ mail boxes located in the Criminal Court Clerk’s office at the Hall of Justice.
(3) LAST DAY TO FILE
The last day to file and hear motions shall be set or can be obtained at the time of arraignment in Superior Court, unless otherwise agreed to by the Court hearing the motion. (See also Criminal Rule 5(B)(4) below.)
(4) UNLESS OTHERWISE ORDERED BY THE COURT
a. All motions and applications, together with supporting papers, documents and Points and Authorities, must be filed with the Criminal Court clerk in the appropriate courthouse no later than 15 full calendar days prior to the date set for hearing. This requirement applies except where inconsistent with a state rule of court or statute. (See e.g. CCP §1005 requiring 16 court days for a Pitchess/EC §1043 motion.)
b. Unless waived by the Court, or unless the party that would respond to the motion plans on conceding it, a written opposition, together with supporting papers, documents, and Points and Authorities must be filed.
c. All written responses, together with supporting papers, documents and Points and Authorities, must be filed with the Criminal Court clerk no later than five full Court days prior to the date set for hearing. The reply must be filed two Court days prior to the date set for the hearing.
d. Failure of the moving or responding party to comply herewith shall be sufficient grounds for the Court to refuse to consider the matters contained in such moving or responding papers, as the case may be.
e. Except for limited jurisdiction matters, any motion to be filed containing a requested hearing date on or after the trial date must have the approval initials of the Supervising Judge - Criminal or his/her designee.
(5) CONTINUANCES AND RE-SETTING, WITHDRAWAL OF TIME WAIVERS
a. Except in unusual or exigent circumstances, any party intending to request a continuance or not to proceed in any matter set for hearing shall promptly so inform all other counsel and THEN inform the Court assigned to hear the motion. This notification must be at least two Court days preceding the hearing. It is counsel’s responsibility in felony cases to place the case on the After-Arraignment Calendar if continuing the motion will require re-setting the trial date. Continuing the trial date will not be allowed in the Law and Motion department. (See 2, supra.)
b. The Court shall have complete discretion concerning continuances, including the authority to deny any continuance and to rule in the absence of counsel, or to order the matter off calendar, notwithstanding any stipulation of counsel.
c. If a case has not been set for trial, withdrawal of a defendant's previously entered time waiver of speedy trial shall be by written Notice of Withdrawal of Time waiver filed in the department of the judge supervising the Master Trial Calendar. In the alternative, the withdrawal of time waiver may be made orally on the record by the defendant or his counsel in that department. If the case has been set for trial, the written Notice of Time waiver shall be filed or the oral withdrawal of time waiver shall be made, in the department where the cause is set for trial.
(6) REQUESTS FOR ORDERS SHORTENING TIME
All requests for Orders Shortening Time shall be signed only by the Judge hearing the motion or his/her designee.
(7) NOTICE OF MOTION AND RESPONSE
a. Except for motions brought pursuant to California Penal Code section 995, if the motion is to be submitted in whole or in part on the transcript of the preliminary examination, or the transcript of any prior proceeding, the Notice of Motion and/or the Response must so state.
b. In any Motion brought pursuant to California Penal Code section 1538.5(i) that is to be presented de novo, notice of this fact must also be set out on the first page of the moving and responding papers.
c. Failure to comply with any portion of this Criminal Rule 5(B) shall be sufficient cause for the Court to refuse to consider any transcript of a prior proceeding, allow the calling of additional witnesses or to allow a de novo hearing.
(8) MOTIONS TO SUPPRESS EVIDENCE
The notice of a motion brought pursuant to California Penal Code section 1538.5 shall describe and list the evidence which is the subject of the motion to suppress and shall be served with a Memorandum of Points and Authorities.
(9) ORAL TESTIMONY
In all matters, oral testimony shall not be permitted unless the Court orders otherwise, except de novo hearings brought pursuant to California Penal Code section 1538.5. The Court shall have complete discretion as to the necessity for, nature and extent of oral argument. Notice of intent to call witnesses must be specifically set out on the first page of the moving and/or responding papers.
(10) EX PARTE MATTERS
Except as otherwise provided by law, for any application involving ex parte relief, reasonable advance notice must be given to opposing counsel, co-counsel and counsel for co-defendants. The presence of counsel or the applicant shall be required in any such matter.
(11) COMPLIANCE WITH RULES OF COURT
a. All papers filed in Law and Motion matters, and all proceedings thereunder, shall be in accordance with the applicable statutes, California Rules of Court and these Criminal Court Rules.
b. A mere citing of code sections which authorize the filing of a motion is not in compliance with the California Rules of Court or these Rules. Except as otherwise authorized by statute or Rule of Court, application for any relief, or any opposition to relief sought, shall be supported by a Memorandum of Points and Authorities.
c. All case citations must include the official report volume, page number, and year of decision.
d. In any matter where a party is relying on out-of-state or federal authority, a copy of the entire authority must be provided. e. Unless prior authorization is obtained from the Law and Motion Judge, all Memoranda of Points and Authorities shall be no longer than fifteen (15) pages.
(12) MEMORANDUM OF POINTS AND AUTHORITIES
A Memorandum of Points and Authorities shall contain a concise statement of facts, a concise statement of the law, evidence and arguments relied upon, a discussion of the statutes, cases and textbooks cited in support of the position advanced. When a party intends to rely on a transcript, the page number of the transcript must be cited.
(13) MOTION TO JOIN
Any party seeking to join in any motion shall set out the relevant facts and law as it relates to that joining party in particular.
(14) ESTIMATE OF TIME
All moving, responding and joining papers must set out an accurate time estimate on the first page. If the time estimate is in excess of two hours or cannot be heard on a regular Law and Motion calendar, the motion may be reset on the Master Trial Calendar.
(15) SEARCH WARRANTS
When a defendant is seeking to quash or traverse a search warrant, a copy of the search warrant affidavit must be provided and attached to the moving papers.
(16) MOTIONS FOR REINSTATEMENT
When moving to reinstate a complaint, the prosecuting attorney must provide a copy of the preliminary examination transcript.
(17) POST-TRIAL MOTIONS
a. Post-trial motions, motions for new trial and other matters related to contested cases shall be set and heard in the department where the Judge who heard the matter is currently sitting. The time and date of the hearing shall be set only by the Judge of such department. b. In the event that the original trial Judge is retired or no longer available, matters in Criminal Rule 5(B)(17)(a) will be assigned out for hearing by the Supervising Judge – Criminal.
(18) SENTENCE MODIFICATION
Motions for modification of sentence shall be heard as set out in Criminal Rule 5 (B)(17)(a), supra. For all requests for modification of sentence, notice must be sent to the District Attorney’s Office as well as the Adult Probation Department (in cases in which formal probation has been granted) before such request will be considered or calendared for hearing. Proof of such notice must be attached to the original request filed with the Court. Failure to do so will result in the request being treated as an improper ex parte communication with the Court and will be discarded.
(19) USE OF JUVENILE RECORDS
Attorneys or defendants who are involved in a criminal proceeding in the Superior Court of California, County of Santa Clara, and who seek juvenile records for use in the pending criminal action shall, in addition to filing a W&I Code § 827 Petition in the Juvenile Court, concurrently file a Declaration of Filing of Juvenile Court 827 Petition in the criminal case (Attachment CR-6082 ).