Examination of the case, and discharge of the
[align=left]
DEFENDANT, OR HOLDING HIM TO ANSWER
858. When the defendant is brought before the magistrate upon an
arrest, either with or without warrant, on a charge of having
committed a public offense, the magistrate must immediately inform
him of the charge against him, and of his right to the aid of counsel
in every stage of the proceedings. If it appears that the defendant
may be a minor, the magistrate shall ascertain whether such is the
case, and if the magistrate concludes that it is probable that the
defendant is a minor, and unless the defendant is a member of the
armed forces of the United States and the offense charged is a
misdemeanor, he shall immediately either notify the parent or
guardian of the minor, by telephone, telegram, or messenger, of the
arrest, or appoint counsel to represent the minor.
858.5. (a) In any case in which a defendant is, on his demand,
brought before a magistrate pursuant to Section 822 after arrest for
a misdemeanor Vehicle Code violation, the magistrate shall give such
instructions to the defendant as required by law and inform the
defendant of his rights under this section, and, if the defendant
desires to plead guilty or nolo contendere to the charge in the
complaint, he may so advise the magistrate. If the magistrate
determines that such plea would be in the interest of justice, he
shall direct the defendant to appear before a specified appropriate
court in the county in which defendant has been arrested at a
designated certain time, which in no case shall be more than 10
calendar days from the date of arrest, for plea and sentencing. The
magistrate shall request the court in which the complaint has been
filed to transmit a certified copy of the complaint and any citation
and any factual report which may have been prepared by the law
enforcement agency that investigated the case to the court in which
defendant is to appear for plea and sentencing. If the court of
which the request is made deems such action to be in the interest of
justice, and the district attorney of the county in which that court
sits, after notice from the court of the request it has received,
does not object to such action, the court shall immediately transmit
a certified copy of the complaint and the report of the law
enforcement agency that investigated the case, and, if not, shall
advise the requesting magistrate of its decision not to take such
action.
When defendant appears for plea and sentencing, and if a copy of
the complaint has been transmitted, the court shall read the copy of
the complaint to him, and the defendant may plead guilty or nolo
contendere. Such court shall have jurisdiction to accept the plea
and impose a sentence. Such court shall notify the court in which
the complaint was originally filed of the disposition of the case.
If defendant does not plead guilty or nolo contendere, or if
transmittal of a copy of the complaint has been refused or if a copy
of the complaint has not been received, the court shall terminate the
proceedings under this section and shall direct the defendant to
appear before the court or magistrate by whom the warrant was issued
on or before a certain day which in no case shall be more than five
days after the date such direction is made.
(b) Any fines imposed by a court which is given authority to
sentence pursuant to this section shall be remitted to the court in
which the complaint was originally filed for disposition as required
by law. The county of the sentencing court shall bear all costs
incurred incident to acceptance of the plea and sentencing, and no
part of such costs shall be deducted from the fine remitted to the
court in which the complaint was filed.
858.7. (a) In any case in which the defendant has been convicted of
a misdemeanor and is serving a sentence as a result of such
conviction and there has been filed and is pending in another county
a complaint charging him with a misdemeanor Vehicle Code violation,
the defendant may appear before the court that sentenced him, and a
magistrate of that court shall give such instructions to the
defendant as required by law and inform the defendant of his rights
under this section, and, if the defendant desires to plead guilty or
nolo contendere to the charge in the complaint, he may so advise the
magistrate. If the magistrate determines that such plea would be in
the interest of justice, he shall direct the defendant to appear
before a specified appropriate court in the county in which defendant
is serving his sentence at a designated certain time for plea and
sentencing. The magistrate shall request the court in which the
complaint has been filed to transmit a certified copy of the
complaint and any citation and any factual report which may have been
prepared by the law enforcement agency that investigated the case to
the court in which defendant is to appear for plea and sentencing.
If the court of which the request is made deems such action to be in
the interest of justice, and the district attorney of the county in
which that court sits, after notice from the court of the request it
has received, does not object to such action, the court shall
immediately transmit a certified copy of the complaint and any report
of the law enforcement agency that investigated the case, and, if
not, shall advise the requesting magistrate of its decision not to
take such action.
When defendant appears for plea and sentencing, and if a copy of
the complaint has been transmitted, the court shall read the copy of
the complaint to him, and the defendant may plead guilty or nolo
contendere. Such court shall have jurisdiction to accept the plea
and impose a sentence. Such court shall notify the court in which
the complaint was originally filed of the disposition of the case.
If defendant does not plead guilty or nolo contendere, or if
transmittal of a copy of the complaint has been refused or if a copy
of the complaint has not been received, the court shall terminate the
proceedings under this section and shall direct the defendant to
appear before the court in which the complaint was filed and is
pending on or before a certain day.
(b) (1) Any fines imposed by a court which is given authority to
sentence pursuant to this section shall be remitted to the court in
which the complaint was originally filed for disposition as required
by law. Except as otherwise provided in paragraph (2) of this
subdivision, the county of the sentencing court shall bear all costs
incurred incident to acceptance of the plea and sentencing, and no
part of such costs shall be deducted from the fine remitted to the
court in which the complaint was filed.
(2) In any case in which a defendant is sentenced to imprisonment
pursuant to this section, and as a result of such sentence he is
required to be imprisoned for a time in addition to, and not
concurrent with, the time he is imprisoned as a result of the
sentence he is otherwise serving, the county in which the complaint
was originally filed shall bear the cost of such additional time of
imprisonment that the defendant is required to serve. Such cost may
be deducted from any fine required to be remitted pursuant to
paragraph (1) of this subdivision to the court in which the complaint
was originally filed.
(c) As used in this section, "complaint" includes, but is not
limited to, a notice to appear which is within the provisions of
Section 40513 of the Vehicle Code.
859. When the defendant is charged with the commission of a felony
by a written complaint subscribed under oath and on file in a court
within the county in which the felony is triable, he or she shall,
without unnecessary delay, be taken before a magistrate of the court
in which the complaint is on file. The magistrate shall immediately
deliver to the defendant a copy of the complaint, inform the
defendant that he or she has the right to have the assistance of
counsel, ask the defendant if he or she desires the assistance of
counsel, and allow the defendant reasonable time to send for counsel.
However, in a capital case, the court shall inform the defendant
that the defendant must be represented in court by counsel at all
stages of the preliminary and trial proceedings and that the
representation will be at the defendant's expense if the defendant is
able to employ counsel or at public expense if he or she is unable
to employ counsel, inquire of him or her whether he or she is able to
employ counsel and, if so, whether the defendant desires to employ
counsel of the defendant's choice or to have counsel assigned for him
or her, and allow the defendant a reasonable time to send for his or
her chosen or assigned counsel. If the defendant desires and is
unable to employ counsel, the court shall assign counsel to defend
him or her; in a capital case, if the defendant is able to employ
counsel and either refuses to employ counsel or appears without
counsel after having had a reasonable time to employ counsel, the
court shall assign counsel to defend him or her. If it appears that
the defendant may be a minor, the magistrate shall ascertain whether
that is the case, and if the magistrate concludes that it is probable
that the defendant is a minor, he or she shall immediately either
notify the parent or guardian of the minor, by telephone or
messenger, of the arrest, or appoint counsel to represent the minor.
859.1. (a) In any criminal proceeding in which the defendant is
charged with any offense specified in Section 868.8 on a minor under
the age of 16 years, or a dependent person with a substantial
cognitive impairment, as defined in paragraph (3) of subdivision (f)
of Section 288, the court shall, upon motion of the prosecuting
attorney, conduct a hearing to determine whether the testimony of,
and testimony relating to, a minor or dependent person shall be
closed to the public in order to protect the minor's or the dependent
person's reputation.
(b) In making this determination, the court shall consider all of
the following:
(1) The nature and seriousness of the offense.
(2) The age of the minor, or the level of cognitive development of
the dependent person.
(3) The extent to which the size of the community would preclude
the anonymity of the victim.
(4) The likelihood of public opprobrium due to the status of the
victim.
(5) Whether there is an overriding public interest in having an
open hearing.
(6) Whether the prosecution has demonstrated a substantial
probability that the identity of the witness would otherwise be
disclosed to the public during that proceeding, and demonstrated a
substantial probability that the disclosure of his or her identity
would cause serious harm to the witness.
(7) Whether the witness has disclosed information concerning the
case to the public through press conferences, public meetings, or
other means.
(8) Other factors the court may deem necessary to protect the
interests of justice.
859a. (a) If the public offense charged is a felony not punishable
with death, the magistrate shall immediately upon the appearance of
counsel for the defendant read the complaint to the defendant and ask
him or her whether he or she pleads guilty or not guilty to the
offense charged therein and to a previous conviction or convictions
of crime if charged. While the charge remains pending before the
magistrate and when the defendant's counsel is present, the defendant
may plead guilty to the offense charged, or, with the consent of the
magistrate and the district attorney or other counsel for the
people, plead nolo contendere to the offense charged or plead guilty
or nolo contendere to any other offense the commission of which is
necessarily included in that with which he or she is charged, or to
an attempt to commit the offense charged and to the previous
conviction or convictions of crime if charged upon a plea of guilty
or nolo contendere. The magistrate may then fix a reasonable bail as
provided by this code, and upon failure to deposit the bail or
surety, shall immediately commit the defendant to the sheriff. Upon
accepting the plea of guilty or nolo contendere the magistrate shall
certify the case, including a copy of all proceedings therein and any
testimony that in his or her discretion he or she may require to be
taken, to the court in which judgment is to be pronounced at the time
specified under subdivision (b), and thereupon the proceedings shall
be had as if the defendant had pleaded guilty in that court. This
subdivision shall not be construed to authorize the receiving of a
plea of guilty or nolo contendere from any defendant not represented
by counsel. If the defendant subsequently files a written motion to
withdraw the plea under Section 1018, the motion shall be heard and
determined by the court before which the plea was entered.
(b) Notwithstanding Section 1191 or 1203, the magistrate shall,
upon the receipt of a plea of guilty or nolo contendere and upon the
performance of the other duties of the magistrate under this section,
immediately appoint a time for pronouncing judgment in the superior
court and refer the case to the probation officer if eligible for
probation, as prescribed in Section 1191.
859b. At the time the defendant appears before the magistrate for
arraignment, if the public offense is a felony to which the defendant
has not pleaded guilty in accordance with Section 859a, the
magistrate, immediately upon the appearance of counsel, or if none
appears, after waiting a reasonable time therefor as provided in
Section 859, shall set a time for the examination of the case and
shall allow not less than two days, excluding Sundays and holidays,
for the district attorney and the defendant to prepare for the
examination. The magistrate shall also issue subpoenas, duly
subscribed, for witnesses within the state, required either by the
prosecution or the defense.
Both the defendant and the people have the right to a preliminary
examination at the earliest possible time, and unless both waive that
right or good cause for a continuance is found as provided for in
Section 1050, the preliminary examination shall be held within 10
court days of the date the defendant is arraigned or pleads,
whichever occurs later, or within 10 court days of the date criminal
proceedings are reinstated pursuant to Chapter 6 (commencing with
Section 1367) of Title 10 of Part 2.
Whenever the defendant is in custody, the magistrate shall dismiss
the complaint if the preliminary examination is set or continued
beyond 10 court days from the time of the arraignment, plea, or
reinstatement of criminal proceedings pursuant to Chapter 6
(commencing with Section 1367) of Title 10 of Part 2, and the
defendant has remained in custody for 10 or more court days solely on
that complaint, unless either of the following occur:
(a) The defendant personally waives his or her right to
preliminary examination within the 10 court days.
(b) The prosecution establishes good cause for a continuance
beyond the 10-court-day period.
For purposes of this subdivision, "good cause" includes, but is
not limited to, those cases involving allegations that a violation of
one or more of the sections specified in subdivision (a) of Section
11165.1 or in Section 11165.6 has occurred and the prosecuting
attorney assigned to the case has another trial, preliminary hearing,
or motion to suppress in progress in that court or another court.
Any continuance under this paragraph shall be limited to a maximum of
three additional court days.
If the preliminary examination is set or continued beyond the
10-court-day period, the defendant shall be released pursuant to
Section 1318 unless:
(1) The defendant requests the setting of continuance of the
preliminary examination beyond the 10-court-day period.
(2) The defendant is charged with a capital offense in a cause
where the proof is evident and the presumption great.
(3) A witness necessary for the preliminary examination is
unavailable due to the actions of the defendant.
(4) The illness of counsel.
(5) The unexpected engagement of counsel in a jury trial.
(6) Unforeseen conflicts of interest which require appointment of
new counsel.
The magistrate shall dismiss the complaint if the preliminary
examination is set or continued more than 60 days from the date of
the arraignment, plea, or reinstatement of criminal proceedings
pursuant to Chapter 6 (commencing with Section 1367) of Title 10 of
Part 2, unless the defendant personally waives his or her right to a
preliminary examination within the 60 days.
859c. Procedures under this code that provide for superior court
review of a challenged ruling or order made by a superior court judge
or a magistrate shall be performed by a superior court judge other
than the judge or magistrate who originally made the ruling or order,
unless agreed to by the parties.
860. At the time set for the examination of the case, if the public
offense is a felony punishable with death, or is a felony to which
the defendant has not pleaded guilty in accordance with Section 859a
of this code, then, if the defendant requires the aid of counsel, the
magistrate must allow the defendant a reasonable time to send for
counsel, and may postpone the examination for not less than two nor
more than five days for that purpose. The magistrate must,
immediately after the appearance of counsel, or if, after waiting a
reasonable time therefor, none appears, proceed to examine the case;
provided, however, that a defendant represented by counsel may when
brought before the magistrate as provided in Section 858 or at any
time subsequent thereto, waive the right to an examination before
such magistrate, and thereupon it shall be the duty of the magistrate
to make an order holding the defendant to answer, and it shall be
the duty of the district attorney within 15 days thereafter, to file
in the superior court of the county in which the offense is triable
the information; provided, further, however, that nothing contained
herein shall prevent the district attorney nor the magistrate from
requiring that an examination be held as provided in this chapter.
861. (a) The preliminary examination shall be completed at one
session or the complaint shall be dismissed, unless the magistrate,
for good cause shown by affidavit, postpones it. The postponement
shall not be for more than 10 court days, unless either of the
following occur:
(1) The defendant personally waives his or her right to a
continuous preliminary examination.
(2) The prosecution establishes good cause for a postponement
beyond the 10-court-day period. If the magistrate postpones the
preliminary examination beyond the 10-court-day period, and the
defendant is in custody, the defendant shall be released pursuant to
subdivision (b) of Section 859b.
(b) The preliminary examination shall not be postponed beyond 60
days from the date the motion to postpone the examination is granted,
unless by consent or on motion of the defendant.
(c) Nothing in this section shall preclude the magistrate from
interrupting the preliminary examination to conduct brief court
matters so long as a substantial majority of the court's time is
devoted to the preliminary examination.
(d) A request for a continuance of the preliminary examination
that is made by the defendant or his or her attorney of record for
the purpose of filing a motion pursuant to paragraph (2) of
subdivision (f) of Section 1538.5 shall be deemed a personal waiver
of the defendant's right to a continuous preliminary examination.
861.5. Notwithstanding subdivision (a) of Section 861, the
magistrate may postpone the preliminary examination for one court day
in order to accommodate the special physical, mental, or emotional
needs of a child witness who is 10 years of age or younger or a
dependent person, as defined in paragraph (3) of subdivision (f) of
Section 288.
The magistrate shall admonish both the prosecution and defense
against coaching the witness prior to the witness' next appearance in
the preliminary examination.
862. If a postponement is had, the magistrate must commit the
defendant for examination, admit him to bail or discharge him from
custody upon the deposit of money as provided in this Code, as
security for his appearance at the time to which the examination is
postponed.
863. The commitment for examination is made by an indorsement,
signed by the magistrate on the warrant of arrest, to the following
effect: "The within named A.B. having been brought before me under
this warrant, is committed for examination to the Sheriff of ____."
If the Sheriff is not present, the defendant may be committed to the
custody of a peace officer.
864. At the examination, the magistrate must first read to the
defendant the depositions of the witnesses examined on taking the
information.
865. The witnesses must be examined in the presence of the
defendant, and may be cross-examined in his behalf.
866. (a) When the examination of witnesses on the part of the
people is closed, any witness the defendant may produce shall be
sworn and examined.
Upon the request of the prosecuting attorney, the magistrate shall
require an offer of proof from the defense as to the testimony
expected from the witness. The magistrate shall not permit the
testimony of any defense witness unless the offer of proof discloses
to the satisfaction of the magistrate, in his or her sound
discretion, that the testimony of that witness, if believed, would be
reasonably likely to establish an affirmative defense, negate an
element of a crime charged, or impeach the testimony of a prosecution
witness or the statement of a declarant testified to by a
prosecution witness.
(b) It is the purpose of a preliminary examination to establish
whether there exists probable cause to believe that the defendant has
committed a felony. The examination shall not be used for purposes
of discovery.
(c) This section shall not be construed to compel or authorize the
taking of depositions of witnesses.
866.5. The defendant may not be examined at the examination, unless
he is represented by counsel, or unless he waives his right to
counsel after being advised at such examination of his right to aid
of counsel.
867. While a witness is under examination, the magistrate shall,
upon motion of either party, exclude all potential and actual witness
who have not been examined.
The magistrate shall also order the witnesses not to converse with
each other until they are all examined. The magistrate may also
order, where feasible, that the witnesses be kept separated from each
other until they are all examined.
This section does not apply to the investigating officer or the
investigator for the defendant, nor does it apply to officers having
custody of persons brought before the magistrate.
Either party may challenge the exclusion of any person under this
section. Upon motion of either party, the magistrate shall hold a
hearing, on the record, to determine if the person sought to be
excluded is, in fact, a person excludable under this section.
868. The examination shall be open and public. However, upon the
request of the defendant and a finding by the magistrate that
exclusion of the public is necessary in order to protect the
defendant's right to a fair and impartial trial, the magistrate shall
exclude from the examination every person except the clerk, court
reporter and bailiff, the prosecutor and his or her counsel, the
Attorney General, the district attorney of the county, the
investigating officer, the officer having custody of a prisoner
witness while the prisoner is testifying, the defendant and his or
her counsel, the officer having the defendant in custody, and a
person chosen by the prosecuting witness who is not himself or
herself a witness but who is present to provide the prosecuting
witness moral support, provided that the person so chosen shall not
discuss prior to or during the preliminary examination the testimony
of the prosecuting witness with any person, other than the
prosecuting witness, who is a witness in the examination. Upon
motion of the prosecution, members of the alleged victim's family
shall be entitled to be present and seated during the examination.
The court shall grant the motion unless the magistrate finds that the
exclusion is necessary to protect the defendant's right to a fair
and impartial trial, or unless information provided by the defendant
or noticed by the court establishes that there is a reasonable
likelihood that the attendance of members of the alleged victim's
family poses a risk of affecting the content of the testimony of the
victim or any other witness. The court shall admonish members of the
alleged victim's family who are present and seated during the
examination not to discuss any testimony with family members,
witnesses, or the public. Nothing in this section shall affect the
exclusion of witnesses as provided in Section 867 of the Penal Code.
For purposes of this section, members of the alleged victim's
family shall include the alleged victim's spouse, parents, legal
guardian, children, or siblings.
868.5. (a) Notwithstanding any other law, a prosecuting witness in
a case involving a violation of Section 187, 203, 205, 207, 211, 215,
220, 240, 242, 243.4, 245, 261, 262, 273a, 273d, 273.5, 273.6, 278,
278.5, 285, 286, 288, 288a, 288.5, 289, or 647.6, or former Section
277 or 647a, or a violation of subdivision (1) of Section 314, shall
be entitled, for support, to the attendance of up to two persons of
his or her own choosing, one of whom may be a witness, at the
preliminary hearing and at the trial, or at a juvenile court
proceeding, during the testimony of the prosecuting witness. Only
one of those support persons may accompany the witness to the witness
stand, although the other may remain in the courtroom during the
witness' testimony. The person or persons so chosen shall not be a
person described in Section 1070 of the Evidence Code unless the
person or persons are related to the prosecuting witness as a parent,
guardian, or sibling and do not make notes during the hearing or
proceeding.
(b) If the person or persons so chosen are also prosecuting
witnesses, the prosecution shall present evidence that the person's
attendance is both desired by the prosecuting witness for support and
will be helpful to the prosecuting witness. Upon that showing, the
court shall grant the request unless information presented by the
defendant or noticed by the court establishes that the support person'
s attendance during the testimony of the prosecuting witness would
pose a substantial risk of influencing or affecting the content of
that testimony. In the case of a juvenile court proceeding, the
judge shall inform the support person or persons that juvenile court
proceedings are confidential and may not be discussed with anyone not
in attendance at the proceedings. In all cases, the judge shall
admonish the support person or persons to not prompt, sway, or
influence the witness in any way. Nothing in this section shall
preclude a court from exercising its discretion to remove a person
from the courtroom whom it believes is prompting, swaying, or
influencing the witness.
(c) The testimony of the person or persons so chosen who are also
prosecuting witnesses shall be presented before the testimony of the
prosecuting witness. The prosecuting witness shall be excluded from
the courtroom during that testimony. Whenever the evidence given by
that person or those persons would be subject to exclusion because it
has been given before the corpus delicti has been established, the
evidence shall be admitted subject to the court's or the defendant's
motion to strike that evidence from the record if the corpus delicti
is not later established by the testimony of the prosecuting witness.
868.6. (a) It is the purpose of this section to provide a
nonthreatening environment for minors involved in the judicial system
in order to better enable them to speak freely and accurately of the
experiences that are the subject of judicial inquiry.
(b) Each county is encouraged to provide a room, located within,
or within a reasonable distance from, the courthouse, for the use of
minors under the age of 16. Should any such room reach full
occupancy, preference shall be given to minors under the age of 16
whose appearance has been subpoenaed by the court. The room may be
multipurpose in character. The county may seek the assistance of
civic groups in the furnishing of the room and the provision of
volunteers to aid in its operation and maintenance. If a county
newly constructs, substantially remodels or refurbishes any
courthouse or facility used as a courthouse on or after January 1,
1988, that courthouse or facility shall contain the room described in
this subdivision.
868.7. (a) Notwithstanding any other provision of law, the
magistrate may, upon motion of the prosecutor, close the examination
in the manner described in Section 868 during the testimony of a
witness:
(1) Who is a minor or a dependent person with a substantial
cognitive impairment, as defined in paragraph (3) of subdivision (f)
of Section 288, and is the complaining victim of a *** offense,
where testimony before the general public would be likely to cause
serious psychological harm to the witness and where no alternative
procedures, including, but not limited to, videotaped deposition or
contemporaneous examination in another place communicated to the
courtroom by means of closed-circuit television, are available to
avoid the perceived harm.
(2) Whose life would be subject to a substantial risk in appearing
before the general public, and where no alternative security
measures, including, but not limited to, efforts to conceal his or
her features or physical description, searches of members of the
public attending the examination, or the temporary exclusion of other
actual or potential witnesses, would be adequate to minimize the
perceived threat.
(b) In any case where public access to the courtroom is restricted
during the examination of a witness pursuant to this section, a
transcript of the testimony of the witness shall be made available to
the public as soon as is practicable.
This section shall become operative on January 1, 1987.
868.8. Notwithstanding any other provision of law, in any criminal
proceeding in which the defendant is charged with a violation of
Section 243.4, 261, 273a, 273d, 285, 286, 288, 288a, 288.5, or 289,
subdivision (1) of Section 314, Section 647.6, or former Section
647a, or any crime that constitutes domestic violence defined in
Section 13700, committed with or upon a person with a disability or a
minor under the age of 11, the court shall take special precautions
to provide for the comfort and support of the person with a
disability or minor and to protect him or her from coercion,
intimidation, or undue influence as a witness, including, but not
limited to, any of the following:
(a) In the court's discretion, the witness may be allowed
reasonable periods of relief from examination and cross-examination
during which he or she may retire from the courtroom. The judge may
also allow other witnesses in the proceeding to be examined when the
person with a disability or child witness retires from the courtroom.
(b) Notwithstanding Section 68110 of the Government Code, in his
or her discretion, the judge may remove his or her robe if the judge
believes that this formal attire intimidates the person with a
disability or the minor.
(c) In the court's discretion the judge, parties, witnesses,
support persons, and court personnel may be relocated within the
courtroom to facilitate a more comfortable and personal environment
for the person with a disability or child witness.
(d) In the court's discretion, the taking of the testimony of the
person with a disability or the minor may be limited to normal school
hours if there is no good cause to take the testimony of the person
with a disability or the minor during other hours.
(e) For the purposes of this section, the term "disability" is
defined in subdivision (i) of Section 12926 of the Government Code.
869. The testimony of each witness in cases of homicide shall be
reduced to writing, as a deposition, by the magistrate, or under his
or her direction, and in other cases upon the demand of the
prosecuting attorney, or the defendant, or his or her counsel. The
magistrate before whom the examination is had may, in his or her
discretion, order the testimony and proceedings to be taken down in
shorthand in all examinations herein mentioned, and for that purpose
he or she may appoint a shorthand reporter. The deposition or
testimony of the witness shall be authenticated in the following
form:
(a) It shall state the name of the witness, his or her place of
residence, and his or her business or profession; except that if the
witness is a peace officer, it shall state his or her name, and the
address given in his or her testimony at the hearing.
(b) It shall contain the questions put to the witness and his or
her answers thereto, each answer being distinctly read to him or her
as it is taken down, and being corrected or added to until it
conforms to what he or she declares is the truth, except in cases
where the testimony is taken down in shorthand, the answer or answers
of the witness need not be read to him or her.
(c) If a question put be objected to on either side and overruled,
or the witness declines answering it, that fact, with the ground on
which the question was overruled or the answer declined, shall be
stated.
(d) The deposition shall be signed by the witness, or if he or she
refuses to sign it, his or her reason for refusing shall be stated
in writing, as he or she gives it, except in cases where the
deposition is taken down in shorthand, it need not be signed by the
witness.
(e) The reporter shall, within 10 days after the close of the
examination, if the defendant be held to answer the charge of a
felony, or in any other case if either the defendant or the
prosecution orders the transcript, transcribe his or her shorthand
notes, making an original and one copy and as many additional copies
thereof as there are defendants (other than fictitious defendants),
regardless of the number of charges or fictitious defendants included
in the same examination, and certify and deliver the original and
all copies to the clerk of the superior court in the county in which
the defendant was examined. The reporter shall, before receiving any
compensation as a reporter, file his or her affidavit setting forth
that the transcript has been delivered within the time herein
provided for. The compensation of the reporter for any services
rendered by him or her as the reporter in any court of this state
shall be reduced one-half if the provisions of this section as to the
time of filing said transcript have not been complied with by him or
her.
(f) In every case in which a transcript is delivered as provided
in this section, the clerk of the court shall file the original of
the transcript with the papers in the case, and shall deliver a copy
of the transcript to the district attorney immediately upon his or
her receipt thereof and shall deliver a copy of said transcript to
each defendant (other than a fictitious defendant) at least five days
before trial or upon earlier demand by him or her without cost to
him or her; provided, that if any defendant be held to answer to two
or more charges upon the same examination and thereafter the district
attorney shall file separate informations upon said several charges,
the delivery to each such defendant of one copy of the transcript of
the examination shall be a compliance with this section as to all of
those informations.
(g) If the transcript is delivered by the reporter within the time
hereinbefore provided for, the reporter shall be entitled to receive
the compensation fixed and allowed by law to reporters in the
superior courts of this state.
870. The magistrate or his or her clerk shall keep the depositions
taken on the information or the examination, until they are returned
to the proper court; and shall not permit them to be examined or
copied by any person except a judge of a court having jurisdiction of
the offense, or authorized to issue writs of habeas corpus, the
Attorney General, district attorney, or other prosecuting attorney,
and the defendant and his or her counsel; provided however, upon
demand by the defendant or his or her attorney the magistrate shall
order a transcript of the depositions taken on the information, or on
the examination, to be immediately furnished the defendant or his or
her attorney, after the commitment of the defendant as provided by
Sections 876 and 877, and the reporter furnishing the depositions,
shall receive compensation in accordance with Section 869.
871. If, after hearing the proofs, it appears either that no public
offense has been committed or that there is not sufficient cause to
believe the defendant guilty of a public offense, the magistrate
shall order the complaint dismissed and the defendant to be
discharged, by an indorsement on the depositions and statement,
signed by the magistrate, to the following effect: "There being no
sufficient cause to believe the within named A. B. guilty of the
offense within mentioned, I order that the complaint be dismissed and
that he or she shall be discharged."
871.5. (a) When an action is dismissed by a magistrate pursuant to
Section 859b, 861, 871, 1008, 1381, 1381.5, 1385, 1387, or 1389 of
this code or Section 41403 of the Vehicle Code, or a portion thereof
is dismissed pursuant to those same sections which may not be charged
by information under Section 739, the prosecutor may make a motion
in the superior court within 15 days to compel the magistrate to
reinstate the complaint or a portion thereof and to reinstate the
custodial status of the defendant under the same terms and conditions
as when the defendant last appeared before the magistrate.
(b) Notice of the motion shall be made to the defendant and the
magistrate. The only ground for the motion shall be that, as a
matter of law, the magistrate erroneously dismissed the action or a
portion thereof.
(c) The superior court shall hear and determine the motion on the
basis of the record of the proceedings before the magistrate. If the
motion is litigated to decision by the prosecutor, the prosecution
is prohibited from refiling the dismissed action, or portion thereof.
(d) Within 10 days after the magistrate has dismissed the action
or a portion thereof, the prosecuting attorney may file a written
request for a transcript of the proceedings with the clerk of the
magistrate. The reporter shall immediately transcribe his or her
shorthand notes pursuant to Section 869 and file with the clerk of
the superior court an original plus one copy, and as many copies as
there are defendants (other than a fictitious defendant). The
reporter shall be entitled to compensation in accordance with Section
869. The clerk of the superior court shall deliver a copy of the
transcript to the prosecuting attorney immediately upon its receipt
and shall deliver a copy of the transcript to each defendant (other
than a fictitious defendant) upon his or her demand without cost.
(e) When a court has ordered the resumption of proceedings before
the magistrate, the magistrate shall resume the proceedings and when
so ordered, issue an order of commitment for the reinstated offense
or offenses within 10 days after the superior court has entered an
order to that effect or within 10 days after the remittitur is filed
in the superior court. Upon receipt of the remittitur, the superior
court shall forward a copy to the magistrate.
(f) Pursuant to paragraph (9) of subdivision (a) of Section 1238
the people may take an appeal from the denial of the motion by the
superior court to reinstate the complaint or a portion thereof. If
the motion to reinstate the complaint is granted, the defendant may
seek review thereof only pursuant to Sections 995 and 999a. That
review may only be sought in the event the defendant is held to
answer pursuant to Section 872.
(g) Nothing contained herein shall preclude a magistrate, upon the
resumption of proceedings, from considering a motion made pursuant
to Section 1318.
If the superior court grants the motion for reinstatement and
orders the magistrate to issue an order of commitment, the defendant,
in lieu of resumed proceedings before the magistrate, may elect to
waive his or her right to be committed by a magistrate, and consent
to the filing of an amended or initial information containing the
reinstated charge or charges. After arraignment thereon, he or she
may adopt as a motion pursuant to Section 995, the record and
proceedings of the motion taken pursuant to this section and the
order issued pursuant thereto, and may seek review of the order in
the manner prescribed in Section 999a.
871.6. If in a felony case the magistrate sets the preliminary
examination beyond the time specified in Section 859b, in violation
of Section 859b, or continues the preliminary hearing without good
cause and good cause is required by law for such a continuance, the
people or the defendant may file a petition for writ of mandate or
prohibition in the superior court seeking immediate appellate review
of the ruling setting the hearing or granting the continuance. Such
a petition shall have precedence over all other cases in the court to
which the petition is assigned. If the superior court grants a
peremptory writ, it shall issue the writ and a remittitur three court
days after its decision becomes final as to the court if this action
is necessary to prevent mootness or to prevent frustration of the
relief granted, notwithstanding the rights of the parties to seek
review in a court of appeal. When the superior court issues the writ
and remittitur as provided in this section, the writ shall command
the magistrate to proceed with the preliminary hearing without
further delay, other than that reasonably necessary for the parties
to obtain the attendance of their witnesses.
The court of appeal may stay or recall the issuance of the writ
and remittitur. The failure of the court of appeal to stay or recall
the issuance of the writ and remittitur shall not deprive the
parties of any right they would otherwise have to appellate review or
extraordinary relief.
872. (a) If, however, it appears from the examination that a public
offense has been committed, and there is sufficient cause to believe
that the defendant is guilty, the magistrate shall make or indorse
on the complaint an order, signed by him or her, to the following
effect: "It appearing to me that the offense in the within complaint
mentioned (or any offense, according to the fact, stating generally
the nature thereof), has been committed, and that there is sufficient
cause to believe that the within named A.B. is guilty, I order that
he or she be held to answer to the same."
(b) Notwithstanding Section 1200 of the Evidence Code, the finding
of probable cause may be based in whole or in part upon the sworn
testimony of a law enforcement officer or honorably retired law
enforcement officer relating the statements of declarants made out of
court offered for the truth of the matter asserted. An honorably
retired law enforcement officer may only relate statements of
declarants made out of court and offered for the truth of the matter
asserted that were made when the honorably retired officer was an
active law enforcement officer. Any law enforcement officer or
honorably retired law enforcement officer testifying as to hearsay
statements shall either have five years of law enforcement experience
or have completed a training course certified by the Commission on
Peace Officer Standards and Training that includes training in the
investigation and reporting of cases and testifying at preliminary
hearings.
872.5. Notwithstanding Article 1 (commencing with Section 1520) of
Chapter 2 of Division 11 of the Evidence Code, in a preliminary
examination the content of a writing may be proved by an otherwise
admissible original or otherwise admissible secondary evidence.
873. If the offense is not bailable, the following words must be
added to the indorsement: "And he is hereby committed to the Sheriff
of the County of ____. "
875. If the offense is bailable, and the defendant is admitted to
bail, the following words must be added to the order, "and that he be
admitted to bail in the sum of ____ dollars, and is committed to the
Sheriff of the County of ____ until he gives such bail."
876. If the magistrate order the defendant to be committed, he must
make out a commitment, signed by him, with his name of office, and
deliver it, with the defendant, to the officer to whom he is
committed, or, if that officer is not present, to a peace officer,
who must deliver the defendant into the proper custody, together with
the commitment.
877. The commitment must be to the following effect except when it
is made under the provisions of section 859a of this code.
County of ____ (as the case may be).
The people of the State of California to the sheriff of the county
of ____:
An order having been this day made by me, that A.B. be held to
answer upon a charge of (stating briefly the nature of the offense,
and giving as near as may be the time when and the place where the
same was committed), you are commanded to receive him into your
custody and detain him until he is legally discharged.
Dated this ____ day of ____ nineteen ____.
877a. When the commitment is made under the provisions of section
859a of this code, it must be made to the following effect:
County of ____ (as the case may be).
The people of the State of California to the sheriff of the county
of ____.
A.B. having pleaded guilty to the offense of (stating briefly the
nature of the offense, and giving as near as may be the time when and
the place where the same was committed), you are commanded to
receive him into your custody and detain him until he is legally
discharged.
Dated this ____ day of ____ nineteen ____.
878. On holding the defendant to answer or on a plea of guilty
where permitted by law, the magistrate may take from each of the
material witnesses examined before him on the part of the people a
written undertaking, to the effect that he will appear and testify at
the court to which the depositions and statements or case are to be
sent, or that he will forfeit the sum of five hundred dollars.
879. When the magistrate or a Judge of the Court in which the
action is pending is satisfied, by proof on oath, that there is
reason to believe that any such witness will not appear and testify
unless security is required, he may order the witness to enter into a
written undertaking, with sureties, in such sum as he may deem
proper, for his appearance as specified in the preceding section.
880. Infants who are material witnesses against the defendant may
be required to procure sureties for their appearance, as provided in
the last section.
881. (a) If a witness, required to enter into an undertaking to
appear and testify, either with or without sureties, refuses
compliance with the order for that purpose, the magistrate shall
commit him or her to prison until he or she complies or is legally
discharged.
(b) If a witness fails to appear at the preliminary hearing in
response to a subpoena, the court may hear evidence, including
testimony or an affidavit from the arresting or interviewing officer,
and if the court determines on the basis of the evidence that the
witness is a material witness, the court shall issue a bench warrant
for the arrest of the witness, and upon the appearance of the
witness, may commit him or her into custody until the conclusion of
the preliminary hearing, or until the defendant enters a plea of nolo
contendere, or the witness is otherwise legally discharged.
The court may order the witness to enter into a written
undertaking to the effect that he or she will appear and testify at
the time and place ordered by the court or that he or she will
forfeit an amount that the court deems proper.
(c) Once the material witness has been taken into custody on the
bench warrant he or she shall be brought before the magistrate
issuing the warrant, if available, within two court days for a
hearing to determine if the witness should be released on security of
appearance or maintained in custody.
(d) A material witness shall remain in custody under this section
for no longer than 10 days.
(e) If a material witness is being held in custody under this
section the prosecution is entitled to have the preliminary hearing
proceed, as to this witness only, within 10 days of the arraignment
of the defendant. Once this material witness has completed his or
her testimony the defendant shall be entitled to a reasonable
continuance.
882. When, however, it satisfactorily appears by examination, on
oath of the witness, or any other person, that the witness is unable
to procure sureties, he or she may be forthwith conditionally
examined on behalf of the people. The examination shall be by
question and answer, in the presence of the defendant, or after
notice to him or her, if on bail, and conducted in the same manner as
the examination before a committing magistrate is required by this
code to be conducted, and the witness thereupon discharged; and the
deposition may be used upon the trial of the defendant, except in
cases of homicide, under the same conditions as mentioned in Section
1345; but this section does not apply to an accomplice in the
commission of the offense charged.
883. When a magistrate has discharged a defendant, or has held him
to answer, he must return, without delay, to the Clerk of the Court
at which the defendant is required to appear, the warrant, if any,
the depositions, and all undertakings of bail, or for the appearance
of witnesses taken by him.
[/align]
Listing and Selection of Grand Jurors
[align=left]895. During the month preceding the beginning of the fiscal year of
the county, the superior court of each county shall make an order
designating the estimated number of grand jurors that will, in the
opinion of the court, be required for the transaction of the business
of the court during the ensuing fiscal year as provided in Section
905.5.
896. (a) Immediately after an order is made pursuant to Section
895, the court shall select the grand jurors required by personal
interview for the purpose of ascertaining whether they possess the
qualifications prescribed by subdivision (a) of Section 893. If a
person so interviewed, in the opinion of the court, possesses the
necessary qualifications, in order to be listed the person shall sign
a statement declaring that the person will be available for jury
service for the number of hours usually required of a member of the
grand jury in that county.
(b) The selections shall be made of men and women who are not
exempt from serving and who are suitable and competent to serve as
grand jurors pursuant to Sections 893, 898, and 899. The court shall
list the persons so selected and required by the order to serve as
grand jurors during the ensuing fiscal year of the county, or until a
new list of grand jurors is provided, and shall at once place this
list in the possession of the jury commissioner.
898. The list of grand jurors made in a county having a population
in excess of four million shall contain the number of persons which
has been designated by the court in its order.
899. The names for the grand jury list shall be selected from the
different wards, judicial districts, or supervisorial districts of
the respective counties in proportion to the number of inhabitants
therein, as nearly as the same can be estimated by the persons making
the lists. The grand jury list shall be kept separate and distinct
from the trial jury list. In a county of the first class, the names
for such list may be selected from the county at large.
900. On receiving the list of persons selected by the court, the
jury commissioner shall file it in the jury commissioner's office and
have the list, which shall include the name of the judge who
selected each person on the list, published one time in a newspaper
of general circulation, as defined in Section 6000 of the Government
Code, in the county. The jury commissioner shall then do either of
the following:
(a) Write down the names on the list onto separate pieces of paper
of the same size and appearance, fold each piece so as to conceal
the name, and deposit the pieces in a box to be called the "grand
jury box."
(b) Assign a number to each name on the list and place, in a box
to be called the "grand jury box," markers of the same size, shape,
and color, each containing a number which corresponds with a number
on the list.
901. (a) The persons whose names are so returned shall be known as
regular jurors, and shall serve for one year and until other persons
are selected and returned.
(b) If the superior court so decides, the presiding judge may name
up to 10 regular jurors not previously so named, who served on the
previous grand jury and who so consent, to serve for a second year.
(c) The court may also decide to select grand jurors pursuant to
Section 908.2.
902. The names of persons drawn for grand jurors shall be drawn
from the grand jury box by withdrawing either the pieces of paper
placed therein pursuant to subdivision (a) of Section 900 or the
markers placed therein pursuant to subdivision (b) of Section 900.
If, at the end of the fiscal year of the county, there are the names
of persons in the grand jury box who have not been drawn during the
fiscal year to serve and have not served as grand jurors, the names
of such persons may be placed on the list of grand jurors drawn for
the succeeding fiscal year.[/align]
Powers and duties of grand jury
[align=left]
General Provisions
914. (a) When the grand jury is impaneled and sworn, it shall be
charged by the court. In doing so, the court shall give the grand
jurors such information as it deems proper, or as is required by law,
as to their duties, and as to any charges for public offenses
returned to the court or likely to come before the grand jury.
(b) To assist a grand jury in the performance of its statutory
duties regarding civil matters, the court, in consultation with the
district attorney, the county counsel, and at least one former grand
juror, shall ensure that a grand jury that considers or takes action
on civil matters receives training that addresses, at a minimum,
report writing, interviews, and the scope of the grand jury's
responsibility and statutory authority.
(c) Any costs incurred by the court as a result of this section
shall be absorbed by the court or the county from existing resources.
914.1. When a grand jury is impaneled, for purposes which include
the investigation of, or inquiry into, county matters of civil
concern, the judge of the superior court of the county, in addition
to other matters requiring action, shall call its attention to the
provisions of Chapter 1 (commencing with Section 23000) of Division 1
of Title 3, and Sections 24054 and 26525 of the Government Code, and
instruct it to ascertain by a careful and diligent investigation
whether such provisions have been complied with, and to note the
result of such investigation in its report. At such time the judge
shall also inform and charge the grand jury especially as to its
powers, duties, and responsibilities under Article 1 (commencing with
Section 888) of Chapter 2, and Article 2 (commencing with Section
925), Article 3 (commencing with Section 934) of this chapter,
Article 3 (commencing with Section 3060) of Chapter 7 of Division 4
of Title 1 of the Government Code, and Section 17006 of the Welfare
and Institutions Code.
914.5. The grand jury shall not spend money or incur obligations in
excess of the amount budgeted for its investigative activities
pursuant to this chapter by the county board of supervisors unless
the proposed expenditure is approved in advance by the presiding
judge of the superior court after the board of supervisors has been
advised of the request.
915. When the grand jury has been impaneled, sworn, and charged, it
shall retire to a private room, except when operating under a
finding pursuant to Section 939.1, and inquire into the offenses and
matters of civil concern cognizable by it. On the completion of the
business before the grand jury or expiration of the term of
prescribed service of one or more grand jurors, the court shall
discharge it or the affected individual jurors.
916. Each grand jury shall choose its officers, except the foreman,
and shall determine its rules of proceeding. Adoption of its rules
of procedure and all public actions of the grand jury, whether
concerning criminal or civil matters unless otherwise prescribed in
law, including adoption of final reports, shall be only with the
concurrence of that number of grand jurors necessary to find an
indictment pursuant to Section 940. Rules of procedure shall include
guidelines for that grand jury to ensure that all findings included
in its final reports are supported by documented evidence, including
reports of contract auditors or consultants, official records, or
interviews attended by no fewer than two grand jurors and that all
problems identified in a final report are accompanied by suggested
means for their resolution, including financial, when applicable.
916.1. If the foreman of a grand jury is absent from any meeting or
if he is disqualified to act, the grand jury may select a member of
that body to act as foreman pro tempore, who shall perform the
duties, and have all the powers, of the regularly appointed foreman
in his absence or disqualification.
917. The grand jury may inquire into all public offenses committed
or triable within the county and present them to the court by
indictment.
918. If a member of a grand jury knows, or has reason to believe,
that a public offense, triable within the county, has been committed,
he may declare it to his fellow jurors, who may thereupon
investigate it.
919. (a) The grand jury may inquire into the case of every person
imprisoned in the jail of the county on a criminal charge and not
indicted.
(b) The grand jury shall inquire into the condition and management
of the public prisons within the county.
(c) The grand jury shall inquire into the willful or corrupt
misconduct in office of public officers of every description within
the county.
920. The grand jury may investigate and inquire into all sales and
transfers of land, and into the ownership of land, which, under the
state laws, might or should escheat to the State of California. For
this purpose, the grand jury may summon witnesses before it and
examine them and the records. The grand jury shall direct that
proper escheat proceedings be commenced when, in the opinion of the
grand jury, the evidence justifies such proceedings.
921. The grand jury is entitled to free access, at all reasonable
times, to the public prisons, and to the examination, without charge,
of all public records within the county.
922. The powers and duties of the grand jury in connection with
proceedings for the removal of district, county, or city officers are
prescribed in Article 3 (commencing with Section 3060), Chapter 7,
Division 4, Title 1, of the Government Code.
923. (a) Whenever the Attorney General considers that the public
interest requires, he or she may, with or without the concurrence of
the district attorney, direct the grand jury to convene for the
investigation and consideration of those matters of a criminal nature
that he or she desires to submit to it. He or she may take full
charge of the presentation of the matters to the grand jury, issue
subpoenas, prepare indictments, and do all other things incident
thereto to the same extent as the district attorney may do.
(b) Whenever the Attorney General considers that the public
interest requires, he or she may, with or without the concurrence of
the district attorney, petition the court to impanel a special grand
jury to investigate, consider, or issue indictments for any of the
activities subject to fine, imprisonment, or asset forfeiture under
Section 14107 of the Welfare and Institutions Code. He or she may
take full charge of the presentation of the matters to the grand
jury, issue subpoenas, prepare indictments, and do all other things
incident thereto to the same extent as the district attorney may do.
If the evidence presented to the grand jury shows the commission of
an offense or offenses for which jurisdiction would be in a county
other than the county where the grand jury is impaneled, the Attorney
General, with or without the concurrence of the district attorney in
the county with jurisdiction over the offense or offenses, may
petition the court to impanel a special grand jury in that county.
Notwithstanding any other provision of law, upon request of the
Attorney General, a grand jury convened by the Attorney General
pursuant to this subdivision may submit confidential information
obtained by that grand jury, including, but not limited to documents
and testimony, to a second grand jury that has been impaneled at the
request of the Attorney General pursuant to this subdivision in any
other county where venue for an offense or offenses shown by evidence
presented to the first grand jury is proper. All confidentiality
provisions governing information, testimony, and evidence presented
to a grand jury shall be applicable except as expressly permitted by
this subdivision. The Attorney General shall inform the grand jury
that transmits confidential information and the grand jury that
receives confidential information of any exculpatory evidence, as
required by Section 939.71. The grand jury that transmits
information to another grand jury shall include the exculpatory
evidence disclosed by the Attorney General in the transmission of the
confidential information. The Attorney General shall inform both
the grand jury transmitting the confidential information and the
grand jury receiving that information of their duties under Section
939.7. A special grand jury convened pursuant to this subdivision
shall be in addition to the other grand juries authorized by this
chapter or Chapter 2 (commencing with Section 893).
(c) Upon certification by the Attorney General, a statement of the
costs directly related to the impanelment and activities of the
grand jury pursuant to subdivision (b) from the presiding judge of
the superior court where the grand jury was impaneled shall be
submitted for state reimbursement of the costs to the county.
924. Every grand juror who willfully discloses the fact of an
information or indictment having been made for a felony, until the
defendant has been arrested, is guilty of a misdemeanor.
924.1. (a) Every grand juror who, except when required by a court,
willfully discloses any evidence adduced before the grand jury, or
anything which he himself or any other member of the grand jury has
said, or in what manner he or she or any other grand juror has voted
on a matter before them, is guilty of a misdemeanor.
(b) Every interpreter for the disabled appointed to assist a
member of the grand jury pursuant to Section 939.11 who, except when
required by a court, willfully discloses any evidence adduced before
the grand jury, or anything which he or she or any member of the
grand jury has said, or in what manner any grand juror has voted on a
matter before them, is guilty of a misdemeanor.
924.2. Each grand juror shall keep secret whatever he himself or
any other grand juror has said, or in what manner he or any other
grand juror has voted on a matter before them. Any court may require
a grand juror to disclose the testimony of a witness examined before
the grand jury, for the purpose of ascertaining whether it is
consistent with that given by the witness before the court, or to
disclose the testimony given before the grand jury by any person,
upon a charge against such person for perjury in giving his testimony
or upon trial therefor.
924.3. A grand juror cannot be questioned for anything he may say
or any vote he may give in the grand jury relative to a matter
legally pending before the jury, except for a perjury of which he may
have been guilty in making an accusation or giving testimony to his
fellow jurors.
924.4. Notwithstanding the provisions of Sections 924.1 and 924.2,
any grand jury or, if the grand jury is no longer impaneled, the
presiding judge of the superior court, may pass on and provide the
succeeding grand jury with any records, information, or evidence
acquired by the grand jury during the course of any investigation
conducted by it during its term of service, except any information or
evidence that relates to a criminal investigation or that could form
part or all of the basis for issuance of an indictment. Transcripts
of testimony reported during any session of the grand jury shall be
made available to the succeeding grand jury upon its request.
924.6. If no indictment is returned, the court that impaneled the
grand jury shall, upon application of either party, order disclosure
of all or part of the testimony of a witness before the grand jury to
a defendant and the prosecutor in connection with any pending or
subsequent criminal prodeeding before any court if the court finds
following an in camera hearing, which shall include the court's
review of the grand jury's testimony, that the testimony is relevant,
and appears to be admissible.
[/align]
Investigation of County, City, and District Affairs
[align=left]
925. The grand jury shall investigate and report on the operations,
accounts, and records of the officers, departments, or functions of
the county including those operations, accounts, and records of any
special legislative district or other district in the county created
pursuant to state law for which the officers of the county are
serving in their ex officio capacity as officers of the districts.
The investigations may be conducted on some selective basis each
year, but the grand jury shall not duplicate any examination of
financial statements which has been performed by or for the board of
supervisors pursuant to Section 25250 of the Government Code; this
provision shall not be construed to limit the power of the grand jury
to investigate and report on the operations, accounts, and records
of the officers, departments, or functions of the county. The grand
jury may enter into a joint contract with the board of supervisors to
employ the services of an expert as provided for in Section 926.
925a. The grand jury may at any time examine the books and records
of any incorporated city or joint powers agency located in the
county. In addition to any other investigatory powers granted by
this chapter, the grand jury may investigate and report upon the
operations, accounts, and records of the officers, departments,
functions, and the method or system of performing the duties of any
such city or joint powers agency and make such recommendations as it
may deem proper and fit.
The grand jury may investigate and report upon the needs of all
joint powers agencies in the county, including the abolition or
creation of agencies and the equipment for, or the method or system
of performing the duties of, the several agencies. It shall cause a
copy of any such report to be transmitted to the governing body of
any affected agency.
As used in this section, "joint powers agency" means an agency
described in Section 6506 of the Government Code whose jurisdiction
encompasses all or part of a county.
926. (a) If, in the judgment of the grand jury, the services of one
or more experts are necessary for the purposes of Sections 925,
925a, 928, 933.1, and 933.5 or any of them, the grand jury may employ
one or more experts, at an agreed compensation, to be first approved
by the court. If, in the judgment of the grand jury, the services
of assistants to such experts are required, the grand jury may employ
such assistants, at a compensation to be agreed upon and approved by
the court. Expenditures for the services of experts and assistants
for the purposes of Section 933.5 shall not exceed the sum of thirty
thousand dollars ($30,000) annually, unless such expenditures shall
also be approved by the board of supervisors.
(b) When making an examination of the books, records, accounts,
and documents maintained and processed by the county assessor, the
grand jury, with the consent of the board of supervisors, may employ
expert auditors or appraisers to assist in the examination. Auditors
and appraisers, while performing pursuant to the directive of the
grand jury, shall have access to all records and documents that may
be inspected by the grand jury subject to the same limitations on
public disclosure as apply to the grand jury.
(c) Any contract entered into by a grand jury pursuant to this
section may include services to be performed after the discharge of
the jury, but in no event may a jury contract for services to be
performed later than six months after the end of the fiscal year
during which the jury was impaneled.
(d) Any contract entered into by a grand jury pursuant to this
section shall stipulate that the product of that contract shall be
delivered on or before a time certain to the then-current grand jury
of that county for such use as that jury finds appropriate to its
adopted objectives.
927. A grand jury may, and when requested by the board of
supervisors shall, investigate and report upon the needs for increase
or decrease in salaries of the county-elected officials. A copy of
such report shall be transmitted to the board of supervisors.
928. Every grand jury may investigate and report upon the needs of
all county officers in the county, including the abolition or
creation of offices and the equipment for, or the method or system of
performing the duties of, the several offices. Such investigation
and report shall be conducted selectively each year. The grand jury
shall cause a copy of such report to be transmitted to each member of
the board of supervisors of the county.
929. As to any matter not subject to privilege, with the approval
of the presiding judge of the superior court or the judge appointed
by the presiding judge to supervise the grand jury, a grand jury may
make available to the public part or all of the evidentiary material,
findings, and other information relied upon by, or presented to, a
grand jury for its final report in any civil grand jury investigation
provided that the name of any person, or facts that lead to the
identity of any person who provided information to the grand jury,
shall not be released. Prior to granting approval pursuant to this
section, a judge may require the redaction or masking of any part of
the evidentiary material, findings, or other information to be
released to the public including, but not limited to, the identity of
witnesses and any testimony or materials of a defamatory or libelous
nature.
930. If any grand jury shall, in the report above mentioned,
comment upon any person or official who has not been indicted by such
grand jury such comments shall not be deemed to be privileged.
931. All expenses of the grand jurors incurred under this article
shall be paid by the treasurer of the county out of the general fund
of the county upon warrants drawn by the county auditor upon the
written order of the judge of the superior court of the county.
932. After investigating the books and accounts of the various
officials of the county, as provided in the foregoing sections of
this article, the grand jury may order the district attorney of the
county to institute suit to recover any money that, in the judgment
of the grand jury, may from any cause be due the county. The order
of the grand jury, certified by the foreman of the grand jury and
filed with the clerk of the superior court of the county, shall be
full authority for the district attorney to institute and maintain
any such suit.
933. (a) Each grand jury shall submit to the presiding judge of the
superior court a final report of its findings and recommendations
that pertain to county government matters during the fiscal or
calendar year. Final reports on any appropriate subject may be
submitted to the presiding judge of the superior court at any time
during the term of service of a grand jury. A final report may be
submitted for comment to responsible officers, agencies, or
departments, including the county board of supervisors, when
applicable, upon finding of the presiding judge that the report is in
compliance with this title. For 45 days after the end of the term,
the foreperson and his or her designees shall, upon reasonable
notice, be available to clarify the recommendations of the report.
(b) One copy of each final report, together with the responses
thereto, found to be in compliance with this title shall be placed on
file with the clerk of the court and remain on file in the office of
the clerk. The clerk shall immediately forward a true copy of the
report and the responses to the State Archivist who shall retain that
report and all responses in perpetuity.
(c) No later than 90 days after the grand jury submits a final
report on the operations of any public agency subject to its
reviewing authority, the governing body of the public agency shall
comment to the presiding judge of the superior court on the findings
and recommendations pertaining to matters under the control of the
governing body, and every elected county officer or agency head for
which the grand jury has responsibility pursuant to Section 914.1
shall comment within 60 days to the presiding judge of the superior
court, with an information copy sent to the board of supervisors, on
the findings and recommendations pertaining to matters under the
control of that county officer or agency head and any agency or
agencies which that officer or agency head supervises or controls.
In any city and county, the mayor shall also comment on the findings
and recommendations. All of these comments and reports shall
forthwith be submitted to the presiding judge of the superior court
who impaneled the grand jury. A copy of all responses to grand jury
reports shall be placed on file with the clerk of the public agency
and the office of the county clerk, or the mayor when applicable, and
shall remain on file in those offices. One copy shall be placed on
file with the applicable grand jury final report by, and in the
control of the currently impaneled grand jury, where it shall be
maintained for a minimum of five years.
(d) As used in this section "agency" includes a department.
933.05. (a) For purposes of subdivision (b) of Section 933, as to
each grand jury finding, the responding person or entity shall
indicate one of the following:
(1) The respondent agrees with the finding.
(2) The respondent disagrees wholly or partially with the finding,
in which case the response shall specify the portion of the finding
that is disputed and shall include an explanation of the reasons
therefor.
(b) For purposes of subdivision (b) of Section 933, as to each
grand jury recommendation, the responding person or entity shall
report one of the following actions:
(1) The recommendation has been implemented, with a summary
regarding the implemented action.
(2) The recommendation has not yet been implemented, but will be
implemented in the future, with a timeframe for implementation.
(3) The recommendation requires further analysis, with an
explanation and the scope and parameters of an analysis or study, and
a timeframe for the matter to be prepared for discussion by the
officer or head of the agency or department being investigated or
reviewed, including the governing body of the public agency when
applicable. This timeframe shall not exceed six months from the date
of publication of the grand jury report.
(4) The recommendation will not be implemented because it is not
warranted or is not reasonable, with an explanation therefor.
(c) However, if a finding or recommendation of the grand jury
addresses budgetary or personnel matters of a county agency or
department headed by an elected officer, both the agency or
department head and the board of supervisors shall respond if
requested by the grand jury, but the response of the board of
supervisors shall address only those budgetary or personnel matters
over which it has some decisionmaking authority. The response of the
elected agency or department head shall address all aspects of the
findings or recommendations affecting his or her agency or
department.
(d) A grand jury may request a subject person or entity to come
before the grand jury for the purpose of reading and discussing the
findings of the grand jury report that relates to that person or
entity in order to verify the accuracy of the findings prior to their
release.
(e) During an investigation, the grand jury shall meet with the
subject of that investigation regarding the investigation, unless the
court, either on its own determination or upon request of the
foreperson of the grand jury, determines that such a meeting would be
detrimental.
(f) A grand jury shall provide to the affected agency a copy of
the portion of the grand jury report relating to that person or
entity two working days prior to its public release and after the
approval of the presiding judge. No officer, agency, department, or
governing body of a public agency shall disclose any contents of the
report prior to the public release of the final report.
933.06. (a) Notwithstanding Sections 916 and 940, in a county
having a population of 20,000 or less, a final report may be adopted
and submitted pursuant to Section 933 with the concurrence of at
least 10 grand jurors if all of the following conditions are met:
(1) The grand jury consisting of 19 persons has been impaneled
pursuant to law, and the membership is reduced from 19 to fewer than
12.
(2) The vacancies have not been filled pursuant to Section 908.1
within 30 days from the time that the clerk of the superior court is
given written notice that the vacancy has occurred.
(3) A final report has not been submitted by the grand jury
pursuant to Section 933.
(b) Notwithstanding Section 933, no responsible officers,
agencies, or departments shall be required to comment on a final
report submitted pursuant to this section.
933.1. A grand jury may at any time examine the books and records
of a redevelopment agency, a housing authority, created pursuant to
Division 24 (commencing with Section 33000) of the Health and Safety
Code, or a joint powers agency created pursuant to Chapter 5
(commencing with Section 6500) of Division 7 of Title 1 of the
Government Code, and, in addition to any other investigatory powers
granted by this chapter, may investigate and report upon the method
or system of performing the duties of such agency or authority.
933.5. A grand jury may at any time examine the books and records
of any special-purpose assessing or taxing district located wholly or
partly in the county or the local agency formation commission in the
county, and, in addition to any other investigatory powers granted
by this chapter, may investigate and report upon the method or system
of performing the duties of such district or commission.
933.6. A grand jury may at any time examine the books and records
of any nonprofit corporation established by or operated on behalf of
a public entity the books and records of which it is authorized by
law to examine, and, in addition to any other investigatory powers
granted by this chapter, may investigate and report upon the method
or system of performing the duties of such nonprofit corporation.
[/align]
Legal and Other Assistants for Grand Juries
[align=left]934. (a) The grand jury may, at all times, request the advice of
the court, or the judge thereof, the district attorney, the county
counsel, or the Attorney General. Unless advice is requested, the
judge of the court, or county counsel as to civil matters, shall not
be present during the sessions of the grand jury.
(b) The Attorney General may grant or deny a request for advice
from the grand jury. If the Attorney General grants a request for
advice from the grand jury, the Attorney General shall fulfill that
request within existing financial and staffing resources.
935. The district attorney of the county may at all times appear
before the grand jury for the purpose of giving information or advice
relative to any matter cognizable by the grand jury, and may
interrogate witnesses before the grand jury whenever he thinks it
necessary. When a charge against or involving the district attorney,
or assistant district attorney, or deputy district attorney, or
anyone employed by or connected with the office of the district
attorney, is being investigated by the grand jury, such district
attorney, or assistant district attorney, or deputy district
attorney, or all or anyone or more of them, shall not be allowed to
be present before such grand jury when such charge is being
investigated, in an official capacity but only as a witness, and he
shall only be present while a witness and after his appearance as
such witness shall leave the place where the grand jury is holding
its session.
936. When requested so to do by the grand jury of any county, the
Attorney General may employ special counsel and special
investigators, whose duty it shall be to investigate and present the
evidence in such investigation to such grand jury.
The services of such special counsel and special investigators
shall be a county charge of such county.
936.5. (a) When requested to do so by the grand jury of any county,
the presiding judge of the superior court may employ special counsel
and special investigators, whose duty it shall be to investigate and
present the evidence of the investigation to the grand jury.
(b) Prior to the appointment, the presiding judge shall conduct an
evidentiary hearing and find that a conflict exists that would
prevent the local district attorney, the county counsel, and the
Attorney General from performing such investigation. Notice of the
hearing shall be given to each of them unless he or she is a subject
of the investigation. The finding of the presiding judge may be
appealed by the district attorney, the county counsel, or the
Attorney General. The order shall be stayed pending the appeal made
under this section.
(c) The authority to appoint is contingent upon the certification
by the auditor-comptroller of the county, that the grand jury has
funds appropriated to it sufficient to compensate the special counsel
and investigator for services rendered pursuant to the court order.
In the absence of a certification the court has no authority to
appoint. In the event the county board of supervisors or a member
thereof is under investigation, the county has an obligation to
appropriate the necessary funds.
936.7. (a) In a county of the eighth class, as defined by Sections
28020 and 28029 of the Government Code, upon a request by the grand
jury, the presiding judge of the superior court may retain, in the
name of the county, a special counsel to the grand jury. The request
shall be presented to the presiding judge in camera, by an
affidavit, executed by the foreperson of the grand jury, which
specifies the reason for the request and the nature of the services
sought, and which certifies that the appointment of the special
counsel is reasonably necessary to aid the work of the grand jury.
The affidavit shall be confidential and its contents may not be made
public except by order of the presiding judge upon a showing of good
cause. The special counsel shall be selected by the presiding judge
following submission of the name of the nominee to the board of
supervisors for comment.
The special counsel shall be retained under a contract executed by
the presiding judge in the name of the county. The contract shall
contain the following terms:
(1) The types of legal services to be rendered to the grand jury;
provided, (i) that the special counsel's duties shall not include any
legal advisory, investigative, or prosecutorial service which by
statute is vested within the powers of the district attorney, and
(ii) that the special counsel may not perform any investigative or
prosecutorial service whatsoever except upon advance written approval
by the presiding judge which specifies the number of hours of these
services, the hourly rate therefor, and the subject matter of the
inquiry.
(2) The hourly rate of compensation of the special counsel for
legal advisory services delivered, together with a maximum contract
amount payable for all services rendered under the contract during
the term thereof, and all service authorizations issued pursuant
thereto.
(3) That the contract may be canceled in advance of the expiration
of its term by the presiding judge pursuant to service upon the
special counsel of 10 days' advance written notice.
(b) The maximum contract amount shall be determined by the board
of supervisors and included in the grand jury's annual operational
budget. The maximum amount shall be subject to increase by the
presiding judge through contract amendment during the term thereof,
subject to and in compliance with the procedure prescribed by Section
914.5.
(c) The contract shall constitute a public record and shall be
subject to public inspection and copying pursuant to the provisions
of the California Public Records Act (Chapter 3.5 (commencing with
Section 6250) of Division 7 of Title 1 of the Government Code).
However, at the sole discretion of the board of supervisors, any or
all of the following steps may be taken:
(1) The nomination by the presiding judge, and any or all actions
by the board of supervisors in commenting upon the nominee and the
comments, may be made confidential.
(2) The deliberations and actions may be undertaken in meetings
from which the public is excluded, and the communication containing
comments may constitute a confidential record which is not subject to
public inspection or copying except at the sole discretion of the
board of supervisors. Moreover, any written authorization by the
presiding judge pursuant to paragraph (1) of subdivision (a) shall
constitute a confidential record which is not subject to public
inspection or copying except in connection with a dispute concerning
compensation for services rendered.
937. The grand jury or district attorney may require by subpoena
the attendance of any person before the grand jury as interpreter.
While his services are necessary, such interpreter may be present at
the examination of witnesses before the grand jury. The compensation
for services of such interpreter constitutes a charge against the
county, and shall be fixed by the grand jury.
938. (a) Whenever criminal causes are being investigated before the
grand jury, it shall appoint a competent stenographic reporter. He
shall be sworn and shall report in shorthand the testimony given in
such causes and shall transcribe the shorthand in all cases where an
indictment is returned or accusation presented.
(b) At the request of the grand jury, the reporter shall also
prepare transcripts of any testimony reported during any session of
the immediately preceding grand jury.
938.1. (a) If an indictment has been found or accusation presented
against a defendant, such stenographic reporter shall certify and
deliver to the clerk of the superior court in the county an original
transcription of the reporter's shorthand notes and a copy thereof
and as many additional copies as there are defendants, other than
fictitious defendants, regardless of the number of charges or
fictitious defendants included in the same investigation. The
reporter shall complete the certification and delivery within 10 days
after the indictment has been found or the accusation presented
unless the court for good cause makes an order extending the time.
The time shall not be extended more than 20 days. The clerk shall
file the original of the transcript, deliver a copy of the transcript
to the district attorney immediately upon receipt thereof and
deliver a copy of such transcript to each such defendant or the
defendant's attorney. If the copy of the testimony is not served as
provided in this section, the court shall on motion of the defendant
continue the trial to such time as may be necessary to secure to the
defendant receipt of a copy of such testimony 10 days before such
trial. If several criminal charges are investigated against a
defendant on one investigation and thereafter separate indictments
are returned or accusations presented upon said several charges, the
delivery to such defendant or the defendant's attorney of one copy of
the transcript of such investigation shall be a compliance with this
section as to all of such indictments or accusations.
(b) The transcript shall not be open to the public until 10 days
after its delivery to the defendant or the defendant's attorney.
Thereafter the transcript shall be open to the public unless the
court orders otherwise on its own motion or on motion of a party
pending a determination as to whether all or part of the transcript
should be sealed. If the court determines that there is a reasonable
likelihood that making all or any part of the transcript public may
prejudice a defendant's right to a fair and impartial trial, that
part of the transcript shall be sealed until the defendant's trial
has been completed.
938.2. (a) For preparing any transcript in any case pursuant to
subdivision (a) of Section 938.1, the stenographic reporter shall
draw no salary or fees from the county for preparing such transcript
in any case until all such transcripts of testimony in such case so
taken by him are written up and delivered. Before making the order
for payment to the reporter, the judge of the superior court shall
require the reporter to show by affidavit or otherwise that he has
written up and delivered all testimony taken by him, in accordance
with subdivision (a) of Section 938 and Section 938.1.
(b) Before making the order for payment to a reporter who has
prepared transcripts pursuant to subdivision (b) of Section 938, the
judge of the superior court shall require the reporter to show by
affidavit or otherwise that he has written up and delivered all
testimony requested of him in accordance with that sudivision.
938.3. The services of the stenographic reporter shall constitute a
charge against the county, and the stenographic reporter shall be
compensated for reporting and transcribing at the same rates as
prescribed in Sections 69947 to 69954, inclusive, of the Government
Code, to be paid out of the county treasury on a warrant of the
county auditor when ordered by the judge of the superior court.
938.4. The superior court shall arrange for a suitable meeting room
and other support as the court determines is necessary for the grand
jury. Any costs incurred by the court as a result of this section
shall be absorbed by the court or the county from existing resources.[/align]