CRIMINAL PROCEDURES

MANUAL

2015

RESEARCHED AND UPDATED BY

THE CRIMINAL SUBCOMMITTEE

OF THE PUBLICATIONS COMMITTEE,

CALIFORNIA COURT ASSOCIATION, INC.

JODI LEVEQUE

CHAIR

SUPERIOR COURT OF CALIFORNIA

NAPA COUNTY

Copyright © 2015

by

The California Court Association, Inc.

All Rights Reserved

INTRODUCTION

The Criminal Manual Subcommittee is pleased to present the 2015 edition of the

Criminal Procedures Manual. Building on the information presented in the 2014 edition,

the subcommittee endeavored to incorporate updated procedures relating to criminal case

processing occurring in the Superior Court.

This manual provides references, where possible, to the various code sections or other

legal authorities used to compile the information. Website addresses are provided to

direct attention to additional resources, as well as the location of forms or information

sheets. The Criminal Subcommittee strongly suggests these references and resources are

consulted to ensure current information. The Association does not render legal advice,

and this manual should not be relied on as legal authority.

The Criminal Manual Subcommittee is comprised of:

Jodi Leveque, Superior Court of California, County of Napa

Lynn Toms, Superior Court of California, County of Placer

The members of the Criminal Subcommittee want to express our appreciation to all of

those who have assisted in the production of this manual. We especially want to thank

Helen Heath in the CCA Business Office for her assistance and patience.

We welcome your comments and suggestions. They may be sent to:

Jodi Leveque

Chair, Criminal Subcommittee

Superior Court of California

Napa County

1111 Third Street

Napa, CA 94559

Tel: 707-299-1172

E-mail: Jodi.Leveque@napa.courts.ca.gov

CR (Rev. 2015)

Intro

CR-Intro

LEGEND OF CODES

BP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Business & Professions Code

CCP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Civil Code of Procedures

CC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Civil Code

CRC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . California Rules of Court

VC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . California Vehicle Code

EV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Evidence Code

FA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Food & Agricultural

GC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Government Code

PC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Penal Code

WI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Welfare & Institutions

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Chapter 101

FELONY, MISDEMEANOR AND INFRACTION DISTINGUISHED

FELONY A felony is a crime punishable with death or by imprisonment in state prison. (PC17) A defendant charged with a felony has a right to trial by jury or by Court, and has a right to be represented by an attorney at all proceedings. Common examples of felonies are murder, robbery, burglary, and possession of a controlled substance for sale. MISDEMEANOR A misdemeanor is a crime punishable by imprisonment in the county jail to a term not exceeding 6 months, or a fine not exceeding $1,000.00, or by both, except as otherwise provided. (PC19) All sentences for misdemeanors may not exceed 1 year of county jail time. (PC19.2) Like a felony case, a defendant charged with a misdemeanor has a right to trial by jury or by Court, and to be represented by an attorney at all proceedings. Common examples of misdemeanors are petty theft, battery, driving under the influence of alcohol or drugs (DUI) and prostitution. INFRACTION An infraction is a crime punishable by a maximum fine of $250.00, and is not punishable by imprisonment. (PC19.6 and 19.8) A person charged with an infraction is not entitled to a trial by jury nor entitled to be represented by court-appointed counsel at public expense, unless the person is held in custody and not released on his/her written promise to appear, or his/her own recognizance, or a deposit of bail. (PC 19.6) Unless otherwise specified, all provisions of law relating to misdemeanors shall apply to infractions, including the jurisdiction of courts, periods for commencing action for bringing a case to trial, and the burden of proof. (PC 19.7) The most common infractions are vehicle-moving violations, i.e. traffic citations.

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Chapter 102

COMPLAINT FILING TIME LINES

Charges may be brought against a defendant within the following time limits: NO TIME LIMIT: Offenses punishable by death, life imprisonment, life imprisonment

without possibility of parole, or embezzlement of public money. (PC799) SIX YEARS: Offenses punishable by imprisonment for eight years or more. (PC800) FOUR YEARS: False or fraudulent insurance claims. (PC801.5) THREE YEARS: Offenses punishable by imprisonment in state prison or pursuant to

PC1170(h), and misdemeanor PC647.6 or former 647a committed with or upon a minor under 14 years old. (PC801)

TWO YEARS: Misdemeanor B&P 729. (PC802) ONE YEAR: Offenses not punishable by death, imprisonment in state prison or

pursuant to PC1170(h). (PC802)

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Chapter 103

ACCUSATORY PLEADINGS

FIRST PLEADING The first pleading on the part of the people in the superior court in a felony case is the indictment, information, or the complaint in any case certified to the superior court under Section PC859a. The first pleading on the part of the people in a misdemeanor or infraction case is the complaint, except as otherwise provided by law. The first pleading on the part of the people in a proceeding pursuant to Section 3060 of the Government Code is an accusation. (PC949) MISDEMEANOR AND INFRACTIONS Except as otherwise provided by law, all misdemeanors and infractions must be prosecuted by written complaint under oath subscribed by the complainant. (PC740) FELONIES A proceeding for the examination before a magistrate of a person on a charge of a felony must be commenced by written complaint under oath subscribed by the complaint and filed with the magistrate. (PC806) INDICTMENTS SOUGHT FROM GRAND JURY An indictment is an accusation in writing, presented by the grand jury to a competent court, charging a person with a public offense. (PC889) NOTICE TO APPEAR When written notice to appear has been prepared, delivered, and filed with the court, in lieu of a verified complaint, it shall constitute a complaint to which the defendant may enter a plea. (PC853.9) CONTENTS OF ACCUSATORY PLEADING The accusatory pleading must contain:

1. The title of the action, specifying the name of the court to which the same is presented and the names of the parties;

2. A statement of the public offenses charged therein. (PC950)

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CHARGING PUBLIC OFFENSE In charging an offense, each count shall contain, and shall be sufficient if it contains in substance, a statement that the accused has committed some public offense. Such statement may be made in ordinary and concise language without any technical averments or allegations of matter not essential to be proved. (PC952) USE OF FICTITIOUS OR ERRONEOUS NAME When a defendant is charged by a fictitious or erroneous name, and in any stage of the proceedings his true name is discovered, it must be inserted in the subsequent proceedings, referring to the fact of his being charged by the name mentioned in the accusatory pleading. (PC953) MULTIPLE OFFENSES An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense, or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the Court may order them to be consolidated. (PC954) ALLEGATION AS TO TIME OF OFFENSE The precise time at which the offense was committed need not be stated in the accusatory pleading, but it may be alleged to have been committed at any time before the finding or filing thereof, except where the time is a material ingredient in the offense. (PC955) ERRONEOUS ALLEGATIONS When an offense involves the commission of, or an attempt to commit a private injury, and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured, or intended to be injured, or of the place where the offense was committed, or the property involved in its commission, is not material. (PC956) WORDING The words used in the statute to define a public offense need not be strictly pursued in the accusatory pleading, but other words conveying the same meaning may be used. (PC958)

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Chapter 104

FILING COMPLAINT AFTER CITATION

Whenever written notice to appear has been prepared, delivered, and filed by an officer or the prosecuting attorney with the court pursuant to the provisions of Section 853.6 of the Penal Code, an exact and legible duplicate copy of the notice when filed with the magistrate, in lieu of a verified complaint, shall constitute a complaint to which the defendant may plead “guilty” or “nolo contendere.” If, however, the defendant violates his or her promise to appear in court, or does not deposit lawful bail, or pleads other than “guilty” or “nolo contendere” to the offense charged, a complaint shall be filed which shall conform to the provisions of the Penal Code and which shall be deemed to be an original complaint; and thereafter proceedings shall be had as provided by law, except that a defendant may, by an agreement in writing, subscribed by him or her and filed by the court, waive the filing of a verified complaint and elect that the prosecution may proceed upon a written notice to appear. Whenever the written notice to appear has been prepared on a form approved by the Judicial Council, the notice when filed with the magistrate shall constitute a complaint to which the defendant may enter a plea and upon which a warrant may be issued. (PC853.9)

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Chapter 105

AMENDED COMPLAINT

A complaint cannot be amended to charge an offense not attempted to be charged by the original complaint, except that separate counts may be added which might properly have been joined in the original complaint. An amended complaint may be filed by the prosecuting attorney without leave of the Court at any time before the defendant pleads or a demurrer to the original pleading is sustained. The court in which an action is pending may order or permit an amendment, or the filing of an amended complaint, for any defect or insufficiency, at any stage of the proceedings. (PC 1009) VERIFIED The amended complaint must be verified but may be verified by some person other than the one who made oath to the original complaint. AMENDED COMPLAINT ADDING PRIORS Whenever it shall be discovered that a pending complaint to which a plea of guilty has been made under Section 859a does not charge all prior felonies of which the defendant has been convicted either in this state or elsewhere, the complaint may be forthwith amended to charge the prior conviction or convictions, and the amendments may and shall be made upon order of the Court. The defendant shall thereupon be arraigned before the Court to which the complaint has been certified. (PC969.5) ARRAIGNED ON AMENDED COMPLAINT TO CHARGE PRIOR CONVICTION In charging the fact of a previous conviction, it is sufficient to state, “That the defendant, before the commission of the offense charged herein, was in (giving the title of the court in which the conviction was had) convicted of a violation of (specifying the section violated).” (PC969) ADMITS PRIORS If the defendant admits the prior convictions, his answer must be entered in the court records. (PC969.5) DENIES PRIORS If the defendant denies the prior, his answer must be entered in the court records. The refusal of the defendant to answer is equivalent to a denial that he has suffered such previous conviction. (PC969.5)

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CLERK’S PROCEDURES If an amended complaint is received by the clerk’s office prior to defendant’s plea, the clerk shall:

1. “File” stamp the amended complaint. 2. Endorse and conform as per your local court procedures. 3. Make the proper docket entries “Amended complaint filed.” Use local rules

for docket entries. Conform docket to show amendments, e.g. violation, priors, aka’s, etc.

4. Update case management system. 5. Scan document into your imaging system and/or file amended complaint in

case file. Motion to Amend Complaint after defendant has entered a plea

1. If a motion is filed and hearing is set within 10 days, a request for order shortening time must also be filed, or other process followed as per your local court policies.

2. If a request for order shortening time is attached, the clerk will submit to the

request to a judge for signature. Once the judge grants the request and signs the order shortening time, the motion to amend complaint shall be filed. The clerk shall “file” stamp the order and set the case for hearing on the motion.

- or –

3. Amended complaint may be presented for filing in open court or an oral motion is

made to the court.

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Chapter 106

PROCEEDINGS AGAINST CORPORATIONS

SUMMONS Upon the filing of an accusatory pleading against a corporation, the court shall issue a summons, signed by the judge with his name of office, requiring the corporation to appear before him, at a specified time and place, to answer the charge, the time to be not less than 10 days after the issuing of the summons. (PC1390) SERVICE Personal: The summons must be served at least five days before the day of appearance fixed therein, by delivering a copy thereof and showing the original to the president or other head of the corporation, or to the secretary, cashier, managing agent, or an agent of the corporation designated for service of civil process. (PC1392) By Mail: If the offense complained of is a violation of the Vehicle Code or a local ordinance adopted pursuant to the Vehicle Code, such summons may be served by deposit by the clerk of the court in the United States mail of an envelope enclosing the summons, which envelope shall be addressed to the person authorized to accept personal service of legal process on behalf of the defendant, and which envelope shall be mailed by registered mail or certified mail with a return receipt required. Promptly upon such mailing, the clerk of the court shall execute a certificate of such mailing and place it in the file of the court for that case. (PC1427) APPEARANCE At the time stated in the summons, the corporation may appear by counsel and answer the complaint. (PC1396) NON-APPEARANCE If the corporation does not appear, a plea of not guilty must be entered, and the same proceedings had therein as in other cases. (PC1396)

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Chapter 201

BAIL DEFINED

Bail allows a defendant to be released from actual custody upon the posting of a bond, cash deposit, or other security deemed necessary to guarantee the defendant’s appearance in court. The word “bail” as used in the statutes has several different meanings. It may refer to the security posted for the defendant’s appearance, to the surety or bondsperson who posts the security, or to the process of releasing the defendant. When bail is in the form of an undertaking, it is usually referred to as a bail or surety bond. When it is in the form of a deposit of money, the term “cash bail” is used. (PC1268, 1269, 1275, 1279,1458) SETTING BAIL AMOUNT When a defendant appears in court on the charged offense, the judge must set the bail amount. If the defendant has not yet appeared in court and an arrest warrant has been issued, bail is set in the amount endorsed on the warrant. If no arrest warrant has been issued, the bail amount endorsed is set in accordance with the uniform countywide schedule of bail, unless a magistrate has granted a request for a deviation from the bail schedule. (PC1270.1) PEACE OFFICER’S DECLARATION RE: BAIL FELONIOUSLY OBTAINED Upon a peace officer’s submission of a declaration, no bail shall be accepted unless the judge or magistrate is convinced that no portion of the consideration, pledge, security, or deposit paid, given, made, or promised for its execution was feloniously obtained. (PC1275.1)

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METHODS OF POSTING BAIL

Chapter 202 UNDERTAKING OR BOND Bail may be posted by the filing of a written undertaking or bond executed by sureties. The bond ensures the payment of the bail amount if the defendant fails to appear in court as required. Generally, the bond states that the defendant will appear and answer the orders and process of the court and, if convicted, appear for pronouncement of judgment or grant of probation. (PC1269, 1278) A bail bond or undertaking of an admitted surety insurer must be accepted and approved by the Court or magistrate without further acknowledgment if executed by a licensed bail agent of the insurer and issued in the name of the insurer by a person authorized to do so by an unrevoked power of attorney. The bail agent may both execute and issue the bail bond or undertaking. (PC1276(a), 1276(b)) CASH DEPOSIT At any time after an order admitting the defendant to bail, or after the arrest and booking of a defendant charged with a misdemeanor, the defendant, or any other person acting on his or her behalf, may deposit cash with the court or with the law enforcement agency having custody of the defendant in lieu of obtaining a bail bond. The cash must be in the amount fixed by the bail order or bail schedule. A defendant who has posted a bond may, at any time before the forfeiture of the bond, substitute a cash deposit for the bond. (PC1269, 1295, 1296) A personal check, bank cashier’s check, or money order may be accepted in payment of a bail deposit for any misdemeanor offense. Each court must adopt a written policy to accept such forms of payment. However, a court is not required to accept a check in excess of three hundred dollars ($300) from a defendant in custody for any alleged violation of the Penal Code. (GC 71386, 71386(b)) If a judgment is rendered for the payment of a fine, any cash deposited by the defendant may be used to satisfy the judgment. Any surplus cash must be returned to the defendant. The cash deposit of a person other than the defendant must be returned to the depositor after judgment, within ten days after the depositor submits a claim. If a claim is not made within ten days of the exoneration of bail, the clerk must notify the depositor of the exoneration. However, the depositor, not the defendant, can sign a waiver authorizing the application of the deposit to the fine and the surplus is returned to the depositor. (PC1297) EQUITY IN REAL PROPERTY The defendant, or any other person acting on his/her behalf, may give as security any equity in real property that he or she owns, provided that no charge is made to the defendant or any other person for the giving as security of any equity in real property. The value of the equity must be

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determined at a hearing before the magistrate. At this hearing, defense counsel will submit a certified appraisal of the property and a preliminary title report. If the magistrate finds that the value of the equity is equal to twice the amount of the cash deposit required, the equity must be accepted as bail. If the equity is accepted, defense counsel must execute a deed of trust in favor of the county and a demand promissory note. (PC1298) BOND REGISTER When a bond has been filed with the court, the clerk shall enter the date, amount of the bail, and name of the depositor or name(s) of the surety, in the register of actions. A separate register should be maintained for all surety bail bonds received by the court. Suggested contents include:

1. Bond number

2. Date bond filed

3. Amount of bond

4. Name of surety

5. Name of agent

6. Name of defendant

7. Case number

8. Date of forfeiture (if ordered)

9. Date of reinstatement and any ordered fees (if ordered)

10. Final disposition of bond and date of disposition

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Chapter 203

PROPERTY BOND PROCEDURE

DEFINITION In lieu of a deposit of cash or a bail bond … the defendant or any other person may give as security any equity in real property, which he/she owns, provided that no charge is made to the defendant for the giving as security of any equity in real property. (PC1298) PURPOSE The purpose of a property bond is to release the defendant from actual custody and guarantee the appearance of the defendant at all future court hearings. REQUIREMENTS A hearing, at which witnesses may be called or examined, shall be held before the magistrate to determine the value of such equity, and if the magistrate finds that the value of the equity is equal to twice the amount of the cash deposit required, he/she shall allow such bail. The clerk shall, under order of the Court, when occasion arises, sell the bonds or the equity and apply the proceeds of the sale in the manner that a deposit of cash may be required to be applied. (PC1298) Depending on local court practice, the following documents must be submitted at the time the motion is filed:

1. Application/Motion for Real Property Equity Bond; 2. Affidavit for Justification of Bail and Equity in Real Property (Declaration of Property

Owner);

3. Promissory Note;

4. Deed of Trust;

5. Current appraisal (dated within six months prior to the hearing) by a certified appraiser;

6. Preliminary Title Report (dated within 30 days prior to the hearing);

7. Proof of Insurance of Property (fire and mortgage);

8. Mortgage Records showing balance;

9. Order Approving Property Bond/Order for Release of Defendant. (Note: Following this Chapter, checklists and sample forms are provided.)

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PROCEDURE RESPONSIBLE PARTY ACTION

Defendant or Defendant’s Representative

1. Prior to being presented to the court for hearing, the following forms are to be completed and presented to a clerk. (The sample forms (attached) may be used or similar forms which contain the same information.)

a) APPLICATION/MOTION FOR REAL PROPERTY EQUITY BOND and DECLARATION OF PROPERTY OWNER(S)

b) PROMISSORY NOTE

c) DEED OF TRUST Make payable to “______________ County” as Beneficiary and “Court Executive Officer” as Trustee.

d) ORDER APPROVING PROPERTY BOND AND ORDER FOR RELEASE OF DEFENDANT

2. In addition to the above forms, the following information is

required by the court (samples not provided):

a) APPRAISAL REPORT of the fair market value of the property, completed by a qualified real estate appraiser. The report should be dated no more than 30 days prior to the application for property bond.

b) Current PRELIMINARY TITLE REPORT including legal description of property, location, and all encumbrances from a California Title Company dated within 30 days prior to application for property bond.

c) Proof of INSURANCE coverage for the property. Must have enough coverage to cover ALL ENCUMBRANCES. Must show your court on the insurance as on the deed of trust.

Clerk’s Office 3. Reviews all forms and paperwork to ensure that all necessary items have been presented for court approval, using PROPERTY BOND CHECKLIST.

4. Places the matter on the court calendar for hearing.

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RESPONSIBLE PARTY ACTION Defendant or Defendant’s Representative

5.

Notifies the district attorney’s office of the hearing date and time so that witnesses may be subpoenaed to appear at any scheduled hearing. (10 day notice required)

Judge 6. Conducts hearing for approval of property bond.

a) Reviews the documents outlined in 1a thru 1d, and 2a thru 2c by using Judge’s PROPERTY BOND CHECK LIST and determines if they comply with the law.

b) Makes a determination that the equity in the property is at least twice the amount of the bail.

c) Signs ORDER APPROVING PROPERTY BOND and ORDER FOR RELEASE OF DEFENDANT and orders that defendant be released after the recorded DEED OF TRUST has been returned to court.

Clerk 7. Makes a docket entry accepting the PROPERTY BOND, including the amount of bail, and that defendant be released only after the filing of the recorded DEED OF TRUST.

8. Files the original APPLICATION and ORDER APPROVING PROPERTY BOND and BOND ORDER FOR RELEASE OF DEFENDANT in the case file.

Defendant or Defendant’s Representative

9. Takes the DEED OF TRUST to the county recorder’s office where property is located, to be recorded. (PC1280b) The responsibility and expense of recording the deed shall be borne by the defendant or his/her representative. The Deed shall be returned to the clerk of the court after being recorded. (Note: Some courts do not delegate this function and instead assume responsibility for filing the Deed.)

Clerk 10. Recorded DEED OF TRUST presented to judge along with ORDER APPROVING PROPERTY BOND and ORDER FOR RELEASE OF DEFENDANT. Judge signs order if not previously signed.

11. Upon review of the recorded DEED OF TRUST, makes a docket entry indicating that the property bond has been posted. Makes entry on bail card, recording all information relating to the property bond.

12. Sends duplicate copy of ORDER APPROVING PROPERTY BOND and ORDER FOR RELEASE OF DEFENDANT with court seal affixed, to jail.

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RESPONSIBLE PARTY ACTION Clerk

13.

Places PROMISSORY NOTE and newly recorded DEED OF TRUST in sealed envelope marked with case name and number and stores the envelope in the safe or secured area. Makes note on docket indicating where PROMISSORY NOTE and DEED OF TRUST are stored.

EXONERATION OF PROPERTY BOND RESPONSIBLE PARTY

ACTION

Judge 14. Signs order to exonerate bond or makes order to exonerate bond in open court.

Clerk 15. Makes docket entry to reflect the exoneration and provides copy of docket to attorney of record.

Defendant or Defendant’s Representative

16. Prepares FULL RECONVEYANCE FORM and submits it to the court.

Trustee or Executive Officer

17. Signs the FULL RECONVEYANCE in the presence of a notary public provided and paid for by defendant, and gives the same to the attorney of record.

Defendant or Defendant’s Representative

18. Submits to the county recorder in the county where the property is located, a copy of the ORDER EXONERATING PROPERTY BOND and the FULL RECONVEYANCE for recording.

19. Files recorded copy of the FULL RECONVEYANCE with the clerk of the court.

Clerk 20. Cancels the DEED OF TRUST and PROMISSORY NOTE by writing across the front “Reconveyance recorded, dated _________________,” and signed by the court representative.

21. The DEED OF TRUST and PROMISSORY NOTE are returned to the defendant, or person in defendant’s behalf.

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FORFEITURE When a defendant fails to appear as directed and the property bond is ordered forfeited: RESPONSIBLE PARTY

ACTION

Clerk 22. Makes a docket entry reflecting the forfeiture of the property bond.

23. Within 30 days after the bond is ordered forfeited, mails FORFEITURE NOTICE and certified copy of court order to person(s) who posted the property bond and to county counsel.

24. After 180 days have elapsed and the bond forfeiture has not been set aside, summary judgment shall be entered. (PC1305 and 1306)

SUMMARY JUDGMENT ENFORCED If, after a period of 20 days from the date of demand, the bond continues to remain unpaid: RESPONSIBLE PARTY

ACTION

Clerk of the Court -Trustee

25. Contacts county counsel and requests assistance to prepare the paperwork for the sale of the property.

Court Manager 26. Participates in the sale of the property. The property shall be sold in accordance with the terms and conditions of the power of sale set forth in the recorded DEED OF TRUST.

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PROPERTY BOND CHECKLIST Case #________________ Defendant Name____________________________ Document Acceptable? YES NO 1. Application/Motion for Real Property Equity Bond ______ _____ and Affidavit for Justification of Bail (Declaration of Property Owner)

• Must include legal description of property. Verify with the Preliminary Title Report.

• Current assessed value of property. • Listing of all encumbrances. • Declaration of property owner must be notarized,

sealed, signed and dated.

2. Promissory Note ______ ______ • Amount of equity must be at least twice the amount

of the bail, less all encumbrances. • Promissory Note should be made out to the County of

__________. The note must be notarized, sealed, signed and dated.

3. Deed of Trust ______ ______

• The name of the Trustee is Court Executive Officer of the __________Superior Court, __________County.

• The name of the Beneficiary is __________County. • Address of Court must be on face of Deed with case number. • Deed has been recorded in the county where the

property is located with stamp affixed on face of deed.

4. Appraisal ______ ______ • Must be original document. • Must show fair market value dated within six months

prior to the hearing. • Appraiser must be certified by the State of California,

Office of Real Estate Appraisers.

5. Preliminary Title Report ______ ______ • Must be from a California title company. • Must be dated within 30 days prior to the hearing. • All property taxes must be paid.

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Document acceptable?

YES NO

6. Proof of Insurance of Property ______ ______ • Must insure the full amount of bail, including all

encumbrances. • The name of the insured is _________ County. • Title insurance must be current. • If the estimated site value on the appraisal is not

more than ½ the amount listed as the appraised value, then fire insurance is also required.

7. Mortgage Records ______ ______

• Correspondence from lenders is acceptable. • Must show current balance of any outstanding loans.

8. Order Approving Property Bond ______ ______ 9. Order For Release of Defendant ______ ______ Comments:

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Information for Counsel Regarding Property Bonds

Attached are samples of papers necessary to file a property bond (PC1278, 1279, 1280, 1298) with the ________ Superior Court. Note: Equity must be equal to twice the amount of the bail required, and the property must not have any encumbrances against that amount. Samples attached:

1. Application/Motion For Real Property Equity Bond And Declaration of Property Owner(s)

2. Promissory Note 3. Order Approving Property Bond & Order For Release of Defendant 4. Deposit of Real Estate Equity (Full Reconveyance)

Additional requirements:

1. Deed of Trust 2. Current appraisal (dated within six months prior to the hearing) by a certified

appraiser 3. Preliminary Title Report (dated within 30 days prior to the hearing) 4. Proof of insurance of property (fire and mortgage) 5. Mortgage Records showing balance

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SUPERIOR COURT OF CALIFORNIA

COUNTY OF ___________

The People of the State of California Plaintiff(s) vs Defendant(s)

Case Number: APPLICATION/MOTION FOR REAL PROPERTY EQUITY BOND AND DECLARATION OF PROPERTY OWNER(S)

I/We, declare Name of property owner(s) as follows:

1. The defendant above named, having been arrested, has had bail set in the amount of $ . .

2. I/We desire to post a “property bond” consisting of real estate equity pursuant to the provisions of section 1298 of the California Penal Code.

3. I/We own real property located at , which

has a present market value of $ , the legal description of which is: 4. I/We owe $ on the property as of this date, therefore the equity in said real property is at least twice the amount of the bail set in this matter. The following liens in the following amounts and no

others exist on the property:

5. The property has/has not been previously qualified for such property bail bond within the prior 12 months (in the amount of $ , not exonerated).

6. Attached to this declaration is an original Preliminary Title Report, a certified appraisal of the property, and copies of financial statements from all persons who have liens against the property, showing how much is presently owed on the property.

7. I/We desire that the court approve this application for a “property bond” and make this declaration in support of such application. I/WE UNDERSTAND THAT IN THE EVENT THAT THE PERSON FOR WHOM THIS BOND IS TO BE POSTED FAILS TO MAKE ANY NECESSARY COURT APPEARANCE, THE PROPERTY MAY BE SOLD TO SATISFY PAYMENT OF THE AMOUNT OF THE BAIL.

Signature of Property Owner Signature of Property Owner (Type Name) (Type Name)

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SUPERIOR COURT OF CALIFORNIA COUNTY OF ____________

The People of the State of California Plaintiff(s) vs. Defendant(s)

Case Number: PROMISSORY NOTE

In consideration of the County of _______ accepting the undertaking and the pledge of security in lieu of cash bail of the undersigned in the case of the People of the State of California versus Case Number(s) . (Defendant’s Name) I/We herein referred to as makers, promise to pay the County of (Depositor’s Name) ______________, its successors, and assignee, the sum of $ ($ ) Such payment shall be made pursuant to the provisions of Penal Code Section 1305 in the event that the said fails to appear without sufficient excuse for the proceedings (Defendant’s Name) outlined in Section 1305 of the Penal Code and answer any charge in any accusatory pleading based upon the acts supporting the complaint above mentioned, including all duly authorized amendments to said complaint, in whatever court it may be prosecuted, or fails to hold himself or herself amenable to the orders and processes of the court or, fails if convicted, to appear for pronouncement of judgment or grant probation. This note is secured by a Deed of Trust executed by maker in favor of the County of ___________ on . The terms of said Deed of Trust are hereby incorporated by reference herein. (Date) In the event of suit being commenced on this note, the prevailing party shall be entitled to costs of suit, together with reasonable attorney’s fees. DATED: Signature DATED: Signature

ACKNOWLEDGMENT

STATE OF CALIFORNIA County of _______ On this day of (month) (year), before me, a Notary Public in and for said State, personally appeared, property owners, , prove to me on the basis of satisfactory evidence to be the persons whose names are subscribed to within the PROMISSORY NOTE, and acknowledged to me that they executed the same.

WITNESS my hand and official seal. (Notary’s Signature)

CRM

200 - 14

SUPERIOR COURT OF CALIFORNIA COUNTY OF _________

The People of the State of California Plaintiff(s) vs. Defendant(s)

Case Number: ORDER APPROVING PROPERTY BOND & ORDER FOR RELEASE OF DEFENDANT

TO THE SHERIFF OF THE COUNTY OF ________

ORDER APPROVING PROPERTY BOND

The Court having considered the Application for Real Property Equity Bond and Declaration of Property Owner(s) including review of the Application, Promissory Note, and Deed(s) of Trust pledging and depositing the equity in the real property to the beneficiary, ______ County, as security for the appearance of the defendant at each and every hearing required by the Court in this matter; and having heard evidence and arguments presented at the hearing of this matter, the Court finds:

1. The Declaration of Property Owner(s) and Application for Real Property Equity Bail are sufficient, meeting all requirements of Section 1298 of the California Penal Code.

2. The equity in the real property offered as security for bail pursuant to Section 1298 of the California

Penal Code is at least twice the amount of the bail set, less any encumbrances.

3. That the Deed of Trust has been recorded with the county recorder naming _________ County as Beneficiary on the real property offered as security for bail. The Deed of Trust has been delivered to the Court Manager of this Court for safekeeping until further order of the Court.

4. That the property owners have agreed to submit the real property for sale by the Court Manager

pursuant to Section 1298 of the California Penal Code.

5. That the defendant may be released on Property Bond.

ORDER FOR RELEASE OF DEFENDANT

GOOD CAUSE APPEARING, THE COURT MAKES THE FOLLOWING ORDER:

1. Bail is fixed at $ .

2. The Order Approving Property Bond with the equity value of $ is GRANTED AND IS ORDERED FILED. (twice the amount of bail)

3. The Sheriff of _______ County is directed to release the defendant on bail.

Dated: (Court Seal) Judge

CRM

200-15

DEPOSIT OF REAL ESTATE EQUITY

RECORDING REQUESTED BY WHEN RECORDED MAIL TO: Title Order No. Escrow or Loan No.

FULL RECONVEYANCE

, as duly appointed Trustee under Deed of Trust hereinafter referred to, (Title) having received from holder of the obligations thereunder a written request to recovery, reciting that all sums secured by said Deed of Trust have been fully paid, and said Deed of Trust and the Note or Notes secured thereby having been surrendered to said Trustee for cancellation, does hereby RECONVEY, without warrant, to the person or persons legally entitled thereto, the estate now held by it thereunder. Said Deed of Trust was executed by (Name of Court Manager) and recorded in the Official Records of ________ County, California, as follows: Date: As Instrument No. IN WITNESS WHEREOF, as such Trustee, has caused its corporate (Name of Court Manager) name and seal to be hereto affixed thereunto duly authorized. DATED: , as such Trustee By STATE OF CALIFORNIA ) (Signature) ) COUNTY OF ________ ) On , before me, the undersigned, a Notary Public in and for the said County and State, personally appeared ___________________________________________, known to me to be that executed the foregoing instrument as such Trustee, and known to me to be the person who executed said instrument on behalf of the corporation therein named, and acknowledged to me that such corporation executed the same as such Trustee. Name (typed or printed) Notary Public in and for said County and State (Court Seal)

CRM

200-16

Chapter 204

EXONERATION OF BAIL

The termination of the obligation of bail is known as exoneration. When bail is exonerated, a surety is relieved of liability and a depositor is entitled to the return of the deposit. Exoneration typically occurs when the criminal proceedings are terminated, or upon the surrender of the defendant to custody. Bail must be exonerated upon the granting of diversion. (PC1300, 1301, 1302, 1303, 1304, 1000.2, 1001.6) When surety bonds are filed with the court, an exoneration notice is often attached. This form may be completed by the clerk showing the date of the exoneration and returned to the bond agent. The bond agent usually requires proof of exoneration prior to the release of the collateral to the depositor. When cash bail is posted and ordered exonerated, a check must be written to the depositor for the amount of the bail posted unless the Court has made some other order regarding the amount to be returned. Upon filing of a waiver by the depositor, the entire amount or a portion of the cash bail posted could be applied to any fines or fees assessed and, if any, the balance returned to the depositor. When real property is posted, the reconveyance of title is necessary. See section 203 of this manual. If an action or proceeding against the defendant has been dismissed, the bail shall not be exonerated until a period of 15 days has elapsed from the date of dismissal. If, within such period, the defendant is arrested and charged with a public offense arising out of the same act or omission upon which the action or proceeding was based, the bail shall be applied to the public offense. If an undertaking of bail is on file, the clerk of the court shall promptly mail notice to the surety on the bail and the bail agent who posted the bond whenever the bail is applied to a public offense pursuant to this action. (PC1303)

CRM

200-17

Chapter 205

TERMINATION OF PROCEEDINGS IN DEFENDANT’S FAVOR

Bail is exonerated when a criminal proceeding is terminated in any of the following ways:

1. A grant of a motion setting aside the indictment or information unless the Court directs resubmission of case. (PC997)

2. Dismissal of action after demurrer is sustained and no amendment is

permitted or offered. (PC1008) 3. Discharge of defendant arrested on a warrant from a wrong county.

(PC1116) 4. Discharge of a jury because facts charged do not constitute a punishable

offense. (PC1117) 5. Granting of a motion in arrest of judgment. (PC1188) 6. Dismissal of an action for want of prosecution. (PC1384) 7. Acquittal. (PC1195; People v. King Bond Agency (1990) 224 CA3d 1120,

1125, 274 CR 335) If a criminal proceeding against a defendant who has been admitted to bail is dismissed, the bail must not be exonerated until 15 days after the Court directs the action to be dismissed. If, within this 15-day period, the defendant is arrested and charged with a public offense arising out of the same act or omission on which the proceeding was based, the bail must be applied to the offense. The court clerk must send notice by mail to the surety of the bail application to the new charge. If the clerk fails to notify the surety, the bail is exonerated. (PC1303; People v. Surety Ins. Co. (1983) 139 CA3d 848, 854, 189 CR 89) When a dismissal of a complaint, indictment, or information occurs after the default of the defendant and the entry of summary judgment against each bondsman named on the bond, the obligation of the bail bond is not released or otherwise affected. (PC1306(d))

CRM

200-18

Chapter 206

CONVICTION AND COMMITMENT OR PROBATION

When a general verdict is rendered against the defendant, or a special verdict given, the Court may order the defendant committed to the custody of the sheriff to await sentencing. Upon commitment of the defendant, bail is exonerated. However, if the Court does not order commitment and allows the defendant to remain at liberty before the date for judgment and sentence, the liability of the surety remains in effect until completion of the pronouncement of judgment or grant of probation. The form of bond prescribed by PC 1278, 1287, 1458, and 1459 contains a guarantee that the defendant “if convicted, will appear for pronouncement of judgment or grant of probation.” Once the defendant appears for judgment and judgment is pronounced or probation granted, bail is exonerated. The surety is not liable for a defendant’s failure to surrender on the date set for execution of sentence. (PC116; People v. Allied Fidelity Ins.Co. (1978) 82 CA3d 242, 247, 147 CR 245, PC1195, People v. North Beach Bonding Co. (1974) 36 CA3d 663, 672, 111 CR 757 (defendant. failed to surrender himself at expiration of three-day stay of execution) If a defendant appears for judgment and is committed to the custody of the sheriff for diagnosis and further evaluation under PC 1203.03, bail is exonerated and the surety is not liable for the defendant’s non-appearance at sentencing. (People v. Amwest Surety Ins.Co. (1986) 180 CA 3d 444, 447, 225 CR 592)

CRM (Rev.2014) 200 - 19

Chapter 207

SURRENDER TO CUSTODY

At any time before forfeiture, bail may be exonerated through surrender of the defendant to the officer in whose custody the defendant was committed at the time of bail. Surrender may be made by the surety, depositor, or the defendant. Under PC 1300(a), such exoneration must be made in the following manner:

1. A certified copy of the undertaking of bail or certificate of deposit must be delivered to the officer who takes custody of the defendant. (PC1300(a)(1))

2. The officer must acknowledge the surrender by a certificate in writing. (PC1300(a)(1))

3. The surety or depositor must make a reasonable effort to notify the defendant’s last attorney of record of the surrender. (PC1300(a)(2))

4. The officer must bring the defendant before the court in which the defendant’s next appearance on the case is scheduled, within 48 hours of the surrender. (PC1300(a)(3))

5. The Court must advise the defendant of his/her right to request withdrawal of any previous time waiver. The Court must also inform the defendant that it can offer the return of all or part of the bail premium paid by the defendant or other person under the circumstances outlined in PC 1300(b). (PC1300(a)(3))

6. The Court may order that the bail or deposit be exonerated on five days notice to the prosecutor, including a copy of the undertaking of bail or certificate of deposit, and the officer’s certificate of acknowledgment. If the defendant is released on his/her own recognizance or on another bond before the order is issued, the Court must order exoneration without prejudice to the court’s authority under PC 1300(b). (PC1300(a)(4))

Notwithstanding exoneration under PC 1300(a), if the Court finds that good cause does not exist for the surrender of a defendant who has not failed to appear or has not violated any Court order, it may order the surety of depositor to return all or part of the bail premium to the defendant or other person who has paid the premium. Good cause for surrender under PC 1300(b) is not limited to a defendant’s failure to appear or violation of a Court order. Good cause exists when a defendant fails to appear on another charge in another court or fails to keep the surety notified of his/her address or phone number. (People v. Smith (1986) 182 CA3d 1212, 228 CR 277)

A surety or depositor may arrest a defendant, under the authority of PC 1301, for the purpose of effecting the defendant’s surrender. If a defendant is arrested within the state, the surety or depositor must, without unnecessary delay, and in any event within 48 hours of arrest, deliver the defendant to the court in which the defendant’s next appearance in the case is scheduled or to the custody of the sheriff. A defendant apprehended outside California must be delivered to the appropriate court or the sheriff within 48 hours after the defendant is brought into the state. The defendant may waive the time requirements of PC 1301 by a written signed waiver delivered to the surety or depositor within 48 hours of arrest or entry into the state. However, the defendant may revoke the waiver at any time and in the same manner, whereupon he must be delivered within 48 hours after the revocation. (PC1301)

CRM

200-20

Chapter 208

OTHER EXONERATION SITUATIONS

Additional circumstances requiring exoneration of bail include:

1. Commitment of defendant to a state hospital on a finding of incompetence to stand trial under PC 1370 or 1370.01. (PC1371)

2. Placement of defendant into a diversion program for drug abuse, domestic

violence, mental retardation, or contributing to delinquency of a minor. See also PC 1001.6 and 1001.53 (other county diversion programs for misdemeanor offenders). (PC1000.2, 1000.8(b), 1000.27, 1001.73)

3. Substitution of a cash deposit for the bail bond by defendant at any time

before forfeiture of the bond. (PC1296) 4. Recommitment of defendant to custody by Court order at any time after

his/her appearance for trial. (PC1129) 5. Expiration of two-year period from the effective date of the initial bond,

provided the court is informed in writing at least 60 days before the expiration date. The Court may refuse to exonerate bail, in which case the Court must inform the surety or depositor of the reasons for refusal. (PC1304)

CRM

200-21

Chapter 209

FORFEITURE OF BAIL AND/OR GRANTING A CONTINUANCE

DECLARATION OF FORFEITURE If a defendant, without sufficient excuse, fails to appear for arraignment, trial, judgment, or on any other occasion when his/her presence in court is lawfully required, or fails to surrender in execution of judgment, the court must declare a forfeiture of bail or any deposit in lieu of bail. The court shall not have jurisdiction to declare a forfeiture, and the bail shall be released of all obligations under the bond, if the case is dismissed or if no complaint is filed within 15 days from the date of arraignment. The Court must direct the clerk to enter the fact of the defendant’s non-appearance in the court minutes. However, a recitation that the defendant’s non-appearance was “without sufficient cause” is not required of the Court. Following the declaration of forfeiture, the Court may issue a bench warrant for the defendant’s arrest. (PC978.5, 979, 1043e(3), 1195 (issuance of a warrant for defendant who fails to appear for judgment mandatory on application of the prosecutor), PC1305a, 1269b(g), 1195, 1043e(2) People v. United Bonding Ins. Co. (1971) 5 C3d 898, 907, 98 CR 57 (failure to declare forfeiture in absence of sufficient excuse divests court of jurisdiction to declare forfeiture at later date); PC978.5, PC979, PC1043e(3), PC1195) If defense counsel appears on behalf of a defendant charged with only a misdemeanor or on behalf of a felony defendant who has executed in open court a written waiver of his/her right to be personally present during the criminal proceedings, bail may not be declared forfeited unless the Court specifically ordered the defendant to personally appear. (PC977(a)-(b), 1043(e); People v. American Bankers Inc. Co. (1987) 191 CA3d 742, 747, 236 CR 501) GRANTING CONTINUANCE When the Court has reason to believe that sufficient excuse may exist for the defendant’s failure to appear, the Court may continue the case for a reasonable period of time in order to enable the defendant to appear without ordering a forfeiture of the bail or the issuing of a bench warrant. If, after the Court has made the order, the defendant, without sufficient excuse, fails to appear on or before the continuance date set by the court, the bail shall be forfeited and a warrant for the defendant’s arrest may be ordered and issued. (PC1305b, People v. Surety Ins.Co. (1976) 55 CA3d 197, 201, 127 CR 451 (counsel informed court that defendant was out of town for medical treatment); People v. Wilshire Ins. Co. (1975) 53 CA3d 256, 261, 125 CR 529 (representation by counsel that defendant was in custody in another country); People v. Surety Ins. Co. (1984) 160 CA3d 963, 969, 206 CR 836) Any information relied on by the Court in its determination that there is “sufficient excuse” for the defendant’s absence must be reflected on the court record. (People v. American Bankers Ins. Co. (1989) 215 CA3d 1363, 1370, 264 CR 152 (excused non-appearance cannot be implied from silent record))

CRM

200-22

NOTICE REQUIREMENT If the amount of forfeiture (the amount of the bail bond) exceeds $400, the court clerk must mail notice of forfeiture to the surety or depositor and execute a certificate of the mailing, placing it in the court file. When the surety is an authorized corporate surety insurer, notice of forfeiture must be mailed to the insurance company and the bail agency that posted the bond. If more than one bond is posted for one defendant, the court clerk is only required to mail one the notice of forfeiture. (PC1305b, People v. Surety Ins. Co. (1976) 66 CA3d 197, 202, 127 CR 451) Notice to a depositor must inform the party of the procedures for relief from the forfeiture and the applicable time limitations. The surety or depositor shall be released of all obligations under the bond if any of the following conditions apply:

1. The clerk fails to mail the notice of forfeiture within 30 days after the entry of the forfeiture.

2. The clerk fails to mail the notice of forfeiture to the surety at the address

printed on the bond. 3. The clerk fails to mail a copy of the notice of forfeiture to the bail agent at

the address shown on the bond. (Minor v. Municipal Court (1990) 219 CD3d 1541, 1552, 268 CR 919 (notice merely referring to PC1305 sufficient to inform a professional surety but not a private cash depositor); PC1305a)

If the notice of forfeiture is required to be mailed pursuant to PC

1305, the 180-day period provided for in PC1305 shall be extended

by a period of five days to allow for the mailing. (PC1305(b))

CRM

200-23

Chapter 210

RELIEF FROM BAIL FORFEITURE APPEARANCE IN COURT

The Court shall, on its own motion, vacate the forfeiture and exonerate the bond if:

1. The defendant appears either voluntarily, or in custody after surrender or arrest, in court within 180 days of the date of forfeiture; or,

2. Within 180 days of the date of mailing of the notice, if the notice is required, at the time the defendant first appears in court on the case in which the forfeiture was entered.

If the court fails to so act on its own motion, then the surety's or depositor's obligations under the bond shall be immediately vacated and the bond exonerated. An order vacating the forfeiture and exonerating the bond may be made on terms that are just and do not exceed the terms imposed in similar situations with respect to other forms of pretrial release. (PC1305(c)(1)) DEFENDANT IN CUSTODY

If, within the county where the case is located, the defendant is surrendered to custody by the bail or is arrested in the underlying case within the 180-day period, and is subsequently released from custody prior to an appearance in court, the Court shall, on its own motion, direct the order of forfeiture to be vacated and the bond exonerated. If the Court fails to so act on its own motion, then the surety's or depositor's obligations under the bond shall be immediately vacated and the bond exonerated. An order vacating the forfeiture and exonerating the bond may be made on terms that are just and do not exceed the terms imposed in similar situations with respect to other forms of pretrial release. (PC1305(c)(2)) If, outside the county where the case is located, the defendant is surrendered to custody by the bail or is arrested in the underlying case within the 180-day period, the Court shall vacate the forfeiture and exonerate the bail. (PC1305(c)(3)) PERMANENT DISABILITY

In the case of a permanent disability, the Court shall direct the order of forfeiture to be vacated and the bail or money or property deposited as bail exonerated if, within 180 days of the date of forfeiture, or within 180 days of the date of mailing of the notice if notice is required under subdivision (b), it is made apparent to the satisfaction of the Court that both of the following conditions are met:

1. The defendant is deceased or otherwise permanently unable to appear in the court due to illness, insanity, or detention by military or civil authorities; and,

2. The absence of the defendant is without the connivance of the bail. (PC1305(d))

CRM

200-24

TEMPORARY DISABILITY

In the case of a temporary disability, the court shall order the tolling of the 180-day period provided in this section during the period of temporary disability, provided that it appears to the satisfaction of the court that the following conditions are met:

1. The defendant is deceased or otherwise permanently unable to appear in the court due to illness, insanity, or detention by military or civil authorities;

2. Based on the temporary disability, the defendant is unable to appear in court

during the remainder of the 180-day period; and, 3. The absence of the defendant is without the connivance of the bail.

The period of the tolling shall be extended for a reasonable period of time, at the discretion of the court, after the cessation of the disability to allow for the return of the defendant to the jurisdiction of the court. (PC1305(e)) DEFENDANT BEYOND JURISDICTION OF THE STATE

If the defendant is in custody beyond the jurisdiction of the state, and the prosecuting agency elects not to seek extradition after being informed of the defendant’s location, the court shall vacate the forfeiture and exonerate the bond on terms that are just and do not exceed the terms imposed in similar situations with respect to other forms of pretrial release. (PC1305(f))

If the defendant is not in custody and is beyond the jurisdiction of the state, is temporarily detained by the bail agent, in the presence of local law enforcement officer of the jurisdiction in which the defendant is located, and is positively identified by that local law enforcement officer as the wanted defendant in an affidavit signed under penalty of perjury, and the prosecuting agency elects not to seek extradition after being informed of the defendant’s location, the court shall vacate the forfeiture and exonerate the bond on terms that are just and do not exceed the terms imposed in similar situations with respect to other forms of pretrial release. (PC1305(g)) MOTION TO BE FILED

A motion filed in a timely manner within the 180-day period may be heard within 30 days of the expiration of the 180-day period. The court may extend the 180-day period upon a showing of good cause. The motion may be made by the surety insurer, the bail agent, the surety, or the depositor of money or property, any of who may appear in person or through an attorney. The court, in its discretion, may require that the moving party provide 10 days prior notice to the applicable prosecuting agency, as a condition precedent to granting the motion. (PC1305(i))

CRM (Rev.2014) 200-25

Chapter 211

REINSTATEMENT OF BAIL ASSESSMENT OF COSTS

When a defendant returns to court after the forfeiture of bail, the Court may reinstate bail and order the defendant released again on the same bond only if both of the following conditions are met:

1. The bail is given prior notice of the reinstatement.

2. The bail has not surrendered the defendant. (PC1305(c)(4))

The defendant’s appearance in court with the bondsman, or with a Reassumption of Liability for filing, will show the court prior notice and consent has been given. If a defendant appears after forfeiture without a bondsman or Reassumption of Liability, the Court can only remand or release on the defendant’s own recognizance. ASSESSMENT OF COSTS When a Court grants relief from a bail forfeiture, it shall impose, as a condition of relief, a payment of the costs of returning the defendant to custody, unless the Court determines that the interests of justice are best served by not imposing payment. (PC1306b; see People v. Sue Sarkis Bail Bonds (1986) 182 CA3d 650, 655, 227 CR506 (assessment of $50 to cover cost of housing and care of defendant’s arrest is valid condition of relief); People v. Ranger Ins.Co. (1992) 9 CA4th 1302, 1308, 12 CR2d 343 (assessment of cost of housing and care of defendant while in custody in excess of court’s jurisdiction under PC1306b)) If the defendant posted cash bail, the costs must be imposed directly on the defendant. If a surety posted a bond, the costs may be imposed on the surety who may then pass the costs on to the defendant or recover them from the collateral held by the surety. (People v. V.C. Van Pool Bail Bonds (1988) 200 CA3d 303, 305, 246 CR 79) If an assessment is made a condition of an order to set aside the forfeiture of bail or a deposit, the clerk must mail notice to the surety or depositor, with a copy to the bail agent, within 30 days, and execute a certificate of mailing and place it in the case file. The surety or depositor must be provided a minimum of 30 days after the mailing of the notice to make payment. (PC1305.2) If the assessment has not been paid by the specified date and a certificate of mailing is not executed, another notice must be mailed to the surety, depositor, or bail agent whose name appears on the bond, which would allow an additional 30 days to pay the assessment. (PC1305.2) If the notice requirements of PC 1305.2 are not strictly followed, the court will lose jurisdiction to enter summary judgment under PC 1306 and the bail will be exonerated. (People v. Ranger Ins.Co., supra, 9 CA4th 1307; (mailing of conditional exoneration order that provided no time limit for payment is jurisdictional defect))

CRM (Rev.2014) 200-26

Chapter 212

ENTRY OF SUMMARY JUDGMENT

When bail is forfeited and the period for setting aside the forfeiture has lapsed, the court that declared the forfeiture must enter a summary judgment against the surety for the amount of the bond plus costs. (PC1306a) Summary judgment must be entered within 90 days after the date on which it may be first entered. If it is not timely entered, the bail must be exonerated. (PC1306c) An appeal from a denial of a motion to vacate a forfeiture of bail does not toll the 90-day period. (County of Sacramento v. Ins.Co. of the West (1983) 139 CA3d 561, 565, 188 CR 736) Notice of entry of summary judgment must be served on the surety within five days of the entry of judgment. (PC1308) However, failure to act within the required time to make the payment imposed pursuant to PC 1306b shall not be the basis for a summary judgment against any or all of the underlying amount of the bail. A summary judgment entered for failure to make the payment imposed under this PC 1306b is subject to the provisions of PC 1308, and shall apply only to the amount of the costs owing at the time the summary judgment is entered, plus administrative costs and interest. (PC1306b) Within 30 days after summary judgment is entered and becomes final, the prosecutor (or county counsel) shall demand payment of the judgment. (PC1306e(1)) If the judgment is not paid within 20 days of the demand, the judgment shall be enforced as a money judgment. (PC1306e(2)) Enforcement must occur within two years of the entry of judgment. (PC1306f) The filing of an appeal of the summary judgment does not toll the two-year period unless an appeal bond is posted under CCP 917.1(a). (County of Orange v. Classified Ins. Corp. (1990) 218 CA3d 553, 556, 267 CR 73) An appeal bond must be posted by a surety other than the one filing the appeal. (PC13063a(2)) A court may not accept any person or corporation as a surety on bail if a summary judgment entered against that person or corporation remains unpaid 20 days after the service of notice of judgment, unless a proceeding challenging the validity of the order of forfeiture or summary judgment has been initiated, and an appeal bond posted within the 20 days. (PC1308) Practical Note: Most courts send notification to agencies authorized to hold a defendant in custody, such as the local sheriff, stating that a summary judgment has been entered against the bondsman and the surety. Accordingly, bonds from either the bondsman or the surety are not accepted until the summary judgment is paid, and notification of same is mailed to all previously notified agencies.

CRM 300 - 1

Chapter 301

MISDEMEANOR PRE-TRIAL PROCEEDINGS MISDEMEANOR: A crime that is less serious than a felony, but higher than an infraction. Except in cases where a different punishment is prescribed by law, every offense declared to be a misdemeanor is punishable by the imposition of probation, imprisonment in the county jail not exceeding six months, and/or by a fine not exceeding one thousand dollars ($1,000.00). In no case shall a person be confined within the county jail for a period exceeding one year. (Black’s Law Dictionary, PC17, PC19, and PC19(b) Black’s Law Dictionary, PC17 and PC19)

CRM 300 - 2

Chapter 302

MISDEMEANOR STATUTORY TIME LINES Arraignment to Trial: Custody…………………30 days (PC 1382(a)(3)) Non-Custody……………45 days (PC 1382(a)(3)) Arraignment to Trial Setting Date: Custody…………………10 days-No time waiver Non-custody…………….21 days-with/without time waiver Bail Reviews: Set within 5 calendar days from date that bail is set. (PC 1270.2) Probation Hearing………………………..21 days (PC 1449) Time for Judgment: Not less than 6 hours, not more than 5 days after plea, verdict or finding unless time is waived. (PC 1449)

CRM 300 - 3

Chapter 303

MISDEMEANOR FLOW CHART

CR (Rev.2014) 300 - 4

Chapter 304

MISDEMEANOR ARRAIGNMENT

When the complaint or citation is filed, the defendant must be arraigned before the court in which it is filed, unless the action is transferred to some other court for trial. The arraignment must be by the court, the clerk or prosecuting attorney under its direction, and consists of reading the accusatory pleading to the defendant, asking him whether he pleads guilty or not guilty (a clerk arraignment may only enter a not guilty plea). In cases where the accusatory pleading charges a misdemeanor a true copy thereof need not be delivered to any defendant unless requested by the defendant. (PC 988) In all cases in which the accused is charged with a misdemeanor only, an attorney may appear on his behalf except in cases where the defendant is charged with an offense involving domestic violence or violating a protective order. The court may order a defendant charged with a misdemeanor offense involving driving under the influence to be present for arraignment, plea, or at sentencing. (PC 977 et seq.) A defendant who is not represented by counsel must be personally present at the arraignment. If the defendant has been discharged on bail, and does not appear for arraignment when his personal presence is necessary, the court, in addition to the forfeiture of bail, may order the issuance of a bench warrant for his arrest. (PC 978.5)

ELEMENTS OF ARRAIGNMENT

Determining defendant’s true name (PC 989) and date of birth if the defendant appears to have been a minor at the time the offense was committed. (PC 859)

Appointment/re-appointment of counsel. (PC 987.2)

Reading of the accusatory pleading (or waiver of reading). (PC 988)

Delivering a true copy of the accusatory pleading to the defendant. (PC 988, PC 859)

Advising defendant of his/her constitutional rights.

Asking defendant to enter a plea or having counsel enter a plea on his/her behalf. (PC 1017)

CRM 300 - 5

PLEAS

Following the reading of the complaint, the defendant is asked whether he/she pleads guilty or not guilty to the offense charged. (PC 988)

Every plea must be made in open court and may be oral or in writing, and must be entered upon the minutes of the court. (PC 1017)

Unless otherwise provided by law, every plea must be put in by the defendant himself/herself in open court. (PC 1018)

Choice of Plea. (PC 1016)

1. Guilty.

2. Not Guilty.

3. Nolo Contendere, subject to approval of the court.

4. A former judgment of conviction or acquittal of the offense charged.

5. Once in jeopardy.

6. Not guilty by reason of insanity.

RIGHTS The advisement of rights may be given collectively. However, individual advisement or inquiry by the Court is required when there is a question of waiver. (PC 858, PC 987)

1. Private counsel or court appointed counsel if indigent. (PC 987)

2. Right of self-representation (Faretta Motion)

3. Time to answer If, on arraignment, the defendant requires it, he/she is entitled to a reasonable time to answer, not to exceed seven days for a misdemeanor or infraction. (PC 990)

4. Presumption of innocence (PC 1096)

5. Speedy trial (Cal. Const, Article I, Sec. 13; PC 686(1))

With a time waiver: If the defendant consents to or requests a trial date beyond the prescribed period, he/she is entitled to be tried on the date set for trial, or within 10 days thereafter, unless good cause is shown. (PC 1382)

6. Jury Trial Defendant has the right to a jury; and Defendant has the right to waive a trial by jury with the consent of the prosecutor. (CA Const. Art I, Sec 7)

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7. Confront and cross-examine witnesses against him/her. (U.S. Const. Amendment. VI; PC686(3))

8. Right to the subpoena power of the court (CA Const. Art. I, Sec 13; PC 1326)

9. Right against self-incrimination (CA Const. Art. I, Sec. 13, EC930-940)

10. Right to testify in his/her own behalf (CA Const. Art. I, Sec. 13, EC930-940)

11. Time for judgment

12. Evidence affecting sentence The Court shall inform the defendant of the information to be considered and permit him/her to answer or controvert it. A continuance may be granted for this purpose. (PC 1203)

13. Appeal Not a mandatory right, but may be included. (PC 1466)

RIGHT TO COUNSEL If a defendant appears for arraignment without counsel, he/she shall be informed by the court that it is his/her right to have counsel before being arraigned, and shall be asked if he/she desires the assistance of counsel. If the defendant wishes to retain counsel, the Court shall continue the arraignment to obtain private counsel. If the defendant desires but is unable to retain counsel, the Court may require him/her to file a financial statement under penalty of perjury. The Court will use this information to determine whether a defendant is unable to retain counsel. (PC 987(c)) Then, the Court shall do one of the following:

If the Court finds the defendant indigent, it will appoint counsel. At the conclusion of the case, the Court may re-evaluate the defendant’s finances to determine if he/she is now able to reimburse the county for attorney fees. Or If the Court finds the defendant near-indigent, the Court may continue the case for arraignment. It may then refer the defendant to a panel of attorneys that may give him/her a reduced rate in fees.

Assigned counsel shall receive reasonable compensation and reimbursement for necessary expenses. This amount shall be determined by the Court and paid out of the general fund of the county, if:

1. There is no public defender in the city, or city and county.

2. Because of conflict of interest, or other reasons, the public defender has properly refused to represent the person accused. (PC 987.2)

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The judge of the court shall consider the following factors, none of which shall be controlling, when determining the amount of compensation: (PC 987.3)

1. Customary fee in the community or similar services rendered by privately retained counsel to a non-indigent client.

3. The time and labor required of the attorney.

4. The difficulty of the defense.

5. The novelty or uncertainty of the law upon which the decision depended.

6. The degree of professional ability, skill, and experience called for, and exercised in, the performance of the services.

7. The professional character, qualification, and standing of the attorney. NOTE: Check your local policy regarding the appointing and payment of court-appointed

counsel.

If the defendant seeks to waive counsel and represent himself/herself, the Court must determine the validity of the waiver. This means the Court will ask the defendant questions to determine if he/she is mentally capable of representing himself/herself and if he/she is literate. The Court must also make sure the defendant is informed of his/her right to counsel, aware of the dangers of representing himself/herself and that he/she is doing this against the advice of the counseling attorney. This information must be put on the record.

8. The time and labor required of the attorney.

9. The difficulty of the defense.

10. The novelty or uncertainty of the law upon which the decision depended.

11. The degree of professional ability, skill, and experience called for, and exercised in, the performance of the services.

12. The professional character, qualification, and standing of the attorney. NOTE: Check your local policy regarding the appointing and payment of court-appointed

counsel.

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Chapter 305

PRE-TRIAL CONFERENCE

Definition: A settlement conference is defined as a calendared conference before or after the start of the trial among parties and the judicial officer for the specific purpose of settling the case. (JBSIS Manual version 2.1 07/01/00)

The purpose of the pre-trial conference is to discuss the possibility of disposing of the case prior to trial or to discuss measures to facilitate the expeditious handing of the trial. Rulings may cause the defendant to change his or her plea, or issues are clarified and points of common ground are found. A formal pre-trial conference may be held in chambers between the Court and all counsel, or an informal pre-trial conference may be held at the bench. In either case, the minute order should reflect that a pre-trial conference was held. The Court and counsel confer off the record. Both sides present their perspective of, and position on, the case. Defense counsel initiates negotiations. The prosecutor may agree or make counter offers. The Court can guide the conference and make recommendations to keep negotiations from reaching an impasse. Pre-trial conferences statistics are included on the monthly JBSIS report to the Judicial Council for all courts.

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Chapter 401

FELONY

PRE-TRIAL PROCEEDINGS

FELONY: A felony is a crime punishable with death, by imprisonment in state prison or by imprisonment in a county jail under PC1170(h) (PC17). A defendant charged with a felony has a right to trial by jury or by Court, and has a right to be represented by an attorney at all proceedings. Common examples of felonies are murder, robbery, burglary, and possession of a controlled substance for sale.

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Chapter 402

FELONY STATUTORY TIME LINES Arrest to arraignment ...............................48 hours, excluding Sundays and holidays, if in .................................................................. custody PC 825 Bail review ...............................................5 calendar days from date that bail is set PC 1270.2 Time to Set Preliminary Examination......10 court days of arraignment or plea PC 859b Felony reduction per PC 17b5 .................10 days with no time waiver at or before preliminary

hearing. Time wavier starts to run again at time of reduction. Arraignment on information ....................The information must be filed within 15 days after a

person has been held to answer and the arraignment must be held on the date the information is filed or as soon thereafter as the court directs. CRC 4.110

Jury Trial ..................................................60 days of arraignment PC 1049.5 Probation and Sentencing hearing ..........20 court days of conviction PC 1191

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Chapter 403

FELONY FLOWCHART

CRM 400 - 4

Chapter 404

FELONY ARRAIGNMENT

ARRAIGNMENT ON COMPLAINT When the complaint or citation is filed, the defendant must be arraigned before the court in which it is filed, unless the action is transferred to some other court for trial. The arraignment consists of reading the Complaint or citation to the defendant, and asking him whether he pleads guilty or not guilty. (PC988) In any case in which the accused is charged with a felony, the defendant must be personally present at the arraignment. If the defendant is in custody, the court may instruct the officer in whose custody he is to bring him before the court to be arraigned. The defendant must be present at all other proceedings unless a written waiver is on file. (PC977(b)(1)) If the defendant has been discharged on bail, and does not appear for arraignment when his personal presence is necessary, the court, in addition to the forfeiture of bail, may order the issuance of a bench warrant for his arrest. (PC978.5) ELEMENTS OF ARRAIGNMENT

Determining defendant’s true name and date of birth if the defendant appears to have been a minor at the time the offense was committed. (PC989, PC859)

Appointment/re-appointment of counsel. (PC987.2)

Reading of the accusatory pleading (or waiver of reading).

Delivering a true copy of the accusatory pleading to the defendant. (PC988, PC859)

Advising defendant of his/her constitutional rights.

Asking defendant to enter a plea or having counsel enter a plea on his/her behalf. (PC1017)

PLEAS

Following the reading of the complaint, the defendant is asked whether he/she pleads guilty or not guilty to the offense charged. (PC988)

Every plea must be made in open court and may be oral or in writing, and must be entered upon the minutes of the court. (PC1017)

Unless otherwise provided by law, every plea must be put in by the defendant himself/herself in open court. (PC1018)

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Choice of Plea (PC1016)

1. Guilty.

2. Not Guilty.

3. Nolo Contendere, subject to approval of the court.

4. A former judgment of conviction or acquittal of the offense charged (Double Jeopardy).

5. Once in Jeopardy.

6. Not Guilty by reason of Insanity.

RIGHTS The advisement of rights may be given collectively. However, individual advisement or inquiry by the Court is required when there is a question of waiver. (PC858, 987)

1. Private counsel

2. Continuance to obtain counsel on complaint (PC859)

3. Court appointed counsel

a. Indigent

b. Conflict of Interest (co-defendants) (PC858)

4. Right of self-representation (Faretta Motion)

5. Time to answer

If, on arraignment, the defendant requires it, he/she is entitled to a reasonable time to answer, which shall be not less that one day for a felony and not to exceed seven days for a misdemeanor or infraction. (PC990)

6. Presumption of innocence (PC1096) 7. Speedy trial (Cal. Const, Article I, Sec. 13; PC686(1))

With a time waiver: If the defendant consents to or requests a trial date beyond the prescribed period, he/she is entitled to be tried on the date set for trial, or within 10 days thereafter, unless good cause is shown. (PC1382)

8. Jury Trial

Defendant has the right to a jury; and Defendant has the right to waive a trial by jury with the consent of the prosecutor. (CA Const. Art I, Sec 7)

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9. Confront and cross-examine witnesses against him/her. (U.S. Const. Amendment. VI; PC686(3))

10. Right to the subpoena power of the court (CA Const. Art. I, Sec 13;

PC1326) 11. Right against self-incrimination (CA Const. Art. I, Sec. 13, EC930-940) 12. Right to testify in his/her own behalf (CA Const. Art. I, Sec. 13, EC930-

940) 13. Time for judgment 14. Evidence affecting sentence

The Court shall inform the defendant of the information to be considered and permit him/her to answer or controvert it. A continuance may be granted for this purpose. (PC1203)

15. Appeal

Mandatory for all felony sentencing (PC1235 et seq.)

RIGHT TO COUNSEL If a defendant appears for arraignment without counsel, he/she shall be informed by the court that it is his/her right to have counsel before being arraigned, and shall be asked if he/she desires the assistance of counsel. If the defendant wishes to retain counsel, the Court shall continue the arraignment to obtain private counsel. If the defendant desires but is unable to retain counsel, the Court may require him/her to file a financial statement under penalty of perjury. The Court will use this information to determine whether a defendant is unable to retain counsel. (PC987c) Then, the Court shall do one of the following:

If the Court finds the defendant indigent, it will appoint counsel. At the conclusion of the case, the Court may re-evaluate the defendant’s finances to determine if he/she is now able to reimburse the county for attorney fees.

Or

If the Court finds the defendant near-indigent, the Court may continue the case for arraignment. It may then refer the defendant to a panel of attorneys that may give him/her a reduced rate in fees.

If the defendant seeks to waive counsel and represent himself/herself, the Court must determine the validity of the waiver. This means the Court will ask the defendant questions to determine if he/she is mentally capable of representing himself/herself and if he/she is literate. The Court must also make sure the defendant is informed of his/her right to counsel, aware of the dangers of representing himself/herself and that he/she is doing this against the advice of the counseling attorney. This information must be put on the record.

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Chapter 405

COURT-APPOINTED COUNSEL

In a case in which a person desires, but is unable to employ counsel, the judge of the superior court may assign counsel for representation. Assigned counsel shall receive reasonable compensation and reimbursement for necessary expenses. This amount shall be determined by the Court and paid out of the general fund of the county, if:

1. There is no public defender in the city, or city and county. 2. Because of conflict of interest, or other reasons, the public defender has

properly refused to represent the person accused. (PC987.2) The judge of the court shall consider the following factors, none of which shall be controlling, when determining the amount of compensation: (PC987.3)

1. Customary fee in the community or similar services rendered by privately retained counsel to a non-indigent client.

3. The time and labor required of the attorney. 4. The difficulty of the defense. 5. The novelty or uncertainty of the law upon which the decision depended. 6. The degree of professional ability, skill, and experience called for, and

exercised in, the performance of the services. 7. The professional character, qualification, and standing of the attorney.

NOTE: Check your local policy regarding the appointing and payment of court-appointed

counsel.

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Chapter 406

PRE-PRELIMINARY HEARINGS

EARLY RESOLUTION COURT

The purpose of the pre-preliminary hearing or early resolution court is to discuss the possibility of disposing of the case prior to preliminary hearing. Rulings may cause the defendant to change his or her plea, or issues are clarified and points of common ground are found. The Court and counsel may confer informally or on the record. Both sides present their perspective of, and position on, the case. Defense counsel initiates negotiations. The prosecutor may agree or make counter offers. The Court can guide the conference and make recommendations to keep negotiations from reaching an impasse.

Superior courts having more than three judges must, in cooperation with the district attorney and defense bar, adopt procedures to facilitate dispositions before the preliminary hearing and at all other stages of the proceedings. (CRC10.953(a))

The procedures may include early, voluntary, informal discovery and the use of superior court judges as magistrates to conduct readiness conferences before the preliminary hearing and to assist, where not insistent with law, in the early resolution of the cases.

Pleas of guilty or no contest resulting from proceedings prior to preliminary hearing or early resolution court must be disposed of as provided in CRC4.114.

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Chapter 407

PRELIMINARY HEARINGS

A preliminary hearing is heard at the preliminary level court. The charging document at this stage is a complaint. The purpose of the hearing is to establish whether there exists probable cause to believe that the defendant has committed a felony. [PC 866(b)] Setting the hearing: The preliminary hearing must be held not less than 2 court days nor more than 10 court days of the date of the arraignment. Both sides have a right to have a preliminary hearing within 10 court days, unless both sides waive that right or good cause is found for the continuance as provided in PC 1050. [PC 859b] One Session Rule: The preliminary hearing shall be completed at one session unless the defendant personally waives his/her right to a continuous preliminary hearing. (PC 861) Elements of the hearing:

1. Evidence is presented by the People/Prosecutor – witnesses are sworn, exhibits are marked.

2. Witnesses to be sworn and examined in the presence of the defendant and may be cross-examined (PC 865)

3. At the conclusion of the Prosecutor’s/People’s case, the defense may call witnesses to be sworn and examined (PC 866)

4. The Court may exclude all witnesses who have not been examined. The court may direct the witnesses to be separated and admonish them not to discuss the testimony with each other (PC 867)

5. At the conclusion of the evidence, both sides may present arguments.

Once the case is submitted, the Court may make the following findings:

6. If the Court finds no crime committed and/or no sufficient cause to believe the defendant guilty, the Court will discharge the defendant and dismiss the case. (PC 871)

7. The Court finds sufficient cause to believe the defendant is guilty and the defendant is

Held To Answer. (PC 872)

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Form of Holding Order (PC 877):

When the defendant is held to answer, the Commitment/Holding order must contain the following:

County of __________ The people of the State of California to the Sheriff of the County of ___________

An order having been this day made by me, that (defendant’s name) be held to answer upon a charge of (list charge/charges, date and place charges committed), you are commanded to receive him into your custody and detain him until he is legally discharged. Dated ___________

Components of a Preliminary Hearing Minute Order:

• Appearances

• Evidence

• Findings

• Future Dates

• Custody Status

• One Session Waiver

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Chapter 408

ARRAIGNMENT ON INFORMATION AND INDICTMENTS At the arraignment on the information or indictment, unless otherwise ordered for good cause, and on a plea of not guilty, including a plea of not guilty by reason of insanity, the Court shall set the dates for:

1. Trial, giving priority to a case entitled to priority under law;

2. A readiness conference within one to 14 days before trial;

3. A date for filing and service of motions and responses and hearing thereon;

A plea of not guilty shall be entered if a defendant represented by counsel fails to plead or demur; and an attorney may not appear specially. (CRC4.100)

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Chapter 409

CHANGE OF PLEA

WAIVER OF RIGHTS

Prior to accepting a plea of guilty, the Court must ascertain the following from the defendant:

1. Waiver of rights:

a. Privilege against self-incrimination. (PC866.5) b. To trial by jury. (People v Garza (1983) 142 CA3d 131, 133, 190

CR824 (court not required to advise defendant that trial jury is composed of 12 persons))

c. To remain silent. (Cal. Const. Art. I, 15; Evid. C 930, 940) d. Confront witnesses against him/her. (Cal. Const. Art. I, 48; PC686) e. To present a defense, including the subpoena power of the court.

(§91.8 Boykin-Tahl)

2. Understands the nature of the charge against him/her. 3. Understands the possible defense to the offense charged, and the possible penalties

therefore (PC1016.5).

a. Minimum and maximum sentence and fines. b. Imposition of restitution to crime victim and restitution fine under

PC 1202.4.

c. Probation ineligibility.

d. Maximum parole period and parole violations.

e. Registration with law enforcement authorities.

f. Revocation or suspension of driving privilege.

g. Deportation, exclusion from the United States, or denial of naturalization.

h. Consequences of a “Strike” prior.

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4. The Court questions the defendant as to:

a. His/her true name;

b. If he/she is under any influence of alcohol/drugs;

c. If he/she has any questions;

d. If any promises or threats made regarding entering the plea, other than what is reflected on the change of plea form;

e. If the plea is being entered voluntarily;

f. If he/she has an understanding of the impact of probation or the maximum punishment for the crime.

The record must contain the fact that the defendant was advised of his/her rights and knowingly, intelligently and understandingly waives them. Each right and the waiver must be specified in the record. The record must be complete, with the waiver of rights clearly marked on the record. TIME FOR SENTENCE

For felony cases, setting time for pronouncement of judgment is within 20 judicial days, unless time is waived. (PC1191, PC859A)

CR (REV.2014) 500-1

Chapter 501

NOTICE REQUIREMENTS FOR WRITTEN MOTIONS

A motion is an oral or written application made to a court for obtaining a ruling or order directing some act to be done in favor of the applicant (also called moving party). Hearings may be set specifically to hear motions, or motions may be made informally during other proceedings, such as a trial. Motions are usually made within the framework of an existing action or proceedings and are ordinarily made with notice to the opposing party; however, some motions are made without notice. Although most motions are heard orally in open court, as opposed to submitted strictly on the pleadings, motions statutorily require the moving party to provide notice of the motion to the opposing party. In addition to the notice requirements set forth in California Rule of Court 4.111, you should consult your Local Rules of Court to ascertain if additional motion requirements exist. Unless otherwise indicated, the following notice requirements pertain to the types of motions in Part 500:

1. Noticed motions shall be accompanied by Points and Authorities, and shall be served on the opposing party at least 10 court days prior to the motion hearing.

2. Written opposition to the motion shall be served on the moving (motioning)

party and filed with the court at least five court days prior to the motion. 3. All reply papers (usually from the moving party) shall be served and filed

with the court at least two court days prior to the hearing.

If the moving party cannot adhere to the notice requirements, the moving party must obtain an Order Shortening Time prior to filing the motion or concurrent with the setting of the motion date. Courts usually address the manner in which the Order Shortening Time shall be obtained in the Local Rules of Court. Often the moving party accomplishes this by appearing ex-parte.

CR (REV.2014) 500-2

Chapter 502

MOTION PROCEDURE

The moving party will file a Notice of Motion with the court, either in the designated courtroom or the clerical business office. The Notice of Motion should contain the case caption, the case number, the type of motion, and a place to record the date, time, and place the motion will be heard. Courts vary on how the motion date is obtained; some courts allow the moving party to select the date, and some courts assign the date. Additionally, most courts require any future court dates be reflected on the Notice of Motion page.

The clerk accepting the motion will:

1. Verify the required information is present.

2. Verify the scheduled motion date, time, and department is within the court’s parameters. If applicable, verify the moving party has obtained an Order Shortening Time.

3. File stamp the original Notice of Motion, and any attached Points and Authorities.

4. Conform two copies of the original documents; one copy will be served on the opposing party, and one copy for the moving party. (Note: The moving party may make photocopies of the conformed copy to enable service on all parties to the motion.)

5. File the original documents and returned the conformed copies to the moving party.

6. Follow local court procedure regarding immediately forwarding the motion to the research attorney/judicial officer, or holding the file until local court procedure indicates it should be forwarded.

7. File the proof(s) of service in the case file upon receipt.

8. File any Opposition to Motion paperwork, according to local court procedure.

9. File any Reply (or Response) paperwork, according to local court procedure.

On the day of the motion, the court clerk is responsible for recording each motion, whether there was opposition (or argument) to the motion or if it was submitted on the pleadings, and the judicial officer’s ruling on the motion (GC69844). The court clerk must also record any ancillary orders made by the judicial offer. The moving party is required to prepare the Notice of Ruling (or Order) for the judicial officer’s signature; however, if the opposing party prevails, the judicial officer may require the opposing party to prepare the order. When the Notice of Ruling is filed and signed by the judicial officer, the clerk should file stamp the original and conformed copies, and affix the judge’s line stamp on the conformed copies. Return the conformed copies to the party that prepared the Notice of Ruling for service upon all affected parties. There may be occasions where the court clerk must prepare an order, either in lieu of or in addition to the Notice of Ruling. An example would be an order to the sheriff regarding a prisoner’s clothing (often called a “dress out order”) for a future court hearing, medical orders, or other orders unique to your court and local sheriff’s office.

CRM 500 - 3

Chapter 503

DEMURRER

A demurrer raises an issue of law as to the sufficiency of the complaint, information, or indictment. It may be used to challenge only those defects that appear on the face of the complaint. The demurrer must be made in open court, either at the time of the arraignment or at such other time as may be allowed to the defendant for that purpose. (PC1003) GROUNDS FOR DEMURRER (PC1004) The defendant may demur to the accusatory pleading at any time prior to the entry of a plea, when it appears upon the fact thereof either:

1. If an indictment, that the grand jury by which it was found had no legal authority to inquire into the offense charged, or, if an information or complaint, that the court has no jurisdiction of the offense charged therein;

2. The charging document does not substantially conform to the provisions of

PC 950 and 952, and also PC 951 in case of an indictment or information; 3. That more than one offense is charged, except as provided in PC 954; 4. That the facts stated do not contribute to a public offense; 5. That the charging document contains matter, which, if true, would constitute

a legal justification or excuse of the offense charged, or other legal bar to the prosecution.

FORM OF DEMURRER The demurrer must be in writing, signed either by the defendant or his/her counsel and filed with the court. It must specify the grounds on which the demurrer is brought. (PC1005) HEARING ON DEMURRER Upon filing of the demurrer, the argument upon the objections presented must be heard immediately, unless for exceptional cause, a continuance is granted. The continuance shall be no longer than the ends of justice require, and shall be entered into the court minutes. (PC1006)

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ORDER OF THE COURT

The court must make an order whether overruling or sustaining the demurrer.

1. Order overruling: Time to Plead If the demurrer is overruled, the defendant must plead forthwith, unless the

Court extends the time. (PC1007) 2. Order sustaining with Leave to Amend If the demurrer is sustained, but the defect can be remedied, the Court must

permit the filing of an amended complaint within such time not exceeding 10 days as it may fix. If the people fail to amend in the time fixed, the action shall be dismissed. (PC1007)

3. Order sustaining Without Leave to Amend If the defect cannot be remedied by amendments, the Court should sustain

the demurrer without leave to amend. The complaint shall be dismissed and, except as provided in PC 1010, the Court must order, if the defendant is in custody, that he/she be discharged and any bail exonerated. (PC1008)

AMENDMENT PRIOR TO HEARING ON DEMURRER Prior to the hearing on demurrer, the district attorney may file an amended complaint without leave of Court. The defendant shall plead to the amended complaint forthwith, or at the time fixed for pleading. A complaint cannot be amended to charge an offense not attempted to be charged by the original complaint, except that separate counts may be added which might properly have been joined to the original complaint. (PC1009)

WAIVER OF DEMURRER Failing to take objections mentioned in PC 1004 by demurrer shall be deemed a waiver thereof, except that the objection to the jurisdiction of the court and the objection that the facts stated do not constitute a public offense may be taken by motion in arrest of judgment (see Chapter 7 of the Penal Code, commencing with PC1185). (PC1012)

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Chapter 504

SETTING ASIDE THE INDICTMENT OR INFORMATION PC 995

Subject to subdivision (b) of PC 995a, the indictment or information shall be set aside by the court in which the defendant is arraigned, upon his or her motion, in either of the following cases:

1. If it is an indictment:

a. Where it is not found, endorsed, and presented as prescribed in this code (Penal Code).

b. That the defendant has been indicted without reasonable or probable

cause.

2. If it is an information:

a. That before the filing thereof the defendant had not been legally committed by a magistrate.

b. That the defendant had been committed without reasonable or

probable cause. c. In cases in which the procedure set out in subdivision (b) of PC 995a is

utilized, the court shall reserve a final ruling on the motion until those procedures have been completed.

CRM 500 - 6

Chapter 505

TYPES OF MOTIONS AND ASSOCIATED COURT ORDERS

MOTIONS FOR CHANGE OF VENUE In a criminal action pending in the superior court, the Court shall order a change of venue:

1. On motion of the defendant, to another county when it appears that there is a reasonable likelihood that a fair and impartial trial cannot be had in the county. When a change of venue is ordered by the superior court, it shall be for the trial itself. All proceedings before trial shall occur in the county of original venue, except when it is evident that a particular proceeding must be heard by the judge who will preside over the trial.

2. On its own motion or on motion of any party, to an adjoining county when it

appears, as a result of the exhaustion of all the jury panels called, that it will be impossible to secure a jury to try the cause in the county. (PC1033)

Filing Application for Change of Venue Unless good cause is shown, an application for a change of venue pursuant to PC 1033 or PC 1034 requires a noticed motion supported by affidavit filed with the court, setting forth the facts upon which the motion for Change of Venue is based. The application shall be filed at least 10 days prior to the date set for trial, and served on the adverse party at least 10 days prior to the hearing. (CRC4.151) Selection of Court Upon determination that the case should be transferred pursuant to PC 1033 or PC 1034, the court in which the action is pending shall advise the Administrative Director of the Courts of the pending transfer. The Director shall, in order to expedite judicial business and equalize the work of the judges, suggest a court or courts that would not be unduly burdened by the trial of the case. The court in which the action is pending shall transfer the case to a proper court as it determines to be in the interest of justice. (CRC4.152) Order of Transfer The order of transfer is entered into the court minutes or the docket and the clerk shall immediately transmit to the court to which the action is transferred, a certified copy of the order of transfer record, pleadings and proceedings in the action, including the undertakings for the appearance of the defendant and of the witnesses. (CRC4.153)

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Proceedings in Court Receiving the Case The court to which the action is transferred shall proceed as if the action had been commenced in such court. If it is necessary to have any of the original pleadings or other papers before such court, the court from which the action is transferred shall at any time upon application of the parties, order the papers or pleadings from the clerk at the original court. (CRC4.154) (Practical note: Most courts transmit the original documents, retaining a certified copy in the court file.) Court’s Motion to Return Action to Original Place of Trial In an action or proceeding in which the place of trial has been changed for any of the reasons set forth in PC 1033, the Court, upon its own motion or the motion of any party, may return the action or proceeding to the original place of trial if BOTH the following conditions apply:

1. The action or proceeding is pending before the Court after reversal of the original judgment by the appellate court.

2. The Court finds that the conditions that originally required the order to

change venue, as set forth in PC 1033, no longer apply. Prior to making such a finding, the Court shall conduct a hearing, upon notice to all parties. At the hearing the burden shall be on the prosecution to establish that the conditions which originally required the order to change venue no longer apply, unless the defendant and his/her attorney consent to the return of the action or proceeding to the original place of trial. (PC1033.1)

Transfer of Proceedings for Plea and Sentencing in County Where Defendant Held A defendant arrested, held, or present in a county other than that in which an indictment, information, felony complaint, or felony probation violation is pending against the defendant, may state, in writing, his/her agreement to plead guilty or nolo contendre to all or some of the pending charges, to waive trial or hearing in the county in which the pleading is pending, and to consent to disposition of the case in the county in which the defendant was arrested, held, or present, subject to the approval of the district attorney for each county. Upon receipt of this written notification from the defendant, the court clerk shall transmit the papers or certified copies of the proceedings to the court in which the defendant has been arrested, held, or present. The proceedings shall be limited solely to the purposes of plea and sentencing, and not for trial. If, after transfer of the proceedings or pleadings, the defendant pleads not guilty, the clerk shall return the papers or pleadings to the original court in which the prosecution was commenced. The defendant’s statement that he/she wishes to plead guilty or nolo contendre may not be used against the defendant. (PC1035)

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Change of Venue Order May be Set Aside if Original Conditions Change Following resolution of pre-trial motions, and prior to the issuance of an order under PC 1036 or the transmittal of the case file for the purpose of trial to the court to which venue has been ordered transferred, the Court may, upon its own motion or the motion of any party and on appropriate notice to the court to which venue has been transferred, set aside its order to change venue on the ground that the conditions which originally required the order to change venue, as set forth in PC 1033 or PC 1034, no longer apply. (PC1036.5) EX-PARTE MOTIONS FOR APPOINTMENTS OR FOR FUNDS One side may submit ex-parte motions in a criminal action without notice to the opposing party. The defendant for either of the following frequently makes these motions: Appointment Orders The defendant may ask for the appointment of investigators, expert witnesses, confidential medical and/or psychological evaluation of the defendant, or additional funds to assist in the defense. If a psychological or medical examination is ordered, the request and the ruling may be ordered sealed as confidential, and the examination report is usually provided directly and only to defendant’s counsel. Capital Case Request for Funds A defendant charged with a capital offense may request funds to pay for investigators, experts, and others for the preparation and presentation of their defense under Penal Code Section 987.9.

MOTIONS TO RELIEVE COUNSEL Defendant’s Motion to Proceed in Propria Persona A defendant’s motion to waive his/her right to counsel and to represent himself/herself at all proceedings is made under Faretta v. California [(1975) 422 U.S. 806; 45L.Ed.2d 562, 95 S.Ct.2525] The Court must then make its ruling pursuant to People v. Lopez [(1977) 71 Cal.3d568, 138 CR 36]. Appointed Defense Counsel’s Declaration of Conflict If appointed counsel (Public Defender, Alternate Public Defender, or local Private Conflict Counsel) find that they or their office has a conflict of interest in representing an indigent defendant, they may make a motion to be relieved by the Court and have new counsel appointed. Defendant’s Marsden Motion to Relieve Counsel for Inadequate Representation This motion may be made by a defendant to have his or her court-appointed attorney discharged due to inadequate representation. The grounds may be that a defense was not presented, that

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counsel did not consult sufficiently with the defendant or did not adequately investigate the fact and the law, or that these omissions resulted in inadequate preparation for trial, but were not simply an unwise choice of trial tactics or strategy. [People v. Marsden (1970) 2 Cal.3d 118] The motion must be heard outside the presence of the prosecutor (all prosecutors, not just the one assigned to the case) to protect the defendant’s right against self-incrimination. The notes of the court reporter are usually ordered sealed by the Court, and the minute order should reflect only the Court’s ruling and not the statements made by the defendant during the hearing. Recusal Motion (Prosecutor) A motion to recuse may be made by either side or on the Court’s own motion to have the prosecuting agency removed from the case because of a conflict of interest. An example of a conflict of interest might be when the victim or witness is employed by the prosecuting agency, or is a relative of a prosecutor. A recusal motion must be made on the record and recorded within the minute order of the hearing. If a recusal motion is made by or against the district attorney and is granted, the case will be reassigned to the attorney general’s office.

MOTIONS TO DISQUALIFY JUDGE Peremptory Challenge Pursuant to CCP 170.6 A peremptory challenge, also called an affidavit of prejudice, automatically disqualifies a judge to whom a case has been assigned. The challenge must be made orally under oath, or in writing, but need not state facts showing the prejudice. Either side may “file” this peremptory motion against the judge. A party or attorney is permitted only one peremptory challenge/motion pursuant to CCP 170.6 for the disqualification of a judge in any one action. A re-trial of an action following a declaration of mistrial does not constitute a new action. However, the parties may “file” a peremptory challenge against the judge who is assigned to hear a re-trial after a reversal on appeal, if he/she is the same judge who heard the original trial. When an affidavit pursuant to CCP 170.6 is filed, the judge does not have discretion to determine the question of actual bias or prejudice. Disqualification is automatic upon the filing of such affidavit, unless there has been a previous affidavit filed in the action by the same party, or unless the challenge is found to be untimely. A party must file the affidavit for disqualification within 10 days after notice of the judge’s assignment of the case for all purposes. If filed later, the challenge may be found untimely and denied.

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Upon receipt of an oral or a written affidavit/challenge, the court clerk must check the file to determine if the party filing the challenge has filed an earlier challenge pursuant to the same code section. If so, this should immediately be called to the judge’s attention. If the Court accepts the filing of the challenge/affidavit, the clerk will so note the fact a party has filed a CCP 170.6 challenge. Usually a copy of the challenge/affidavit is provided to the presiding or supervising judge, and the challenged judge. The original is filed in the court file. Depending on court practice, the case file will be reassigned to another judicial officer. If the court does not accept the filing of the challenge/affidavit, the grounds for the denial of this motion must be stated on the minute order (untimely, second challenge, etc.). Challenge for Cause Pursuant to CCP 170.1 A challenge for cause is a written, verified statement objecting to a hearing or trial before a certain judge. The statement sets forth the facts constituting the grounds for disqualification. Either party may file this motion alleging bias or prejudice. Within 10 days from the filing of the motion, or service of the motion upon the judge and all parties, whichever is later, the judge must file with the clerk either:

1. Consent in writing that the proceedings or trial be heard before another judge; or

2. A verified answer admitting or denying any or all of the allegations.

The clerk must immediately present the affidavit or motion to the judge. If the judge admits the allegations, files his/her written consent that the case may be heard before another judge, or fails to file his/her answer within the 10 days allowed, the trial or proceedings will be transferred to another judge who is not disqualified. If the judge files his/her answer denying the allegations, another judge will determine the issue. All parties have five days after the deadline for filing the judge’s answer within which to agree upon a judge to hear the motion. If the parties agree upon a judge and that judge agrees to hear the motion, the file may be transferred directly to that judge for the hearing. If the parties state in open court that they will not be able to agree upon a judge to hear the motion (even if the five-day period has not elapsed), or if the parties fail to agree upon a judge within the five-day period, the Judicial Council will be notified and the matter will be assigned to a judge outside the original court’s jurisdiction. Recusal by a Judge Pursuant to CCP 170.3 If a judge determines himself/herself to be disqualified, the judge shall notify the Supervising Judge of his/her recusal and shall not further participate in the proceedings, except to set proceedings for trial or hearing pursuant to CCP 170.4, unless the disqualification is waived by all parties. (CCP170.3(b)(2))

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If a bench officer recuses himself/herself pursuant to CCP 170.3, the case will be transferred to the Supervising Judge for reassignment. Record the Court’s recusal and the reasons for the recusal in the minute order. Transfer the case file to the Supervising Judge’s courtroom. MOTION TO CONTINUE (PC1050) To continue any hearing in a criminal proceeding, the following must be prepared or performed by counsel:

1. A written notice pursuant to PC 1050 shall be filed and served on all parties at least two court days before the hearing sought to be continued, together with affidavits or declarations detailing specific facts showing that a continuance is necessary; and

2. Within two court days of learning that he/she has a conflict in the scheduling

of any court hearing, including a trial, an attorney shall notify the calendar clerk, in writing, indicating which hearing was set first. (PC1050b)

(Note: As a practical matter, usually only motions to continue trial require the PC 1050 written notice. Check your local court practice.) Continuances shall be granted only upon a showing of good cause. Neither the convenience of the parties nor a stipulation of the parties is, in and of itself, good cause. Whether the Court finds good cause, or not, shall be entered in the minutes. (PC1050(d) and (e)) If the Court finds good cause to continue a trial or demurrer, the reason for the continuance must be stated in the minutes. Additionally, any time waivers with respect to speedy arraignment, preliminary hearing, trial, and/or sentencing should be recorded in the minutes. In felony cases, the Court shall set a date for trial within 60 days of the defendant’s arraignment in the general jurisdiction court unless, upon a showing of good cause per PC 1050, the Court lengthens the time. If the Court finds good cause to set the date for trial beyond the 60 days, it shall state on the record the facts proved that justify the continuance. (PC1049.5) Continuances in Conjunction with Peremptory Challenge to Judge

Unless required for the convenience of the court or unless good cause is shown, a continuance of the trial or hearing shall not be granted by the filing of a Peremptory Challenge to Judge pursuant to CCP 170.6. If a continuance is granted, the matter shall be continued from day to day, or for other limited period, upon the trial or other calendar and shall be reassigned or transferred for trial or hearing as promptly as possible. (CCP710.6(4)) Continuances/Adjournment of Calendar when Judge is Absent

If the judge is absent for the calendar call, the court clerk should notify his/her supervisor immediately. Local court procedure may direct the case and parties report to the Supervising Judge for further action.

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If no judge attends on the day appointed for the holding or sitting of a court, or on the day to which it may be been adjourned, within one hour after the time appointed, the sheriff, or clerk shall adjourn the same until the next day, at 10:00 a.m., and if no judge attends on that day, before noon, the sheriff or clerk shall adjourn the same until the following day at the same hour, and so on from day to day unless the judge, by written order, directs it to be adjourned to some day certain, stated in the order, in which case it shall be so adjourned. (CCP139) If no judge of the court is available, the clerk shall notify the Chairman of the Judicial Council. (PC1053) MOTIONS FOR DISCOVERY

Motion for Discovery Pursuant to PC 1054

PC 1054 prescribes the specific information that the prosecuting agency must disclose to the defendant and PC 1054.3 prescribes the information that the defense must disclose to the prosecution. Both sides are to engage in this mutual informal discovery prior to trial, but if there are problems, either side may make a formal motion for discovery and ask the Court for a ruling. The formal discovery motion may be made in writing, or it may be oral. The minute order must specify the Court’s ruling, especially if the discovery is granted in part and denied in part. All discovery rulings are stated on the minute order. Typical requests made in discovery motions call for the disclosure of:

1. Names and addresses of persons which the prosecutor or defendant intend to call as witnesses at trial, including any relevant recorded or written statements of those persons. However, the addresses and telephone numbers of victims or witnesses may not be provided to the defendant or members of the defendant’s family. (PC1054.2)

2. All relevant real evidence seized or obtained as part of the investigation of the offenses charged, e.g., the arresting officer’s reports and notes, photos taken or sketches made, or items of clothing and personal effects worn or possessed by the defendant at the time of the offense.

3. The existence of a felony conviction of any material witness whose credibility is likely to be critical to the outcome of the trial.

4. Any exculpatory evidence.

5. Statements of all defendants.

6. The results of any physical or mental examinations, scientific tests, experiments, or comparisons that either side intends to offer at trial.

7. A motion may also be made to compel the defendant to submit to the taking of blood, breath, urine, voice samples, or fingerprinting.

Note: When a defendant is acting as his/her own attorney, the Court shall endeavor to protect the address and telephone number of a victim or witness by providing for contact only through a private investigator licensed by the Department of Consumer Affairs and appointed by the Court, or by imposing other reasonable restrictions, absent a showing of good cause as determined by the Court. (PC1054.2(b))

Defendant’s Motion for Discovery Pursuant to Pitchess v. Superior Court This is a defense motion to discover anything relevant in the personnel file of a law enforcement officer that discloses a propensity for violence, prior use of excessive force, ethnic or racial bias, or a habitual lack of credibility. [Pitchess v. Superior Court (1974) 11 Cal.3d 531] This motion is most often brought by a defendant who is charged with resisting arrest or assaulting a police officer, and who intends to rely on the theory of self-defense or excessive use of force on the part of the officer. This motion requires 16 court days’ notice to all parties. If this motion is granted, the Court will set a date or time in which a representative of the law enforcement agency (usually a city attorney) may present the personnel files to the Court. Because police personnel records are confidential under PC 832.8, the Court will usually examine the files in camera. At the motion hearing, the Court will either find the records (or parts of them) relevant and grant the motion for discovery (thereby ordering the production of records to the defense), or will find the records irrelevant to the pending case and deny the motion. As personnel records are confidential, the court clerk must take great care to protect them and ensure they are handled as the Court directs. Practical application: Most Courts simply set the date for the Pitchess motion and the custodian of records appears at the hearing. The custodian of records will accompany the judge into chambers (with counsel), and the Court conducts the review of the records at that time. This review is reported by a court reporter. Findings are then made on the record, in open court. Defendant’s Motion for Discovery Pursuant to Murgia v. Municipal Court This is a defense motion for the production of documents that would point to intentional discriminatory enforcement of penal laws. The defendant alleges that he/she is singled out as an individually selected class for special prosecutorial treatment. With such records, for example, the defense may statistically establish that prostitution statutes are enforced against women who engage in prostitution, but not against their male clients. If the discovery established that the prosecution is discriminatory, the defendant will proceed with a second motion to have the charges dismissed. If the Court grants the motion, the effect is to dismiss the case and discharge the defendant, based upon the ruling in Murgia, supra: “If an individual can show that he would not have been prosecuted except for such invidious discrimination against him, a basic constitutional principle has been violated, and such a prosecution must collapse under the sands of prejudice.” [Murgia v. Municipal Court (1975) 15 Cal.3d 286] Discovery Motion Pursuant to Eleazer v. Superior Court

This is a motion to require the prosecution to reveal the whereabouts of a confidential informant so that the defense may locate him or her. The Court held that the prosecution must make a good faith effort to keep in touch with a confidential informant or to locate the witness so that he or she could be served with a subpoena to come to court. The prosecution’s failure to comply with either of these terms could result in the granting of a defendant’s motion to dismiss under the same case. [Eleazer v. Superior Court (1970) 1 Cal.3d 847]

CR (Rev.2014) 500-13

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Discovery Motion Pursuant to Evans v. Superior Court This is a defense motion to compel a corporeal (body) lineup prior to trial. Since the prosecution has easy access to compelling a lineup, the Court may determine that the defense should have the same opportunity. [Evans v. Superior Court (1974) 11 Cal.3d 617] MOTIONS TO DISMISS CHARGES Motion to Dismiss Pursuant to PC 1377-1378 (Civil Compromise) Pursuant to PC 1377, when the person injured by an act constituting a misdemeanor has a remedy by a civil action, the offense may be compromised pursuant to PC 1378, except when committed as follows:

1. By or upon an officer of justice, while in the execution of the duties of his/her office.

2. Riotously.

3. With an intent to commit a felony.

4. In violation of any court order as described in PC 273.6 or 273.65.

5. By or upon any family or household member, or upon any person described within FC 6211 or PC 13700(b).

Pursuant to PC 1378, if the person injured appears before the Court in which the action is pending at any time before trial, and acknowledges that he/she has received satisfaction for the injury, the Court may, in its discretion, on payment of the costs incurred, order all proceedings to be stayed upon the prosecution and the defendant to be discharged there from, but in such case the reasons for the order must be set forth therein and entered on the minutes. The order is a bar to another prosecution for the same offense. If the court orders the proceedings permanently stayed and the defendant discharged pursuant to PC 1377 and 1378, the court clerk is to prepare a minute order and record the reasons for the civil compromise on the order. Motion to Dismiss Pursuant to PC 1381 or 1381.5 – Demand for Trial If a defendant is convicted of a misdemeanor or felony and has been sentenced and committed to a county or state facility (jail) for over 90 days and has another case awaiting trial or sentence (which has been filed prior to or after the commitment), the defendant may demand in writing to have that other case brought before the Court within 90 days after such notice. The defendant may waive this statutory time period in open court and request a continuance. If the prosecuting agency fails to bring the matter into court within the specified time, the action must be dismissed. (PC1381) If the defendant has been imprisoned in federal custody and has another case pending, the provision under PC 1381.5 applies.

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If a court clerk receives a written Demand for Trial pursuant to these sections, the demand should be brought to the attention of the Court and the prosecutor immediately. The Court may request the court clerk to remove the defendant from custody by issuing an order to produce for a court hearing. If the Court fails to sentence the defendant, or the prosecutor fails to bring the matter to trial, the Court will order the case dismissed. Motion to Dismiss Pursuant to PC 1382 A defendant may make a motion pursuant to PC 1382 to dismiss the case for lack of speedy trial, i.e., for lack of prosecution within the statutory time limits. Unless good cause to the contrary is shown or a defendant waives statutory time, the Court shall order the action to be dismissed if a defendant has been held to answer and a felony information is not filed with 15 days, or if a defendant charged with a felony is not brought to trial within 60 days of the arraignment in the general jurisdiction court. The Court, unless good cause to the contrary is shown, must order the action dismissed when a defendant in a misdemeanor case is not brought to trial within 30 days after arraignment if he/she is in custody at the time of the arraignment, or in all other cases, within 45 days after his/her arraignment, or if an action is set for trial on a date beyond the prescribed period at the request of the defendant or with his/her consent and the defendant is not brought to trial on the date so set for trial, or within 10 days thereafter. Motion to Dismiss Pursuant to Rost v. Municipal Court This is a motion to dismiss for lack of a speedy trial because the Court failed to meet the statutory deadlines set in PC 1381, 1381.5, and/or 1382. These sections refer to when the defendant is already incarcerated on another case or when deadlines are not met on initial trial. [Rost v. Municipal Court (1960) 184 Cal.App.2d 507] Motion to Dismiss Pursuant to Serna v. Superior Court This defense motion to dismiss is based upon an unexcused failure of police to serve a misdemeanor arrest warrant within one year of the filing of the complaint. It establishes the presumption that defendant’s right to a speedy trial has been violated. This motion is heard in limited jurisdiction courts only. [Serna v. Superior Court (1985) 40 Cal.3d 239] Motion to Dismiss Pursuant to PC 1385 The judge or magistrate may either, on its own motion or upon the application of the prosecuting attorney (or defendant’s counsel), and in furtherance of justice, order an action to be dismissed. The reasons of the dismissal must be set forth in an order entered on the minutes. No dismissal shall be made for any cause that would be grounds of demurrer to the accusatory pleading. “In the furtherance of justice” or “in the interests of justice” is not, in itself, a sufficient reason.

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Motion to Dismiss Remaining Counts Pursuant to Plea Agreement This motion is made by the prosecution or on the Court’s own motion, and heard after the defendant has been sentenced pursuant to a plea agreement. The Court will order all the remaining “open” counts (counts to which a plea of guilty or nolo contendere was not entered) dismissed in the furtherance of justice pursuant to PC 1385. Motion to Dismiss Pursuant to Kellett v. Superior Court This is a motion to dismiss based on multiple prosecutions for indivisible acts. Essentially, it is to simplify the charges against the defendant instead of charging all available offenses at once. [Kellett v. Superior Court (1966) 64 Cal.2d 822] Motion to Dismiss Pursuant to Twiggs v. Superior Court The basis of this motion is that the prosecutor engaged in a “vindictive” prosecution. The issue arose because, after a mistrial, the prosecutor offered a plea bargain that was refused by the defendant. In return, the prosecution filed several additional charges against the defendant to add to the re-trial. This case also held that when a confidential informant is a material witness on the issue of guilt, the prosecution must disclose his/her whereabouts to the defense or incur a dismissal. (See Eleazer under discovery motions above.) [Twiggs v. Superior Court (1983) 34 Cal.3d 360] EFFECT OF GRANTING A MOTION TO DISMISS Misdemeanor Cases A dismissal of a misdemeanor (that is not charged with a felony) pursuant to PC 1381, 1381.5, 1382, or 1385, is a bar to any other prosecution for the same offense, unless it is an offense based on an act of domestic violence as defined within PC 1387(b). (PC1387)

1. If the defendant is on his/her own recognizance, the O.R. must be discharged.

2. If the defendant is in custody, he/she must be released.

3. If the defendant is on cash or surety bail, it must be exonerated and

refunded. (PC1384) Felony Cases A dismissal of a felony (or a misdemeanor charged with a felony), pursuant to PC 859b, 861, 871, 995, 1381, 1382, or 1385, is a bar to any other prosecution for the same offense(s) if the action has been previously terminated under one of the above code sections. However, numerous exceptions to this rule are outlined within PC 1387, 1387.1, and 739 which would allow subsequent prosecution for the same or new offenses.

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Within various statutes, the prosecution is usually limited to re-filing a new case or seeking an alternative remedy within 15 days of the dismissal. If the entire action is dismissed, and regardless of whether the People will seek further prosecution, the court clerk must do the following:

1. If the defendant is on his/her own recognizance, the O.R. must be discharged.

2. If the defendant is in custody, he/she must be released.

3. If the defendant is on cash bail, it must be exonerated and refunded. (PC1384)

4. If the defendant is on surety bail (bail bond), the bail must remain in effect for 15 days following the dismissal. If the case is re-filed, the court must apply the bail bond to the new case. If the case is not re-filed, bail must be exonerated on the 15th day. (PC1303)

Note: Upon the express consent of both the prosecution and the defense/defendant, in lieu of dismissing a felony action, the court may proceed on the existing accusatory pleading pursuant to PC 1387.2. The action will be re-filed under the same case number. For purposes of PC 1387, the action shall be deemed as having been previously terminated. The defendant shall be re-arraigned and a new statutory time period for trial (i.e., 60 days) shall commence. (PC1387.2) MOTIONS TO STRIKE OR DISMISS ALLEGATIONS Motion to Dismiss Prior Allegation Pursuant to Boykin-Tahl or Mendella This is a defense motion to have the Court dismiss a prior allegation from the accusatory pleading so that the prior conviction may not be used to enhance punishment. The attack on the prior is usually made on constitutional grounds, i.e., the defendant was not adequately advised of his/her rights and/or did not waive said rights on the record. [Boykin v. Alabama (1969) 395 US 238; In re Tahl (1969) 1 Cal.3d 122, 81 CR 577; People v. Superior Court (Mendella) (1983) 33 Cal.3d 754] Motion to Dismiss DUI Prior Allegation as Constitutionally Invalid A defendant charged with a Vehicle Code offense may make a motion to declare prior DUI convictions as constitutionally invalid. The grounds for this motion are usually that the defendant was not adequately advised or did not enter adequate waivers of specific constitutional rights when entering a plea of guilty or nolo contendere to the DUI charge, which now constitutes the prior. Defendant’s counsel must serve notice of this motion on the prosecutor and on the rendering court, and must file proof of service with the motion.

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The hearing on the motion may include testimony of witnesses, documentary evidence (a certified copy of the docket, minute order, or transcript), and argument. Once a Court has heard and ruled on a motion to declare a prior constitutionally invalid, that same prior cannot be challenged again, even if it is alleged as a prior on a new case. DMV requires notice (DL 106) from the court whenever a motion to declare a prior conviction constitutionally invalid is heard, regardless of whether the motion is granted or denied. Motion to Dismiss Prior Allegation Pursuant to PC 1170.12(d)(2) The prosecution may move to dismiss a prior felony conviction (alleged under PC 1170.12(a)-(d)) in the furtherance of justice pursuant to PC 1385, or the Court may dismiss or strike the allegation upon a satisfactory finding that there is insufficient evidence to prove the prior felony conviction. The motion is made pursuant to PC 1170.12(d)(2), but since the actual order of dismissal is made pursuant to PC 1385, the reasons for the dismissal must be stated within the minute order. Motion to Dismiss Prior Allegation Pursuant to People v. Superior Court (Romero)

The case of People v. Superior Court (Romero) [(1996) 13 Cal.4th 497] held that the Court may, pursuant to PC 1385, order the dismissal of a prior felony conviction allegation prosecuted under PC 667(b)-(i) and/or 1170.12(a)-(d), however the reasons for the dismissal must be stated within the minute order. The California Supreme Court specifically states within the above case, “it is not enough that on review the reporter’s transcript may show the trial court’s motivation; the minutes must reflect the reason.” The defendant, prior to trial or an admission, or after admission but prior to sentencing, most often makes this motion. The Court has the discretion to take this action on its own motion at any time. If the motion is made prior to trial, and no plea agreement is made, the Court may defer the hearing of this motion until after the trial on the charges. If the defendant is not convicted of the charges, the motion becomes moot, but if the defendant is convicted of the charges, the motion may be heard before the trial on the prior allegations is presented, or before sentencing. If the Court orders the dismissal of prior allegations under Romero, the court clerk is to state, verbatim, in the minute order the Court’s findings and reasons for the dismissal. The clerk must state the specific prior allegations to be dismissed as described within the accusatory pleading, i.e., code and section, case number and court, prior charge or count, and date of prior. The minutes must also state that the dismissal is ordered pursuant to PC 1385. Motion to Dismiss Remaining Allegations Pursuant to Plea Agreement This motion is made by the prosecution or on the Court’s own motion, and heard after the defendant has been sentenced pursuant to a plea agreement made between the defendant and the prosecution or the Court. The Court will order that all the remaining allegations that the defendant did not admit to be dismissed in the furtherance of justice pursuant to PC 1385, and the reason for the dismissal is pursuant to the plea agreement.

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MOTIONS AS TO THE ACCUSATORY PLEADINGS Demurrer to the Accusatory Pleading Pursuant to PC 1004-1010 A demurrer is a formal written response (or objection) to an accusatory pleading that attacks the technical merits of the pleading (e.g., the statute of limitations has expired, the court has no jurisdiction over the offense charged, lack of specificity, or facts do not constitute a public offense, etc.). It is usually filed prior to, or at the time of, arraignment. Since a demurrer is an objection, it must be sustained or overruled. Motion to Reinstate Complaint Pursuant to PC 871.5 This motion is made in general jurisdiction courts only. It is a prosecution motion to compel the magistrate of the limited jurisdiction court to reinstate a complaint, or a portion of the complaint, and reinstate the custodial status of the defendant under the same terms and conditions as when the defendant last appeared before the magistrate at the preliminary hearing. The motion is made on the grounds that the magistrate erroneously dismissed the action at the preliminary hearing. The motion must be filed in a general jurisdiction court within 15 days after the dismissal in the limited jurisdiction court. Motion to Set Aside Information or Indictment Pursuant to PC 995 This type of motion is heard in general jurisdiction courts only. A defendant’s motion to set aside the accusatory pleading is made on the grounds that the evidence presented at the preliminary hearing or at the Grand Jury hearing was legally insufficient, i.e., that the magistrate could not have found probable cause to hold the defendant to answer based on the facts presented, or that the Grand Jury could not have determined that the evidence presented would warrant a conviction by jury trial. The Court must read the preliminary hearing transcript or the Grand Jury hearing transcript in order to make a determination as to the legal sufficiency. It is important, therefore, for the court clerk to bring this motion to the attention of the judge in time to read the transcript prior to the actual motion hearing. The motion may be made and granted as to the case as a whole, or as to specific counts or allegations. Effect of Granting the Motion The specific count or allegation at issue will be dismissed. If the motion is granted as to all of the counts and allegations, the entire case will be dismissed pursuant to PC 1385. The granting of this motion, however, is not a bar to future prosecution. If the entire action is dismissed, and regardless of whether the people will seek further prosecution, the court clerk must do the following:

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1. If the defendant is on his/her own recognizance, the O.R. must be discharged.

2. If the defendant is in custody, he/she must be released.

3. If the defendant is on cash bail, it must be exonerated.

4. If the defendant is on surety bail (bail bond), the bail bond must remain in

effect for 15 days following the dismissal. If the case is re-filed within the 15 days following the dismissal, the court must apply the bail to the new case. If the case is not re-filed, the bail bond must be exonerated on the 15th day.

Motion to Amend the Accusatory Pleading A complaint, information, or indictment may be amended on motion of the Court or prosecution up to the time of trial. The prosecuting agency may file an amended complaint prior to the arraignment without leave of court. If the defendant has entered a plea, the prosecuting agency must first obtain leave of court to file the amended accusatory pleading. At trial or preliminary hearing, the Court may, on its own motion, amend the accusatory pleading to conform to the facts submitted. After a mistrial, the prosecution may move to amend the accusatory pleading, but only with notice to the defendant. If a complaint, information, or indictment is amended by charging additional offenses or by enhancing the punishment, the defendant must be re-arraigned and enter a plea. [People v. Hopkins (1974) 39 CA3d 107, 113 CR 880] The record should also indicate whether the defendant waived statement of, or was advised of, his/her constitutional rights at the time of the re-arraignment. A motion to amend the accusatory pleading may occur in conjunction with a plea agreement. Often this involves a reduction of the original charge to a lesser included or lesser related offense (LIO or LRO). A crime classified as a wobbler may be involved in the amendment. Allegations may also be amended or stricken as part of the plea agreement. The motion to amend may constitute the formal filing of a new accusatory pleading, or the Court may amend the pleading by interlineations, which means by actually writing the changes on the pleading document itself. Alternatively, the Court may deem the new accusatory pleading filed without interlineating the existing pleading document. A motion to amend the charges may constitute the addition of new counts, or a change to existing counts. The amendment sought may be as to any aspect of the accusatory pleading, not just the charges. For example, the motion may be to change the name of the victim or defendant, to change the date of the offense, or to correct or change the special or prior allegations, etc. The minute order should state whether the defendant was re-arraigned and record the plea.

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People’s Motion to Reduce DUI Charge to Reckless Driving The prosecution may make a motion to amend the misdemeanor complaint to substitute reckless driving for a DUI without injury charge. Pursuant to CVC 23103.5, when the prosecution agrees to a plea of guilty or nolo contendere to a charge of violation of CVC 23103 in substitution for an original charge of a violation of CVC 23152 (DUI without injury), the prosecution shall state for the record a factual basis for the substitution, including whether or not there had been consumption of any alcoholic beverage or ingestion or administration of any drug, or both, by the defendant in connection with the offense. If so, the charge is referred to as a “wet reckless” charge; if not, it is referred to as a “dry reckless” charge. The prosecutor’s statement shall set forth the facts that show whether or not there was a consumption of any alcoholic beverage or the ingestion or administration of any drug by the defendant. If the amended charge is a “wet reckless,” this offense (VC 23103 per 23103.5) is chargeable as a prior conviction and is subject to a motion to declare it constitutionally invalid. If the prosecution submits a written statement pursuant to CVC 23103.5, it should be file-stamped and placed in the case file. The minute order should also state that the statement was filed. Consolidation of Cases Pursuant to PC 954 and 954.1 A motion to consolidate cases is made by the prosecution or the Court, to bring together two or more different cases or offenses. A consolidation may involve:

1. A single defendant who is charged in two (or more) different cases that need to be brought together as one single case; or

2. Two (or more) separate defendants who were charged in different cases that

need to be brought together as one single case; and, 3. May be consolidated for only one, or a few hearings.

When the Court grants this motion, one case (usually the lowest case number) will be designated as the “lead case” into which all other cases will be consolidated. The granting of a motion to consolidate necessarily involves the amendment of the accusatory pleading in the lead case to add the defendant(s) and/or the offense(s) from the other “secondary or trailing cases.” In the situation where one single defendant has multiple cases consolidated, the new lead case may require a new setting of bail since it now involves more charges after the consolidation. (Note: The actual case files are designated as the lead, or secondary/trailing cases. Additionally, documents cross-referencing cases to each other case are placed inside the secondary or trailing cases. A minute order reflecting the consolidation of the cases is placed in each case at the time of the consolidation.)

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PRE-TRIAL MOTIONS TO SUPPRESS, LIMIT OR EXCLUDE EVI DENCE Motion to Suppress Evidence Pursuant to PC 1538.5 This is a defense motion to suppress physical evidence or statements obtained as the result of an illegal search or seizure (with or without a search warrant). The issue at stake is whether the law enforcement officers had reasonable cause or consent to perform a search without a warrant, or whether reasonable cause existed for the issuance of the search warrant. While the defendant is the party who makes this motion, the prosecution has the burden of proving that the evidence was seized in a legal manner. In DUI cases, a motion to suppress the results of a blood alcohol chemical test or other evidence may be made pursuant to PC 1538.5. Under this section, a party may also move for the return of property seized. This motion is called a motion to quash, or traverse, a search warrant when a warrant is involved. A motion pursuant to PC 1538.5 may be heard in misdemeanor or felony cases, and in a limited or general jurisdiction court. The motion hearing will follow the same format and procedure as a trial or formal hearing. The court clerk will be required to administer oaths to witnesses, processes exhibits, and record all actions in the minute order. If a motion pursuant to PC 1538.5 on a felony case was heard and ruled upon in a limited jurisdiction court, the defendant may file another motion under the same section in the general jurisdiction court, but it must be on different grounds. If the issues are the same, it will be considered a “renewal” of the motion litigated in the limited jurisdiction court. (PC1538.5(i)) If a motion pursuant to PC 1538.5 on a felony case was heard and ruled upon in a limited jurisdiction court, and subsequently renewed in a general jurisdiction court on the same grounds, the motion will be limited to the evidence presented within the transcript of the preliminary hearing, i.e., “submitted on the transcript.” New evidence cannot be presented unless it can be shown that this evidence could not reasonably have been presented at the preliminary hearing, and, if all parties agree, that this new evidence may be presented. (PC1538.5(i)) If the prosecution objects to the presentation of new evidence, the defendant may request an in camera hearing to resolve that issue. The People’s objection and the fact that an in camera hearing was held should be entered in the minutes. (PC1538.5(i)) If Granting of Motion Leads to Dismissal If the suppression of the evidence seized leads to the prosecution’s inability to proceed as to the particular counts or the entire case, those counts, or the entire case, will be ordered dismissed pursuant to PC 1385. The reasons for the dismissal, i.e., that the prosecution announced unable to proceed, must be recorded in the minute order.

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If Seized Property is Ordered Returned The owner of the suppressed property is entitled to the return of property after time for appeal has run, unless the property is contraband. If the Court orders the property returned, the minute order must specifically state the ruling and name the parties involved, i.e., who is to release the evidence, and who is to receive it. If the evidence has been marked as an exhibit, follow the procedures for the permanent release of exhibits. Motion to Suppress Statements Pursuant to People v. Miranda This is a defense motion to suppress statements and/or confessions alleged to have been made by the defendant on one or more of the following grounds: Lack of voluntariness, the Miranda warning (statement of rights) was not given prior to questioning or was insufficient, or the statements were induced by threats or promises, and the statements were solicited after the Miranda rights were invoked or an attorney was requested. The ruling on this motion may be stated in the minute order. [Miranda v. Arizona (1966) 384 US 436] Motion to Suppress Evidence or Statements Pursuant to Hitch or Trombetta This is a defense motion to suppress testimony based on evidence (such as urine, sperm, blood sample, officer’s notes, etc.) that was lost or destroyed by the prosecution or law enforcement agency. For example, this motion may be brought by a defendant wishing to suppress the results of a blood or urine test in a driving under the influence case when a re-testable sample was not preserved by the law enforcement agency and supplied to the defense for independent testing. The ruling on this motion must be stated in the minute order. [People v. Hitch (1974) 12 Cal.3d 641; or People v. Trombetta (1985) 173 Cal.App.3d 1093] Motion to Suppress Evidence Pursuant to Kraft or Rochin This is a defense motion to suppress evidence obtained through the use of unnecessary force by police officers, e.g., a choke-hold used to get the heroin from the inside of the defendant’s mouth, or arm twisting to get a blood sample. This motion may also be made at the trial. The ruling on this motion must be stated in the minute order. [People v. Kraft (1970) 3 Cal.App.3d 890, or Rochin v. California (1952) 342 US 165] Motion to Suppress Testimony Pursuant to Wade or Gilbert This is a motion in which the defense seeks to suppress testimony regarding a pre-trial identification line-up conducted by the police, on the grounds that the line-up procedure was unfairly suggestive. The ruling on this motion must be stated in the minute order. [United States v. Wade (1967) 388 US 218; or Gilbert v. State of California (1967) 388 US 263] Effect of the Granting of a Motion for the Suppression of Evidence The prosecution may not use the suppressed evidence during the presentation of its case. The exclusion of the evidence may make it impossible for the prosecution to proceed, resulting in a

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dismissal of the case pursuant to PC 1385. The reasons for the dismissal is, for example, “Insufficiency of the evidence,” or “The People announce they are unable to proceed.” In addition, if the motion is granted, the owner of the suppressed property is entitled to the return of the property after the time for appeal has run, unless the property is contraband. MOTIONS ATTACKING SEARCH WARRANTS Motion to Quash a Search Warrant Pursuant to PC 1538.5 This defense motion requests a ruling that the search warrant is invalid on its face, i.e., that the magistrate should not have issued it because of a legal defect. The court clerk should follow the same procedure outlined above with regard to motions pursuant to PC 1538.5. Motion to Traverse a Search Warrant Pursuant to PC 1538.5 This defense motion requests a ruling that the facts which provided reasonable or probable cause for the issuance of the search warrant (usually statements of the investigating officers) are untrue or not reasonable. Motion for Return of Property Pursuant to Buker v. Superior Court This is a defense motion for the return of money seized from the defendant at the time of arrest or during the execution of a search warrant. [Buker v. Superior Court (1972) 25 Cal.App.3d 1085] Effect of Granting Motion to Quash or Traverse Search Warrant All or part of the evidence seized under the search warrant will be suppressed. The exclusion of the evidence may make it impossible for the prosecution to proceed, resulting in a dismissal of the case pursuant to PC 1385. The reason for the dismissal is, for example, “Insufficiency of the evidence,” or “The People announce they are unable to proceed.” The owner of the suppressed property is entitled to the return of the property after the time for appeal has run, unless the property is contraband. MOTION FOR RETURN OF PROPERTY LEGALLY SEIZED One of the more common motions brought before the Court by pro per litigants (usually defendants) is the Motion for Return of Property. Unlike the motion for return of property mentioned above, this motion is brought before the Court prior to any motion regarding the legality of the seizure of the property. In fact, a litigant may file this motion with or without a formal complaint filed against him/her.

It is the responsibility of the litigant to prepare, file, and serve on the opposing party (prosecuting agency), the Motion for Return of Property. Usually this is formatted on pleading paper; some courts allow the defendant to simply use a “Declaration” form. The court clerk may inform the defendant the motion must be “calendared” and served on the prosecuting agency at least 15 days prior to the court hearing, 20 days if the service is by mail. The defendant cannot personally serve the Notice of Motion, and the defendant must file a proof of service prior to the court hearing. Follow local court procedure regarding processing the motion when no criminal charges have been filed. Most courts use a series of “miscellaneous case numbers,” which are not in the same sequence as the criminal case files. The court’s ruling on the motion may include different orders when several items or types of items were seized, i.e., cash, and titles to automobiles, clothing, and so forth. The prosecuting agency may stipulate to the release of some items, but not others. The minute order must be very specific as to the Court’s ruling for each piece of property or property type seized. The litigant is provided a copy of the minute order. Make sure the order is very legible, making a photocopy of the original order, if necessary. The original order remains in the court file. The defendant is provided a copy of the order for the arresting agency and instructed to deliver it to the property room of the agency that seized the property. EXPUNGEMENTS (PC 1203.4, PC 1203.4a) Overview A defendant’s motion pursuant to PC 1203.4 or PC 1203.4a is a request to set aside the guilty plea or verdict and have the case dismissed. The Court may order that probation be terminated, the conviction(s) be set aside, and a plea of not guilty entered, the charges(s) dismissed, and the defendant hereafter be released from all penalties and disabilities resulting from the offense(s) of which they have been convicted, except as otherwise provided by law. Dismissals under these code sections do not affect any suspension or revocation action taken as a result of that conviction. The dismissal will be recorded on the driver’s record. The conviction can be considered with other convictions for future action against the driving privilege. Dismissal of an accusation or information pursuant to this section does not permit a person to own, possess, have in his/her custody, control any firearm, or prevent his/her conviction under PC 12021. Ineligible Charges This section does not apply to any misdemeanor that is within the provisions of subdivision (b) of Section 42001 of the Vehicle Code, to any violation of subdivision (c) of Section 286, Section 288, subdivision (c) of Section 288a, Section 288.5, or subdivision (j) of Section 289, any felony conviction pursuant to subdivision (d ) of Section 261.5, or to any infractions. Additionally,

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cases where PC 1000 (diversion) was granted and defendant completed diversion (case subsequently dismissed), the case was adjudicated by bail forfeiture, or the defendant is in custody, are also ineligible for relief under this section. Eligibility of Misdemeanant Defendants Not on Probation (PC 1203.4a) Defendants who were not granted probation are eligible to apply for a dismissal if they meet the following qualifications:

1. One year has elapsed since the date of judgment.

2. Defendant has fully complied with and performed the sentence of the Court.

3. Defendant is not serving a sentence for any other offense.

4. Defendant is not charged with the commission of any other offense.

5. Defendant has, since the pronouncement of judgment, remained law abiding in all respects.

Sealing of Records Dismissals pursuant to PC 1203.4 and 1203.4a do not seal, destroy, or remove any entries from a defendant's record. Generally, defendants request these dismissals when they are applying for a job or military service, or just to "clean the record.” Fees

Fees may be charged in an amount not to exceed $150 (PC1203.4(d)) to reimburse the costs for services rendered (processing the application), whether or not the petition is granted. These fees may be waived after a showing of good cause.

Suggested Procedure

1. Pull the case file, file stamp the petition, and verify that the petition has been completed properly.

2. If filed by defendant, the clerk must complete the certificate of service by

mail, certify the copy and forward to the prosecutor’s office. 3. Collect the required fees, or the Application for Fee Waiver, if applicable.

4. Request a criminal history following the procedure dictated by local court. 5. Tickle the case for 20 days (prosecutor must have 15 days notice of the

petition for relief).

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6. Forward the case file, with the criminal history attached, to the judge for review upon the expiration of the 20 days. Following local court procedure, include any objections to the petition filed by the prosecuting agency. (Note: Some courts calendar these cases for hearing.)

7. When the petition is returned after judicial review, process the order as follows:

a. Stamp the judge’s name under his/her signature at the bottom of the

order and seal over signature with the embosser. b. Place the order in the case along with the sealed confidential

documents (i.e., criminal history reports and fee waiver application) and the petition.

c. Make copies, certify and forward as follows:

When approved Three copies of the original order; send one each to the defendant/attorney, the Department of Justice and the Sheriff’s Records. One copy of the complaint, plea, and sentencing and send, with a copy of the order, to the Department of Justice.

When denied One copy of the original order and send the order to the defendant/attorney only.

d. Make appropriate entries in the court’s automated system.

Processing Abstracts for VC 23152 codes When a hand abstract is required, complete a DL106 dismissal abstract for VC 23152 (a) and VC 23152(b) only. Photocopy the abstract once it is completed and place a copy in the file. Send the original to the address for The Department of Motor Vehicles on the front of the abstract.

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Chapter 601

COURT TRIAL

A person charged with a felony or misdemeanor is entitled to be tried by a jury. A judge tries those that are charged with infractions or those defendants, who, with the consent of the People, waive their right to a jury trial. A trial by jury may be waived by written consent filed with the clerk or judge, or by oral consent, in open court, entered in the minutes or docket. The Court may refuse to permit the waiver of a jury trial even if the defendant and all counsel waive such right. (CCP631) A court trial proceeds much like a jury trial except for the absence of the jury. A court trial is often less formal but the rules of evidence still apply. Pursuant to Penal Code 1043(e), if the defendant in a misdemeanor case fails to appear in person at the time set for trial or during the course of trial, the Court shall proceed with the trial, unless good cause for a continuance exists, if the defendant has authorized his counsel to proceed in his absence pursuant to subdivision (a) of PC 977. If there is no authorization pursuant to Penal Code 977(a), and if the defendant fails to appear in person at the time set for trial or during the course of the trial, the Court, in its discretion, may do one or more of the following, as it deems appropriate:

1. Continue the matter.

2. Order bail forfeited or revoke release on the defendant’s own recognizance.

3. Issue a bench warrant.

4. Proceed with the trial if the Court finds the defendant has absented himself voluntarily with full knowledge that the trial is to be held or is being held.

Nothing herein shall limit the right of the Court to order the defendant to be personally present at the trial for purposes of identification unless counsel stipulate to the issue of identity.

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Chapter 602

JURY TRIAL

A jury is a body of citizens legally selected and required to hear the facts of a case. The jury determines the guilt or innocence of the accused according to the evidence presented and the law that applies to the charges as stated by the Court. It is then up to the jury to apply that law to the evidence to reach a verdict. Jurors must be generally qualified to serve on a jury. Among other requirements, they must be citizens of this country, free of a felony conviction, and mentally able to understand the proceedings as they take place in the courtroom. In addition to these qualifications, counsel is given an opportunity to question the prospective jurors in a process known as voir dire, a French phrase meaning, “to speak the truth.”

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Chapter 603

TRIAL SETTING

The welfare of the People of the State of California requires that all proceedings in criminal cases shall be set for trial and heard and determined at the earliest possible time. (PC1050) Criminal cases shall be given precedence over any civil matters or proceedings. Misdemeanor After a defendant has been arraigned or enters a not guilty plea, whichever occurs later, and if the defendant is in custody, the trial is set within 30 days, unless time is waived. If the defendant is not in custody, the trial is set within 45 days, absent a time waiver. Felony Once a defendant has been held to answer, the trial is set within 60 days after arraignment on the Information if time is not waived. (PC1049.5, PC1382) Continuances The trial date can be continued upon showing of good cause as prescribed in Penal Code 1050, which should be consulted to determine the parameters applied to the various case types when requesting/granting a continuance. If the Court finds that there is good cause to set the trial date beyond the prescribed time, it shall state on the record the facts proved that justify its finding. A statement of facts proved shall be entered in the clerk’s minutes. Waiver of Trial by Jury Waiver of trial by jury usually occurs at the arraignment, but an effective waiver may be made at any time before the verdict of the jury has been returned. The defendant may seek by motion to withdraw a waiver of trial by jury, but whether or not to grant such a request is within the discretion of the Court.

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Chapter 604

RANK AND PRIORITY OF CASES

Pursuant to Penal Code 1048, the cases on the calendar shall be disposed of in the following order, unless for good cause the Court directs an action to be tried out of order:

1. Prosecutions for felony, when the defendant is in custody.

2. Prosecutions for misdemeanor, when the defendant is in custody.

3. Prosecutions for felony, when the defendant is out on bail or O/R.

4. Prosecutions for misdemeanor, when the defendant is out on bail or O/R.

For all criminal actions in which (1) a minor is detained as a material witness or is the victim of the alleged offense, (2) a person who was 70 years of age or older at the time of the alleged offense or is a dependent adult as defined in subdivision (d) of Penal Code Section 368, was a witness to, or is the victim of, the alleged offense or (3) any person is a victim of an alleged violation of Penal Code 261, 151, 264.1, 273a, 273d, 285, 286, 288, 288a or 289 committed by the use of force, violence of the threat thereof, shall be given precedence over all other criminal actions in the order of trial. In those actions, continuations shall be granted by the Court only after a hearing and determination of the necessity thereof, and in any event, the trial shall be commenced within 30 days after arraignment, unless for good cause the Court shall direct the action to be continued, after a hearing and determination of the necessity of the continuance, and states the findings for a determination of good cause on the record.

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Chapter 605

PRE-TRIAL

In Limine Motions These are motions that are heard prior to commencement of trial. They are used to determine what evidence will be presented to the jury. The clerk’s minutes should include the type of motion and the ruling. Common in limine motions are:

1. Motion to exclude witnesses (EC777 and PC867). Excludes all potential and actual witnesses from the courtroom.

2. Motion to bifurcate priors (EC352). To have a separate trial, either by the

jury or the court, on alleged prior convictions.

3. Motion to preclude or include testimony (EC403).

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Chapter 606

JURY SELECTION

Code of Civil Procedure 237 requires the court to seal all record of personal juror identifying information of trial jurors upon the recording of a jury verdict. For purposes of this section, sealed or sealing means extracting or otherwise removing the personal juror identifying information from the court record. At the conclusion of the trial, the names of the sworn jurors should be redacted from the clerk’s minutes, the court reporter’s transcript and the verdict forms. If questionnaires are used, they are placed under seal at the conclusion of trial. A jury group is ordered to report to the assigned courtroom. The clerk takes roll call and administers the perjury admonishment to the prospective jurors OATH TO PROSPECTIVE JURORS “Do you, and each of you, understand and agree that you will accurately and truthfully answer, under penalty of perjury, all questions propounded to you concerning your qualifications and competency to serve as a trial juror in the matter pending before this court; and that failure to do so may subject you to criminal prosecution.” (CCP232) The judge will introduce him/herself and the parties, read the accusatory pleading, and witness list. Some judges are now asking the attorneys to give mini opening statements before jury selection begins. The clerk calls the first 18 names (“six pack”) on the random list, or the first 12 names if the jury is being selected in the traditional manner. The jurors are seated in the jury box in the order called. The Court and counsel will voir dire the prospective jurors, either orally or via written jury questionnaires, or both. Once counsel has passed the entire panel for cause, then peremptory challenges are exercised. (CCP231) A challenge is an objection made to the trial jurors that may be taken by any party to the action, and is of the following classes and types:

1. A challenge to the trial jury panel for cause.

a. A challenge to the panel may only be taken before a trial jury is sworn. b. The challenge shall be reduced to writing, and shall plainly and

distinctly state the facts constituting the ground of challenge.

c. Reasonable notice of the challenge to the jury panel shall be given to all parties and to the jury commissioner by service of a copy thereof.

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d. The jury commissioner shall be permitted the services of legal counsel in connection with challenges to the jury panel.

e. A challenge to a prospective juror by either:

• A challenge for cause, for one of the following reasons:

o General disqualification—that the juror is disqualified from serving in the action on trial.

o Implied bias—as, when the existence of the facts as

ascertained, in judgment of one disqualifies the juror.

o Actual bias—the existence of a state of mind on the part of the juror in reference to the case, or to any of the parties, which will prevent the juror from acting with entire impartiality, and without prejudice to the substantial rights of any party.

• A peremptory challenge to a prospective juror. (CCP225) A challenge to an individual juror may only be made before the jury is sworn. The challenge may be taken orally or in writing, but no reason need be given for a peremptory challenge, and the Court shall exclude any juror challenged peremptorily. All challenges for cause must be made before any peremptory challenges may be exercised. All challenges to an individual juror, except a peremptory challenge, shall be taken, first by the defendants, and then by the people or plaintiffs. (CCP226) If the defendant is charged with an offense that is punishable with death, or life in prison, each side is entitled to 20 peremptory challenges. For any other offense, each side is entitled to 10 peremptory challenges. When two or more defendants are jointly tried, their challenges shall be exercised jointly, but each defendant shall also be entitled to five additional challenges, which may be exercised separately, and the people shall also be entitled to additional challenges equal to the number of all the additional separate challenges allowed the defendants. If the offense charged is punishable with a maximum term of imprisonment of 90 days or less, the defendant is entitled to six and the state to six peremptory challenges. When two or more defendants are jointly tried, their challenges shall be exercised jointly, but each defendant shall also be entitled to four additional challenges, which may be exercised separately, and the state shall also be entitled to additional challenges equal to the number of all the additional separate challenges allowed the defendants. (CCP231) When all challenges have been exhausted and/or counsel is satisfied with the jury, the jury is impaneled and sworn by the clerk to try the cause.

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OATH TO TRIAL JURORS “Do you, and each of you understand and agree that you will well and truly try the cause now pending before this court, and a true verdict render according only to the evidence presented to you and to the instructions of the Court?” (CCP232) The alternate jurors are selected and sworn to try the cause. (CCP234) In felony cases, once the jury has been impaneled and sworn to try the cause, the accusatory pleading is read and the plea of the defendant is stated for the jury. (PC1093) JURY ADMONISHMENT Pursuant to Penal Code 1122, after the jury has been sworn and before the people’s opening statement, the Court shall admonish the jury. The admonishment states the jury’s functions, duties, and conduct. This includes admonitions that the jury shall not converse among themselves, or with anyone else, on any subject connected with the trial; that they shall not read or listen to news coverage of the case, that they shall not visit or view the premises or place where the offense was allegedly committed, that they shall not sell their story prior to and within 90 days of discharge from the case, and that they must report any incident involving any attempt to improperly influence a member of the jury. A notation that the admonishment was given is noted in the clerk’s minutes. OPENING STATEMENT An opening statement is a brief outline or summary describing what the evidence will be and what it will prove. Since the people have the burden of proof in criminal cases, they present their opening statement first. The attorney for the defendant can present, waive, or reserve the opening statement. EVIDENCE PHASE Pursuant to Penal Code 1417, the clerk of the court shall retain all exhibits introduced in any criminal action until final determination of the action or proceedings. There are two forms of evidence. The first is the testimony of sworn witnesses. After the clerk places the witness under oath, each side has the opportunity to examine the witness. OATH TO WITNESS “You do solemnly state that the evidence you shall give in this matter shall be the truth, the whole truth and nothing but the truth, so help you God?”

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AFFIRMATION “You do solemnly state, under the penalty of perjury, that the evidence that you shall give in this matter shall be the truth, the whole truth and nothing but the truth?” The second form of evidence is an exhibit. Exhibits are marked for identification by the clerk and received into evidence by the Court. The clerk places an exhibit sticker or tag on each item offered, describes the item on the record and then records this information in the minutes and on the exhibit list. Only exhibits admitted into evidence are sent into the deliberation room with the jurors. Exhibits that require special handling such as weapons, drugs, bodily fluids, or items containing bodily fluids are not sent into the deliberation room unless allowed by the Court. At the conclusion of the trial, upon stipulation by counsel, the Court may order that all exhibits be returned to the submitting party. The clerk’s minutes should indicate that the Court has directed counsel to keep, secure, and store all exhibits admitted in evidence.

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Chapter 607

TRIAL PROCEEDINGS

After the parties have presented opening statements, the people are the first to present their case. The defense will have an opportunity to cross-examine the people’s witnesses. Once the people have presented all of their evidence, they will indicate to the Court that they are resting their case. At the close of the evidence on either side and before the case is submitted to the jury, the Court on its own motion or on motion of the defendant, shall order the entry of a judgment of acquittal if the evidence is insufficient to sustain a conviction on appeal. If the motion is granted, the case is concluded. If the motion is denied, the defense will proceed with their case. (PC1118.1) After all evidence is presented by the defense, the people may present rebuttal evidence. At the conclusion of all the evidence presented by both sides, both parties will rest.

JURY INSTRUCTIONS

A list of jury instructions requested should be provided to the Court by counsel before trial begins. California Jury Instruction – Criminal (CALJIC) contains all jury instructions used in criminal trials. Pursuant to Penal Code 1127, all instructions must be given in writing, but in misdemeanor cases, oral instructions may be given if counsel stipulate. The judge may instruct the jury before or after closing arguments are presented by counsel. All instructions should be separated and marked as those given and those refused.

CLOSING ARGUMENTS

The closing arguments consist of the final statements by the attorneys to the jury or Court summarizing the evidence that they think they have established, and the evidence that they think the other side has failed to establish. The closing argument is not evidence.

JURY DELIBERATIONS

Once evidence has been presented and counsel has presented closing arguments, the case is submitted to the jury. The jury may either decide in court or may retire for deliberation. If they do not agree without retiring for deliberation, an officer must be sworn to keep them together for deliberation. (PC1121/1128)

OATH TO OFFICER

“You do solemnly swear that you will take charge of the jury and keep them together; that you will not speak to them yourself, nor allow anyone else to speak to them upon matters connected with this case. And, when they have agreed upon a verdict, to return them into the courtroom so help you God?”

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Upon retiring for deliberation, the jury may take with them any papers (except depositions) that have been received as evidence in the cause. They may also take with them the written instructions given, and notes of the testimony or other proceedings on the trial, taken by themselves or any of them, but none taken by any other person. This excludes any exhibits that require special handling. (PC1137) The Court may, at its discretion, provide the jury with a copy of the written instructions given. However, if the jury requests the Court to supply a copy of the written instructions, the Court shall supply the jury with a copy. (PC1093) Alternate jurors are placed on telephone standby or asked to remain on the premises during the deliberation process. Any questions or requests that arise during deliberation are submitted to the Court by the jury in written form. The judge will answer the question, after which time, the clerk will notify counsel of the question and answer. If counsel needs to be present to confer regarding an answer to a question, they will be called by the clerk or bailiff to report directly to court. If the question or request was signed by any member of the jury, it must be redacted and the copy, without the signature is placed in the case file. The original is placed under seal upon the recording of the verdict. (CCP237) VERDICT The defendant must be present when the verdict is returned if he/she has been charged with a felony. If for a misdemeanor, the verdict may be rendered in his/her absence. (PC1148) The jury will notify the bailiff when they have reached a verdict or if they are unable to reach a verdict. The bailiff will return the jurors to the courtroom and the Court will inquire of the jury panel whether they have reached a verdict. The Court will review the verdict forms for date and signature. The clerk or judge will read the verdict form from top to bottom. After each verdict is read, the jurors may be asked, “Ladies and gentlemen of the jury, is this your verdict?” The jury will respond (en masse) “Yes.”

The Court will inquire if counsel wishes to have the jury polled. If counsel waive polling of the jury, the clerk will note that in the minutes. If counsel requests the jury be polled, the clerk will note which counsel requested the polling. Further, the clerk will note the number of affirmative answers versus the negative answers or whether a unanimous verdict is recorded. (PC1163) When the verdict given is received by the Court, the clerk shall record the entire verdict in the minutes. No jury shall be discharged until the Court has verified on the record that the jury has or is unable to reach a verdict. (PC1164) Once the verdict has been recorded, the Court will thank the jurors, release them from the admonition, and excuse them.

CRM 600 - 12

If the jury returns a verdict of not guilty, the case is concluded and the defendant is discharged. If, before the jury has returned its verdict, a juror becomes sick or, upon other good cause shown to the Court, is found to be unable to perform his or her duty, the Court may order the juror to be discharged. If any alternate jurors have been selected as provided by law, one of them shall then be designated by the Court to take the place of the discharged juror. If after all alternate jurors have been made regular jurors, or if there is no alternate juror, a juror becomes sick or otherwise unable to perform the juror’s duty and has been discharged by the Court, the jury shall be discharged and a new jury then or afterwards impaneled, and the cause may be tried again. Alternatively, with the consent of all parties, the trial may proceed with only the remaining jurors, or another juror may be sworn and the trial begins anew. (CCP233) If the jury returns a verdict of guilty, the defendant may choose to be sentenced forthwith or the case may be continued so that the probation department may prepare any reports requested by the Court. If the defendant is sentenced forthwith, the sentence is indicated in the clerk’s minutes. Upon the recording of a jury’s verdict, the court’s record of personal juror identifying information, including names, addresses and telephone numbers shall be sealed. The original verdict form(s) and forms provided for questions asked by the jury during deliberations shall be placed under seal and a copy thereof, with the name of the foreperson deleted, will be substituted in the file. JURY UNABLE TO REACH A VERDICT In the event the jury is unable to reach a verdict and a mistrial has been declared, the case may be set for further settlement conference or returned to master calendar for trial assignment.

CRM 600 - 13

Chapter 608

MOTION FOR NEW TRIAL

A new trial is a re-examination of the issue in the same court, before another jury, after a verdict has been given. (PC1179) The granting of a new trial places the parties in the same position as if no trial had been had. All the testimony must be produced anew, and the former verdict or finding cannot be used or referred to, either in evidence or in argument, or be pleaded in bar of any conviction which might have been had under the accusatory pleading. (PC1180) When a verdict has been rendered or a finding made against the defendant, the Court may, upon his application, grant a new trial in certain cases only. (PC1181) The application for a new trial must be made and determined before judgment, the making of an order granting probation, the commitment of a defendant for observation as a mentally disordered sex offender, or the commitment of a defendant for narcotics addiction or insanity, whichever first occurs, and the order granting or denying the application shall be immediately entered by the clerk in the minutes. (PC1182)

CRM 600 - 14

Chapter 609

MISCELLANEOUS TRIAL INFORMATION

JUROR FEES AND EXPENSES Beginning July 1, 2000, the fee for jurors is $15.00 a day for each day’s attendance as a juror after the first day. Unless a higher rate of mileage is otherwise provided by statute or by county or city and county ordinance, jurors shall be reimbursed for mileage at the rate of 34¢ per mile for each mile actually traveled in attending court as a juror after the first day, in going only. (CCP215) PROVISION OF FOOD AND LODGING In criminal cases only, while the jury is kept together, either during the progress of the trial or after their retirement for deliberation, the Court may direct the sheriff or marshal to provide the jury with suitable and sufficient food and lodging, or other reasonable necessities. (CCP217) FEES AND EXPENSES OF WITNESSES Witnesses may be entitled to receive compensation at the rate of $12.00 for each day’s attendance. If the witness is employed and would not receive a salary by his employer during the time he is in court, he may receive a sum equal to his/her gross salary for such time, but such sum shall not exceed $18.00 per day. (PC1329 / 1329.1) No person is obliged to attend as a witness out of the county where the witness resides, or is served with the subpoena, unless the distance is less than 150 miles from place of residence. Upon an affidavit of the district attorney or of the defendant, or his or her counsel, stating that he/she believes the evidence of the witness is material, and attendance at the trial is material and necessary, the court shall endorse on the subpoena an order for the attendance of the witness. (PC1330) CONTEMPT FOR REFUSAL TO ATTEND OR TESTIFY – PENALTY FOR NONATTENDANCE Disobedience to a subpoena, or a refusal to be sworn or to testify as a witness, may be punished by the Court as contempt. A witness disobeying a subpoena issued on the part of the defendant, unless he/she shows good cause for his/her nonattendance, is liable to the defendant in the sum of $100.00, which may be recovered in a civil action. (PC1331)

CRM 600 - 15

CRIMINAL CONTEMPT (PC 1209)

Every person guilty of any contempt of Court, of any of the following kinds, is guilty of a misdemeanor:

1. Disorderly, contemptuous, or insolent behavior committed during the sitting of any court of justice, in immediate view and presence of the Court, and directly tending to interrupt its proceedings or to impair the respect due to its authority.

2. Behavior as specified in paragraph (1) committed in the presence of any referee, while actually engaged in any trial or hearing, pursuant to the order of any Court, or in the presence of any jury while actually sitting for the trial of a cause, or upon any inquest or other proceedings authorized by law.

3. Any breach of the peace, noise, or other disturbance directly tending to interrupt the proceedings of any court.

4. Willful disobedience of the terms as written of any process or Court order or out-of-state Court order, lawfully issued by any court, including orders pending trial.

5. Resistance willfully offered by any person to the lawful order or process of any court.

6. The contumacious and unlawful refusal of any person to be sworn as a witness; or, when so sworn, the like refusal to answer any material question.

7. The publication of a false or grossly inaccurate report of the proceedings of any court.

8. Presenting to any Court having power to pass sentence upon any prisoner under conviction, or to any member of the court, any affidavit or testimony or representation of any kind, verbal or written, in aggravation or mitigation of the punishment to be imposed upon the prisoner, except as provided in the penal code.

Suggested procedure:

1.An order must be made, reciting the facts as occurring in such view and presence, adjudging that the person proceeded against is thereby guilty of contempt and that he/she be punished as therein prescribed.

2.A commitment must be prepared and given to the officer taking the person into custody. The commitment must clearly state the facts upon which the contempt is based. The order is signed by the judge and becomes the commitment.

3.If an alternate sentence is imposed and the fine is paid, a regular fine receipt should be issued, indicated the offense and contempt of court on the receipt.

4.Prepare minutes of the contempt proceeding and place in the court file.

NOTE: The above procedure applies to the handling of summary contempt. When a formal misdemeanor complaint if filed in which the contempt is charged, proceed as any other misdemeanor complaint.

CRM 600 - 16

Chapter 610

Jury Selection

1118.1 Motion; Other post

Prosecution motions

Deliberations

Pre-trial Motions

Rebuttal

Sur-Rebuttal Defendant’s Case

Defense Opening Statement

(if previously waived)

People’s Opening

Statement

People’s Case

(Prosecution)

Final Arguments

Defense Opening Statement

(may be reserved)

Instructions to Jury

Select Jury Instructions

VERDICT or Mistrial (hung jury)

JURY TRIAL FLOW CHART

CRM 700 - 1

Chapter 701

COMMON WORDS AND PHRASES ASSOCIATED WITH EXHIBITS

EXHIBIT Any physical object introduced and identified to a Court during a trial or hearing. MARKED FOR IDENTIFICATION A preliminary designation of an item as an exhibit. The exhibit is not yet accepted as proof of a fact, but it is in the court’s custody. EXHIBIT TAG A label or sticker affixed to an exhibit to mark it for a certain case, party and date of identification or admission. CHAIN OF CUSTODY The history of the security of an exhibit from the time it is seized until its final disposition. EVIDENCE Exhibits and testimony of witnesses during a trial or hearing. ADMITTED AND RECEIVED The Court’s acceptance of an exhibit as proof of a fact. Once an exhibit is admitted into evidence, a jury or judge may examine the exhibit and consider it proof of something. SEALED Before it gets to the courtroom: An exhibit is secured and labeled with an adhesive closure by the party bringing it to court. After it has been marked for identification:

Also called “court-sealed” or sometimes “resealed.” The Court orders the exhibit sealed after it has been opened in court.

CRM 700 - 2

Chapter 702

EXHIBITS - CARE AND CUSTODY

Exhibits are marked for identification when so requested by counsel or the Court. When the exhibit is marked and when it is received into evidence, it must be reflected in the court minutes (exhibit list). EXHIBIT LIST When using the exhibit lists, make sure you make at least two copies (one for court file and one to be kept with the exhibits). MARKING EXHIBITS Each exhibit must be marked with an exhibit tag. The exhibit tag includes who offered the exhibit (Plaintiff/Defendant/Court), the exhibit number or letter, the case number, the date it was marked and the date it was received, as well as the clerk’s name. The corresponding exhibit list must clearly describe each exhibit. Order of Marking Exhibits Criminal case exhibits offered by the People are typically marked numerically and those offered on behalf of the Defendant are typically marked alphabetically. There are no laws determining these procedures and therefore you may use whatever procedure is followed in your court. Currency and Coins Currency should be re-counted by the clerk upon receipt. Currency should be listed by denominations and totaled. Coins should be listed separately in the same manner. SUGGESTION: To protect the clerk and the court from any future discrepancies, the clerk should get a receipt from the party presenting the exhibit. Documentary Evidence Checks, contracts and other documentary exhibits should be described as a check, contract, bill of sale, etc. It should also be noted if any of the documents are more than one page. Firearms Firearms must be identified as to make, model, and serial number. Additional care should be taken in disarming and storing these items.

CRM 700 - 3

Narcotic and Paraphernalia All narcotics and other paraphernalia should be described fully, such as number of cigarettes, capsules, hypodermic needles, syringes, color and or/consistency as well as weight if provided. Jewelry Jewelry should be described in general terms (i.e. yellow metal band with four clear colored stones); include size, weight and values if provided. REMARKING EXHIBITS Suggested procedure:

1. Remove the original exhibit tag. Draw a line through the face of the tag and write REMARKED AS PEOPLE’S/DEFENSE #____.

2. Staple the old tag to the back of the exhibit list and note in the court

minutes. 3. When remarking exhibits for a new hearing, make a new Exhibit List for the

case and the exhibit envelope. NOTE: If you have any stick-on exhibit tags that are not removable, place the new tag directly over the former one to prevent a jury from knowing the case had been previously tried. Since the exhibit will be remarked, indicate in the minutes that “former exhibit number____is now marked as exhibit number____,” and so forth. STORAGE OF EXHIBITS Exhibits should be stored in designated secured areas. Access to these areas should be restricted to authorized court personnel. Hazardous/Toxic PC 1417.3 provides that exhibits toxic in nature shall be introduced in the form of a photographic record. This is intended to protect personnel and jurors from hazardous substances. Exhibits that Pose Security/Safety Risks Check local court rules or procedures for the authority to accept or refuse these types of exhibits.

CRM 700 - 4

Chapter 703

EXHIBIT RELEASE

WITHDRAWAL OF EXHIBITS Exhibits in any case may be withdrawn in the following manner except as otherwise provided:

1. By stipulation of the parties; 2. By motion made after notice to the adverse party; or, 3. After judgment is final by the party introducing the same in evidence, unless

the exhibit is obtained from an adverse party. If withdrawn under subdivision (3), the party or attorney who withdraws the same shall file an affidavit or declaration to the effect that the person who withdraws them is the owner of, or lawfully entitled to, possession of said exhibits. Such withdrawal shall be upon Court order and a receipt for such exhibit shall be filed. EARLY RELEASE OF EXHIBITS The Court may release exhibits prior to final determination:

1. Upon stipulation of the parties; 2. By court order if the exhibit poses a security or safety problem. (PC1417.3) 3. By noticed motion. (PC1417.2, PC1417.5 and PC1417.6)

Note: The Court should assure that no prejudice be suffered by either party and may require that a photographic record of the exhibit be provided. (PC141.72, PC1417.7) All exhibits which have been introduced or filed in any criminal action or proceeding may be disposed of or released as provided in Chapter 13 of the Penal Code. (PC1417) EXHIBIT REQUEST

During the claim period, parties may request the return of exhibits.

Suggested procedure when a request is made:

1. Check the Docket and Complaint for:

a. Date of sentence;

b. Appeal Filed?

c. Judge hearing the case (if required by your court).

CRM 700 - 5

2. Confirm the identity of the requesting party:

a. People’s exhibits may be returned only to the prosecuting agency or an authorized party.

b. Defense exhibits may be returned only to the defense attorney or an

authorized party.

c. When a private citizen is requesting the return of an exhibit, they must present an authorization form signed by defense counsel, or the prosecuting agency, confirming ownership before the item can be released. Check with local procedures to see if a court appearance to obtain an order is required.

NOTE: If the exhibit returned is a weapon or firearm, it is a good practice to have a Marshal or Sheriff accompany the party out of the building.

3. Complete the appropriate Receipt of Transfer form. When there is more

than one receiving party, a separate form should be used for each party. 4. As exhibits on the case are returned or disposed of, file stamp the Receipt of

Transfer(s) and attach the original document to the case with the appropriate minute entry. Enter the return or disposal date on the exhibit list. Once all the exhibits have been returned or disposed of, the completed exhibit room package may be filed with the case.

5. If your court requires a personal appearance, calendar the matter by

following your court’s procedures. 6. If your court does not require a personal appearance, follow the procedures

set by your court.

CRM 700 - 6

Chapter 704

EXHIBITS – APPEALS

APPEAL CASES WITH EXHIBITS When an appeal has been filed, the Notice of Disposal cannot be prepared until thirty days after the remittitur is received affirming the judgment. (PC1417.1(b)) The clerk who handles the appeals cases should notify the clerk who handles the exhibits (if your court has people in charge of these areas) when an appeal, an abandonment, dismissal, or remittitur is filed on cases with stored exhibits. At the time an appeal is filed, exhibits should be tagged or stored in a way to distinguish them. Refer to local court procedures for the physical transfer of exhibits.

CRM 700 - 7

Chapter 705

EXHIBIT DESTRUCTION

DESTRUCTION/DISPOSITION OF EXHIBITS Before exhibits may be destroyed or otherwise disposed of, the case must have reached a final determination and notice must be mailed to the attorneys and/or parties of record. The loss or destruction of evidence before final determination could affect the outcome of a case and could cause a criminal case to be dismissed for lack of evidence. The statues regarding retention and destruction of evidence are set forth in PC 1417, et seq. Before any proposed disposition of an exhibit pursuant to PC 1417 et seq., the court shall notify the prosecuting attorney, the attorney of record for each party, and each party not represented by counsel of the proposed disposition. Although the code provides for only 15 days notice following the date of determination, the disposal notice forms should allow more time for counsel to respond. Additionally, this extended period allows for the 60-day requirement before the disposal/destruction of weapons, drugs, explosives, etc., (i.e. judgment date + 30 day appeal period + 60 days for claim = 90 days). (PC1417.6) When the period for objecting to the disposal of exhibits has expired and no request has been received to retain the exhibits, the disposal process can begin. NOTICE OF DISPOSAL REQUIREMENTS After the final determination date of the case has been noted, the time requirement for notice of disposal may begin. (PC1417.7 (e)) Notice of proposed disposition of evidence must be given not less than 15 days prior to the date proposed for disposition of the evidence. Weapons, drugs, etc. cannot be disposed of/destroyed until 60 days following determination. (PC 1417.6) To accommodate the time line requirements and simplify the processing of exhibits, this procedure for disposal/destruction has been outlined to comply with the longest time requirements. A final determination is reached after judgment, dismissal, and expiration of the appeal period. If an appeal has been filed, final determination is reached after the remittitur is received. An exception to the final determination rule is on death penalty cases. The following time lines must be observed prior to sending a Notice of Transfer/Disposal.

CRM 700 - 8

TIME LINES No Appeal

Thirty days after the last day for filing a notice of appeal where a notice of appeal is not filed. (PC1417.1(a))

Appeal Filed

Thirty days after the date the clerk of the court receives a remittitur affirming the judgment, where a notice of appeal is filed. (PC1417.1(b))

Death Penalty Case

Thirty days after the date of execution of sentence where the death penalty is imposed. (PC1417.1(d))

Suggestion

Research and preparation of notices is an ongoing function of the clerk(s) or exhibit custodian. Generally the oldest cases should be handled first, however exhibits posing storage problems should be given priority when sending notices.

PROCESSING THE NOTICE OF DISPOSAL After the final determination date is confirmed from the case, check the case to ensure that none of the following exist, which dictates that the exhibits must be held:

1. If the defendant has absconded prior to sentencing, and a warrant has been issued;

2. If the sentencing has been set for a future date;

3. If there are co-defendants whose cases have not concluded; or,

4. If an appeal has been filed.

When it is determined that none of the above situations exist, the Notice of Disposal can be prepared. The prosecutor is responsible for notifying the victims when stolen property is included in the exhibits to be disposed. In some cases, more than one party may receive exhibits. In those instances, a separate receipt for release of exhibits will be used for each receiving party.

When the Notice of Disposal has been completed and a copy mailed to all parties, the original should be attached to the case and a copy placed with the exhibits. Suggested docket entry:

(Date) Notice and Order Regarding Disposal of Criminal Exhibits Mailed.

CRM 700 - 9

GUIDELINES FOR EXHIBIT DESTRUCTION OR DISPOSAL:

1. Prepare a separate list for each category of items:

a. Bottle exhibits

b. Unlawful property, narcotics, drugs and paraphernalia

c. Unlawful property, dangerous weapons

d. Lewd films and photos

e. Documentary

f. Saleable items

g. Hand guns and rifles

2. Assign a number to each category, usually a number reserved for special

proceedings. Follow local procedure. 3. List all exhibits that have been filed a minimum of two years. 4. Check the case to verify that no appeal is pending and that judgment is final. 5. Make a minute entry showing destruction or disposal order of exhibit at

same time docket is checked. This is a timesaving feature. 6. Have the presiding judge sign the orders for destruction or disposal of the

exhibits. 7. Gather and account for all of the remaining exhibits listed on the exhibit list.

NOTE: Be very cautious when handling exhibits, there may be liquids that could spill or articles that are breakable and they must be handled carefully. Avoid injury to yourself by not reaching blindly into containers. Wear rubber gloves.

8. Unclaimed firearms and other weapons, ammunition and explosives are

usually listed on an order for transfer and delivery to the county sheriff, or the local chief of police.

DISPOSAL CONTACTS Each bulk of exhibits requires a transfer order.

1. Narcotics and weapons: Transfer to the Sheriff’s Department or City, Chief

of Police.

CRM 700 - 10

2. Unknown liquids, body fluids, needles, and hazardous toxic materials/liquids: Keep in metal containers and look for a local environmental service for disposal.

3. Televisions, stereos, jewelry, furs, and items of significant value: Check

with local practice for auction or sale. 4. New clothing and new smaller items: Donate to a local non-profit

organization. 5. Items of no value, tattered clothing, bongs, etc: Smash or destroy, place in a

plastic bag and dispose of in a controlled dumpster. 6. Money: Money is to be deposited to the county treasurer/general fund.

Check with local rules for practices observed.

CR (Rev. 2013) 800 - 1

Part 800

JUDGMENT OVERVIEW The following judgment or sentencing information is divided into three categories:

1. General Jurisdiction charges (felonies); 2. Limited Jurisdiction charges (misdemeanors); and 3. Court Order Programs and Sentencing Alternatives.

Most courts use a combination of court ordered programs and sentencing alternatives for either felony or misdemeanor charges. To the extent possible, applicable code sections are included as a point of reference for any questions on a particular topic.

CR (Rev. 2013) 800 - 2

Chapter 801

FELONY JUDGMENT PRE-SENTENCING TIME FOR PRONOUNCEMENT OF JUDGMENT Judgment must be pronounced within 20 court days after conviction unless time is waived for sentencing. The Court may extend the time for judgment for 10 days to hear a motion for new trial. (PC1191) MOTION FOR NEW TRIAL A motion for new trial must be heard prior to the imposition of sentence. (PC1181) PROBATION REPORTS The Court will refer a case to the probation department at time of conviction for investigation and preparation of a written report. The probation officer will make recommendations to the Court based on the circumstances of the case and the defendant’s criminal history. Reports should be delivered to the court five days prior to sentencing hearing. (PC1203(b)) Probation reports are confidential before judgment is pronounced. Once judgment is pronounced, the report is public for 60 days. After the 60-day period, the report becomes confidential again. (PC1203.05) PRE-SENTENCE EVALUATIONS Diagnostic Evaluation pursuant to PC 1203.03

A defendant may be remanded to the California Department of Corrections for the preparation of a diagnostic evaluation. A report is prepared for the Court recommending placement within 90 days. Time for pronouncement of judgment is extended. (PC 1191) Diagnostic Evaluation for Sex Offenders pursuant to PC 288.1

If a defendant is convicted of any sex act with a child under the age of 14, the Court may refer the defendant to a psychiatrist or psychologist to evaluate the defendant’s mental condition. The evaluation should consider the following:

1. If granting the defendant probation would be in the best interest of the child victim;

2. If returning the defendant to the family home would be in the best interest of the child victim; and,

3. If rehabilitation of the defendant is feasible.

Criminal proceedings are not suspended pending this evaluation.

CR (Rev. 2013) 800 - 3

Chapter 802

PRONOUNCEMENT OF JUDGMENT DEFENDANT’S PRESENCE PC 1193 The defendant shall be personally present when judgment is pronounced unless:

1. The defendant states in open court on the record, or in a notarized writing, that judgment may be pronounced against him/her in his/her absence; and,

2. The defendant is represented by counsel when judgment is pronounced; and, 3. The Court approves the defendant’s absence during pronouncement of

judgment. ARRAIGNMENT FOR JUDGMENT A defendant waives formal arraignment or is arraigned by the Court. A defendant must be asked if there is any reason why judgment should not be pronounced. (PC1200) The Court makes a finding that there is no legal cause why judgment should not be pronounced. (PC1201) PRONOUNCEMENT OF JUDGMENT Before the pronouncement of judgment the Court will:

1. Fix the degree of the crime if it was not fixed at the time of conviction. The offense will be deemed to be the lesser degree if not determined at this time. (PC1192)

2. Read and consider all submitted reports and statements. 3. Rule on any motions made that have not yet been ruled on.

ADVISEMENTS The Court will advise the defendant of appeal rights, and, if necessary, deportation pursuant to PC1016.5, and consequences of parole.

CR (Rev. 2013) 800 - 4

Chapter 803

PROBATION TYPES OF PROBATION There are two types of probation, formal and informal. If placed on formal probation, the defendant will be under the supervision of a probation officer. Informal probation is unsupervised and may be referred to as court probation, summary probation, or conditional probation. IMPOSITION OF SENTENCE IS SUSPENDED No sentence is imposed (no prison term). Instead, the defendant is placed on either formal or informal probation. The court may impose jail time as a term and condition of probation. EXECUTION OF SENTENCE IS SUSPENDED Defendant is sentenced to serve time in state prison. Execution of the prison sentence is suspended and the defendant is placed on probation with various terms and conditions. If the defendant violates probation, the defendant may be remanded to prison for the time previously imposed. PROBATION VIOLATIONS (PC 1203.2) If the probation officer has probable cause to believe the probationer has violated probation, a petition is prepared stating the condition of probation violated and the factual basis of the violation (how it was violated). The petition may request that a bench warrant be issued or an Order to Show Cause be issued with a date for the defendant to appear in court and respond to the allegations of the violation of probation. When a probationer is arraigned on a new charge, he/she must be given notice by the probation officer or district attorney of any alleged violation of probation. The defendant must admit or deny the violation. If admitted, a sentencing after the revocation hearing is set. If denied, an evidentiary hearing is set. PROBATION HEARING/EVIDENTIARY HEARING An evidentiary hearing is held to prove/disprove the violation. The hearing may be held in conjunction with proceedings in a new case. If a violation is not proved, probation is reinstated with the same terms and conditions as previously imposed. If a violation is proved, probation is revoked and a sentencing after revocation hearing is set. At the sentencing hearing, the Court may reinstate probation with the same terms and conditions, or with new terms and conditions. The Court may also revoke and terminate probation, and sentence the defendant to state prison.

CR (Rev. 2013) 800 - 5

Chapter 804

STATE PRISON STATE PRISON SENTENCES A defendant is committed to state prison for the time prescribed by law. There are two types of prison sentences, determinate and indeterminate. DETERMINATE SENTENCE The defendant is committed to state prison for a fixed period. Each felony offense has a specific range (low, middle, upper) and length of punishment. The Court must select the middle term unless it finds circumstances in mitigation or aggravation. INDETERMINATE SENTENCE The defendant is committed to state prison for an indefinite period of time – up to life. CONCURRENT TERM The sentence imposed is to be served at the same time as another sentence. Prison terms not designated as consecutive or concurrent shall be deemed concurrent. All concurrent sentences must have the full term imposed. CONSECUTIVE TERM The sentence imposed is to be served immediately following another sentence. Determinate sentences are served before indeterminate sentences. 1/3 MID TERM (PC 1170.1(a)) When imposing a consecutive term, the Court will usually impose 1/3 the middle term on subordinate counts. STAYED (PC 654) If defendant is convicted of two or more offenses resulting from the same act or omission, the defendant shall be punished on the offense that carries the longer term of imprisonment. The sentence imposed on the other offense would be stayed pursuant to Penal Code Section 654. THREE STRIKES (PC 667(b)-(i) / PC 1170.12(a)-(d))

1. Strike Priors.

2. Any convictions for “serious” or “violent” offenses listed under PC 1192.7(c) or 667.5(c).

CR (Rev. 2013) 800 - 6

3. Mandatory Sentencing.

a. A defendant with one strike prior is to receive a mandatory state prison sentence of twice the term normally given.

b. A defendant with two or more strike priors is to receive a mandatory

state prison sentence of life with a minimum of 25 years. c. This sentencing applies to any felony conviction if the defendant has

one or more strike priors. (Also, see the Summary of the Three Strikes Law later in this chapter.)

CR (Rev. 2013) 800 - 7

Chapter 805

CREDIT FOR TIME SERVED

The court is obligated to determine at the time of sentencing the actual time and conduct credits to be awarded against a defendant’s sentence. (Cal. Rules of Court, Rule 4.310.) The statement of credits should include the total credits given, broken down between actual time and any good time/work time conduct credits.

The credit must be entered in the clerk’s minutes and must include actual time and conduct credit. (PC2900.5/4019)

PRIOR TO JANUARY 25, 2010 Penal Code section 4019 gave defendants confined in or committed to county jail six days or more two days of conduct credit for every six days of actual custody time served, or one-third off their sentence. Stated differently, for every four days of actual time served, a total of six days of the sentence would be deemed served. This credit was awarded to defendants committed to county jail for a misdemeanor or as a condition of probation in a felony case, and as a matter of presentence credit to defendants sentenced to state prison. EFFECTIVE JANUARY 25, 2010 Section 4019 was amended to give defendants confined in or committed to county jail four days or more two days of conduct credit for every four days of actual custody time served, or approximately one-half off their sentence. In other words, for every two days of actual time, four days of the sentence was deemed served. The net effect of the change was to give an extra two days of credit for every two days actually served. The credits applied to persons sentenced to county jail, and to presentence credits for persons sent to state prison. Excluded from the enhanced credit provisions were defendants who had a prior conviction for a serious or violent felony, defendants who were being sentenced on a serious felony and any person required to register as a sex offender under section 290. EFFECTIVE SEPTEMBER 28, 2010 Section 4019 was returned to its wording prior to January 25, 2010: persons confined in or committed to county jail six days or longer would receive two days of conduct credit for every six days of actual custody time served. The new provisions eliminated the enhanced credits for persons sentenced to county jail. Section 2933, a statute applying to credits in state prison, was amended to grant persons sentenced to prison one day of credit for every day of pre-sentence time served in county jail. Excluded from the enhanced credit provisions were defendants who had a prior conviction for a serious or violent felony, defendants who were being sentenced on a serious felony, and any person required to register as a sex offender under section 290. The excluded defendants would receive only two days of conduct credit for every six days served. The statutory change applied only to crimes committed on or after September 28, 2010.

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EFFECTIVE OCTOBER 1, 2011 As a result of the enactment of the Criminal Justice Realignment Act of 2011, section 4019 was been amended to provide that inmates confined in or committed to county jail four days or longer are to receive two days of conduct credit for every four days served, or approximately one-half off their sentence. In other words, for every two days of actual time in custody, four days of the sentence will be deemed served. As with the change made on January 25, 2010, the net effect of the amendment is to give an extra two days of credit for every two days actually served. The provisions apply to persons serving a misdemeanor sentence, a term in jail imposed as a condition of probation in a felony case, pre-sentence credit for persons sentenced under section 1170(h), some persons sentenced to state prison, and persons serving jail custody for violation of state parole or Post-Release Community Supervision (PRCS). The new provisions also apply to persons denied felony probation and sentenced to county jail under section 1170(h). The Legislature eliminated the provisions in section 4019 that excluded the enhanced credit award for persons convicted of prior serious or violent felonies, persons committed for serious felonies, and persons required to register under section 290. Section 2933, governing credit for persons sent to state prison, has been restored to its original language: state prison inmates will receive six months of conduct credit for every six months of actual time served; there are no exclusions, only conduct credit limitations such as sections 2933.1 [violent felonies] and 2933.2 [murder]. The amendments made by the realignment legislation are to be applied prospectively only to crimes committed on or after October 1, 2011.

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Chapter 806

PRISON PACKET When a defendant is sentenced to state prison, certain documents must be prepared. These documents are required to transport the defendant to a Department of Corrections Reception Center assigned to your county. These documents are known as the “Prison Packet.” (PC 1203.01)

1. Copy of the Abstract of Judgment (with original signature and court seal) – Judicial Council form CR290, 290.1, 290A.

2. Certified copy of the sentencing minute order with copy of Fingerprint Card

attached (PC992)

3. Certified copy of the charging document (Information, Indictment, or Complaint)

4. Copy of the waiver and plea forms (PC1203.01(b)(2))

5. Copy of the Change of Plea transcript (If a change of plea was entered)

6. Copy of the Probation Report

7. Copy of the Plea and Sentencing transcript, if available*

8. Certified copy of any statements submitted by counsel

9. Copy of any Restitution Orders

The prison packet will be delivered to the sheriff following local procedures. The sheriff’s office will deliver the prison packet and the defendant to the Department of Corrections. If the defendant is sentenced to state prison and has enough local credits to deem the sentence served, a prison packet is prepared and mailed to:

Department of Corrections Legal Processing Unit P.O. Box 942883 Sacramento, CA 94283-0001

*Some courts no longer provide transcripts due to budgetary issues

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Chapter 807

THE CRIMINAL JUSTICE REALIGNMENT ACT OF 2011

INTRODUCTION The sentencing process known as realignment went into effect October 1, 2011. The legislative intent is a commitment to reducing recidivism. Control is turned over to the counties based on the decision that lower-end offenders are best handled within the community. Each county will have their own Community Corrections Plan. The realignment law was also enacted in response to Federal Court decisions that directed the State of California to substantially decrease its prison population. The impact of the law means that offenses that formerly could include sentences to state prison are now punishable only by a sentence in the local county jail. Realignment is centered on a process called Evidence-Based Practices. These include supervision policies, procedures, programs and practices that have been proven to reduce recidivism. This section will discuss Post Release Community Supervision, sentencing under PC1170(h), Mandatory Supervision and Parole. POST RELEASE COMMUNITY SUPERVISION Pursuant to PC3003(a), an inmate released from state prison who is eligible for post release community supervision will be returned, like those released on parole, to the county that was the last legal residence of the inmate prior to incarceration. PC3003(b) allows an inmate to be returned to another county if it’s in the best interests of the public. The supervising agency (probation department) has authority to handle all immediate sanctions without court involvement, up to and including flash incarceration (up to 10 consecutive days). The supervising agency can seek a warrant with or without a formal petition for revocation filed. The supervising agency may petition the court for a revocation hearing, and a hearing shall be held within a reasonable time after filing. Courts are authorized to appoint hearing officers for these cases, and hearing officers may modify conditions, revoke to jail (not prison) for up to 180 days, or refer to an evidence-based program such as reentry court. The courts have been directed that a Petition for Revocation of Supervision will be a new case type and should be given a new file, regardless of where the commitment offense occurred. The petition is not associated with a previous case, and should be treated as a separate action. In addition, courts will be required to track this new caseload for budget purposes, so creating a new case file will facilitate this purpose. The following page is a Judicial Council form that the Probation Department will use to file these Petitions.

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SENTENCING UNDER REALIGNMENT

PC17.5 notes the legislative intent for realignment includes a commitment to reducing

recidivism, the fact that prisons are not currently sustainable, and that public safety is enhanced by

local programs, evidence-based practices, and improved supervision strategies. It does not change

the length of sentencing or probation eligibility; it only seeks to change the place where the

sentence is served.

Under PC1170(h), the court must sentence defendants to county jail if probation is denied

for felonies as follows:

Where the sentence is 16 months, two, or three years

Where the statute now specifically requires punishment in the county jail.

Pursuant to PC1170(h)(3), defendants must be sentenced to state prison as follows:

When the defendant has a prior or current serious or violent felony conviction

under PC1192.7(c) or PC667.5(c

Where the defendant is required to register as a sex offender under PC290

Where the defendant is convicted of a felony with an enhancement for aggravated

theft under PC186.11

Where statute specifies the crime where the sentence must be served in state prison.

Under PC1170(h), the court may sentence a defendant to a straight term of local custody.

The defendant will receive two for one custody credit (two days credit for every one day served)

and, upon release, will not be placed on parole or supervision.

The court may impose a split or blended sentence, which orders a defendant to local

custody for a portion of the sentence and the concluding portion is suspended. The suspended

portion is subject to Mandatory Supervision. Under Mandatory Supervision, the defendant is only

given day for day custody credit and is supervised by the probation department under terms and

conditions generally applicable to probation.

The court may also impose Mandatory Supervision for the entire sentence.

The defendant does not have to agree to any sentencing structure under PC1170(h); the

sentence is the Judicial Officer’s decision. Supervision ends with the original term imposed and

there is no parole.

MANDATORY SUPERVISION

Under PC1170(h)(5)(B), the court may suspend a concluding portion of a sentence to be

served on Mandatory Supervision. Although many of the terms, conditions and procedures will

be the same as Formal Probation, this is a separate process which is being handled by the Probation

Department. The Court may adopt the Mandatory Supervision terms and conditions as

recommended by the Probation Department and order the defendant to comply with each condition

during the period of Mandatory Supervision. The probation department may charge a defendant

for all, or a portion of, the reasonable cost of mandatory supervision, subject to the defendant’s

ability to pay. The term of Mandatory Supervision shall begin upon release from custody.

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The Probation Department may file a Revocation Petition. A warrant may be issued or a court date set for hearing on the Petition. The court may revoke the mandatory supervision and return the defendant to custody. The court may impose additional penalties or return the defendant to Supervision under the same terms and conditions.

PAROLE Effective July 1, 2013, the parole revocation process transitioned from the Board of Parole to the local courts. Most offenders released from prison will be monitored by the County Probation Department under Post Release Community Supervision. The more serious offenders whose crimes fall under one or more of the following categories will be supervised by the Division of Adult Parole Operations:

(1) A serious felony as described in subdivision (c) of Section 1192.7 (2) A violent felony as described in subdivision (c) of Section 667.5 (3) A crime for which the person was sentenced per PC667(e)(2) or PC1170.12(c)(2) (4) Any crime for which the person is classified as a high risk sex offender (5) Any crime for which the person is required, as a condition of parole, to undergo

treatment by the State Department of State Hospitals per PC2962 The parole agent has authority to handle all immediate sanctions without court involvement, up to and including flash incarceration (up to 10 consecutive days). The agent can seek a warrant with or without a formal petition for revocation filed. The agent may petition the court for a revocation hearing. If the offender admits the violation or the violation is found to be true, the person may be incarcerated in the County Jail for up to 180 days and the offender’s parole conditions can be modified. The courts have been directed that a Petition for Revocation of Parole will be a new case type and should be given a new file, regardless of where the commitment offense occurred. The petition is not associated with a previous case, and should be treated as a separate action. The following pages show Judicial Council forms that the Division of Adult Parole Operations will use to file a Revocation Petition and/or a Request for Warrant. If a defendant is charged with a new violation in another county, that county will have jurisdiction to hear petitions to revoke parole and impose a term of custody. This allows the Division of Adult Parole Operations to attach their petition to the new case filed in another county and prevent the defendant from having to be transported between counties for separate hearings.

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Chapter 808

MANDATORY ACTIONS RESTITUTION FINES A mandatory fine to the Victim’s Restitution Fund is imposed on all felony and misdemeanor convictions. The amount shall be set at the discretion of the court and commensurate with the seriousness of the offense, but shall not be less than two hundred forty dollars ($240) starting on January 1, 2012, two hundred eighty dollars ($280) starting on January 1, 2013, and three hundred dollars ($300) starting on January 1, 2014, and not more than ten thousand dollars ($10,000), if the person is convicted of a felony, and shall not be less than one hundred twenty dollars ($120) starting on January 1, 2012, one hundred forty dollars ($140) starting on January 1, 2013, and one hundred fifty dollars ($150) starting on January 1, 2014, and not more than one thousand dollars ($1,000), if the person is convicted of a misdemeanor. The minimum amount is $200 and the maximum amount is $10,000. (PC1202.4) The defendant may also be ordered to pay restitution to the victim or victim’s family. The California Department of Corrections requires the victim’s name and the amount due in order to collect restitution from defendants sentenced to state prison. PAROLE FINE All persons sentenced to state prison shall be ordered to pay a parole fine pursuant to PC 1202.45(b). The fine imposed shall be the same amount as the Victim’s Restitution fine. This fine is suspended upon successful completion of parole. If parole is violated, the fine becomes due. CRIMINAL CONVICTION ASSESSMENT To ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense, including a traffic offense, except parking offenses as defined in subdivision (i) of Section 1463 of the Penal Code, involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code. The assessment shall be imposed in the amount of thirty dollars ($30) for each misdemeanor or felony and in the amount of thirty-five dollars ($35) for each infraction. COURT OPERATIONS FEE To assist in funding court operations, an assessment of forty dollars ($40) shall be imposed on every conviction for a criminal offense, including a traffic offense, except parking offenses as defined in subdivision (i) of Section 1463, involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code.

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REGISTRATION REQUIREMENTS Narcotics Offender – the defendant will be required to register as a narcotics offender pursuant to HS 11590 if convicted of certain drug offenses. Sex Offender – the defendant will be required to register as a sex offender pursuant to PC 290 if convicted of certain sex offenses. Arson – if convicted of arson and/or attempted arson, the defendant will be required to register pursuant to PC 457.1. Gang – A defendant will be required to register pursuant to PC 186.30 for any crime the Court, at the time of sentencing or disposition, finds is gang-related. TESTING AIDS Testing PC 1202.1 – Persons convicted of the following sex crimes must submit to a blood test for acquired immune deficiency syndrome (AIDS):

1. PC 261 – rape 2. PC 261.5 – unlawful intercourse with a minor 3. PC 262 – spousal rape 4. PC 286 – sodomy 5. PC 288a – oral copulation 6. PC 288 – lewd or lascivious acts with a child (if court ordered)

DNA testing PC 296(a)(1) – Persons convicted of the crimes listed in PC 296(a)(1) are required to submit two specimens of blood, a salvia sample, right thumbprint and a full palm print impression of each hand for law enforcement analysis.

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Chapter 809

SUMMARY OF THE CALIFORNIA THREE STRIKES SENTENCING LAW

INTRODUCTION The California Three Strikes law was enacted by Legislature in March, 1994. (P.C. 667 (b)-(j)) The voters, with the passage of Proposition 184, enacted a substantially similar version of the law in November, 1994. (P.C.1170.12) Although there are technical differences between the two versions of the law, courts have interpreted and applied them in the same way.

BASIC SENTENCING STRUCTURE A defendant with one prior “strike” is to receive a mandatory state prison sentence of twice the term normally given. A defendant with two or more “strikes” is to receive a mandatory state prison sentence of life, of which the minimum term is 25 years. The sentencing law applies to any felony conviction if the defendant has one or more prior strikes. “Petty theft with a prior theft conviction,” for example, can result in a state prison sentence of 25 years to life if a defendant has two prior strikes. CRIMES THAT QUALIFY AS STRIKES The following crimes will be a strike:

1. California adult convictions for “serious” or “violent” offenses under Penal Code sections 1192.7(c) or 667.5(c).

2. Out of state adult convictions that would qualify as “serious” or “violent”

felonies under California law. 3. Some of the more serious juvenile adjudications if the minor was 16 years of

age or older when the crime was committed. The priors have no “washout”; if the district attorney can find them, they can be charged regardless of how old they are. The prior will qualify as a strike even if the defendant was not sent to prison. The priors can be acquired in a single conviction that charges multiple counts. In other words, if a defendant commits three residential burglaries and is convicted of all of them in a single prior proceeding, the defendant has three prior strikes; if he/she then commits another felony and is convicted, he/she will be subject to the 25 years to life sentence as a third striker.

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Strikes may be proven by the criminal record showing that the defendant was convicted of one of the listed crimes, or that a crime was committed with an enhancement that makes it a strike (such as causing “great bodily injury”). Just looking at the trial record also can prove the strike, even if the conviction itself did not constitute a strike. If the defendant used a gun in the crime, for example, the district attorney may charge a strike even though the defendant was not actually convicted of the crime with the use of a gun. CALCULATION OF THE SENTENCE

1. General sentencing principles applicable to both second and third strike sentencing are: a. The Court must sentence to state prison; there is to be no grant of probation, no

commitment to CRC, and no grant of diversion. b. The “strikes” portion of the sentence is separate from any applicable

enhancement. In other words, the Court is to impose the basic second or third strike sentence, plus any enhancements. It is not a “dual use of facts” to use the same prior serious or violent felony as a “strike” and as the reason for imposing an extra five years under P.C. 667(a) if the current crime is a serious felony.

c. Conduct credit is limited to 20% while in prison, instead of the traditional 50%

conduct credit. d. If the defendant is convicted of more than one felony in the current proceeding,

the Court must sentence the defendant consecutively if the current crimes were committed on separate occasions and arose out of separate operative facts. The Court may sentence the defendant concurrently if the crimes arose on the same occasion or out of the same operative facts.

2. If the defendant is convicted of any felony having received one prior strike, the

sentence is to be twice the term otherwise provided. If the defendant is convicted of P.C. 666, “petty theft with a prior,” the punishment is changed from 16 months, two or three years, to 32 months, four or six years. If the defendant is convicted of several felony counts, any consecutive terms are limited to one-third the midterm, but the subordinate terms are doubled.

3. If the defendant is convicted of any felony having received two or more prior strikes, the defendant must be sentenced to a term of life in prison, the minimum term of which is the greater of: a. Three times the normal punishment. A felony punishable by 16 months, two or

three years would be punishable by four, six, or eight years. b. 25 years. In other words, regardless of what the normal punishment has been, the

term becomes 25 years to life.

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c. The traditional punishment. If it is possible to punish the defendant more severely using the traditional sentencing rules than the Three Strikes law, the Court should do so.

Consecutive sentences imposed as a third strike offense are fully consecutive; there is no limit to “one-third the midterm.”

OTHER ASPECTS OF THE LAW

1. The district attorney is required to charge all known prior strikes. The district attorney may dismiss any strikes “in the interests of justice,” or if there is insufficient evidence to prove the prior strike.

2. The district attorney is not to engage in plea-bargaining over the charging of prior strikes.

3. The Court may dismiss a prior strike “in the interests of justice.”

4. The Court may specify a current felony conviction as a misdemeanor if the current

offense may be punished either as a felony or misdemeanor (a “wobbler”). In considering a request to specify an offense as a misdemeanor, the Court is to be guided by the same general principals in considering the dismissal of a strike.

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Chapter 810

MISDEMEANOR JUDGMENT PRE-SENTENCING

Pursuant to Penal Code 1203(d), when a person has been convicted of a misdemeanor, the Court may either refer the matter to the probation department for an investigation and report, or summarily pronounce a conditional sentence. A conditional sentence means the suspension of the imposition or execution of a sentence with conditions established by the Court without the supervision of a probation officer. The time set for hearing shall be not less than six hours, nor more than five days after the verdict or plea of guilty, unless the defendant waives time for sentencing. This time may be extended for not more than 10 days for the hearing of a motion for new trial or an arrest of judgment. The Court may also extend the time for not more than 20 judicial days if probation is considered. At the request of the defendant or the probation officer, the hearing may be further extended for not more than 90 additional days. (PC1449) A defendant has the right to be sentenced by the judge that took the plea. If the defendant agrees to be sentenced by a different judge, then the defendant must enter an Arbuckle waiver on the record. This waiver must be recorded in the clerk’s minutes. In a misdemeanor case, judgment may be pronounced against the defendant in his/her absence if counsel represents the defendant. (PC1193(b)) Each defendant has the right to be represented by counsel at the pronouncement of judgment. The victim of a crime has the right to appear at the sentencing proceeding. (PC1191.1) The victim may also file with the court, a written, audio taped, or videotaped statement. (PC1191.15) A written transcript of the tape shall also be provided by the person filing the statement, and shall be made available as a public record of the court after judgment has been pronounced.

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Chapter 811

ARRAIGNMENT FOR PRONOUNCEMENT OF JUDGMENT

When the defendant appears for judgment, he/she must be informed by the Court of the nature of the charge against him and must be asked whether he/she has any legal cause to show why judgment should not be pronounced against him/her. (PC1200)

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Chapter 812

PROBATION As stated in the penal code, probation means the suspension of the imposition or execution of a sentence and the order of conditional and revocable release in the community under the supervision of a probation officer. (PC1203) Pursuant to Penal Code 1203(d), when a person has been convicted of a misdemeanor, the Court may either refer the matter to the probation department for an investigation and report, or summarily pronounce a conditional sentence. A conditional sentence means the suspension of the imposition or execution of a sentence with conditions established by the Court without the supervision of a probation officer. The time set for hearing shall be not less than six hours, nor more than five days after the verdict or plea of guilty unless the defendant waives time for sentencing. This time may be extended for not more than 10 days for the hearing of a motion for new trial or an arrest of judgment. The Court may also extend the time for not more than 20 judicial/court days if probation is considered. At the request of the defendant or the probation officer, the hearing may be further extended for not more than 90 additional days. (PC1449) In misdemeanor cases, the sentence is usually pronounced at the time of plea, but there are occasions when the judge will refer the matter to probation for a report and recommendation. If the matter is referred to the probation department for its report and recommendation, the report shall be made available to the Court, the prosecuting attorney, and the defense attorney at least five days prior to the hearing, or upon request of the defendant or prosecuting attorney, nine days prior to the time set for hearing. (PC1203(D)) If counsel does not represent the defendant, the probation officer will be ordered by the Court to discuss the contents of the report with the defendant prior to sentencing. The clerk of the court files the probation officer’s report at the time that it is considered by the judge. Pursuant to Penal Code 1203.05, the report may be inspected or copied only as follows:

1. By any person from the date the sentence is pronounced and for 60 days after.

2. By any person, at any time, by order of the Court.

3. By the public, if the Court upon its own motion orders that a report or reports shall be open or that the contents of the report are disclosed.

4. By any person authorized or required by law to inspect or receive copies of the report.

5. By the district attorney of the county at any time.

6. By the subject of the report at any time.

At the sentencing hearing, the Court shall make a statement that it has read and considered any report of the probation officer. (PC1203(b)(3)) The defendant must be informed by the Court, or by the clerk, of the nature of the charge, the plea and the verdict, if any, and must be asked whether there is any legal cause to show why judgment should not be pronounced against him/her. (PC1200)

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Chapter 813

SENTENCING OPTIONS Every misdemeanor is punishable by imprisonment in the county jail for a period not to exceed six months, or by a fine not to exceed $1000.00, or both (PC19). The period of probation in a misdemeanor case may not exceed three years, unless otherwise provided in statute (example: VC 23152(a)/(b), HS 11590). When probation is denied, the Court may impose straight jail time, a fine only, or jail time and a fine. The defendant may also have the option of converting the jail sentence to fines or converting the fine to a jail sentence. The minimum conversion rate is $30.00 per day. Pursuant to Penal Code 977(2), the defendant must be present for arraignment and sentencing. Bail is exonerated at the time of sentencing as a matter of law.

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Chapter 814

CONDITIONS OF PROBATION The Court may impose reasonable conditions on a grant of probation. Some of these conditions are listed below.

1. Theft class.

2. HIV education.

3. Community service in lieu of fines.

4. No deadly weapons or firearms.

5. Peaceable contact or no contact orders.

6. Submit person/vehicle/residence to search and seizure at any time without benefit of warrant as directed by any peace officer (commonly referred to as a 4th waiver).

7. Report change of address to the court.

8. Not change residence or leave the state without prior approval.

9. Defendant shall obey all laws and shall not commit any criminal offense. ADDITIONAL CONDITIONS FOR DOMESTIC VIOLENCE CASES

1. 52-week batterers class.

2. Anger control/Anger Management Program.

3. 52 week parenting program.

ADDITIONAL CONDITIONS FOR DUI CASES

1. Restricted or suspended license.

2. Ignition Interlock Device.

3. Habitual traffic offender.

4. DUI program.

5. Victim impact panel (also referred to as MADD session).

6. Defendant shall submit to alcohol/drug testing at the direction of any peace officer, including, but not limited to, a request pursuant to VC 13353.

7. Defendant shall not drive a vehicle without liability insurance and shall provide proof of insurance when requested to do so by a peace officer.

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Chapter 815

COURT ORDERED PROGRAMS AND PROCEDURES DEFERRED ENTRY OF JUDGMENT

OVERVIEW A defendant charged with certain drug-related offenses may be eligible to participate in a deferred entry of judgment (DEOJ) program pursuant to PC 1000 (formerly known as “diversion”). If the defendant consents to participate, pleads guilty to the charge, waives time for sentencing, and then successfully completes a supervised PC 1000 program of education, treatment, or rehabilitation, the charge(s) will be dismissed. The term for a grant of deferred entry of judgment is not less than 18 months and not more than three years. If the defendant fails the program, the Court will make a finding of guilty, enter judgment, and sentence the defendant. (Formerly under diversion, there was no guilty plea; proceedings were suspended during the term of the diversion program.) QUALIFYING VIOLATIONS Any case where an accusatory pleading for a violation of HS 11350, 11357, 11364, 11365, 11550 or 11358, if the marijuana planted, cultivated, harvested, dried, or processed is for personal use, or HS 11368, if the narcotic drug was secured by a fictitious prescription and is for the personal use of the defendant and was not sold to another (PC653f(d)), if the solicitation was for acts directed to the personal use only (PC647f), if for being under the influence of a controlled substance (BP4230), and it appears to the prosecuting attorney that, except as provided in HS 11357(b), all of the following apply to the defendant:

1. The defendant has no conviction for any offense involving controlled substances prior to the alleged commission of the charged offense.

2. The offense charged did not involve a crime of violence or threatened

violence. 3. There is no evidence of a violation relating to narcotics or restricted

dangerous drugs other than a violation of the sections listed in this subdivision.

4. The defendant’s record does not indicate probation or parole has ever been

revoked without thereafter being completed. 5. The defendant’s record does not indicate that he or she has successfully

completed or been terminated from diversion or deferred entry of judgment within five years prior to the alleged commission of the charged offense.

6. The defendant has no prior felony conviction within five years prior to the

alleged commission of the charged offense.

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PROCEDURE At the time of any pre-conviction hearing (usually arraignment or readiness conference), the prosecuting attorney informs the Court and counsel if the defendant qualifies for deferred entry of judgment. If the defendant is found eligible, the defendant:

1. Consents to the program (usually files a completed form re: Referral to Deferred Entry of Judgment Program). Completing a DEOJ form complies with this requirement, and also indicates which agency the defendant will report to for the DEOJ program.

2. Waives right to speedy trial or speedy preliminary hearing.

3. Withdraws not guilty plea and pleads guilty to the qualifying charge(s). Note:

Lesser charges may be held in abeyance pending completion of DEOJ, at which time they may be dismissed.

4. Optional: Tenders a 4th Amendment Waiver, to expire on the Further Proceedings

date (18 months to three years from date of DEOJ program PC1000.2); Tenders an Arbuckle Waiver.

The Court:

1. Summarily grants deferred entry of judgment for a term of 18 months to 3 years. 2. Vacates any future dates (including trial).

3. Changes the custody status to released on own recognizance or “at liberty on

DEOJ, exonerating any cash bail or bail bond posted.

4. Sets a future proceedings hearing 18 months from DEOJ date. 5. Orders the defendant to enroll in a recommended PC 1000 program.

6. Imposes fees as follows: Discretionary court administrative fee (PC1001.15(a)),

not to exceed $500, and Mandatory restitution fee (PC1001.90), not less than $100 or more than $1000. The DEOJ program provider may also require a fee (PC 1000.3).

7. Forwards a copy of the Referral to DEOJ program to the provider.

8. At the conclusion of the DEOJ period, runs a “records check” on the defendant,

checking for any arrests and/or convictions (Note: Sometimes the probation department or the prosecuting agency performs this function.)

The PC 1000 Provider will:

1. Track and monitor the defendant’s compliance with the program requirements.

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2. Notify the court of any failure to enroll or failure to perform satisfactorily.

3. Notify the court when the defendant has successfully completed the program. Any defendant who is participating in a deferred entry program may be required to undergo analysis of his/her urine for the purposes of testing for the presence of any drug as part of the program. However, urine analysis results shall not be admissible as a basis for any new criminal prosecution or proceeding. (PC1000) Upon defendant’s successful completion of the program, the Court:

1. Makes a finding that the defendant has successfully completed the DEOJ program and not suffered any new arrests.

2. Addresses any outstanding fees.

3. Terminates the PC 1000 proceedings for deferred entry of judgment.

4. Dismisses the counts (also adjudicates any cases or counts held in abeyance).

5. Note: The 4th Amendment Waiver expires automatically on this date; any

automated system should be so noted.

6. Any record filed with the Department of Justice shall indicate the disposition in those cases deferred pursuant to PC 1000.4. Upon successful completion of a deferred entry of judgment program, the arrest upon which the judgment was deferred shall be deemed to have never occurred. The defendant may indicate in response to any question concerning his/her prior criminal record that he/she was not arrested or granted deferred entry of judgment for the offense, except in response to any peace officer application request. (PC 1000.4)

Upon defendant’s failure to enroll in the PC 1000 program, or a demonstration of unsatisfactory performance in the program:

1. The PC 1000 provider notifies the court of defendant’s failure. 2. The Court orders and issues a bench warrant forthwith.

3. Calendars an OSC re: Entry of Judgment hearing upon defendant’s arrest or next

appearance at court. At the OSC re: Entry of Judgment Hearing, if:

1. The defendant did not enroll timely, and the Court allows another opportunity to enroll, the Court will order the defendant to enroll within 20 days, and to complete another Referral: Deferred Entry of Judgment form. A copy of the referral is provided to the selected program. Usually the original further proceedings date remains as set (18 months from DEOJ date).

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2. The Court finds that the provider’s report of unsatisfactory performance is not true, the Court will so note in the minutes, order the defendant to continue on the DEOJ program, keep the DEOJ Further Proceedings date as set.

3. The Court finds any of the allegations of unsatisfactory conduct are true, the Court

makes a finding of guilty to the charge(s) plead when deferred entry of judgment was initially granted, and enters judgment. (Note: The conviction date is the date of this hearing.) If the charge is a felony, the Court sets a probation hearing and sentencing date in approximately 28 days, addresses custody status, and orders a presentence report. If the charge is a misdemeanor, the court may sentence immediately, or order a presentence report.

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Chapter 816

DOMESTIC VIOLENCE FC 6211, PC 1203.097

OVERVIEW Family Code 6211 defines "Domestic violence" as abuse perpetrated against any of the following persons:

1. A spouse or former spouse. 2. A cohabitant or former cohabitant, as defined in FC 6209. 3. A person with whom the respondent is having or has had a dating or engagement

relationship. 4. A person with whom the respondent has had a child, where the presumption applies

that the male parent is the father of the child of the female parent under the Uniform Parentage Act (Part 3, commencing with Section 7600) of Division 12).

5. A child of a party or a child who is the subject of an action under the Uniform

Parentage Act, where the presumption applies that the male parent is the father of the child to be protected.

6. Any other person related by consanguinity or affinity within the second degree.

MINIMUM SENTENCING REQUIREMENTS Courts, and most of society, recognize that defendants convicted of domestic violence, as defined above, need treatment to stop the circle of violence. Penal Code 1203.097 sets forth the minimum mandatory sentencing guidelines for defendants convicted of domestic violence, including:

1. A minimum period of probation of 36 months, which may include a period of summary probation as appropriate.

2. A criminal court protective order protecting the victim from further acts of violence,

threats, stalking, sexual abuse, and harassment, and, if appropriate, containing residence exclusion or stay-away conditions.

3. Notice to the victim of the disposition of the case. 4. Booking the defendant within one week of sentencing if the defendant has not

already been booked. 5. A minimum payment of $400, unless the Court finds the defendant does not have

the ability to pay, or in lieu of a fine, a maximum of $5,000 to a battered women’s shelter.

CR (Rev. 2013) 800 - 29

6. Successful completion of a batterer’s program (explained below).

7. Community service.

8. Firearms restriction.

9. Restitution to the victim. The Court will set periodic review hearings to monitor the defendant’s progress. Failure to comply with the batterer’s program will result in the revocation of probation and the issuance of a warrant for the defendant’s arrest. BATTERER’S PROGRAM Batterer’s programs must follow the standards outlined in PC 1203.097, including but not limited to, lectures, classes, group discussions, and counseling. Techniques used by the batterer’s program to achieve their goal of stopping domestic violence are:

1. Strategies to hold the defendant accountable for the violence in a relationship; 2. Requiring the defendant’s participation in ongoing same-gender group sessions,

free of chemical influence; 3. Performing an initial intake that provides written definitions to the defendant of

physical, emotional, sexual, economic, and verbal abuse, and the techniques for stopping these types of abuse;

4. Informing the victim of the requirements for the defendant’s participation in the

intervention programs as well as available victim resources (and, that the defendant’s attendance in any program does not guarantee that an abuser will not be violent);

5. Providing educational programming that examines, at a minimum, gender roles,

socialization, the nature of violence, the dynamics of power and control, and the effects of abuse on children and others;

6. Requiring the defendant enter into a written agreement with the program, which

includes an outline of the program, the attendance requirements, and the above requirements. The defendant must also sign a confidentiality statement prohibiting disclosure of any information obtained through participating in the program or the group sessions; and,

7. Requiring defendants that are chronic users or serious abusers of drugs or alcohol to

attend concurrent counseling for substance abuse and violent behavior, and in appropriate cases, detoxification and abstinence from the abused substance.

Usually the length of is a minimum of 52 weeks, with periodic review hearings to monitor the defendant’s progress. Proof of enrollment in the program is usually provided by the defendant to the court within 30 days of sentencing.

If, during the defendant’s initial intake interview or over the course of the program, the counselors

at the batterer’s program determine the defendant would benefit from additional counseling,

chemical dependency programs or even a residential treatment program, the program shall notify

the defendant’s attorney and the Court. If the defendant wishes to contest this finding, the

defendant may obtain a second assessment to address chemical dependency. The Court may or

may not impose additional probationary conditions.

DOMESTIC VIOLENCE PROTECTIVE ORDERS

In all cases where the defendant is charged with a crime of domestic violence as defined in

PC13700, the Court shall consider issuing a protective order (restraining order) on its own

motion, either pre- or post-sentencing to protect a victim or witness. The court shall also consider

issuing a protective order for a minor who was not a victim but was physically present at the time

of an act of domestic violence. The protective order is in effect for three years from the date of

issuance, or the date indicated on the face of the order. Orders under PC 136.2(a) are valid as long

as the court has jurisdiction over the case. Orders under PC 136.2(i)(1), 273.5(j), and 646.9(k) are

valid up to 10 years and may be issued whether the defendant is sentenced to state prison or county

jail or placed on probation. Orders under PC 1203.097(a)(2) are valid as long as the defendant is

on probation. All interested parties should receive a copy of this protective order. (PC136.2(h)(l))

Form CR160, PROTECTIVE ORDER IN CRIMINAL PROCEEDINGS, can be found on the

Judicial Council’s Website at http://www.courtinfo.ca.gov/forms.

PROCEDURE

After the judge signs the protective order, the clerk will distribute as follows:

1. Original to court file;

2. One copy to each protected person;

3. One copy to the defendant;

4. One copy to the prosecutor;

5. One copy to law enforcement (usually Sheriff) to be entered into CLETS

within (1) business day. (FC6380(a), PC136.2(g))

The protective order must be served on the defendant in open court, or by mailing a copy of the

order to the defendant.

MODIFICATIONS TO THE PROTECTIVE ORDER

In the event the defendant or victim appears in court requesting that the order be modified, and the

Court grants that request, the clerk shall complete an additional Protective Order, marking the box

that indicates “Modification.” This modified protective order must be served on all parties

mentioned above. Note: It is imperative that any modified Protective Orders are delivered to the

law enforcement agency (usually the sheriff) for entry into CLETS.

CR (Rev. 2015)

800-30

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Chapter 817

DRUG COURT OVERVIEW Drug Court is a specialized program that permits defendants charged with selected, non-violent felony and misdemeanor cases involving drug or drug-related charges to participate in a structured program aimed at reducing recidivism of drug-related offenses, and, to create options within the criminal justice system to tailor effective and appropriate responses to offenders with drug problems. The program imposes an assortment of obligations upon the defendant, based upon his/her own particular needs, with the primary focus on rehabilitating and empowering the defendant to remain clean and sober, and to become a responsible and productive community member. The judge is actively involved in monitoring Drug Court participants, rather than placing defendants on unsupervised probation or diversion programs. Pre-plea Drug Courts are authorized by Penal Code 1000.5. Post-plea Drug Court programs are offered to the defendant as another option to Deferred Entry of Judgment (PC 1000) or as a condition of formal or summary probation. The majority of Drug Court programs in California follow the post-plea model. GUIDING PRINCIPLES -KEY COMPONENTS OF A DRUG COURT These ten key components were developed through a cooperative agreement between the National Office of Justice Programs, Drug Court Program Office, and the National Association of Drug Court Professionals. Most Drug Courts were developed, based on these guiding principles:

1. Drug courts integrate alcohol and other drug treatment services with justice system case processing.

2. Using a nonadversarial approach, prosecution and defense counsel promote public safety while protecting participant’s due process rights.

3. Eligible participants are identified early and promptly placed in the drug court program.

4. Drug courts provide access to a continuum of alcohol, drug, and related treatment and rehabilitation services.

5. Abstinence is monitored by frequent alcohol and other drug testing.

6. A coordinated strategy governs drug court responses to participants’ compliance.

7. Ongoing judicial interaction with each drug court participant is essential.

CR (Rev. 2013) 800 - 32

8. Monitoring and evaluation measure the achievement of program goals and gauge effectiveness.

9. Continuing interdisciplinary education promotes effective drug court planning, implementation, and operations.

10. Forging partnerships among drug courts, public agencies, and community-based organizations generates local support and enhances drug court program effectiveness.

ELIGIBILITY FOR DRUG COURT Typically, the prosecuting agency is the “gatekeeper” for eligibility into the Drug Court programs, with a focus on protecting public safety. Most programs exclude offenders charged with violent offenses, sex crimes, manufacturing illegal substances and other serious offenses. The qualifying charges will vary, depending on the nature of the crime and whether or not a significant underlying cause of the violation is drug dependence. DRUG COURT “TEAM” Each Drug Court comprises its own Drug Court Team. Usually this team, lead by the judicial officer, consists of representatives from the prosecuting agencies, the public defender, state and local law enforcement agencies, the probation department, and the case managers/community treatment providers. Law enforcement officers develop a unique relationship with the Drug Court defendant, often becoming the first line of contact when the participant begins to falter. PROGRAM Drug Court participants are responsible for their development and participation in the treatment process. Defendants meet with treatment providers and case managers to structure a program that provides the best opportunity to break the cycle of addiction, find and maintain employment, and become active, productive members of society. Programs include a regimen of graduated sanctions and incentives, individual and group therapy, urine analysis testing commensurate with treatment needs, close court monitoring and supervision of progress, attendance at self-help meetings, educational or vocational counseling as appropriate, and other requirements as agreed to by the Drug Court Team. Failure to comply with program requirements are met with sanctions, ranging from additional testing, community service, time spent in custody, the defendant being “phased back” to the previous stage/phase of the program or termination from the program. PROCEDURE At the time of issuing the complaint, or upon motion by the defendant, the prosecuting agency will determine if the defendant appears eligible for Drug Court. Further screening and assessment for suitability may occur prior to or after the first appearance in Drug Court. The screening and assessment process should be completed by trained assessors and/or case

CR (Rev. 2013) 800 - 33

managers working with the Drug Court program. After the thorough assessment has been completed, the defendant will be referred to an appropriate treatment modality (outpatient, inpatient, detoxification, etc.), based on his/her individual needs and/or the funding availability for providing the necessary substance abuse treatment. Upon referral to treatment, the defendant is ordered to appear on a regular basis before the Drug Court Judge for a review hearing. The frequency of court appearances may vary, depending on the stage/phase of the program and the individual needs of the participant. Prior to each Drug Court session, the Drug Court Team meets to review the defendant’s progress. These team meetings are confidential in nature and are not open to non-team members unless a confidentiality document is executed. Although the Court is the final authority, issues are discussed with a consensus as to the course of action that will be taken. If the defendant has not reported to the program, or fails to appear in court, a warrant for his/her arrest is ordered and immediately issued. (Hint: Some courts use a unique bail amount --$55,555—to identify Drug Court warrants, which alerts jail staff and expedites processing the defendant for the next Drug Court calendar.) During the court session, each defendant is called to the podium and the judge reviews the defendant’s progress. Sanctions are delivered if appropriate and positive encouragement is provided. Because of the volume of cases on the Drug Court calendar and the frequency of the hearings, some courts have adopted a standard minute sheet, which provides for a multitude of “check off” boxes that address the most common occurrences at the review hearing. An abbreviated minute sheet can be used when the defendant is performing satisfactorily, is not in custody, and no sanctions are imposed that require distribution of the court minutes. PROGRAM COMPLETION/TERMINATION The length of the Drug Court program will vary between jurisdictions, but most programs are at least one year in length, and may include an aftercare or continuing care phase for a minimum of three to six months. Upon successful completion of the program, charges against the defendant may be dismissed or probation terminated, based on the original disposition and plea agreement in the court case. Usually Drug Court programs hold a graduation ceremony, inviting participants, their families, the Drug Court Team members, as well as the arresting officers. The ceremony varies according to location. If the defendant does not comply with the Drug Court requirements, he/she is terminated from the program. A date for sentencing is set if the defendant previously entered a plea of guilty.

CR (Rev. 2013) 800 - 34

Chapter 818

HABITUAL OFFENDER OVERVIEW Vehicle Code Section 23546 defines a habitual offender as someone convicted of a third offense of 23103 as specified in Section 23103.5, 23152, or 23153 within seven years. This section further states that the Court shall require the defendant to surrender his/her driver’s license in accordance with VC 13550, advise the defendant of the Habitual Offender designation for a period of three years, and require the defendant to sign the Habitual Traffic Offender (DL309) form. PROCEDURE (CVC 13350) Upon designation by the Court that the defendant is a Habitual Traffic Offender, the courtroom clerk will reflect this designation in the court minutes. The clerk will complete the abstract (DMV form - DL309) in accordance with the instructions appearing on the lower portion of the form, and confiscate the defendant’s driver’s license. The defendant signs the form acknowledging his/her understanding that his/her driving privilege is revoked and that he/she has been designated as a habitual traffic offender. Provide a copy of the completed form to the defendant. Within ten days, the clerk is to forward the DMV copy of the form and the driver’s license to the DMV at the address appearing on the DL309. The clerk should note on the case file: “DL309 and Driver’s License forwarded to DMV on (date)

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Chapter 819

HIV/AIDS TESTING PC 1202.1, PC 1202.6(a)

OVERVIEW It is mandatory that any person convicted of certain penal code sections involving crimes of a sexual nature be tested for the HIV/AIDS virus. A blood sample will be taken from the defendant and tested by the local public health laboratory. In some smaller counties, it is the responsibility of the defendant to have his/her blood tested by a licensed physician. If the defendant is in custody, the sheriff’s medical unit may perform the test. The confidential results are submitted to the court. PROCEDURE In misdemeanor matters, the results are filed in a sealed envelope. Most courts require the clerks to submit the sealed results to a bench officer for review. The clerks are not to open the envelope. If the results are positive, the Court shall make certain that the defendant understands the nature and meaning of the contents of the report and shall further advise the defendant of the penalty established in PC 647f for a subsequent violations. If the results are negative, the Court accepts the proof, deems this condition of probation satisfied, and places the test results in the confidential envelope. For felony matters, the results are usually processed as indicated above. Additionally the clerk sends a copy of the results with a copy of the minute order to the Department of Justice (address below) and the Health Services Director’s Office for the county in which the court is located. The original of the results is placed in the confidential envelope.

Department of Justice Record Analysis and Processing 4949 Broadway, Room H-127 Sacramento, CA 94203-4170

NOTES The result of HIV/AIDS testing is available to both the defense attorney and the prosecuting attorney ONLY through the Department of Justice. Victims are referred to the local health officer for information, counseling, and test results.

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Chapter 820

IGNITION INTERLOCK DEVICE VC 23575, CRC 4.325

OVERVIEW In addition to any other provisions of law, the court may require that any person convicted of a first offense violation of Vehicle Code 23152 or 23153, or Vehicle Code 14601.2 install a certified ignition interlock device on any vehicle that the person owns or operates, and prohibit that person from operating a motor vehicle unless that vehicle is equipped with a functioning, certified ignition interlock device. The Court shall give heightened consideration to applying this sanction to first offense violators with 0.20 percent or more, by weight, of alcohol in his or her blood at arrest, or with two or more prior moving traffic violations, or of persons who refused the chemical tests at arrest. If the Court orders the ignition interlock device restriction, the term shall be determined by the Court for a period not to exceed three years from the date of conviction. The court shall notify the Department of Motor Vehicles, as specified in subdivision (a) of VC 1803, of the terms of the restrictions in accordance with subdivision (a) of VC 1804. The Department of Motor Vehicles shall place the restriction in the person's records in the Department of Motor Vehicles. (VC 23575) If the Court does not impose the requirement of an IID, the Court must state on the record that the interest of justice requires an exception to the installation of an IID. PROCEDURE Upon an order by the Court (usually ordered at time of sentencing as a condition of probation), the court clerk will complete the Order to Install Ignition Interlock Device (IID) (Judicial Council Form ID-100). The reverse side of this form outlines the various violations of this order, the defendant’s rights under this order, and the instruction to the defendant, within 48 hours of receipt of the order, to arrange for installation of the IID. The clerk will provide the defendant with a list of certified IID providers, and may include the Ignition Interlock Installation Verification, depending on local court practice. Usually the defendant is given 60 days to submit the proof of IID installation. Additionally, the clerk will complete and provide to the defendant the Notice to Employers of Ignition Interlock Restriction. The defendant is also advised that at least once every 60 days, the IID installer, who at that time will also complete the Calibration Verification/Tamper Report, must service the IID. It is the responsibility of the defendant to pay all fees for this service. Failure by the defendant to have the installer service the IID and complete the Verification/Tamper Report will be considered a violation of probation.

CR (Rev. 2013) 800 - 37

DEFENDANT’S MOTION TO DELETE OR MODIFY THE IGNITION INTERLOCK REQUIREMENT Attorneys or defendants may motion the Court to delete or modify the IID as a condition of probation. Some courts require formal, noticed motion procedures be followed, while other courts allow the defendant to file a:

1. Certificate of Installation (if applicable).

2. DMV “H-6” printout of the defendant’s driving record.

3. Completed “Declaration” indicating why the defendant is requesting this order.

4. “Ignition Interlock Removal and Modification of Probation Order” form.

The Court must state on the record why the IID probation condition is modified, should the defendant’s motion be granted. FORMS The forms mentioned above can be found on the Judicial Council’s website at http://www.courtinfo.ca.gov/forms.. They are:

Non-Fillable Form

Fillable Form

Date Revised

Description

ID-100 ID-100 1/1/2000 Order to Install Ignition Interlock Device

ID-110 ID-110 1993 Ignition Interlock Installation Verification

ID-120 ID-120 1993 Ignition Interlock Calibration Verification and Tamper Report

ID-130 ID-130 1/1/2000 Ignition Interlock Noncompliance Report

ID-140 ID-140 1/1/2000 Ignition Interlock Removal and Modification to Probation Order

ID-150 ID-150 1/1/2000 Notice to Employers of Ignition Interlock Restriction

* Adopted for mandatory use by all courts.

IGNITION INTERLOCK DEVICE PROVIDERS Alcohol Sensors (800) 786-7394 Autosense International (800) 325-2656 Consumer Safety Technology Inc. (877) 777-5020 LifeSafer Interlock (800) 210-8087 Guardian Interlock Systems (800)499-0994 (Note: This listing may not include all certified Ignition Interlock Providers.)

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Chapter 821

NOTIFICATION OF FIREARM PROHIBITION PC 12021

OVERVIEW Effective January 1, 2002, PC 12021 requires courts, at sentencing, to provide each felony defendant and each defendant convicted of specific prohibiting misdemeanors with a Department of Justice (DOJ) form notifying the defendant to immediately dispose of any owned or possessed firearm. Note: Qualifying offenses are enumerated in PC 12021. NOTIFICATION FORM The Department of Justice has developed and prescribed a form for providing the above-mentioned court notification: Prohibited Persons Notice Form and Power of Attorney for Firearms Transfer and Disposal. A copy of this four-page form can be found on the Office of Attorney General, State of CA, website at http://caag.state.ca.us/firearms/forms/index.html. PROCEDURE In addition to the events of the hearing (usually this is a sentencing hearing), the clerk must note the defendant’s firearms prohibition notification in the minutes. A sample minute entry would be…”Defendant provided PC 12021 notice.” The four-page notification form (Prohibited Persons Notice Form and Power of Attorney for Firearms Transfer and Disposal) must be provided to the defendant, whether in or out of custody. If the defendant is not present at the time the order is made, the four-page notification is to be provided to the defendant in the same manner as your court provides other paperwork to a non-appearing defendant. In most instances, the paperwork is provided to the defendant’s counsel, who in turn provides the documents to the defendant.

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Chapter 822

PROPOSITION 36 PC 1210

OVERVIEW The primary purpose of Proposition 36 (Prop 36), effective July 1, 2001, is to divert from incarceration and into community-based substance abuse treatment programs, nonviolent defendants, probationers, and parolees charged with simple drug possession or drug use offenses. Additionally, Prop 36 is intended to halt the wasteful expenditure of dollars each year on incarceration of nonviolent drug users who would be better served by community-based treatment, and to enhance public safety by reducing drug-related crime and preserving jails and prison cells for serious and violent offenders. Upon successful completion of this program, the defendant may petition for a dismissal of the charges. The elements of Prop 36 are contained in added PC 1210, PC 1210.1, PC 3063.1, Health and Safety Code Sections 7, Division 10.8, 8, 9, and 10. CATEGORIES OF DEFENDANTS AFFECTED Proposition 36 applies to three main categories of defendants: those convicted of nonviolent drug possession offenses on or after July 1, 2001, probationers, and parolees. This act applies to anyone who is on probation for a nonviolent drug possession offense and who violates that probation by getting arrested for a nonviolent drug possession offense, or by violating a drug-related condition of probation on or after July 1, 2001. Prop 36 also applies to parolees who violate parole similar to probationers as indicated above, regardless of the underlying offense for which the defendant is on parole. ELIGIBILITY: NONVIOLENT DRUG POSSESSION OFFENSES Prop 36 provides that any defendant convicted of a nonviolent drug possession offense shall receive probation. (PC1210.1(a)) Although Prop 36 does not list all possible crimes that come within its scope, it defines the scope of the crimes that would make a particular defendant eligible, by reference to the conduct that will make a defendant eligible and by reference to California’s five controlled substances schedules. A nonviolent drug possession offense is defined in the Act as the unlawful possession, use or transportation for personal use of any controlled substance identified in Health and Safety Code 11054, 11055, 11056, 11057, and 11058, or the offense of being under the influence of a controlled substance in violation of HS 11550. A nonviolent drug possession offense is the possession, or use, or transportation for personal use of any controlled substance, or being under the influence of a controlled substance in violation of HS11550.

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EXCLUSIONS Proposition 36 contains six explicit categories of exclusions, and one implicit category recognized by case law. If one or more of these apply, the defendant is ineligible for Prop 36 probation. Certain Serious or Violent Felons If a defendant has been previously convicted of a serious or violent felony, he/she is ineligible if the answer to any of the following is “no.”

1. Did defendant remain free from prison custody during the five-year period immediately preceding the date of the commission of the current nonviolent drug possession offense? (Note: The five-year period must be continuous, not accumulated.)

2. Did the current nonviolent drug possession offense occur more than five years after

defendant committed a felony (resulting in a conviction) other than a nonviolent drug possession offense? (Note: A juvenile adjudication is not a criminal conviction.)

3. Did the current nonviolent drug possession offense occur more than five years after

defendant committed a misdemeanor (resulting in a conviction) involving physical injury or the threat of physical injury to another person? (PC1210.1(b)(1))

(Note: Serious and violent felonies are listed in PC1192.7(c) and PC667.5(c).) No Firearm Use Prop 36 does not define “using a firearm,” and does not require a conviction of “using a firearm” for the exclusion to apply. This exclusion is a legal determination to be made by a judge, and not a jury. (PC1210.1(b)(3)) Refusals This exclusion will apply if the defendant has refused drug treatment as part of probation. (PC1210.1(b)(4)) Misdemeanors Unrelated to Drugs The defendant has been convicted in the same proceeding of a misdemeanor unrelated to the use of drugs. (PC1210.1(b)(2)) No Other Felonies The defendant has been convicted in the same proceeding of any felony (such as burglary or petty theft with a prior) other than a nonviolent drug possession offense. (PC1210.1(b)(2))

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Unamenable Third Timers The defendant has two separate convictions for nonviolent drug possession offenses AND has participated in two separate courses of drug treatment under Prop 36 AND is found by the court to be unamenable to any forms of available drug treatment. (PC1210.1(b)(5)) Unable to Participate In Treatment Program A Prop 36 probationer must participate in and successfully complete an appropriate drug treatment program. (PC1210.1(a)) Certain holds, such as INS or Parole Holds, may cause the defendant to be unable to participate and complete treatment. These holds do not automatically exclude the defendant and the Court must make the determination on a case-by-case basis. MANDATORY CONDITIONS OF PROP 36 PROBATION The mandatory conditions under a Prop 36 grant of probation are:

1. Grant of probationary term. 2. Payment of all fines and fees as appropriate (such as restitution fine

(PC1202.4(b)), lab fee (HS11372.5), drug program fee (HS11372.7). 3. Enrollment, participation, and successful completion of a licensed or

certified drug treatment program. (PC1210.1(a)) The program is limited to 12 months with the option to require up to six months of aftercare services. (PC1210.1(c)(3)) (Note: This does not limit the term of probation, it only limits the length of the treatment program and aftercare.)

4. Register as a drug offender as required under HS 11590.

DISCRETIONARY CONDITIONS OF PROBATION (Partial list)

1. Drug testing. 2. Vocational training, family counseling, community service, literacy training. 3. Fourth amendment waiver. 4. Public service work. 5. Waiver of confidentiality with respect to participation and progress in

licensed or certified drug treatment program. 6. Stay away from known buyers, users, or sellers of controlled substances and

from places where buyers, users, or sellers congregate. 7. Obey all laws.

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REVIEW HEARING At the time of sentencing, the court will set a review hearing (varies-approximately 30 days) to determine if the defendant is in compliance with the terms and conditions of probation. The defendant is referred to a treatment provider, and ordered to report within seven days of the date of sentencing. The treatment provider must then prepare and return a treatment plan within 30 days. (PC1210.1(c)) SENTENCING AFTER REVOCATION OF PROBATION Upon revocation of probation for a Prop 36 probationer, the Court will have its normal sentencing power to commit the defendant to jail or to state prison, and the power to place the defendant on a grant of probation other than Prop 36 probation. (PC1210.1(e)(3)(C) and (F); PC1210.1(e)(1)). DRUG TREATMENT The defendant must participate in and complete an appropriate drug treatment program. (PC1210 .1(a)) A state certified or licensed Drug Treatment program may include one or more of the following:

1. Outpatient treatment. 2. Halfway house treatment. 3. Narcotic replacement treatment. 4. Drug education or addiction prevention courses. 5. Limited inpatient or residential treatment as needed to address special

detoxification or relapse situations or severe dependence. (PC1210(b)) 6. Drug testing.

The Drug Treatment program may not include drug treatment programs offered in a jail or prison. (PC1210(b)) The maximum length of any drug treatment program is 12 months with six months of aftercare. (PC1210.1(c)(3)) PROBATION VIOLATIONS Revocation of probation for drug-related violations of probation under certain conditions apply to Prop 36 defendants. The revocation process may be triggered when a defendant violates probation by:

1. The commission of a nonviolent drug possession offense.

2. Violating a drug-related condition of probation (including specific drug treatment regimen, employment, vocational training, educational programs, psychological counseling, and family counseling).

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Violations must be proven by a preponderance of the evidence. (PC1210.1(e)(3)) For the successive violations, the state must prove:

1. First violation: Defendant poses a danger to the safety of others. (PC1210.1(e)(3)(A)(D))

2. Second violation: Defendant poses a danger to the safety of others, or, that

defendant is unamenable to treatment. (PC1210.1(e)(3)(B)(E))

3. Third violation: Two prior violations (not revocations) must be shown, and the state must prove only that defendant violated a drug-related condition of probation or has committed a nonviolent drug possession offense.

If the State proves a first or second violation and meets the standard set forth above, the Court shall revoke Prop 36 probation and use all sentencing options. If the State only proves the probation violation (and not that defendant is a danger to the safety of others or unamenable to treatment), the Court may modify probation by intensifying or altering the drug treatment plan. (PC1210.1(e)(3)(A)) If a third violation is proven, the court MUST revoke Prop 36 probation. The full range of sentencing options then becomes available, including continued probation under PC 1203 or incarceration. (PC1210.1(e)(3)(C)&(F)) The Court does NOT retain discretion to revoke probation if the prosecution does not prove that the defendant is a danger to the safety of others (1st or 2nd revocation hearing) or that the defendant is unamenable to treatment (2nd revocation hearing). INCARCERATION A Court may not impose incarceration as an additional condition of probation. (PC1210.1(a)) Incarceration prohibition only operates post-conviction. However, a Court can impose incarceration:

1. Any time prior to conviction.

2. When Prop 36 probation is revoked.

3. When a defendant commits a new Prop 36 offense, and it is determined that the defendant had two separate courses of Prop 36 drug treatment but is unamenable to treatment. (Defendant shall be sentenced to 30 days in jail.)

4. Pending a formal revocation hearing, provided defendant is a flight risk or a danger to the public.

DISMISSAL At any time after completion of drug treatment, a defendant may petition the sentencing court for dismissal of the charges. (PC1210.1(d)(1)) No action will be taken unless the defendant

CR (Rev. 2013) 800 - 44

initiates it. The “dismissal” or expungement aspect of Prop 36 is modeled after PC 1203.4, but should be treated as a similar, but separate procedure. When a defendant petitions for dismissal under this section, the court should set a hearing to determine if the defendant successfully completed treatment. Successful completion of drug treatment means that:

1. The defendant has substantially complied with the conditions of probation (PC1210(c)), and

2. The defendant has completed a prescribed course of drug treatment, and

3. As a result of that treatment, there is reasonable cause to believe that the defendant will not abuse controlled substances in the future. (PC1210(d))

The Court shall dismiss the indictment or information against the defendant if the Court determines the defendant successfully completed treatment. (PC1210.1(d)(1)) The arrest is deemed “to never have occurred.” The defendant is released from all penalties and disabilities resulting from the offense of which he/she has been convicted. With certain exceptions, the defendant may indicate in response to any question concerning his/her prior criminal record that he/she was never arrested or convicted of the offense. (PC1210.1(d)(3)) With certain exceptions (noted below), the record of arrest and conviction cannot be used in any way that could result in the denial of any employment, benefit, license, or certificate. Exceptions to reporting the arrest or conviction of the Prop 36 charge:

1. May be recorded by the Department of Justice. 2. Must be disclosed in response to any peace officer application request or

any “law enforcement inquiry.” 3. Must be disclosed in response to any direct question contained in any

questionnaire or application for public office, peace officer (as defined in PC 830), for licensure by any state or local agency, for purposes of contracting with the California State Lottery, or for purposes of serving on a jury. (PC1210.1(d)(3))

4. The defendant may not own or possess any concealable firearm. A

defendant who owns or possesses such a firearm may still be convicted of PC 12021. (PC1210.1(d)(2))

POLICY AGAINST SEALING RECORD Prop 36 confers no right on the defendant to have the court record sealed. Public policy strongly favors open records. The record—or any aspect of it—may only be sealed upon noticed motion and upon express findings made in accordance with CRC 243.1.

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Chapter 823

PREGNANT AND PARENTING WOMEN’S ALTERNATIVE SENTENCING ACT

PC 1174 et seq. OVERVIEW Pregnant and/or parenting female defendants (with at least one child under the age of six years) who have no prison priors, have not been presently convicted of any of the offenses listed in PC1174.4(a)(2), have a history of substance abuse, and are committed to the California Department of Corrections (CDC) for a term of 36 months or less may be eligible for placement in a California Department of Corrections’ Family Foundations Program (FFP) facility pursuant to PC 1174.4(d). LOCATIONS The CDC has opened FFP facilities in Los Angeles and San Diego counties, with other to follow in Fresno, the Bay Area, and the Inland Empire. Each facility can house 35-40 women and 35-40 children. Facility addresses are: Family Foundations Program, Los Angeles (FFP-LA) 11121 Bloomfield Avenue Santa Fe Springs, CA 90670 (562) 946-7675 Family Foundations Program, San Diego (FFP-SD) 3050 Armstrong Street San Diego, CA 92111 (858) 874-6599 Mark Coen, Correctional Counselor (858) 467-6710 PROCEDURE Minute Order Complete all sections of the minutes to reflect the events and rulings of the hearing, including the denial of probation, the commitment to the Department of Corrections (including the codes, terms and relationships for all counts), fines, credit for time served, and remand to custody. Additionally, include:

The Court recommends placement in FFP per PC 1174.4(d). Abstract of Judgment Complete the appropriate abstract of judgment in the usual manner with the following exceptions:

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1. In the “Other Orders” section, in addition to any other court orders, write the recommendation for placement as written in the minutes:

The Court recommends placement in FFP per PC 1174.4(d). 2. In the “Remand” section, x the “Other” box and type as follows:

x other (specify) Family Foundations Program (San Diego or Los Angeles) Note: (Verify that the jail personnel will call the FFP Correctional Counselor to arrange transportation.)

Notification of Commitment to CDC Pursuant to PC 1174.4(d), the court must notify the CDC of the recommendation for placement in the Family Foundation Program within 48 hours of the sentencing.

Fax a copy of the abstract and the sentencing minute order to theOffice of Community Resources, Women and Children’s’ Services Unit (WCSU) in Sacramento at (916) 327-8645 within 48 hours of sentencing.

QUESTIONS Questions may be directed to WCSU P.O. Box 942883 Sacramento, CA 94283-0001 Phone (916) 327-7944 Fax (916) 327-8645

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Chapter 824

REGISTRATION TYPES AND AUTHORITIES

ARSON SECTIONS INCLUDED REGISTRATION PC 457.1 (required)

PC 451, 451.5, 453, 455

DRUG CASES SECTIONS INCLUDED REGISTRATION HS 11590 (required)

HS 11350, 11351, 11351.5, 11352, 11353, 11353.5, 11353.7, 11354, 11355, 11357, 11358, 11359, 11360, 11361, 11363, 11366, 11366.5, 11366.6, 11368, 11377(a)*, 11378*, 11378.5, 11379*, 11379.5, 11379.6, 11380*, 11380.5, 11383, 11550 *refer to Penal Code for more information

GANG SECTIONS INCLUDED REGISTRATION PC 186.30 (required)

Any person described in subdivision (b) must register.

INFORMING OF DUTY TO REGISTER PC 186.31 (required)

At the time of sentencing, the Court must inform any person subject to PC 186.30 of his or her duty to register pursuant to that section. This advisement must be noted in the court minute order. The court clerk must send a copy of the minute order to the law enforcement agency with jurisdiction for the last known address of the person subject to registration.

SEX CASES SECTIONS INCLUDED REGISTRATION PC 290 (required)

PC 207, 209*, 220, 243.4, 261*, 262, 262(a)(1)*, 264.1, 266, 266c, 266h(b), 266i(b), 266j, 267, 269, 272, 285, 286*, 288, 288a*, 288.2, 288.5, 289, 311.2(b), 311.2(c), 311.2(d), 311.3, 311.4, 311.10, 311.11, 647.6, 653f(c), 314(1), 314(2) *refer to Penal Code for more information

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Chapter 825

SEX OFFENDER PC 290

Any person convicted of any of the enumerated sections listed in Penal Code 290 who is released on probation or discharged on payment of a fine shall, prior to such release or discharge, be informed by the Court in which he/she has been convicted, of his/her duty to register with the chief of police or sheriff of the city or county in which he/she resides. The Court shall require the person to read and sign the form required by the Department of Justice, stating the section has been explained to them. NOTE: The Court informs the defendant that he/she must register. The form is a “Notice of Registration Requirement,” not the registration itself. SUGGESTED PROCEDURE Forms can be obtained from the Department of Justice. (Form Number SS8401)

1. Complete the upper portion of the multi-part form (Personal History Information, Conviction Information, Release Information).

2. Have defendant read and sign the Notification Statement portion of the

form. 3. Complete the section “Statement of Notifying Officer.” Give the defendant

the white copy of the form. 4. Make docket entry that defendant was given copy of the form. “Defendant

notified to register, pursuant to Penal Code Section 290.” 5. Distribute Registration form according to the distribution on the form.

** Note: Follow local procedure. Some courts using onsite law enforcement agencies to roll the defendant’s fingerprints leave this section for completion by the officer taking the fingerprints. Additionally, some arresting agencies want the forms routed through them rather than sent directly to the Department of Justice. ADDITIONAL INFORMATION

1. When an appeal is filed, it stays the registration procedure. Hold the registration form with case file until the appeal is completed.

2. Registration, pursuant to this section, ends after a motion pursuant to Penal

Code 1203.4 (dismissal) is granted. (PC 290, 1203.4)

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Chapter 826

SEXUALLY VIOLENT PREDATORS WI 6600, et seq.

OVERVIEW Welfare and Institutions Code 6600 et seq. addresses the review of a petition filed by the Department of Corrections to determine whether there is probable cause to believe the defendant is likely to engage in sexually violent predatory criminal behavior upon his or her release from state prison. This code should be reviewed for the strict guidelines and time frames for actions commenced under this provision. PETITIONS FOR COMMITMENT First Petition When the California Department of Corrections (CDC) determines that a defendant convicted of certain crimes may be a sexually violent predator, the department refers the defendant to the California Department of Mental Health (DMH) for an evaluation prior to the defendant’s discharge or release on parole. If the DMH determines that the defendant is a sexually violent predator (SVP) and the district attorney concurs, the district attorney files a petition to commit the defendant to DMH for two years as a sexually violent predator pursuant to WI 6604, with an Order to Produce. Second or Subsequent Petition The defendant was committed to DMH for two years as a sexually violent predator. Prior to the defendant’s discharge or release on outpatient status, the DMH determines that the defendant is still a danger to others and is likely to reoffend if released. If the district attorney concurs, the district attorney files a petition to commit the defendant again for two years as a sexually violent predator pursuant to WI 6604, with an Order to Produce. Note: Welfare and Institutions Code 6600, et seq., requires that the court process SVP cases separately from the original case file, and that each new petition be assigned a new and distinct case number. PROCEDURE Upon Receipt of Either a First or Subsequent Petition and an Order to Produce

1. The clerk will set a WI 6602 Probable Cause Hearing (Note: The hearing must be held before the parole hold, temporary parole hold, or commitment expires. The release date is on the cover letter of the doctor’s reports section of the petition. At calendar prep, the release date should be prominently reflected on the calendar and/or minutes.)

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2. The clerk will process the Order to Produce (submitted by the district attorney with the petition) for the hearing date.

3. Reimbursable Costs: These are reimbursable cases. The clerk should

indicate this according to the court’s standard practice. Eventually, the state is billed for the court’s costs.

WI 6602 Probable Cause Hearing Purpose: To determine if there is probable cause to believe that the defendant is likely to engage in sexually violent predatory criminal behavior upon his/her release. If the defendant submits on the petition, usually the judge will make the finding of probable cause. If the defendant opposes the petition, the WI 6602 Probable Cause Hearing will be heard. The defendant must be present with counsel. The judge presiding in the criminal department will, depending upon the defendant’s action, proceed as follows: If the defendant does not oppose the petition (submits on the petition), the judge will review the petition, find that the defendant is a danger, commit the defendant to DMH, and order the district attorney to prepare the formal commitment order. The judge will order the defendant to be committed to California Department of Mental Health for two years for appropriate treatment and confinement in a secure facility designated by the Director of Mental Heath, pursuant to WI 6604. The clerk will prepare form CR-152, Order for Commitment of a Person Found to Be a Sexually Violent Predator (Transportation Order), and distribute it as indicated at the bottom of the form. The district attorney will prepare a formal commitment order, submit it for signature, and mail a certified copy to the DMH. If the defendant opposes the petition, the judge will assign the WI 6602 Probable Cause Hearing to an open department (usually a trial department) forthwith, or may continue the matter to a future date. On the future date, the matter will be assigned to an open department. WI 6602 Probable Cause Hearing The defendant must be present with counsel. The psychiatrist and/or psychologist designated by the director of mental health who evaluated the defendant and concurred in the diagnosis of a mental disorder likely to lead to acts of sexual violence if released, may be subpoenaed by the defense or prosecution and examined at the hearing. Probable Cause Rulings Ruling of No Probable Cause If the judge determines that there is not probable cause to believe that the defendant is a sexually violent predator, the judge will dismiss the petition. The defendant will be returned to the CDC to be discharged upon completion of the current commit or released on parole, if eligible. If

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released on parole, the judge must direct the defendant to report to the local office of CDC’s Parole and Community Service Division within 72 hours of release. If the defendant is returned to the CDC or DMH, the clerk must prepare either the Order for Return of Defendant to the California Department of Corrections to Resume Serving Commitment (Transportation Order), or, the Order for Return of Defendant to the Department of Mental Health to Resume Serving Commitment (Transportation Order), to return him/her to the facility in which he/she was previously confined. If the defendant is released directly on parole, the clerk must call the local office of CDC’s Parole and Community Service Division to inform them of the release. Ruling of Probable Cause If the judge determines that there is probable cause to believe that the defendant is a sexually violent predator, the judge will set the petition for trial (usually within 30 days) and order the defendant to remain in local custody without bail until the trial on the petition is completed. Some courts also set the matter for a readiness conference prior to the trial date. Additionally, the judge will appoint a medical expert, if requested by an indigent defendant. Trial on Petition Re WI 6604 The Trial on Petition re: WI 6604 proceeds in the same manner as any other trial with the following exceptions:

1. The verdict/decision is a finding that the defendant is or is not a sexually violent predator.

2. At the conclusion of the trial, the district attorney will be ordered to prepare the formal commitment order and submit it to the judge for signature.

PROCEDURE UPON FINDING AT CONCLUSION OF TRIAL If the defendant is found to be a sexually violent predator, the clerk will prepare an Order for Commitment of a Person Found to be a Sexually Violent Predator (Transportation Order). This document is necessary to get the defendant delivered to DMH. When the commitment order is submitted by the district attorney and signed by the judge, the clerk will file stamp the original and certify the copies. The clerk will place the original order in the case file and send all certified copies to the district attorney. The district attorney will mail a certified copy of the signed order. If the defendant is found not to be a sexually violent predator, the clerk will proceed as follows: If the defendant’s original CDC prison commitment is completed and he/she is to be released directly on parole, the clerk must so state in the minutes. After the hearing, the clerk must call the parole office to notify them of the defendant’s name, case number, charges, and court’s order releasing him/her on parole.

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If the defendant has not completed his/her current CDC prison commitment, the clerk must prepare the Order for Return of Defendant to the California Department of Corrections to Resume Serving Commitment (Transportation Order), to return him/her to the prison facility from which he/she came. If the trial was on a subsequent petition and the defendant has not completed his/her current DMH commitment as a sexually violent predator, the clerk must prepare the Order for Return of Defendant to the California Department of Mental Health to Resume Serving Commitment (Transportation Order), to return him/her to the mental health facility from which he/she came. DMH Treatment Facility All defendants committed to DMH as sexually violent predators will be housed at the Atascadero State Hospital. (WI 6600.05) Annual Evaluation of Defendant’s Mental Condition and Advisal of Defendant’s Right to Petition for Conditional Release DMH must examine and evaluate the defendant’s mental condition at least once a year and prepare an annual written report of it. Additionally, DMH must provide the defendant with an annual written notice of his/her right to petition the court for conditional release pursuant to WI 6608. The director must forward the notification form, along with a cover letter, to the court with the annual report. POST-COMMITMENT HEARINGS After the defendant has served one year of confinement as a sexually violent predator, a subsequent hearing must be calendared for any one of the following reasons:

1. After annual review of the defendant’s mental condition, DMH has reason to believe that the defendant does not now meet the criteria of a sexually violent predator and seeks judicial review of the commitment pursuant to WI 7250.

2. After notice of his/her right to file a petition for conditional release, the defendant does not file a petition but does not affirmatively waive the right to do so. (The defendant does not mark the appropriate options or does not sign the waiver form.)

3. The defendant files a petition for unconditional release.

4. DMH recommends, or the defendant files a petition for conditional release into the community under the supervision and treatment of the local County’s Conditional Release Program (CONREP) for a minimum of one year.

5. After the defendant serves one year in CONREP, a subsequent hearing must be set to determine if the defendant should be unconditionally released from commitment on the basis that he/she is no longer a danger to the health and safety of others and is not likely to engage in sexually violent criminal behavior.

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The Different Post-Commitment Hearings Defendant Does Not Waive Right to File a Petition For Conditional Release: If the defendant did not file a petition for conditional release nor affirmatively waive the right to do so, and the court finds that facts exist to warrant a hearing, the matter is set for a trial on the petition, and usually the court sets a readiness conference in normal course. (The defendant’s failure to waive the right to file a petition for conditional release entitles the defendant to a trial, and subjects him/her to a new two-year commitment if again found to be an SVP.)

1. The trial is conducted the same as the initial commitment trial. 2. If the defendant is found not to be a sexually violent predator, he/she will be

unconditionally released. 3. If the defendant is found to be a sexually violent predator, he/she will commence

serving a new two-year commitment. The district attorney will be ordered to prepare the formal commitment order. The clerk will prepare the Order for Return of Defendant to the California Department of Mental Health to Commence Serving Commitment (Transportation Order), to return the defendant to the DMH to commence serving the new commit.

4. When the commitment order is submitted by the district attorney and signed by the

judge, the clerk will file stamp the original and certify the copies. The clerk will place the original order in the case file and send all certified copies to the district attorney. The district attorney will mail a certified copy of the signed order directly to DMH.

DMH Recommends, or Defendant Files a Petition for, Conditional Release If the court finds that the recommendation or petition for conditional release contains facts that warrant a hearing, a WI 6605/6608 Petition Hearing will be set within 20 court days in the designated criminal department. The clerk will notify the district attorney, the defense attorney, and CONREP at least 15 days prior to the hearing. CONREP will prepare and submit a written recommendation to the Court prior to the hearing stating which release program, if any, is most appropriate for supervising and treating the defendant. At the hearing, the Court will review CONREP’s recommendation and make one of the following rulings:

1. Find that the defendant will be a danger while under supervision and treatment in the community, and deny the petition. The defendant will be returned to complete the remaining one year of the SVP commitment. The clerk will prepare the Order for Return to Hospital to Resume Serving Commitment After Hearing/Trial, to return the defendant to the DMH to resume serving his/her SVP commitment.

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2. Find that the defendant will not be a danger while under supervision and treatment in the community and grant the petition. The defendant will be placed in CONREP for one year. The clerk will give a copy of the minute order to the CONREP representative, if present, or send it to CONREP.

Note: A CONREP representative will usually attend the hearings and offer assistance, if needed.

Defendant Files a Petition for Unconditional Release The defendant’s petition may be filed after one year of the two-year SVP commitment, or prior to the completion of the one-year conditional release to CONREP. If the Court finds that the petition for unconditional release contains facts that warrant a hearing, the matter will be set for a readiness conference and a Trial on Petition, in normal course. At the conclusion of the trial, the Court will make one of the following rulings:

1. Find that the defendant will be a danger to the community if discharged, deny the petition, and order the defendant to be returned to complete the two-year SVP commitment or one-year conditional release to CONREP.

If the defendant is ordered returned to DMH, the clerk will prepare the Order for Return to Hospital to Resume Serving Commitment After Hearing/Trial.

2. Find that the defendant will not be a danger to the community if discharged, grant the petition, and order the defendant to be unconditionally released. (In this instance, the clerk must send a faxed copy of the minute order to the DMH facility where the defendant was confined or a copy of the minutes to CONREP, as notification of the court’s order.)

Mandatory Hearing After One Year in CONREP The court must hold a hearing as to the defendant’s unconditional release at the conclusion of the defendant’s one-year conditional release to CONREP. Prior to the hearing, CONREP will submit a written recommendation to the Court regarding the defendant’s unconditional release. The Court will review CONREP’s recommendation and make one of the following rulings:

1. Find that the defendant will pose a danger to others and will engage in sexually violent criminal behavior if not under the supervision of CONREP, and order the defendant’s placement in CONREP extended for another year.

2. Find that the defendant no longer poses a danger to others and will not engage in sexually violent criminal behavior, and order the defendant unconditionally released. (In this instance, the clerk must fax a copy of the minute order to the DMH facility where the defendant was confined or send a copy of the minutes to CONREP, as notification of the court’s order.)

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Chapter 827

VEHICLE IMPOUNDMENT VC 23594

OVERVIEW As a condition of probation or a sentence, a vehicle registered to the defendant may be ordered impounded. Usually an order to have the vehicle impounded is associated with an offense for driving under the influence or driving on a suspended license. Occasionally, a vehicle may be impounded when it has been used in the commission of a crime. The vehicle will be impounded at the defendant’s expense. PROCEDURE As part of the sentencing, the judge will order the vehicle impounded for a specific number of days, setting a review hearing approximately two weeks after the expiration of the time the vehicle is to be impounded. (If the Court orders the vehicle impounded for 30 days, the review hearing would be set approximately 45 days after the date of sentencing.) It is the responsibility of the defendant to:

1. Arrange for the impoundment of the vehicle at a licensed facility.

2. Pay all fees associated with the impoundment.

3. Return to court with proof the vehicle has been impounded.

Failure by the defendant to return to court with proof that the vehicle was impounded can be considered as a violation of probation. FORMS The clerk should provide the Information Sheet on Court Ordered Vehicle Impoundments and the Court Ordered Vehicle Impoundment Release Receipt, which follow.

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________ Superior Court Court’s Address Court’s Telephone Number

Court Ordered Vehicle Impoundment Instructions

You have been ordered to have your vehicle impounded at your expense for the length of time indicated on your sentencing sheet. You must arrange for the impoundment of the vehicle, pay all of the associated costs, and return to court with proof that your vehicle was impounded. You may take your vehicle to any agency or business licensed to impound vehicles. These agencies would include tow yards and automotive repair shops. If you need assistance locating a licensed agency, you may contact your local law enforcement or police department. The court cannot specify an agency. It is your responsibility to:

1. Select an appropriate agency, 2. Arrange to have your vehicle delivered to the agency (or towed if you do not

have someone that may drive the vehicle to the agency), 3. Pay all associated fees, 4. Obtain proof on the Court Ordered Vehicle Impoundment Release Receipt

that your vehicle was impounded for the days specified by the Court , and 5. Provide the proof to the court. You must bring the proof to your review

hearing, or if no review hearing was set, you must file the proof with the court on or before the date provided by the clerk.

Failure to provide proof your vehicle was impounded for the time ordered by the Court, or failure to impound your vehicle at an agency licensed to impound vehicles, will be a violation of your probation or terms of your sentence and may result in the revocation of probation and/or the issuance of a warrant for your arrest. Please contact your attorney or a clerk of this court if you have any questions. Attachment: Court Ordered Vehicle Impoundment Release Receipt

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_______ Superior Court, __________ Division Court’s Address and Telephone Number

Court Ordered Vehicle Impoundment Release Receipt Impounding Agency Information Agency Name Agency Address Street Address: City: State: Zip Code: Telephone Number ( ) Fax Number: ( ) Bureau of Automotive Repair Number of Business License Number Defendant’s Information Name Address Street Address: City: State: Zip Code: Telephone Number Home: ( ) Work: ( ) Court Case Number Vehicle Description Type of Vehicle Year Make Model License Number Vehicle Identification Number (VIN)

Date Vehicle Impounded (Turned in by Defendant) Date Vehicle Redeemed by Defendant Vehicle Sold Date Vehicle sold to Impound Agency (Note: Attach copy of proof of sale/transfer of title)

Fees Paid Storage at $__________ per day: $ Tax $ Vehicle Release Fee $ Lien Fees $ Other Fees: (Explain) $ Total Fees Paid $ I declare under penalty of perjury the above information regarding the impounding agency, dates the vehicle was impounded, and the amount of fees collected is true and correct. I further certify that the impounding agency is either registered with the Bureau of Automotive Repair or is an agency licensed to impound vehicles. Dated: __________________ Signed:______________________________ (Impounding Agency Representative) Note: It is the responsibility of the defendant to provide proof of the impoundment of the vehicle as ordered by the Court on or before the date set by the Court.

Chapter 828

PROPOSITION 47 – 2014

SAFE NEIGHBORHOOD AND SCHOOLS ACT

OVERVIEW

Passed by the voters at the November 4, 2014 general election, this Proposition reduces several

felonies to misdemeanors and creates new misdemeanors as listed below:

PC 459a (new), makes it a misdemeanor to shoplift where the value of the property does

not exceed $950.

PC 473(b), makes it a misdemeanor to forge a check where the value does not exceed $950.

PC 476a(b), makes it a misdemeanor to write bad checks (insufficient funds) where the

value does not exceed $950.

PC 490.2 (new), makes it a misdemeanor to obtain personal property by theft where the

value does not exceed $950.

PC 496, makes it a misdemeanor to receive stolen property where the value does not

exceed $950.

HS 11350(a), makes it a misdemeanor to possess narcotics/controlled substances.

HS 11357(a), makes it a misdemeanor to possess concentrated cannabis.

HS 11377(a), makes it a misdemeanor to possess a schedule III, IV, or V controlled

substance.

It also added PC 1170.18 to allow the retroactive application of these sentence changes.

Exceptions for Certain Sex Offenders & Murderers

The crimes set forth above will instead be punishable pursuant to Penal Code § 1170(h), if the

defendant either:

(1) Has a prior conviction for an offense specified in Penal Code § 667(e)(2)(C)(iv), which is as

follows:

(a) Any of the following acts, listed in Welf. & Inst. Code § 6600(b), when committed by force,

violence, duress, menace, fear of immediate and unlawful bodily injury on the victim or

another person, or by threatening to retaliate in the future against the victim or any other

person:

(i) Penal Code § 261.

(ii) Penal Code § 262.

(iii) Penal Code § 264.1.

(iv) Penal Code § 269.

(v) Penal Code § 286.

(vi) Penal Code § 288.

(vi) Penal Code § 288a.

(vii) Penal Code § 288.5.

(viii) Penal Code § 289.

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(ix) Penal Code § 207, committed with the intent to commit a violation

of Penal Code § 261, 262, 264.1, 286, 288, 288a, or 289.

(x) Penal Code § 209, committed with the intent to commit a violation

of Penal Code § 261, 262, 264.1, 286, 288, 288a, or 289.

(xi) Penal Code § 220, committed with the intent to commit a violation

of Penal Code § 261, 262, 264.1, 286, 288, 288a, or 289.

(b) Oral copulation with a child who is under 14 years of age, and who is more than 10 years

younger than he or she, as defined by Penal Code § 288a.

(c) Sodomy with a child who is under 14 years of age, and who is more than 10 years younger

than he or she, as defined by Penal Code § 286.

(d) Sexual penetration with a child who is under 14 years of age, and who is more than 10

years younger than he or she, as defined by Penal Code § 289.

(e) A lewd or lascivious act involving a child under 14 years of age, in violation of Penal

Code § 288.

(f) Any homicide offense, including any attempted homicide offense, defined in Penal Code

§§ 187 to 191.5, inclusive. [This does NOT include Penal Code § 192 voluntary

manslaughter.]

(g) Solicitation to commit murder, as defined in Penal Code § 653f.

(h) Assault with a machine gun on a peace officer or firefighter, as defined in Penal Code §

245(d)(3).

(i) Possession of a weapon of mass destruction, as defined in Penal Code § 11418(a)(1).

(j) Any serious and/or violent felony offense punishable in California by life imprisonment

or death.

(2) Has a prior conviction for an offense requiring registration under Penal Code § 290(c).

[NOTE: this does not appear to include juvenile adjudications.]

(3) For purposes of Penal Code § 666 only, has a prior conviction for Penal Code § 368(d) or (e)

elder abuse offense.

The sentencing Judge

The judge who imposed the sentencing is to preside over the re-sentencing, unless the defendant

enters an Arbuckle waiver or if the sentencing judge is unavailable. If the sentencing judge is

unavailable, the presiding judge is to assign another judge to the matter.

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Notice to Victim

If the defendant will be resentenced, the victim must be noticed of the hearing pursuant to Marcy’s

Law.

PROCEDURE

A person currently serving a sentence for a felony who would have been guilty of a misdemeanor

if this act had been in effect at the time of the offense may petition the court to redesignate a charge

to a misdemeanor, or to redesignate the charge to a misdemeanor and resentence.

Follow your court’s individual process for calendaring and updating your case management

system. If the court determines the petitioner satisfies the criteria, the felony sentence shall be

recalled and the petitioner resentenced to a misdemeanor, unless the court determines that

resentencing would pose an unreasonable risk of danger to public safety.

If the defendant is in State Prison and is eligible for immediate release due to the reduction and

resentencing, fax a minute order that states the defendant has been resentenced pursuant to Prop.47

or PC1170.18(a). The prison will have five days to process the paperwork before releasing the

inmate. Defendants released from prison may be ordered to complete 1 year of parole supervision.

If the resentencing only modifies part of a State Prison sentence, an amended abstract must be

completed and sent to the prison and/or CDCR.

Defendants will have up to three years from the effective date of this act to petition the court under

this section, or a later date may be granted upon a showing of good cause.

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CRM 900 - 1

Chapter 901

DEATH PENALTY

DEATH OR LIFE WITHOUT THE POSSIBILITY OF PAROLE (PC 190.2(a)(1) et seq.) Definition: Death or Life Without the Possibility of Parole (LWOP) can only be imposed for first degree murder if one or more of the following special circumstances are found to be true:

1. Intentional murder carried out for financial gain.

2. Defendant has previous conviction of first or second degree murder.

3. The defendant has been convicted of more than one offense of first or second degree murder at this proceeding.

4. The murder was committed by means of a destructive device, bomb, or explosive and defendant knew that it would create a great risk of death to one or more human beings.

5. The murder was committed to avoid lawful arrest, or perfecting or attempting to perfect escape from lawful custody.

6. The murder was committed by means of a destructive devise, bomb or explosive that the defendant mailed or delivered knowing that it would create a great risk of death to one or more human beings.

7. Intentional murder of a peace officer while engaged in or in retaliation for performance of his/her official duties.

8. Intentional murder of a federal law enforcement officer or agent while engaged in or in retaliation for the performance of his/her duties.

9. Intentional murder of a firefighter while engaged in the performance of his/her duties.

10. Intentional murder of a victim to prevent or in retaliation for his/her testimony in any criminal or juvenile proceeding.

11. Intentional murder of a prosecutor or assistant prosecutor carried out to prevent or in retaliation for the performance of his/her official duties.

12. Intentional murder of a judge or former judge (local, state, or federal, in this or any other state) carried out to prevent or in retaliation for the performance of his/her official duties.

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13. Intentional murder of a current or former elected or appointed government official (local, state, or federal, of this or any other state) carried out to prevent or in retaliation for the performance of his/her duties.

14. Murder committed was especially heinous, atrocious, or cruel, manifesting exceptional depravity.

15. Intentional murder while lying in wait.

16. Intentional murder committed because of a person's race, color, religion, nationality, or country of origin.

17. Murder committed while defendant engaged in the commission of one of the following felony crimes:

a. Robbery (PC211)

b. Kidnapping (PC207, 209, 209.5)

c. Rape (PC261)

d. Sodomy (PC286)

e. Sexual abuse of a child under 15 years of age (PC288)

f. Oral Copulation (PC288a)

g. First degree burglary (PC450/460)

h. Arson (PC451)

i. Train Wrecking (PC219)

j. Mayhem (PC203)

k. Rape by instrument (PC289)

l. Car jacking (PC215)

18. Intentional murder which involved the infliction of torture.

19. Intentional murder by the administration of poison.

20. Intentional murder of a juror in any court (local, state, or federal, in this or any other state) carried out to prevent or in retaliation for the performance of his/her duties.

The death penalty is prohibited for defendants who were under the age of 18 years at the time of the crime (PC190.5). COURT REPORTER REQUIREMENTS In any case, in which a death sentence may be imposed, all proceedings conducted in the superior court, including all conferences and proceedings, whether in open court, in conference

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in the courtroom, or in chambers, shall be conducted on the record with a court reporter present. The court reporter shall prepare and certify a daily transcript of all proceedings commencing with the preliminary hearing. Proceedings prior to the preliminary hearing shall be reported but need not be transcribed until the court receives notice as prescribed in paragraph (2). (PC190.9)

The Court Reporter is required to prepare the following numbers of copies of the transcripts and disks:

1. Preliminary Level Court:

a. Written transcript - Original plus five copies

b. Computer disks - Six copies

2. Superior Court:

a. Written transcript - Original plus five copies

b. Computer disks - Five copies (record complete)

c. Computer disks - Six copies (record accurate)

3. Each disk shall:

a. Be labeled with the case name, court number, dates of proceedings contained on the disk, and the page and volume numbers of the data contained on the disk.

b. Contain the identical volume divisions, pagination, line numbering, and

text of the certified original paper transcript or any portion thereof. c. Be sequentially numbered within the series of disks.

PRELIMINARY LEVEL CERTIFICATION Upon determination by the prosecution that the death penalty will be sought in a case, the responsible superior court shall notify the presiding judge of the preliminary level court to prepare the court record in the case. (CRC34.2)

1 The court clerk of the preliminary level court shall within five days of receiving notice that the death penalty is being sought in a case, notify the court reporter(s) to prepare the transcript. (CRC34.2(D))

2. The primary court reporter shall deliver an original and five copies of the transcript to the preliminary level court clerk within 20 days after notice. (CRC34.2(e)(3), (f)(1))

3. Upon receipt of the court reporter’s transcript, the preliminary level court clerk shall within five days deliver the original of the transcript to the

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responsible limited jurisdiction judge with copies to counsel of record for review and certification.

4. Within 30 days after delivery of the clerk’s and reporter’s transcript, counsel shall file a request for corrections and/or additional transcripts. (CRC34.2(g)(1)) If counsel fails to file a request for correction, the preliminary level court shall set an Order to Show Cause re: Certification of the Record.

5. The preliminary level court must certify the record as complete within 120 days of receipt of the notice to prepare the court record, unless time is extended by the superior court. (PC190.9(a)(2))

TRIAL PHASES

1. Phase I - Guilt Phase

a. Jury determines the guilt or innocence of the defendant as in any other trial. However, the event name is not just JURY TRIAL. The event name is TRIAL BY JURY IN THE GUILT PHASE OF A CAPITAL CASE or GUILT PHASE, JURY TRIAL OF A CAPITAL CASE. Additionally, the jury must make a finding as to the alleged "Special Circumstances."

b. There will not be a second phase of the trial if:

• The defendant is acquitted (the case will be over), or

• The jury finds that the alleged “special circumstance” is not true (the matter will be set for pronouncement of judgment.)

c. If the defendant is found guilty of the crime and the jury finds that the alleged “special circumstance” is true, the penalty phase of the trial will commence.

2. Phase II - Penalty Phase

a. Heard by the same jury that heard the guilt phase.

b. Event name is TRIAL BY JURY IN THE PENALTY PHASE OF A CAPITAL CASE or PENALTY PHASE, JURY TRIAL OF A CAPITAL CASE.

c. Exhibits may be marked continuously in the same manner used in the guilt phase (most common) or marked in a new sequence that pertains to the penalty phase only.

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Exhibits received from the guilt phase of the trial are still relevant and may be reviewed by the jury again in the penalty phase deliberations.

d. The jury shall impose the sentence of death if the jury concludes that the aggravating circumstances outweigh the mitigating circumstances.

e. If the jury determines that the mitigating circumstances outweigh the aggravating circumstances, the jury shall impose a sentence of confinement in state prison for a term of life without the possibility of parole.

f. The verdict is actually a determination of the penalty that is to be imposed.

• After the verdict, the matter would be set for pronouncement of judgment in normal course.

• It is advised that the Court get a time waiver from the defendant to set the time for pronouncement of judgment beyond the statutory time (six to eight weeks). This will allow sufficient time for the defendant's attorney to prepare and file motions that must be heard prior to the sentencing.

• Sentencing will proceed in normal fashion with statements of victim/victim's family and friends, and imposition of sentence on each count and enhancement.

• If the death penalty is imposed, the prosecutor is ordered to prepare the judgment of death.

• Clerk notifies the Appeals Section of the sentence of death.

SUPERIOR COURT CERTIFICATION The imposition of a judgment of death is an automatic appeal to the California State Supreme Court. (PC1239). When a judgment of death is imposed, the case must be certified prior to being submitted to the Supreme Court. There are two phases of record certification that are required for death judgments. (PC190.8)

1. Phase 1: Certification of Record as Complete

a. Within 30 days of the judgment of death, the clerk shall deliver the entire record to trial counsel. (PC190.8(b); CRC35(c))

b. Within 30 days of receipt of the record, trial counsel shall submit a declaration requesting corrections and/or additions to the record. (CRC35.1(b)(1), (3))

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c. The trial court shall hold a hearing within 15 days of receipt of the declaration(s) from trial counsel requesting corrections and/or additions.

d. Any corrections ordered must be prepared and delivered to the trial court within 10 days of the order.

e. The trial court must certify the record for completeness within 90 days of the judgment of death, unless time was extended. (PC190.8(d); CRC35.1(c)(3), (d)(6), (7))

2. Phase II: Certification of Record as Accurate

a. When notified of the appointment of appellate counsel, the clerk of the trial court shall deliver a copy of the record on appeal to appellate counsel.

b. The trial court may hold a hearing for the purpose of timely certification of the record for accuracy. (PC190.8(g))

c. Appellate counsel must file a request for corrections and/or additions within 90 days of receipt of record on appeal. (CRC34.2(g)(3), 35.2(A)(1), (2))

d. The trial court shall hold a hearing within 15 days of receipt of the declaration(s) from appellate counsel requesting corrections and/or additions. (CRC35.2(b)(1))

e. Any correction and/or addition must be filed with the trial court within 10 days of the order. (CRC39.55(c))

f. The trial court must certify the record for accuracy within 120 days of delivery of the record to appellate counsel. (CRC39.55(c); PC190.8(g))

POST SENTENCING (WITHIN 10 DAYS)

1. Clerk prepares any prison abstract forms required.

2. District attorney submits Judgment of Death (original plus six copies) for signature. If the DA does not supply the copies, the clerk must prepare them.

3. Judge signs all copies of the Judgment of Death.

4. Clerk mails a certified copy of the Judgment of Death and sentencing minutes to the Governor of the State of California, the Clerk of the California Supreme Court, the California Appellate Project, and to the Office of the Attorney General.

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5. Clerk prepares a Clerk's Certificate of Service by Mail.

6. Clerk prepares a "Prison Pack" consisting of the following documents:

a. Certified copy of judgment of death;

b. Certified, sealed or embossed yellow copy of any commit abstract;

c. Certified, sealed or embossed copy of the sentencing minute order;

d. Certified, sealed or embossed copy of the complaining document(s) on which the defendant was convicted (complaint, information, indictment), including any amended version of same;

e. Copy of the probation report;

f. Any other document that the court specifically orders sent:

• Statements in aggravation/mitigation

• Medical reports

g. Copy of the sentencing transcript.

7. Prison pack plus the Sheriff’s certified copy of the judgment of death is forwarded to the judgment processing section of the court.

a. Defendant must be delivered to the appropriate facility within 10 days of pronouncement of judgment;

b. Male defendants are sent directly to California State Prison, San

Quentin; c. Female defendants are sent directly to Central California Women’s

Facility, Chowchilla.

REIMPOSITION OF SENTENCE - DEATH WARRANT (PC1193, PC1227; CRC4.315)

1. After affirmation of a death penalty sentence, the Court is required to set a date for the execution of the sentence. The date must be set at a public session of the court and allow at least 10 days for mailing of notices.

2. After date is set, the clerk shall mail notice of the date, time, and department of the hearing by first-class mail, postage prepaid.

a. The clerk must prepare and file a Clerk’s Certificate of Service by mail.

b. No proceeding can be held to set the date of execution unless the record contains the clerk’s certificate showing timely mailing.

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c. Notice is mailed to:

• Attorney General • District Attorney • Defendant at the prison address • Defendant’s attorney (See CRC4.315) • Executive Director, California Appellate Project

3. The District attorney informs the court of a suggested execution date

received from the prison facility where the defendant is housed (San Quentin for men, Chowchilla for women).

4. At the hearing the Court:

a. Reimposes the sentence of death upon the defendant.

b. Makes and causes to be entered, an order pronouncing sentence against the defendant.

c. Minutes will reflect:

• A receipt of the remittitur affirming the judgment of death

• The date of execution

• Order for the district attorney to prepare the Death Warrant

5. After the hearing:

a. Death Warrant is signed by the judge (original + five copies).

• The Death Warrant states the conviction.

• Sets the date for execution (not less than 60 nor more than 90 Days from the date of the order.)

b. Distribution of Death Warrant

• Governor - registered mail (PC1193, 1227)

• Attorney General

• Defendant

• Defendant’s Attorney

• Warden at prison facility - registered mail (PC1193, 1227)

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Chapter 902

TRIAL PHASES – DEATH PENALTY FLOW CHART

Trial Guilty Phase

Guilty Not Guilty

Verdict of Life w/o Parole

Verdict of Death

Sentencing

Defendant Released Trial - Penalty Phase

Execution Set

Automatic Appeal

Judgment Affirmed

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Chapter 1001

WARRANT OF ARREST OVERVIEW An arrest warrant is a written order which is made on behalf of the state and is based upon a complaint issued pursuant to statute and/or court rule and which commands law enforcement officers to arrest a person and bring him or her before a magistrate. (Black’s Law Dictionary) If it appears that a corporation has committed the offense complained of, no warrant of arrest shall issue, but the judge must issue a summons substantially in the form prescribed in PC 1391. ELEMENTS OF AN ARREST WARRANT

A warrant of arrest shall specify:

1. Name of the defendant;

2. Date and time the warrant was issued;

3. City or county where issued;

4. Signature of the magistrate, judge, justice, or other issuing authority issuing the warrant, with the title of his/her office and the name of the court, or other issuing agency.

5. The bail amount.

6. Certain descriptor information is required, including a birth date and gender. Otherwise, the county want/warrant system and the state Wanted Persons System will reject the warrant.

SETTING BAIL At the time of issuing a warrant of arrest, the magistrate shall fix the amount of bail, which in his/her judgment will be reasonable and sufficient for the appearance of the defendant following his/her arrest, if the offense is bailable. The magistrate shall endorse on the warrant the amount of bail. “The defendant is to be admitted to bail in the sum of _________ dollars,” (stating the amount). (PC815a) Usually bail is set according to the Uniform Bail Schedule established by each superior court in accordance with the provisions set forth in PC 1269b (d). However, each judicial officer has the discretion to set bail as he/she feels appropriate to the matter before him/her. Typically, only judges or magistrates order and sign arrest warrants. However, in some counties, commissioners and judges pro tem may order or sign arrest warrants. (PC809)

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Chapter 1002

BENCH WARRANT

OVERVIEW Bench warrant is defined as the process issued by the Court itself, or “from the bench,” for the attachment or arrest of a person; either in case of contempt, or where an indictment has been found, or to bring in a witness who does not obey the subpoena. (Black’s Law Dictionary) FAILURE TO APPEAR

A bench warrant of arrest may be issued whenever a defendant fails to appear in court as required by law. (PC978.5) SUGGESTED PROCEDURE

1. Judge orders bench warrant issued and sets bail;

2. The order is entered onto the docket;

3. The bail amount is entered onto the docket;

4. The bench warrant is prepared and entered into the county warrant system.

BAIL POSTED

The clerk shall require the agency to enter each bench warrant issued in any felony case in which bail has been posted into the national warrant system (National Crime Information Center (NCIC)). If the warrant is not issued NCIC, and this prevented the defendant from being arrested or taken into custody, or resulted in the defendant’s subsequent release from custody, the court shall, upon petition, set aside the forfeiture of the bond and exonerate the bail bond. SERVICE OF BENCH WARRANT

The bench warrant may be served in any county in the same manner as a warrant for arrest. (PC978.5)

ADDITIONAL CHARGES Local court practice may indicate the filing of additional charges when the defendant fails to appear on a signed promise to appear. The prosecutorial agency must file an amendment to the complaint reflecting the additional charge. Usually the additional charge of PC 853.7 is charged on misdemeanor non-vehicle code violations, and VC 40508a is charged on misdemeanor vehicle code violations. At the time of the defendant’s first appearance following the issuance of a warrant, care must be exercised to release any holds placed on the defendant through the Department of Motor Vehicles at the time of the issuance of the warrant.

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Chapter 1003

SEARCH WARRANT

OVERVIEW

A search warrant is a warrant in writing, in the name of the people, signed by a magistrate, directed to a peace officer, commanding him or her to search for a person or persons, a thing or things, or personal property, and, in the case of a thing or things or personal property, bring the same before the magistrate. (PC1523) The grounds for issuance of a search warrant may be found in PC 1524. DIRECTING SERVICE

Upon showing of good cause, the magistrate may, in his or her discretion, insert a direction in a search warrant that it may be served at any time of the day or night. In the absence of such a direction, the warrant shall be served only between the hours of 7 A.M. and 10 P.M. (PC1533) SERVICE

A search warrant may in all cases be served by any of the officers mentioned in its directions, but by no other person, except in aid of the officer on his/her requiring it, he/she being present and acting in its execution. (PC1530) TELEPHONIC SEARCH WARRANT

Occasions may occur wherein an officer feels he/she has sufficient probable cause to obtain a search warrant, however, the officer has reason to believe the items or cause of the search warrant may be destroyed, removed, or otherwise secreted if the warrant is not immediately executed. In this instance, the officer seeking the search warrant may be required to provide an oral statement, under oath, to the magistrate, to suffice in lieu of a written affidavit. The officer shall be sworn, and his/her testimony shall be transcribed and filed with the clerk of the court. (PC1526 – PC1528) RETURN OF SWORN INVENTORY

The officer must forthwith return the warrant to the magistrate, and deliver to him/her a written inventory of the property taken, executed under oath. (PC1537) EXPIRATION

A search warrant shall be executed and returned within 10 days after date of issuance. A warrant executed within the 10-day period shall be deemed to have been timely executed and no further showing of timeliness need be made. After the expiration of 10 days, the warrant, unless executed, is void. (PC1534) PUBLIC RECORD

A search warrant becomes public record upon the execution of the search warrant, unless ordered sealed by the magistrate/judicial officer.

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Chapter 1004

RAMEY WARRANT

OVERVIEW A Ramey warrant is a warrant issued without formal charges (a complaint, information, or indictment) filed, similar to a search warrant. Typically, the clerk will assign a case number as opposed to the prosecuting agency assigning a case number. SUGGESTED PROCEDURE Local court practice will dictate the procedure to be followed. However, the following is suggested:

1. Local law enforcement officers initiate the process, after consulting with the prosecutorial agency.

2. The officers then make a showing of probable cause to the judge, who will authorize or

sign the warrant.

3. The clerk will then:

a. Receive Declaration in Support of Warrant. Make sure a judge has signed it, the bail amount is indicated, and any special instructions are noted. A mandatory appearance is required.

b. To issue an effective warrant, certain descriptor information is required. This includes a birth date and gender. Otherwise, the county want/warrant system and the state Wanted Persons System will reject the warrant.

c. Prepare a case file, indicating a “Ramey Warrant” is issued. (Note: Refer to local court practice as to indicating the name of the person named in the Ramey Warrant on the outside of the court file. At this time most courts do not indicate the person’s name as he/she is not yet a named defendant in a complaint.)

d. Prepare a docket showing declaration in support of arrest warrant and the date filed.

e. Make a second docket entry showing date and order arrest warrant.

4. Depending on local practice, the officer usually presents this warrant to local law enforcement responsible for maintaining the county’s want/warrant system before serving the warrant.

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Chapter 1005

GOVERNOR’S WARRANT

OVERVIEW

A Governor’s Warrant is the warrant issued by the governor of the asylum state commanding that the fugitive be arrested and delivered over to designated agents of the demanding state. Subject to the provisions of Chapter 4 of the Penal Code, the Constitution of the United States, and the laws of this State (California), it is the duty of the governor to have arrested and delivered up to the executive authority of any other state any person charged in that State with treason, felony, or other crime, who has fled from justice and is found in this State (California). (PC1548.1) FOREIGN DEMAND FOR EXTRADITION – REQUIREMENTS

The governor shall recognize no demand for the extradition of a person charged of a crime in another state unless it is in writing, containing the information set forth in PC 1548.2. Such demand shall be accompanied by a copy of the indictment found, or by information, or by a copy of an affidavit made before a magistrate in the demanding state, or the judgment of conviction, any of which shall be attached to the demand for extradition; and the said copy must be certified as authentic by the executive authority making the demand. (PC1548.2) WARRANT FOR ARREST

If a demand conforms to the provisions of Chapter 4 of the Penal Code, the governor or agent authorized in writing by the governor as specified in PC 1549.2, shall sign a warrant of arrest, which shall be sealed with the State Seal, and shall be directed to any peace officer or other person he/she may entrust with the execution of the warrant. The provisions of PC 850 apply, except as otherwise provided in PC 1549.2. IDENTITY HEARING – COMMITMENT OF FUGITIVE

No person arrested shall be delivered to the agent of the executive authority demanding him/her unless he/she is first taken before a magistrate who shall inform him/her of the demand made for his/her surrender, and of the crime with which he/she is charged, and that he/she has the right to demand and procure counsel. If the accused or his/her counsel desires to test the legality of the arrest, the magistrate shall remand the accused to custody, and fix a reasonable time for the accused to apply for a writ of habeas corpus, and pursue all legal remedies available to the accused. Any person named in the warrant shall be held in custody at all times, and shall not be eligible for release on bail. (PC1550.1) SUGGESTED PROCEDURE

When the court clerk or clerk’s office receives a Governor’s Warrant, generally a copy may be placed in the court file (optional), but the original warrant must be served on the fugitive at the county jail in order for him/her to be transported. Local court policy may require copies placed in the court file and a receipt for records prepared when the original documents are forwarded to the jail. (Note: See PC 1551.05 for Extradition of Person on an Outpatient Status)

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Chapter 1006

FUGITIVE WARRANT

OVERVIEW A fugitive warrant is the arrest warrant issued by the local court prior to receipt of the governor’s warrant authorizing the arrest and detention of the fugitive pending receipt of the governor’s warrant. A fugitive may be arrested without a warrant only if he/she is charged with an offense punishable by death, or imprisonment for over one year, or he/she escaped or absconded following conviction of such an offense. In all other cases, the district attorney should prepare and file a fugitive complaint. Certified copies of the charging document and warrant from the demanding state should be attached to the complaint as supporting evidence. The court should issue its fugitive warrant on the basis of the fugitive complaint. A certified copy of the complaint must be attached to the warrant. (PC1551.1) PROCEEDINGS FOR COMMITMENT At the initial appearance of the person arrested pursuant to this section, he/she will be informed of the reason for his/her arrest and his/her right to demand and procure counsel. If the person denies he/she is the same person charged with or convicted of a crime in the other state, a hearing shall be held within 10 days to determine whether there is probable cause to believe that he/she is the same person and whether he/she is charged with or convicted of a crime in the other state. At the hearing, the judge/magistrate shall accept a certified copy of an indictment found, an information, a verified complaint, a judgment or sentence, or other judicial proceedings against the person held in custody, and such copy shall constitute conclusive proof of its contents; witnesses from the other state shall not be required to be present at this hearing. (PC1551.2) NOTICE OF ARREST The magistrate must give immediate notice to the district attorney of the arrest of the person named in the warrant. The district attorney must then give immediate notice to the executive authority of the state, prosecuting attorney, or presiding judge of the court of the city or county within the state having jurisdiction of the offense. This process notifies the appropriate parties of the other state so a demand for the arrest and surrender of the person charged can be made. (PC1551.3) IDENTITY HEARING If after an identity hearing, the magistrate is satisfied that the person arrested is the same person charged with a crime in the demanding state, the magistrate must order the fugitive committed to the county jail for a period not exceeding 30 days (said time is specified in the warrant) in order to allow time for a governor’s warrant to be issued and served on the fugitive. (PC1552)

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RELEASE ON BAIL Unless the offense charged is punishable by death or life imprisonment under the laws of the state in which it was committed, or it is shown the prisoner is alleged to have escaped or violated the terms of his/her parole following conviction of a crime punishable by imprisonment for a term exceeding one year, the magistrate may admit the person arrested to bail by bond or undertaking, conditioned upon the appearance before him/her at a time specified in such bond or undertaking, and for his/her surrender upon the warrant of the governor of this state. Nothing in PC 1553 shall be deemed to prevent the immediate service of a governor’s warrant issued under PC 1549.2. (PC1552.1) DISCHARGE OR RECOMMITMENT If the accused (fugitive) is not arrested on the governor’s warrant at the end of the initial 30-day commitment, or the time specified in the warrant, the court may recommit the fugitive for a further period not to exceed 60 days. (PC 1552.2)

WARRANT RECALLED OR REISSUED The governor may recall his/her warrant of arrest or may issue another warrant whenever he/she deems it proper. (PC1554)

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Chapter 1007

WAIVER OF EXTRADITION OVERVIEW Waiver of extradition means waiver by the accused of the issuance and service of a governor’s warrant, and consent to be transported to the demanding state. Any person brought into California after a waiver of extradition based on a criminal charge shall not be subject to service of process in a civil action arising out of the same facts as the criminal proceedings for which he/she is returned, or if acquitted, until he/she has had reasonable opportunity to return to the state from which he/she was extradited. (PC1555) PROCEDURE If a waiver of extradition is signed in open court, it shall forthwith be forwarded to the office of the governor of this state, and filed therein. The Court shall remand the defendant into custody without bail, unless otherwise stipulated, and the Court shall direct the officer having such person in custody to deliver such person forthwith to the duly authorized agent of the demanding state, and shall deliver to such agent a copy of the waiver. (PC1555.1) The state prosecutor (district attorney) or law enforcement officer should immediately contact the demanding state prosecutor and arrange for a date upon which to transfer custody. Once the fugitive is delivered to the agent, the case should be dismissed. (DOJ Extradition Manual) Suggested Procedure Send two original file-stamped, signed waivers to the jail with the defendant (one for the jail and one for the defendant). Send one original file-stamped, signed waiver to: EXTRADITION SECRETARY GOVERNOR’S OFFICE SACRAMENTO, CA 95814 Send one original file-stamped, signed waiver to: DESIGNATED OFFICER OR

AGENCY (Police Dept, Sheriffs Office, etc) Place one original file-stamped copy in the file as per your local court procedures. (Note: See PC1554.2 for Local Application for Warrant for Extradition – Contents)

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REFUSAL TO SIGN WAIVER OF EXTRADITION (PC 1555.2) If the arrested person refuses to sign a waiver of extradition, a hearing shall be held, upon application of the district attorney. At the hearing, the district attorney shall present a certified copy of the order from the other state conditionally releasing the person, including the condition that he/she was required to waive extradition, together with a certified copy of the order from the other state directing the return of the person for violating the terms of his/her conditional release. The magistrate shall accept as conclusive proof the contents of the documents and shall presume the validity of the extradition waiver condition. If the magistrate finds there is probable cause to believe that the arrested person is the same person named in the conditional release order and the order commanding his/her return, the magistrate shall forthwith issue an order remanding the person to custody without bail and directing the delivery of the person to duly accredited agents of the other state. The district attorney may stipulate, with the concurrence of the other state, that the arrested person may be released on bail or own recognizance pending the arrival of duly accredited agents from the other state. If the arrested person or his/her counsel desires to test the legality of the order issued under this section, the magistrate shall fix a reasonable time for the accused to apply for a writ of habeas corpus, and shall also fix a reasonable time for the accused to pursue the legal remedies arising from a denial of a writ for habeas corpus. (Note: See PC1557 for payment of costs and expenses incurred for returning a fugitive from justice.)

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Chapter 1008

HOBBS WARRANT OVERVIEW

In People v Hobbs (1994) 7 Cal.4th 948, the California Supreme Court held that all or part of the information in a search warrant affidavit provided by an informant (whose only relevance is supplying probable cause) may be sealed to protect the informant’s identity. FORMAT

Typically, in the unsealed portion of the Statement of Probable Cause, the affiant would make a request for an order sealing a portion of the affidavit. This may be referred to as a “Hobbs Attachment” or for example, if the Probable Cause Affidavit is Exhibit B, the Hobbs portion should be in a separate Exhibit C and referred to in Exhibit B. The Affiant should also provide an envelope in which to seal the exhibit/Hobbs Attachment, tape, and an Order sealing the exhibit/attachment for the front of the envelope. If these items are not provided, a clerk may be asked to seal this portion and return it to the Affiant once the order has been signed by the magistrate. SUGGESTED SEALING PROCEDURE

Once the magistrate makes the determination that the information should be sealed, the exhibit/attachment is placed in the envelope and sealed. A suggested tip is adding a signature or initials across the seal. The magistrate signs the Order sealing the exhibit/attachment and that Order is attached to the envelope. The sealed envelope with the Order attached is then given back to the Affiant and will be retained by the Affiant or (Agency) pending further order of the court. SAMPLE COURT ORDER:

Court Order IT IS ORDERED THAT : the portion of the search warrant affidavit identified as the “Hobbs Attachment” (or Exhibit ___) be sealed and kept in the custody of the affiant’s law enforcement agency and not be made a part of the public record until further order of this court or any competent court. Dated: ______________ Signed: _______________________ Judge

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Chapter 1100

MISDEMEANOR AND INFRACTION APPEALS

1100.01 Overview

In every county or city there is an appellate department of the superior court

consisting of at least three judges. Every appellate department shall have

jurisdiction on appeals arising from misdemeanor and infraction cases from the

superior court, in all cases in which an appeal may be taken to the superior court.

The powers of each appellate department shall be governed by law or rule of the

Judicial Council relating to appeals to the superior court.

The rules on Misdemeanor and Traffic appeals to the superior court can be found

in the California Rules of Court, 8.850-8.890 and 8.900-8.829, respectively.

1100.02 RIGHT TO APPEAL (PC1466)

A party’s right to appeal is set forth in Section 1466 of the Penal Code as follows:

An appeal may be taken from a judgment or order, in an infraction or

misdemeanor case, to the superior court of the county in which the court from

which the appeal is taken is located, in the following cases:

1. By the people:

a. From an order recusing the district attorney or city attorney pursuant to

Section 1424.

b. From an order or judgment dismissing or otherwise terminating all or any

portion of the action, including such an order or judgment, entered after a

verdict or finding of guilty or a verdict or judgment entered before the

defendant has been placed in jeopardy or where the defendant has waived

jeopardy.

c. From sustaining a demurrer to any portion of the complaint or pleading.

d. From an order granting a new trial.

e. From an order arresting judgment.

f. From any order made after judgment affecting the substantial rights of the

people.

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g. From the imposition of an unlawful sentence, whether or not the court

suspends the execution of sentence. As used in this subparagraph,

“unlawful sentence” means the imposition of a sentence not authorized by

law or the imposition of a sentence based upon an unlawful order of the

court that strikes or otherwise modified the effect of an enhancement or

prior conviction. A defendant shall have the right to counsel in the

people’s appeal of an unlawful sentence under the same circumstances that

he or she would have a right to counsel under subdivision (a) of Section

1238.

h. Nothing in this section shall be construed to authorize an appeal from an

order granting probation. Instead, the people may seek appellate review of

any grant of probation, whether or not the court imposes sentence, by

means of a petition for a writ of mandate or prohibition that is filed within

60 days after probation is granted. The review of any grant of probation

shall include review of any order underlying the grant of probation.

2. By the Defendant:

a. From a final judgment of conviction: A sentence, and order

granting probation, a conviction in a case in which before final

judgment the defendant is committed for insanity or is given an

indeterminate commitment as a mentally disordered sex offender,

or the conviction of a defendant committed for controlled

substance addiction shall be deemed to be a final judgment within

the meaning of this section. Upon appeal from a final judgment or

an order granting probation the court may review any order

denying a motion for a new trial.

b. From any order made after judgment affecting his or her

substantial rights.

1100.03 COUNSEL ON MISDEMEANOR APPEAL (CRC 8.851)

A. Standards for appointment

(1) On application, the appellate division must appoint appellate counsel for a

defendant convicted of a misdemeanor who:

(a) Is subject to incarceration or a fine of more than $500 (including

penalty and other assessments), or who is likely to suffer significant

adverse collateral consequences as a result of the conviction; and

(b) Was represented by appointed counsel in the trial court or establishes

indigency.

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(2) On application, the appellate division may appoint counsel for any other

indigent defendant convicted of a misdemeanor.

(3) A defendant is subject to incarceration or a fine if the incarceration or fine is

in a sentence, is a condition of probation, or may be ordered if the defendant

violates probation.

B. Application; duties of trial counsel and clerk

(1) If defense trial counsel has reason to believe that the client is indigent and

will file an appeal, counsel must prepare and file in the trial court an

application to the appellate division for appointment of counsel.

(2) If the defendant was represented by appointed counsel in the trial court, the

application must include trial counsel's declaration to that effect. If the

defendant was not represented by appointed counsel in the trial court, the

application must include a declaration of indigency in the form required by the

Judicial Council.

(3) When the trial court receives an application, the clerk must promptly send it

to the appellate division. A defendant may, however, apply directly to the

appellate division for appointment of counsel at any time after filing the notice

of appeal.

C. Defendant found able to pay in trial court

(1) If a defendant was represented by appointed counsel in the trial court and was

found able to pay all or part of the cost of counsel in proceedings under Penal

Code section 987.8 or 987.81, the findings in those proceedings must be

included in the record or, if the findings were made after the record is sent to

the appellate division, must be sent as an augmentation of the record.

(2) In cases under (1), the appellate division may determine the defendant's ability

to pay all or part of the cost of counsel on appeal, and if it finds the defendant

able, may order the defendant to pay all or part of that cost.

1100.04 NOTICE OF APPEAL (CRC 8.852, 8.901)

To appeal from a judgment or an appealable order of the trial court in a

misdemeanor and infraction case, the defendant or the People must file a notice of

appeal in the trial court or with the Appellate Division. The notice must specify

the judgment or order-or part of it-being appealed. If the defendant appeals, the

defendant or the defendant's attorney must sign the notice of appeal. If the People

appeal, the attorney for the People must sign the notice. The notice of appeal must

be liberally construed in favor of its sufficiency.

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The notice of appeal must be filed with the clerk in the trial court where the

judgment or order appealed from is entered, or with the Appellate Division within

30 days after the rendition of the judgment or the making of the order. However,

if the defendant is committed before final judgment for insanity or narcotics

addiction or indeterminately as a mentally disordered sex offender, the notice of

appeal shall be filed within 30 days after the commitment.

1100.05 TIME TO APPEAL (CRC 8.853)

The 30 days are calculated by commencing counting the day after filing and going

through the 30th day. If the 30th day falls on a Saturday, Sunday or holiday, the

defendant has the following workday to file their appeal.

1100.06 NOTICE OF APPEAL FILED UNTIMELY

Late Notice of Appeal (CRC 8.853d, 83905g)

If the notice of appeal is not filed within the time prescribed, the appeal shall be

void and of no effect. A notice received after the expiration of the time prescribed

shall be marked by the clerk receiving the untimely notice “Received (date) but

not filed,” and the clerk shall advise the party seeking to file the notice that it was

received but not filed because the period for filing had elapsed.

It is not necessary to advise responding parties of a late appeal. It is up to the

appellant to obtain relief by way of a motion from the appellate department for

leave to file a late appeal.

Filed Prior to Judgment or Order (CRC 8.85, 8.902c)

A notice of appeal filed prior to the time prescribed is premature but may, in the

discretion of the reviewing court for good cause, be treated as filed immediately

after the rendition of the judgment or the making of the order. The clerk should

immediately bring the filing of a notice of appeal prior to the judgment or the

making of the order to the trial judge’s attention.

Receipt by mail from custodial institution (CRC 8.53e, 8.902e)

If the trial court clerk receives a notice of appeal by mail from a custodial

institution after the period specified in (a) has expired but the envelope shows that

the notice was mailed or delivered to custodial officials for mailing within the

period specified in (a), the notice is deemed timely. The clerk must retain in the

case file the envelope in which the notice was received.

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1100.07 NOTIFICATION BY CLERK (CRC 8.852(b) Infraction, 8.901(b))

The clerk must immediately give notice of filing notice of appeal to all parties to

the action other than the appellant. The notification must include the number, title

of the case, and the date the notice of appeal was filed, and whether the defendant

was represented by appointed counsel.. The failure of the clerk or judge to give

such notification shall not affect the validity of the appeal.

1100.08 NORMAL RECORD ON APPEAL (CRC 8.860, 8.910)

The record on appeal to a superior court appellate division in misdemeanor and

infraction cases must contain the a record of the written documents from the trial

court proceedings and if the appellant wants to raise any issue that requires

consideration of the oral proceedings in the the trial court, the record on appeal

must include a record of the oral proceedings.

A record of the written documents must be in the form of a clerk’s transcript or

the original trial court file. Additionally, the record of oral proceedings must be in

the form of a reporter’s transcript; or official electronic recording; or a statement

on appeal.

1100.09 CONTENTS OF CLERK’S TRANSCRIPT (CRC 8.861, 8.912)

(1) The complaint, including any notice to appear, and any amendment;

(2) Any demurrer or other plea;

(3) All court minutes;

(4) Any jury instructions that any party submitted in writing, the cover page

required by rule 2.1055(b)(2), and any written jury instructions given by the

court;

(5) Any verdict;

(6) Any written findings or opinion of the court;

(7) The judgment or order appealed from;

(8) Any motion or notice of motion for new trial, in arrest of judgment, or to

dismiss the action, with supporting and opposing memoranda and attachments;

(9) The notice of appeal.

1100.10 TRIAL COURT FILE INSTEAD OF CLERK’S TRANSCRIPT

(CRC 8.863, 8.914)

If the court has a local rule for the appellate division electing to use this form of

the record, the original trial court file may be used instead of a clerk’s transcript.

This rule and any supplemental provisions of the local rule then govern unless the

trial court orders otherwise after notice to the parties.

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1100.11 RECORD OF ORAL PROCEEDINGS (CRC 8.864, 8.915)

The appellant must notify the trial court whether he or she elects to proceed with

or without a record of the oral proceedings in the trial court. If the appellant elects

to proceed with a record of the oral proceedings in the trial court, the notice must

specify which form of the record of the oral proceedings in the trial court the

appellant elects to use:

(1) A reporter's transcript under rules 8.865-8.867 or a transcript prepared from

an official electronic recording of the proceedings under rule 8.868(b). If the

appellant elects to use a reporter's transcript, the clerk must promptly mail a

copy of appellant's notice making this election and the notice of appeal to each

court reporter;

(2) An official electronic recording of the proceedings under rule 8.868(c). If the

appellant elects to use the official electronic recording itself, rather than a

transcript prepared from that recording, the appellant must attach a copy of the

stipulation required under rule 8.868(c); or

(3) A statement on appeal under rule 8.869.

Time for filing election

The notice of election required under (a) must be filed no later than the following:

(1) If no application for appointment of counsel is filed, 20 days after the notice

of appeal is filed; or

(2) If an application for appointment of counsel is filed before the period under

(a) expires, either 10 days after the court appoints counsel to represent the

defendant on appeal or denies the application for appointment of counsel or 20

days after the notice of appeal is filed, whichever is later.

1100.12 NORMAL RECORD ON APPEAL (CRC 8.860/8.910))

The record on an appeal to a superior court appellate division in a misdemeanor or

infraction criminal case must contain the following, which constitute the normal

record on appeal:

(1) A record of the written documents from the trial court proceedings in the

form of one of the following:

(a) A clerk's transcript under rule 8.861/8.912 or 8.867/8.920; or

(b) If the court has a local rule for the appellate division electing to use this

form of the record, the original trial court file under rule 8.863/8.914.

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(2) If an appellant wants to raise any issue that requires consideration of the oral

proceedings in the trial court, the record on appeal must include a record of

the oral proceedings in the form of one of the following:

(a) A reporter's transcript under rules 8.865-8.867/8.918-8.920 or a transcript

prepared from an official electronic recording under rule 8.868/8.917;

(b) If the court has a local rule for the appellate division permitting this form

of the record, an official electronic recording of the proceedings under rule

8.868/8.917; or

(c) A statement on appeal under rule 8.869/8.916.

Stipulation for limited record

If, before the record is certified, the appellant and the respondent stipulate in

writing that any part of the record is not required for proper determination of the

appeal and file that stipulation in the trial court, that part of the record must not be

prepared or sent to the appellate division.

1100.13 TRANSMITTAL OF RECORD (CRC 8.872/8.922)

After the statement of appeal has been settled, allowed, certified and signed by the

Court, the entire record and a transcript of the docket record is forwarded by the

clerk of the trial court to the appellate court to which the appeal is taken. The

record on appeal shall consist of items existing in the particular case as listed in

CRC 8.860/8.910.

1100.14 ADDITIONS/AUGMENTATION TO RECORD (CRC 8.873/8.923)

Subsequent trial court orders

If, after the record is certified, the trial court amends or recalls the judgment or

makes any other order in the case, including an order affecting the sentence or

probation, the clerk must promptly certify and send a copy of the amended

abstract of judgment or other order as an augmentation of the record to all those

who received the record under rule 8.872(b). If there is any additional document

or transcript related to the amended judgment or new order that any rule or order

requires be included in the record, the clerk must send these documents or

transcripts with the amended abstract of judgment or other order. The clerk must

promptly copy and certify any such document and the reporter must promptly

prepare and certify any such transcript.

Omissions

If, after the record is certified, the trial court clerk or the reporter learns that the

record omits a document or transcript that any rule or order requires to be

included, the clerk must promptly copy and certify the document or the reporter

must promptly prepare and certify the transcript. Without the need for a court

order, the clerk must promptly send the document or transcript as an

augmentation of the record to all those who received the record under rule

8.872(b)/ 8.922(b).

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Augmentation or correction by the appellate division

At any time, on motion of a party or on its own motion, the appellate division may

order the record augmented or corrected as provided in rule 8.841.

1100.15 HEARINGS, ORAL ARGUMENT (CRC 8.885/8.929)

Unless otherwise ordered, all appeals in which the last reply brief was filed or the

time for filing this brief expired 45 or more days before the date of a regular

appellate division session must be placed on the calendar for that session by the

appellate division clerk. By order of the presiding judge or the division, any

appeal may be placed on the calendar for oral argument at any session.

As soon as all parties' briefs are filed or the time for filing these briefs has

expired, the appellate division clerk must send a notice of the time and place of

oral argument to all parties. The notice must be sent at least 20 days before the

date for oral argument. The presiding judge may shorten the notice period for

good cause; in that event, the clerk must immediately notify the parties by

telephone or other expeditious method.

1100.16 REMITTITUR (CRC 8.890/8.935)

Overview

The certified copy of the judgment and opinion of the appellate court to the lower

court is the remittitur. It is important for the clerk of the trial court to be aware of

any order that is remitted by the appellate court since the appellate court retains

jurisdiction until the remittitur is filed in the lower court. The appellate may order

a transfer and a new trial in the superior court. After such certified copy of the

judgment has been remitted to the court below, the appellate court has no further

jurisdiction of the appeal or of the proceedings thereon, and the lower court shall

make all orders necessary to carry its judgment or order into effect or otherwise

proceed in conformity to the decision on appeal.

Issuance and Transmission

Upon, the expiration of the period during which a transfer may be ordered, unless

a new trial is to be had in the superior court, the clerk of the superior court shall

remit to the court from which the appeal was taken a certified copy of the

judgment of the superior court and of its opinion, if any, and also all the original

exhibits, orders, affidavits, papers and documents which were sent to said superior

court in connection with said appeal, except the statement or transcript on appeal

and notice of appeal. After such certified copy of the judgment has been remitted

to the court below, the superior court has no further jurisdiction of the appeal or of

the proceedings thereon, and the lower court shall make all orders necessary to

carry its judgment or order into effect or otherwise proceed in conformity to the

decision on appeal. The Court may direct the immediate issuance of the remittitur

on stipulation of the parties.

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Stay of Issuance

On a party’s or its own motion or on stipulation, and for good cause, the court

may stay a remittitur’s issuance for a reasonable period.

Recall of Remittitur

A remittitur may be recalled by order of the Court on its own motion, on motion

after notice supporter at affidavits, or on stipulation setting forth the facts that

would justify the granting of a motion.

1100.17 ABANDONMENT OF APPEAL (JCC Form # CR-137 / CR-145)

An appellant may at any time abandon their appeal by filing a written

abandonment with the clerk in the trial court. The filing of an abandonment will

restore jurisdiction back to the trial court and allow such proceedings as may

necessary to enforce its judgment, provided no other appeal has been taken.

Upon the filing of an abandonment of appeal in the appellate court, the reviewing

court shall dismiss the appeal and issue its remittitur forthwith.

1100.18 EXTENSIONS OF TIME AND RELIEF FROM DEFAULT (CRC 8.81 / 8.812)

The court from which the appeal is taken, or a judge thereof, may for good cause

shown by affidavit make an order granting additional to the time limited in these

rules for serving and filing the statement, or for filing the transcript and giving

notice thereof, or for proposing amendments thereto, or for engrossing the

statement or transcript, or both and presenting the same for certification.

When the appellant needs an extension of time, and application and affidavit in

support thereof may be submitted to the trial court for review and order. The

application must be submitted to the presiding judge, or a judge so designated,

before the expiration of the allotted time for serving and filing.

Superior court may for good cause relieve a party from a default occasioned by

any failure to comply with these rules, except for failure to file notice of appeal.

Applications on Routine Matters (CRC 8.806)

Except as otherwise provide in these rules, applications to extend time… and

applications relating to other matters of routine shall be served and filed; but the

presiding judge of the reviewing court may require an additional showing to be

made and for good cause may excuse advance service. The application shall set

forth facts showing: (1) good cause for granting the application, and (2) any

previous applications granted or denied to any party after filing of the notice of

appeal. The applicant shall provide to the clerk addressed, postage-prepaid

envelopes and sufficient additional copies of the application for later mailing by

the clerk to all other parties of a copy of the order granting or denying the

application, together with a copy of the application.

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Chapter 1102

FELONY APPEALS RIGHT TO APPEAL (PC 1235-1238.5) Either party to a felony case may appeal on questions of law alone, as described in Title 9 of the Penal Code, and in rules adopted by Judicial Council. An appeal from the judgment or appealable order in a felony case is to the Court of Appeal for the district of the court from which the appeal is taken. Appeal By the Defendant An appeal may be taken by the defendant:

(1) From a final judgment of conviction except from a judgment of conviction on the ground of

an error in the calculation of presentence custody credits, unless the defendant first presents the claim in the trial court at the time of sentencing. If the error is not discovered until after the sentencing, the defendant must first make a motion for correction of the record in the trial court. (PC1237.1)

(2) From a final judgment of conviction except upon a plea of guilty or nolo contendere, or a

revocation of probation following an admission of violation except where both of the following are met:

(a) The defendant has filed with the trial court a written statement, executed under oath

or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings; and

(b) The trial court has executed and filed a certificate of probable cause for such appeal

with the clerk of the court. (PC1237.5)

(3) A sentence, an order granting probation, or the commitment of a defendant for insanity, the indeterminate commitment of a defendant as a mentally disordered sex offender, or the commitment of a defendant for controlled substance addiction shall be deemed to be a final judgment within the meaning of this section. Upon appeal from a final judgment, the court may review any order denying a motion for a new trial. (PC1237)

(4) From any order made after judgment, affecting the substantial rights of the party. (PC1237)

Appeal by the People

An appeal may be taken by the people from any of the following:

(1) An order setting aside all or any portion of the indictment, information, or complaint.

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(2) An order sustaining a demurrer to all or any portion of the indictment, accusation, or information.

(3) An order granting a new trial.

(4) An order arresting judgment.

(5) An order made after judgment, affecting the substantial rights of the people.

(6) An order modifying the verdict or finding by reducing the degree of the offense or the punishment imposed or modifying the offense to a lesser offense.

(7) An order dismissing a case prior to trial made upon motion of the court pursuant to PC 1385 whenever such order is based upon an order granting the defendant’s motion to return or suppress property or evidence made at a special hearing as provided in this code. (Note: the Court may review the order granting the defendant’s motion to return or suppress property or evidence made at a special hearing as provided in this code.)

(8) An order or judgment dismissing or otherwise terminating all or any portion of the action including such an order or judgment after a verdict or finding of guilty or an order or judgment entered before the defendant has been placed in jeopardy or where the defendant has waived jeopardy. (Note: Any review of a decision under this provision shall be binding upon the people and they shall be prohibited from refilling the case that was appealed.)

(9) An order denying the motion of the people to reinstate the complaint or a portion thereof pursuant to PC 871.5.

(10) The imposition of an unlawful sentence unless otherwise stated in PC 1238(a)(10).

(11) An order recusing the district attorney pursuant to PC 1424.

(12) Nothing contained in PC 1238 shall be construed to authorize an appeal from an order granting probation. Instead, the people may seek appellate review of any grant of probation, whether or not the court imposes sentence, by means of a petition for a writ of mandate or prohibition that is filed within 60 days after probation is granted. The review of any grant of probation shall include review of any order underlying the grant of probation.

REINSTATEMENT OF TIME FOR REVIEW (PC 1238.5) Upon appeal by the prosecution pursuant to Section 1238, where the notice of appeal is filed after the expiration of the time available to the defendant to seek review of an otherwise reviewable order or ruling, and the appeal by the prosecution relates to a matter decided during the time available to the defendant to seek review of the otherwise reviewable order or ruling, the time for defendant to seek such review is reinstated to run from the date the notice of appeal was filed with proof of service upon the defendant or his counsel. The Judicial Counsel shall provide by rule for the consolidation of such petition for review with the prosecution appeal.

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TAKING THE APPEAL (CRC 8.304)

A. Notice of Appeal

(1) To appeal from a judgment or appealable order of the superior court in a felony case other than a judgment of death- the defendant or the people must file a notice of appeal in the superior court. To appeal after a plea of guilty or nolo contendere or after an admission of probation, the defendant must also file the statement required by PC 1237.5 for issuance of a certificate of probable cause.

(2) As used in this section, “felony case” means any criminal action in which a felony is charged,

regardless of the outcome, including an action in which the defendant is charged with:

(a) A felony and a misdemeanor or infraction, but is convicted of only the misdemeanor or infraction;

(b) A felony, but is convicted of only a lesser offense; or,

(c) An offense filed as a felony but punishable as either a misdemeanor or felony, and the offense is thereafter deemed a misdemeanor under PC 17(b).

(3) The notice of appeal must be signed by the filing party (defense counsel may sign for the

defendant), and must be liberally construed. Except as provided in rule 8.304(b), the notice is sufficient if it identifies the particular judgment or order being appealed. The appeal will be taken to the Court of Appeal for the district in which the superior court is located.

B. Appeal after Plea of Guilty or Nolo Contendere or After Admission of Probation

Violation

(1) Except as provided below, the defendant must file in superior court in addition to the notice of appeal the statement required by PC 1237.5, for issuance of a certificate of probable cause.

(2) Within 20 days after the defendant files said statement, the superior court must sign and file

either a certificate of probable cause or an order denying the certificate. (3) If the defendant does not file the required statement or if the superior court denies a

certificate of probable cause, the superior court clerk must mark the notice of appeal “Inoperative,” notify the defendant, and send a copy of the marked notice of appeal to the district appellate project.

(4) The defendant need not comply with the filing of the statement required in PC 1237.5 if the

notice of appeal states that the appeal is based on:

(a) The denial of a motion to suppress evidence under PC 1538.5; or

(b) Grounds that arose after entry of the plea and do not affect the plea’s validity.

(c) If the defendant’s notice of appeal contains a statement under these grounds, the reviewing court will not consider any issue affecting the validity of the plea unless the defendant also complies with the statement required by PC 1237.5.

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C. Notification of the Appeal

(1) When a notice of appeal is filed, the superior court clerk must promptly mail a notification of the filing to the attorney of record for each party, to any unrepresented defendant, to the reviewing court clerk, to each court reporter, and to any primary reporter or reporting supervisor. If the defendant also files a statement pursuant to PC 1237.5, the clerk must not mail the notification unless the superior court files a certificate of probable cause.

(2) The notification of appeal must show the date it was mailed, the number and title of the case, and the date the notice of appeal and any certificate of probable case was filed. Additionally, the notification to the reviewing court clerk must also include a copy of the notice of appeal, any certificate of probable cause, and the sequential list of reporters made under CRC rule 2.950. The superior court clerk can add the required information to the notice of appeal. Failure to comply with any provision of CRC 30(c) rule 8.304(c) does not affect the validity of the notice of appeal.

D. Time to Appeal (CRC 8.308)

(1) Normal Time

Unless otherwise provided by law, a notice of appeal must be filed within 60 days after the rendition of the judgment or the making of the order being appealed.

(2) Premature notice of appeal

A notice of appeal filed before the judgment is rendered or the order is made is premature, but the reviewing court may treat the notice as filed immediately after the rendition of judgment or the making of the order.

(3) Cross-appeal

If the defendant or the People timely appeal from a judgment or appealable order, the time for any other party to appeal from the same judgment or order is either the 60 days after the rendition of the judgment or the making of the order being appealed or 30 days after the superior court clerk mails notification of the first appeal, whichever is later.

(4) Late notice of appeal

The superior court clerk must mark a late notice of appeal “Received [date] but not filed,” notify the party that the notice was not filed because it was late, and send a copy of the marked notice of appeal to the district appellate project. If the superior court clerk receives a notice of appeal by mail from a custodial institution after the 60th day following rendition of judgment, but the envelope shows that the notice was mailed or delivered to the custody officials for mailing within the 60-day period, the notice is deemed timely. The clerk must retain in the case file the envelope in which the notice was received.

(5) Receipt by mail from custodial institution

If the superior court clerk receives a notice of appeal by mail from a custodial institution after the 60 days has expired but the envelope shows that the notice was mailed or delivered to custodial officials for mailing within the 60 days, the notice is deemed timely. The clerk must retain in the case file the envelope in which the notice was received.

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STAY OF EXECUTION AND RELEASE ON APPEAL (CRC 8.312)

A. Application Pending appeal, the defendant may apply to the reviewing court: (1) For a stay of execution after a judgment of conviction or an order granting

probation; or (2) For bail, reduction of bail, or for release on other conditions.

B. Showing

The application must include a showing that the defendant sought relief in the superior court and that the court unjustifiably denied the application. C. Service The application must be served on the district attorney and on the attorney general. D. Interim relief Pending its ruling on the application, the reviewing court may grant the relief requested. The reviewing court must notify the superior court under rule 8.489 of any stay that it grants.

ABANDONING THE APPEAL (CRC 8.316)

A. How to abandon An appellant may abandon the appeal at any time by filing an abandonment of the appeal signed by the appellant or the appellant’s attorney of record. B. Where to file; effect of filing

(1) If the record has not been filed in the reviewing court, the appellant must file the abandonment in the superior court. The filing effects a dismissal of the appeal and restores the superior court’s jurisdiction.

(2) If the record has been filed in the reviewing court, the appellant must file the abandonment in that court. The reviewing court may dismiss the appeal and direct immediate issuance of the remittitur.

C. Clerk’s Duties

(1) The clerk of the court in which the appellant files the abandonment must immediately notify the adverse party of the filing or of the order of dismissal. If the defendant abandons the appeal, the clerk must notify both the district attorney and the attorney general.

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(2) If the appellant files the abandonment in the superior court, the clerk must immediately notify the reviewing court.

(3) The clerk must immediately notify the court reporter if the appeal is abandoned before the

reporter has filed the transcript.

NORMAL RECORD; EXHIBITS (CRC 8.320)

A. Contents

If the defendant appeals from a judgment of conviction, or if the people appeal from an order granting a new trial, the record must contain a clerk’s transcript and a reporter’s transcript, which together constitute the normal record. B. Clerk’s Transcript must contain: (1) The accusatory pleading and any amendment; (2) Any demurrer or other plea; (3) All court minutes; (4) All jury instructions that any party submitted in writing and the cover page required by rule

2.1055(b)(2); (5) Any written communication between the court and the jury or any individual juror; (6) Any verdict; (7) Any written opinion of the court; (8) The judgment or order appealed from and any abstract of judgment or commitment; (9) Any motion for new trial, with supporting and opposing memoranda and attachments; (10) The notice of appeal and any certificate of probable cause filed under rule 8.304(b); (11) Any transcript of a sound or sound-and-video recording furnished to the jury or tendered to

the court under rule 2.1040; (12) Any application for additional record and any order on the application;

(13) And, if the appellant is the defendant:

(a) Any written defense motion denied in whole or in part, with supporting and opposing memoranda and attachments;

(b) If related to a motion under (a), any search warrant and return and the reporter’s transcript of any preliminary examination or grand jury hearing

(c) Any document admitted in evidence to prove a prior juvenile adjudication, criminal conviction, or prison term.

(d) The probation officer’s report. C. Reporter’s Transcript must contain: (1) The oral proceedings on the entry of any plea other than a not guilty plea; (2) The oral proceedings on any motion in limine; (3) The oral proceedings at trial, but excluding the voir dire examination of jurors and any

opening statement; (4) All instructions given orally; (5) All oral communication between the court and the jury or any individual juror;

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(6) Any oral opinion of the court; (7) The oral proceedings on any motion for new trial; (8) The oral proceedings at sentencing, granting or denying of probation, or other dispositional

hearing;

(9) And, if the appellant is the defendant:

(a) The oral proceedings on any defense motion denied in whole or in part except motions for disqualification of a judge and motions under Penal Code section 995;

(b) The closing arguments; and (c) Any comment on the evidence by the court to the jury.

D. Limited Normal Record in Certain Appeals If the people appeal from a judgment on demurrer to the accusatory pleading, or if the defendant or the people appeal from an appealable order other than a ruling on a motion for new trial, the normal record is composed of a reporter’s transcript of any oral proceedings incident to the judgment or order being appealed and a clerk’s transcript containing: (1) The accusatory pleading and any amendment; (2) Any demurrer or other plea; (3) Any motion or notice of motion granted or denied by the order appealed from, with

supporting and opposing memoranda and attachments; (4) The judgment or order appealed from and any abstract of judgment or commitment; (5) Any court minutes relating to the judgment or order appealed from; and (6) The notice of appeal.

E. Exhibits

Exhibits admitted in evidence, refused, or lodged are deemed part of the record, but may be transmitted to the reviewing court only as provided in rule 8.224. F. Stipulation for Partial Transcript

If counsel for the defendant and the people stipulate in writing before the record is certified that any part of the record is not required for proper determination of the appeal, that part must not be prepared or sent to the reviewing court. G. Form of Record

The clerk’s and reporter’s transcripts must comply with rule 8.144. APPLICATION IN SUPERIOR COURT FOR ADDITION TO NORMA L RECORD (CRC 8.324)

A. Appeal by the People The people, as the appellant, may apply to the superior court for inclusion in the record any item that would be part of the normal record in a defendant’s appeal.

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B. Application by either party Either the people or the defendant may apply to the superior court for inclusion in the record of any of the following items:

(1) In the clerk’s transcript: any defense motion granted in whole or in part or any motion by

the people, with supporting and opposing memoranda and attachments. (2) In the reporter’s transcript: the voir dire examination of jurors; any opening statement; and

the oral proceedings on motions other than those listed in rule 8.320(c).

C. Application

(1) An application for additional record must describe the material to be included and explain how it may be useful in the appeal.

(2) The application must be filed in the superior court with the notice of appeal or as soon thereafter as possible, and will be treated as denied if it is filed after the record is sent to the reviewing court.

(3) The clerk must immediately present the application to the trial judge.

D. Order

(1) Within five days after the application is filed, the judge must order that the record include as much of the additional material as the judge finds proper to fully present the points raised by the applicant. Denial of the application does not preclude a motion in the reviewing court for augmentation under rule 8.155.

(2) If the judge does not rule on the application within the five days after it is filed, the requested material--other than exhibits--must be included in the clerk’s transcript or the reporter’s transcript without a court order.

(3) The clerk must immediately notify the reporter if additions to the reporter’s transcript are required under this section.

CONFIDENTIAL RECORDS (CRC 8.328)

This rule applies to records required to be kept confidential by law. A. Marsden Hearing

(1) The reporter’s transcript of any hearing held under People v. Marsden (1970) 2 Cal.3d 118,

must be kept confidential. The chronological index to the reporter’s transcript must include the Marsden hearing but list it as “CONFIDENTIAL” or the equivalent.

(2) The superior court clerk must send the original and one copy of the sealed transcript to the

reviewing court with the record, and

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(3) Send one copy of the sealed transcript to the defendant’s appellate counsel or, if counsel has not yet been appointed or retained, to the appellate project for the district.

B. Other In-Camera proceedings and confidential records (1) Any party may apply to the superior court for an order that the record include:

(a) A confidential, separately paginated reporter’s transcript of any in-camera proceeding at which a party was not allowed to be represented; and

(b) Any item that the trial court withheld from a party on the grounds that it was confidential.

(2) The application and any ruling must comply with rule 8.324. (3) If the court grants the application, it may order the reporter who attended the in-camera

proceeding to personally prepare the transcript. The chronological index to the reporter’s transcript must include the proceeding but list it as “CONFIDENTIAL - MAY NOT BE EXAMINED WITHOUT COURT ORDER” or the equivalent.

(4) The superior court clerk must send the transcript of the in-camera proceeding or the

confidential item to the reviewing court in a sealed envelope labeled “CONFIDENTIAL - MAY NOT BE EXAMINED WITHOUT COURT ORDER.” The reviewing court clerk must file the envelope and store it separately from the remainder of the record.

(5) The superior court clerk must also prepare an index of any material sent to the reviewing

court, showing the date and the names of all parties present at each proceeding, not disclosing the substance of the sealed matter, and send the index to the People and the defendant’s appellate counsel, or the appellate project, if counsel has not been appointed or retained.

(6) Unless the reviewing court orders otherwise, only a reviewing court justice may examine

the confidential material under this section personally; but parties and their attorneys who had access to the material in the trial court may also examine the confidential material.

C. Omissions If at any time the superior court clerk or the reporter learns that the record omits material that any rule requires to be included and that this rule requires to be kept confidential:

(1) The clerk and the reporter must comply with rule 8.340(b); and (2) The clerk must comply with this rule requiring that the record be kept confidential and

prescribing which party’s counsel, if any, must receive a copy of sealed material.

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JUROR-IDENTIFYING INFORMATION (CRC 8.332) A. Application Any documents in the record, including the clerk’s transcript and the reporter’s transcript, containing juror-identifying information must comply with this rule. B. Juror names, addresses, and telephone numbers Juror (trial and alternate jurors) names, addresses, and telephone numbers must be replaced with an identifying number in all documents. The superior court clerk must prepare and keep under seal in the case file a table correlating the jurors’ names and their identifying numbers. The addresses and telephone numbers must be deleted from all documents. C. Potential jurors Information identifying potential jurors called but not sworn either as trial jurors or alternate jurors must not be sealed unless otherwise ordered under CCP 237(a)(1).

PREPARING, CERTIFYING, AND SENDING THE RECORD (CRC 8.336)

A. Immediate preparation when appeal is likely The reporter and the clerk must begin preparing the record immediately after a verdict or finding of guilt of a felony is announced following a trial on the merits, unless the judge determines that an appeal is unlikely pursuant to rule 8.336(2). B. Appeal after plea of guilty or nolo contendere or after admission of probation violation In an appeal after a plea of guilty or nolo contendere, or after an admission of a probation violation, the time to prepare, certify, and file the record begins when the court files a certificate of probable cause under rule 8.304(b)(2). C. Clerk’s Transcript (1) Unless otherwise provided in rule 8.336, the clerk must begin preparing the clerk’s transcript

immediately after the notice of appeal is filed. (2) Within 20 days after the notice of appeal is filed, the clerk must complete preparation of an

original and two copies of the transcript, one for defendant’s counsel and one for the Attorney General or the district attorney, whichever is the counsel for the People on appeal.

(3) On request, the clerk must prepare an extra copy for the district attorney or the Attorney

General, whichever is not counsel for the People on appeal (4) The clerk must prepare an extra copy for each appealing defendant represented by separate

counsel.

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(5) The clerk must certify as correct the original and all copies of the clerk’s transcript.

D. Reporter’s Transcript (1) Except as otherwise provided in rule 8.336, the reporter must begin preparing the reporter’s

transcript immediately upon being notified by the clerk that a notice of appeal has been filed. (2) The reporter must prepare an original and the same number of copies as the clerk’s transcript,

and must certify each as correct. (3) All copies and the original transcript are delivered to the superior court clerk as soon as they

are certified, but no later than 20 days after the notice of appeal was filed. (4) Any portion of the transcript transcribed during the trial must not be retyped unless to correct

errors, but it must be repaginated and bound with the transcript not typed during the trial. Additional copies must be prepared by photocopying or an equivalent process, but not retyped.

(5) In a multi-reporter case, the clerk must accept any completed portion of the transcript from

the primary reporter one week after the 20th day following the filing of the notice of appeal, even if other portions of the transcript are not completed. The clerk must promptly pay each reporter who certifies that all transcripts assigned to him/her are completed.

E. Extensions of Time

(1) The superior court may not extend the time for preparing the record. (2) The reviewing court may order one or more extensions of time for preparing the record, but

not exceeding a total of 60 days, on receipt of an affidavit showing good cause, and certification of the superior court presiding judge or court administrator designated by the presiding judge, that the requested extension is reasonable in light of the workload of all the reporters in the court.

F. Sending the Transcripts (1) When the clerk and reporter’s transcripts are certified as correct, clerk must promptly send:

(a) The original transcripts to the reviewing court, noting the sending date on each original;

(b) One copy of each transcript to appellate counsel for each defendant represented by separate counsel and to the Attorney General or the district attorney, whichever is counsel for the People on appeal; and

(c) On request, the clerk must prepare an extra copy for the district attorney or the Attorney General, whichever is not counsel for the People on appeal.

(2) If the defendant is not represented by appellate counsel when the transcripts are certified as correct, the clerk must send that defendant’s counsel’s copy to the district appellate project.

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G. Probation Officer’s Report

The probation officer’s report must be included in the clerk’s transcript under 8.320(b) and must appear in all copies of the appellate record. The reviewing court’s copy of the report must be placed in a sealed envelope marked “Confidential—May Not be Examined Without Court Order—Probation Officer’s Report.”

AUGMENTING OR CORRECTING THE RECORD IN THE COURT OF APPEAL (CRC 8.340)

A. Subsequent Trial Court Orders

If, after the record is certified, the trial court amends or recalls the judgment or makes any other court order in the case, including an order affecting the sentence or probation, the clerk must promptly certify and send a copy of the amended abstract of judgment or other order—as an augmentation of the record—to the reviewing court, the probation officer, the defendant, the defendant’s appellate counsel, and the attorney general.

B. Omissions

If, after the record is certified, the superior court clerk or the reporter learns that the record omits a document or transcript that any rule or order requires included, the clerk must promptly copy and certify the document, or reporter must promptly prepare and certify the transcript. Without the need for a court order, the clerk must promptly send the document or transcript—as an augmentation of the record—to the reviewing court, the defendant’s appellate counsel (or district appellate project if no defense counsel), and the attorney general.

C. Augmentation or correction by the reviewing court

At any time, on motion of a party or on its own motion, the reviewing court may order the record augmented or corrected as provided in rule 8.155. The clerk must send a copy of the record to all those listed in 8.340(a).

D. Defendant not yet represented

If the defendant is not represented by appellate counsel when the record is augmented or corrected, the clerk must send that defendant’s counsel’s copy of the augmentations or corrections to the district appellate project.

AGREED STATEMENT (CRC 8.344) If the parties present the appeal on an agreed statement, they must comply with the relevant portions of rule 8.134, but the appellate must file an original and three copies of the statement in superior court within 25 days after filing the notice of appeal.

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SETTLED STATEMENT (CRC 8.346)

A. Application As soon as a party learns that any portion of the oral proceedings cannot be transcribed, the party may serve and file in superior court an application for permission to prepare a settled statement, explaining why the oral proceedings cannot be transcribed. B. Order and proposed statement

The judge must rule on the application within five days after it is filed. If the judge grants the application, the parties must comply with the relevant provisions of rule 8.137, but the applicant must deliver a proposed statement to the judge for settlement within 30 days after it is ordered, unless the reviewing court extends the time. C. Serving and filing the settled statement

The applicant must prepare, serve, and file in superior court an original and three copies of the settled statement.

BRIEFS (CRC 8.360)

A. Contents and form

Except as provided in this rule, briefs must comply as nearly as possible with rules 8.200 and 8.204.

B. Length

The length of a brief must comply with rule 8.360(b) or on application, the presiding justice may permit a longer brief for good cause.

C. Time to file

(1) The appellant’s opening brief must be served and filed within 40 days after the record is filed in the reviewing court.

(2) The respondent’s brief must be served and filed within 30 days after the appellant’s opening brief is filed.

(3) The appellant must serve and file a reply brief, if any, within 20 days after the respondent files its brief.

(4) The time to serve and file a brief may not be extended by stipulation, but only by order of the presiding justice under CRC 45 rule 8.60. .

(5) CRC 17 Rule 8.220 applies if a party fails to timely file an appellant’s opening brief or a respondent’s brief. The reviewing court clerk must promptly notify the party by mail that the brief must be filed within 30 days after the notice is mailed, and that failure to comply may result in sanctions.

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D. Service (1) Defendant’s appellate counsel must serve each brief for the defendant on the people and the

district attorney, and must send a copy of each to the defendant personally unless the defendant requests otherwise, with proof of service indicating either the service on the defendant or the defendant requested in writing that no copy be sent.

(2) For each appealing defendant, the people must service serve two copies of their briefs on

the defendant’s appellate counsel and one copy on the district appellate project. (3) A copy of each brief must be served on the superior court clerk for delivery to the trial

judge. E. When a Defendant and the People appeal

When both the defendant and the people appeal, the defendant must file the first opening brief unless the reviewing court orders otherwise, and rule 8.216(b) governs the contents of the briefs.

F. Amicus Curiae Briefs

Amicus curiae briefs may be filed as provided in rule 8.200(c).

JUDICIAL NOTICE, FINDINGS, AND EVIDENCE ON APPEAL ( CRC 8.252)

A. Judicial Notice

To obtain judicial notice by a reviewing court under EC 459, a party must serve and file a separate motion with a proposed order. If the matter to be noticed is not in the record, the party must serve and file a copy with the motion, or explain why it is not practicable to do so. B. Findings on appeal

A party may move that the reviewing court make findings under CCP 909. The motion must include proposed findings. C. Evidence on appeal

A party may move that the reviewing court take evidence. An order granting the motion must state the issues on which evidence may be taken; specify whether the court, a justice, or a special master or referee will take the evidence; and give notice of the time and place for taking of the evidence. For documentary evidence, a party may offer the original, a certified copy, or a photocopy. The Court may admit the document in evidence without a hearing.

ORAL ARGUMENT AND SUBMISSION OF THE CAUSE (CRC 8.256)

A. Notice of Argument

The Court of Appeal clerk must send a notice of the time and place of oral argument to all parties at least 20 days before the argument date. The presiding justice may shorten the notice period for good cause; in that event, the clerk must immediately notify the parties by telephone or other expeditious method.

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B. Conduct of Argument

Unless the court provides otherwise by local rule or order, the appellant, petitioner, or moving party has the right to open and close argument. If there are two or more such parties, the Court must set the sequence of argument. Each side is allowed 30 minutes for argument. If multiple parties are represented by separate counsel, or if an amicus curiae—on written request—is granted permission to argue, the Court may apportion or expand the time. Only one counsel may argue for each separately represented party.

C. When the Cause is Submitted

(1) A cause is submitted when the Court has heard oral argument or approved its waiver and the time has expired to file all briefs and papers, including any supplemental brief permitted by the Court.

(2) If the Supreme Court transfers a cause to the Court of Appeal and supplemental briefs may be filed under rule 8.200(b), the cause is submitted when the last such brief is or could be timely filed. The Court of Appeal may order the cause submitted at an earlier time if the parties so stipulate.

D. Vacating Submission

If the Supreme Court transfers a cause to the Court of Appeal, an order setting oral argument vacates submission, and the cause is resubmitted when the Court has heard oral argument or approved its waiver. On all other causes, the Court may vacate submission only by an order stating its reasons and setting a timetable for resubmission.

FILING, FINALITY, AND MODIFICATION OF THE DECISION (CRC 8.264, 8.366)

A. Filing the Decision

(1) The Court of Appeal clerk must promptly file all opinions and orders of the Court and promptly send copies showing the filing date to the parties, and when relevant, to the lower court or tribunal.

(2) A decision by opinion must identify the participating justices, including the author of the majority opinion and of any concurring or dissenting opinion, or the justices participating in a “by the court” opinion.

B. Finality of Decision

(1) Except as otherwise provided within this rule, a Court of Appeal decision, including an order dismissing an appeal involuntarily, is final in that court 30 days after filing. The following Court of Appeal decisions are final in that court upon filing:

(a) The denial of an application for bail or to reduce bail pending appeal; and (b) The dismissal of an appeal on request or stipulation.

(2) If a Court of Appeal certifies its opinion for publication or partial publication after filing its decision and before its decision becomes final in that court, the finality period runs from the filing date of the order for publication.

(3) If an order modifying an opinion changes the appellate judgment, the finality period runs from the filing date of the modification order.

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REHEARING (CRC 8.268)

A. Power to Order Rehearing (1) On a petition of a party or on its own motion, a reviewing court may order rehearing of any

decision that is not final in that court on filing. (2) An order for rehearing must be filed before the decision is final. If the clerk’s office is

closed on the date of finality, the court may file the order on the next day the clerk’s office is open.

B. Petition and Answer

(1) A party may serve and file a petition for rehearing within 15 days after:

(a) The filing of the decision;

(b) A publication order restarting the finality period under 8.264(b)(3), if the party has not already filed a petition for rehearing; or

(c) A modification order changing the appellate judgment under rule 8.264(c)(2); or

(d) The filing of a consent under rule 8.264(d).

(2) A party must not file an answer to a petition for rehearing unless the court requests an answer. The clerk must promptly send to the parties copies of any order requesting an answer and immediately notify the parties by telephone or another expeditious method. Any answer must be served and filed within eight days after the order is filed unless the court orders otherwise. A petition for rehearing normally will not be granted unless the court has requested an answer.

(3) The petition and answer must comply with the relevant portions of rule 8.204. (4) Before the decision is final and for good cause, the presiding justice may relieve a party

from a failure to file a timely petition or answer.

C. No Extension of Time The time for granting or denying a petition for rehearing in the Court of Appeal may not be extended. If the court does not rule on the petition before the decision is final, the petition is deemed denied. D. Effect of Granting Rehearing An order granting a rehearing vacates the decision and any opinion filed in the case and sets the cause at large in the Court of Appeal.

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REMITTITUR (CRC 8.272)

A. Issuance of remittitur A Court of Appeal must issue a remittitur after a decision in an appeal. B. Clerk’s Duties (1) If a Court of Appeal decision is not reviewed by the Supreme Court:

(a) The Court of Appeal clerk must issue a remittitur immediately after the Supreme Court denies review, or the period for granting review expires, or the Court dismisses review under rule 8.528(b); and

(b) The clerk must send the lower court or tribunal the Court of Appeal remittitur and a

file-stamped copy of the opinion or order.

(2) After Supreme Court review of a Court of Appeal Decision. (a) On receiving the Supreme Court remittitur, the Court of Appeal clerk must issue a

remittitur immediately if there will be no further proceedings in the Court of Appeal, and

(b) The clerk must send the lower court or tribunal the Court of Appeal remittitur, a copy

of the Supreme Court remittitur, and a file-stamped copy of the Supreme Court opinion or order.

C. Immediate Issuance, Stay, and Recall

(1) A Court of Appeal may direct immediate issuance of a remittitur only on the parties’

stipulation or on dismissal of the appeal under rule 8.244(c)(2). (2) On a party’s or its own motion or on stipulation, and for good cause, the court may stay a

remittitur’s issuance for a reasonable period or order its recall. (3) An order recalling a remittitur issued after a decision by opinion does not supersede the

opinion or affect its publication status.

D. Notice

(1) The remittitur is deemed issued when the clerk enters it in the record. The clerk must immediately send the parties notice of issuance of the remittitur, showing the date of entry.

(2) If, without requiring further proceedings in the trial court, the decision changes the length of a state prison sentence, applicable credits, or the maximum permissible confinement to the Department of Corrections and Rehabilitation, Division of Juvenile Justice, the clerk must send a copy of the remittitur and opinion of order to either the Department of Corrections or the Division of Juvenile Justice.

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Chapter 1103

APPEALS TO THE SUPREME COURT

OVERVIEW Although most court clerks will never encounter an appeal to the Supreme Court, this chapter is intended to provide a very brief overview of the process, and is not intended to provide detailed processing guidelines. It is suggested the California Rules of Court, Local Rules of Court, and other references available to the reader be consulted for additional information. If a judgment imposes a sentence of death, an appeal by the defendant is automatically taken to the Supreme Court. (CRC 8.600)

PETITION FOR REVIEW (CRC 8.500) Right to file a Petition, Answer, or Reply In general, there are two main types of appeals to the Supreme Court. A party may file a petition in the Supreme Court for review of any decision of the Court of Appeal including any interlocutory order, except the denial of a transfer of a case within the appellate jurisdiction of the superior court. A party may file an answer responding to the issues raised in the petition. In the answer, the party may request the court review additional issues if the Supreme Court grants a review, and the petitioner has an opportunity to respond to the answer. Grounds for Review The Supreme Court may order review of a Court of Appeal decision (1) when necessary to secure uniformity of decision or to settle an important question of law; (2) when the Court of Appeal lacked jurisdiction; (3) when the Court of Appeal decision lacked the concurrence of sufficient qualified justices; or (4) for the purpose of transferring the matter to the Court of Appeal for such proceedings as the Supreme Court may order. Limits of Review As a policy matter, on petition for review the Supreme Court will not consider an issue that the petitioner failed to timely raise in the Court of Appeal. A party may petition for review without petitioning for rehearing in the Court of Appeal, but as a policy matter the Supreme Court normally will accept the Court of Appeal’s opinion’s statement of the issues and facts unless the party has called the Court of Appeal’s attention to any alleged omission or misstatement of an issue or fact in a petition for rehearing. Additionally, the Supreme Court may order review, in appropriate cases, not to decide the case itself but for the purpose of transferring the case to the Court of Appeal with instructions to conduct certain further proceedings (e.g. with instructions to issue an alternative writ or order to show cause returnable before the Court of Appeal or the superior court).

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Petitions in Nonconsolidated Proceedings If the Court of Appeal decides an appeal and denies a related petition for writ of habeas corpus without issuing an order to show cause and without formally consolidating the two proceedings, a party, seeking review of both decisions, must file a separate petition for review in each proceeding. Time for Filing Appeal A petition for review of a Court of Appeal decision must be served and filed within 10 days after the Court of Appeal decision is final in that court under CRC 8.264. The Court of Appeal decision becomes final 30 days after the filing of the decision. There are specific exceptions to this rule, which become “final” upon filing: 1. The denial of a petition for writ within the court’s original jurisdiction without issuance of an

alternative writ or order to show cause; 2. The denial of a petition for writ of supersedes; 3. The denial of an application for bail or to reduce bail pending appeal; 4. The denial of a transfer of a case within the appellate jurisdiction of the superior court; and 5. The dismissal of an appeal on request or stipulation.

A Court of Appeal may order early finality in that court of a decision granting a petition for a writ within its original jurisdiction or denying such a petition after issuing an alternative writ or order to show cause. The decision may provide for finality in that court on filing or within a stated period of less than 30 days. A Court of Appeal decision denying a petition for writ of habeas corpus without issuing an order to show cause is final in that court on the same day that its decision in a related appeal is final if the two decisions are filed on the same day. If the Court of Appeal orders rehearing of the decision in the appeal, its decision denying the petition for writ of habeas corpus is final when its decision on rehearing is final. Additionally, if a Court of Appeal certifies its opinion for publication or partial publication after filing its decision and before its decision becomes final in that court, the finality period runs from the filing date of the order for publication. (CRC 8.264 ) The reviewing court may modify a decision until the decision becomes final in that court. If the clerk’s office is closed on the date of finality, the court may modify the decision on the next day the clerk’s office is open. An order modifying an opinion must state whether it changes the appellate judgment. A modification that does not change the appellate judgment does not extend the finality date of the decision. If a modification changes the appellate judgment, the finality period runs from the filing date of the modification order. (CRC 8.264)

For purposes of CRC 8.500, the date of finality is not extended if it falls on a day on which the clerk’s office is closed. The time to file a petition for review may not be extended, but the Chief

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Justice may relieve a party from a failure to file a timely petition for review if the time for the court to order review on its own motion has not expired. If a petition for review is presented for filing before the Court of Appeal decision is final in that court, the Supreme Court clerk must accept it and file it on the day after finality. Any answer to the petition must be served and filed within 20 days after the petition is filed. Any reply to the answer must be served and filed within 10 days after the answer is filed. Proofs of service must name each party represented by each attorney served. The petition must also be served on the superior court clerk and the Court of Appeal clerk. A copy of each brief must be served on a public officer or agency when required by statute or by CRC 8.29. And, the Supreme Court clerk must file the petition even if its proof of service is defective, but if the petitioner fails to file a corrected proof of service within five days after the clerk gives notice of the defect, the court may strike the petition or impose a lesser sanction. Amicus Curiae Letters Any person or entity wanting to support or oppose a petition for review or for an original writ must serve on all parties and send to the Supreme Court an amicus curiae letter rather than a brief. The letter must describe the interest of the amicus curiae. Any matter attached to the letter or incorporated by reference must comply with CRC 8.504(e). Receipt of the letter does not constitute leave to file an amicus curiae brief on the merits under CRC 8.520(f) . FORM AND CONTENTS OF PETITION, ANSWER, AND REPLY (C RC 8.504) Except as provided in this rule, a petition for review, answer, and reply must comply with the relevant provisions of CRC 8.204 Contents of a Petition The contents of the petition must begin with a concise, nonargumentative statement of the issues presented for review, framing them in terms of the facts of the case but without unnecessary detail. The petition must explain how the case presents a ground for review under CRC 8.500(b) If a petition for rehearing could have been filed in the Court of Appeal, the petition for review must state whether it was filed and, if so, how the court ruled. If the petition seeks a review of a Court of Appeal opinion, a copy of the opinion showing its filing date and a copy of any order modifying the opinion or directing its publication must be attached as specified in this rule. Additional requirements are set forth in this rule. CRC 8.204 is very specific as to the form, length, and attachments to the briefs. If a brief does not comply with this rule, (1) the reviewing court clerk may decline to file it, but must mark it ‘received but not filed” and return it to the party, or (2) if the brief is filed, the reviewing court may, on its own or a party’s motion, with or without notice (A) order the brief returned for corrections and refiling within a specified time; (B) strike the brief with leave to file a new brief within a specified time; or (C) disregard the noncompliance.

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Contents of an Answer An answer that raises additional issues for review must contain a concise, nonargumentative statement of those issues, framing them in terms of the facts of the case but without unnecessary details. Length, attachments, and incorporation by reference are further discussed in this rule. ORDERING REVIEW (CRC 28.2) Transmittal of the Record On receiving a copy of a petition for review, or on request of the Supreme Court, whichever is earlier, the Court of Appeal clerk must promptly send the record to the Supreme Court. If the petition is denied, the Supreme Court clerk must promptly return the record to the Court of Appeal. Determination of the Petition The court may order review within 60 days after the last petition for review is filed. Before this 60-day period or any extension expires, the court may order one or more extensions to a date not later than 90 days after the last petition is filed. If the court does not rule on the petition within this time period, the petition is deemed denied. Review on the Court’s Own Motion The Supreme Court may, on its own motion when no petition for review is filed, order review of a Court of Appeal decision either within 30 days after the decision is final in that court, or before any extension expires. Before the 30-day period expires, the Supreme Court may order one or more extensions to a date not later than 90 days after the decision is final in the Court of Appeal. If a petition for review is filed, the Supreme Court may deny the petition, but order review on its own motion within these time periods. If any such period described above falls on a day that the clerk’s office is closed, the court may order review on its own motion on the next day the clerk’s office is open. Order Granting Review An order granting review must be signed by at least four justices; an order denying review may be signed by the Chief Justice alone. On or after granting review, the court may order action in the matter deferred until the court disposes of another matter or pending further order of the court.

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ISSUES ON REVIEW (CRC 8.516) Issues to be Briefed and Argued On or after ordering review, the Supreme Court may specify the issues to be briefed and argued. Unless the Court orders otherwise, the parties must limit their briefs and arguments to those issues and any issues fairly included in them. Notwithstanding an order specifying the issues, the Court may, on reasonable notice, order oral argument on fewer or additional issues, or on the entire cause. Issues to be Decided The Supreme Court may decide any issues that are raised or fairly included in the petition or answer. The court may decide an issue that is neither raised nor fairly included in the petition or answer if the case presents the issue and the court has given the parties reasonable notice and opportunity to brief and argue it. The court need not decide every issue the parties raise or the court specifies. BRIEFS BY PARTIES AND AMICI CURIAE, AND JUDICIAL NO TICE (CRC 8.520) Parties’ Briefs; Time to File Within 30 days after the Supreme Court files the order of review, the petitioner must serve and file in that court either an opening brief on the merits or the brief it filed in the Court of Appeal. Within 30 days after the petitioner files its brief, or the time to do so has expired, the opposing party must serve and file an answer brief on the merits or the brief it filed in the Court of Appeal. The petitioner may file a reply brief or the reply brief it filed in the Court of Appeal, within 20 days after the opposing party files its brief. If a party files the brief it used in the Court of Appeal, it must attach to the cover a notice of its intent to rely on that brief in the Supreme Court. The time to serve and file a brief may not be extended by stipulation, but only by order of the Chief Justice under CRC 8.60. The Court may designate which party is deemed the petitioner or otherwise direct the sequence in which the parties must file their briefs. Form and Content All briefs filed under this rule must comply with the relevant portion of CRC 8.204. CRC 8.520(b) and (c) specifies the form and content of the briefs. Supplemental Briefs A party may file a supplemental brief limited to new authorities, new legislation, or other matters that were not available in time to be included in the party’s brief on the merits. A supplemental brief must comply with CRC 8.520(d), and must be served and filed no later than 10 days before oral argument. The court may request additional briefs on any or all issues, whether or not the parties have filed briefs on the merits.

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Amicus Curiae Briefs After the court orders review, but no later than 30 days after all briefs that the parties may file under this rule (other than supplemental briefs) have been filed or were required to be filed, an application for permission of the Chief Justice to file an amicus curiae brief may be served and filed, with the proposed amicus curiae attached or combined with the application. (The Chief Justice may allow later filing if the applicant shows specific and compelling reasons for the delay.) The application must state the applicant’s interest and explain how the proposed amicus curiae brief will assist the court in deciding the matter. The covers of the application and proposed brief must identify the party the applicant supports, if any. If the Court grants the application, any party may file an answer within 20 days after the amicus curiae is filed. It must be served on all parties and the amicus curiae. The attorney general may file an amicus curiae brief without the Chief Justice’s permission, unless the brief is submitted on behalf of another state officer or agency. The attorney general must serve and file the brief within the above-stated requirements. Judicial Notice To obtain judicial notice by a reviewing court under EC 459, a party must serve and file a separate motion with a proposed order. If the matter to be noticed is not in the record, the party must serve and file a copy with the motion or explain why it is not practicable to do so. (CRC 8.252(a)) ORAL ARGUMENT AND SUBMISSION OF THE CAUSE (CRC 8.524) Application and Place CRC 8.524 governs oral argument in the Supreme Court unless the court provides otherwise in its Internal Operating Practices and Procedures or by order. The Supreme Court holds its sessions in San Francisco, Los Angeles, and Sacramento on a schedule fixed by the court, and may hold special sessions elsewhere. Notice of Argument The Supreme Court clerk must send notice of the time and place of oral argument to all parties at least 20 days before the argument date. The Chief Justice may shorten the notice period for good cause; in that event, the clerk must immediately notify the parties by telephone or other expeditious method. Sequence and Time

The sequence of the oral argument is as follows:

1. The petition for the relief has the right to open and close.

2. If there are two or more petitioners (or none, as exists when the Court grants review on its own motion or transfers a cause to itself on its own motion), the Court must set the sequence of argument.

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3. Each side is allowed 30 minutes for argument. Only one counsel on each side may argue, regardless of the number of parties on the side, unless the court orders otherwise on request. Requests to divide oral argument among multiple counsel must be filed within 10 days after the date of the order setting the case for argument. However, multiple counsel must not divide their argument into segments of less than 10 minutes per person, except that one counsel for the opening side (or more, if authorized by the Chief Justice on request) may reserve any portion of that counsel’s argument time for rebuttal.

4. An amicus curiae is not entitled to argument time but may ask a party for permission to

use a portion or all of the party’s time, subject to the 10-minute minimum prescribed above. If permission is granted, counsel must file a request as indicated above.

Submission of the Cause A cause is submitted when the court has heard oral argument or approved its waiver and the time has expired to file all briefs and papers, including any supplemental brief permitted by the court. The court may vacate submission only by an order stating the court’s reasons and setting a timetable for resubmission. DISPOSITION OF CAUSES (CRC 8.528)

After review, the Supreme Court normally will affirm, reverse, or modify the judgment of the Court of Appeal. However, other dispositions may include: 1. Dismissal of review: The Supreme Court clerk must promptly send an order dismissing

review to all parties and the Court of Appeal. Upon receipt of the dismissal of review, the decision of the Court of Appeal is final and the clerk must immediately issue a remittitur or take other appropriate action. The Court of Appeal opinion remains unpublished unless the Supreme Court orders otherwise.

2. Remand for decision on remaining issues: The Supreme Court may remand the cause to a

Court of Appeal for decision on any remaining issues when the Supreme Court decides fewer than all the presented issues.

3. Transfer without decision: The Supreme Court may transfer a cause to the Court of

Appeal without decision but with instructions to conduct such proceedings as the Supreme Court orders.

4. Retransfer without decision: After transferring a cause pending in the Court of Appeal to

itself (without a petition for review filed by one of the parties), before decision, the Supreme Court may retransfer the cause to a Court of Appeal without decision.

Any supplemental briefing in the Court of Appeal after remand or transfer from the Supreme Court is governed by CRC 8.200(b).

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FILING, FINALITY, AND MODIFICATION OF DECISION (CRC 8.532) The Supreme Court clerk must promptly file all opinions and orders issued by the court and promptly send copies showing the filing date to the parties and, when relevant, to the lower court or tribunal. The following Supreme Court decisions are final upon filing: 1. The denial of a petition for review of a Court of Appeal decision; 2. A disposition ordered under CRC 8.528(b), (d), or (e); 3. The denial of a petition for writ within the court’s original jurisdiction without issuance of an

alternative writ or order to show cause; and 4. The denial of a petition for writ of supersedeas. All other Supreme Court decisions are final 30 days after filing unless the court orders a shorter period, or before the 30-day period or any extensions, not to exceed a total of 60 additional days. The Supreme Court may modify a decision as proved in CRC 8.264(c). REHEARING (CRC 8.536) The Supreme Court may order a rehearing as provided in CRC 8.268(a). A petition for rehearing and any answer must comply with CRC 8.268(b)(1) and (3). Any answer to the petition must be served and filed within eight days after the petition is filed. Before the Supreme Court decision is final and for good cause, the Chief Justice may relieve a party from failure to file a timely petition or answer. The time for granting or denying a petition for rehearing in the Supreme Court may be extended under CRC 8.532(b)(1)(B). If the court does not rule on the petition before the decision is final, the petition is deemed denied. Any order granting a rehearing must be signed by at least four justices; an order denying rehearing may be signed by the Chief Justice alone. An order granting a rehearing vacates the decision and any opinion filed in the case and sets the cause at large in the Supreme Court. REMITTITUR (CRC 8.540) Proceedings Requiring Issuance of Remittitur The Supreme Court must issue a remittitur after a decision in:

1. A review of a Court of Appeal decision;

2. An appeal from a judgment of death or in a cause transferred to the court under CRC 29.9; or

3. An original proceeding, except when the Court denies a writ petition without issuing an alternative writ or order to show cause.

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Clerk’s Duties The clerk must issue a remittitur when a decision of the court is final, and the remittitur is deemed issued when the clerk enters it in the record. After review of a Court of Appeal decision, the Supreme Court clerk must address the remittitur to the Court of Appeal and send that court two copies of the remittitur and two file-stamped copies of the Supreme Court opinion or order. After a decision in an appeal from a judgment of death, in an original proceeding in the Supreme Court, or in a cause transferred to the court under CRC 8.552, the clerk must send the remittitur and a file-stamped copy of the Supreme Court opinion or order to the lower court or tribunal. The clerk must comply with the requirements of CRC 8.272(d). Immediate Issuance, Stay, and Recall The Supreme Court may direct immediate issuance of a remittitur on the parties’ stipulation or for good cause. On a party’s or its own motion and for good cause, the Court may stay a remittitur’s issuance for a reasonable period or order its recall. An order recalling a remittitur issued after a decision by opinion does not supersede the opinion or affect its publication status. DECISION ON REQUEST OF A COURT OF ANOTHER JURISDICT ION (CRC 8.548) On request of the United States Supreme Court, a United States Court of Appeals, or the court of last resort of any state, territory, or commonwealth, the Supreme Court may decide a question of California law if the decision could determine the outcome of a matter pending in the requesting court, and there is no controlling precedent. The form and content of such a request are found in CRC 8.548(b) and (c). At any time, the Supreme Court may ask the requesting court to furnish additional record materials, including transcripts and exhibits. The requesting court clerk must file an original and 10 copies of the request in the Supreme Court with a certificate of service on the parties. Within 20 days after the request is filed, any party or other person or entity wanting to support or oppose the request must send a letter to the Supreme Court with service on the parties and the requesting court. Within 10 days after service of this letter, any party may send a reply letter to the Supreme Court with service on the other parties, including the requesting court. In exercising its discretion to grant or deny the request, the Supreme Court may consider whether resolution of the question is necessary to secure uniformity of decision or to settle an important question of law, and any other factor the court deems appropriate. An order granting the request must be signed by at least four justices; the Chief Justice alone may sign an order denying the request. If the Court grants the request, the rules of review and decision in the Supreme Court governs further proceedings in that court. If, after granting the request, the Court determines that a question may require interpretation of the California constitution, or a decision on the validity or meaning of a California law affecting the public interest, the court must direct the clerk to send to the attorney general (unless the attorney general represents a party to the litigation) a copy of the request and the order granting it. At any time, the Supreme Court may restate the

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question or ask the requesting Court to clarify the question. A letter or reply asking the court to restate the question must propose new wording. After filing the opinion, the clerk must promptly send file-stamped copies to the requesting court and the parties, and must notify the court and the parties when the decision is final. Supreme Court decisions pursuant to this rule are published in the Official Reports and have the same precedential effect as the court’s other decisions.

TRANSFER FOR DECISION (CRC 8.552) On a party’s petition or its own motion, the Supreme Court may transfer to itself, for decision, a cause pending in a Court of Appeal. For purposes of CRC 8.552, a cause within the appellate jurisdiction of the superior court is not pending in the Court of Appeal until that court orders it transferred under CRC 8.1002. Any cause pending in the Court of Appeal remains pending until the decision of the Court of Appeal is final in that court under CRC 8.264. The Supreme Court will not order transfer under CRC 8.552 unless the cause presents an issue of great public importance that the Supreme Court must promptly resolve. Any party seeking transfer under CRC 8.552 must promptly serve and file in the Supreme Court a petition explaining how the cause satisfies the requirements mentioned above. Within 20 days after the petition is filed, any party may serve and file an answer. The petition and any answer must conform to the relevant provisions of CRC 8.504. Transfer under this rule requires a Supreme Court order signed by at least for justices; the Chief Justice alone may sign an order denying transfer. PETITIONS FOR REVIEW TO EXHAUST STATE REMEDIES (CR C 8.508) A defendant may file an abbreviated petition for review in the Supreme Court for the sole purpose of exhausting state remedies before presenting a claim for federal habeas corpus relief. (CRC 8.508(a)) The words “Petition for Review to Exhaust State Remedies” must appear prominently on the cover of the petition. The petition must comply with CRC 8.504, unless the petition includes (a) a statement that the case presents ground for review under CRC 8.500(b) and the petition is filed solely to exhaust state remedies for federal habeas corpus purposes; (b) a brief statement of the underlying proceedings including he nature of the conviction and the punishment imposed; and (c) a brief statement of the factual and legal bases of the claim. The petition must be served on the Court of Appeal clerk but need not be served on the superior court clerk.

APPEALS FROM JUDGMENT OF DEATH – AUTOMATIC APPEAL (CRC 8.600) If a judgment imposes a sentence of death, an appeal by the defendant is automatically taken to the Supreme Court. When a judgment of death is rendered, the superior court clerk must immediately send certified copies of the commitment to the Supreme Court, the attorney general, the governor, and the California Appellate Project in San Francisco. (CRC 8.600)

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When a rule in this part authorizes a trial court to grant an extension of a specified time period, the Court must consider relevant policies and factors stated in CRC 8.63. The Supreme Court clerk, under the supervision of the Chief Justice, must take all appropriate steps to ensure that superior court clerks and reporters promptly perform their duties under the rules in this part. This provision does not affect the superior courts’ responsibility for the prompt preparation of appellate records in capital cases. For the purposes of this section, the delivery date of a transcript sent by mail is the mailing date plus five days and “trial counsel” means both the defendant’s trial counsel and the prosecuting attorney. STAYS OF EXECUTION (CRC, POLICY 1) The Supreme Court will consider a motion for a stay of execution only if such motion is made in connection with a petition for a writ of habeas corpus filed in the Supreme Court, or to permit certiorari review by the United States Supreme Court. ADDITIONAL INFORMATION Please refer to Criminal Procedures Manual, Section 800, Death Penalty, for additional instructions.

Chapter 1104

WRIT DEFINITIONS

PETITION FOR WRIT OF HABEAS CORPUS Initially the purpose of the Habeas Writ was limited to releasing a person imprisoned or restrained as a result of a void proceeding or jurisdictional defect. The Writ of Habeas Corpus has expanded over the years and is available to correct arbitrary actions by governmental authority. It is only for correction of “fundamental jurisdictional or constitutional type” errors. Filing of Petition of Writ of Habeas Corpus shall be filed on Judicial Council Form MC-275. (See CRC 2.100-2.119 and PC 1474). Claims not within the scope of Habeas Corpus remedy:

1. Admissibility of Evidence.

2. Criminal Complaint or Information.

3. Newly discovered evidence (unless the “new” evidence casts fundamental doubt on the accuracy and reliability of the proceedings. The “new” evidence must undermine the ENTIRE prosecution case and point unerringly to innocence or reduce culpability.)

4. Procedural Errors.

5. Re-litigation of Factual Matters.

6. Search/Seizure Claims.

7. Sufficiency of the Evidence.

PETITION FOR WRIT OF ERROR CORAM NOBIS

When a defendant seeks to attach a judgment in the trial court, the request for relief can be entitled either a motion to vacate or a Petition for Writ of Error Coram Nobis. The Writ of Coram Nobis is granted where the petitioner meets three requirements:

1. Some facts existed which, without any fault or negligence on the part of petition, was not presented to the court during the trial on the merits, and if presented, would have prevented the rendition of the judgment;

2. The “newly discovered evidence” does not go to the merits of the issues tried (as issues

of fact, even if incorrectly adjudicated, cannot be re-opened except on a motion for new trial); and

3. The facts upon which petitioner relies were not known to him and could not have been discovered with the exercise of due diligence at any time substantially earlier than at the time of seeking the writ.

CR (Rev.2014) 1100 - 41

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PETITION FOR WRIT OF CERTIORARI; WRIT OF REVIEW This writ challenges orders from a court, board or other tribunal exercising judicial functions, cannot be sought from an appealable order; not a writ of error, normally writs on contempt citations or administrative decisions. PETITION FOR WRIT OF PROHIBITION This writ addresses a threatened or incomplete action. The Writ of Prohibition would be proper to redress questions of double jeopardy, a judge’s refusal of a request for disqualification, or discovery request that invades a privilege. PETITION FOR WRIT OF MANDAMUS (MANDATE) This writ is used to correct an abuse of discretion or to compel an inferior court to act where there is a mandatory duty to do so. PETITION FOR WRIT OF SUPERSEDEAS This is a stay or injunction issued by an appellate court to maintain the status quo during the pendency of an appeal. Writ of Supersedeas would be proper in situations where an appeal would be moot unless a stay is in effect.

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Chapter 1105

RECEIVING AND PROCESSING MISCELLANEOUS WRITS

OVERVIEW For all petitions for extraordinary relief in limited civil, misdemeanor and infraction cases which name the superior court as the respondent, wherever the local rules of court do not apply specific guidance regarding the proper writ petition procedures, the provision of the California Rules of Court, Title II Appellate Rules, shall apply. PROCEDURE Immediately upon receipt, review the petition to ensure it has been properly filed at the correct jurisdiction (CRC 4.552). The petition for Writ of Habeas Corpus should be processed, pursuant to PC 1473, at the superior court where the underlying criminal case(s) is filed, or where the judge that heard the underlying case(s) is assigned. Except as provided in CRC 4.551(2), Judicial Council form MC-275 must be used. Petitions for a miscellaneous writ should be filed by jurisdiction. Upon acceptance of the petition, the clerk shall file stamp and initial in the top right hand corner of the face page on the original and all copies. When required, record the date of receipt and assign a case number to the petition from the master log. On filing a Writ of Habeas Corpus, the clerk of the court must immediately deliver the petition to the presiding judge or his or her designee. The court must rule on a petition for writ of habeas corpus within 60 days after the petition is filed. (CRC 4.551(a)(3)(A)) Return one copy of the petition to the filing attorney and/or petitioner. The clerk shall route forthwith the original petition/writ and all associated documents to the assigned criminal research attorney or judicial officer, as dictated by local court practice. Any and all court correspondence or orders shall be mailed forthwith with a certificate of mailing. Original court orders are retained with the original petition. Each party listed in the order shall be served a certified copy. When no parties are listed in the order, the petitioner and/or his attorney shall receive a certified copy. Orders may include:

1. Order Extending Time (Court’s own motion). 2. Order Denying Petition 3. Order to Show Cause 4. Order Extending Time for Parties to file a Response/Traverse 5. Order Setting Hearing/Transporting the Petitioner 6. Order Denying a Petition after an OSC Hearing 7. Order Granting the Petition 8. Order for Transfer/Change of Venue

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COSTS Costs for processing petitions may be covered under PC 4750, PC 6005 or WI 4117. Attach a reimbursement form to the original file. After the petition is closed, the reimbursement form shall be forwarded to accounting. The reimbursement form must track date, employee name, department, employee classification, time, and the type of activity performed:

1. Preparation for Trial 2. Pre-trial Hearing 3. Actual Trial or Hearing 4. Investigation 5. Writ of Habeas Corpus 6. Transportation of Patients

MISCELLANEOUS WRITS OF REVIEW

Review of Workers' Compensation Appeals Board cases (CRC 8.495) A petition to review an order, award, or decision of the Workers' Compensation Appeals Board must include the order, award, or decision to be reviewed and the workers' compensation judge's minutes of hearing and summary of evidence, findings and opinion on decision, and report and recommendation on the petition for reconsideration.

The petition must be accompanied by proof of service of two copies of the petition on the Secretary of the Workers' Compensation Appeals Board in San Francisco and one copy on each party who appeared in the action and whose interest is adverse to the petitioner. Service on the board's local district office is not required.

Review of Public Utilities Commission cases (CRC 8.496)

A petition to review an order or decision of the Public Utilities Commission must be verified and must be served on the executive director and general counsel of the commission and any real parties in interest.

A real party in interest is one who was a party of record to the proceeding and took a position adverse to the petitioner.

Review of Agricultural Labor Relations Board and Public Employment Relations Board cases (CRC 8.498)

A petition to review an order or decision of the Agricultural Labor Relations Board or the Public Employment Relations Board must be filed in the Court of Appeal and served on the executive secretary of the Agricultural Labor Relations Board or the general counsel of the Public Employment Relations Board in Sacramento and on any real parties in interest. The petition must be verified.

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Writ of supersedeas (CRC 8.824)

A party seeking a stay of the enforcement of a judgment or order pending appeal may serve and file a petition for writ of supersedeas in the appellate division. The petition must bear the same title as the appeal and must explain the necessity for the writ and include a memorandum. The petition must be verified

If the record has not been filed in the reviewing court:

(A) The petition must include a statement of the case sufficient to show that the petitioner will raise substantial issues on appeal, including a fair summary of the material facts and the issues that are likely to be raised on appeal.

(B) The petitioner must file the following documents with the petition:

(1) The judgment or order, showing its date of entry;

(2) The notice of appeal, showing its date of filing;

(3) A reporter's transcript of any oral statement by the court supporting its rulings related to the issues that are likely to be raised on appeal, or, if a transcript is unavailable, a declaration fairly summarizing any such statements;

(4) Any application for a stay filed in the trial court, any opposition to that application, and a reporter's transcript of the oral proceedings concerning the stay or, if a transcript is unavailable, a declaration fairly summarizing the proceedings, including the parties' arguments and any statement by the court supporting its ruling; and

(5) Any other document from the trial court proceeding that is necessary for proper consideration of the petition.

(C) The documents listed in (B) must comply with the following requirements:

(1) They must be bound together at the end of the petition or in separate volumes not exceeding 300 pages each. The pages must be consecutively numbered;

(2) They must be index-tabbed by number or letter; and

(3) They must begin with a table of contents listing each document by its title and its index-tab number or letter.

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Writ of Mandate/Ceritorari or Prohibition (CRC 8.48 5, 8.486)

If the petition could have been filed first in a lower court, it must explain why the reviewing court should issue the writ as an original matter. If the petition names as respondent a judge, court, board, or other officer acting in a public capacity, it must disclose the name of any real party in interest.

If the petition seeks review of trial court proceedings that are also the subject of a pending appeal, the notice "Related Appeal Pending" must appear on the cover of the petition and the first paragraph of the petition must include the appeal's title, trial court docket number, and any reviewing court docket number; and if filed under Penal Code section 1238.5, the date the notice of appeal was filed. The petition must be verified.

The petition must be accompanied by a memorandum, which need not repeat facts alleged in the petition.

If the petition requests a temporary stay, it must comply with the following or the reviewing court may decline to consider the request for a temporary stay:

(A) The petition must explain the urgency.

(B) The cover of the petition must prominently display the notice "STAY REQUESTED" and identify the nature and date of the proceeding or act sought to be stayed.

(C) The trial court and department involved and the name and telephone number of the trial judge whose order the request seeks to stay must appear either on the cover or at the beginning of the text.

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Chapter 1106

APPEALS INDEX

Appeals in Limited Civil Cases

California Rules of Court 8.820 thru 8.843 and 8.880 thru 8.891 {used for Limited Civil and Misdemeanor Appeals} 8.820 Application of Chapter 8.821 Notice of Appeal 8.822 Time to Appeal 8.823 Extending Time to Appeal 8.824 Writ of Supersedeas 8.825 Abandoning the Appeal 8.830 Record on Appeal 8.831 Notice designating the record on appeal 8.832 Clerk’s Transcript - (CT) see also CRC 8.320 8.833 Trial court file instead of CT 8.834 Reporter’s Transcript (RT) 8.835 Record when trial proceedings were electronically recorded 8.836 Agreed Statement on appeal 8.837 Statement on appeal 8.838 Form of the Record) 8.839 Record in Multiple appeals 8.840 Filing the record 8.841 Augmenting or correcting the record in the appellate division 8.842 Failure to Procure the Record – see also CRC 8.140 8.843 Transmitting Exhibits Briefs, Hearing and Decision on Limited Civil and Misdemeanor Appeals 8.880 Application 8.881 Notice of Briefing schedule 8.882 Briefs by parties and amici curiae 8.883 Contents and form of briefs 8.884 Appeals in which party is both appellant and respondent 8.885 Oral Argument 8.886 Submission of cause 8.887 Decisions 8.888 Finality and modification of decision 8.889 Rehearing 8.890 Remittitur 8.891 Costs and Sanctions in Civil Appeals

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Appeals In Misdemeanor Cases

California Rules of Court 8.850 thru 8.873 and 8.880 thru 8.891 (used for Limited Civil and Misdemeanor appeals)

8.850 Application of Chapter 8.851 Appointment of Appellate Counsel 8.852 Notice of Appeal 8.853 Time to Appeal 8.854 Stay of Execution and Release on Appeal 8.855 Abandoning the Appeal 8.860 Normal Record on Appeal 8.861 Contents of Clerk’s Transcript - (CT) 8.862 Preparation of CT 8.863 Trial court file instead of CT 8.864 Record of Oral Proceedings 8.865 Contents of Reporters Transcript - (RT) 8.866 Preparation of RT 8.867 Limited Normal Record in Certain Appeals 8.868 Record when trial proceedings were electronically recorded 8.869 Statement on Appeal 8.870 Exhibits 8.871 Juror-Identifying Information 8.872 Sending and Filing the record in the Appellate Division (Transmittal) 8.873 Augmenting or correcting the record in the appellate division

Briefs, Hearing and Decision on Limited Civil and Misdemeanor Appeals 8.880 Application 8.881 Notice of Briefing schedule 8.882 Briefs by parties and amici curiae 8.883 Contents and form of briefs 8.884 Appeals in which party is both appellant and respondent 8.885 Oral Argument 8.886 Submission of cause 8.887 Decisions 8.888 Finality and modification of decision 8.889 Rehearing 8.890 Remittitur 8.891 Costs and Sanctions

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APPEALS IN INFRACTIONS CASES

California Rules of Court 8.900 thru 8.929 8.900 Application of Chapter 8.901 Notice of Appeal 8.902 Time to Appeal 8.903 Stay of Execution 8.904 Abandoning the Appeal 8.910 Normal Record 8.911 Prosecuting Attorney’s Notice RE: Record 8.912 Contents of Clerk’s Transcript - (CT) 8.913 Preparation of CT 8.914 Trial court file instead of CT 8.915 Record of Oral Proceedings 8.916 Statement on appeal 8.917 Record when trial proceedings were electronically recorded 8.918 Content’s of Reporter’s Transcript (RT) 8.919 Preparation of RT 8.920 Limited Normal Record in certain appeals 8.921 Exhibits 8.922 Sending and Filing the record in the appellate division (Transmittal) 8.923 Augmenting or correcting the record in the Appellate Division

Briefs, Hearing and Decision in Infraction Appeals 8.925 General Application of Chapter 4 except as provided in this article rules 8.880-8.890

govern 8.926 Notice of Briefing schedule 8.927 Briefs 8.928 Contents and form of briefs 8.929 Oral argument

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CROSS REFERENCES

Unlimited Limited Civil Civil Misdemeanors Infractions

Application of Chapter 8.820 - 8.900 Notice of Appeal 8.821 8.852 8.901 Time to Appeal 8.308 8.822 8.853 8.902 Stay of Execution 8.824 8.854 8.903 Abandoning the Appeal 8.825 8.855 8.904 Record on Appeal 8.830 8.860 8.910 Designation of Record 8.831 - - Clerk’s Transcript - (CT) 8.320 8.832 8.861 8.912 Trial Court Filed instead of CT 8.833 8.863 8.914 Record of Oral Proceedings Reporters Transcript - (RT) 8.834 8.866 8.919 Limited Normal Record in Certain Appeals - 8.867 8.920 Record when trial proceedings were electronically recorded 8.835 8.868 8.917 Agreed Statement 8.836 - - Statement on Appeal 8.837 8.869 8.916 Exhibits 8.843 8.870 8.921 Sending and Filing the record in the Appellate Division (Transmittal) 8.840 8.872 8.922 Augmenting or correcting the record 8.841 8.873 8.923 Failure to Procure the Record 8.140 8.842 - - General Application rules 8.880-8.890 Notice of Briefing schedule 8.881 8.881 8.926 Briefs by parties and amici curiae 8.882 8.882 8.927 Contents and form of briefs 8.883 8.883 8.928 Appeals in which party is both appellant

and respondent 8.884 - - Oral Argument 8.885 8.885 8.929 Submission of cause 8.886 8.886 8.886 Decisions 8.887 8.887 8.887 Finality and modification of decision 8.888 8.888 8.888 Rehearing 8.889 8.889 8.889 Remittitur 8.890 8.890 8.890 Costs and Sanctions 8.891 - -

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Chapter 1201

COMMUNITY COURT

OVERVIEW Community Court is a joint effort of the prosecuting agency, the citing agencies, the defense attorney, and the court. There are two types of Community Court: the pre-filing and the post-adjudication. Both involve misdemeanor quality-of-life crimes committed in the designated area (usually a downtown area). Offenders are required to perform community service, such as picking up trash or painting out graffiti, often at the same location where the offense was committed. Offenders can also be required to participate in rehabilitative programs, including drug and alcohol treatment, job training, and other counseling programs designed to stop chronic criminal behavior. PRE-FILING MODEL The prosecuting agency, working with local law enforcement, identifies certain misdemeanor crimes that are eligible for Community Court. Local law enforcement may provide information about Community Court at the time the citation is issued. People electing to participate in Community Court are assigned to programs and given a period of time in which to complete the program. If the program is completed, the prosecuting agency does not file the complaint with the court. The court is not involved in the pre-filing Community Court model, unless the participant does not successfully complete the Community Court requirements, at which time the complaint is filed with the court. POST-ADJUDICATION MODEL Upon conviction, defendants identified as eligible to participate in Community Court are sentenced to summary probation and ordered to complete a designated number of community service hours as one of the conditions of probation, with a date for completion approximately four to six months following conviction. The defendant is then provided the contact information regarding the Community Court Coordinator. The Coordinator is not employed by the court, and instead is employed by the downtown business partnership. The Coordinator is responsible for assigning the defendant to an area or organization for completion of the community service, and monitoring the community service. The Coordinator will initiate a termination notice if the defendant does not report to the Coordinator, or does not complete the work as assigned. The termination notice is sent to the prosecuting agency with a copy to the public defender/defense attorney. The prosecuting agency will review the notification and forward it to the court with a request to summarily revoke probation and issue a bench warrant. Upon successful completion of the community service, the Coordinator will notify the prosecuting agency, which in turn motions the Court to set aside the judgment and enter an administrative dismissal of the case.

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Chapter 1202

COURT CLOSURE PROCEDURES

OVERVIEW Upon request by the presiding judge and authorization by the Chair of the Judicial Council, a court may temporarily close due to a state of emergency resulting from a natural or human-made disaster proclaimed by the President of the United States or by the governor pursuant to GC 8625. (GC68115) An emergency judicial order signed by the presiding judge outlining the extended time frames should be placed in each case scheduled for appearance on the closed dates, or in the alternative, reference to the emergency judicial order should be reflected in the minutes. The procedures below outline what action may be taken upon such closure. PREPARATION In advance of any emergency, each court should maintain a contact list consisting of department heads for the prosecuting and defense agencies, specifically the supervisors of the attorneys appearing before the court. This is helpful for coordinating post-emergency court hearings. Additionally, each court should establish a method to contact employees, and establish a method for the employees to receive recorded information. Since telephone service may be interrupted, employees should listen for announcements from the local media regarding court closure. PROCEDURES Actual procedures differ according to the length of the court closure and the types of proceedings. Local law enforcement may be unable to appear in court as witnesses, thus most trials will need to be continued. Notices of continued dates may be sent to the defendant, however sending a notice does not require the court to request an affidavit in support of arrest warrant should the defendant fail to appear at the continued hearing. All appearances involving out-of-custody defendants should be continued at least 15 days, unless otherwise stipulated by the parties. Penal Code 1305.1 provides that when a defendant fails to appear for a court appearance and the Court “has reason to believe that sufficient excuse may exist for the failure to appear, the Court may continue the case for a period it deems reasonable to enable a defendant to appear without ordering a forfeiture of bail or issuing a bench warrant.” Further, PC 1320 and PC 1320.5 indicate that a willful failure to appear is presumed if the defendant does not appear within 14 days of the date set for his or her appearance. Thus, any continued court hearings must be continued at least 15 days from the appearance scheduled during the court closure. If the defendant fails to appear on the continued date, a warrant may be ordered for his/her arrest, and any bail posted may be forfeited.

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SYNOPSIS OF TIME FRAMES PC 825 Extends time defendants in custody and charged with felony and

misdemeanor offenses must be taken before the magistrate from 48 hours to seven days.

PC 859b Extends time for holding a preliminary examination WI 313, 315, Extends time within which a minor charged with a felony. 632, 637 Must be given a detention hearing by not more than seven days. WI 334 and 657 Adjudication on a juvenile court petition where the minor has been

charged with a felony must be held by not more than 15 days. Additionally, the days the court was closed are deemed a holiday for purposes of computing time under WI 631, and for filing papers under CCP 12 and CCP 12a.

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Chapter 1203

DESTRUCTION OF COURT CASES

OVERVIEW

Court cases are destroyed in accordance with Government Code 68152, Health and Safety Code 11361.5. RETENTION PERIODS

Calculation of the retention periods indicated below is from the date of conviction.

Charge(s) Retention Period Capital Felony Retain permanently Felony 75 Years Felony case which does not include sentencing (bind over)

5 years

Misdemeanor – non-vehicle code 5 years Misdemeanor – vehicle code except as otherwise specified

3 years

Misdemeanor – VC 23103 per 23103.5, VC 23152, VC 23153

7 years

Misdemeanor – VC 14601, VC 14601.1, VC 20002, VC 23104, VC 23109

5 years

Infraction – HS 11357 b, c Misdemeanor – HS 11357 d, e* HS 11361.5

2 years from date of conviction or 2 years from arrest date, if no conviction date

Infraction and misdemeanors alleging violations of local ordinances

3 years

* HS11357(e) is destroyed when the offender reaches 18 years of age DESTRUCTION OF CASES

It is important that care is taken to safeguard any information from police reports, automated systems, and any records deemed confidential in nature. Most courts elect to contract with outside agencies to properly destroy or recycle cases.

Prior to destruction of the case file, the clerk must:

1. Recall any outstanding warrants of arrest, complete abstracts if applicable;

2. Close any accounts receivable. (Note: Some courts elect to continue efforts to collect fines, therefore you should check with your accounting department.); and,

3. Update automated systems or manual logs to reflect the destruction of the case.

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Chapter 1204

OUT-OF-STATE WITNESSES (Request to Order a California Resident to Appear

as a Witness Out-of-State)

OVERVIEW Requests to produce witnesses received from out-of-state jurisdictions are usually coordinated through the local prosecuting agency (such as district attorney) on behalf of other prosecutorial agencies. Requests from out-of-state defense agencies/persons are usually referred to the local defense agency (such as public defender) and coordinated by that office. These offices, after receiving communications from out-of-state jurisdictions, will review the documents, prepare additional paperwork as necessary, and present the documents to the appropriate criminal judge for the jurisdiction in which the prospective witness resides. REQUIRED DOCUMENTS The following documents are presented by one of the agencies mentioned above:

1. Certificate for Attendance for Out-of-State Witness. This document is issued by the judge in the jurisdiction requesting the appearance (home court), stating the necessity of the witness’ presence. This is usually accompanied by an exemplification signed by that judge and countersigned by the county clerk/clerk of the court of that (home court) county, each attesting to the other’s office and signature. The exemplification does not always accompany this package, and, the court will usually not disallow the order if one is not present. The California court, pending any future hearing, retains this document. A copy will be given to the presenting person for service on the potential witness with other court papers.

2. Order for Hearing (May be entitled “Summons”) (Original and three

copies) This is an order signed by the designated California judge setting a hearing date, time, and department for the witness to appear and show cause why he/she should not be compelled to attend the out-of-state hearing. The original with the seal affixed on the California judge’s signature (with a copy) is given to the investigator to be served on the witness. (Note: Usually the county sheriff will serve the documents; a fee may be required by the serving agency as well as that agency’s service instructions.) Local practice will dictate if a copy of this order is retained in the department hearing the OSC.

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3. Order to Appear (sometimes labeled Subpoena) (Original and three copies) The Court makes and signs at the conclusion of the OSC hearing, directing the witness to appear at the out-of-state hearing. The court retains all copies of this order until the conclusion of the OSC hearing. Usually the subpoena contains the information as the date, time, and place of the hearing, the estimated duration of the hearing, the agency responsible for the transportation, lodging accommodations, and meals, and any additional fees if the Court authorizes another to accompany the witness (such as an adult if the witness is a minor).

If a hearing is required and the witness is ordered to attend the out-of-state

hearing, the California judge will sign this order in open court and a copy will be served on the witness.

4. Stipulation to Appear (Original and three copies) this is a document that the

person serving the Order for Hearing will request the prospective witness to sign, essentially agreeing to appear in the out-of-state case without the need of a court appearance before the California judge. If the witness signs this stipulation, the original Stipulation to Appear is filed with the court and the OSC is taken off calendar.

SUGGESTED PROCEDURE

1. The representative (prosecutorial or defense) files the Certificate for Attendance for Out-of-State Witness, Order for Hearing (May be entitled “Summons”), Order to Appear (sometimes labeled Subpoena), and Stipulation to Appear with the clerk. Usually the clerk will initiate a case file using a miscellaneous number.

2. The Certificate for Attendance for Out-of-State Witness, Order for Hearing

(may be entitled “Summons”) are presented to the designated California judge for review.

3. After the California judge signs the Order for Hearing, the following

documents are provided to the investigator (or agency representative):

A copy of the Certificate for Attendance for Out-of-State Witness, The original and one copy of the Order for Hearing, and The Stipulation to Appear (original and three copies).

4. The clerk retains in the court file, pending the hearing:

The original Certificate for Attendance for Out-of-State Witness A copy of the Order for Hearing, The original and three copies of the Order to Appear.

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5. If the investigator (or agency representative) returns to the court with the Stipulation to Appear signed, then the Order for Hearing and the Order to Appear may be disposed of as unneeded. The original Stipulation to Appear is filed in the court file with the Certificate for Attendance of Out-of-State Witness.

6. If the witness declines to sign the Stipulation to Appear, the Order for

Hearing is served on the witness and a copy, with proof of the service, is filed with the court. The hearing is added on the calendar for the date and time set in the order.

ATTACHMENTS Order for Hearing (may be entitled “Summons”) Order to Appear (sometimes labeled “Subpoena”)

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SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF __________

______________DIVISION

TO: Name of Witness Name Guardian if applicable__, his/her __relationship _______Address______ ____City and State____ This matter having come before the Court on the basis of the Certificate of the

Honorable _________________. Judge of the _______Court of the City of ______, State of

______, and it appearing from the aforementioned Judge’s Certificate that you are a material and

necessary witness in the matter of the ___________ v. _______, Docket No. ___________, a

criminal matter pending in the ______ Court of the City of ______, __State_______, and it

appearing that your presence will be required in that jurisdiction on __Date :

YOU, NAME OF WITNESS, ARE HEREBY ORDERED to appear in this Court,

the Superior Court of the State of California, County of ________, _______ Division,

_________Address_______________, in Department __ on __Date at _____ AM/PM, and

show cause you may have, why this Court should not issue a Subpoena directing you to be

available as a witness in the above criminal proceedings.

Dated: ____________ _____________________________

Judge of the Superior Court

Case Number _______ Other Court’s Case No.:

Order to Show Cause Why Witness Should not be Summoned Pursuant to Out-of-State Witness Certificate (PC 1334.2)

In the Matter of Proceedings to Compel the

Attendance of Name of Witness as a

Material Witness in the ________ Court,

_____STATE

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SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF __________

______________DIVISION

TO: Name of Witness Name Guardian if applicable__, his/her __relationship _______Address______ ____City and State____ The Certificate of the Honorable _________________. Judge of the _______Court in the City State of ______ (copy attached), having been presented to this Court alleging that you are a material and necessary witness in the in the matter of ___________ v. _______, Case Number ___________, a criminal matter pending in the ______ Court of the State of ______, and it appearing that your presence will be required in that jurisdiction on __Date and for a period not to exceed ______days, starting on Date: And you having personally appeared before this Court, and the Court having examined the documents from the aforementioned State of ___________; and the Court having determined that (1) you are a material and necessary witness, (2) that it will not cause undue hardship to you to attend and testify for said criminal proceeding, (3) that the laws of that state will give you protection from arrest and service of civil and criminal process while in that state, and (4) that the State of _______ will provide round trip airline tickets, lodging accommodations, meals, and witness fees: YOU, NAME OF WITNESS, ARE THEREFORE ORDERED TO APPEAR BEFORE THE ____NAME OF COURT_____________, ________Address_______________, in Department __ on __Date at _____ AM/PM, as a witness in the above criminal proceedings.

Dated: ____________ _____________________________

Judge of the Superior Court

Case Number _______ Other Court’s Case No.: ________________________

SUBPOENA (PC 1334.2)

In the Matter of Proceedings to Compel the

Attendance of Name of Witness as a

Material Witness in the ________ Court,

_____STATE

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Chapter 1205

REQUESTS TO PRODUCE OUT-OF-STATE WITNESS FOR A CALIFORNIA COURT

OVERVIEW

This procedure addresses how to process a request from either the prosecutorial or defense agency seeking the attendance of an out-of-state witness for a hearing in a California court. PROCEDURE

1. The prosecutorial or defense attorney presents to the California court:

a. Certificate for Attendance of Out-of-State Witness. b. Declaration in Support. c. Points and Authorities.

2. If the Court approves the request of counsel, the following occurs:

a. Obtain an exemplification. This exemplification is a printed form that must be signed by the clerk of the court/county clerk and the presiding judge, and have two seals affixed. In this exemplification, (1) the county clerk attests to the authenticity of the documents forwarded; (2) the judge attests to the clerk of the court/county clerk’s signature and authority; and, (3) the clerk of the court/county clerk attests to the judge’s signature and office.

b. File stamp the original certificate, declaration, and points and authorities.

c. Make a copy of the exemplification and attach it to the original certificate.

d. Staple the original exemplification to the certified, sealed copy of the certification (this will be forwarded by counsel to the out-of-state jurisdiction). Certify and seal the remaining copies of the certificate and return it to counsel with the conformed copies of the declaration and points and authorities.

e. The remaining originals and copies are retained in the court file.

3. Counsel may also include with the documents submitted to the court the following:

a. Order for Hearing (may be entitled Summons). b. Stipulation to Appear. c. Order to Appear (sometimes labeled Subpoena).

These documents, if presented to the court, are part of the package sent by counsel to the out-of-state jurisdiction. Do not file stamp, process, or retain these documents. Counsel is responsible for forwarding the required documents to the out-of-state authority, not the clerk.

ATTACHMENTS

See the chapter entitled “Out-of-State Witnesses” for samples of the above-mentioned documents.

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Chapter 1206

PHOTOGRAPHING, RECORDING, AND BROADCASTING IN THE COURTROOM

CRC 1.150 The Judicial Council first adopted California Rule of Court 1.150 in 1965, originally prohibiting photographing, recording, and broadcasting in the courtroom during session or recesses with some detailed exceptions. After numerous experiments to determine the effect of film and electronic media coverage on court proceedings, a new California Rule of Court, Rule 1.150, was adopted effective July 1, 1984, which allowed film and electronic media coverage of criminal and civil courtroom proceedings at the trial and appellate levels. In 1995, CRC 1.150 again comes under examination by the Judicial Council, and a task force was appointed and charged with evaluating several factors concerning media coverage in the courtroom. After considering the final report and recommendations of the task force, the Judicial Council voted to retain judicial discretion over the use of cameras in state courts. CRC 1.150 was amended effective January 1, 1997. The amended rule:

1. Retains judges’ discretion over the use of cameras in all areas, including all pretrial hearings in criminal cases;

2. Prohibits camera coverage of jury selection, jurors, or spectators in the

courtroom; and 3. Lists 19 factors a judicial bench officer must consider in ruling on a request

for camera coverage, including the importance of maintaining public access to the courtroom, the privacy rights of the participants in the proceedings, and the effect on the parties’ ability to select an unbiased jury.

PROCEDURAL STEPS The following steps illustrate the process:

1. The MEDIA files forms Judicial Council forms MC-500* and MC-510* with the court five days in advance of the proceeding.

(Practical note: Most courts entertain this motion when filed immediately preceding a hearing that did not provide adequate notice to the filming party, such as an arraignment or bail review.)

2. The COURT CLERK promptly notifies the parties to the proceeding that a

request has been filed. 3. The JUDICIAL BENCH OFFICER determines the authority to make the

order.

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4. The COURT CLERK notifies the parties regarding a hearing on the media’s request (trial judges do not have to give a prescribed form of notice within a specific number of days; however, CRC 1.150 clearly contemplates that parties will be informed of any hearing and have a reasonable opportunity to participate).

5. The JUDICIAL BENCH OFFICER holds a hearing on the request. (Note:

A hearing is not required, and often the judicial bench officer makes the order based on the statements contained in the media request.)

6. The JUDICIAL BENCH OFFICER issues the ruling after considering the

19 factors laid out by CRC 1.150. (Note: Findings or a statement of decision is not required; however one may incorporate local rules. Usually court procedure indicates the judicial secretary retains a copy of the findings.)

7. The MEDIA files a statement of pooling arrangements with the court. 8. The JUDICIAL BENCH OFFICER determines and makes any

modification or termination of the order. 9. The COURT OR JUDICIAL SECRETARY mails, on a monthly basis,

copies of all Forms MC-500 and MC-510, and any subsequent orders, to:

* Forms MC500 and MC510 are Judicial Council Forms and may be found on the California Courts website.

Judicial Council of California Administrative Office of the Courts

Office of Court Technology and Information 303 Second Street, South Tower

San Francisco, CA 94107

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Chapter 1207

PENAL CODE SECTION 1203.4/1203.4A

The defendant must, at any time after the termination of the period of probation, if the defendant is not serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense, be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty. If the defendant has been convicted after a plea of not guilty, the court must set aside the verdict of guilty. In either case, the court must thereupon dismiss the accusations or information against the defendant. (PC1203.4) The probationer may make the application and change of plea in person, by attorney, or by the probation officer authorized in writing. The order must state, and the probationer must be informed, that the order does not relieve him or her of the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery. Every defendant convicted of a misdemeanor and not granted probation, and every defendant convicted of an infraction shall, at any time after the lapse of one year from the date of pronouncement of judgment, if he or she has fully complied with and completed the sentence of the court, is not serving a sentence for any offense, has obeyed all laws and is not currently charged with a crime, be permitted by the court to withdraw his or her plea of guilty or nolo contendere and enter a plea of not guilty. If the defendant has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty. In either case the court must thereupon dismiss the accusatory pleading against the defendant, who must thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted. (PC1203.4a) Dismissal of an accusation or information pursuant to this section does not permit a person to own, possess, or have in his or her custody or control any firearm or prevent his or her conviction under Section 12021. Dismissal of an accusation or information underlying a conviction pursuant to this section does not permit a person prohibited from holding public office as a result of that conviction to hold public office. A person who petitions the court pursuant to PC 1203.4 may be required to reimburse the court for the actual costs of services rendered whether or not the petition is granted at a rate to be determined by the court not to exceed $150.00. The defendant may petition the court using California Judicial Council form CR-180 Petition for Dismissal along with CR-181 Order for Dismissal. http://www.courtinfo.ca.gov/forms/fillable/cr180.pdf http://www.courtinfo.ca.gov/forms/fillable/cr181.pdf

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BUSINESS OFFICE PROCEDURE

1. Upon receipt the Petition for Dismissal should be reviewed for completeness including proof of service to the appropriate agencies.

2. The Petition for Dismissal is then calendared according to the court’s calendaring

schedule. 3. Upon granting of the Petition for Dismissal the clerk must notify California Department

of Justice using JUS8715 of the dismissal pursuant to PC1203.4 or PC1203.4a and if a motion to reduce was granted pursuant to PC17.

4. If the matter is a vehicle code violation or a code section reportable to Department of

Motor Vehicles, the Department of Motor Vehicles records must be amended to reflect the dismissal pursuant to PC1203.4.

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Chapter 1208

SEALING COURT FILES AND RECORDS CONFIDENTIAL RECORDS

FINDING OF FACTUAL INNOCENCE OVERVIEW As a rule, court records, regardless of case type, which are not confidential by statute, are accessible to the public. Those records that are deemed “confidential” may be stored in the court file in a confidential envelope; this envelope should be removed before allowing the public to view the case file. In some instances, the Court may order a record (or complaint) be filed under seal. Additionally, the Court may order a record (or entire case) “sealed.” This section addresses these issues. RECORD (OR COMPLAINT) FILED UNDER SEAL (CRC 243.1 through 243.3; CCP 124) On noticed motion (not stipulation or agreement of the parties), the Court may order that a record be filed under seal only if it expressly finds:

1. There exists an overriding interest that overcomes the right of public access to the record;

2. The overriding interest supports the sealing of the record; 3. A substantial probability exists that the overriding interest will be prejudiced

if the record is not sealed; 4. The proposed sealing is narrowly tailored (i.e., not the entire file); and, 5. No less restrictive means exist to achieve the overriding interest

(Confidential information can be redacted rather than sealed.) Any order sealing a record must:

1. Specifically set forth the factual findings supporting the order; and, 2. Direct the sealing of only those documents and pages – or, if reasonably

practicable, portions of those documents and pages – that contain the material that needs to be placed under seal. All other portions must be included in the public file.

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PROCEDURE Any party bringing a noticed motion before the court for an order that a record be filed under seal must first obtain an order from the supervising/presiding judge directing the same. That order is filed with the business office following the court hearing. If the record being filed under seal is presented to the business office at the same time, the clerk (usually the courtroom clerk) will process the complaint or document, placing the complaint or document in a “sealed” envelope. Most courts keep these items in a locked file cabinet for all sealed records, and enter the identifying information in a log, which is also kept in a secured location. Requests for information or copies of sealed documents will be given only upon an order of the Court. All original documents remain in the envelope and certified copies will be sent unless the court order otherwise indicates. In some instances, the Court also orders a date when the document(s) are to be removed from seal. Record this date on your clerk’s tickler file. On that date, remove the items from the secured location and process as you would any document not under seal. CONFIDENTIAL DOCUMENTS The following court records are deemed confidential by statute and are to be placed inside an envelope marked “Confidential.” Most courts order preprinted envelopes for this purpose, usually large enough to accommodate 8 ½ by 11-inch documents. The clerk processing the confidential document is to place the document inside the confidential envelope and record the case number of this envelope. Court Records Made Confidential by Statute:

Arrest Records (PC851.8, PC851.85) Assessment Unit Reports (42 C.F.R. 2.31, CC56.11 and CC56.15) Bail Unit Reports and Pretrial Services Reports (PC11105, PC13300) Criminal History Information (PC11105 and PC13300-PC13326) Defendant’s Statement of Assets Forms (PC1202.4) Domestic Violence Court/Client Progress Reports (FC1818, FC6322.5, and

EC1010 et seq., and EC1037.2) Diagnostic Reports (PC1203.03) Fee Waiver Applications (CRC985 (h)) Indigent Defendant Requests for Funds (PC987.9) Probation Reports (effective 60 days after date of sentencing PC1203.05) Psychiatric Records or Reports (EC 1017. Most prepared at court’s request are

presumed open to the public — see EC 730, PC 288.1, PC1368, PC1026 and PC1027)

Reports Concerning Mentally Disordered Prisoners (PC4011.6)

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Records of Mental Health Treatment or Services for the Developmentally Disabled, includes LPS Proceedings (WI4000 Et seq., WI4400 Et seq., WI4500 et seq., WI5000 et seq., WI5328, WI5330, WI6000 et seq., and WI7100 et seq.)

Subpoenaed Business Records (EC1560(d) –until introduced into evidence) Test Results, HIV (PC1202.6(f)) Victim Impact Statements (PC1191.15(b), PC1191.15(c)) Personal Information of Crime Victim (PC1054.2)

CRIMINAL RECORDS THAT MAY BE CONFIDENTIAL

Police Reports (There is no specific statute, rule, or decision addressing the confidentiality of a police report once it has become a “court record.” It has been suggested by the Judicial Council that the court require personal information be redacted before the report is filed with the court or used in a judicial proceeding.)

Search Warrants (Prior to return of the warrant after service and filing of Receipt

and Inventory, or the expiration of 10 days from the date of issuance, unless otherwise ordered—PC1534(a))

Identity of Sex Offense Victims (PC293.5)

Records from Federally Funded Drug Rehabilitation Centers (42 C.F.R. 2.12)

Records of Arrest or Conviction for Marijuana Possession or other Related

Offenses

(HS 11361.5, HS11351(c), HS11361.7, and HS11361.7(b) Includes Drug Court Client Progress and Test Results)

SEALING OF CRIMINAL RECORDS Usually the order for sealing of criminal records is made by the Court following a noticed motion brought by either the prosecution or defense. The courtroom clerk will note on the minute order “People’s/Defendant’s" motion to seal record is granted. All records are to be deleted from the automated system by order of Judge ____.” SUGGESTED PROCEDURE The clerk forwards a copy of this order to the agency responsible for initiating the criminal history against the defendant (usually the prosecutorial agency). The clerk removes all dockets from the case file and places them in a manila envelope, marking the outside of the envelope “People vs. _______, Case Number _________. Records sealed by order of Judge _______, date: ______”

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The clerk also makes the above notation on a sheet of paper and places it inside the case file. If there is a co-defendant, the clerk also redacts the sealed defendant’s name from the co-defendant files. The case is then routed to the clerk (supervisor) responsible for notifying the Department of Justice of this order for sealing. The sealed envelope is placed in a secured location. FINDING OF FACTUAL INNOCENCE FOLLOWING ARREST OR DETENTION (PC851.8) Penal Code 851.8 provides that a person who has been arrested or detained and is determined to be factually innocent may petition the law enforcement agency(ies) or court having jurisdiction over the matter to provide for the sealing and destruction of the record of that arrest. PC 851.8 provides filing requirement times and should be consulted prior to implementing these procedures. PROCEDURE – SEALING ARREST RECORD – NO ACCUSATORY PLEADING (COMPLAINT) FILED (PC851.8(a)-(b)) When a person has been arrested, but no accusatory pleading (complaint) is filed, the person arrested may petition the law enforcement agency having jurisdiction over the offense to destroy its records of the arrest. A copy of the petition is also served on the prosecutorial agency (district or city attorney). After concurrence from the prosecutorial agency, and determination the arrestee is factually innocent, the arresting agency shall seal its records (and the petition) for three years from the date of arrest, destroy the records following this three-year time period, and notify the Department of Justice and/or any other law enforcement agency that participated in the arrest of the defendant. Following the three-year period, the law enforcement agency having jurisdiction over the arrest and the Department of Justice shall request any agency receiving the arrest record destroy any and all records of this arrest. If the law enforcement agency and the prosecutorial agency do not respond to the arrestee’s petition (accepting or denying) within 60 days after the running of the relevant statute of limitations, or within 60 days after receipt of the petition in case where the statute has lapsed, the petition shall be deemed denied. Upon the denial of the petition (formally or by this code), the arrestee may petition the superior court that would have had territorial jurisdiction over this matter. A copy of the petition filed with the superior court must be served on the prosecutorial agency at least 10 days prior to the hearing. A finding of factual innocence by the Court shall not be made unless the Court finds that no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made. The initial burden of proof rests with the petitioner to show that no reasonable cause exists to believe that the arrestee committed the offense. If the Court makes this finding, the burden then shifts to the respondent—prosecutorial agency—to show that a reasonable cause exists to believe the petitioner committed the offense for which the arrest was made. If the Court makes a finding of factual innocence as to the arrestee and the charges, the Court shall order the law enforcement agency, the Department of Justice, and any law enforcement agency which arrested or participated in the arrest of the defendant, to seal their records of the arrest for three years from the date of the arrest, and thereafter to destroy the records. The Court

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also orders any law enforcement agency and the DOJ to notify anyone receiving record of this arrest to destroy its records of the arrest, unless otherwise ordered. The court shall provide a copy of the order to the petitioner (arrestee). BUSINESS OFFICE PROCEDURE

1. Usually the clerk will make six certified copies of the order and distribute to:

Department of Justice (Include a copy of the petition) Record Sealing and Dismissal Unit P.O. Box 903417 Sacramento, CA 94203-4170 Arresting Agency

Prosecuting Agency Petitioner/Defendant or his/her attorney (Note: The court does not appoint an attorney for this type of hearing)

Local Sheriff Department (for removal from records)

2. Forward the case file to the data processing unit for removal of the entire case (excluding co-defendants) from the automated system.

3. Tickle a calendar for four to six weeks to ensure the case was removed from

the microfiche. 4. Place the original case (petitioner’s only) inside a manila envelope and seal

according to the sealing instructions previously mentioned in this chapter, with a notation on the outside of the envelope the defendant was found factually innocent by the Court and any records of the arrest are ordered sealed per this section.

5. If this is a multiple defendant case, remove all information pertaining to the

petitioner from the case file and put these documents in the sealed envelope. If any information is incorporated with a co-defendant, redact (black out) all information pertaining to the petitioner.

6. Redact the petitioner’s name on any logs or records maintained by the court,

such as the bail bond log (if bail was posted). 7. Retrieve any tapes of the proceedings and place the tapes in the envelope to

be sealed. PROCEDURE – SEALING COURT CASE - ACCUSATORY PLEADING (COMPLAINT) FILED (PC851.8(c)-(e)) In any case where the petitioner has been arrested, and a complaint has been filed, but where no conviction has occurred, the defendant may, at any time after dismissal of the action, petition the court to make a finding of factual innocence for the charges for which the arrest was made. A

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copy of the petition must be filed and served on the prosecutorial agency at least 10 days prior to the hearing. If the Court makes a finding that the defendant/petitioner is factually innocent of the charges for which the arrest was made, the Court shall make the findings as indicated above. If a person has been arrested, and a complaint has been filed, the Court may, with the concurrence of the prosecutorial agency, grant the relief as indicated above at the time of the dismissal of the accusatory pleading/complaint. Whenever any person is acquitted of a charge and it appears to the judge presiding at the time wherein such acquittal occurred that the defendant was factually innocent of such charge, the judge may grant the relief provided in subdivision (b). (PC851.85) ADDITIONAL DUTY OF LAW ENFORCEMENT AGENCY (PC851.8(f)) In any case where a person who has been arrested is granted relief pursuant to subdivision (a) or (b), the law enforcement agency having jurisdiction over the offense, or the court, shall issue a written declaration to the arrestee stating that it is the determination of the law enforcement agency that the arrestee is factually innocent of the charges for which he/she was arrested, and the arrestee is thereby exonerated. Thereafter, the arrest may be deemed not to have occurred and the person may answer accordingly any question relating to its occurrence. NOTES The Department of Justice shall furnish forms for the petition and the written declaration that a person was found factually innocent under these sections. Petitions falling under category PC851.8(a) or (b): The court is NOT involved UNLESS the petition filed with the law enforcement agency has not been responded to by the prosecutorial agency or the arresting agency within the sixty (60) day period, or, if the petition was denied by the law enforcement agency. Petitions falling under category PC851.8(c): A requirement is there was a complaint filed but the complaint (case) was dismissed, or the defendant was acquitted. No records are to be destroyed if the arrestee or co-defendant has filed a civil action against the law enforcement officer, if the court receives a certified copy of the civil complaint. Immediately following the resolution of the civil matter, the records of the criminal action may be processed as indicated above. (PC851.8(k)) These provisions do not apply to offenses classified as an infraction.

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Chapter 1209

MOTION AND ORDER FOR RELEASE OF VEHICLE IMPOUNDED BY CITING AGENCY

OVERVIEW

Whenever a police officer determines that a person was driving a vehicle while his/her driving privilege was suspended, revoked, or driving without ever obtaining a license, the police officer may impound the vehicle for 30 days, providing the conditions exist as set forth in VC 14607.6, or a similar code. Owners of the impounded vehicles have a right to request an administrative hearing by the agency ordering the impound If the administrative hearing results in a finding indicating the vehicle will not be released prior to the expiration of the 30 days, the owner may then request (or motion) the court to order the early release of the vehicle. There is no requirement for a criminal case to be filed against the petitioner. PROCEDURE AND AUTHORITY

Prior to the owner of the vehicle filing the motion for early release with the court, the following must occur:

1. The peace officer, as part of the traffic stop, orders the vehicle impounded.

2. Within two working days after the impoundment of the vehicle, the impounding agency shall send a notice by certified mail, return receipt requested, to the legal owner of the vehicle, at the address obtained from the department, informing the owner that the vehicle has been impounded. (Failure to notify the legal owner within two working days shall prohibit the impounding agency from charging more than 15 days’ impoundment when the legal owner redeems the impounded vehicle.) See VC 22852 re: Notice to Owner.)

3. The registered and legal owner (or their agents) may request a storage (or post-storage) hearing to determine the validity or consider any mitigating circumstances regarding the impounding of the vehicle for 30 days. The request must be made within 10 days of the date appearing on the notice.

4. The storage hearing is conducted by the impounding agency within 48 hours of the request, excluding weekends and holidays. The public agency may authorize its own officer or employee to conduct the hearing if the hearing officer is not the same person who directed the storage (impounding) of the vehicle. Failure of either the registered or legal owner (or his/her agent) to request or attend a scheduled hearing shall satisfy the post storage-hearing requirement.

5. The agency employing the person who directed the storage (in this case the police agency) shall be responsible for costs incurred for towing and storage of the vehicle if it is determined in the post-storage hearing that reasonable grounds for the towing and/or storage of the vehicle do not exist.

6. The registered owner is notified at the conclusion of the post-storage hearing his/her recourse would be to appear at court and motion for an order to release the vehicle. This hearing would be before a judicial officer, with an order or finding issued by the Court.

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COURT PROCEDURES After following the above steps, the owner of the vehicle may now file his/her motion with the court, as illustrated below:

1. Registered owner appears at the business office window requesting an order for the early release of his/her vehicle.

2. The following documents are provided to the court by the registered owner

and placed in the court file:

a. Proof of contact with the impounding agency to determine the validity of the tow.

b. Proof of current registration indicating petitioner is the legal/registered

owner of the vehicle (a copy may be obtained from the DMV for a nominal fee; or, your local court policy may be to provide a current printout from the DMV screens).

c. Valid driver’s license.

d. Proof of Insurance (Optional: If petitioner has proof of insurance,

make a copy for court file. Advise petitioner the Court may request proof at the hearing.)

e. A declaration of necessity for the use of the vehicle prior to the

expiration of the storage period. (Declaration is executed under penalty of perjury.)

f. Proof of notice to impounding agency (often this requirement is

waived as the court provides the notice).

g. If available, a copy of the order issued by the police agencies administrative hearing officer denying the early release of the vehicle. (Clerk can make a copy of any paperwork presented by the requesting party.)

3. The clerk calendars this motion no more than two days from the date all

items listed above are received from the petitioner, and provides notice of the hearing to the impounding agency via facsimile and/or telephone. Additionally, an authorized clerk obtains a DMV report (printout) regarding the license status for both the driver receiving the citation and the registered owner of the vehicle, and places the DMV printouts in the confidential envelope. These printouts should be destroyed after the hearing.

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4. The clerk also prepares the Original Order for Release of Impounded Vehicle, placing it loosely in the file.

5. Although it is the responsibility of the motioning party to notify the

impounding agency, usually the clerk will be responsible for accepting the paperwork and notifying the impounding agency, via telephone and faxing the petitioner’s declaration to the agency. Customarily each impounding agency has a contact person or unit. Since most hearings are set 24-48 hours from the time the motion is filed, it is helpful to fax the petition and notice of hearing.

COURT HEARING

The procedures for the court hearing (which, in essence, is a court trial) are:

1. The Court considers testimony and any evidence provided by either the petitioner or the impounding agency.

2. The judicial bench officer, if good cause is shown, will make a finding for the early release of the vehicle; or, if good cause is not shown, the petitioner’s motion for the early release of the vehicle is denied.

3. If the Court orders the early release of the vehicle, the clerk prepares the Order for Release of Impounded Vehicle for the judicial bench officer’s signature.

4. The clerk makes three copies of the signed Order for Release of Impounded Vehicle and distributes as follows:

a. The original order is retained in the court file.

b. Two copies (one of which is certified) are given to the registered owner.

c. A copy of the order is provided to impounding agency.

APPLICABLE CODE SECTIONS

VC 14602.6(a), VC 14602.6, VC 13200, VC 13365, VC 22850.5 ATTACHMENTS

Motion for Order for Release of Impounded Vehicle

Order for Release of Impounded Vehicle

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Vehicle Description: ________________________________________ Make/Model: ________________________________________ License Number: ________________________________________ VIN Number: ________________________________________ Registered Owner: ________________________________________ Insurance Policy Number: ________________________________________

I, ____________________________________, hereby certify that I am the registered owner for the above-described vehicle, that a post-storage hearing was held with the impounding agency on ______________________, and that said agency denied my request for early release of this vehicle. I am petitioning the Court for an early release of this vehicle based on the following:

(Continued on Reverse)

Petitioner Name and Address: Telephone Number: ( ) Superior Court of ________, __________ Judicial District Petitioner:

Motion Set for: Date:_______________

Impounding Agency: Time: ___________AM/PM Dept.: ___________

Motion for Order for Release of Impounded Vehicle Case Number:

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Declaration continued:

I declare under penalty of perjury under the laws of the State of California that this is my only Motion for an Order for Release of Vehicle from Impound and the foregoing declaration is true and correct. Date: __________ ……………………………………………….. ____________________________________________ (Type or Print Name) Signature of Petitioner I further certify that I have notified the impounding agency of my intent to petition the court for an Order for Release of Impounded Vehicle by notifying: Impounding Agency: Person notified: On: (Date) _________________________ at _____________AM/PM Via: [ ] In Person [ ] Telephone [ ] Facsimile [ ] Certified Mail Date: __________ ……………………………………………….. ____________________________________________ (Type or Print Name) Signature of Petitioner

Petitioner:

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Vehicle Description: ________________________________________ Make/Model: ________________________________________ License Number: ________________________________________ VIN Number: ________________________________________ Registered Owner: ________________________________________ [ ] The Court orders the release of the above-described vehicle to the petitioner, who has presented evidence that he/she is the registered owner of the vehicle or is the agent of the registered owner.

The Petitioner has presented the following to the Court:

[ ] Proof of contact with the impounding agency to determine the validity of the tow.

[ ] Current registration

[ ] Valid driver’s license

[ ] Proof of Liability Insurance

[ ] A declaration of necessity for the use of the vehicle prior to the expiration of the storage period, and

[ ] Proof of notice to the impounding agency.

Upon presentation of this order, the impounding agency, or it’s impound storage company, shall release the vehicle to the petitioner. The registered owner or his/her agent [ ] is [ ] is not responsible for all towing and storage charges related to the impoundment, and any administrative charges authorized under Vehicle Code Section 22850.5.

These orders are made upon a showing of appropriate circumstances under Vehicle Code Section 14602.6.

[ ] The Court does not find good cause to order the release of the above-described vehicle prior to the expiration of the 30-day period as prescribed by law, therefore petitioner’s motion for early release of the vehicle is denied.

IT IS SO ORDERED

Date: ________________ _____________________________________________ Judge/Commissioner of the _________ Superior Court

Petitioner Name and Address: Telephone Number: Superior Court of________, ______ Judicial District Petitioner: Impounding Agency:

Order for Release of Impounded Vehicle Case Number:

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Chapter 1210

VICTIM RESTITUTION PC 1202.4(F), PC 1214

OVERVIEW In every case in which a victim has suffered economic loss as a result of the defendant's conduct, the Court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims, or any other showing to the Court. If the amount of loss cannot be ascertained at the time of sentencing, the restitution order shall include a provision that the amount shall be determined at the direction of the Court. The Court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record. The defendant has the right to a hearing before a judge to dispute the determination of the amount of restitution. The Court may modify the amount, on its own motion or on the motion of the district attorney or city attorney, the victim or victims, or the defendant. If a motion is made for modification of a restitution order, the victim shall be notified of that motion at least 10 days prior to the proceeding held to decide the motion. To the extent possible, the restitution order shall be prepared by the sentencing court, shall identify each victim and each loss to which it pertains, and shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant's criminal conduct, as specified in PC 1202.4(f), Et. Seq. The Order for Restitution is enforceable as if it was a civil judgment and can be obtained as a result of a crime against a victim. In criminal matters in which restitution is ordered, the victim may request the sentencing judge to issue an Order Granting Restitution to Crime Victim. The CR-110 "ORDER FOR RESTITUTION AND ABSTRACT OF JUDGMENT" will be processed in such a manner that the victim may file with the county recorders office. The abstract prevents the transfer of real property by the judgment debtor (defendant) until the judgment is satisfied. REQUIRED DOCUMENTS

1. Form CR-110 (approved for optional use).

2. Cover sheet for filing with the county recorder office.

Note: Form CR-110 and instructions on completing this form may be found on the Judicial Council Website at: http://www.courtinfo.ca.gov. Click on Forms & Rules, click on “Criminal,” and scroll down to CR-110.

Or a revised version of form submitted by other agencies (such as the district attorney) may be used.

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PROCEDURE When the completed CR-110 form is submitted for signature at the hearing, or after the hearing, the clerk will:

1. Verify all information (front and back) on the form against the minute order. The information must match EXACTLY. Incorrect information may result in rejection of this form as an enforceable civil judgment, or, the victim may not be able to collect on the defendant’s assets.

2. The judge will sign the Order for Restitution. 3. After verifying the information on the abstract is correct, continue to process

the form as follows: (Do not issue the original abstract on the original Order).

a. Make two copies of the CR-110 form. On a copy: (1) Certify the Order using today's date, (2) Sign, and seal the abstract when it is being picked up. (There are no fees for the copies of certification)

(This is the form to be submitted for recording at the county recorder's office)

b. Conform the second copy of the abstract and the abstract on the

back of the original order.

4. Place the original order with the conformed copy of the abstract in the confidential envelope. 5. Hold the certified copy of order and original abstract with a note attached

for pick-up, and place them in the confidential envelope. DEFENDANT’S FINANCIAL DISCLOSURE Except as otherwise provided in PC 1204, the defendant shall prepare and file a disclosure identifying all assets, income, and liabilities. This disclosure shall be available to the victim pursuant to PC 1214, and any use the court may make of the disclosure shall be subject to the restrictions of subdivision (g) of PC 1204. The disclosure shall be signed by the defendant upon a form approved or adopted by the Judicial Council for facilitating the disclosure. Form CR-115, Defendant’s Statement of Assets, and CR-117, Instructions: Defendant’s Statement of Assets, can be found on the Judicial Council’s website. Any defendant who willfully states as true any material matter that he or she knows to be false on the disclosure required by this subdivision, is guilty of a misdemeanor, unless this conduct is punishable as perjury or another provision of law provides for a greater penalty. A defendant

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who fails to file the financial disclosure as required, but who has filed a financial affidavit or financial information pursuant to PC 987(g) (a sample could be the form used to apply for a court appointed attorney), shall be deemed to have waived the confidentiality of that affidavit or financial information as to a victim in whose favor the order of restitution is entered. The affidavit or information shall serve in lieu of the financial disclosure. The defendant should file the financial disclosure by the date set for sentencing, unless otherwise directed by the Court. ENFORCEMENT OF JUDGMENT A judgment for restitution entered pursuant to this section is enforceable as a civil judgment. As such, the victim may pursue any civil remedies available to execute on the judgment. Form interrogatories drafted for victim restitution judgments are available on the Judicial Council’s website, form CR200.

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Chapter 1211

HOMELESS COURTS

OVERVIEW

What are Homeless Courts? Homeless Courts are special court sessions held in a local shelter or other community site designed for homeless citizens to resolve outstanding infractions/ misdemeanor criminal warrants such as unauthorized removal of a shopping cart, disorderly conduct, public drunkenness, and sleeping on a sidewalk or on the beach.

Why have Homeless Courts? Homeless people tend to be fearful of attending court, yet their outstanding warrants limit their reintegration into society, deterring them from using social services and impeding their access to employment. They are effectively blocked from obtaining driver's licenses, job applications, and rental agreements. The benefits of having a Homeless Court is to resolve outstanding warrants, meet the fundamental need of homeless people, and eases court case-processing backlogs and reduces vagrancy.

Who are the players in a Homeless Court? Along with a judge, courtroom clerk, public defender and prosecutor, there are also other participants such as volunteers from the shelter or community and court staff processing such as records clerk, intake clerk, court facilities, MIS, etc. who assist in the process and set up of a Homeless Court.

Where did this concept originated? The concept of conducting a court calendar outside of the traditional courtroom setting originated out of the "Operation Stand Down" events for homeless veterans held throughout our State. The success of these "Stand Down" courts gave rise to the current efforts to bring this vital opportunity to the general homeless population.

Today, approximately ten (10) or more counties in California have implemented Homeless Court programs, and many more are either in the process of or have expressed interest in creating a Homeless Court.

The following is a list of California’s Homeless Court Network Resources list:

ALBUQUERQUE: Christine Jaramillo 401 Roma NW Albuquerque, NM 87102 (505) 841-6986

Judge Victoria Grant 401 Roma NW Albuquerque, NM 87102 (505)841-8261

BAKERSFIELD: Rescue Mission 830 Beale Bakersfield, CA 93306 (661)325-0863 Contact: Dan Bayous

Kern County Superior Court Judge HA (Skip) Staley 1215 Truxtun Avenue Bakersfield, CA 93304 (661) 861-2639

Greater Bakersfield Legal Assist. 615 California Avenue Bakersfield, CA 93301 (661) 334-4676 Contact: Walter Williams Joshua H. Rudnick, Esq

Bakersfield Homeless Shelter 1600 East Truxtun Avenue Bakersfield, CA 93306 (661) 322-9199 Contact: Lucio Sanchez Diana Campbell Rice

Deputy Public Defender The Law Offices of the Public Defender of Kern County (661) 868-4832 or (661) 868-1799 Contact: Teryl Wakeman Mark Arnold

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FRESNO: Veterans Crisis Programs Of Central California 2735 E. Woodward Avenue Fresno, CA 93721 (559) 486-5701 (800) 611-6262 Contact: Daniel R Hartman

Law Offices Public Defender County of Fresno 2220 Tulare Street, Suite 300 Fresno, CA 93721 (559) 488-3546

The Poverello House P.O. Box 12225 Fresno, CA 93777 (559) 498-6988 Contact: Michael Purtel

Judge Dale Ikeda Fresno Superior Court 1100 Van Ness Avenue Fresno, CA 93724-0002 (559) 488-6792

Sandy V. Silva Fresno Superior Court 1100 Van Ness Avenue Fresno, CA 93724-0002 (559) 488-6792

LOS ANGELES: Homeless Prevention Law Project Public Counsel 601 S. Ardmore Avenue Los Angeles, CA 90005 (213) 385-2977 ext 101 Contact: Lisa Jaskol

PLEASANTON: Judge Ron Hyde 5672 Stoneridge Drive Pleasanton, CA 94588 (925) 803-7918

SACRAMENTO: Public Defender 700 H Street, Suite 0270 Sacramento, CA 95814 (916) 874-5732

SAN DIEGO: San Diego Superior Court Hon. Peter C. Deddeh, Presiding 220 W. Broadway San Diego, CA 92110 (619) 531-3060

Public Defender 233 A Street, Suite 500 San Diego, CA 92101 (619) 38-4700 Contact: Steven R Binder Joan Dawson

Vietnam Veterans of San Diego 4141 Pacific Highway San Diego, CA 92110 (619) 497-0142 Contact: Andre Simpson

St. Vincent De Paul Village 1501 Imperial Avenue San Diego, CA 92101 (619) 233-8500 ext. 1233 Contact: Hector Sanchez

STOCKTON: San Joaquin Co. Superior Court 222 E Weber Ave Room 303 Stockton, Ca 95202 (209) 468-2960

VENTURA: Self-Help Legal Access Center Ventura Superior Court 800 S. Victoria Avenue, # 106 Ventura, CA 93009 (805) 654-3879 Contact: Tina Rasnow

How to start a Homeless Court? The American Bar Association (ABA) Commission on Homelessness and Poverty has developed a "how-to" manual for creating a homeless court. The step-by-step guide addresses the roles played by judges, clerks, prosecutors, public defenders, shelters, and homeless participants.

For further details and to order a copy, email the commission's director, Staff Attorney Amy Horton-Newell, at e-mail: hortona@staff.abanet.org or telephone 202-662-1693.

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Chapter 1212

EXPUNGEMENT OF INFORMATION OVERVIEW (PC Code Section 299) Reversal, dismissal or acquittal; Request for expungement of information; procedure; specimens from person no longer considered suspects (a) A person whose DNA profile has been included in the data bank pursuant to his chapter

shall have his or her DNA specimen and sample destroyed and searchable database profile expunged from the data bank program pursuant to the following procedures.

(b) If the person has no past or present offense or pending charge which qualifies for

inclusion within the state’s DMA and Forensic Identification Database and Data Bank Program and there otherwise is no legal basis for retaining the specimen or sample or searchable profile.

Any person described in sections (a) and (b) above may make a written request to have his or her specimen and sample destroyed and their searchable database profile expunged from the data program if:

1. Following the arrest, no accusatory pleading has been filed within the applicable period allowed by law charging the person with a qualifying offense as set forth in subdivision (a) of Section 296 or if the charges which served as a basis for including the DNA profile in the database have been dismissed prior to adjudication by the trier of fact.

2. The underlying conviction or disposition serving as a basis for including the DNA

profile has been reversed and the case dismissed. 3. The person has been found factually innocent of the underlying offense pursuant to

Section 851.8 of Section 781.5 of the Welfare and Institutions Code. 4. The defendant has been found not guilty or the defendant has been acquitted of the

underlying offense. PROCEDURES (299(c)(1)) The person requesting the data bank entry to be expunged must send a copy of his or her request to the trial court of the county where the arrest occurred, or that entered the conviction or rendered disposition in the case, to the DNA lab of the DOJ, and to the prosecuting attorney of the county in which the defendant was arrested or convicted, with proof of service on all parties. The court has the discretion to grant or deny the request for expungement. The denial of a request for expungement is a nonappealable order and shall not be reviewed by petition for writ. The DOJ shall destroy a specimen and sample and expunge the searchable DNA database profile pertaining to the person who has no present or past qualifying offense of record upon receipt of a

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court order that verifies the applicant has made the necessary showing of a noticed hearing that includes all of the following:

(A) The written request for expungement pursuant to this section. (B) A certified copy of the court order reversing and dismissing the conviction or case

or a letter from the district attorney as outlined (and other provisions as listed in PC 299(2)(b)).

(C) Proof of written notice to the prosecuting attorney and the DOJ that expungement

has been requested. (D) A court order verifying that no retrial or appeal of the case is pending, that it has

been at least 180 days since the defendant or minor has notified the prosecuting attorney and the DOJ of the expungement request, and that the court has not received an objection from the DOJ or prosecuting attorney

(E) Upon order from the Court, the DOJ shall destroy any specimen or sample collected

from the person and any searchable DNA database profile pertaining to the person unless the department determines that the person is subject to the provisions of this chapter as pursuant to PC 299(2)(d)

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Chapter 1213

JURISDICTIONAL PROBATION TRANSFERS

OVERVIEW When a person is on formal probation, the case may be transferred to another county provided the probationer intends to permanently reside there for the duration of the probationary period. The receiving county shall first be given an opportunity to determine whether the person does reside in and intends to stay in that county for the duration of probation. If the court finds that the person does not reside in or has not stated an intention to remain in that county for the duration of probation, it may refuse to accept the transfer. (PC 1203.9, CRC 4.530) OVERVIEW CHECKLIST

Transfer may be made only after noticed motion in the transferring court. (CRC 4.530(c)) A Residence Verification and Acceptance of Transfer form/order are submitted by the

probation department to the court for approval by the judicial officer. Once the order is signed by the judicial officer, the original order is returned to probation for further processing.

The receiving court must accept the entire jurisdiction over the case with the like power

to again request transfer of the case whenever it seems proper. (CRC 4.530(g)(3))

Within two weeks of the transfer order, any record of payments and the entire court file, except exhibits, shall be transmitted by the transferring court to the receiving court. (CRC 4.530(g)(5))

The receiving court will open a case file and transmit the new case number to the sending

court when returning the receipt for records submitted.

The court file must be received within 90 days of the signing of the order or the order is void. If the 90 day time period has passed, another request may be submitted for approval.

DEFINITIONS: Transferring Court: The superior court of the county in which the probationer is supervised on probation. Receiving Court: The superior court of the county to which transfer of the case and probation supervision is proposed.

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MOTION TO TRANSFER: When the probation officer of the transferring court is requesting the transfer. The probation officer files a Notice of Motion and Motion with receiving court. (CRC Rule 4.530(d)(1)) The filing clerk should check the notice for the following: The notice includes the date, time, and place set for hearing of the motion. The notice of motion and motion, along with supporting documents has been provided to:

A. The presiding judge of the receiving court or his/her designee; B. The probation officer of the receiving county or his/her designee; C. The prosecutor of the transferring county; D. The victim (if any); E. The probationer; and F. The probationer’s last counsel of record (if any).

A party other than the probation officer may request a transfer provided they have first requested in writing that the probation officer of the transferring county notice the motion. If the probation officer of the transferring county refuses to do so the party may make the motion to the transferring court. The motion must include a declaration that the probation officer has refused to bring the motion. (CRC Rule 4.530(2)-(3)) The filing clerk should check for the following:

1. The notice of transfer motion is given at least 60 days before the date set for hearing. 2. The notice includes the date, time, and place set for hearing of the motion. The notice

of motion and motion, along with supporting documents has been provided to:

a. The presiding judge of the receiving court or his/her designee; b. The probation officers of the transferring and receiving counties or his/her

designee; c. The prosecutor of the transferring county; d. The probationer; and e. The probationer’s last counsel of record (if any).

NOTE: The probation officer of the transferring county, upon receipt of the notice of motion, must provide notice to the victim, if any. The courtroom clerk should do the following: Prior to the hearing on the motion to transfer the clerk should check to see if the receiving court has provided written comments regarding the transfer. Any comments provided by the receiving court must be signed by a judge and must state why the transfer is or is not appropriate. The written comments should be received by the transferring court no later than 10 days prior to the date set for hearing on the motion for transfer. (CRC Rule 4.530(e)(1) and (2))

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The minutes of the hearing should include:

1. The Court has received and considered any comments provided the receiving court;

2. The probationer’s permanent residence is within the receiving court’s jurisdiction; 3. If applicable, the appropriate programs are available for the probationer, such as

substance abuse, domestic violence, sex offender, and collaborative court programs;

4. The amount still owing to the transferring court for fines, fees, and victim restitution orders.

5. If the transferring court will retain jurisdiction over fines, fees, and/or victim restitution or if jurisdiction will be transferred to the receiving court; and

6. Any orders affecting the victim, including enforcement of protective orders. TRANSFERRING COURT PROCEDURE: If the request for transfer is approved the transferring court’s hearing judge an order for transfer is issued. The order must include an order committing the probationer to the care and custody of the probation officer of the receiving county and an order for reimbursement of reasonable costs for processing the transfer to be paid to the county of the transferring court. (CRC Rule 4.530(g)(4)) Within two weeks of the order for transfer being issued the case file including probation reports shall be transferred to the receiving court. (PC1203.9 and CRC Rule 4.530(g)(7)) After the receiving court hears the motion for transfer, if approved the hearing judge will either issue an order for transfer or sign the Residence Verification and Acceptance of Transfer (Section 1203.9 PC) (see attached). The order for transfer and/or Residence Verification and Acceptance of Transfer is then submitted to the transferring court by the transferring county probation officer, along with a notice of hearing. The filing clerk at the transferring court should check for the following:

The notice includes the date, time, and place set for hearing of the motion. The notice has been provided to:

1. The prosecutor of the transferring county; 2. The probationer; and 3. The probationer’s last counsel of record (if any).

The clerk should include the following in the transferring packet to the receiving court:

1. A certified copy of the order to transfer; 2. A certified copy of the entire transferring court’s file, except for judicial notes, clerk’s

notes, and exhibits; 3. Any records of payments;

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4. A notice of transfer. The notice should be provided to all parties noticed with motion to transfer.

5. A receipt for records transferred. The receiving court, upon receipt of the case file, assigns a new case number and returns the receipt for records transferred to the transferring court.

NOTE: Check with your court for procedure. Some courts transfer the originals of the court’s file to the receiving court. If this is your court’s policy, a copy of the entire file should be retained by your court in the event of an appeal or writ. The transfer packet should be sent to the receiving court by certified mail, with return receipt requested. The tracking number may be attached to the notice of transfer in the event the file is misplaced. RECEIVING COURT PROCEDURE: Upon transfer of the case, the receiving court must accept the entire jurisdiction over the case. (PC1203.9 and CRC Rule 4.530(g)(3)). The filing clerk should do the following:

1. Open a new file and assign a new case number. 2. Complete the receipt for records and return it to the transferring court. A copy of the

receipt for records should be retained in the receiving court’s file. NOTE: Check with your court for procedure. Some courts will set the new case for a hearing to issue new protective orders, modify probation, and/or issue orders regarding fines, fees, and/or victim restitution. Attachments: Residence Verification and Acceptance of Transfer

CRM Glossary 1300 - 1

Chapter 1301

COMMON ABBREVIATIONS

ADM Admits; Admitted ALLEG Allegation(s) AOC Administrative Office of the Courts APD Alternate Public Defender A&P or A/P Arraignment and Plea APPTD Appointed ARR Arraigned AW Arrest Warrant BB Bail Bond BA Body Attachment (i.e. Attachment for Defaulter) BL Bail; On Bail BBF Bail Bond Forfeiture B&P or BP Business and Professions Code BFSA Bail Forfeiture Set Aside (and Vacated) BTS Bail to Stand BX Bail Exonerated BW Bench Warrant BWH Bench Warrant Held BWI Bench Warrant Issued BWR Bench Warrant Recalled CA City Attorney CB Cash Bail CB3 Cash Bail-Third Party Authorization CBA Cash Bail Applied CC Court Costs CERT SUP Certified Plea CJ County Jail COMM ISS Committed or Commitment Issued CONT Continued COP Change of Plea C/S or CS Community Service CR or CRDT Credit CRC California Rule of Court CRT Court CT Count CTS Credit Time Served CU In Custody (also I/C) ∆ or DEFT Defend ant or Defense ∆ IC or DIC Defendant in Court ∆ NIC or DNIC Defendant not in Court DCA Deputy City Attorney DDA Deputy District Attorney

CRM Glossary 1300 - 2

DEN Denied DEJ or DEOJ Deferred Entry of Judgment DISC Discovery DISCH Discharged DISM Dismissed DIV Division DT Demand Time DIV DEN Diversion Denied DIV GR Diversion Granted DIV RPT Diversion Report DIVERS Diversion DPD Deputy Public Defender DVC Domestic Violence Counseling DVT Diversion Terminated-- FFE Full Force and Effect F/P or FORM PROB Formal Probation FP Further Proceedings FTA Failed to Appear FW Forthwith G Guilty GPF Guilty Plea to Felony GP or PG Guilty Plea/Pleads Guilty GRTD Granted GT/WT Good Time/Work Time H&S or HS Health and Safety Code HRG Hearing HTA Held to Answer HTSP High Term State Prison ICO or I/CO In Custody Other Case INF Information INV Investigator IOJ Interests of Justice ISS Imposition of Sentence Suspended JL or JAIL County Jail or Jail Time JT Jury Trial JUV Juvenile LOP Lack of Prosecution LTSP Low Term State Prison LWOP Life Without Parole LWP Life With Parole MNTS Months MO or MTN Motion MODIF Modified; Modification MTC Motion to Continue MTSP Mid Term State Prison N/A Non-Appearance or No Appearance in Court

CRM Glossary 1300 - 3

NAC Non-Appearance Calendar NC Nolo Contendere or No Contest Plea NG Not Guilty NPT Nunc Pro Tunc O/C Off Calendar OR or O/R or O.R. Own Recognizance ORD Order Π or PEO Plaintiff, People, Prosecutor, or Prosecution PB Property Bond PC Probable Cause PCC Private Conflict Counsel P.C. or PC Penal Code PG Plead Guilty P/H, PE, Prelim Preliminary Exam Hearing PNG Pleads Not Guilty P.O. or PO Probation Officer P.O.C. Proof of Completion P.O.E Proof of Enrollment P&S or PHS Probation & Sentencing Hearing PPR Pre-Plea Probation Report PR Probation Report PRR or PR Prior PR ALLEG Prior Allegation PR ATTY Private Attorney PROB Probation PROG RPT Progress Report PT Pre Trial Hearing PTC Pre Trial Conference PV Probation Violation PVH Probation Violation Hearing QSHD Quashed RC or R/C Readiness Conference REF Referred REF ISS Referral Issued REIN or REINST Reinstated REM Remand REM’D Defendant Remanded to Custody REST Restitution REV Revoked RL or RLSD Released SB Surety Bond SC or S/C Settlement Conference SENT Sentencing SP State Prison S/P Summary Probation SP INT Spanish Interpreter

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SP ALLEG Special Allegations STC Same Terms and Conditions, or, Sentence to Court STP or STIP Stipulate; Stipulation SUSP Suspended T/C Terms and Conditions T/N True Name TOT Total TR or TRL or TD Trial, Trial Date TRC Trial Readiness Conference T/S Trial Setting T.S. Traffic School T/W or W/T Time Waived or Waived Time V.C. or VC, or CVC Vehicle Code VIOL Violation VP or PV Violation or Probation or Probation Violation WI or W&I Welfare and Institution Code WVS Waives WVS RTS Waives Constitutional Rights YRS Years $_ Amount Imposed + Plus (e.g. “T/W + 10 days” time waived plus 10 days) √ Present in Court (checked next to person’s name) ⊄ Complaint 1/3MTSP One Third the Mid Term State Prison # Number

CRM Glossary 1300 - 5

Chapter 1302

GLOSSARY

AB541/FCP A three- or six-month alcohol program that a defendant convicted of a DUI will be required to complete to retain his/her driving privileges.

ABROGATE To destroy or annul a former law by legislative act or constitutional authority; to repeal.

ABSTRACT A summarized record of the action taken by a court or other governmental agency.

ACCESSORY Contributing to, or aiding in, the commission of a crime. ACCOMPLICE A person who knowingly and voluntarily, and with common intent, unites

with the principal offender in a criminal act through aiding, abetting, advising, or encouraging the offender.

ACCUSED Defendant; person charged with a crime. ACQUITTAL Legal finding that defendant is not guilty. A verdict after a trial that a

defendant in a criminal case has not been proven guilty beyond a reasonable doubt of the crime(s) charged.

ACTION A court proceeding when one party prosecutes another for the protection or enforcement of a right, the prevention or correction of a wrong, or the punishment of an offense.

ADD-ON Used to refer to an additional matter that is being added to a specific calendar subsequent to the initial preparation of the calendar.

ADJOURMENT Postponing or recessing a court hearing to another date, time, or place. ADJUDICATE To exercise judicial authority in settling a case. ADJUDICATION The judgment or decision of the Court or jury regarding a case or cause. AD LITEM From the Latin “for the suit;” for the purpose of the suit. ADMIN PER SE Administration Per Se law adopted July 1, 1990 which requires the

Department of Motor Vehicles to suspend or revoke driving privileges of certain DUI offenders whose blood alcohol content measures more than .08%, or who refused to submit to a chemical test.

ADMISSIBLE Evidence that can be legally and properly introduced in a civil or criminal trial.

ADMISSION To admit. The voluntary acknowledgement that certain facts exist or are true, which are, of themselves, insufficient to be considered confessions of guilt.

ADMONISH To reprimand or warn a person to refrain from certain conduct. Example: “Defendant is admonished by the Court not annoy the witness.”

ADMONITION Any authoritative oral communication or statement by way of advice; caution by the Court.

ADMONITION to JURORS

A statement given by a judge to a panel of jurors advising them of: (1) their duty and expected conduct as juror, (2) the admissibility or non-admissibility of evidence, and, (3) the purpose for which admitted evidence may be considered.

ADVERSE WITNESS A person called to testify by the other side of the litigation. ADVERSARY PROCEEDING

One having opposing parties; contested.

ADW Abbreviation of the offense: Assault with a Deadly Weapon. AFFIANT A person who makes and signs an affidavit. AFFIDAVIT A written statement of facts given voluntarily and under oath. AFFIDAVIT OF Sworn statements alleging that a judge should be disqualified from hearing a

CRM Glossary 1300 - 6

PREJUDICE case because of bias or interest. Slang: judge is “papered.” AFFIRM To make a declaration under pain and penalty of perjury that certain facts are

true. AFFIRMATIVE DEFENSE

Without denying the charge, defendant raises extenuating or mitigating circumstances, such as insanity, self-defense, or entrapment to avoid civil or criminal responsibility.

AFFIRMED In the practice of appellate courts, the word means that the decree or order at issue is declared valid and will stand as rendered in the lower court.

AFFIRMATIVE DEFENSE

Without denying the charge, defendant raises an extenuating or mitigating circumstance such as insanity, self-defense, or entrapment to avoid civil or criminal responsibility.

AGGRAVATION Circumstance which may be considered as magnifying or adding to, the degree or moral culpability (punishment).

A.K.A. (or AKA) Abbreviation for “Also Known As”. See Alias. ALIAS Otherwise called: another name. Abbreviated A.K.A. or AKA ALLEGATIONS The statement in a pleading of what a party expects to prove; charges

contained in the accusatory pleading which affect the sentence imposed ALLEGE To state, assert, or charge that something is fact, although it has not yet been

proven so. AMEND To add to or alter. Example: “The Information is amended to add Count 2, a

violation of Section 211 of the Penal Code.” Or “The Complaint is amended by interlineation to add Count 3, a violation of Penal Code Section 647(b).”

AMICUS CURIAE From the Latin: “Friend of the Court.” One not a party to a case who volunteers to offer information on point of law or some other aspect of a case to assist the Court in deciding a matter before it.

ANSWER The defendant’s response to the plaintiff’s allegations as stated in a complaint APPEAL A request by the losing party in a lawsuit that a higher court review the

judgment or decision. A request for re-examination of a case by a higher court.

APPEARANCE Coming before the court; the formal act by which a defendant submits to the jurisdiction of the court.

APPELLANT The party who appeals a decision to a higher court. APPELLATE COURT A court having jurisdiction to review the law as applied to a prior

determination of the same case. ARRAIGNMENT In a criminal case, the proceedings in which an accused person is brought

before a judge to hear the charges filed against him or her, and enter a plea. The initial hearing after an arrest or holding to answer, which marks the beginning of the judicial process. The accused is given a copy of the accusatory pleading, informed of the charges filed, and advised of his/her constitutional rights. Bail is addressed at this hearing. The accused may enter a plea at this time.

ARREST The legal apprehension of a person charged with a crime. ARREST OF JUDGMENT

The act of staying a judgment, or refusing to render judgment in an action at law and in criminal cases, after verdict, for some matter intrinsic appearing on the face of the record, which would render the judgment, if given, erroneous or reversible. The Court, on motion of a defendant, shall arrest judgment if the indictment or information does not charge an offense or if the court was without jurisdiction of the offense charged.

CRM Glossary 1300 - 7

ASSAULT A threat, or attempt to do bodily harm which falls short of actual battery, may

or may not include physical violence. ATTACHMENT FOR DEFAULTER

A process issued by the court for the apprehension of a person other than a defendant.

ATTORNEY OF RECORD

The principal attorney in a lawsuit who signs all formal documents relating to the suit.

BAC Abbreviation for “blood alcohol content;” the result of a chemical test administered after an arrest for a DUI charge.

BAIL Money or other security (such as cash bail, surety bail bond, or real property) given to secure a person’s release from custody and guarantee his or her later appearance in court.

BAIL BOND A document purchased from a bondsman that is given to the court instead of money for bail. Once a bond is posted, the defendant is released from custody on the condition that the amount will be forfeited should the defendant not appear in court as directed.

BAIL COSTS Costs imposed at the discretion of a judge as a condition to setting aside and vacating bail forfeiture.

BAIL EXONERATION To relieve the surety of liability on a bond. (Abbreviated “BX”) The refund of a bail deposit to the depositor.

BAIL FORFEITURE The loss of a bail deposit for failure to appear in court at the designated time. (Abbreviated “BF”)

BAIL FORFEITURE SET ASIDE/VACATED

To terminate forfeiture proceedings (Abbreviated “BFSA”)

BAIL NOTICE A document produced by the court stating that unless a defendant appears in court or posts bail, a warrant of arrest will be issued.

BAIL REASSUMPTION

A document submitted by a surety agent to the court, after the bail forfeiture has been set aside, which renews the depositor’s obligations under the original bond. Once the court has signed the reassumption order, the defendant’s status is “on bail.”

BAIL RECEIPT A document given to a depositor of bail money to prove that bail has been received.

BAIL REFUND ORDERS

A document communicating the Court’s order to refund the bail amount to the depositor.

BAIL REINSTATED Bail is restored to the same position it was before forfeiture. BAIL SCHEDULES A listing of the recommended amount of bail for specific charges. A bail

schedule is determined by vote of the judges. (PC1269b) BAIL TO STAND Status or condition of bail, which is in good standing or valid, that guarantees

the appearance of the defendant on the next court date. (Abbreviated “BTS”) BAILIFF A peace officer assigned to the courtroom, responsible for security in the

courtroom and taking charge of the trial jurors and alternate jurors during deliberations.

BAR The Court, in its strictest sense, sitting in full term. The whole body of lawyers qualified to practice law within any geographical area; to prohibit an action.

BASE FINE A fine imposed as punishment for a crime, usually a misdemeanor, to which penalty assessments and surcharges may be added.

BASE TERM A term of imprisonment selected by the Court pursuant to the Determinate Sentencing Law.

CRM Glossary 1300 - 8

BASE TERM COUNT The principal period of imprisonment, which a defendant will serve before

any other term, imposed on the same case. BATTERY Any unlawful contact or other wrongful physical violence or constraint

inflicted on a person without his or her consent. BEING DULY SWORN Having taken an oath; bound by an oath. BENCH The desk where a judge sits in court, the body of judges referred to as a whole

or individually. BENCH WARRANT An order for process issued by the Court for the arrest of a person over whom

the Court has jurisdiction. BEYOND A REASONABLE DOUBT

The stand in a criminal case requiring that the jury is satisfied to a moral certainty that the prosecution has proved every element of a crime. This standard of proof does not require that the evidence be so conclusive that all reasonable doubts are removed from the mind of the ordinary person.

BIFURCATION OF TRIALS

A trial heard in separate phases. Trials heard on two or more separate issues, one immediately following the other. For example: guilt phase and prior allegation phase, guilt phase and sanity phase, or guilty phase and penalty phase.

BINDOVER In felony cases, the transfer of a case to general jurisdiction court for arraignment after a preliminary hearing in a limited jurisdiction court is held determining that sufficient cause exists to prove that the defendant did commit the felony offense. Also referred to “bound over” or “held to answer.”

BLOOD TEST A chemical analysis of a blood sample from a person to determine the percentage of a foreign substance in the bloodstream.

BONA FIDE From the Latin: “for, in, or with good faith.” BOND A deed or instrument that binds, restrains, or obligates a person. In the courts,

a bond is a written statement that obligates one person to pay a specified amount of money to another if a certain condition occurs.

BOOKING The process of fingerprinting, photographing, and recording identifying data of a suspect following arrest.

BREATH TEST A chemical analysis of one’s breath to determine the percentage of alcohol present in a defendant’s blood.

BRIEF (1) A written summary or condensed statement of a series of ideas or a document. (2) A written statement prepared by one side in a lawsuit explaining its case. (3) A summary of a published opinion in a cause prepared for studying the case.

BURDEN OF PROOF The necessity of legal duty to prove a fact in dispute. The burden of proof is the obligation of a party established by evidence a necessary degree of belief concerning a fact in the mind of the trier of the facts; the burden of proving the issue or issues of a party’s cause. In criminal cases, the prosecution has the burden of proving a defendant guilty beyond a reasonable doubt.

BURGLARY An unlawful entry into the house or structure of another with intent to commit a felony therein, whether the felony is actually committed or not.

CALENDAR A list of cases set for hearing in specific department, on a given date and time; are referred to collectively as the department’s daily calendar. A list of cases pending before the court.

CALENDARED A case, which has been set for a specific date, time and department, whether for hearing or trial, is said to have been calendared.

CALIFORNIA YOUTH AUTHORITY (CYA)

State detention facility designated for juveniles who have committed violations of serious offenses and/or histories of offenses.

CRM Glossary 1300 - 9

CALJIC The book containing jury instructions used in criminal cases. California Jury Instructions - Criminal.

CAPITAL CRIME A crime punishable by death or life imprisonment without possibility of parole.

CAPITAL PUNISHMENT

The taking of a person’s life by the state as the legal penalty for criminal offenses.

CASE A lawsuit or term used to describe any pleading filed in a criminal, traffic, or civil division in a court of law.

CASE FILE The folder that contains the official court documents and all papers filed by the parties for a specific case.

CASE LAW A body of law created by judicial decisions. CASH BAIL The amount of bail set and paid to the court in cash. CAUSE A lawsuit, litigation, or action. Any question, civil or criminal, litigated or

contested, before a court of justice. CAVEAT A warning; a note of caution. A formal notice or warning given by an

interested party to a court, judge, or ministerial officer against the performance of certain acts within his or her power and jurisdiction.

CERTIFIED COPY A copy of a document, minute, or record, signed and certified as a true copy by the officer in whose custody the original is entrusted. A certified copy also requires a court seal and date of certification.

CERTIFIED PLEA The guilty plea entered by the defendant at the limited jurisdiction court hearing in a felony matter. The defendant is then bound over for sentencing in a general jurisdiction court hearing.

CERTIORARI A writ of common law origin issued by a superior to an inferior court requiring the latter to produce a certified record of a particular case tried. The writ is issued in order that the court issuing the writ may inspect the proceedings and determine whether there have been irregularities.

CHALLENGE An objection, such as when an attorney objects at a voir dire hearing to the seating of a particular person on a jury, may be a challenge for cause or peremptory challenge. An objection to a judge or juror hearing a cause generally based upon partiality.

CHALLENGE FOR CAUSE

Request to excuse a judge or juror for which a specific reason must be given. The Court has discretion to deny the challenge (differs from peremptory challenge).

CHALLENGE TO JURORS

An objection made to prospective trial juror(s). Can be peremptory or for cause.

CHAMBERS The private room or office of a judge, any place in which a judge hears motions, signs papers, or does other business pertaining to his or her office, when he or she is not holding a session of court.

CHANGE OF VENUE The removal of a lawsuit t begun in one county or district to another county or district for trial, often because of pre-trial publicity, which makes it difficult to impanel an impartial jury. Among the limited jurisdiction courts, a change of venue may be accomplished by transferring a case from one judicial district to another.

CHARGE The specific crime the defendant is accused of committing. Accusation of a crime by a formal complaint, information, or indictment.

CHARGE TO JURY The final address by a judge to the jury before the verdict, in which the judge instructs the jury as to the rules of law which apply to the various issues, and which they must observe.

CRM Glossary 1300 - 10

CIRCUMSTANTIAL EVIDENCE

Testimony not based on actual personal knowledge or observation of the facts but of other facts from which deductions are drawn, showing indirectly the fact sought to be proved. Evidence, which merely suggests something by implication. Circumstantial evidence is indirect, as opposed to eyewitness testimony, which is direct.

CITATION An order, issued by the police, to appear before a magistrate or judge at a later date. A writ issued out of a court of competent jurisdiction, commanding a person therein named to appear and do something contained within the writ, or show cause why he or she should not.

CLERK’S TRANSCRIPT

Those pleadings, minute orders, affidavits, written opinions of the Court, trial exhibits, etc., designated by the attorneys which have been filed or lodged during the course of the litigation process, and are assembled with the appeal documents to collectively form the Clerk’s Transcript.

COMMITMENT A court order directing that a person convicted of (or charged with) a crime be kept in custody.

COMMITMENT/JUDG-MENT OF DEATH

A court order commanding that a defendant be put to death.

COMMUNITY SERVICE

A criminal sentence requiring the defendant to perform some work for the community as punishment for a crime. It may also be performed in lieu of a fine, or as a condition of probation.

COMPLAINT A document submitted by the prosecutor filed in the limited jurisdiction court that lists and describes the alleged offenses committed by the defendant.

CONCURRENT SENTENCE

Sentences for more than one violation that are to be served simultaneously rather than one after the other. Three five-year terms served concurrently, for example, add up to no more than five years imprisonment. Three five-year terms served consecutively impose a fifteen-year sentence. A 30- day sentence concurrent with 45-day sentence would equal a total of 45 days served.

CONFORM COPIES To make copies that reflect changes or additions made to an original. Example: The judge signs an original discovery order, adding two words. The clerk conforms a copy of the order by affixing the judge’s facsimile stamp and adding the words that the judge added to the original. Also, the file stamped copy of the original.

CONSECUTIVE SENTENCES

Successive sentences, one beginning at the expiration of another, imposed against a person convicted of two or more violations. Three five-year terms served consecutively, for example, impos e a fifteen-year term. A 30-day sentence imposed consecutively to a 45-day sentence would equal a total 75 days to be served.

CONSERVATORSHIP A court proceeding to appoint a manager for the financial affairs or the personal care of one who is either physically or mentally unable to handle either or both. (See GUARDIANSHIP). Conservators have less responsibility than guardians.

CONSOLIDATE To unite several actions into one by an order of the court when all actions are pending in the same court and involve substantially the same subject matter, issues, and defenses.

CONTEMPT OF COURT

An intentional disregard for the court’s authority or disobedience of a court order, punishable by fine or imprisonment.

CONTINUANCE Postponement of a legal proceeding to a later date.

CRM Glossary 1300 - 11

CONVICTION The final judgment on a verdict or finding of guilt, a plea of guilty, or a plea

of nolo contendere. CORPUS DELICTI Body of the crime. The objective proof that a crime has been committed.

Sometime refers to the body of the victim of a homicide, or the charred shell of a burned house, but the term has broader meaning. For the state to introduce a confession or convict the accused, it must prove a corpus delicti, i.e., the occurrence of specific injury or loss and criminal act as the source of the loss.

CORROBORATING EVIDENCE

Supplementary evidence that tends to strengthen or confirm the initial evidence.

COUNT The allegation(s) or charge(s) in a criminal complaint, indictment or information.

CROSS-EXAMINATION

The examination of a witness by the party opposed to the one who produced that witness.

CUSTODY The care and control of a thing or person. An exhibit is said to be the custody of the court. A defendant imprisoned is said to be in custody.

CRC California Rules of Court, or California Rehabilitation Center. CREDIT TIME SERVED

The status of a defendant who has pre-sentence custody credits, which equal or exceed the total amount of time imposed on a case or count by the Court.

CYA See “California Youth Authority” D.A. See “District Attorney” DAMAGES Compensation awarded by the Court to a person injured by the unlawful act or

negligence of another person. DE NOVO Anew. A “trial de novo” is a new or second trial of a case. DEATH WARRANT A court order setting date for execution. See also “Commitment/Judgment of

Death”. DECEASED Dead. A dead person. DECEDENT A deceased person. DEGREE Scope of an action or charge, or legal extent of guilt or innocence. DELIBERATIONS The act of weighing and examining the reasons for and against an act.

Commonly used to denote the time at the conclusion of the case when the jury retires to consider the evidence presented and reach their verdict.

DEMURRER A challenge to the legal sufficiency of a complaint or information. It must be filed in writing and prior to the entry of a plea.

DETERMINATE (SENTENCE)

Confinement for a fixed period as specified by statute.

DEUCE Colloquial term for Driving Under the Influence of alcohol or drugs. DIAGNOSTIC STUDY Test to determine and recommend appropriate treatment and confinement for

the defendant. DIRECT EVIDENCE Proof of facts by witnesses who saw acts done or heard words spoken, as

distinguished from circumstantial, or indirect evidence. (See Circumstantial Evidence)

DISCOVERY The pre-trial process by which one party gathers the evidence that will be relied upon at trial by the opposing party, e.g., fact, documents, testimony, witness names, etc.

DISMISS To discharge; to send an action out of court without further hearing. DISMISSAL The termination of a lawsuit. A “dismissal without prejudice” permits the suit

to be filed again at a later time. In contrast, a “dismissal with prejudice” prevents the lawsuit from being filed later.

CRM Glossary 1300 - 12

DISPOSITION The settling of a case by agreement of the parties without having a trial, or the dismissal of a case, or the rendering of a verdict, or finding by the Court at trial, i.e. an acquittal or conviction or the manner in which a case was settled.

DISTRICT ATTORNEY The officer appointed or elected by the voters in a judicial district who is charged with the duty of prosecuting all persons charged with violations of criminal laws.

DIVERSION The process of removing a defendant from the full judicial process on the condition that the accused undergo some sort of rehabilitation or make restitution for damages. Commonly granted for minor narcotic offenses. The defendant is allowed to complete a program of education, treatment, and rehabilitation while criminal proceedings are suspended. Upon successful completion of diversion, the charges are dismissed.

DMV ABSTRACT A form used to report the disposition or court order on a case to the Department of Motor Vehicles. Some DMV abstracts are generated by the court’s automated system and others are prepared manually.

DOCKET The formal minutes of the court, i.e. the court’s record of proceedings that documents motions filed, fees paid, court orders, and judgment in a criminal case. Also refers to the list of cases or calendar of causes set to be tried by the court.

DOUBLE JEOPARDY Protection against second prosecution for same offense after an acquittal or conviction, and against multiple punishments for same offense; putting a person on trial more than once for the same crime. The Fifth Amendment forbids Double Jeopardy. Jeopardy attaches in a jury trial when the 12 jurors are sworn to try the cause. Jeopardy attaches in a court trial when the first witness is sworn, or the first exhibit is introduced.

DUE PROCESS OF LAW

The right of all persons to receive the guarantees and safeguards of the law and the judicial process. Includes such constitutional requirements as adequate notice, assistance of counsel, the right to remain silent, to a speedy and public trial, to an impartial jury, and to confront and secure witnesses.

DUI Driving Under the Influence. E PLURIBUS UNUM One out of many. ELEMENTS OF A CRIME

Specific factors that define a crime; every element of which the prosecution must prove beyond a reasonable doubt in order to obtain a conviction.

EN BANC Literally, “in the bench.” Defendants are advised of their constitutional rights at the time of arraignment in a large group, rather than individually.

ENHANCEMENT An allegation added to a charge that, if proven, increases the sentence terms. Example: “ use of a gun in the commission of a crime” may be added to the felony charge (currently, the term of confinement would add 10 years to the base charge term).

ENJOIN To command or require; to order that something be stopped or performed. ENTRAPMENT A defense to criminal charges alleging that agents of the government induced

a person to commit a crime he or she otherwise would not have committed. ERROR CORAM NOBIS

Error committed in the proceedings “before us,” i.e., an error assigned as a ground for reviewing, modifying, or vacating a judgment in the same court in which it was rendered. A writ to bring before the court that pronounced judgment, errors in matters of fact which had not been put in issue or passed on, and were material to the legal proceeding.

ERROR CORAM VOBIS

Error in the proceedings “before you”, words used in a writ of error directed by a court of review to the court that tried the cause.

CRM Glossary 1300 - 13

ESTOPPEL A legal bar to alleging or denying a fact because of one’s own actions or

words to the contrary. ET AL Latin phrase meaning “and others”. ET SEQ Latin phrase meaning “and the following”. EVIDENCE Documents, testimony of witnesses or parties, or other objects of proof

presented to the trier of fact. EXCLUSIONARY RULE

The rule preventing illegally obtained evidence to be used in any trial or proceeding.

EXECUTION OF SENTENCE

Putting into effect a final judgment of the Court.

EXECUTION OF SENTENCE SUSPENDED

Imposing a sentence that will be held pending Court order. This is frequently ordered in combination with grants of probation. If the defendant is subsequently found in violation of probation, the suspension will be lifted and the sentence will be executed.

EXEMPLIFICATION An extremely formal type of certification in which the county clerk signs the certification of the document or records. The presiding judge then signs attesting to the fact of the identity of the county clerk, and that the signature is authentic. Finally, the county clerk signs again, this time attesting to the fact that the judge is a judge of the county’s superior court, and that the signature is authentic.

EXHIBIT Any physical objective introduced and identified in court and received by the judge as evidence.

EXONERATION The removal of a burden, charge, responsibility, or duty. A bail that is ordered exonerated is order returned to the party who posed it, either on his own behalf or on behalf of another.

EX-PARTE Latin phrase meaning “from one side only.” Appearance, before the court, on behalf of only one party without notice to any other party. For example, a request for a search warrant is an ex parte proceeding, since the person subject to the search is not notified of the proceeding and is not present during the hearing.

EX POST FACTO Latin phrase meaning “after the fact.” EXPERT WITNESS A person selected by the court or parties in a case, because of his/her

knowledge, special training, or skill to examine, estimate, ascertain things, and thereafter testify as to his/her opinion.

EXPUNGE To destroy, blot out, obliterate, erase, strike out wholly. The act of physically destroying information, including criminal records in files, computers, or other depositories.

EXPUNGEMENT Official and formal erasure of a record or partial contents of a record. The record of a felony conviction cannot be expunged.

EXTRADICTION The process by which a state surrenders to another state a person accused or convicted of a crime in the other state.

FACTUAL BASIS The underlying facts supporting a defendant’s guilty or nolo contendere plea. FARETTA ADVISEMENT

A requirement that the court must notify a defendant who wishes to proceed in propria persona of the charges alleged and the maximum punishment that may be imposed if convicted.

FELONY A crime punishable by death or imprisonment in a state prison. FILING Making paper a part of the court record by placing a clerk’s filing stamp on

the upper right hand corner of the documents, and dating and signing the filing stamp.

CRM Glossary 1300 - 14

FINE A sum of money a person must pay as punishment for a crime. (Also: Base Fine)

FISH First in Sheriff Handling. A person taken into custody in a courtroom. “Fish” or “New Booking” is written on the custody paper to alert the sheriff that the individual is not on the custody list and does not have a booking number.

FIX-IT-TICKET Colloquial term for a traffic citation issued due to a mechanical malfunction on a vehicle. The citation requires that the owner correct the fault and have the ticket signed by a law enforcement officer.

FORFEITURE The loss of property or money due to a breach of legal obligation. FORMAL PROBATION Court-ordered terms and conditions placed upon defendant in lieu of

imposition or execution or sentence. Formal probation may involve supervision of the defendant by a probation officer.

GAS CHROMATOGRAPH INTOXIMETER MARK IV (GCI)

An instrument used for measuring the amount of alcohol in a person’s blood. Sometimes referred to as Breathalyzer, because the air sample is obtained from a suspect’s breath.

G.C.I. MAINTENACE AND ACCURACY REPORT SUMMARY

(Usually two pages long) A long form showing a GCI machine’s performance on certain dates, generally before and after a date when a specific test was given, and reflects correct reading of the control samples.

GENERAL JURISDICTION

Court, formerly know as “Superior Court,” which has trial jurisdiction over felony cases as well as jurisdiction over mental health and juvenile matters.

GOOD TIME/ WORK TIME

A reduction in sentence time in prison or jail as a reward for good behavior. The defendant is given credit for good conduct.

GRAND JURY A group of citizens who are sworn to inquire of public offenses, which are committed in or are prosecuted within the county. The county’s population determines the quantity of grand jurors. Those with a population of less than 4 million have grand juries composed of 19 members, while counties with populations that exceed this limit have grand juries composed of 23 members.

GUARDIANSHIP Legal right given to a person to be responsible for the food, housing, health care and other necessities of a person deemed incapable of providing these necessities for himself or herself. A guardian may also be given responsibility for person’s financial affairs, and thus perform as a conservator. (See Conservatorship).

GUARDIAN AD LITEM

A person appointed by a Court to look after the interests of a minor or an incapacitated person whose property or rights are involved in litigation.

HABEAS CORPUS From the Latin: “You have the body”. A writ that commands that a person be brought before a court or judge. Most commonly, a writ enforcement for authorities to produce a prisoner they are holding and legally justify his or her detention.

HABITUAL TRAFFIC OFFENDER

A designation given to a defendant that commits subsequent or serial vehicle code offenses involving alcohol or drugs, or driving on suspended license.

HARMLESS ERROR An error committed during a trial that was corrected or was not serious enough to affect the outcome of a trial and therefore was not sufficiently harmful (prejudicial) to be reversed on appeal.

HEARING Generally, a formal proceeding, usually public, at which all parties are present without a jury.

HEARSAY Evidence that is not within the personal knowledge of a witness but was relayed to the witness by a third party. Hearsay evidence generally is not admissible in court, although there are many exceptions under which it can be admitted.

CRM Glossary 1300 - 15

HELD TO ANSWER In felony cases, the transfer of a case to the general jurisdiction court arraignment after a preliminary hearing, or after a waiver or preliminary hearing at the limited jurisdiction court level.

HOME DETENTION Use of an electronic device to monitor the whereabouts and restrict the activities of a sentenced party in lieu of having the party serve time in jail. Also called Electronic Monitoring.

HOMICIDE The killing of one human being by the act, procurement or omission of another. Excusable homicide is a death resulting from a lawful act, when no hurt was intended, e.g., a death resulting from an act of self-defense. Justifiable homicide is a death resulting from an intentional, but lawful act, e.g., the execution of a death sentence by an agent of the law (and can also apply to self-defense). Felonious homicide is a death resulting from any wrongful act, without any excuse or justification in law.

HOSTILE WITNESS A witness whose testimony is not favorable to the party who calls him or her as a witness. A hostile witness may be asked leading questions and may be cross-examined by the party who called him or her to the stand.

HUNG JURY A jury that cannot reach a verdict. IMMUNITY A grant by the court, in which someone will not face prosecution in return for

providing criminal evidence. IMPEACHMENT OF A WITNESS

An attack on the credibility (believability) of a witness, through evidence introduced for that purpose.

IMPOUND To seize and take into the custody of the law or court, usually refers to stray animals, vehicles, funds, records, or other items used in the commission of a crime.

INADMISSIBLE That which under the rule of evidence cannot be admitted or received as evidence.

IN CAMERA HEARING

In chambers, or in private. A hearing in camera takes place in the judge’s office or courtroom without the presence of the jury and the court spectators.

INCARCERATED Imprisoned or confined to jail or prison. INDEMNITY An obligation to provide compensation for a loss, hurt, or damage. INDETERMINATE SENTENCE

A sentence of imprisonment to a specified minimum and maximum period of time, specifically authorized by statute, subject to termination by a parole board or Board of Prison Terms after the prisoner has served the minimum term

INDICTMENT An accusation in writing by a sworn grand jury charging a person with a crime.

INDIGENT A person who is poor, needy, and who has no one to look to for support. An indigent defendant qualifies for services of court-appointed counsel.

IN FORMA PAUPERIS From the Latin: “In the way of pauper”; the official waiver of court costs incurred due to the insolvency of a filer.

INFORMAL PROBATION

Court ordered terms and conditions placed upon a defendant in lieu of imposition or execution of sentence. Informal probation means without supervision. Summary probation involves no probation officer, and the defendant is responsible directly to the court.

INFORMATION An accusatory pleading, filed by the prosecutor in the general jurisdiction court within 15 days after the defendant is held to answer, and which details the charges against the defendant.

CRM Glossary 1300 - 16

INFRACTION A violation of law that is not punishable by imprisonment but is punishable by

a fine. The defendant does not have the right to court appointed counsel (unless bail has been set on the case) or jury trial.

INJUNCTION A court order prohibiting a person from doing or continuing to do a specific act.

IN PROPRIA PERSONA

Latin for “in one’s own proper person.” A party that has waived his or her right to counsel and is representing himself or herself.

IN RE In the matter of; concerning. IN REM Against the property. INSTRUCTIONS TO JURY

Directions given by a judge to the jury immediately before they retire to begin deliberations, and sometimes prior to the presentation of evidence by either side. Instructions tell the jury what laws apply to the case.

INTERLINEATION The act of writing between the lines of an instrument. For example, a charging complaint may be amended by interlineation by writing the court ordered modification on the document.

JUDGE PRO TEMPORE

A temporary judge or commissioner, an attorney selected by the judges of the limited or general jurisdiction courts to preside over court hearings (usually minor in nature).

JUDGMENT A sentence in a criminal case upon conviction. JUDICIAL COUNCIL The Judicial Council is made up of attorneys, judges, and legislators whose

responsibility is the administration of the state’s judicial system. The state judicial system was established to standardize court administration, practice, and procedure by adopting and enforcing rules.

JUDICIAL SECRETARY

A secretary assigned to a number of judges within a district.

JURISDICITON The authority, capacity, power, or right of a court to hear and decide a legal matter. Jurisdiction of the court may be over a person, territory, or subject matter, as determined by constitution or statute.

JURY A body of 12 persons selected from the citizens of a particular district to decide issues of fact according to the instructions given to them by the Court as to the law that applies in a particular case.

JURY TRIAL A trial decided by a verdict of a jury, legally impaneled and sworn. In criminal cases the verdict must be unanimous.

JUVENILE A person under the age of 18. KNOWINGLY AND WILLINGFULLY

This phrase, in reference to violation of a statute, means consciously and intentionally.

LACHES, ESTOPPEL BY

A failure to do something that should be done or to claim or enforce a right at a proper time.

LATERN-PETRIS-SHORT ACT (L.P.S)

Welfare and Institution Code Sections 5000-5550; the legislative intent of which is: (1) To end the inappropriate, indefinite, and involuntary commitment of mentally disordered persons, impaired by chronic alcoholism, and to eliminate legal disabilities; (2) To provide prompt evaluation and treatment of persons with serious mental disorders or impaired by chronic alcoholism; (3) To guarantee and protect public safety; (4) To safeguard individual rights through judicial review; (5) To provide individualized treatment, supervision, and placement services by a conservatorship program for gravely disabled persons;

CRM Glossary 1300 - 17

(6) To encourage the full use of all existing agencies, professional personnel, and public funds to accomplish these objectives and to prevent duplication of service and unnecessary expenditure; and, (7) To protect mentally disordered persons and developmentally disabled persons from criminal acts.

LEADING QUESTION A question that suggests the answer desired of the witness. A party generally may not ask witnesses leading questions; leading questions may be asked only of hostile witnesses and on cross-examination.

LEAVE OF COURT Permission obtained from a Court to take some action, which, without such permission, would not be allowable, e.g., to receive an extension of time to answer complaint.

LIABLE Legally responsible. LIBEL Published words or pictures that falsely and maliciously defame a person.

Libel is published; slander is spoken. LIEN A legal claim against another person’s property as security for debt. A lien

does not convey ownership of the property, but gives the lien holder a right to have his or her debt satisfied out of the proceeds of the property if the debt is not otherwise paid.

LIMITED JURISDICTION

Court formerly known as “Municipal” or “Justice”; courts that have trial jurisdiction over misdemeanor and infraction cases.

LITIGANT A party to a lawsuit. LITIGATION A lawsuit. LIVESAY LETTER Prosecutors submit this letter to the court stating their intention to seek or not

seek the death penalty on a capital offense. LODGE To leave a document, record, or other evidentiary item with the court for its

reference and use during a hearing or trial without filing it. MAGISTRATE Judicial officer exercising some of the functions of a judge; also, refers in a

general way to a judge. All superior court judges are magistrates. A magistrate is a judicial officer having the power to issue arrest warrants.

MANDAMUS “We command”. A writ issued by a court ordering a public official to perform an act.

MANSLAUGHTER The unlawful killing of a person without any deliberation. Voluntary manslaughter is the unlawful taking of human life under circumstances short of premeditated intent to kill. Involuntary manslaughter is the unintentional taking of human life as a result of performing an unlawful act, or in negligently performing a lawful act.

MENTAL INCOMPETENCY

Established when a person is incapable of understanding and acting with discretion in the ordinary affairs of life. The defendant is unable to participate in their defense in a criminal matter.

MINUTE ORDER A memorandum of the orders and proceedings of the court made by the court clerk and maintained as a permanent record pursuant to statute. The minute order is the official record of criminal proceedings.

MIRANDA WARNING Requirement that the police tell a suspect in their custody of his/her constitutional rights before they question him/her; so named as a result of the Miranda v. Arizona ruling by the United States Supreme Court.

MISDEMEANOR Criminal offenses lower than felonies and generally those punishable by fine, penalty, forfeiture or imprisonment other than a state penitentiary. Misdemeanor may be punishable by a maximum of (1) year in country jail and/or a $1000 fine.

CRM Glossary 1300 - 18

MISTRIAL A trial that is terminated before a verdict is reached, either due to extraordinary circumstance, fundamental error prejudicial to the defendant, or due to a hung jury.

MITIGATION Circumstance which may be considered as extenuating or reducing the degree of moral culpability (of punishment).

MODIFICATION A change or alteration. In modification of sentence, the term of punishment for a defendant is changed.

MOTION An oral or written request made by a party to the court for a ruling on a particular point.

MOTION IN LIMINE A pretrial motion requesting the Court to prohibit opposing counsel from referring to or offering evidence on matters so highly prejudicial to a moving party that curative instructions cannot prevent a pre-dispositional effect on the jury.

MURDER The unlawful killing of a human being by another with malice aforethought, either expressed or implied.

NDA Narcotic Drug Addiction as defined within Welfare and Institutions Code Section 3051. A defendant who has been found to be addicted is eligible, if sentence to state prison, to be committed to the California Rehabilitation Center.

NO CONTEST See “Nolo Contendere”. NOLO CONTENDERE A Latin phrase meaning, “I will not contest it.” In a criminal matter, if the

defendant pleads “nolo contendere,” he or she neither admits or denies the charges. Although considered the same as a guilty plea in a criminal case, a nolo contendere plea cannot be used against the defendant in a civil action based on the same acts.

NOTICE Any notification of a legal proceeding. NUNC PRO TUNC A Latin phrase meaning “now for then”. Applied to acts that are allowed after

the time when they should have been done. It is a retroactive correction that was not documented, or done incorrectly, in the past, and applies only to ministerial functions, and not those involving discretion.

OATH A solemn affirmation, declaration, or promise made under a sense of responsibility for the truth of the matter stated.

OBJECTION The act of one party who objects to a statement or procedure in the course of a hearing. An objection is either sustained or overruled by the judge.

OFF CALENDAR (O/C) No longer scheduled on the court calendar for a particular hearing or trial date.

OPENING STATEMENT

An outline of anticipated proof to advise the jury or Court of facts relied upon and of issues involved, and to give a general picture of the facts and situations so that the jury or Court will be able to understand the evidence.

OPINION A document returned from an appellate court stating the analysis and holdings made on a case that was appealed. (See Remittitur.) The opinion may be ordered published if it sets new legal precedence.

ORDER TO SHOW CAUSE

Court order commanding a litigant to appear in court at a specific date and time, and show cause to the Court’s satisfaction why he or she should not be compelled to perform a certain act, or cease a certain act.

OVERRULE Judge’s decision not to allow an objection; also, decision by higher court finding that a lower court’s decision was in error.

OWN RECOGNIZANCE

Release of a person from custody without the payment of any bail or posting of bond.

CRM Glossary 1300 - 19

PARDON A form of executive clemency; preventing criminal prosecution or removing

or extinguishing a criminal conviction. PAROLE The supervised conditional release of a prisoner before the expiration of his or

her sentence. If the parolee observes the conditions, he or she need not serve the rest of his or her prison term.

PENALTY ASSESSMENT

An assessment imposed on fines, penalties, and bail forfeitures collected by the courts for various offenses.

PEOPLE V. UNITED BONDING INS

A case ruling authorizing the court to forfeit bail when a defendant fails to appear without sufficient cause. The court must forfeit the bail on the date of the hearing (nunc pro tunc is not allowed).

PEOPLE V. WEST Conditional plea of guilty based on the Court’s indicated sentence. PEREMPTORY CHALLENGE

An objection to a judge or juror. No specific reason for an objection is stated or required.

PERJURY The criminal offense of making a false statement under oath. PLEA The formal response of a defendant to the charge(s). PLEADING The written statement of fact and law filed by the parties to a lawsuit. POINTS & AUTHORITIES

A document used in support of, or in opposition to, a motion containing points; distinct propositions or questions of law, and authorities; citations to statute or judicial decision, which support the legal position contended.

POLLING OF THE JURY

The act, after a jury verdict has been announced, of asking jurors individually whether they agree with the verdict.

PRE Latin phrase meaning “in front of”. A pre-trial hearing is a hearing held prior to the beginning the trial on a case.

PREJUDICIAL Tending to injure or impair, leading to premature judgment or unwarranted opinions.

PRELIMINARY HEARING

Also preliminary examination hearing. A hearing to determine if there’s enough evidence of a crime and probable cause to believe that the crime was committed by the defendant.

PRE-PLEA PROBATION REPORT

A pre-sentence report ordered pursuant to Code of Civil Procedure Section 131.3.

PREPONDERANCE OF THE EVIDENCE

Greater weight of evidence, or the evidence that is more believable and convincing than the opposing side’s evidence; not measured necessarily by the greater number of witnesses. Evidence that would prove that something is more likely to have occurred than not. The common standard of proof in a civil case.

PRE-SENTENCE REPORT

A report prepared by the probation department for the judge’s reference when sentencing a defendant. Describes defendant’s background, financial, family, and employment status; community ties, criminal history, and facts of the instant offense.

PRIMA FACIE EVIDENCE

Evidence which is sufficient to establish a given fact. Prima facie is from the Latin: “from first view”.

PROBABLE CAUSE A reasonable ground for belief in certain alleged facts. A set of probabilities grounded in the factual and practical considerations that govern the decisions of reasonable and prudent persons, and is more than mere suspicion but less than the quantum of evidence required for conviction.

CRM Glossary 1300 - 20

PROBATION An alternative to imprisonment allowing a person found guilty of an offense

to stay in the community. Court-ordered terms and conditions placed upon a defendant in lieu of imposition or execution of sentence. Formal probation involves supervision of the defendant by a probation officer. Informal or summary probation involves no probation officer; the defendant is responsible directly to the court. A violation of probation can lead to its revocation and the imposition or execution of sentence.

PROBATION HEARING AND SENTENCING

A hearing held after the conclusion of a criminal proceeding, where the defendant, having been found guilty or made a plea of guilty or nolo contendere, is formally sentenced (i.e., judgment is pronounced) by the Court.

PROBATION REPORT A report prepared by the probation department which sets forth the history of crimes, background of a defendant, and recommendations for sentencing. Used by counsel and the Court for plea negotiations and for sentencing.

PRO BONO For the public good. When lawyers represent clients without a fee, they are said to be working pro bono.

PROOF OF SERVICE The document filed with the court to provide formal proof that a document was officially “served” (i.e., given to) a party to the action. The document reflects the date and manner of service, and other requirements as set forth by the Code or Civil Procedures.

PRO PER See In Propria Persona. PRO SE Person acting as his or her own attorney, whether or not he or she is a lawyer. PROSECUTION Agency responsible for initiating proceedings in a criminal case by making an

affidavit charging a named person with the commission of a criminal offense; takes charge of the case and performs function of trial lawyer for the People.

PROTRACTED Of considerable length; drawn out; extending over a period of time. PUBLIC DEFENDER An attorney appointed by the Court or employed by a governmental agency

whose work consists primarily of defending indigent defendants in criminal cases.

PUBLIC RECORD Court records that are available for inspection by the general public. PURGE To eliminate inactive records from court files. QUASH To make void; to vacate; to annul; to set aside. To vacate or void a warrant,

summons, subpoena, etc. RAP SHEET A summary of a person’s criminal history. REBUTTAL Evidence disproving other evidence previously given or reestablishing the

credibility or challenged evidence. RECIDIVIST Habitual criminal; a criminal repeater; an incorrigible criminal. RECORD All the documents and evidence plus transcripts of oral proceedings in a case.

The minute order is the official record of criminal proceedings. RECUSE In criminal matter, a rejection of the normal prosecution agency or judge

because of a conflict of interest. REDACT To adapt or edit for public record. RE-DIRECT EXAMINATION

Opportunity to present rebuttal evidence after one’s evidence has been subjected to cross-examination.

REINSTATED To bring back to a previous condition. A court order for a defendant to meet the same terms and conditions of probation or diversion as previously ordered. To place a bail bond back in the same condition it was prior to forfeiture.

REMAND The legal term for returning the accused to custody to await further action.

CRM Glossary 1300 - 21

REMANDING ORDER An order to the sheriff directing him/her to hold the defendant in custody until

the date of the next appearance in court pending posting of a set amount of bail.

REMITTITUR The ruling of an appellate court. The transfer of records of a case from a court of appeal to the original trial court for further action or other disposition as ordered by the appellate court. The appeal opinion can affirm or reverse the appealable order.

REMOVAL ORDERS An order to the sheriff directing him/her to bring a defendant (or witness) to court on a given date. May be used when a person is not being held in custody on the case before the court for the same date. There is nothing regarding bail placed on a removal order. A removal order will not hold a defendant in custody.

REPLEVIN An action for the recovery of a possession that has been wrongfully taken. REST A party is said to “rest” or “rest its case” when it has presented all of the

evidence it intends to offer. RESTITUTION To return something to its owner or the person entitled to it. Restitution in a

criminal case involves the defendant’s reimbursing the victim of the crime for losses suffered as a result of the crime.

REVERSE Action of a higher court in setting aside or revoking a lower court decision. REVERSIBLE ERROR An appellate ruling identifying an error sufficiently prejudicial (harmful) to

justify reversing the judgment of a lower court. REVOKE To annul or make void by recalling or taking back, canceling, repealing,

reversing, or terminating. RULES OF EVIDENCE Standards governing whether evidence in a civil or criminal case is

admissible. SANCTION To concur, confirm, or ratify. In criminal matters, a penalty or punishment to

enforce obedience to the law. SANITY TRIAL A trial held pursuant to Penal Code Section 1026 to determine whether the

defendant was sane or insane at the time the offense was committed. If the defendant is found insane, then he/she is found to be not responsible for his/her criminal conduct because he/she lacks substantial capacity either to appreciate the criminality (wrongfulness) of his/her conduct, or to conform his/her conduct to the requirements of the law. Insanity is an affirmative defense to a crime.

SB-38 Slang for an eighteen to thirty month alcohol program that a defendant convicted of multiple Driving Under the Influence (VC23152) charges may be required to complete; “named” for Senate Bill 38.

SELF BAIL A deposit of cash bail where the defendant is recorded as the depositor. SELF DEFENSE Claim that an act otherwise criminal was legally justifiable because it was

necessary to protect a person or property from the threat or action of another. SELF-INCRIMINATION, RIGHT AGAINST

The constitutional right of people to refuse to give testimony against themselves that could subject them to criminal prosecution. The right is guaranteed by the Fifth Amendment to the U.S. Constitution. Asserting the right is often referred to as “taking the fifth”.

SELF SURRENDER Voluntary surrender of a party to the police or to the court. SENTENCE The formal pronouncement of judgment by the Court stating the punishment

to be imposed on the defendant after a finding of guilty or entry of a guilty plea.

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SEQUESTER An act of isolating jurors together during a trial to prevent them from being influenced by information received outside the courtroom. Sequestered jurors are usually housed in a hotel, have their meals together, and are given edited copies of newspapers and magazines, all in an attempt to keep them free from outside influences.

SERVICE The delivery of a legal document, such as a subpoena notifying a person of a lawsuit or other legal action taken against him or her. An authorized person in accordance with the formal requirements of the applicable laws delivers service, a formal legal notice.

SEVERANCE OF ACTIONS

To separate two or more criminal actions against one defendant into more than one courtroom or court hearings.

SEVERANCE OF TRIALS

To separate two or more criminal actions against one defendant into more than one trial; to separate two or more defendants charged in once case into two or more trials.

SPECIAL ASSESSMENT

An additional fee added to a fine as authorized by law.

STANDARD OF PROOF

The standard of proof is the measurement by which a party establishes, by evidence, a necessary degree of belief concerning a fact in the mind of the trier of the facts; the burden of proving the issue or issues of a party’s cause. In criminal cases, the standard of proof must be sustained beyond a reasonable doubt and to a moral certainty.

STANDING The legal right to bring a lawsuit. It is the right to take the initial step that frames legal issues for ultimate adjudication by the Court or jury.

STATEMENT OF FACTS

Any written or oral declaration of facts in a case.

STATUTE Any written law passed by a legislative body. STATUTE OF LIMITATION

The time limit in which an action may be instituted again a defendant.

STATUTORY TIME LIMIT

A time limit set by law.

STAY The act of stopping a proceeding by a court order. STAY OF EXECUTION An order that prevents the execution of an action, e.g., the serving of a

sentence. A stay may be granted on a motion by the defendant, or may be ordered pursuant a statutory law, e.g., Penal Code Section 654.

STAYED COUNT A sentence imposed on a count pursuant to Penal Code Section 654. STIPULATION An agreement between the parties or their attorneys. STRIKE (1) To delete or remove. (2) To dismiss an allegations before sentencing. (3)

A serious or violent felony prior conviction that is charged a prior allegation within an accusatory pleading, e.g., a second strike, or third strike.

SUA SPONTE Latin for “of its own will.” Commonly used to describe a conduct when a judge does something without being so requested by either party in a case. (The Court often gives jury instructions sua sponte.)

SUBPOENA A court order compelling a witness to appear and give testimony at a specified time and place.

SUBPOENA DUCES TECUM

A court order commanding a witness to bring certain documents or records to court, a court order indicating that documents must be submitted to the court by a certain date, but the custodian of records need not accompany the documents.

SUPPRESS Forbidding the use of evidence at a trial because it is improper or was improperly obtained.

CRM Glossary 1300 - 23

SURETY A party legally liable for a failure in the duty of another (as in a defendant’s failure to appear in court as promised by a bail bond).

SUSTAIN To grant, to support; to warrant. A Court order, allowing a party’s objection, or motion to prevail. When the Court sustains an objection to a question, the objection is supported, and the witness is not required to respond.

TAHL WAIVER A form signed by the defendant and the judge recording the advisement and waiver(s) of legal rights by the defendant who is entering a guilty or nolo contendere plea.

TEMPORARY RESTRAINING ORDER (T.R.O.)

A judge’s order forbidding certain actions until a full hearing can be held, usually of short duration.

TESTIFY To give evidence as a witness under oath. TICKET A citation. TIME WAIVER To relinquish the right to a statutory time limit in which a certain phase of the

legal process would normally take place. TRANSCRIPT Generally, a written document made from witness testimony. Also, an

official, written, verbatim record of everything said during a judicial proceeding.

TRIAL A judicial examination, conducted according to procedures set in law, of the issues between the parties in an action. There are two functions of every trial: to determine the facts, and to apply the law to the proven facts. A court trial is heard and decided by a judge. A jury trial is heard and decided by a jury.

TRIAL DE NOVO A new trial. TRUE BILL An indictment by a grand jury. TRUE SUMMARY GRANT

A Court’s order granting formal probation without benefit of a probation report, or the Court’s modification of a summary grant of probation to a formal grant of probation.

UNDERTAKING A promise given in the course of legal proceedings by a party or his/her counsel, generally as a condition to obtaining some concession from the Court or the opposite party.

VACATE To set aside. To remove or reverse a previous condition. VENIRE To come; to appear in court. A writ summoning persons to court to act as

jurors. More commonly used to describe the whole group of people (panel) called for jury duty from which jurors are selected; a group of prospective jurors.

VENUE The geographical limits of a court’s jurisdiction; the proper place for trial. VERDICT The final decision of guilty or not guilty, made by either the Court (court trial)

or a jury (jury trial). VIOLATION A breach of a right, duty, or law. VOIR DIRE “To speak the truth.” This phrase denotes the preliminary examination that

the Court and attorneys make of prospective jurors to determine their qualification and suitability to serve as jurors. Peremptory challenges or challenges for cause may result from such an examination.

WAIVER * The intentional or voluntary relinquishment of a known right. WAIVER OF RIGHTS FORM

A document usually used when a defendant is pleading guilty or nolo contendere to a charge. The defendant initials and signs the form so that it demonstrates the defendant is aware of his/her rights and is giving them up.

WARRANT A written order issued and signed by a judicial officer directing a peace officer to do something.

* See Addendum (p.25) for Waivers

CRM Glossary 1300 - 24

WITH PREJUDICE The party is forever barred from bringing a lawsuit or motion on the same claim or cause.

WITHOUT PREJUDICE

The party may bring a new lawsuit or petition the court for a rehearing on a motion or cause.

WITNESS A person who testifies under oath in a court of law as to what was seen, heard, or otherwise observed.

WRIT A written order or directive issued by a Court commanding that certain action be taken.

WRIT OF ATTACHMENT

Order that specified property be attached.

WRIT OF CERTIORARI

Order by the appellate court granting or denying a review of judgment.

WRIT OF EXECUTION A writ to put in force the judgment or decree of a Court. WRIT OF HABEAS CORPUS

Orders the release of someone who has been unlawfully imprisoned.

WRIT OF HABEAS CORPUS AD PROSEQUENDUM

An order prepared by the district attorney and the United States Attorney, signed by a superior court judge, directing the U.S. Marshal to deliver a prisoner housed in a federal facility located within the state of California for trial on a case pending in the superior court.

WRIT OF HABEAS CORPUS AD TESTIFICANDUM

Similar to Writ of Habeas Corpus Ad Prosequendum except the federal prisoner is ordered to appear as a witness in a Superior Court action, not as a defendant.

WRIT OF MANDAMUS

Orders the performance of any act designated by law to be part of a person’s duty or status. A writ issued from a court of superior jurisdiction directed to a private or municipal corporation, or any of its officers, or to an executive, administrative or judicial officer, or to an inferior court, commanding the performance of a particular act specified and belonging to his/her or their public, official or ministerial duty, or directing the restoration of the complainant to rights or privileges of which he or she has been illegally deprived.

WRIT OF MANDATE Orders the performance of any act designated by law to be part of a person’s duty to position or status.

WRIT OF PROHIBITION

A writ issued from a court of superior jurisdiction directed to the judge and parties of a suit in a inferior court, commanding them to cease from the prosecution of the same, upon a suggestion that the cause originally, or some collateral matter arising therein, does not belong to the jurisdiction, but to the cognizance of some other court.

CRM Glossary 1300 - 25

Chapter 1303

ADDENDUM TO GLOSSARY

WAIVERS

Arbuckle Waiver: People vs. Arbuckle, 22 Cal.3d 749 This case holds that the defendant has a right to have the same judge who takes the change of plea to also be the judge who sentences him/her. If the defendant agrees that a different judge may pronounce judgment on him/her, then the defendant will enter into an Arbuckle waiver. Arbuckle does not speak to whether or not the wavier applies to misdemeanors. If the judge takes an Arbuckle waiver on a misdemeanor, make an appropriate docket entry. Harvey Waiver: People vs. Harvey, 25 Cal.3d 754 A Harvey waiver is obtained from the defendant when the parties agree that the Court may consider all charges in a plea bargain (including dismissed charges/cases) when sentencing the defendant. Lopez Waiver: People vs. Lopez, 71 Cal. App.3d 568 If a defendant wishes to represent himself/herself in a criminal proceeding, the Court must find that he/she voluntarily and intelligently elects to do so. The case of People vs. Lopez sets forth suggestions by the Court of Appeals for establishing the necessary record that a defendant’s election to represent himself/herself was voluntarily and intelligently made. When a Lopez wavier is obtained from a defendant, make appropriate docket entries reflecting the waiver.

Jury Waiver: A defendant personally waives jury. Counsel for the defendant and the prosecutor join in the waiver.

Hill-Bracamante Wavier: Hill- 141 Cal.3d 661; Bracamante – 719 Cal.3d 644 A Hill-Bracamante waiver is obtained from the defendant when he/she gives up his/her right to have a separate jury trial to determine if he/she suffered a prior conviction of the same offense he/she is currently charged.

Personal Presence Waiver: PC 977 Misdemeanor cases: The defendant may appear at the arraignment through counsel unless ordered by the court. (PC977(a)(2)) It is preferable for defense counsel to have the defendant sign a waiver form.

Felony cases: A defendant charged with a felony must be personally present at the arraignment, time of plea, preliminary hearing, when evidence is taken during trial, and when sentence is imposed. (PC977(b)) A defendant accused of a felony may waive his/her presence for most other proceedings, but only with the Court’s permission and defense counsel’s approval, and after completing a waiver of personal presence form. The waiver is filed with the clerk following defendant’s signature, counsel’s approval, and the Court’s permission.