Code Section Group

Penal Code - PEN

PART 2. OF CRIMINAL PROCEDURE [681 - 1620]

  ( Part 2 enacted 1872. )

TITLE 10. MISCELLANEOUS PROCEEDINGS [1268 - 1424.5]

  ( Title 10 enacted 1872. )

CHAPTER 3. Compelling the Attendance of Witnesses [1326 - 1332]
  ( Chapter 3 enacted 1872. )

1326.
  

(a) The process by which the attendance of a witness before a court or magistrate is required is a subpoena. It may be signed and issued by any of the following:

(1) A magistrate before whom a complaint is laid or his or her clerk, the district attorney or his or her investigator, or the public defender or his or her investigator, for witnesses in the state.

(2) The district attorney, his or her investigator, or, upon request of the grand jury, any judge of the superior court, for witnesses in the state, in support of an indictment or information, to appear before the court in which it is to be tried.

(3) The district attorney or his or her investigator, the public defender or his or her investigator, or the clerk of the court in which a criminal action is to be tried. The clerk shall, at any time, upon application of the defendant, and without charge, issue as many blank subpoenas, subscribed by him or her, for witnesses in the state, as the defendant may require.

(4) The attorney of record for the defendant.

(b) A subpoena issued in a criminal action that commands the custodian of records or other qualified witness of a business to produce books, papers, documents, or records shall direct that those items be delivered by the custodian or qualified witness in the manner specified in subdivision (b) of Section 1560 of the Evidence Code. Subdivision (e) of Section 1560 of the Evidence Code shall not apply to criminal cases.

(c) In a criminal action, no party, or attorney or representative of a party, may issue a subpoena commanding the custodian of records or other qualified witness of a business to provide books, papers, documents, or records, or copies thereof, relating to a person or entity other than the subpoenaed person or entity in any manner other than that specified in subdivision (b) of Section 1560 of the Evidence Code. When a defendant has issued a subpoena to a person or entity that is not a party for the production of books, papers, documents, or records, or copies thereof, the court may order an in camera hearing to determine whether or not the defense is entitled to receive the documents. The court may not order the documents disclosed to the prosecution except as required by Section 1054.3.

(d) This section shall not be construed to prohibit obtaining books, papers, documents, or records with the consent of the person to whom the books, papers, documents, or records relate.

(Amended by Stats. 2007, Ch. 263, Sec. 30. Effective January 1, 2008.)

1326.1.
  

(a) An order for the production of utility records in whatever form and however stored shall be issued by a judge only upon a written ex parte application by a peace officer showing specific and articulable facts that there are reasonable grounds to believe that the records or information sought are relevant and material to an ongoing investigation of a felony violation of Section 186.10 or of any felony subject to the enhancement set forth in Section 186.11. The ex parte application shall specify with particularity the records to be produced, which shall be only those of the individual or individuals who are the subject of the criminal investigation. The ex parte application and any subsequent judicial order shall be open to the public as a judicial record unless ordered sealed by the court, for a period of 60 days. The sealing of these records may be extended for 60-day periods upon a showing to the court that it is necessary for the continuance of the investigation. Sixty-day extensions may continue for up to one year or until termination of the investigation of the individual or individuals, whichever is sooner. The records ordered to be produced shall be returned to the peace officer applicant or his or her designee within a reasonable time period after service of the order upon the holder of the utility records.

(b) As used in subdivision (a), “utility records” include, but are not limited to, subscriber information, telephone or pager number information, toll call records, call detail records, automated message accounting records, billing statements, payment records, and applications for service in the custody of companies engaged in the business of providing telephone, pager, electric, gas, propane, water, or other like services. “Utility records” do not include the installation of, or the data collected from the installation of pen registers or trap-tracers, nor the contents of a wire or electronic communication.

(c) Nothing in this section shall preclude the holder of the utility records from notifying a customer of the receipt of the order for production of records unless a court orders the holder of the utility records to withhold notification to the customer upon a finding that this notice would impede the investigation. Where a court has made an order to withhold notification to the customer under this subdivision, the peace officer or law enforcement agency who obtained the utility records shall notify the customer by delivering a copy of the ex parte order to the customer within 10 days of the termination of the investigation.

(d) No holder of utility records, or any officer, employee, or agent thereof, shall be liable to any person for (A) disclosing information in response to an order pursuant to this section, or (B) complying with an order under this section not to disclose to the customer, the order or the dissemination of information pursuant to the order.

(e) Nothing in this section shall preclude the holder of the utility records from voluntarily disclosing information or providing records to law enforcement upon request.

(f) Utility records released pursuant to this section shall be used only for the purpose of criminal investigations and prosecutions.

(Added by Stats. 1998, Ch. 757, Sec. 5. Effective January 1, 1999.)

1326.2.
  

(a) An order for the production of escrow or title records in whatever form and however stored shall be issued by a judge only upon a written ex parte application by a peace officer showing specific and articulable facts that there are reasonable grounds to believe that the records or information sought are relevant and material to an ongoing investigation of a felony violation of Section 186.10 or of any felony subject to the enhancement set forth in Section 186.11. The ex parte application shall specify with particularity the records to be produced, which shall be only those of the individual or individuals who are the subject of the criminal investigation. The ex parte application and any subsequent judicial order shall be open to the public as a judicial record unless ordered sealed by the court, for a period of 60 days. The sealing of these records may be extended for 60-day periods upon a showing to the court that it is necessary for the continuance of the investigation. Sixty-day extensions may continue for up to one year or until termination of the investigation of the individual or individuals, whichever is sooner. The records ordered to be produced shall be returned to the peace officer applicant or his or her designee within a reasonable time period after service of the order upon the holder of the escrow or title records.

(b) As used in subdivision (a), “holder of escrow or title records” means a title insurer that engages in the “business of title insurance,” as defined by Section 12340.3 of the Insurance Code, an underwritten title company, or an escrow company.

(c) Nothing in this section shall preclude the holder of the escrow or title records from notifying a customer of the receipt of the order for production of records unless a court orders the holder of the escrow or title records to withhold notification to the customer upon a finding that this notice would impede the investigation. Where a court has made an order to withhold notification to the customer under this subdivision, the peace officer or law enforcement agency who obtained the escrow or title records shall notify the customer by delivering a copy of the ex parte order to the customer within 10 days of the termination of the investigation.

(d) No holder of escrow or title records, or any officer, employee, or agent thereof, shall be liable to any person for (A) disclosing information in response to an order pursuant to this section, or (B) complying with an order under this section not to disclose to the customer, the order or the dissemination of information pursuant to the order.

(e) Nothing in this section shall preclude the holder of the escrow or title records from voluntarily disclosing information or providing records to law enforcement upon request.

(Added by Stats. 1998, Ch. 757, Sec. 6. Effective January 1, 1999.)

1327.
  

A subpoena authorized by Section 1326 shall be substantially in the following form:

The people of the State of California to A. B.:

You are commanded to appear before C. D., a judge of the ____ Court of ____ County, at (naming the place), on (stating the day and hour), as a witness in a criminal action prosecuted by the people of the State of California against E. F.

Given under my hand this ____ day of ____, A.D. 19____. G. H., Judge of the ____ Court (or “J. K., District Attorney,” or “J. K., District Attorney Investigator,” or “D. E., Public Defender,” or “D. E., Public Defender Investigator,” or “F. G., Defense Counsel,” or “By order of the court, L. M., Clerk,” or as the case may be).


If books, papers, or documents are required, a direction to the following effect must be contained in the subpoena: “And you are required, also, to bring with you the following” (describing intelligibly the books, papers, or documents required).

(Amended by Stats. 1998, Ch. 931, Sec. 403. Effective September 28, 1998.)

1328.
  

(a) A subpoena may be served by any person, except that the defendant may not serve a subpoena in the criminal action to which he or she is a party, but a peace officer shall serve in his or her county any subpoena delivered to him or her for service, either on the part of the people or of the defendant, and shall, without delay, make a written return of the service, subscribed by him or her, stating the time and place of service. The service is made by delivering a copy of the subpoena to the witness personally.

(b) (1) If service is to be made on a minor, service shall be made on the minor’s parent, guardian, conservator, or similar fiduciary, or if one of them cannot be located with reasonable diligence, then service shall be made on any person having the care or control of the minor or with whom the minor resides or by whom the minor is employed, unless the parent, guardian, conservator, or fiduciary or other specified person is the defendant, and on the minor if the minor is 12 years of age or older. The person served shall have the obligation of producing the minor at the time and place designated in the subpoena. A willful failure to produce the minor is punishable as a contempt pursuant to Section 1218 of the Code of Civil Procedure. The person served shall be allowed the fees and expenses that are provided for subpoenaed witnesses.

(2) If the minor is alleged to come within the description of Section 300, 601, or 602 of the Welfare and Institutions Code, and the minor is not residing with a parent or guardian, regardless of the age of the minor, service shall also be made upon the designated agent for service of process at the county child welfare department or the probation department under whose jurisdiction the child has been placed.

(3) The court having jurisdiction of the case shall have the power to appoint a guardian ad litem to receive service of a subpoena of the child and shall have the power to produce the child ordered to court under this section.

(c) If any peace officer designated in Section 830 is required as a witness before any court or magistrate in any action or proceeding in connection with a matter regarding an event or transaction which he or she has perceived or investigated in the course of his or her duties, a criminal subpoena issued pursuant to this chapter requiring his or her attendance may be served either by delivering a copy to the peace officer personally or by delivering two copies to his or her immediate superior or agent designated by his or her immediate superior to receive the service or, in those counties where the local agencies have consented with the district attorney’s office, marshal’s office, or sheriff’s office, where appropriate, to participate, by sending a copy by electronic means, including electronic mail, computer modem, facsimile, or other electronic means, to him or her personally, or to his or her immediate superior or agent designated by the immediate superior to receive the service. If the service is made by electronic means, the peace officer named in the subpoena, or his or her immediate superior or agency designated by his or her immediate superior shall acknowledge receipt of the subpoena by telephone or electronic means to the sender of origin. If service is made upon the immediate superior or agent designated by the immediate superior, the immediate superior or the agent shall deliver a copy of the subpoena to the peace officer as soon as possible and in no event later than a time which will enable the peace officer to comply with the subpoena.

(d) If the immediate superior or his or her designated agent upon whom service is attempted to be made knows he or she will be unable to deliver a copy of the subpoena to the peace officer within a time which will allow the peace officer to comply with the subpoena, the immediate superior or agent may refuse to accept service of process and is excused from any duty, liability, or penalty arising in connection with the service, upon notifying the server of that fact.

(e) If the immediate superior or his or her agent is tendered service of a subpoena less than five working days prior to the date of hearing, and he or she is not reasonably certain he or she can complete the service, he or she may refuse acceptance.

(f) If the immediate superior or agent upon whom service has been made, subsequently determines that he or she will be unable to deliver a copy of the subpoena to the peace officer within a time which will allow the peace officer to comply with the subpoena, the immediate superior or agent shall notify the server or his or her office or agent not less than 48 hours prior to the hearing date indicated on the subpoena, and is thereby excused from any duty, liability, or penalty arising because of his or her failure to deliver a copy of the subpoena to the peace officer. The server, so notified, is therewith responsible for preparing the written return of service and for notifying the originator of the subpoena if required.

(g) Notwithstanding subdivision (c), in the case of peace officers employed by the California Highway Patrol, if service is made upon the immediate superior or upon an agent designated by the immediate superior of the peace officer, the immediate superior or the agent shall deliver a copy of the subpoena to the peace officer on the officer’s first workday following acceptance of service of process. In this case, failure of the immediate superior or the designated agent to deliver the subpoena shall not constitute a defect in service.

(Amended by Stats. 2016, Ch. 59, Sec. 6. (SB 1474) Effective January 1, 2017.)

1328.5.
  

Whenever any peace officer is a witness before any court or magistrate in any criminal action or proceeding in connection with a matter regarding an event or transaction which he has perceived or investigated in the course of his duties, where his testimony would become a matter of public record, and where he is required to state the place of his residence, he need not state the place of his residence, but in lieu thereof, he may state his business address.

(Added by Stats. 1971, Ch. 636.)

1328.6.
  

Whenever any criminalist, questioned document examiner, latent print analyst, polygraph examiner employed by the Department of Justice, a police department, a sheriff’s office, or a district attorney’s office, an intelligence specialist or other technical specialist employed by the Department of Justice, a custodial officer employed in a local detention facility, or an employee of the county welfare department or the department which administers the county public social services program, is a witness before any court or magistrate in any criminal action or proceeding in connection with a matter regarding an event or transaction which he or she has perceived or investigated in the course of his or her official duties, where his or her testimony would become a matter of public record, and where he or she is required to state the place of his or her residence, he or she need not state the place of his or her residence, but in lieu thereof, he or she may state his or her business address, unless the court finds, after an in camera hearing, that the probative value of the witness’s residential address outweighs the creation of substantial danger to the witness.

Nothing in this section shall abridge or limit a defendant’s right to discover or investigate this information. This section is not intended to apply to confidential informants.

(Amended by Stats. 1984, Ch. 535, Sec. 1.)

1328a.
  

A telegraphic copy of a subpoena for a witness in a criminal proceeding may be sent by telegraph or teletype to one or more peace officers, and such copy is as effectual in the hands of any officer, and he must proceed in the same manner under it, as though he held the original subpoena issued.

(Added by Stats. 1963, Ch. 803.)

1328b.
  

Every officer causing telegraphic copies of subpoenas to be sent, must certify as correct, and file in the telegraph office from which such copies are sent, a copy of the subpoena, and must return the original with a statement of his action thereunder.

(Added by Stats. 1963, Ch. 803.)

1328c.
  

A peace officer must serve in his county or city any subpoena delivered to him by telegraph or teletype for service and must without delay make a return of the service by telegraph or teletype. Any officer making a return of service of a subpoena by telegraph or teletype must certify as to his actions in making the service and file in the telegraph office from which the return is sent a written statement with his signature in the same form as the return on an original subpoena. The service of a teletype subpoena is made by showing the original teletype to the witness personally and informing him of its contents and delivering to him a copy of the teletype.

(Added by Stats. 1963, Ch. 803.)

1328d.
  

Notwithstanding Section 1328, a subpoena may be delivered by mail or messenger. Service shall be effected when the witness acknowledges receipt of the subpoena to the sender, by telephone, by mail, over the Internet by e-mail or by completion of the sender’s online form, or in person, and identifies himself or herself by reference to his or her date of birth and his or her driver’s license number or Department of Motor Vehicles identification card number. The sender shall make a written notation of the identifying information obtained during any acknowledgment by telephone or in person. The sender shall retain a copy of any acknowledgment received over the Internet until the court date for which the subpoena was issued or until any further date as specified by the court. A subpoena issued and acknowledged pursuant to this section shall have the same force and effect as a subpoena personally served. Failure to comply with a subpoena issued and acknowledged pursuant to this section may be punished as a contempt and the subpoena may so state; provided, that a warrant of arrest or a body attachment may not be issued based upon a failure to appear after being subpoenaed pursuant to this section.

A party requesting a continuance based upon the failure of a witness to appear in court at the time and place required for his or her appearance or testimony pursuant to a subpoena, shall prove to the court that the party has complied with the provisions of this section. Such a continuance shall only be granted for a period of time which would allow personal service of the subpoena and in no event longer than that allowed by law, including the requirements of Sections 861 and 1382.

(Amended by Stats. 2010, Ch. 709, Sec. 16. (SB 1062) Effective January 1, 2011.)

1329.
  

(a) When a person attends before a magistrate, grand jury, or court, as a witness in a criminal case, whether upon a subpoena or in pursuance of an undertaking, or voluntarily, the court, at its discretion, if the attendance of the witness be upon a trial may by an order upon its minutes, or in any criminal proceeding, by a written order, direct the county auditor to draw his warrant upon the county treasurer in favor of such witness for witness’ fees at the rate of twelve dollars ($12) for each day’s actual attendance and for a reasonable sum to be specified in the order for the necessary expenses of such witness. The court, in its discretion, may make an allowance under this section, or under any appropriate section in Chapter 1 (commencing with Section 68070), Title 8, of the Government Code, other than Section 68093. The allowances are county charges.

(b) The court, in its discretion, may authorize payment to such a witness, if he is employed and if his salary is not paid by his employer during the time he is absent from his employment because of being such a witness, of a sum equal to his gross salary for such time, but such sum shall not exceed eighteen dollars ($18) per day. The sum is a county charge.

A person compensated under the provisions of this subdivision may not receive the payment of witness’ fees as provided for in subdivision (a).

(Amended by Stats. 1981, Ch. 184, Sec. 5.)

1329.1.
  

Any witness who is subpoenaed in any criminal action or proceeding shall be given written notice on the subpoena that the witness may be entitled to receive fees and mileage. Such notice shall indicate generally the manner in which a request or claim for fees and mileage should be made.

(Added by Stats. 1979, Ch. 67.)

1330.
  

No person is obliged to attend as a witness before a court or magistrate out of the county where the witness resides, or is served with the subpoena, unless the distance be less than 150 miles from his or her place of residence to the place of trial, or unless the judge of the court in which the offense is triable, or a justice of the Supreme Court, or a judge of a superior court, or, in the case of a minor concerning whom a petition has been filed pursuant to Article 16 (commencing with Section 650) of Chapter 2 of Part 1 of Division 2 of the Welfare and Institutions Code, by the judge of the juvenile court hearing the petition, upon an affidavit of the district attorney or prosecutor, or of the defendant, or his or her counsel, or in the case involving a minor in whose behalf a petition has been filed in the juvenile court, of the probation officer approving the filing of the petition or of any party to the action, or his or her counsel, stating that he or she believes the evidence of the witness is material, and his or her attendance at the examination, trial, or hearing is material and necessary, shall endorse on the subpoena an order for the attendance of the witness.

When a subpoena duces tecum is duly issued according to any other provision of law and is served upon a custodian of records or other qualified witness as provided in Article 4 (commencing with Section 1560) of Chapter 2 of Division 11 of the Evidence Code, and his or her personal attendance is not required by the terms of the subpoena, the limitations of this section shall not apply.

(Amended by Stats. 1987, Ch. 828, Sec. 86.)

1331.
  

Disobedience to a subpoena, or a refusal to be sworn or to testify as a witness, may be punished by the Court or magistrate as a contempt. A witness disobeying a subpoena issued on the part of the defendant, unless he show good cause for his nonattendance, is liable to the defendant in the sum of one hundred dollars, which may be recovered in a civil action.

(Enacted 1872.)

1331.5.
  

Any person who is subpoenaed to appear at a session of court, or at the trial of an issue therein, may, in lieu of appearance at the time specified in the subpoena, agree with the party at whose request the subpoena was issued, to appear at another time or upon such notice as may be agreed upon. Any failure to appear pursuant to such agreement may be punished as a contempt, and a subpoena shall so state. The facts establishing such agreement and the failure to appear may be shown by the affidavit of any person having personal knowledge of the facts and the court may grant such continuance as may be appropriate.

(Added by Stats. 1972, Ch. 393.)

1332.
  

(a) Notwithstanding the provisions of Sections 878 to 883, inclusive, when the court is satisfied, by proof on oath, that there is good cause to believe that any material witness for the prosecution or defense, whether the witness is an adult or a minor, will not appear and testify unless security is required, at any proceeding in connection with any criminal prosecution or in connection with a wardship petition pursuant to Section 602 of the Welfare and Institutions Code, the court may order the witness to enter into a written undertaking to the effect that he or she will appear and testify at the time and place ordered by the court or that he or she will forfeit an amount the court deems proper.

(b) If the witness required to enter into an undertaking to appear and testify, either with or without sureties, refuses compliance with the order for that purpose, the court may commit the witness, if an adult, to the custody of the sheriff, and if a minor, to the custody of the probation officer or other appropriate agency, until the witness complies or is legally discharged.

(c) When a person is committed pursuant to this section, he or she is entitled to an automatic review of the order requiring a written undertaking and the order committing the person, by a judge or magistrate having jurisdiction over the offense other than the one who issued the order. This review shall be held not later than two days from the time of the original order of commitment.

(d) If it is determined that the witness must remain in custody, the witness is entitled to a review of that order after 10 days.

(e) When a witness has entered into an undertaking to appear, upon his or her failure to do so the undertaking is forfeited in the same manner as undertakings of bail.

(Amended by Stats. 1987, Ch. 828, Sec. 87.)

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