Code Section Group

Penal Code - PEN

PART 2. OF CRIMINAL PROCEDURE [681 - 1620]

  ( Part 2 enacted 1872. )

TITLE 3. ADDITIONAL PROVISIONS REGARDING CRIMINAL PROCEDURE [777 - 883]

  ( Heading of Title 3 amended by Stats. 1951, Ch. 1674. )

CHAPTER 7. Examination of the Case, and Discharge of the Defendant, or Holding Him to Answer [858 - 883]
  ( Chapter 7 enacted 1872. )

858.
  

(a) When the defendant first appears for arraignment on a charge of having committed a public offense, the magistrate shall immediately inform the defendant of the charge against him or her, and of his or her right to the aid of counsel in every stage of the proceedings.

(b) If it appears that the defendant may be a minor, the magistrate shall ascertain whether that is the case, and if the magistrate concludes that it is probable that the defendant is a minor, and unless the defendant is a member of the Armed Forces of the United States and the offense charged is a misdemeanor, he or she shall immediately either notify the parent or guardian of the minor of the arrest or appoint counsel to represent the minor.

(c) For the purposes of this section, the Judicial Council shall revise its military service form to include information explaining the rights under Section 1170.9 and related statutes of individuals who have active duty or veteran status and shall include a space for the local court to provide the contact information for the county veterans service office. For purposes of this section, “active duty or veteran status” includes active military duty service, reserve duty status, national guard service, and veteran status.

(d) The court shall inform the defendant that there are certain provisions of law specifically designed for individuals who have active duty or veteran status and who have been charged with a crime. The court shall inform the defendant that if the defendant is on active duty in the United States military, or is a veteran of the United States military, the defendant may request a copy of the Judicial Council military form that explains those rights and may file that form with the court so that the defendant’s active duty or veteran status is on file with the court. The court shall advise the defendant that the defendant should consult with counsel prior to submitting the form and that the defendant may, without penalty, decline to provide this information to the court.

(e) If the defendant acknowledges active duty or veteran status and submits the Judicial Council military service form to the court, the defendant shall file the form with the court and serve the form on the prosecuting attorney and defense counsel. The form may be used to assist in determining eligibility for services pursuant to Section 1170.9. The court shall transmit a copy of the form to the county veterans service officer for confirmation of the defendant’s military service. The court shall also transmit a copy of the form to the Department of Veterans Affairs.

(Amended by Stats. 2014, Ch. 655, Sec. 1. (SB 1110) Effective January 1, 2015.)

858.5.
  

(a) In any case in which a defendant is, on his demand, brought before a magistrate pursuant to Section 822 after arrest for a misdemeanor Vehicle Code violation, the magistrate shall give such instructions to the defendant as required by law and inform the defendant of his rights under this section, and, if the defendant desires to plead guilty or nolo contendere to the charge in the complaint, he may so advise the magistrate. If the magistrate determines that such plea would be in the interest of justice, he shall direct the defendant to appear before a specified appropriate court in the county in which defendant has been arrested at a designated certain time, which in no case shall be more than 10 calendar days from the date of arrest, for plea and sentencing. The magistrate shall request the court in which the complaint has been filed to transmit a certified copy of the complaint and any citation and any factual report which may have been prepared by the law enforcement agency that investigated the case to the court in which defendant is to appear for plea and sentencing. If the court of which the request is made deems such action to be in the interest of justice, and the district attorney of the county in which that court sits, after notice from the court of the request it has received, does not object to such action, the court shall immediately transmit a certified copy of the complaint and the report of the law enforcement agency that investigated the case, and, if not, shall advise the requesting magistrate of its decision not to take such action.

When defendant appears for plea and sentencing, and if a copy of the complaint has been transmitted, the court shall read the copy of the complaint to him, and the defendant may plead guilty or nolo contendere. Such court shall have jurisdiction to accept the plea and impose a sentence. Such court shall notify the court in which the complaint was originally filed of the disposition of the case. If defendant does not plead guilty or nolo contendere, or if transmittal of a copy of the complaint has been refused or if a copy of the complaint has not been received, the court shall terminate the proceedings under this section and shall direct the defendant to appear before the court or magistrate by whom the warrant was issued on or before a certain day which in no case shall be more than five days after the date such direction is made.

(b) Any fines imposed by a court which is given authority to sentence pursuant to this section shall be remitted to the court in which the complaint was originally filed for disposition as required by law. The county of the sentencing court shall bear all costs incurred incident to acceptance of the plea and sentencing, and no part of such costs shall be deducted from the fine remitted to the court in which the complaint was filed.

(Added by Stats. 1965, Ch. 947.)

858.7.
  

(a) In any case in which the defendant has been convicted of a misdemeanor and is serving a sentence as a result of such conviction and there has been filed and is pending in another county a complaint charging him with a misdemeanor Vehicle Code violation, the defendant may appear before the court that sentenced him, and a magistrate of that court shall give such instructions to the defendant as required by law and inform the defendant of his rights under this section, and, if the defendant desires to plead guilty or nolo contendere to the charge in the complaint, he may so advise the magistrate. If the magistrate determines that such plea would be in the interest of justice, he shall direct the defendant to appear before a specified appropriate court in the county in which defendant is serving his sentence at a designated certain time for plea and sentencing. The magistrate shall request the court in which the complaint has been filed to transmit a certified copy of the complaint and any citation and any factual report which may have been prepared by the law enforcement agency that investigated the case to the court in which defendant is to appear for plea and sentencing. If the court of which the request is made deems such action to be in the interest of justice, and the district attorney of the county in which that court sits, after notice from the court of the request it has received, does not object to such action, the court shall immediately transmit a certified copy of the complaint and any report of the law enforcement agency that investigated the case, and, if not, shall advise the requesting magistrate of its decision not to take such action.

When defendant appears for plea and sentencing, and if a copy of the complaint has been transmitted, the court shall read the copy of the complaint to him, and the defendant may plead guilty or nolo contendere. Such court shall have jurisdiction to accept the plea and impose a sentence. Such court shall notify the court in which the complaint was originally filed of the disposition of the case. If defendant does not plead guilty or nolo contendere, or if transmittal of a copy of the complaint has been refused or if a copy of the complaint has not been received, the court shall terminate the proceedings under this section and shall direct the defendant to appear before the court in which the complaint was filed and is pending on or before a certain day.

(b) (1) Any fines imposed by a court which is given authority to sentence pursuant to this section shall be remitted to the court in which the complaint was originally filed for disposition as required by law. Except as otherwise provided in paragraph (2) of this subdivision, the county of the sentencing court shall bear all costs incurred incident to acceptance of the plea and sentencing, and no part of such costs shall be deducted from the fine remitted to the court in which the complaint was filed.

(2) In any case in which a defendant is sentenced to imprisonment pursuant to this section, and as a result of such sentence he is required to be imprisoned for a time in addition to, and not concurrent with, the time he is imprisoned as a result of the sentence he is otherwise serving, the county in which the complaint was originally filed shall bear the cost of such additional time of imprisonment that the defendant is required to serve. Such cost may be deducted from any fine required to be remitted pursuant to paragraph (1) of this subdivision to the court in which the complaint was originally filed.

(c) As used in this section, “complaint” includes, but is not limited to, a notice to appear which is within the provisions of Section 40513 of the Vehicle Code.

(Added by Stats. 1968, Ch. 973.)

859.
  

When the defendant is charged with the commission of a felony by a written complaint subscribed under oath and on file in a court within the county in which the felony is triable, he or she shall, without unnecessary delay, be taken before a magistrate of the court in which the complaint is on file. The magistrate shall immediately deliver to the defendant a copy of the complaint, inform the defendant that he or she has the right to have the assistance of counsel, ask the defendant if he or she desires the assistance of counsel, and allow the defendant reasonable time to send for counsel. However, in a capital case, the court shall inform the defendant that the defendant must be represented in court by counsel at all stages of the preliminary and trial proceedings and that the representation will be at the defendant’s expense if the defendant is able to employ counsel or at public expense if he or she is unable to employ counsel, inquire of him or her whether he or she is able to employ counsel and, if so, whether the defendant desires to employ counsel of the defendant’s choice or to have counsel assigned for him or her, and allow the defendant a reasonable time to send for his or her chosen or assigned counsel. If the defendant desires and is unable to employ counsel, the court shall assign counsel to defend him or her; in a capital case, if the defendant is able to employ counsel and either refuses to employ counsel or appears without counsel after having had a reasonable time to employ counsel, the court shall assign counsel to defend him or her. If it appears that the defendant may be a minor, the magistrate shall ascertain whether that is the case, and if the magistrate concludes that it is probable that the defendant is a minor, he or she shall immediately either notify the parent or guardian of the minor, by telephone or messenger, of the arrest, or appoint counsel to represent the minor.

(Amended by Stats. 1998, Ch. 931, Sec. 368. Effective September 28, 1998. Note: This section was added on June 5, 1990, by initiative Prop. 115.)

859.1.
  

(a) In any criminal proceeding in which the defendant is charged with any offense specified in Section 868.8 on a minor under the age of 16 years, or a dependent person with a substantial cognitive impairment, as defined in paragraph (3) of subdivision (f) of Section 288, the court shall, upon motion of the prosecuting attorney, conduct a hearing to determine whether the testimony of, and testimony relating to, a minor or dependent person shall be closed to the public in order to protect the minor’s or the dependent person’s reputation.

(b) In making this determination, the court shall consider all of the following:

(1) The nature and seriousness of the offense.

(2) The age of the minor, or the level of cognitive development of the dependent person.

(3) The extent to which the size of the community would preclude the anonymity of the victim.

(4) The likelihood of public opprobrium due to the status of the victim.

(5) Whether there is an overriding public interest in having an open hearing.

(6) Whether the prosecution has demonstrated a substantial probability that the identity of the witness would otherwise be disclosed to the public during that proceeding, and demonstrated a substantial probability that the disclosure of his or her identity would cause serious harm to the witness.

(7) Whether the witness has disclosed information concerning the case to the public through press conferences, public meetings, or other means.

(8) Other factors the court may deem necessary to protect the interests of justice.

(Amended by Stats. 2004, Ch. 823, Sec. 11. Effective January 1, 2005.)

859.5.
  

(a) Except as otherwise provided in this section, a custodial interrogation of any person, including an adult or a minor, who is in a fixed place of detention, and suspected of committing murder, as listed in Section 187 or 189 of this code, or paragraph (1) of subdivision (b) of Section 707 of the Welfare and Institutions Code, shall be electronically recorded in its entirety. A statement that is electronically recorded as required pursuant to this section creates a rebuttable presumption that the electronically recorded statement was, in fact, given and was accurately recorded by the prosecution’s witnesses, provided that the electronic recording was made of the custodial interrogation in its entirety and the statement is otherwise admissible.

(b) The requirement for the electronic recordation of a custodial interrogation pursuant to this section shall not apply under any of the following circumstances:

(1) Electronic recording is not feasible because of exigent circumstances. An explanation of the exigent circumstances shall be documented in the police report.

(2) The person to be interrogated states that he or she will speak to a law enforcement officer only if the interrogation is not electronically recorded. If feasible, that statement shall be electronically recorded. The requirement also does not apply if the person being interrogated indicates during interrogation that he or she will not participate in further interrogation unless electronic recording ceases. If the person being interrogated refuses to record any statement, the officer shall document that refusal in writing.

(3) The custodial interrogation occurred in another jurisdiction and was conducted by law enforcement officers of that jurisdiction in compliance with the law of that jurisdiction, unless the interrogation was conducted with intent to avoid the requirements of this section.

(4) The interrogation occurs when no law enforcement officer conducting the interrogation has knowledge of facts and circumstances that would lead an officer to reasonably believe that the individual being interrogated may have committed murder for which this section requires that a custodial interrogation be recorded. If during a custodial interrogation, the individual reveals facts and circumstances giving a law enforcement officer conducting the interrogation reason to believe that murder has been committed, continued custodial interrogation concerning that offense shall be electronically recorded pursuant to this section.

(5) A law enforcement officer conducting the interrogation or the officer’s superior reasonably believes that electronic recording would disclose the identity of a confidential informant or jeopardize the safety of an officer, the individual being interrogated, or another individual. An explanation of the circumstances shall be documented in the police report.

(6) The failure to create an electronic recording of the entire custodial interrogation was the result of a malfunction of the recording device, despite reasonable maintenance of the equipment, and timely repair or replacement was not feasible.

(7) The questions presented to a person by law enforcement personnel and the person’s responsive statements were part of a routine processing or booking of that person. Electronic recording is not required for spontaneous statements made in response to questions asked during the routine processing of the arrest of the person.

(8) The interrogation of a person who is in custody on a charge of a violation of Section 187 or 189 of this code or paragraph (1) of subdivision (b) of Section 707 of the Welfare and Institutions Code if the interrogation is not related to any of these offenses. If, during the interrogation, any information concerning one of these offenses is raised or mentioned, continued custodial interrogation concerning that offense shall be electronically recorded pursuant to this section.

(c) If the prosecution relies on an exception in subdivision (b) to justify a failure to make an electronic recording of a custodial interrogation, the prosecution shall show by clear and convincing evidence that the exception applies.

(d) A person’s statements that were not electronically recorded pursuant to this section may be admitted into evidence in a criminal proceeding or in a juvenile court proceeding, as applicable, if the court finds that all of the following apply:

(1) The statements are admissible under applicable rules of evidence.

(2) The prosecution has proven by clear and convincing evidence that the statements were made voluntarily.

(3) Law enforcement personnel made a contemporaneous audio or audio and visual recording of the reason for not making an electronic recording of the statements. This provision does not apply if it was not feasible for law enforcement personnel to make that recording.

(4) The prosecution has proven by clear and convincing evidence that one or more of the circumstances described in subdivision (b) existed at the time of the custodial interrogation.

(e) Unless the court finds that an exception in subdivision (b) applies, all of the following remedies shall be granted as relief for noncompliance:

(1) Failure to comply with any of the requirements of this section shall be considered by the court in adjudicating motions to suppress a statement of a defendant made during or after a custodial interrogation.

(2) Failure to comply with any of the requirements of this section shall be admissible in support of claims that a defendant’s statement was involuntary or is unreliable, provided the evidence is otherwise admissible.

(3) If the court finds that a defendant was subject to a custodial interrogation in violation of subdivision (a), the court shall provide the jury with an instruction, to be developed by the Judicial Council, that advises the jury to view with caution the statements made in that custodial interrogation.

(f) The interrogating entity shall maintain the original or an exact copy of an electronic recording made of a custodial interrogation until a conviction for any offense relating to the interrogation is final and all direct and habeas corpus appeals are exhausted or the prosecution for that offense is barred by law or, in a juvenile court proceeding, as otherwise provided in subdivision (b) of Section 626.8 of the Welfare and Institutions Code. The interrogating entity may make one or more true, accurate, and complete copies of the electronic recording in a different format.

(g) For the purposes of this section, the following terms have the following meanings:

(1) “Custodial interrogation” means any interrogation in a fixed place of detention involving a law enforcement officer’s questioning that is reasonably likely to elicit incriminating responses, and in which a reasonable person in the subject’s position would consider himself or herself to be in custody, beginning when a person should have been advised of his or her constitutional rights, including the right to remain silent, the right to have counsel present during any interrogation, and the right to have counsel appointed if the person is unable to afford counsel, and ending when the questioning has completely finished.

(2) (A) For the purposes of the custodial interrogation of a minor, pursuant to subdivision (a) or (b), “electronically recorded,” “electronic recordation,” and “electronic recording” refer to a video recording that accurately records a custodial interrogation.

(B) For the purposes of the custodial interrogation of an adult, pursuant to subdivision (a) or (b), “electronically recorded,” “electronic recordation,” and “electronic recording” refer to a video or audio recording that accurately records a custodial interrogation. The Legislature encourages law enforcement agencies to use video recording when available.

(3) “Fixed place of detention” means a fixed location under the control of a law enforcement agency where an individual is held in detention in connection with a criminal offense that has been, or may be, filed against that person, including a jail, police or sheriff’s station, holding cell, correctional or detention facility, juvenile hall, or a facility of the Division of Juvenile Facilities.

(4) “Law enforcement officer” means a person employed by a law enforcement agency whose duties include enforcing criminal laws or investigating criminal activity, or any other person who is acting at the request or direction of that person.

(Amended by Stats. 2016, Ch. 791, Sec. 2. (SB 1389) Effective January 1, 2017.)

859.7.
  

(a) All law enforcement agencies and prosecutorial entities shall adopt regulations for conducting photo lineups and live lineups with eyewitnesses. The regulations shall be developed to ensure reliable and accurate suspect identifications. In order to ensure reliability and accuracy, the regulations shall comply with, at a minimum, the following requirements:

(1) Prior to conducting the identification procedure, and as close in time to the incident as possible, the eyewitness shall provide the description of the perpetrator of the offense.

(2) The investigator conducting the identification procedure shall use blind administration or blinded administration during the identification procedure.

(3) The investigator shall state in writing the reason that the presentation of the lineup was not conducted using blind administration, if applicable.

(4) An eyewitness shall be instructed of the following, prior to any identification procedure:

(A) The perpetrator may or may not be among the persons in the identification procedure.

(B) The eyewitness should not feel compelled to make an identification.

(C) An identification or failure to make an identification will not end the investigation.

(5) An identification procedure shall be composed so that the fillers generally fit the eyewitness’ description of the perpetrator. In the case of a photo lineup, the photograph of the person suspected as the perpetrator should, if practicable, resemble his or her appearance at the time of the offense and not unduly stand out.

(6) In a photo lineup, writings or information concerning any previous arrest of the person suspected as the perpetrator shall not be visible to the eyewitness.

(7) Only one suspected perpetrator shall be included in any identification procedure.

(8) All eyewitnesses shall be separated when viewing an identification procedure.

(9) Nothing shall be said to the eyewitness that might influence the eyewitness’ identification of the person suspected as the perpetrator.

(10) If the eyewitness identifies a person he or she believes to be the perpetrator, all of the following shall apply:

(A) The investigator shall immediately inquire as to the eyewitness’ confidence level in the accuracy of the identification and record in writing, verbatim, what the eyewitness says.

(B) Information concerning the identified person shall not be given to the eyewitness prior to obtaining the eyewitness’ statement of confidence level and documenting the exact words of the eyewitness.

(C) The officer shall not validate or invalidate the eyewitness’ identification.

(11) An electronic recording shall be made that includes both audio and visual representations of the identification procedures. Whether it is feasible to make a recording with both audio and visual representations shall be determined on a case-by-case basis. When it is not feasible to make a recording with both audio and visual representations, audio recording may be used. When audio recording without video recording is used, the investigator shall state in writing the reason that video recording was not feasible.

(b) Nothing in this section is intended to affect policies for field show up procedures.

(c) For purposes of this section, the following terms have the following meanings:

(1) “Blind administration” means the administrator of an eyewitness identification procedure does not know the identity of the suspect.

(2) “Blinded administration” means the administrator of an eyewitness identification procedure may know who the suspect is, but does not know where the suspect, or his or her photo, as applicable, has been placed or positioned in the identification procedure through the use of any of the following:

(A) An automated computer program that prevents the administrator from seeing which photos the eyewitness is viewing until after the identification procedure is completed.

(B) The folder shuffle method, which refers to a system for conducting a photo lineup by placing photographs in folders, randomly numbering the folders, shuffling the folders, and then presenting the folders sequentially so that the administrator cannot see or track which photograph is being presented to the eyewitness until after the procedure is completed.

(C) Any other procedure that achieves neutral administration and prevents the lineup administrator from knowing where the suspect or his or her photo, as applicable, has been placed or positioned in the identification procedure.

(3) “Eyewitness” means a person whose identification of another person may be relevant in a criminal investigation.

(4) “Field show up” means a procedure in which a suspect is detained shortly after the commission of a crime and who, based on his or her appearance, his or her distance from the crime scene, or other circumstantial evidence, is suspected of having just committed a crime. In these situations, the victim or an eyewitness is brought to the scene of the detention and is asked if the detainee was the perpetrator.

(5) “Filler” means either a person or a photograph of a person who is not suspected of an offense and is included in an identification procedure.

(6) “Identification procedure” means either a photo lineup or a live lineup.

(7) “Investigator” means the person conducting the identification procedure.

(8) “Live lineup” means a procedure in which a group of persons, including the person suspected as the perpetrator of an offense and other persons not suspected of the offense, are displayed to an eyewitness for the purpose of determining whether the eyewitness is able to identify the suspect as the perpetrator.

(9) “Photo lineup” means a procedure in which an array of photographs, including a photograph of the person suspected as the perpetrator of an offense and additional photographs of other persons not suspected of the offense, are displayed to an eyewitness for the purpose of determining whether the eyewitness is able to identify the suspect as the perpetrator.

(d) Nothing in this section is intended to preclude the admissibility of any relevant evidence or to affect the standards governing the admissibility of evidence under the United States Constitution.

(e) This section shall become operative on January 1, 2020.

(Added by Stats. 2018, Ch. 977, Sec. 2. (SB 923) Effective January 1, 2019. Section operative January 1, 2020, by its own provisions.)

859a.
  

(a) If the public offense charged is a felony not punishable with death, the magistrate shall immediately upon the appearance of counsel for the defendant read the complaint to the defendant and ask him or her whether he or she pleads guilty or not guilty to the offense charged therein and to a previous conviction or convictions of crime if charged. While the charge remains pending before the magistrate and when the defendant’s counsel is present, the defendant may plead guilty to the offense charged, or, with the consent of the magistrate and the district attorney or other counsel for the people, plead nolo contendere to the offense charged or plead guilty or nolo contendere to any other offense the commission of which is necessarily included in that with which he or she is charged, or to an attempt to commit the offense charged and to the previous conviction or convictions of crime if charged upon a plea of guilty or nolo contendere. The magistrate may then fix a reasonable bail as provided by this code, and upon failure to deposit the bail or surety, shall immediately commit the defendant to the sheriff. Upon accepting the plea of guilty or nolo contendere the magistrate shall certify the case, including a copy of all proceedings therein and any testimony that in his or her discretion he or she may require to be taken, to the court in which judgment is to be pronounced at the time specified under subdivision (b), and thereupon the proceedings shall be had as if the defendant had pleaded guilty in that court. This subdivision shall not be construed to authorize the receiving of a plea of guilty or nolo contendere from any defendant not represented by counsel. If the defendant subsequently files a written motion to withdraw the plea under Section 1018, the motion shall be heard and determined by the court before which the plea was entered.

(b) Notwithstanding Section 1191 or 1203, the magistrate shall, upon the receipt of a plea of guilty or nolo contendere and upon the performance of the other duties of the magistrate under this section, immediately appoint a time for pronouncing judgment in the superior court and refer the case to the probation officer if eligible for probation, as prescribed in Section 1191.

(Amended by Stats. 2002, Ch. 784, Sec. 533. Effective January 1, 2003.)

859b.
  

At the time the defendant appears before the magistrate for arraignment, if the public offense is a felony to which the defendant has not pleaded guilty in accordance with Section 859a, the magistrate, immediately upon the appearance of counsel, or if none appears, after waiting a reasonable time therefor as provided in Section 859, shall set a time for the examination of the case and shall allow not less than two days, excluding Sundays and holidays, for the district attorney and the defendant to prepare for the examination. The magistrate shall also issue subpoenas, duly subscribed, for witnesses within the state, required either by the prosecution or the defense.

Both the defendant and the people have the right to a preliminary examination at the earliest possible time, and unless both waive that right or good cause for a continuance is found as provided for in Section 1050, the preliminary examination shall be held within 10 court days of the date the defendant is arraigned or pleads, whichever occurs later, or within 10 court days of the date criminal proceedings are reinstated pursuant to Chapter 6 (commencing with Section 1367) of Title 10 of Part 2.

Whenever the defendant is in custody, the magistrate shall dismiss the complaint if the preliminary examination is set or continued beyond 10 court days from the time of the arraignment, plea, or reinstatement of criminal proceedings pursuant to Chapter 6 (commencing with Section 1367) of Title 10 of Part 2, and the defendant has remained in custody for 10 or more court days solely on that complaint, unless either of the following occur:

(a) The defendant personally waives his or her right to preliminary examination within the 10 court days.

(b) The prosecution establishes good cause for a continuance beyond the 10-court-day period.

For purposes of this subdivision, “good cause” includes, but is not limited to, those cases involving allegations that a violation of one or more of the sections specified in subdivision (a) of Section 11165.1 or in Section 11165.6 has occurred and the prosecuting attorney assigned to the case has another trial, preliminary hearing, or motion to suppress in progress in that court or another court. Any continuance under this paragraph shall be limited to a maximum of three additional court days.

If the preliminary examination is set or continued beyond the 10-court-day period, the defendant shall be released pursuant to Section 1318 unless:

(1) The defendant requests the setting of continuance of the preliminary examination beyond the 10-court-day period.

(2) The defendant is charged with a capital offense in a cause where the proof is evident and the presumption great.

(3) A witness necessary for the preliminary examination is unavailable due to the actions of the defendant.

(4) The illness of counsel.

(5) The unexpected engagement of counsel in a jury trial.

(6) Unforeseen conflicts of interest which require appointment of new counsel.

The magistrate shall dismiss the complaint if the preliminary examination is set or continued more than 60 days from the date of the arraignment, plea, or reinstatement of criminal proceedings pursuant to Chapter 6 (commencing with Section 1367) of Title 10 of Part 2, unless the defendant personally waives his or her right to a preliminary examination within the 60 days.

(Amended by Stats. 1996, Ch. 122, Sec. 1. Effective January 1, 1997.)

859c.
  

Procedures under this code that provide for superior court review of a challenged ruling or order made by a superior court judge or a magistrate shall be performed by a superior court judge other than the judge or magistrate who originally made the ruling or order, unless agreed to by the parties.

(Added by Stats. 1998, Ch. 931, Sec. 370. Effective September 28, 1998.)

860.
  

At the time set for the examination of the case, if the public offense is a felony punishable with death, or is a felony to which the defendant has not pleaded guilty in accordance with Section 859a of this code, then, if the defendant requires the aid of counsel, the magistrate must allow the defendant a reasonable time to send for counsel, and may postpone the examination for not less than two nor more than five days for that purpose. The magistrate must, immediately after the appearance of counsel, or if, after waiting a reasonable time therefor, none appears, proceed to examine the case; provided, however, that a defendant represented by counsel may when brought before the magistrate as provided in Section 858 or at any time subsequent thereto, waive the right to an examination before such magistrate, and thereupon it shall be the duty of the magistrate to make an order holding the defendant to answer, and it shall be the duty of the district attorney within 15 days thereafter, to file in the superior court of the county in which the offense is triable the information; provided, further, however, that nothing contained herein shall prevent the district attorney nor the magistrate from requiring that an examination be held as provided in this chapter.

(Amended by Stats. 1998, Ch. 931, Sec. 371. Effective September 28, 1998.)

861.
  

(a) The preliminary examination shall be completed at one session or the complaint shall be dismissed, unless the magistrate, for good cause shown by affidavit, postpones it. The postponement shall not be for more than 10 court days, unless either of the following occur:

(1) The defendant personally waives his or her right to a continuous preliminary examination.

(2) The prosecution establishes good cause for a postponement beyond the 10-court-day period. If the magistrate postpones the preliminary examination beyond the 10-court-day period, and the defendant is in custody, the defendant shall be released pursuant to subdivision (b) of Section 859b.

(b) The preliminary examination shall not be postponed beyond 60 days from the date the motion to postpone the examination is granted, unless by consent or on motion of the defendant.

(c) Nothing in this section shall preclude the magistrate from interrupting the preliminary examination to conduct brief court matters so long as a substantial majority of the court’s time is devoted to the preliminary examination.

(d) A request for a continuance of the preliminary examination that is made by the defendant or his or her attorney of record for the purpose of filing a motion pursuant to paragraph (2) of subdivision (f) of Section 1538.5 shall be deemed a personal waiver of the defendant’s right to a continuous preliminary examination.

(Amended by Stats. 1997, Ch. 279, Sec. 2. Effective January 1, 1998.)

861.5.
  

Notwithstanding subdivision (a) of Section 861, the magistrate may postpone the preliminary examination for one court day in order to accommodate the special physical, mental, or emotional needs of a child witness who is 10 years of age or younger or a dependent person, as defined in paragraph (3) of subdivision (f) of Section 288.

The magistrate shall admonish both the prosecution and defense against coaching the witness prior to the witness’ next appearance in the preliminary examination.

(Amended by Stats. 2005, Ch. 279, Sec. 7. Effective January 1, 2006.)

862.
  

If a postponement is had, the magistrate must commit the defendant for examination, admit him to bail or discharge him from custody upon the deposit of money as provided in this Code, as security for his appearance at the time to which the examination is postponed.

(Enacted 1872.)

863.
  

The commitment for examination is made by an indorsement, signed by the magistrate on the warrant of arrest, to the following effect: “The within named A. B. having been brought before me under this warrant, is committed for examination to the Sheriff of ____.” If the Sheriff is not present, the defendant may be committed to the custody of a peace officer.

(Enacted 1872.)

864.
  

At the examination, the magistrate must first read to the defendant the depositions of the witnesses examined on taking the information.

(Amended by Stats. 1963, Ch. 1174.)

865.
  

The witnesses must be examined in the presence of the defendant, and may be cross-examined in his behalf.

(Enacted 1872.)

866.
  

(a) When the examination of witnesses on the part of the people is closed, any witness the defendant may produce shall be sworn and examined.

Upon the request of the prosecuting attorney, the magistrate shall require an offer of proof from the defense as to the testimony expected from the witness. The magistrate shall not permit the testimony of any defense witness unless the offer of proof discloses to the satisfaction of the magistrate, in his or her sound discretion, that the testimony of that witness, if believed, would be reasonably likely to establish an affirmative defense, negate an element of a crime charged, or impeach the testimony of a prosecution witness or the statement of a declarant testified to by a prosecution witness.

(b) It is the purpose of a preliminary examination to establish whether there exists probable cause to believe that the defendant has committed a felony. The examination shall not be used for purposes of discovery.

(c) This section shall not be construed to compel or authorize the taking of depositions of witnesses.

(Amended June 5, 1990, by initiative Proposition 115, Sec. 16.)

866.5.
  

The defendant may not be examined at the examination, unless he is represented by counsel, or unless he waives his right to counsel after being advised at such examination of his right to aid of counsel.

(Added by Stats. 1953, Ch. 1482.)

867.
  

While a witness is under examination, the magistrate shall, upon motion of either party, exclude all potential and actual witness who have not been examined.

The magistrate shall also order the witnesses not to converse with each other until they are all examined. The magistrate may also order, where feasible, that the witnesses be kept separated from each other until they are all examined.

This section does not apply to the investigating officer or the investigator for the defendant, nor does it apply to officers having custody of persons brought before the magistrate.

Either party may challenge the exclusion of any person under this section. Upon motion of either party, the magistrate shall hold a hearing, on the record, to determine if the person sought to be excluded is, in fact, a person excludable under this section.

(Amended by Stats. 1986, Ch. 868, Sec. 1.)

868.
  

The examination shall be open and public. However, upon the request of the defendant and a finding by the magistrate that exclusion of the public is necessary in order to protect the defendant’s right to a fair and impartial trial, the magistrate shall exclude from the examination every person except the clerk, court reporter and bailiff, the prosecutor and his or her counsel, the Attorney General, the district attorney of the county, the investigating officer, the officer having custody of a prisoner witness while the prisoner is testifying, the defendant and his or her counsel, the officer having the defendant in custody, and a person chosen by the prosecuting witness who is not himself or herself a witness but who is present to provide the prosecuting witness moral support, provided that the person so chosen shall not discuss prior to or during the preliminary examination the testimony of the prosecuting witness with any person, other than the prosecuting witness, who is a witness in the examination. Upon motion of the prosecution, members of the alleged victim’s family shall be entitled to be present and seated during the examination. The court shall grant the motion unless the magistrate finds that the exclusion is necessary to protect the defendant’s right to a fair and impartial trial, or unless information provided by the defendant or noticed by the court establishes that there is a reasonable likelihood that the attendance of members of the alleged victim’s family poses a risk of affecting the content of the testimony of the victim or any other witness. The court shall admonish members of the alleged victim’s family who are present and seated during the examination not to discuss any testimony with family members, witnesses, or the public. Nothing in this section shall affect the exclusion of witnesses as provided in Section 867 of the Penal Code.

For purposes of this section, members of the alleged victim’s family shall include the alleged victim’s spouse, parents, legal guardian, children, or siblings.

(Amended by Stats. 1988, Ch. 277, Sec. 2.)

868.4.
  

(a) If requested by either party in a criminal or juvenile hearing, and if a therapy or facility dog is available to the party within the jurisdiction of the judicial district in which the case is being adjudicated, the following individuals shall be afforded the opportunity to have a therapy or facility dog accompany him or her while testifying in court, subject to the approval of the court:

(1) A child witness in a court proceeding involving any serious felony, as defined in subdivision (c) of Section 1192.7, or any violent felony, as defined in subdivision (c) of Section 667.5.

(2) A victim who is entitled to support persons pursuant to Section 868.5, in addition to any support persons selected pursuant to that section.

(b) Before a therapy or facility dog may be used pursuant to subdivision (a), the party seeking to utilize the therapy or facility dog shall file a motion with the court, which shall include the following:

(1) The training or credentials of the therapy or facility dog.

(2) The training of the therapy or facility dog handler.

(3) Facts justifying that the presence of the therapy or facility dog may reduce anxiety or otherwise be helpful to the witness while testifying.

(c) If a party, pursuant to subdivision (b), makes a showing that the therapy or facility dog and handler are suitably qualified and will reasonably assist the testifying witness, the court may grant the motion, unless the court finds the use of a therapy or facility dog would cause undue prejudice to the defendant or would be unduly disruptive to the court proceeding.

(d) The court shall take appropriate measures to make the presence of the therapy or facility dog as unobtrusive and nondisruptive as possible, including requiring the dog to be accompanied by a handler in the courtroom at all times.

(e) If a therapy or facility dog is used during a criminal jury trial, the court shall, upon request, issue an appropriate jury instruction designed to prevent prejudice for or against any party.

(f) This section does not prevent the court from removing or excluding a therapy or facility dog from the courtroom to maintain order or to ensure the fair presentation of evidence, as stated on the record.

(g) (1) It is the intent of the Legislature in adding this section to codify the holding in People v. Chenault (2014) 227 Cal.App.4th 1503 with respect to allowing an individual witness to have a support dog accompany him or her when testifying in proceedings as provided in subdivision (a).

(2) Nothing in this section abrogates the holding in People v. Chenault regarding the need to present appropriate jury instructions.

(3) Nothing in this section limits the use of a service dog, as defined in Section 54.1 of the Civil Code, by a person with a disability.

(h) As used in this section, the following definitions shall apply:

(1) “Child witness” means any witness who is under the age of 18 at the time he or she testifies.

(2) “Facility dog” means a dog that has successfully completed a training program in providing emotional comfort in a high-stress environment for the purpose of enhancing the ability of a witness to speak in a judicial proceeding and reducing his or her stress level, provided by an assistance dog organization accredited by Assistance Dogs International or a similar nonprofit organization that sets standards of training for dogs, and that has passed a public access test for service animals.

(3) “Handler” means a person who has successfully completed training on offering an animal for assistance purposes from an organization accredited by Assistance Dogs International, Therapy Dogs Incorporated, or a similar nonprofit organization, and has received additional training on policies and protocols of the court and the responsibilities of a courtroom dog handler.

(4) “Therapy dog” means a dog that has successfully completed training, certification, or evaluation in providing emotional support therapy in settings including, but not limited to, hospitals, nursing homes, and schools, provided by the American Kennel Club, Therapy Dogs Incorporated, or a similar nonprofit organization, and has been performing the duties of a therapy dog for not less than one year.

(Added by Stats. 2017, Ch. 290, Sec. 1. (AB 411) Effective January 1, 2018.)

868.5.
  

(a) Notwithstanding any other law, a prosecuting witness in a case involving a violation or attempted violation of Section 187, 203, 205, or 207, subdivision (b) of Section 209, Section 211, 215, 220, 236.1, 240, 242, 243.4, 245, 261, 262, 266, 266a, 266b, 266c, 266d, 266e, 266f, 266g, 266h, 266i, 266j, 266k, 267, 269, 273a, 273d, 273.5, 273.6, 278, 278.5, 285, 286, 287, 288, 288.5, 288.7, 289, 311.1, 311.2, 311.3, 311.4, 311.5, 311.6, 311.10, 311.11, 422, 646.9, or 647.6, former Section 277, 288a, or 647a, subdivision (1) of Section 314, or subdivision (b), (d), or (e) of Section 368 when the prosecuting witness is the elder or dependent adult, shall be entitled, for support, to the attendance of up to two persons of his or her own choosing, one of whom may be a witness, at the preliminary hearing and at the trial, or at a juvenile court proceeding, during the testimony of the prosecuting witness. Only one of those support persons may accompany the witness to the witness stand, although the other may remain in the courtroom during the witness’ testimony. The person or persons so chosen shall not be a person described in Section 1070 of the Evidence Code unless the person or persons are related to the prosecuting witness as a parent, guardian, or sibling and do not make notes during the hearing or proceeding.

(b) If the person or persons so chosen are also witnesses, the prosecution shall present evidence that the person’s attendance is both desired by the prosecuting witness for support and will be helpful to the prosecuting witness. Upon that showing, the court shall grant the request unless information presented by the defendant or noticed by the court establishes that the support person’s attendance during the testimony of the prosecuting witness would pose a substantial risk of influencing or affecting the content of that testimony. In the case of a juvenile court proceeding, the judge shall inform the support person or persons that juvenile court proceedings are confidential and may not be discussed with anyone not in attendance at the proceedings. In all cases, the judge shall admonish the support person or persons to not prompt, sway, or influence the witness in any way. Nothing in this section shall preclude a court from exercising its discretion to remove a person from the courtroom whom it believes is prompting, swaying, or influencing the witness.

(c) The testimony of the person or persons so chosen who are also witnesses shall be presented before the testimony of the prosecuting witness. The prosecuting witness shall be excluded from the courtroom during that testimony. Whenever the evidence given by that person or those persons would be subject to exclusion because it has been given before the corpus delicti has been established, the evidence shall be admitted subject to the court’s or the defendant’s motion to strike that evidence from the record if the corpus delicti is not later established by the testimony of the prosecuting witness.

(Amended by Stats. 2018, Ch. 423, Sec. 80. (SB 1494) Effective January 1, 2019.)

868.6.
  

(a) It is the purpose of this section to provide a nonthreatening environment for minors involved in the judicial system in order to better enable them to speak freely and accurately of the experiences that are the subject of judicial inquiry.

(b) Each county is encouraged to provide a room, located within, or within a reasonable distance from, the courthouse, for the use of minors under the age of 16. Should any such room reach full occupancy, preference shall be given to minors under the age of 16 whose appearance has been subpoenaed by the court. The room may be multipurpose in character. The county may seek the assistance of civic groups in the furnishing of the room and the provision of volunteers to aid in its operation and maintenance. If a county newly constructs, substantially remodels or refurbishes any courthouse or facility used as a courthouse on or after January 1, 1988, that courthouse or facility shall contain the room described in this subdivision.

(Added by Stats. 1986, Ch. 976, Sec. 1.)

868.7.
  

(a) Notwithstanding any other provision of law, the magistrate may, upon motion of the prosecutor, close the examination in the manner described in Section 868 during the testimony of a witness:

(1) Who is a minor or a dependent person, as defined in paragraph (3) of subdivision (f) of Section 288, with a substantial cognitive impairment and is the complaining victim of a sex offense, where testimony before the general public would be likely to cause serious psychological harm to the witness and where no alternative procedures, including, but not limited to, video recorded deposition or contemporaneous examination in another place communicated to the courtroom by means of closed-circuit television, are available to avoid the perceived harm.

(2) Whose life would be subject to a substantial risk in appearing before the general public, and where no alternative security measures, including, but not limited to, efforts to conceal his or her features or physical description, searches of members of the public attending the examination, or the temporary exclusion of other actual or potential witnesses, would be adequate to minimize the perceived threat.

(b) In any case where public access to the courtroom is restricted during the examination of a witness pursuant to this section, a transcript of the testimony of the witness shall be made available to the public as soon as is practicable.

(Amended by Stats. 2009, Ch. 88, Sec. 73. (AB 176) Effective January 1, 2010.)

868.8.
  

Notwithstanding any other provision of law, in any criminal proceeding in which the defendant is charged with a violation or attempted violation of subdivision (b) of Section 209, Section 220, 236.1, 243.4, 261, 269, 273a, 273d, 285, 286, 287, 288, 288.5, 288.7, or 289, subdivision (1) of Section 314, Section 422, 646.9, 647.6, or former Section 288a or 647a, or any crime that constitutes domestic violence defined in Section 13700, committed with or upon a person with a disability or a minor under 11 years of age, the court shall take special precautions to provide for the comfort and support of the person with a disability or minor and to protect him or her from coercion, intimidation, or undue influence as a witness, including, but not limited to, any of the following:

(a) In the court’s discretion, the witness may be allowed reasonable periods of relief from examination and cross-examination during which he or she may retire from the courtroom. The judge may also allow other witnesses in the proceeding to be examined when the person with a disability or child witness retires from the courtroom.

(b) Notwithstanding Section 68110 of the Government Code, in his or her discretion, the judge may remove his or her robe if the judge believes that this formal attire intimidates the person with a disability or the minor.

(c) In the court’s discretion the judge, parties, witnesses, support persons, and court personnel may be relocated within the courtroom to facilitate a more comfortable and personal environment for the person with a disability or the child witness.

(d) In the court’s discretion, the taking of the testimony of the person with a disability or the minor may be limited to normal school hours if there is no good cause to take the testimony of the person with a disability or the minor during other hours.

(e) For the purposes of this section, the term “disability” is defined in subdivision (j) of Section 12926 of the Government Code.

(Amended by Stats. 2018, Ch. 423, Sec. 81. (SB 1494) Effective January 1, 2019.)

869.
  

The testimony of each witness in cases of homicide shall be reduced to writing, as a deposition, by the magistrate, or under his or her direction, and in other cases upon the demand of the prosecuting attorney, or the defendant, or his or her counsel. The magistrate before whom the examination is had may, in his or her discretion, order the testimony and proceedings to be taken down in shorthand in all examinations herein mentioned, and for that purpose he or she may appoint a shorthand reporter. The deposition or testimony of the witness shall be authenticated in the following form:

(a) It shall state the name of the witness, his or her place of residence, and his or her business or profession; except that if the witness is a peace officer, it shall state his or her name, and the address given in his or her testimony at the hearing.

(b) It shall contain the questions put to the witness and his or her answers thereto, each answer being distinctly read to him or her as it is taken down, and being corrected or added to until it conforms to what he or she declares is the truth, except in cases where the testimony is taken down in shorthand, the answer or answers of the witness need not be read to him or her.

(c) If a question put be objected to on either side and overruled, or the witness declines answering it, that fact, with the ground on which the question was overruled or the answer declined, shall be stated.

(d) The deposition shall be signed by the witness, or if he or she refuses to sign it, his or her reason for refusing shall be stated in writing, as he or she gives it, except in cases where the deposition is taken down in shorthand, it need not be signed by the witness.

(e) The reporter shall, within 10 days after the close of the examination, if the defendant be held to answer the charge of a felony, or in any other case if either the defendant or the prosecution orders the transcript, transcribe his or her shorthand notes, making an original and one copy and as many additional copies thereof as there are defendants (other than fictitious defendants), regardless of the number of charges or fictitious defendants included in the same examination, and certify and deliver the original and all copies to the clerk of the superior court in the county in which the defendant was examined. The reporter shall, before receiving any compensation as a reporter, file his or her affidavit setting forth that the transcript has been delivered within the time herein provided for. The compensation of the reporter for any services rendered by him or her as the reporter in any court of this state shall be reduced one-half if the provisions of this section as to the time of filing said transcript have not been complied with by him or her.

(f) In every case in which a transcript is delivered as provided in this section, the clerk of the court shall file the original of the transcript with the papers in the case, and shall deliver a copy of the transcript to the district attorney immediately upon his or her receipt thereof and shall deliver a copy of said transcript to each defendant (other than a fictitious defendant) at least five days before trial or upon earlier demand by him or her without cost to him or her; provided, that if any defendant be held to answer to two or more charges upon the same examination and thereafter the district attorney shall file separate informations upon said several charges, the delivery to each such defendant of one copy of the transcript of the examination shall be a compliance with this section as to all of those informations.

(g) If the transcript is delivered by the reporter within the time hereinbefore provided for, the reporter shall be entitled to receive the compensation fixed and allowed by law to reporters in the superior courts of this state.

(Amended by Stats. 2002, Ch. 784, Sec. 534. Effective January 1, 2003.)

870.
  

The magistrate or his or her clerk shall keep the depositions taken on the information or the examination, until they are returned to the proper court; and shall not permit them to be examined or copied by any person except a judge of a court having jurisdiction of the offense, or authorized to issue writs of habeas corpus, the Attorney General, district attorney, or other prosecuting attorney, and the defendant and his or her counsel; provided however, upon demand by the defendant or his or her attorney the magistrate shall order a transcript of the depositions taken on the information, or on the examination, to be immediately furnished the defendant or his or her attorney, after the commitment of the defendant as provided by Sections 876 and 877, and the reporter furnishing the depositions, shall receive compensation in accordance with Section 869.

(Amended by Stats. 2002, Ch. 784, Sec. 535. Effective January 1, 2003.)

871.
  

If, after hearing the proofs, it appears either that no public offense has been committed or that there is not sufficient cause to believe the defendant guilty of a public offense, the magistrate shall order the complaint dismissed and the defendant to be discharged, by an indorsement on the depositions and statement, signed by the magistrate, to the following effect: “There being no sufficient cause to believe the within named A. B. guilty of the offense within mentioned, I order that the complaint be dismissed and that he or she shall be discharged.”

(Amended by Stats. 1980, Ch. 938, Sec. 3.)

871.5.
  

(a) When an action is dismissed by a magistrate pursuant to Section 859b, 861, 871, 1008, 1381, 1381.5, 1385, 1387, or 1389 of this code or Section 41403 of the Vehicle Code, or a portion thereof is dismissed pursuant to those same sections which may not be charged by information under Section 739, the prosecutor may make a motion in the superior court within 15 days to compel the magistrate to reinstate the complaint or a portion thereof and to reinstate the custodial status of the defendant under the same terms and conditions as when the defendant last appeared before the magistrate.

(b) Notice of the motion shall be made to the defendant and the magistrate. The only ground for the motion shall be that, as a matter of law, the magistrate erroneously dismissed the action or a portion thereof.

(c) The superior court shall hear and determine the motion on the basis of the record of the proceedings before the magistrate. If the motion is litigated to decision by the prosecutor, the prosecution is prohibited from refiling the dismissed action, or portion thereof.

(d) Within 10 days after the magistrate has dismissed the action or a portion thereof, the prosecuting attorney may file a written request for a transcript of the proceedings with the clerk of the magistrate. The reporter shall immediately transcribe his or her shorthand notes pursuant to Section 869 and file with the clerk of the superior court an original plus one copy, and as many copies as there are defendants (other than a fictitious defendant). The reporter shall be entitled to compensation in accordance with Section 869. The clerk of the superior court shall deliver a copy of the transcript to the prosecuting attorney immediately upon its receipt and shall deliver a copy of the transcript to each defendant (other than a fictitious defendant) upon his or her demand without cost.

(e) When a court has ordered the resumption of proceedings before the magistrate, the magistrate shall resume the proceedings and when so ordered, issue an order of commitment for the reinstated offense or offenses within 10 days after the superior court has entered an order to that effect or within 10 days after the remittitur is filed in the superior court. Upon receipt of the remittitur, the superior court shall forward a copy to the magistrate.

(f) Pursuant to paragraph (9) of subdivision (a) of Section 1238 the people may take an appeal from the denial of the motion by the superior court to reinstate the complaint or a portion thereof. If the motion to reinstate the complaint is granted, the defendant may seek review thereof only pursuant to Sections 995 and 999a. That review may only be sought in the event the defendant is held to answer pursuant to Section 872.

(g) Nothing contained herein shall preclude a magistrate, upon the resumption of proceedings, from considering a motion made pursuant to Section 1318.

If the superior court grants the motion for reinstatement and orders the magistrate to issue an order of commitment, the defendant, in lieu of resumed proceedings before the magistrate, may elect to waive his or her right to be committed by a magistrate, and consent to the filing of an amended or initial information containing the reinstated charge or charges. After arraignment thereon, he or she may adopt as a motion pursuant to Section 995, the record and proceedings of the motion taken pursuant to this section and the order issued pursuant thereto, and may seek review of the order in the manner prescribed in Section 999a.

(Amended by Stats. 1993, Ch. 542, Sec. 1. Effective January 1, 1994.)

871.6.
  

If in a felony case the magistrate sets the preliminary examination beyond the time specified in Section 859b, in violation of Section 859b, or continues the preliminary hearing without good cause and good cause is required by law for such a continuance, the people or the defendant may file a petition for writ of mandate or prohibition in the superior court seeking immediate appellate review of the ruling setting the hearing or granting the continuance. Such a petition shall have precedence over all other cases in the court to which the petition is assigned. If the superior court grants a peremptory writ, it shall issue the writ and a remittitur three court days after its decision becomes final as to the court if this action is necessary to prevent mootness or to prevent frustration of the relief granted, notwithstanding the rights of the parties to seek review in a court of appeal. When the superior court issues the writ and remittitur as provided in this section, the writ shall command the magistrate to proceed with the preliminary hearing without further delay, other than that reasonably necessary for the parties to obtain the attendance of their witnesses.

The court of appeal may stay or recall the issuance of the writ and remittitur. The failure of the court of appeal to stay or recall the issuance of the writ and remittitur shall not deprive the parties of any right they would otherwise have to appellate review or extraordinary relief.

(Added June 5, 1990, by initiative Proposition 115, Sec. 17.)

872.
  

(a) If, however, it appears from the examination that a public offense has been committed, and there is sufficient cause to believe that the defendant is guilty, the magistrate shall make or indorse on the complaint an order, signed by him or her, to the following effect: “It appearing to me that the offense in the within complaint mentioned (or any offense, according to the fact, stating generally the nature thereof), has been committed, and that there is sufficient cause to believe that the within named A. B. is guilty, I order that he or she be held to answer to the same.”

(b) Notwithstanding Section 1200 of the Evidence Code, the finding of probable cause may be based in whole or in part upon the sworn testimony of a law enforcement officer or honorably retired law enforcement officer relating the statements of declarants made out of court offered for the truth of the matter asserted. An honorably retired law enforcement officer may only relate statements of declarants made out of court and offered for the truth of the matter asserted that were made when the honorably retired officer was an active law enforcement officer. Any law enforcement officer or honorably retired law enforcement officer testifying as to hearsay statements shall either have five years of law enforcement experience or have completed a training course certified by the Commission on Peace Officer Standards and Training that includes training in the investigation and reporting of cases and testifying at preliminary hearings.

(c) For purposes of subdivision (b), a law enforcement officer is any officer or agent employed by a federal, state, or local government agency to whom all of the following apply:

(1) Has either five years of law enforcement experience or who has completed a training course certified by the Commission on Peace Officer Standards and Training that includes training in the investigation and reporting of cases and testifying at preliminary hearings.

(2) Whose primary responsibility is the enforcement of any law, the detection and apprehension of persons who have violated any law, or the investigation and preparation for prosecution of cases involving violation of laws.

(Amended by Stats. 2013, Ch. 125, Sec. 1. (AB 568) Effective January 1, 2014. Note: This section was amended on June 5, 1990, by initiative Prop. 115.)

872.5.
  

Notwithstanding Article 1 (commencing with Section 1520) of Chapter 2 of Division 11 of the Evidence Code, in a preliminary examination the content of a writing may be proved by an otherwise admissible original or otherwise admissible secondary evidence.

(Repealed and added by Stats. 1998, Ch. 100, Sec. 7. Effective January 1, 1999.)

873.
  

If the offense is not bailable, the following words must be added to the indorsement: “And he is hereby committed to the Sheriff of the County of ____. ”

(Enacted 1872.)

875.
  

If the offense is bailable, and the defendant is admitted to bail, the following words must be added to the order, “and that he be admitted to bail in the sum of ____ dollars, and is committed to the Sheriff of the County of ____ until he gives such bail.”

(Amended by Code Amendments 1880, Ch. 60.)

876.
  

If the magistrate order the defendant to be committed, he must make out a commitment, signed by him, with his name of office, and deliver it, with the defendant, to the officer to whom he is committed, or, if that officer is not present, to a peace officer, who must deliver the defendant into the proper custody, together with the commitment.

(Enacted 1872.)

877.
  

The commitment must be to the following effect except when it is made under the provisions of section 859a of this code.

County of ____ (as the case may be).

The people of the State of California to the sheriff of the county of ____:

An order having been this day made by me, that A. B. be held to answer upon a charge of (stating briefly the nature of the offense, and giving as near as may be the time when and the place where the same was committed), you are commanded to receive him into your custody and detain him until he is legally discharged.

Dated this ____ day of ____ nineteen ____.

(Amended by Stats. 1935, Ch. 217.)

877a.
  

When the commitment is made under the provisions of section 859a of this code, it must be made to the following effect:

County of ____ (as the case may be).

The people of the State of California to the sheriff of the county of ____.

A. B. having pleaded guilty to the offense of (stating briefly the nature of the offense, and giving as near as may be the time when and the place where the same was committed), you are commanded to receive him into your custody and detain him until he is legally discharged.

Dated this ____ day of ____ nineteen ____.

(Added by Stats. 1935, Ch. 217.)

878.
  

On holding the defendant to answer or on a plea of guilty where permitted by law, the magistrate may take from each of the material witnesses examined before him on the part of the people a written undertaking, to the effect that he will appear and testify at the court to which the depositions and statements or case are to be sent, or that he will forfeit the sum of five hundred dollars.

(Amended by Stats. 1935, Ch. 217.)

879.
  

When the magistrate or a Judge of the Court in which the action is pending is satisfied, by proof on oath, that there is reason to believe that any such witness will not appear and testify unless security is required, he may order the witness to enter into a written undertaking, with sureties, in such sum as he may deem proper, for his appearance as specified in the preceding section.

(Enacted 1872.)

880.
  

Infants who are material witnesses against the defendant may be required to procure sureties for their appearance, as provided in the last section.

(Amended by Stats. 1977, Ch. 579.)

881.
  

(a) If a witness, required to enter into an undertaking to appear and testify, either with or without sureties, refuses compliance with the order for that purpose, the magistrate shall commit him or her to prison until he or she complies or is legally discharged.

(b) If a witness fails to appear at the preliminary hearing in response to a subpoena, the court may hear evidence, including testimony or an affidavit from the arresting or interviewing officer, and if the court determines on the basis of the evidence that the witness is a material witness, the court shall issue a bench warrant for the arrest of the witness, and upon the appearance of the witness, may commit him or her into custody until the conclusion of the preliminary hearing, or until the defendant enters a plea of nolo contendere, or the witness is otherwise legally discharged.

The court may order the witness to enter into a written undertaking to the effect that he or she will appear and testify at the time and place ordered by the court or that he or she will forfeit an amount that the court deems proper.

(c) Once the material witness has been taken into custody on the bench warrant he or she shall be brought before the magistrate issuing the warrant, if available, within two court days for a hearing to determine if the witness should be released on security of appearance or maintained in custody.

(d) A material witness shall remain in custody under this section for no longer than 10 days.

(e) If a material witness is being held in custody under this section the prosecution is entitled to have the preliminary hearing proceed, as to this witness only, within 10 days of the arraignment of the defendant. Once this material witness has completed his or her testimony the defendant shall be entitled to a reasonable continuance.

(Amended by Stats. 1987, Ch. 828, Sec. 53.)

882.
  

When, however, it satisfactorily appears by examination, on oath of the witness, or any other person, that the witness is unable to procure sureties, he or she may be forthwith conditionally examined on behalf of the people. The examination shall be by question and answer, in the presence of the defendant, or after notice to him or her, if on bail, and conducted in the same manner as the examination before a committing magistrate is required by this code to be conducted, and the witness thereupon discharged; and the deposition may be used upon the trial of the defendant, except in cases of homicide, under the same conditions as mentioned in Section 1345; but this section does not apply to an accomplice in the commission of the offense charged.

(Amended by Stats. 1987, Ch. 828, Sec. 54.)

883.
  

When a magistrate has discharged a defendant, or has held him to answer, he must return, without delay, to the Clerk of the Court at which the defendant is required to appear, the warrant, if any, the depositions, and all undertakings of bail, or for the appearance of witnesses taken by him.

(Enacted 1872.)

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