Code Section Group

Penal Code - PEN

PART 3. OF IMPRISONMENT AND THE DEATH PENALTY [2000 - 10007]

  ( Part 3 repealed and added by Stats. 1941, Ch. 106. )

TITLE 1. IMPRISONMENT OF MALE PRISONERS IN STATE PRISONS [2000 - 3105]

  ( Title 1 repealed and added by Stats. 1941, Ch. 106. )

CHAPTER 3. Civil Rights of Prisoners [2600 - 2643]

  ( Heading of Chapter 3 amended by Stats. 1975, Ch. 1175. )

ARTICLE 2. Prisoners as Witnesses [2620 - 2626]
  ( Article 2 added by Stats. 1941, Ch. 106. )

2620.
  

When it is necessary to have a person imprisoned in the state prison brought before any court to be tried for a felony, or for an examination before a grand jury or magistrate preliminary to such trial, or for the purpose of hearing a motion or other proceeding, to vacate a judgment, an order for the prisoner’s temporary removal from said prison, and for the prisoner’s production before such court, grand jury or magistrate, must be made by the superior court of the county in which said action, motion, or examination is pending or by a judge thereof; such order shall be made only upon the affidavit of the district attorney or defense attorney, stating the purpose for which said person is to be brought before the court, grand jury or magistrate or upon the court’s own motion. The order shall be executed by the sheriff of the county in which it shall be made, whose duty it shall be to bring the prisoner before the proper court, grand jury or magistrate, to safely keep the prisoner, and when the prisoner’s presence is no longer required to return the prisoner to the prison from whence the prisoner was taken; the expense of executing such order shall be a proper charge against, and shall be paid by, the county in which the order shall be made.

Such order shall recite the purposes for which said person is to be brought before the court, grand jury or magistrate, and shall be signed by the judge making the order and sealed with the seal of the court. The order must be to the following effect:

County of ____ (as the case may be).

The people of the State of California to the warden of ____:

An order having been made this day by me, that A.B. be produced in the ____ court (or before the grand jury, as the case may be) to be prosecuted or examined for the crime of ____, a felony (or to have said motion heard), you are commanded to deliver the prisoner into the custody of ____ for the purpose of (recite purposes).

Dated this ____ day of ____, 19__.

When a prisoner is removed from a state prison under this section the prisoner shall remain in the constructive custody of the warden thereof. During the prisoner’s absence from the prison, the prisoner may be ordered to appear in other felony proceedings as a defendant or witness in the courts of the county from which the original order directing removal issued. A copy of the written order directing the prisoner to appear before any such court shall be forwarded by the district attorney to the warden of the prison having protective custody of the prisoner.

(Amended by Stats. 1998, Ch. 931, Sec. 429. Effective September 28, 1998.)

2621.
  

When the testimony of a material witness is required in a criminal action, before any court in this state, or in an examination before a grand jury or magistrate in a felony case and such witness is a prisoner in a state prison, an order for the prisoner’s temporary removal from such prison, and for the prisoner’s production before such court, grand jury or magistrate, may be made by the superior court of the county in which such action or examination is pending or by a judge thereof; but in case the prison is out of the county in which the application is made, such order shall be made only upon the affidavit of the district attorney or of the defendant or the defendant’s counsel, showing that the testimony is material and necessary; and even then the granting of the order shall be in the discretion of said superior court or a judge thereof. The order shall be executed by the sheriff of the county in which it is made, whose duty it shall be to bring the prisoner before the proper court, grand jury or magistrate, to safely keep the prisoner, and when the prisoner is no longer required as a witness, to return the prisoner to the prison whence the prisoner was taken; the expense of executing such order shall be a proper charge against, and shall be paid by, the county in which the order shall be made. Such orders shall recite the purposes for which said person is to be brought before the court, grand jury or magistrate, and shall be signed by the magistrate or judge making the order, and sealed with the seal of the court, if any.

Such order must be to the following effect:

County of ____ (as the case may be).

The people of the State of California to the warden of ____:

An order having been made this day by me, that A. B. be produced in this court as witness in the case of ____, you are commanded to deliver the prisoner into the custody of ____ for the purpose of (recite purposes).

Dated this ____ day of ____, 19__.

When a prisoner is removed from a state prison under this section the prisoner shall remain in the constructive custody of the warden hereof. During the prisoner’s absence from the prison, the prisoner may be ordered to appear in other felony proceedings as a defendant or witness in the courts of the county from which the original order directing removal issued. A copy of the written order directing the prisoner to appear before any such court shall be forwarded by the district attorney to the warden of the prison having protective custody of the prisoner.

(Amended by Stats. 1998, Ch. 931, Sec. 430. Effective September 28, 1998.)

2621.5.
  

The provisions of Sections 2620 and 2621 which impose a charge upon the counties shall not apply to cases coming within the provisions of Section 4750.

(Amended by Stats. 1986, Ch. 1310, Sec. 4.)

2622.
  

When the order for personal appearance is not made pursuant to Section 2620 or Section 2621 the deposition of the prisoner may be taken in the manner provided for in the case of a witness who is sick, and Chapter 4 (commencing with Section 1335) of Title 10 of Part 2 shall, so far as applicable, govern in the application for and in the taking and use of that deposition. The deposition may be taken before any magistrate or notary public of the county in which the prison is situated; or in case the defendant is unable to pay for taking the deposition, before an officer of the prison designated by the board, whose duty it shall be to act without compensation. Every officer before whom testimony shall be taken under this section, shall have authority to administer, and shall administer, an oath to the witness that his or her testimony shall be the truth, the whole truth, and nothing but the truth.

(Amended by Stats. 1987, Ch. 828, Sec. 119.)

2623.
  

If in a civil action or special proceeding a witness be a prisoner, confined in a state prison within this state, an order for the prisoner’s examination in the prison by deposition may be made.

1. By the court itself in which the action or special proceeding is pending, unless it be a small claims court.

2. By a judge of the superior court of the county where the action or proceeding is pending, if pending before a small claims court or before a judge or other person out of court.

Such order can only be made on the motion of a party, upon affidavit showing the nature of the action or proceeding, the testimony expected from the witness, and its materiality. The deposition, when ordered, shall be taken in accordance with Section 2622.

(Amended by Stats. 1998, Ch. 931, Sec. 431. Effective September 28, 1998.)

2624.
  

(a) Notwithstanding any other provision of law, a court may, upon the submission of a written request by the party calling the witness, order an incarcerated witness to testify in legal proceedings via two-way electronic audiovisual communication.

(b) As used in this section, “legal proceedings” includes preliminary hearings, civil trials, and criminal trials.

(c) With reference to criminal trials only, the procedure described in this section shall only be used with the consent of both parties expressed in open court, and, in consultation with the defendant’s counsel, upon a waiver by the defendant of his or her right to compel the physical presence of the witness, pursuant to the Sixth Amendment to the United States Constitution and Section 15 of Article I of the California Constitution. This waiver may be rescinded by the defendant upon a showing of good cause.

(d) No inducement shall be offered nor any penalty imposed in connection with a defendant’s consent to allow a witness to testify via closed-circuit television.

(Added by Stats. 1998, Ch. 122, Sec. 1. Effective January 1, 1999.)

2625.
  

(a) For the purposes of this section only, the term “prisoner” includes any individual in custody in a state prison, the California Rehabilitation Center, or a county jail, or who is a ward of the Department of the Youth Authority or who, upon a verdict or finding that the individual was insane at the time of committing an offense, or mentally incompetent to be tried or adjudged to punishment, is confined in a state hospital for the care and treatment of the mentally disordered or in any other public or private treatment facility.

(b) In any proceeding brought under Part 4 (commencing with Section 7800) of Division 12 of the Family Code, and Section 366.26 of the Welfare and Institutions Code, where the proceeding seeks to terminate the parental rights of any prisoner, or any proceeding brought under Section 300 of the Welfare and Institutions Code, where the proceeding seeks to adjudicate the child of a prisoner a dependent child of the court, the superior court of the county in which the proceeding is pending, or a judge thereof, shall order notice of any court proceeding regarding the proceeding transmitted to the prisoner.

(c) Service of notice shall be made pursuant to Section 7881 or 7882 of the Family Code or Section 290.2, 291, or 294 of the Welfare and Institutions Code, as appropriate.

(d) Upon receipt by the court of a statement from the prisoner or his or her attorney indicating the prisoner’s desire to be present during the court’s proceedings, the court shall issue an order for the temporary removal of the prisoner from the institution, and for the prisoner’s production before the court. No proceeding may be held under Part 4 (commencing with Section 7800) of Division 12 of the Family Code or Section 366.26 of the Welfare and Institutions Code and no petition to adjudge the child of a prisoner a dependent child of the court pursuant to subdivision (a), (b), (c), (d), (e), (f), (i), or (j) of Section 300 of the Welfare and Institutions Code may be adjudicated without the physical presence of the prisoner or the prisoner’s attorney, unless the court has before it a knowing waiver of the right of physical presence signed by the prisoner or an affidavit signed by the warden, superintendent, or other person in charge of the institution, or his or her designated representative stating that the prisoner has, by express statement or action, indicated an intent not to appear at the proceeding.

(e) In any other action or proceeding in which a prisoner’s parental or marital rights are subject to adjudication, an order for the prisoner’s temporary removal from the institution and for the prisoner’s production before the court may be made by the superior court of the county in which the action or proceeding is pending, or by a judge thereof. A copy of the order shall be transmitted to the warden, superintendent, or other person in charge of the institution not less than 15 days before the order is to be executed. The order shall be executed by the sheriff of the county in which it shall be made, whose duty it shall be to bring the prisoner before the proper court, to keep the prisoner safely, and when the prisoner’s presence is no longer required, to return the prisoner to the institution from which he or she was taken. The expense of executing the order shall be a proper charge against, and shall be paid by, the county in which the order shall be made.

The order shall be to the following effect:

County of ____ (as the case may be).

The people of the State of California to the warden of ____:

An order having been made this day by me, that (name of prisoner) be produced in this court as a party in the case of ____, you are commanded to deliver (name of prisoner) into the custody of ____ for the purpose of (recite purposes).

Dated this ____ day of ____, 20__.

(f) When a prisoner is removed from the institution pursuant to this section, the prisoner shall remain in the constructive custody of the warden, superintendent, or other person in charge of the institution.

(g) A prisoner who is a parent of a child involved in a dependency hearing described in this section and who has either waived his or her right to physical presence at the hearing pursuant to subdivision (d) or who has not been ordered before the court may, at the court’s discretion, in order to facilitate the parent’s participation, be given the opportunity to participate in the hearing by videoconference, if that technology is available, and if that participation otherwise complies with the law. If videoconferencing technology is not available, teleconferencing may be utilized to facilitate parental participation. Because of the significance of dependency court hearings for parental rights and children’s long-term care, physical attendance by the parent at the hearings is preferred to participation by videoconference or teleconference. This subdivision shall not be construed to limit a prisoner’s right to physically attend a dependency hearing as provided in this section. This section does not authorize the use of videoconference or teleconference to replace in-person family visits with prisoners.

(h) It is the intent of the Legislature to maintain internal job placement opportunities and preserve earned privileges for prisoners, and prevent the removal of prisoners subject to this section from court-ordered courses as a result of their participation in the proceedings described in this section.

(i) Notwithstanding any other law, a court may not order the removal and production of a prisoner sentenced to death, whether or not that sentence is being appealed, in any action or proceeding in which the prisoner’s parental rights are subject to adjudication.

(Amended by Stats. 2010, Ch. 482, Sec. 1. (SB 962) Effective January 1, 2011.)

2626.
  

(a) The Department of Corrections and Rehabilitation is authorized to accept donated materials and services related to videoconferencing and teleconferencing in order to implement a program, at a prison to be determined by the department, to facilitate the participation of incarcerated parents in dependency court hearings regarding their children.

(b) The implementation of this program is contingent upon the receipt of sufficient donations of materials and services by the department.

(Added by Stats. 2010, Ch. 482, Sec. 2. (SB 962) Effective January 1, 2011.)

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