Code Section Group

Penal Code - PEN

PART 2. OF CRIMINAL PROCEDURE [681 - 1620]

  ( Part 2 enacted 1872. )

TITLE 6. PLEADINGS AND PROCEEDINGS BEFORE TRIAL [976 - 1054.10]

  ( Heading of Title 6 amended by Stats. 1951, Ch. 1674. )

CHAPTER 7. The Mode of Trial [1041 - 1045]
  ( Chapter 7 enacted 1872. )

1041.
  

An issue of fact arises:

1. Upon a plea of not guilty.

2. Upon a plea of a former conviction or acquittal of the same offense.

3. Upon a plea of once in jeopardy.

4. Upon a plea of not guilty by reason of insanity.

(Amended by Stats. 1949, Ch. 1314.)

1042.
  

Issues of fact shall be tried in the manner provided in Article I, Section 16 of the Constitution of this state.

(Amended by Stats. 2002, Ch. 787, Sec. 20. Effective January 1, 2003.)

1042.5.
  

Trial of an infraction shall be by the court, but when a defendant has been charged with an infraction and with a public offense for which there is a right to jury trial and a jury trial is not waived, the court may order that the offenses be tried together by jury or that they be tried separately with the infraction being tried by the court either in the same proceeding or a separate proceeding as may be appropriate.

(Added by Stats. 1968, Ch. 1192.)

1043.
  

(a) Except as otherwise provided in this section, the defendant in a felony case shall be personally present at the trial.

(b) The absence of the defendant in a felony case after the trial has commenced in their physical presence shall not prevent continuing the trial to, and including, the return of the verdict in any of the following cases:

(1) Any case in which the defendant, after being warned by the judge that they will be removed if they continue their disruptive behavior, nevertheless insists on acting in a manner so disorderly, disruptive, and disrespectful of the court that the trial cannot be carried on with the defendant present in the courtroom.

(2) Any prosecution for an offense which is not punishable by death in which the defendant is voluntarily absent.

(c) Any defendant who is absent from a trial pursuant to paragraph (1) of subdivision (b) may reclaim the right to be present at the trial as soon as they are willing to act consistently with the decorum and respect inherent in the concept of courts and judicial proceedings.

(d) Subdivisions (a) and (b) shall not limit the right of a defendant to waive the right to be present in accordance with Section 977.

(e) If the defendant in a misdemeanor case fails to appear in person at the time set for trial or during the course of trial, the court shall proceed with the trial, unless good cause for a continuance exists, if the defendant has authorized their counsel to proceed in their absence pursuant to subdivision (a) of Section 977.

If there is no authorization pursuant to subdivision (a) of Section 977 and if the defendant fails to appear in person at the time set for trial or during the course of trial, the court, in its discretion, may do one or more of the following, as it deems appropriate:

(1) Continue the matter.

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

(3) Issue a bench warrant.

(4) Proceed with the trial in the defendant’s absence as authorized in subdivision (f).

(f) (1) A trial shall be deemed to have commenced in the presence of the defendant for purposes of subdivision (b), or may proceed pursuant to paragraph (4) of subdivision (e), if the court finds, by clear and convincing evidence, all of the following to be true:

(A) The defendant is in custody and is refusing, without good cause, to appear in court on that day for that trial.

(B) The defendant has been informed of their right and obligation to be personally present in court.

(C) The defendant has been informed that the trial will proceed without the defendant being present.

(D) The defendant has been informed that they have the right to remain silent during the trial.

(E) The defendant has been informed that their absence without good cause will constitute a voluntary waiver of any constitutional or statutory right to confront any witnesses against them or to testify on their own behalf.

(F) The defendant has been informed whether or not defense counsel will be present.

(2) The court shall state on the record the reasons for the court’s findings and shall cause those findings and reasons to be entered into the minutes.

(3) If the trial lasts for more than one day, the court is required to make the findings required by this subdivision anew for each day that the defendant is absent.

(4) This subdivision does not apply to any trial in which the defendant was personally present in court at the commencement of trial.

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

(Amended by Stats. 2021, Ch. 196, Sec. 2. (AB 700) Effective January 1, 2022.)

1043.5.
  

(a) Except as otherwise provided in this section, the defendant in a preliminary hearing shall be personally present.

(b) The absence of the defendant in a preliminary hearing after the hearing has commenced in their physical presence shall not prevent continuing the hearing to, and including, holding to answer, filing an information, or discharging the defendant in any of the following cases:

(1) Any case in which the defendant, after being warned by the judge that they will be removed if they continued their disruptive behavior, nevertheless insists on acting in a manner so disorderly, disruptive, and disrespectful of the court that the hearing cannot be carried on with the defendant present in the courtroom.

(2) Any prosecution for an offense which is not punishable by death in which the defendant is voluntarily absent.

(c) Any defendant who is absent from a preliminary hearing pursuant to paragraph (1) of subdivision (b) may reclaim their right to be present at the hearing as soon as they are willing to act consistently with the decorum and respect inherent in the concept of courts and judicial proceedings.

(d) Subdivisions (a) and (b) shall not limit the right of a defendant to waive the right to be present in accordance with Section 977.

(e) (1) For purposes of subdivision (b), a preliminary hearing shall be deemed to have commenced in the presence of the defendant if the court finds, by clear and convincing evidence, all of the following to be true:

(A) The defendant is in custody and is refusing, without good cause, to appear in court on that day for that preliminary hearing.

(B) The defendant has been informed of their right and obligation to be personally present in court.

(C) The defendant has been informed that the preliminary hearing will proceed without the defendant being present.

(D) The defendant has been informed that they have the right to remain silent during the preliminary hearing.

(E) The defendant has been informed that their absence without good cause will constitute a voluntary waiver of any constitutional or statutory right to confront any witnesses against them or to testify on their own behalf.

(F) The defendant has been informed whether or not defense counsel will be present.

(2) The court shall state on the record the reasons for the court’s findings and shall cause those findings and reasons to be entered into the minutes.

(3) If the preliminary hearing lasts for more than one day, the court is required to make the findings required by this subdivision anew for each day that the defendant is absent.

(4) This subdivision does not apply to any preliminary hearing in which the defendant was personally present in court at the commencement of the preliminary hearing.

(Amended by Stats. 2021, Ch. 196, Sec. 3. (AB 700) Effective January 1, 2022.)

1044.
  

It shall be the duty of the judge to control all proceedings during the trial, and to limit the introduction of evidence and the argument of counsel to relevant and material matters, with a view to the expeditious and effective ascertainment of the truth regarding the matters involved.

(Added by Stats. 1927, Ch. 607.)

1045.
  

In any misdemeanor or infraction matter, where a verbatim record of the proceedings is not required to be made and where the right of a party to request a verbatim record is not provided for pursuant to any other provision of law or rule of court, if any party makes a request at least five days in advance and deposits the required fees, the court shall order that a verbatim record be made of all proceedings. Except as otherwise provided by law or rule the party requesting any reporting, recording, or transcript pursuant to this section shall pay the cost of such reporting, recording, or transcript.

This section shall cease to be operative upon a final decision of an appellate court holding that there is a constitutional right or other requirement that a verbatim record or transcript be provided at public expense for indigent or any other defendants in cases subject to the provisions of this section.

(Added by Stats. 1980, Ch. 1200, Sec. 1.)

PENPenal Code - PEN