I. IN GENERAL
A. The Court and the Judge.
1. [§1] Distinction Between Court and Judge.
2. Disqualification of Judge.
(a) [§2] In General.
(b) [§3] Challenge for Cause.
(c) Peremptory Challenge.
(1) [§4] In General.
(2) [§5] Form and Time of Motion.
(3) [§6] Number of Challenges.
B. Functions and Powers of Trial Judge.
1. General Control Over Proceedings.
(a) [§7] In General.
(b) [§8] Preserving Order.
(c) [§9] Security in Courtroom.
2. Custody and Control of Defendant.
(a) [§10] In General.
(b) Physical Restraint of Defendant.
(1) [§11] Requirement of Necessity.
(2) [§12] Restraint at Trial.
(3) [§13] Restraint at Nontrial Proceedings.
(4) [§14] Restraint for Reasons Other Than Courtroom Security.
(5) [§15] Electronic Restraint.
(6) [§16] Use of Gag.
(c) [§17] Security Personnel in Courtroom.
(d) Clothing and Appearance of Defendant and Defense Witnesses.
(1) [§18] Incarcerated Defendant or Witness.
(2) [§19] Indigent Defendant.
(e) [§20] Search for Weapons.
(f) [§21] Removal of Defendant From Courtroom.
3. Control Over Counsel.
(a) [§22] Punishment for Contempt.
(b) [§23] Imposition of Monetary Sanctions.
(c) [§24] Admonishment of Counsel.
4. Limitation on Power To Consider Defendant's Record.
(a) [§25] General Prohibition.
(b) [§26] Exceptions.
II. DISCOVERY
A. In General.
1. [§27] Nature of Criminal Discovery.
2. Development Before Proposition 115.
(a) [§28]
(b) [§29] Federal Law.
3. Proposition 115.
(a) [§30] Enactment.
(b) [§31] Purposes.
(c) [§32] Exclusivity of Provisions.
(d) [§33] Provisions Constitutional.
(e) [§34] Proceedings Covered.
(f) [§35] Matters Not Covered.
(g) [§36] Information Protected From Discovery.
4. Federal Actions.
(a) [§37] Jencks Act.
(b) [§38] Federal Rules.
B. Discovery by Defendant.
1. Prosecution's General Duty To Disclose.
(a) [§39] In General.
(b) [§40] Under Statute.
(c) [§41] Under Federal Constitution.
2. Discovery of Particular Matters.
(a) [§42] Identification of Prosecution Witnesses.
(b) [§43] Identity of Informer.
(c) [§44] Defendant's Own Statements.
(d) [§45] Oral Statements.
(e) [§46] Witness' "Rap Sheet."
(f) [§47] Investigative Reports of Similar Crimes.
(g) [§48] Transcripts and Public Records.
(h) [§49] Information on Discriminatory Prosecution.
(i) Police Personnel and Complaint Records.
(1) [§50] The Pitchess Rule.
(2) [§51] Codification of Rule.
(3) Confidentiality of Records.
(aa) [§52] In General.
(bb) [§53] Public Disclosure of Records.
(4) [§54] Privacy Rights of Third Persons.
(5) Procedure To Obtain Disclosure.
(aa) [§55] Motion and Notification.
(bb) [§56] Affidavits.
(cc) [§57] Showing of Good Cause.
(dd) [§58] Hearing on Motion.
(dd-1) [§58A] (New) Documents Produced and Made Part of Record.
(ee) [§59] Determination of Relevancy.
(ff) [§60] Ruling by Trial Court.
(gg) [§61] Review.
(6) [§62] Sanctions for Destruction of Records.
(j) Jury Information.
(1) [§63] Jury Lists and Venire.
(2) [§64] Jurors' Addresses and Phone Numbers.
(3) [§65] Jury Data Kept by Prosecution.
(k) Depositions.
(1) [§66] Conditional Examination.
(2) [§67] Nonresident Witness.
(3) [§68] No Deposition of Available Witness.
(l) [§69] Discovery From Private Party Witness.
(m) [§70] Matters Not in Prosecution's Possession.
(n) [§71] Impeachment Information.
(o) [§72] Other Evidence.
C. Discovery by Prosecution.
1. [§73] In General.
2. [§74] Defendant's Statutory Duty To Disclose.
3. [§75] Experts' Identity and Reports.
D. Procedure.
1. Time for Discovery.
(a) [§76] In General.
(b) [§77] Discovery at Trial.
(c) [§78] Discovery After Trial.
2. Denial, Restriction, or Deferral of Discovery.
(a) [§79] For Good Cause.
(b) [§80] Deferral of Penalty Phase Discovery.
3. Enforcement of Discovery.
(a) [§81] Informal Request.
(b) [§82] Motion.
(c) Court Order.
(1) [§83] In General.
(2) [§84] Dismissal.
(3) [§85] Preclusion of Testimony.
(d) Review.
(1) [§86] Denial of Discovery.
(2) [§87] Grant of Discovery.
4. [§88] Interview of Disclosed Witness.
III. CUSTODIAL QUESTIONING: MIRANDA RIGHTS
A. Development of Miranda Rule.
1. [§89] In General.
2. [§90] Escobedo and Dorado Cases.
3. [§91] Miranda Case.
4. [§92] Subsequent Development and Reaffirmation of Rule.
B. Statements and Other Evidence Within Rule.
1. [§93] General Scope of Rule.
2. [§94] Silence.
3. [§95] Statements With Advice of Counsel.
4. [§96] Statements Made by Accomplice.
5. [§97] Evidence Discovered Through Defendant's Response.
6. [§98] Exercise of Right as Evidence of Capacity.
C. Exceptions to Rule.
1. [§99] In General.
2. [§100] Rescue Doctrine.
3. [§101] Public Safety Exception.
4. [§102] No Good Faith Exception.
D. Custodial Interrogation.
1. [§103] General Requirement.
2. Custody.
(a) [§104] In General.
(b) [§105] Detention May Be Constructive.
(c) [§106] Temporary Detention Insufficient.
(d [§107] Place of Questioning Not Determinative.
3. Interrogation.
(a) [§108] In General.
(b [§109] Factors Considered.
(c) [§110] Volunteered Statements Admissible.
(c-1)[§110A] (New) Questioning on Reasons for Asserting Rights Is Improper.
(d) Status of Interrogator.
(1) [§111] In General.
(2) [§112] Prosecution Psychiatrist.
(3) [§113] Court-Appointed Psychiatrist.
(4) [§114] Probation or Parole Officer.
(5) [§115] Government Investigator.
(6) [§116] Undercover Agent.
(7) [§117] Security Person.
(8) [§118] Eavesdropper.
(9) [§119] Other Interrogators.
E. Communication of Rights.
1. [§120] Warning of Miranda Rights.
2. [§121] No Warning Required of Charge or Punishment.
3. [§122] Prosecutor's Promise Not To Use Response Against Suspect.
F. Assertion of Rights.
1. [§123] In General.
2. Request for Counsel.
(a) [§124] In General.
(b) [§125] Assertion Must Be Unambiguous.
(c) [§126] Request for Attorney in Future.
(d) [§127] Minor's Request for Adult.
(e) Request as Bar to Later Questioning.
(1) [§128] General Prohibition in Absence of Counsel.
(2) [§129] Effect of Break in Custody.
(3) [§130] Defendant's Initiation of Later Interrogation.
3. Election of Silence.
(a) [§131] Mosley Case.
(b) [§132]
G. Waiver of Rights.
1. [§133] In General.
2. [§134] Implied Waiver.
3. [§135] Limited Waiver.
4. [§136] Waiver by Minor.
5. [§137] Waiver at Subsequent Interrogation.
6. Effect of Prior Police Violation.
(a) [§138] Miranda Violation.
(b) [§139] Illegal Arrest.
(c) [§140] Illegal Search and Seizure.
7. [§141] Attorney's Attempt To Contact Defendant Does Not Invalidate Waiver.
H. [§142] Procedure To Determine Compliance.
IV. RIGHT TO COUNSEL
A. In General.
1. [§143] Rights Protected.
2. Protection Under Federal Constitution.
(a) [§144] Governing Provisions.
(b) [§145] Development of Law.
3. [§146] Protection Under
4. Offenses to Which Right Applies.
(a) [§147] All Felonies and Misdemeanors.
(b) [§148] Attack on Prior Convictions.
5. Proceedings Requiring Counsel.
(a) [§149] Governing Principles.
(b) [§150] Counsel Required.
(c) [§151] Counsel Not Required.
6. [§151A] (New) Forfeiture To File Appeal.
B.
1. [§152] Advising Defendant of Right.
2. Continuance To Obtain Counsel.
(a) [§153] In General.
(b) [§154] Illustrations: Denial Reversed.
(c) [§155] Illustrations: Denial Upheld.
3. [§156] Refusal To Release Defendant's Funds.
C. [§157] Representation by Counsel of Choice.
D. Appointment of Counsel.
1. [§158] In General.
2. Selection of Counsel.
(a) [§159] No Unrestricted Choice by Defendant.
(b) [§160] Consideration of Defendant's Choice.
(c) [§161] Illustrations.
3. Appointment of Member of Bar.
(a) [§162] In General.
(b) [§163] Compensation.
4. Appointment of Public Defender.
(a) [§164] In General.
(b) [§165] Appointment In Lieu of Alternative Counsel.
(c) [§166] Duties.
(d) [§167] Status and Capacity.
5. Readiness To Proceed.
(a) [§168] Statutory Requirement.
(b) [§169] Determination of Readiness.
6. Indigency of Defendant.
(a) [§170] In General.
(b) [§171] Test of Indigency.
(c) [§172] Determination of Indigency.
7. Ancillary Defense Services.
(a) [§173] In General.
(b) Capital Cases.
(1) [§174] In General.
(2) [§175] Additional Counsel.
(c) [§176] Choice of Experts.
(d) [§177] No Right That Assistance Be Effective.
8. Reimbursement for Cost.
(a) [§178] Defendant's Obligation.
(b) [§179] Notice and Hearing.
(c) [§180] Amount Recoverable.
(d) [§181] Constitutionality.
E. Change of Counsel.
1. Withdrawal, Discharge, and Substitution of Attorney.
(a) [§182] In General.
(b) [§183] Substitution of Appointed for Retained Counsel.
2. Removal by Court.
(a) [§184] In General.
(b) [§185] Ineffective Representation.
(c) Conflict of Interest.
(1) [§186] In General.
(2) [§187] Conflict Limited to Preliminary Matter.
(3) [§188] Acceptance of Attorney's Representation That Conflict Exists.
(4) [§189] Waiver of Right to Conflict-Free Representation.
F. Separate Counsel for Multiple Defendants.
1. [§190] Nature of Right.
2. Conflict of Interest as Ground.
(a) [§191] In General.
(b) [§192] Conflict Arising From Different Proceedings.
(c) [§193] Effect of Joint Representation by Retained Attorney.
(d) [§194] Effect of Joint Representation by Law Partners.
3. Waiver of Right.
(a) [§195] In General.
(b) [§196] Prerequisite: Initial Appointment of Separate Counsel.
4. [§197] Illustrations: Improper Denial.
5. [§198] Illustrations: Proper Denial.
G. Competency and Effective Assistance of Counsel.
1. [§199] In General.
2. [§200] Commentary.
3. Standard for Effective Assistance.
(a) [§201] Former Ibarra Rule.
(b) [§202] People v. Pope.
(c) [§203] Strickland v.
(d) [§204] Subsequent Cases.
4. Status of Counsel.
(a) [§205] Attorney Who Has Resigned From Bar.
(b) [§206] Attorney With Disciplinary Charges Pending.
(c) [§207] Suspended Attorney.
(d) [§208] Law Student.
5. Particular Acts or Omissions.
(a) [§209] In General.
(b) [§210] Failure To Present Defense.
(c) [§211] Ignorance of Law.
(d) [§212] Nonparticipation.
(e) [§213] In Plea Bargaining.
(f) [§214] At Preliminary Hearing.
(g) [§215] Failure To Make Pretrial Motions.
(h) [§216] Respecting Jury Trial.
(i) [§217] Failure To Object to Evidence.
(j) [§218] Failure To Call Witnesses.
(k) [§219] In Argument.
(l) [§220] Failure To Request Instructions.
(m) [§221] At Sentencing or Penalty Hearing.
(n) [§221A] (New) Failure To File Appeal.
(o) [§221B] (New) Concession of Guilt.
6. Procedure in Raising Issue.
(a) Marsden Motion.
(1) [§222] In General.
(2) [§223] Time of Motion.
(3) [§224] Error in Granting Motion.
(b) [§225] Motion for New Trial.
(c) [§226] Direct Appeal.
(d) [§227] Habeas Corpus Proceeding.
(e) [§228] Incompetence of Appellate Counsel.
H. Consultation With Counsel.
1. In Preparation for Trial.
(a) [§229] Right to Private Consultation.
(b) [§230] Interference by Prosecution or Law Enforcement Officials.
(c) [§231] Access to Public Defender.
(d) [§232] Eavesdropping on Conference.
(e) [§233] Undercover Agent at Conference.
(f) [§234] Assistance of Experts and Investigators.
2. During Trial.
(a) [§235] In General.
(b) [§236] Seating Arrangements Hindering Consultation.
(c) [§237] Calling of Defense Counsel as Prosecution Witness.
(d) [§238] Prevention of Consultation During Recess.
I. Counsel's Control of Case.
1. [§239] Exclusive Handling of Case.
2. Determination of Tactics.
(a) [§240] In General.
(b) Illustrations: Counsel's Authority Upheld.
(1) [§241] In General.
(2) [§242] Choice of Defenses.
(3) [§243] Stipulations Admitting Facts in Issue.
(c) Illustrations: Counsel's Authority Limited.
(1) [§244] In General.
(2) [§245] Right of Defendant To Testify.
(3) [§246] Change or Withdrawal of Plea.
J. Waiver of Counsel: Self-Representation.
1. Nature of Right.
(a) [§247] Former Law.
(b) [§248] Constitutional Right: Faretta Case.
(c) Scope of Right.
(1) [§249] In General.
(2) [§250] Capital Cases.
(d) [§251] Distinction: No Right to Cocounsel Status.
2. Time for Request.
(a) [§252] General Principles.
(b) [§253] Application of Principles.
3. [§254] Manner of Request.
4. Required Inquiry and Warnings.
(a) [§255] In General.
(b) [§256] Admonitions to Defendant.
(c) [§257] Inquiry as to Competency.
(d) [§258] Misdemeanor Cases.
5. Effect of Election.
(a) [§259] In General.
(b) [§260] Judge's Advice.
(c) [§261] Right to Continuance.
6. Self-Represented Defendant's Right to Assistance of Attorney.
(a) [§262] In General.
(b) [§263] Discretionary Appointment.
(c) [§264] Nature of Participation.
7. [§265] Withdrawal of Waiver.
8. [§266] Termination of Right.
9. [§267] Review of Determination.
K. Elicitation of Statements in Absence of Counsel: Massiah Rule.
1. [§268] In General.
2. [§269] Time of Interrogation.
3. [§270] Deliberate Elicitation of Statement.
4. [§271] Use of Informant To Receive Statement.
5. [§272] Effect of Charge for Another Crime.
V. TIME OF TRIAL
A. Right to Speedy Trial.
1. In General.
(a) [§273] Policy and Right.
(b) [§274] What Constitutes Bringing Matter to Trial.
2. Constitutional Right.
(a) [§275] Under State Constitution.
(b) [§276] Under Federal Constitution.
(c) [§277] Relationship Between State and Federal Guarantees.
(d) Accrual of Right.
(1) [§278] Speedy Trial Right Inapplicable Until Accusation.
(2) Due Process Protection For Preaccusation Delay.
(aa) [§279] Under Federal Constitution.
(bb) [§280] Under State Constitution.
(e) Test of Unreasonable Delay.
(1) [§281] Federal Balancing Test.
(2) [§282] Delay Before Accusation.
(3) [§283] Prejudice to Defendant.
3. Statutory Right.
(a) [§284] In General.
(b) Felony Cases.
(1) [§285] Delay in Filing Information.
(2) Delay in Trial.
(aa) [§286] Sixty-Day Requirement.
(bb) [§287] Where Trial Is Stayed Pending Appellate Review.
(3) Delay in Retrial.
(aa) [§288] After Reversal on Appeal.
(bb) [§289] After Mistrial or New Trial Order.
(cc) [§290] After Issuance of Writ or Order.
(c) Misdemeanor and Infraction Cases.
(1) [§291] Time Limits.
(2) [§292] Effect of Joinder With Felony.
(d) [§293] Actions Involving Certain Witnesses or Victims.
(e) Imprisoned Defendants.
(1)
(aa) [§294] Demand for Trial.
(bb) [§295] Demand for Sentencing.
(cc) [§296] Who May Make Demand.
(dd) [§297] Form of Demand.
(ee) [§298] Defendant's Duty To Cooperate.
(ff) [§299] Delay After Restoration of Mental Competency.
(gg) [§300] Duty To Notify Defendant of Pending Charge.
(2) Out-of-State Imprisonment: Interstate Agreement on Detainers.
(aa) [§301] In General.
(bb) [§302] 180-Day Requirement.
(cc) [§303] 120-Day Requirement.
(3) Federal Imprisonment.
(aa) [§304] Demand for Trial or Sentencing.
(bb) [§305] Duty To Notify Defendant of Pending Charge.
4. Excuse for Delay.
(a) In General: Good Cause or Justification.
(1) [§306] Statutory Violations.
(2) [§307] Constitutional Violations.
(b) [§308] Defendant's Acts of Prevention.
(c) [§309] Defendant Unavailable.
(d) [§310] Defense Counsel Unavailable.
(e) [§311] Prosecutor Unavailable.
(f) [§312] Witness Unavailable.
(g) [§313] Court or Judge Unavailable.
(h) [§314] Multiple Defendants.
(i) [§315] Delay for Investigation.
(j) [§316] Appellate Proceedings.
5. Waiver.
(a) [§317] Felony Cases.
(b) [§318] Misdemeanor and Infraction Cases.
(c) [§319] Defendant's Request for Delay.
(d) [§320] Defendant's Consent to Delay.
(e) [§321] Waiver by Counsel.
(f) [§322] Explanation of Rights to Unrepresented Defendant.
(g) [§323] Constitutional Right Persists After Statutory Waiver.
6. Procedure for Exercising Right.
(a) [§324] Dismissal Is Proper Remedy.
(b) [§325] Objection and Motion To Dismiss.
(c) [§326] Review of Denial of Motion.
7. Effect of Dismissal.
(a) [§327] No Bar to Subsequent Felony Prosecution.
(b) [§328] No Bar to Additional Charges.
B. Setting for Trial.
1. [§329] In General.
2. [§330] Precedence of Cases.
C. Continuance.
1. In General.
(a) [§331] Policies Involved.
(b) [§332] Requirement of Good Cause.
(c) [§333] Discretion of Court.
2. Continuance to Defendant.
(a) Absence of Witness.
(1) [§334] In General.
(2) [§335] Identification of Obtainable Witness.
(3) [§336] Materiality of Testimony.
(4) Necessity of Testimony.
(aa) [§337] Other Witness Available.
(bb) [§338] Admission of Facts by Prosecution.
(5) [§339] Due Diligence.
(b) [§340] Failure To Obtain Evidence.
(c) Absence or Incapacity of Counsel.
(1) [§341] In General.
(2) [§342] Illness or Other Incapacity.
(3) [§343] Conflicting Trial Commitments.
(d) [§344] Surprise.
(e) [§345] Other Grounds.
3. Continuance to Prosecution.
(a) [§346] In General.
(b) [§347] Judgment Affirmed.
(c) [§348] Judgment Reversed.
4. Procedure.
(a) [§349] In General.
(b) [§350] Motion for Continuance.
VI. PUBLIC TRIAL
A. [§351] In General.
B. Right of Defendant.
1. [§352] No Exclusion of Public.
2. [§353] Right in Pretrial Proceedings.
3. [§354] Right at Voir Dire Examination.
4. [§355] Temporary Closure of Courtroom.
5. [§356] Waiver of Right.
C. [§357] Right of Press and Public.
D. Restrictions on Right.
1. [§358] In General.
2. [§359] Defendant's Right to Fair Trial.
3. [§360] Statutory Limitations.
E. Control of Publicity.
1. [§361] In General.
2. [§362] Improper Publicity as Denial of Due Process.
3. Protective Orders.
(a) [§363] Power of Trial Judge.
(b) [§364] Presumption Against Prior Restraint.
4. Determining Prejudicial Effect of Publicity.
(a) [§365] In General.
(b) [§366] Voir Dire of Jurors on Prejudice.
5. Electronic Media Coverage of Trial.
(a) [§367] Constitutionally Permissible.
(b) [§368]
VII. JOINT AND SEPARATE TRIALS
A. Joinder of Defendants.
1. [§369]
2. Discretionary Severance of Codefendants.
(a) [§370] In General.
(b) Discretion To Deny Severance.
(1) [§371] In General.
(2) [§372] Codefendants Charged With Additional Crimes.
(3) [§373] Testimony of Severed Codefendant Would Exonerate Others.
(4) [§374] Antagonistic Defenses of Codefendants.
3. Effect of Codefendant's Implicating Confession (Aranda-Bruton Rule).
(a) [§375] People v. Aranda.
(b) [§376] Bruton v.
(c) Application of Rule.
(1) [§377] In General.
(2) [§378] Nature of Trial or Hearing.
(3) [§379] When Codefendant Testifies.
(4) [§380] Incriminating Statement Less Than Confession.
(5) [§381] Offer of Statement by Codefendant.
(6) [§382] Offer of Statement for Nonhearsay Purpose.
(7) [§383] Common or Interlocking Confessions.
(8) [§384] Conspiracy Prosecution.
(d) Editing as Alternative to Severance.
(1) [§385] In General.
(2) [§386] Sufficiency of Editing.
(3) [§387] Effect of Deleting Matters Favoring Codefendant.
(e) [§388] Dual Juries as Alternative to Severance.
(f) [§389] Waiver or Cure of Error.
(g) Review of Error.
(1) [§390] Test for Harmless or Reversible Error.
(2) [§391] Reversible Error.
(3) [§392] Harmless Error: Prosecution Case Strong.
(4) [§393] Harmless Error: Defendant Not Substantially Incriminated by Statement.
B. Joinder or Consolidation of Offenses.
1. [§394] Same Test for Joinder and Consolidation.
2. Discretionary Severance of Charges.
(a) [§395] In General.
(b) [§396] Pertinent Factors.
(c) [§397] Refusal To Sever Affirmed.
(d) [§398] Refusal To Sever Reversed.
3. Multiple Defendants.
(a) [§399] In General.
(b) Improper Joinder or Consolidation.
(1) [§400] In General.
(2) [§401] Defendants Not Jointly Charged.
(c) Proper Joinder or Consolidation.
(1) [§402] In General.
(2) [§403] Defendants Charged With Different Crimes Arising Out of Same Transaction.
VIII. DISMISSAL
A. [§404] In General.
B. Discharge of Codefendant To Become Witness.
1. Witness for Prosecution.
(a) [§405] In General.
(b) [§406] Distinction: Testimony Without Discharge.
2. [§407] Witness for Defense.
C. Dismissal in Furtherance of Justice.
1. Power and Discretion of Judge.
(a) [§408] In General.
(b) [§409] Proper Grounds.
(c) [§410] Improper Grounds.
(d) [§411] Striking Special Circumstance.
(e) [§412] Striking Enhancement.
(f) [§413] Imposing Plea Bargain.
2. Procedure.
(a) [§414] Who May Invoke Statute.
(b) [§415] Time of Application.
(c) [§416] Order and Entry of Reasons.
(d) [§417] Review of Order.
D. Striking Prior Conviction.
1. [§418] In General.
2. Challenge of Priors on Constitutional Grounds.
(a) [§419] In General.
(b) [§420] Vehicle Code Convictions.
E. Effect of Dismissal.
1. [§421] In General.
2. [§422] Misdemeanor.
3. Felony.
(a) [§423] General Rule: Third Prosecution Barred.
(b) [§424] Exceptions.
IX. PRESENCE AT TRIAL
A. [§425] Constitutional and Statutory Right.
B. Mental Presence.
1. [§426] Nature of Requirement.
2. [§427] Malingering and Voluntary Acts.
C. [§428] Auditory Presence.
D. [§429] Temporary Absence.
E. [§430] Collateral Proceedings.
F. Waiver of Right.
1. [§431] In General.
2. [§432] Capital Case.
3. [§433] Noncapital Felony Case.
4. [§434] Misdemeanor Case.
X. RIGHT TO AND SELECTION OF JURY
A. Right to Jury Trial.
1. Nature and Scope of Right.
(a) [§435] In General.
(b) [§436] Federal Constitution.
(c) [§437]
(d) Proceedings Where Right Recognized.
(1) [§438] In General.
(1a) (New) Determination of Sentencing Factors.
(aa) [§438A] (New) Overview.
(bb) [§438B] (New) Scope and Application of Apprendi Rule.
(cc) [§438C] (New) Blakely and Booker Decisions.
(dd) [§438D] (New) Decision in Black I.
(ee) [§438E] (New) Cunningham Decision.
(ff) [§438F] (New) Legislative Response.
(gg) [§438G] (New) Black II and Sandoval.
(2) [§439] Criminal Contempt.
(e) [§440] Size of Jury.
(f) [§441] Unanimous Verdict Required.
2. Requirement That Jury Be Representative.
(a) [§442] In General.
(b) [§443] Relevant Community.
(c) [§444] Racial or Ethnic Group Discrimination.
(d) [§445] Social or Economic Discrimination.
(e) [§446] Gender Discrimination.
(f) Proof of Improper Exclusion.
(1) [§447] Standing To Challenge Exclusion.
(2) [§448] Prima Facie Case.
(3) [§449] Sufficiency of Proof.
3. Requirement That Jury Be Drawn From Vicinage.
(a) [§450] In General.
(b) [§451] Scope of Requirement.
4. Waiver of Right.
(a) [§452] In General.
(b) [§453] Necessity of Express Waiver.
(c) [§454] Consent of Prosecutor and Defense Counsel.
(d) [§455] Concurrence by Court Not Required.
(e) [§456] Partial Waiver.
(f) [§457] Renewal of Waiver After Amendment of Pleadings.
(g) [§458] Withdrawal of Waiver.
(h) [§459] Effect of Waiver on Retrial.
B. Selection of Jury.
1. [§460] In General.
2. Challenges to Panel.
(a) [§461] Nature and Grounds.
(b) [§462] Procedure.
3. Challenges to Individual Jurors.
(a) [§463] Nature and Kinds.
(b) Implied Bias.
(1) [§464] In General.
(2) Opinions Against Death Penalty.
(aa) [§465] In General.
(bb) [§466] Constitutional Test: Witherspoon Case.
(cc) [§467] Clarification: Witt Case.
(dd) [§468] California Standard.
(ee) [§469] Reversible or Harmless Error.
(c) Actual Bias.
(1) [§470] Sufficient Showing.
(2) [§471] Insufficient Showing.
4. Voir Dire Examination.
(a) [§472] In General.
(b) [§473] Examination by Judge.
(c) [§474] Examination by Counsel.
(d) [§475] Pre-Voir Dire Conference.
(e) [§476] In Camera and Sequestered Voir Dire.
(f) [§477] One Voir Dire in Divided or Interrupted Trial.
(g) [§478] Use of Jury Book or List.
(h) Content and Scope of Questions.
(1) [§479] In General.
(2) [§480] Questions Must Relate to Challenge for Cause.
(3) [§481] Racial Prejudice.
(4) [§482] Attitude Toward Death Penalty.
(5) [§483] Matters of Law.
(6) [§484] Effect of Pretrial Publicity.
(7) [§485] Weight of Defendant's Testimony.
5. Procedure in Exercising Challenges.
(a) [§486] In General.
(b) Challenges for Cause.
(1) [§487] Order of Challenges.
(2) [§488] Statement, Notice, and Trial of Challenge.
(3) [§489] Discretion of Trial Judge.
(4) [§490] Error Reversible.
(5) [§491] Error Not Reversible.
(c) Peremptory Challenges.
(1) [§492] Time and Method.
(2) [§493] Number.
(3) [§494] Denial as Reversible Error.
(4) No Systematic Exclusion of Cognizable Group (Wheeler-Batson Requirements).
(aa) [§495] Under
(bb) [§496] Under Federal Constitution: Batson Case.
(bb-1) [§496A] (New) Statutory Prohibition.
(cc) [§497] Requirement Applies to Both Parties.
(dd) [§498] Time and Form of Motion.
(ee) [§499] What Constitutes Cognizable Group.
(ff) [§500] Prima Facie Showing of Discriminatory Purpose.
(gg) [§501] Justification of Challenges.
(gg-1) [§501A] (New) Ex Parte Hearing on Justification Disfavored.
(hh) [§502] Trial Court's Evaluation.
(ii) [§503] Remedy at Trial.
(jj) [§504] Review and Remand.
(d) [§505] Excusing Juror on Judge's Own Motion.
6. Alternate Jurors.
(a) [§506] In General.
(b) Grounds for Substitution.
(1) [§507] In General.
(2) [§508] Good Cause Shown to Court.
(3) [§509] Request of Juror on Good Cause.
(4) [§510] No Automatic Discharge on Death in Family.
(c) Procedure.
(1) [§511] Stipulation or Summary Determination.
(2) [§512] Substitution After Submission.
(3) [§513] Exhaustion of Alternates.
XI. ORDER AND COMMENCEMENT OF TRIAL
A. Order of Trial.
1. [§514] In General.
2. [§515] Bifurcation To Determine Validity of Priors.
B. [§516]
C. Opening Statements.
1. [§517] In General.
2. [§518] Prosecutor's Overstatement Alone Not Ground for Reversal.
3. [§519] Prosecutor's Misconduct Constituting Reversible Error.
4. [§520] Defendant's Statement.
XII. PRESUMPTION OF INNOCENCE
A. [§521] Doctrine of Reasonable Doubt.
B. [§522] Issues Carrying Lesser Burden.
C. Burden on Defendant.
1. [§523] In General.
2. [§524] Mitigation, Justification, or Excuse of Homicide.
D. Presumptions Against Defendant.
1. [§525] General Principles.
2. [§526] Distinctions.
3. [§527] Prohibition Against Conclusively Presuming Element of Crime.
4. [§528] Presumptions of Knowledge or Intent.
5. [§529] Presumption of Paternity.
XIII. PRODUCTION AND PRESENTATION OF EVIDENCE
A. [§530] In General.
B. Confrontation of Witnesses.
1. Nature and Scope of Right.
(a) [§531] Constitutional and Statutory Provisions.
(b)
(1) [§532] In General.
(2) [§533] Defendant or Witness With Communication Problems.
(c) Right to Face-to-Face Confrontation.
(1) [§534] In General.
(2) [§535] Minor Victim.
(3) [§536] Proceedings in Chambers.
2. Distinctions and Exceptions.
(a) [§537] In General.
(b) [§538] Hearsay Rule Distinguished.
(b-1) [§538A] (New) Forfeiture of Objection by Wrongdoing.
(c) [§539] Prior Testimony of Unavailable Witness.
3. Waiver by Submission on Transcript.
(a) [§540] In General.
(b) [§541] Waivers and Advisements Required.
C. Control by Court.
1. [§542] In General.
2. Over Witnesses.
(a) [§543] In General.
(b) [§544] Examination by Judge of Witness or Defendant Who Testifies.
(c) [§545] Restriction of Cross-Examination.
3. Admission and Exclusion of Evidence.
(a) [§546] Restriction of Cumulative and Rebuttal Evidence.
(b) [§547] Exclusion of Evidence on Court's Own Motion.
(c) Reversible Error.
(1) [§548] Admission of Inadmissible Evidence.
(2) [§549] Exclusion of Admissible Evidence.
D. [§550] Privileges.
E. [§551] Suppression of Evidence by Prosecution.
F. [§552] View of Scene.
G. [§553] Rights of Victim at Trial.
H. [§554] Reopening Case.
I. Misconduct.
1. Prosecutor.
(a) [§555] Improper Direct Examination or Offer of Proof.
(b) [§556] Improper Cross-Examination or Impeachment.
2. Judge.
(a) [§557] General Principles.
(b) [§558] Disparagement of Defendant or Counsel.
(c) [§559] Attitude Toward Prosecution Witnesses.
(d) [§560] Attitude Toward Defense Witnesses.
J. [§561] Minor Vehicle Offenses.
XIV. MOTIONS FOR JUDGMENT OF ACQUITTAL AND TO DISCHARGE
JURY
A. Motion for Judgment of Acquittal.
1. [§562] Development of Law.
2. [§563] Procedure.
3. [§564] Grounds and Determination.
B. [§565] Motion To Discharge Jury.
XV. ARGUMENT
A. In General.
1. [§566] Statutory and Constitutional Right.
2. [§567] Number of Counsel.
3. [§568] Order of Argument.
4. [§569] Control by Court.
B. By Prosecution.
1. [§570] Scope of Argument.
2. [§571] Misconduct: Principles and Policy.
3. Attacks on Defense Case.
(a) [§572] In General.
(b) Failure To Call Witness.
(1) [§573] Permissible Comment.
(2) [§574] Misconduct.
(c) [§575] Defendant's Failure To Testify.
4. Reference to Matters Outside Record.
(a) [§576] In General.
(b) [§577] Other Offenses or Convictions.
(c) [§578] Future Conduct of Defendant.
(d) [§579] Unadmitted Evidence.
(e) [§580] Permissible References.
5. [§581] Statements on Law.
6. Statements Relating to Punishment.
(a) [§582] Permissible Comment.
(b) [§583] Misconduct.
7. Personal Beliefs or Opinions.
(a) [§584] In General.
(b) Guilt of Defendant.
(1) [§585] In General.
(2) [§586] Implication of Guilt.
(c) [§587] Reliability of Witnesses.
(d) [§588] Permissible Comment.
8. Derogatory Remarks.
(a) [§589] In General.
(b) Against Defendant.
(1) [§590] Permissible Comment.
(2) [§591] Misconduct.
(c) [§592] Against Counsel.
(d) [§593] Against Witnesses.
9. Appeals to Passion or Prejudice.
(a) [§594] In General.
(b) [§595] Racial Prejudice.
(c) [§596] Political or Economic Prejudice.
(d) [§597] Nature of Crime.
10. Refutation of Defense Statements.
(a) [§598] Permissible Answers.
(b) [§599] Misconduct.
C. By Defense.
1. [§600] In General.
2. [§601] Matters of Common Knowledge and Illustrative Comment.
3. [§602] Statements on Law.
4. [§603] Attack on Death Penalty.
5. [§604] Personal Belief in Defendant's Innocence.
6. [§605] Argument by Counsel for Codefendant.
XVI. INSTRUCTIONS
A. In General.
1. [§606] Nature of Instructions.
2. Requested Instructions.
(a) [§607] Duty To Give.
(b) [§608] Modification or Substitution.
3. Instructions on Court's Own Motion.
(a) [§609] Power and Duty of Court.
(b) [§610] Limits on Duty.
(c) Instruction on Lesser Included Offenses.
(1) [§611] Requirement of Instruction.
(2) [§612] Reversible or Harmless Error.
(3) [§613] When Instruction Need Not Be Given.
(d) [§614] Instructions on Evidence.
(e) [§615] Instructions on Role of Jury.
(f) [§616] Other Particular Instructions.
4. Procedure for Request and Submission.
(a) [§617] Proposal by Counsel.
(b) [§618] Grant, Refusal, or Modification.
(c) [§619] Time of Instructing.
(d) [§620] Manner of Instructing.
5. Form and Style.
(a) [§621] General Principles.
(b) [§622] Repetitious Instructions.
(c) [§623] Formula Instructions.
(d) [§624] Instructions Singling Out Witnesses.
(e) [§625] Argumentative Instructions.
(f) Sources and Forms.
(1) [§626] In General.
(2) [§627] CALJIC: Nature and Effect.
(3) [§628]CALJIC: Revised (6th) Edition.
(4) [§628A] (New) CALJIC: Subsequent Editions.
(5) [§628B] (New) CALJIC: Judicial Council Instructions.
B. Particular Subjects of Instruction.
1. In General.
(a) [§629] Elements of Crime, Parties to Crime, and Particular Offenses.
(b) Lesser Included Offenses.
(1) [§630] In General.
(2) [§631] "Acquittal-First" Instruction.
(c) [§632] Lesser Related Offenses.
(d) Meaning of Terms.
(1) [§633] Words in Common Usage.
(2) [§634] Technical or Specialized Terms.
(e) [§635] Defenses to Crime.
2. Evidence.
(a) [§636] In General.
(b) Presumption of Innocence, Reasonable Doubt, and Burden of Proof.
(1) Instruction in Language of P.C. 1096.
(aa) [§637] In General.
(bb) [§638] Instruction Constitutional.
(2) Additional Instructions.
(aa) [§639] In General.
(bb) [§640] Instructions on Identity or Propensity and Reasonable Doubt.
(c) [§641] Confessions and Admissions.
(d) [§642] Witnesses.
3. Jurors' Deliberation and Verdict.
(a) [§643] In General.
(b) [§644] Findings Permitted or Required.
(c) Unanimity Instruction.
(1) [§645] Required Where Conviction May Be Based on More Than One Act.
(2) [§646] Exception: Continuous Course of Conduct.
(3) [§647] Distinction: Alternative Theories of Guilt.
(4) [§648] Resident Child Molester Cases.
C. Cautionary Instructions.
1. [§649] In General.
2. [§650] Oral Admissions.
3. [§651] Prosecuting Witness in Sex Case.
4. [§652] Circumstantial Evidence.
5. [§653] Testimony of Informant.
6. Testimony of Accomplice.
(a) [§654] Necessity for Corroboration.
(b) [§655] Viewing Testimony With Caution.
7. [§656] Other Corroboration Requirements.
1. [§657] Nature of Power.
2. [§658] Scope of Power.
3. [§659] Selective Comment.
4. [§660] Impartiality Required.
5. [§661] Comment to Deadlocked Jury.
6. [§662] Comment on Guilt of Defendant.
E. Review.
1. [§663] In General.
2. [§664] Error in Content.
3. [§665] Error in Form.
4. [§666] Inconsistent or Confusing Instructions.
5. [§667] Refusal or Failure To Instruct.
6. [§668] Abstract Instructions.
XVII. SANITY AND COMPETENCY PROCEEDINGS
A. Determination of Insanity Defense.
1. [§669] Bifurcation Requirement.
2. [§670] First Trial on Guilt.
3. Second Trial on Insanity.
(a) [§671] Relation to Guilt Stage.
(b) [§672] Jury or Court Trial.
(c) [§673] Order of Trial.
(d) [§674] Use of Experts.
(e) [§675] Charge to Jury.
(f) [§676] Verdict and Sentence.
4. Proceedings After Determination of Insanity.
(a) [§677] Where Defendant Recovered.
(b) [§678] Where Defendant Not Recovered.
(c) Release From Commitment.
(1) [§679] Application for Release.
(2) [§680] Standards for Release.
(3) [§681] Custody and Treatment Pending Hearing.
(4) [§682] Initial Hearing on Outpatient Placement.
(5) [§683] Trial on Restoration of Sanity.
(6) [§684] Effect of Order Adverse to Defendant.
(d) [§685] Constitutionality of Proceedings.
5. Outpatient Treatment.
(a) [§686] In General.
(b) [§687] Prerequisites.
(c) [§688] Recommendations and Hearing.
(d) [§689] Supervision of Treatment.
(e) [§690] Termination of Outpatient Status.
6. Term of Commitment.
(a) [§691] Constitutional Requirements.
(b) [§692] Maximum Commitment.
(c) [§693] Extended Commitment.
B. Determination of Mental Competence To Stand Trial.
1. In General.
(a) [§694] Necessity for Present Mental Competence.
(b) [§695] Constitutional Requirements.
(c) [§696] Statutory Requirements.
(d) [§697] Nature of Competency Proceeding.
(e) [§698] Test of Incompetence.
2. Procedure To Determine Competence.
(a) [§699] Motion and Order.
(b) Role of Counsel.
(1) [§700] In General.
(2) [§701] Right To Control Proceedings.
(c) Duty To Order Hearing.
(1) [§702] Judge Expresses Doubt as to Competency.
(2) Substantial Evidence of Incompetency.
(aa) [§703] In General.
(bb) [§704] Illustrations.
(3) [§705] Duty To Order Second Hearing.
(d) Suspension of Proceedings.
(1) [§706] General Rule.
(2) [§707] When Proceedings Not Suspended.
(e) Hearing.
(1) [§708] Jury Trial on Demand.
(2) [§709] Conduct of Hearing.
(3) [§710] Determination.
3. Procedure After Determination of Incompetence.
(a) [§711] In General.
(b) [§712] Detention and Reports.
(c) [§713] Return to Court.
(d) [§714] Disposition on Return.
(e) [§715] Developmental Disability.
4. Review.
(a) [§716] In General.
(b) [§717] On Habeas Corpus.