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CODES MODULE, PART III
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  1. CODES MODULE, PART III PENAL CODE, FEDERAL RULES, CALIFORNIA CONSTITUTION, & UNITED STATES CONSTITUTION

  2. PENAL CODE

  3. 17 Felony; Misdemeanor; Infraction • A felony is a crime which is punishable with death or by imprisonment in the state prison. • Every other crime or public offense is a misdemeanor, except those offenses that are classified as infractions.

  4. When a crime is punishable, in the court’s discretion, by imprisonment in the state or county jail or by fine, it is a misdemeanor when • the court decides not to send the defendant to state prison • the court sends the defendant to the Youth Authority and designates the offense a misdemeanor • the court grants probation to the defendant and declares the offense a misdemeanor

  5. the prosecutor files the case as a misdemeanor, unless the defendant objects • the magistrate determines that the offense is a misdemeanor • A violation is an infraction when • the prosecutor files the case as an infraction, unless the defendant objects • the court determines that the offense is an infraction

  6. 869 Authentication; Preparation • Each witness’ testimony in a homicide case will be reduced to writing, as a deposition. • The testimony shall state the name of the witness, his address, and business. • If the witness is a peace officer, the testimony shall state his name and address given at the hearing.

  7. All objections and rulings will be included. • Any questions that the witness declines to answer will also be included. • The deposition must be signed by the witness, except when the deposition is taken stenographically. • If the defendant is held to answer or if the transcript is ordered, the reporter must prepare the transcript within 10 days.

  8. The reporter must make an original and one copy and as many additional copies as there are defendants and deliver them to the county clerk. • The reporter shall file with the auditor of the county an affidavit stating that the transcript and copies have been delivered to the county clerk within the allotted time. • Failure to deliver the transcripts in a timely manner will cut the reporter’s pay in half.

  9. If the reporter delivers the transcripts in a timely manner, he will receive the compensation fixed by law. • The county clerk will file the original transcript with the papers in the case and immediately must deliver a copy to the district attorney. • The county clerk must deliver a copy to each defendant at least five days before trial.

  10. 938 Stenographic Reporter • Criminal causes being investigated by the grand jury must be reported by a shorthand reporter. • A transcript is prepared when an indictment is returned. • Upon request of the grand jury, any testimony taken during a session of the previous grand jury may be transcribed.

  11. 938.1 Transcript of Testimony • The reporter must deliver to the county clerk an original transcript and a copy and as many additional copies as there are defendants within 10 days of an indictment being returned or an accusation presented against a defendant. • An extension of 20 days is allowed for good cause.

  12. The county clerk will file the original transcript with the papers in the case and immediately must deliver a copy to the district attorney. • The county clerk must deliver a copy to each defendant at least ten days before trial. • The case may be postponed if the defendant has not received the transcript 10 days before trial.

  13. The transcript will not be open to the public until 10 days after its delivery to the defendant. • Unless the court orders otherwise, the transcript shall be open to the public, unless the court orders the transcript, or any part, be sealed to ensure that the defendant receives a fair trial.

  14. 939 Private Sessions • No person, except those specified in Article 3 or an officer having custody of a prisoner witness, is permitted to be present during the criminal sessions of the grand jury except the members and the witness being examined. • Excused grand jurors are not allowed to be present. • No one except grand jurors are allowed to be present when voting on a matter takes place.

  15. Questions on Penal Code • When a crime is punishable by imprisonment in the state prison or in the county jail at the discretion of the judge, if the court imposes a county jail sentence, the crime is • a felony • a misdemeanor • an infraction • second degree felony Answer: B

  16. A preliminary hearing transcript must be filed within • 10 days • 15 days • 20 days • 30 days Answer: A

  17. A felony is defined as a crime which is punishable by • under a year in the county jail • imprisonment in the state prison • over a year in the county jail • a fine Answer: B

  18. Before being paid for the transcript of a preliminary hearing, the reporter must • file an affidavit that the transcript was filed within 10 days • have the judge sign an authentication • have the transcript notarized • deliver a copy to defense counsel Answer: A

  19. If a reporter does not file the transcript of a preliminary hearing within 10 days, • the judge must sign the automatic waiver • the transcript must be delivered directly to the district attorney’s office • defense counsel shall pay one-half of the cost • his or her compensation shall be reduced by half Answer: D

  20. If a reporter files a preliminary transcript in a timely fashion, he or she will receive • compensation allowed by law to reporters in the superior court • compensation at 50 percent above that allowed by law to reporters in the superior court • compensation at $2.50 per page • compensation tied to the prevailing costs in the general reporting field Answer: A

  21. Offenses which are classified as infractions are • misdemeanors • felonies • either felonies or misdemeanors • neither felonies nor misdemeanors Answer: D

  22. The reporter shall transcribe a preliminary hearing • always • only after a court order • within 72 hours • if the defendant is held to answer Answer: D

  23. The reporter delivers the original and all copies of a preliminary felony hearing to • the district attorney • the magistrate • the county clerk • the appellate court Answer: C

  24. During the expression of the opinions of the grand jurors or their voting, no person shall be present except • no exceptions • the district attorney • the defendant • the court reporter Answer: A

  25. Each defendant receives a copy of his preliminary hearing transcript • at one-half of the normal cost • at least five days before trial • when he is not held to answer • within 30 days of the preliminary hearing Answer: B

  26. A transcript of a grand jury indictment hearing shall not be open to the public until • 10 days after its delivery to the defendant • 15 days after its delivery to the defendant • 20 days after its delivery to the defendant • 30 days after its delivery to the defendant Answer: A

  27. The reporter shall make an original and how many copies of a preliminary hearing transcript? • two for the court • one plus one for each defendant • three plus one for each defendant • one for the court and one for the DA Answer: B

  28. Grand jury proceedings are transcribed • when an indictment is returned • when requested by the defendant • automatically • after the expiration of ten days Answer: A

  29. The reporter files an affidavit that the transcript has been delivered with the • superior court • municipal magistrate • county auditor • county clerk Answer: C

  30. True or False • The court may have the discretion in some cases to commit a defendant to the Youth Authority and designate an offense to be a misdemeanor. True

  31. The transcript of a grand jury indictment hearing may be sealed if the court determines that making it public would prejudice the defendant’s right to a fair trial. True

  32. Upon receipt by the reporter, the county clerk shall deliver the transcript of a grand jury indictment hearing to superior court. False

  33. If the magistrate determines an offense to be a misdemeanor, the reporter sends a transcript of proceedings to the municipal court within 10 days. False

  34. The reporter has 20 days to provide a transcript if an indictment is not returned. False

  35. FEDERAL RULES

  36. Rule 28 Persons Before Whom Depositions May Be Taken (a) • A deposition may be taken before an officer authorized to administer oaths under US law or under the laws where the deposition is held within the United States or a territory or insular possession. • The court may also appoint a person to administer oaths and to take the testimony.

  37. Rule 28 Persons Before Whom Depositions May Be Taken (b) • Depositions may be taken in a foreign country • pursuant to any applicable treaty or convention • pursuant to a letter of request • on notice before a person authorized to administer oaths in the place in which the examination is held • before a person commissioned by the court and who is given a commission

  38. A commission or letter of commission is issued on application and notice. • A commission may designate the person before whom the deposition is taken by name or descriptive title. • When a letter of request is used pursuant to a treaty, it shall be captioned in the form prescribed by that treaty. • Evidence obtained in response to a letter of request need not be excluded because it is not a verbatim transcript or the witness was not sworn before giving the testimony.

  39. Rule 28 Persons Before Whom Depositions May Be Taken (c) • No deposition shall be taken before a person who is a relative or employee or attorney or counsel of any of the parties, or is a relative or employee of such attorney or counsel, or is financially interested in the action.

  40. 30 Depo Upon Oral Examination (a) • A party can take the testimony of any person by deposition without court permission, except for deponents in jail. • The witness may be subpoenaed.

  41. Court permission is required to take a deposition if • more than ten depositions have been taken by the plaintiffs, defendants, or third-party defendants • a witness is to be deposed again • a party wants to take a deposition without adequate notice, unless the party taking the deposition can certify the deponent is leaving the country and won’t be available for a future deposition

  42. 30 Depo Upon Oral Examination (b) • A party who wants to take a deposition must give reasonable written notice to all other parties. • The notice shall state the time and place for the depo and the name and address of the deponent(s). • If a subpoena duces tecum is to be served, a list of the items to be produced must be included in the notice.

  43. The notice shall state how the depo is going to be recorded (stenographically, by tape-recording, or videotaping). • The party taking the deposition pays for the cost of recording the depo. • If the depo is not recorded stenographically, any party may arrange for transcription of the recording. • If another party wishes the depo be recorded in a fashion other than that stated in the notice, he must pay for it himself.

  44. Depositions are taken before an officer as designated in Rule 28 and begin with a statement on the record by the officer that includes • the officer’s name and business address • the date, time, and place of the depo • the name of the deponent • the administration of the oath or affirmation • an identification of all persons present

  45. If the depo is not recorded stenographically, Items A through C must be repeated at the beginning of each unit of recorded medium. • The medium used must not distort the appearance of any of the parties in the deposition. • At the end of the depo, the officer must state that the depo is complete and set forth any stipulations made by counsel concerning the custody of the transcript or recordings or exhibits or any other matters.

  46. The parties may stipulate, or the court may order, a depo be taken telephonically or by some other remote electronic means (using videoconferencing or over the Internet). • A deposition taken by such means is taken in the district where the deponent is to answer the questions.

  47. 30 Depo Upon Oral Examination (c) • The depo officer shall put the witness on oath or affirmation and record the testimony of the witness. • All objections made shall be noted upon the record of the depo; however, the examination will continue. • A party may choose to serve written questions instead of appearing at the depo, and the officer shall propound and record the questions verbatim.

  48. 30 Depo Upon Oral Examination (d) • Objections shall be stated concisely and in a neutral manner. • A party may instruct a deponent not to answer only to preserve a privilege, to enforce a limitation on evidence, or to present a motion. • The court may limit the time permitted for the conduct of a depo. • If a party impedes the taking of the testimony, sanctions may be imposed.

  49. If a motion is made that the depo is being conducted in bad faith, the depo will be suspended pending a court ruling. • The court may order the officer to cease taking the deposition or to limit the scope of the deposition.

  50. 30 Depo Upon Oral Examination (e) • The deponent must request that after notification that the transcript is ready he have 30 days in which to review it, make any changes, and sign it. • The officer’s certificate must indicate if a review was requested. • The transcript must be appended with any changes made by the deponent.