Chapter 45

8 GCA CRIMINAL PROCEDURE CH. 45 FIRST APPEARANCE : PRELIMINARY EXAMINATION 1 CHAPTER 45 FIRST APPEARANCE : PRELIMINARY EXAMINATION § 45.10. Duty to Deliver Arrestee to Judge, or to P eace Officer. § 45.20. Complaint to be Filed; When. § 45.30. First Appearance; Statement by Court; Publ ic Defender Allowed. § 45.40. Procedure When Public Defender Cannot Serv e. § 45.45. Waiver of Indictment; of Preliminary Exami nation. § 45.50. Preliminary Examination: Date; Purpose; No ne Required When Indictment Precedes . § 45.60. Preliminary Examination: Procedure. § 45.70. Preliminary Examination to be Recorded; Ac cessibility. § 45.80. Procedure Where Probable Cause Not Shown. § 45.10. Duty to Delivery Arrestee to Judge, or to Peace Officer. (a) An officer making an arrest under a warrant or any person making an arrest without a warrant shall take the arrested person without unnecessary delay before a judge of the Superior Co urt. (b) Notwithstanding Subsection (a), a private perso n who has arrested another for the commission of an offense, may deliv er him to a peace officer who shall take the person arrested before the judge .

Notwithstanding Subsection (a), a private perso n who has arrested another for the commission of an offense, may deliv er him to a peace officer who shall take the person arrested before the judge . (c) The person arrested shall in all cases be taken before the judge within forty-eight (48) hours after the arrest, except that when the forty-eight (48) hour period expires, it is the burden of the g overnment to demonstrate that a bona fide emergency or an extraordinary circumstance existed. SOURCE : Subsection (c) amended by P.L. 29-075:1 (May 9, 2 008). NOTE : Section 45.10 is based on the first sentence of f ormer Rule 5 and portions of former §§ 825 and 847 - 849. See also former §§ 821 -824. It should be noted that although Subsection (c) sets a maximum time period, the basic test in all cases requires no unnecessary delay. See generally B. Witkin, Cali fornia Criminal Procedure Proceedings Before Trial §§ 114,117 (1963, Supp. 19 73). It should also be noted that this Section does not apply where the arrested pers on is released pursuant to either §§ 20.60 or 25.10. § 45.20. Complaint to be Filed; When.

14,117 (1963, Supp. 19 73). It should also be noted that this Section does not apply where the arrested pers on is released pursuant to either §§ 20.60 or 25.10. § 45.20. Complaint to be Filed; When. (a) Where a person is arrested without a warrant, a t or before the time he is brought before the court pursuant to § 45.10, the prosecuting attorney shall file a complaint which satisfies the requirem ents of § 15.10 and COL72920148 GCA CRIMINAL PROCEDURE CH. 45 FIRST APPEARANCE : PRELIMINARY EXAMINATION 2 affidavits showing probable cause to believe that a n offense has been committed and that the defendant has committed it. (b) At or before the time of the defendant's first appearance pursuant to § 45.30, if no determination has previously been ma de by the court or grand jury that there is probable cause to believe that a n offense has been committed and that the defendant has committed it, the court shall make such determination in the manner provided by §§ 15. 20 and 15.30. The defendant shall have no right to be present at any hearing leading to such determination. If from the evidence it appears that there is no probable cause to believe that an offense has been committed or

endant shall have no right to be present at any hearing leading to such determination. If from the evidence it appears that there is no probable cause to believe that an offense has been committed or th at the defendant committed it, the court shall dismiss the complaint and discharge the defendant. Such discharge shall not preclude the go vernment from instituting a subsequent prosecution for the same offense. NOTE : Subsection (a) of § 45.20 is substantively the sa me as the second sentence of former Rule 5(a). See also Rule 5 of the Federal Ru les of Criminal Procedure. Compare former § 849. Subsection (b) is added to sa tisfy the requirement of a judicial determination of probable cause set forth in Gerstein v. Pugh, 420 U.S. 103 (1975). The subsection makes clear that the defendant has n o right of confrontation or cross- examination at this stage of the proceeding. For al l practical purposes the procedure is the same as that for determining whether a warrant or summons should issue but occurs after arrest rather than before. This proced ure does not, however, obviate the need for an indictment or preliminary examination i n felony cases. § 45.30.

warrant or summons should issue but occurs after arrest rather than before. This proced ure does not, however, obviate the need for an indictment or preliminary examination i n felony cases. § 45.30. First Appearance; Statement by Court; Publ ic Defender Allowed. (a) At the time the defendant is brought before the court pursuant to § 45.10 or appears pursuant to a summons issued pursu ant to Chapter 15 (commencing with § 15.10) or a notice to appear pur suant to § 25.20, the court shall inform the defendant; (1) of the complaint against him and of any affidav its filed therewith. (2) of his right to retain counsel. (3) of his right to request the assignment of couns el if he is unable to obtain counsel. (4) of the general circumstances under which he may secure his pretrial release. (5) of his right to prosecution by indictment, wher e such right is available. COL72920148 GCA CRIMINAL PROCEDURE CH. 45 FIRST APPEARANCE : PRELIMINARY EXAMINATION 3 (6) of his right to a preliminary examination, wher e such right is available. (7) that he is not required to make a statement and that any statement made by him may be used against him.

XAMINATION 3 (6) of his right to a preliminary examination, wher e such right is available. (7) that he is not required to make a statement and that any statement made by him may be used against him. (b) If the defendant appears without counsel, the c ourt shall ask him if he desires the assistance of counsel. If he desires counsel, the court shall inquire of him whether he is financially able to em ploy counsel and, if so, whether he desires to employ counsel of his choice or to have counsel assigned to him at his own expense. If he desires a ssignment of counsel, the court shall make such assignment. The court shall a ssign counsel at public expense if the defendant desires counsel and is fin ancially unable to employ counsel. (c) The defendant shall not be called upon to plead , shall be allowed reasonable time and opportunity to obtain and consu lt with counsel, and shall be released in the manner and subject to the conditions provided by Chapter 40 (commencing with § 40.10). NOTE : Section 45.30 is based on the first Paragraph of Rule 5(c) of the Federal Rules of Criminal Procedure (as revised in 1972) and port ions of former Rules 5 and 44 and former §§ 858-860.

40.10). NOTE : Section 45.30 is based on the first Paragraph of Rule 5(c) of the Federal Rules of Criminal Procedure (as revised in 1972) and port ions of former Rules 5 and 44 and former §§ 858-860. See also former § 987. See gener ally 8 Moore, Federal Practice § 5.03 (2d ed. 1974). § 45.40. Procedure When Public Defender Cannot Serv e. In any criminal action in which a defendant is enti tled to be represented by counsel at public expense and the court finds th at because of conflict of interest or other reason that the public defender h as properly refused to represent the defendant, the court shall appoint pr ivate counsel for the defendant and order that counsel receive a reasonab le sum for compensation and necessary expenses to be paid by the Treasurer of the Territory. NOTE : Section 45.40 supersedes a portion of former § 85 9. § 45.45. Waiver of Indictment; of Preliminary Exami nation. In any case where the defendant has the right to pr osecution by indictment, he may waive such right at any time aft er he has been advised of his rights pursuant to § 45.30. If the defendant ha s also waived his right to a preliminary examination, upon waiver of prosecution by indictment,

uch right at any time aft er he has been advised of his rights pursuant to § 45.30. If the defendant ha s also waived his right to a preliminary examination, upon waiver of prosecution by indictment, the court shall hold the defendant to answer, and shall order the prosecuting attorney to file, within fifteen days after entry o f the order, an information in the court charging the defendant with the offense c harged by the complaint. COL72920148 GCA CRIMINAL PROCEDURE CH. 45 FIRST APPEARANCE : PRELIMINARY EXAMINATION 4 NOTE : Section 45.45 provides the procedure for waiver b y the defendant of prosecution by indictment contemplated by § 1.15. C ompare former § 682(b); former Rule 7(b). It should be noted that the defendant ma y waive both prosecution by indictment pursuant to this Section and a prelimina ry examination pursuant to § 45.50(f), in which case, the court will order an in formation to be filed. If the defendant waives only his right to an indictment, then he is not deprived of his right to a preliminary examination, unless the prosecuting att orney opts to obtain an indictment. See §§ 1.15; 45.50(d).

endant waives only his right to an indictment, then he is not deprived of his right to a preliminary examination, unless the prosecuting att orney opts to obtain an indictment. See §§ 1.15; 45.50(d). For dismissal for failure to file an information within the time prescribed, see § 80.60. § 45.50. Preliminary Examination: Date; Purpose; No ne Required When Indictment Precedes. (a) Except as otherwise provided by this Section an d § 45.45, in every case where a preliminary examination is required by §§ 1.15 and 1.17, such examination shall be held within the time set by th e court pursuant to Subsection (b) to determine whether there is probab le cause to believe that an offense has been committed and that the defendan t has committed it. (b) The date for the preliminary examination shall be fixed by the court at the first appearance of the defendant. Such exam ination shall be held within a reasonable time following the first appear ance, but in any event not later than: (1) the tenth day following the date of the first a ppearance of the defendant before such court if the defendant is hel d in custody without any provision for release, or is held in custody fo r failure to meet

h day following the date of the first a ppearance of the defendant before such court if the defendant is hel d in custody without any provision for release, or is held in custody fo r failure to meet the conditions of release imposed, or is released from custody only during specified hours of the day; or (2) the twentieth day following the date of the fir st appearance if the defendant is released from custody under any co ndition other than a condition described in Paragraph (1). (c) Notwithstanding Subsection (b), with the consen t of the defendant, the date fixed by the court for the preliminary exa mination may be a date later than that prescribed by Subsection (b), or ma y be continued one or more times to a date subsequent to the date initial ly fixed therefor. In the absence of such consent the date fixed for the prel iminary examination may be a date later than that prescribed by Subsection (b), or may be continued to a date subsequent to the date initially fixed there for, only upon the order of the court after a finding the extraordinary circums tances exist, and that the delay of the preliminary examination is indispensab le to the interest of justice.

xed there for, only upon the order of the court after a finding the extraordinary circums tances exist, and that the delay of the preliminary examination is indispensab le to the interest of justice. COL72920148 GCA CRIMINAL PROCEDURE CH. 45 FIRST APPEARANCE : PRELIMINARY EXAMINATION 5 (d) Except as provided by Subsections (e) and (f), a defendant who has not been accorded the preliminary examination requi red by Subsection (a) within the period of time fixed by the court in com pliance with Subsections (b) and (c), shall be discharged from custody or fr om the requirement of bail or any other condition of release, without prejudic e, however, to the institution of further criminal proceedings against him upon the charge upon which he was arrested. (e) No preliminary examination in compliance with S ubsection (a) shall be required to be accorded a defendant, nor shall s uch defendant be discharged from custody or from the requirement of bail or any other condition or release pursuant to Subsection (d), if at any time prior to the first appearance of such person before the court or subsequent to the first appearance but prior to the date fixed for the prel iminary examination

uant to Subsection (d), if at any time prior to the first appearance of such person before the court or subsequent to the first appearance but prior to the date fixed for the prel iminary examination pursuant to Subsections (b) and (c) an indictment i s returned against him. (f) The defendant may waive the preliminary examina tion at any time after he has been advised of his rights pursuant to § 45.30 and upon such waiver the court shall hold the defendant to answer , and shall order the prosecuting attorney to file, within fifteen days a fter entry of the order, an information in the court charging the defendant wit h the offense charged by the complaint. NOTE : Section 45.50 is based on 18 U.S.C.A. § 3060 (197 4). See also the second paragraph of Rule 5(c) of the Federal Rules of Crim inal Procedure (as revised in 1972) and portions of former Rule 5 and former §§ 860, 86 1 and 872. See generally 8 Moore, Federal Practice § 5.03 (2d ed. 1974). It sh ould be noted, however, that under the procedures provided by this Code, in felony cas es only the return of an indictment, not the filing of an information, obviates the need for a preliminary examination. See B.

however, that under the procedures provided by this Code, in felony cas es only the return of an indictment, not the filing of an information, obviates the need for a preliminary examination. See B. Witkin, California Criminal Procedure Proceeding s Before Trial § 132 (1963, Supp. 1973). An indictment may, of course, be retur ned before the defendant even makes his first appearance in which case, no right to a preliminary examination exists and one will never be scheduled. See Subsection (e) . Subsection (f) is based on Subdivision (D) of forme r § 860. See also former § 872. It should be noted, however, that where a prel iminary examination is waived, there is no provision in this section or elsewhere for holding an examination despite the waiver. For dismissal for failure to file withi n the time prescribed, see § 80.60. § 45.60. Preliminary Examination: Procedure. (a) At the preliminary examination, the court shall take evidence in the same manner as at trial. Witnesses shall be examine d in the presence of the defendant. The defendant may cross-examine witnesse s against him and may introduce evidence in his own behalf.

nce in the same manner as at trial. Witnesses shall be examine d in the presence of the defendant. The defendant may cross-examine witnesse s against him and may introduce evidence in his own behalf. Objections to the admissibility of COL72920148 GCA CRIMINAL PROCEDURE CH. 45 FIRST APPEARANCE : PRELIMINARY EXAMINATION 6 evidence may be taken on any grounds that would be available at trial. (b) While a witness is under examination, the court may exclude all witnesses who have not been examined. The court may also cause the witnesses to be kept separate, and to be prevented from conversing with each other until they are all examined. (c) The court shall, upon the request of the defend ant, exclude from the examination every person except the court clerk, th e court reporter, the court bailiff, a witness while he is testifying, the pros ecuting attorney, the investigating officer, the defendant and his counse l, the officer, if any, having the defendant in custody and the officer hav ing custody of a prisoner while the prisoner is testifying. Nothing in this S ubsection shall affect the right to exclude witnesses as provided in Subsectio n (b).

dant in custody and the officer hav ing custody of a prisoner while the prisoner is testifying. Nothing in this S ubsection shall affect the right to exclude witnesses as provided in Subsectio n (b). (d) Notwithstanding Subsection (c), when the witnes s who is testifying is a person less than 18 years old, the witness sha ll be entitled to have an adult of the same sex in the courtroom. NOTE : Section 45.60 is based on former §§ 865-868. See also former Rule 5(c). It should be noted that the last sentence of Subsectio n (a) marks a significant departure from federal procedure. Under Subsection (a) object ions may be taken to evidence on the grounds that it is hearsay or that it was acqui red by unlawful means. The new provision is consistent with the California law, se e People v. Davidson, 227 C.A. 2d 331, 38 Cal. Rptr. 660 (1964), but in direct contra st to Rule 5.1 of the Federal Rules of Criminal Procedure. Subsections (b) and (c) are based on former §§ 867 and 868 respectively. Their California counterparts are discussed in B. Witkin, California Criminal Procedure Proceedings Before Trial §§ 140-143 (1963, Supp. 19 73). § 45.70.

based on former §§ 867 and 868 respectively. Their California counterparts are discussed in B. Witkin, California Criminal Procedure Proceedings Before Trial §§ 140-143 (1963, Supp. 19 73). § 45.70. Preliminary Examination to be Recorded; Ac cessibility. (a) The preliminary examination shall be either rec orded by suitable sound recording equipment or taken down by a court reporter. (b) The court, upon timely application and such ter ms and conditions as it may require, shall give the attorney for the def endant and the prosecuting attorney an opportunity to examine any recording of the preliminary examination for their information in connection wit h any further hearing or their preparation for trial and shall order a trans cript make of all or part of such proceedings. Such transcript shall be furnishe d without cost to the party requesting it. NOTE: Section 45.70 is based on 18 U.S.C.A. § 3060(f) and Rule 5.1(c) of the Federal Rules of Criminal Procedure. Compare former §§ 860, 869-870 makes clear that a complete record of the preliminary examinati on must always be made and, COL72920148 GCA CRIMINAL PROCEDURE CH.

Federal Rules of Criminal Procedure. Compare former §§ 860, 869-870 makes clear that a complete record of the preliminary examinati on must always be made and, COL72920148 GCA CRIMINAL PROCEDURE CH. 45 FIRST APPEARANCE : PRELIMINARY EXAMINATION 7 where needed in subsequent proceedings must be furn ished to both the prosecution and the defense. Section 45.70 does not require a t ranscript in every case because in some cases no probable cause will be found and the complaint will be dismissed and the defendant discharged. See § 45.80. However, eve n in such cases, a recording will have been made and if a new charge is made in subse quent proceedings, the parties may still need and are authorized to obtain the rec ord or a transcript of the prior proceeding. § 45.80. Procedure Where Probable Cause Shown; Not Shown. (a) If from the evidence taken at the preliminary e xamination, it appears that there is probable cause to believe that an off ense has been committed and that the defendant has committed it, the court shall hold the defendant to answer and shall order the prosecuting attorney to file, within fifteen days after entry of the order, an information in the cou rt charging the

as committed it, the court shall hold the defendant to answer and shall order the prosecuting attorney to file, within fifteen days after entry of the order, an information in the cou rt charging the defendant with the offense shown. (b) If from the evidence it appears that there is n o probable cause to believe that an offense has been committed or that the defendant committed it, the court shall dismiss the complaint and disch arge the defendant. Such discharge shall not preclude the government from in stituting a subsequent prosecution for the same offense. NOTE : Section 45.80 is based on portions of former Rul e 5(c) and former §§ 809, 860 and 871-872. See also Fed. R. Crim. P. 5.1(a), (b). See generally B. Witkin, California Criminal Procedure Proceedings Before Tr ial §§ 144-146 (1963, Supp. 1973). The court's order will state the offense (of fenses) which may be charged in the information. These will be all the offenses for whi ch probable cause has been shown. As to the form of the information, see § 55.10. For dismissal for failure to file within the time prescribed, see § 80.60.

on. These will be all the offenses for whi ch probable cause has been shown. As to the form of the information, see § 55.10. For dismissal for failure to file within the time prescribed, see § 80.60. If probable cause has not been shown, the complaint must be dismissed and the defendant discharged; how ever, Subsection (b) makes clear that such dismissal does not prejudice a new filing on the basis of new evidence. ---------- COL7292014