2009 California Penal Code - Section 1002-1012 :: Chapter 3. Demurrer And Amendment

PENAL CODE
SECTION 1002-1012

1002.  The only pleading on the part of the defendant is either a
demurrer or a plea.

1003.  Both the demurrer and plea must be put in, in open Court,
either at the time of the arraignment or at such other time as may be
allowed to the defendant for that purpose.

1004.  The defendant may demur to the accusatory pleading at any
time prior to the entry of a plea, when it appears upon the face
thereof either:
   1. If an indictment, that the grand jury by which it was found had
no legal authority to inquire into the offense charged, or, if any
information or complaint that the court has no jurisdiction of the
offense charged therein;
   2. That it does not substantially conform to the provisions of
Sections 950 and 952, and also Section 951 in case of an indictment
or information;
   3. That more than one offense is charged, except as provided in
Section 954;
   4. That the facts stated do not constitute a public offense;
   5. That it contains matter which, if true, would constitute a
legal justification or excuse of the offense charged, or other legal
bar to the prosecution.

1005.  The demurrer must be in writing, signed either by the
defendant or his counsel, and filed. It must distinctly specify the
grounds of objection to the accusatory pleading or it must be
disregarded.

1006.  Upon the demurrer being filed, the argument upon the
objections presented thereby must be heard immediately, unless for
exceptional cause shown, the court shall grant a continuance. Such
continuance shall be for no longer time than the ends of justice
require, and the court shall enter in its minutes the facts requiring
it.

1007.  Upon considering the demurrer, the court must make an order
either overruling or sustaining it. If the demurrer to an indictment
or information is overruled, the court must permit the defendant, at
the defendant's election, to plead, which the defendant must do
forthwith, unless the court extends the time. If the demurrer is
sustained, the court must, if the defect can be remedied by
amendment, permit the indictment or information to be amended, either
forthwith or within such time, not exceeding 10 days, as it may fix,
or, if the defect or insufficiency therein cannot be remedied by
amendment, the court may direct the filing of a new information or
the submission of the case to the same or another grand jury. If the
demurrer to a complaint is sustained, the court must, if the defect
can be remedied, permit the filing of an amended complaint within
such time not exceeding 10 days as it may fix. The orders made under
this section shall be entered in the docket or minutes of the court.

1008.  If the demurrer is sustained, and no amendment of the
accusatory pleading is permitted, or, in case an amendment is
permitted, no amendment is made or amended pleading is filed within
the time fixed therefor, the action shall be dismissed, and, except
as provided in Section 1010, the court must order, if the defendant
is in custody, that he be discharged or if he has been admitted to
bail, that his bail be exonerated, or, if money or other property has
been deposited instead of bail for his appearance, that such money
or other property be refunded to him or to the person or persons
found by the court to have deposited such money or other property on
his behalf.

1009.  An indictment, accusation or information may be amended by
the district attorney, and an amended complaint may be filed by the
prosecuting attorney, without leave of court at any time before the
defendant pleads or a demurrer to the original pleading is sustained.
The court in which an action is pending may order or permit an
amendment of an indictment, accusation or information, or the filing
of an amended complaint, for any defect or insufficiency, at any
stage of the proceedings, or if the defect in an indictment or
information be one that cannot be remedied by amendment, may order
the case submitted to the same or another grand jury, or a new
information to be filed. The defendant shall be required to plead to
such amendment or amended pleading forthwith, or, at the time fixed
for pleading, if the defendant has not yet pleaded and the trial or
other proceeding shall continue as if the pleading had been
originally filed as amended, unless the substantial rights of the
defendant would be prejudiced thereby, in which event a reasonable
postponement, not longer than the ends of justice require, may be
granted. An indictment or accusation cannot be amended so as to
change the offense charged, nor an information so as to charge an
offense not shown by the evidence taken at the preliminary
examination. A complaint cannot be amended to charge an offense not
attempted to be charged by the original complaint, except that
separate counts may be added which might properly have been joined in
the original complaint. The amended complaint must be verified but
may be verified by some person other than the one who made oath to
the original complaint.

1010.  When an indictment or information is dismissed after the
sustaining of a demurrer, or at any other stage of the proceedings
because of any defect or insufficiency of the indictment or
information, if the court directs that the case be resubmitted to the
same or another grand jury or that a new information be filed, the
defendant shall not be discharged from custody, nor the defendant's
bail exonerated nor money or other property deposited instead of bail
on the defendant's behalf refunded, but the same proceedings must be
had on such direction as are prescribed in Sections 997 and 998.

1012.  When any of the objections mentioned in Section 1004 appears
on the face of the accusatory pleading, it can be taken only by
demurrer, and failure so to take it shall be deemed a waiver thereof,
except that the objection to the jurisdiction of the court and the
objection that the facts stated do not constitute a public offense
may be taken by motion in arrest of judgment.


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