2009 California Penal Code - Section 1041-1045 :: Chapter 7. The Mode Of Trial

PENAL CODE
SECTION 1041-1045

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.

1042.  Issues of fact shall be tried in the manner provided in
Article I, Section 16 of the Constitution of this state.

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.

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 defendent in a felony case after the trial
has commenced in his 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 he has been warned by
the judge that he will be removed if he continues his disruptive
behavior, nevertheless insists on conducting himself in a manner so
disorderly, disruptive, and disrespectful of the court that the trial
cannot be carried on with him 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 his right to be present at the
trial as soon as he is willing to conduct himself 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 his 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 his counsel to
proceed in his 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 if the court finds the defendant has
absented himself voluntarily with full knowledge that the trial is to
be held or is being held.
   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.

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 his 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 he has been warned by
the judge that he will be removed if he continued his disruptive
behavior, nevertheless insists on conducting himself in a manner so
disorderly, disruptive, and disrespectful of the court that the
hearing cannot be carried on with him 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 his right to
be present at the hearing as soon as he is willing to conduct
himself 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 his right to be present in accordance with Section
977.

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.

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.


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