2009 California Penal Code - Section 1335-1345 :: Chapter 4. Examination Of Witnesses Conditionally

PENAL CODE
SECTION 1335-1345

1335.  (a) When a defendant has been charged with a public offense
triable in any court, he or she in all cases, and the people in cases
other than those for which the punishment may be death, may, if the
defendant has been fully informed of his or her right to counsel as
provided by law, have witnesses examined conditionally in his or her
or their behalf, as prescribed in this chapter.
   (b) When a defendant has been charged with a serious felony or in
a case of domestic violence, the people or the defendant may, if the
defendant has been fully informed of his or her right to counsel as
provided by law, have a witness examined conditionally as prescribed
in this chapter, if there is evidence that the life of the witness is
in jeopardy.
   (c) As used in this section, "serious felony" means any of the
felonies listed in subdivision (c) of Section 1192.7 or any violation
of Section 11351, 11352, 11378, or 11379 of the Health and Safety
Code.
   (d) If a defendant has been charged with a case of domestic
violence and there is evidence that a victim or material witness has
been or is being dissuaded by the defendant or any person acting on
behalf of the defendant, by intimidation or a physical threat, from
cooperating with the prosecutor or testifying at trial, the people or
the defendant may, if the defendant has been fully informed of his
or her right to counsel as provided by law, have a witness examined
conditionally as prescribed in this chapter.
   (e) For the purposes of this section, "domestic violence" means
any public offense arising from acts of domestic violence as defined
in Section 13700.

1336.  (a) When a material witness for the defendant, or for the
people, is about to leave the state, or is so sick or infirm as to
afford reasonable grounds for apprehension that he or she will be
unable to attend the trial, or is a person 65 years of age or older,
or a dependent adult, the defendant or the people may apply for an
order that the witness be examined conditionally.
   (b) When there is evidence that the life of a witness is in
jeopardy, the defendant or the people may apply for an order that the
witness be examined conditionally.
   (c) As used in this section, "dependent adult" means any person
who is between the ages of 18 and 65, who has physical or mental
limitations which restrict his or her ability to carry out normal
activities or to protect his or her rights, including, but not
limited to, persons who have physical or developmental disabilities
or whose physical or mental abilities have diminished because of age.
"Dependent adult" includes any person between the ages of 18 and 65,
who is admitted as an inpatient to a 24-hour facility, as defined in
Sections 1250, 1250.2, and 1250.3 of the Health and Safety Code.

1337.  The application shall be made upon affidavit stating all of
the following:
   (a) The nature of the offense charged.
   (b) The state of the proceedings in the action.
   (c) The name and residence of the witness, and that his or her
testimony is material to the defense or the prosecution of the
action.
   (d) That the witness is about to leave the state, or is so sick or
infirm as to afford reasonable grounds for apprehending that he or
she will not be able to attend the trial, or is a person 65 years of
age or older, or a dependent adult, or that the life of the witness
is in jeopardy, or that the witness is a victim or material witness
in a domestic violence case who has been or is being intimidated or
threatened as described in subdivision (d) of Section 1335 from
cooperating with the prosecutor or testifying at trial.

1338.  The application may be made to the court or a judge thereof,
and must be made upon three days' notice to the opposite party.

1339.  If the court or judge is satisfied that the examination of
the witness is necessary, an order must be made that the witness be
examined conditionally, at a specified time and place, and before a
magistrate designated therein.

1340.  (a) The defendant has the right to be present in person and
with counsel at the examination, and if the defendant is in custody,
the officer in whose custody he or she is, must be informed of the
time and place of the examination, and must take the defendant
thereto, and keep him or her in the presence and hearing of the
witness during the examination.
   (b) If the court determines that the witness to be examined is so
sick or infirm as to be unable to participate in the examination in
person, the court may allow the examination to be conducted by a
contemporaneous, two-way video conference system, in which the
parties and the witness can see and hear each other via electronic
communication.
   (c) Nothing in this section is intended to require the court to
acquire two-way video conference equipment for these purposes.

1341.  If, at the designated time and place, it is shown to the
satisfaction of the magistrate that the stated ground for conditional
examination is not true or that the application was made to avoid
the examination of the witness at the trial, the examination cannot
take place.

1342.  The attendance of the witness may be enforced by a subpoena,
issued by the magistrate before whom the examination is to be taken.

1343.  The testimony given by the witness shall be reduced to
writing and authenticated in the same manner as the testimony of a
witness taken in support of an information. Additionally, the
testimony may be video-recorded.

1344.  The deposition taken must, by the magistrate, be sealed up
and transmitted to the Clerk of the Court in which the action is
pending or may come for trial.

1345.  The deposition, or a certified copy of it, may be read in
evidence, or if the examination was video-recorded, that
video-recording may be shown by either party at the trial if the
court finds that the witness is unavailable as a witness within the
meaning of Section 240 of the Evidence Code. The same objections may
be taken to a question or answer contained in the deposition or
video-recording as if the witness had been examined orally in court.


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