2009 California Penal Code - Section 1473-1508 :: Chapter 1. Of The Writ Of Habeas Corpus

PENAL CODE
SECTION 1473-1508

1473.  (a) Every person unlawfully imprisoned or restrained of his
liberty, under any pretense whatever, may prosecute a writ of habeas
corpus, to inquire into the cause of such imprisonment or restraint.
   (b) A writ of habeas corpus may be prosecuted for, but not limited
to, the following reasons:
   (1) False evidence that is substantially material or probative on
the issue of guilt or punishment was introduced against a person at
any hearing or trial relating to his incarceration; or
   (2) False physical evidence, believed by a person to be factual,
probative, or material on the issue of guilt, which was known by the
person at the time of entering a plea of guilty, which was a material
factor directly related to the plea of guilty by the person.
   (c) Any allegation that the prosecution knew or should have known
of the false nature of the evidence referred to in subdivision (b) is
immaterial to the prosecution of a writ of habeas corpus brought
pursuant to subdivision (b).
   (d) Nothing in this section shall be construed as limiting the
grounds for which a writ of habeas corpus may be prosecuted or as
precluding the use of any other remedies.

1473.5.  (a) A writ of habeas corpus also may be prosecuted on the
basis that expert testimony relating to intimate partner battering
and its effects, within the meaning of Section 1107 of the Evidence
Code, was not received in evidence at the trial court proceedings
relating to the prisoner's incarceration, and is of such substance
that, had it been received in evidence, there is a reasonable
probability, sufficient to undermine confidence in the judgment of
conviction, that the result of the proceedings would have been
different. Sections 1260 to 1262, inclusive, apply to the prosecution
of a writ of habeas corpus pursuant to this section. As used in this
section, "trial court proceedings" means those court proceedings
that occur from the time the accusatory pleading is filed until and
including judgment and sentence.
   (b) This section is limited to violent felonies as specified in
subdivision (c) of Section 667.5 that were committed before August
29, 1996, and that resulted in judgments of conviction after a plea
or trial as to which expert testimony admissible pursuant to Section
1107 of the Evidence Code may be probative on the issue of
culpability.
   (c) If a petitioner for habeas corpus under this section has
previously filed a petition for writ of habeas corpus, it is grounds
for denial of the new petition if a court determined on the merits in
the prior petition that the omission of expert testimony relating to
battered women's syndrome or intimate partner battering and its
effects at trial was not prejudicial and did not entitle the
petitioner to the writ of habeas corpus.
   (d) For purposes of this section, the changes that become
effective on January 1, 2005, are not intended to expand the uses or
applicability of expert testimony on battering and its effects that
were in effect immediately prior to that date in criminal cases.
   (e) This section shall remain in effect only until January 1,
2020, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2020, deletes or extends
that date.

1473.6.  (a) Any person no longer unlawfully imprisoned or
restrained may prosecute a motion to vacate a judgment for any of the
following reasons:
   (1) Newly discovered evidence of fraud by a government official
that completely undermines the prosecution's case, is conclusive, and
points unerringly to his or her innocence.
   (2) Newly discovered evidence that a government official testified
falsely at the trial that resulted in the conviction and that the
testimony of the government official was substantially probative on
the issue of guilt or punishment.
   (3) Newly discovered evidence of misconduct by a government
official committed in the underlying case that resulted in
fabrication of evidence that was substantially material and probative
on the issue of guilt or punishment. Evidence of misconduct in other
cases is not sufficient to warrant relief under this paragraph.
   (b) For purposes of this section, "newly discovered evidence" is
evidence that could not have been discovered with reasonable
diligence prior to judgment.
   (c) The procedure for bringing and adjudicating a motion under
this section, including the burden of producing evidence and the
burden of proof, shall be the same as for prosecuting a writ of
habeas corpus.
   (d) A motion pursuant to this section must be filed within one
year of the later of the following:
   (1) The date the moving party discovered, or could have discovered
with the exercise of due diligence, additional evidence of the
misconduct or fraud by a government official beyond the moving party'
s personal knowledge.
   (2) The effective date of this section.

1474.  Application for the writ is made by petition, signed either
by the party for whose relief it is intended, or by some person in
his behalf, and must specify:
   1. That the person in whose behalf the writ is applied for is
imprisoned or restrained of his liberty, the officer or person by
whom he is so confined or restrained, and the place where, naming all
the parties, if they are known, or describing them, if they are not
known;
   2. If the imprisonment is alleged to be illegal, the petition must
also state in what the alleged illegality consists;
   3. The petition must be verified by the oath or affirmation of the
party making the application.

1475.  The writ of habeas corpus may be granted in the manner
provided by law. If the writ has been granted by any court or a judge
thereof and after the hearing thereof the prisoner has been
remanded, he or she shall not be discharged from custody by the same
or any other court of like general jurisdiction, or by a judge of the
same or any other court of like general jurisdiction, unless upon
some ground not existing in fact at the issuing of the prior writ.
Should the prisoner desire to urge some point of law not raised in
the petition for or at the hearing upon the return of the prior writ,
then, in case the prior writ had been returned or returnable before
a superior court or a judge thereof, no writ can be issued upon a
second or other application except by the appropriate court of appeal
or some judge thereof, or by the Supreme Court or some judge
thereof, and in the event the writ must not be made returnable before
any superior court or any judge thereof. In the event, however, that
the prior writ was returned or made returnable before a court of
appeal or any judge thereof, no writ can be issued upon a second or
other application except by the Supreme Court or some judge thereof,
and the writ must be made returnable before said Supreme Court or
some judge thereof.
   Every application for a writ of habeas corpus must be verified,
and shall state whether any prior application or applications have
been made for a writ in regard to the same detention or restraint
complained of in the application, and if any prior application or
applications have been made the later application must contain a
brief statement of all proceedings had therein, or in any of them, to
and including the final order or orders made therein, or in any of
them, on appeal or otherwise.
   Whenever the person applying for a writ of habeas corpus is held
in custody or restraint by any officer of any court of this state or
any political subdivision thereof, or by any peace officer of this
state, or any political subdivision thereof, a copy of the
application for the writ must in all cases be served upon the
district attorney of the county wherein the person is held in custody
or restraint at least 24 hours before the time at which said writ is
made returnable and no application for the writ can be heard without
proof of service in cases where the service is required.
   If the person is in custody for violation of an ordinance of a
city which has a city attorney, a copy of the application for the
writ must also be served on the city attorney of the city whose
ordinance is the basis for the charge at least 24 hours before the
time at which the writ is made returnable, provided that failure to
serve the city attorney shall not deprive the court of jurisdiction
to hear the application. If a writ challenging a denial of parole or
the applicant's suitability for parole is then made returnable, a
copy of the application for the writ and the related order to show
cause shall in all cases be served by the superior court upon the
office of the Attorney General and the district attorney of the
county in which the underlying judgment was rendered at least three
business days before the time at which the writ is made returnable
and no application for the writ can be heard without proof of such
service.

1476.  Any court or judge authorized to grant the writ, to whom a
petition therefor is presented, must endorse upon the petition the
hour and date of its presentation and the hour and date of the
granting or denial of the writ, and must, if it appear that the writ
ought to issue, grant the same without delay; and if the person by or
upon whose behalf the application for the writ is made be detained
upon a criminal charge, may admit him to bail, if the offense is
bailable, pending the determination of the proceeding.

1477.  The writ must be directed to the person having custody of or
restraining the person on whose behalf the application is made, and
must command him to have the body of such person before the Court or
Judge before whom the writ is returnable, at a time and place therein
specified.

1478.  If the writ is directed to the sheriff or other ministerial
officer of the court out of which it issues, it must be delivered by
the clerk to such officer without delay, as other writs are delivered
for service. If it is directed to any other person, it must be
delivered to the sheriff or a marshal, and be by him served upon such
person by delivering the copy to him without delay, and make his
return on the original to the court of issuance. If the person to
whom the writ is directed cannot be found, or refuses admittance to
the officer or person serving or delivering such writ, it may be
served or delivered by leaving it at the residence of the person to
whom it is directed, or by affixing it to some conspicuous place on
the outside either of his dwelling house or of the place where the
party is confined or under restraint.

1479.  If the person to whom the writ is directed refuses, after
service, to obey the same, the Court or Judge, upon affidavit, must
issue an attachment against such person, directed to the Sheriff or
Coroner, commanding him forthwith to apprehend such person and bring
him immediately before such Court or Judge; and upon being so
brought, he must be committed to the jail of the county until he
makes due return to such writ, or is otherwise legally discharged.

1480.  The person upon whom the writ is served must state in his
return, plainly and unequivocally:
   1. Whether he has or has not the party in his custody, or under
his power or restraint;
   2. If he has the party in his custody or power, or under his
restraint, he must state the authority and cause of such imprisonment
or restraint;
   3. If the party is detained by virtue of any writ, warrant, or
other written authority, a copy thereof must be annexed to the
return, and the original produced and exhibited to the Court or Judge
on the hearing of such return;
   4. If the person upon whom the writ is served had the party in his
power or custody, or under his restraint, at any time prior or
subsequent to the date of the writ of habeas corpus, but has
transferred such custody or restraint to another, the return must
state particularly to whom, at what time and place, for what cause,
and by what authority such transfer took place;
   5. The return must be signed by the person making the same, and,
except when such person is a sworn public officer, and makes such
return in his official capacity, it must be verified by his oath.

1481.  The person to whom the writ is directed, if it is served,
must bring the body of the party in his custody or under his
restraint, according to the command of the writ, except in the cases
specified in the next section.

1482.  When, from sickness or infirmity of the person directed to be
produced, he cannot, without danger, be brought before the Court or
Judge, the person in whose custody or power he is may state that fact
in his return to the writ, verifying the same by affidavit. If the
Court or Judge is satisfied of the truth of such return, and the
return to the writ is otherwise sufficient, the Court or Judge may
proceed to decide on such return, and to dispose of the matter as if
such party had been produced on the writ, or the hearing thereof may
be adjourned until such party can be produced.

1483.  The Court or Judge before whom the writ is returned must,
immediately after the return, proceed to hear and examine the return,
and such other matters as may be properly submitted to their hearing
and consideration.

1484.  The party brought before the Court or Judge, on the return of
the writ, may deny or controvert any of the material facts or
matters set forth in the return, or except to the sufficiency
thereof, or allege any fact to show either that his imprisonment or
detention is unlawful, or that he is entitled to his discharge. The
Court or Judge must thereupon proceed in a summary way to hear such
proof as may be produced against such imprisonment or detention, or
in favor of the same, and to dispose of such party as the justice of
the case may require, and have full power and authority to require
and compel the attendance of witnesses, by process of subpoena and
attachment, and to do and perform all other acts and things necessary
to a full and fair hearing and determination of the case.

1485.  If no legal cause is shown for such imprisonment or
restraint, or for the continuation thereof, such Court or Judge must
discharge such party from the custody or restraint under which he is
held.

1486.  The Court or Judge, if the time during which such party may
be legally detained in custody has not expired, must remand such
party, if it appears that he is detained in custody:
   1. By virtue of process issued by any Court or Judge of the United
States, in a case where such Court or Judge has exclusive
jurisdiction; or,
   2. By virtue of the final judgment or decree of any competent
Court of criminal jurisdiction, or of any process issued upon such
judgment or decree.

1487.  If it appears on the return of the writ that the prisoner is
in custody by virtue of process from any Court of this State, or
Judge or officer thereof, such prisoner may be discharged in any of
the following cases, subject to the restrictions of the last section:
   1. When the jurisdiction of such Court or officer has been
exceeded;
   2. When the imprisonment was at first lawful, yet by some act,
omission, or event which has taken place afterwards, the party has
become entitled to a discharge;
   3. When the process is defective in some matter of substance
required by law, rendering such process void;
   4. When the process, though proper in form, has been issued in a
case not allowed by law;
   5. When the person having the custody of the prisoner is not the
person allowed by law to detain him;
   6. Where the process is not authorized by any order, judgment, or
decree of any Court, nor by any provision of law;
   7. Where a party has been committed on a criminal charge without
reasonable or probable cause.

1488.  If any person is committed to prison, or is in custody of any
officer on any criminal charge, by virtue of any warrant of
commitment of a magistrate, such person must not be discharged on the
ground of any mere defect of form in the warrant of commitment.

1489.  If it appears to the Court or Judge, by affidavit or
otherwise, or upon the inspection of the process or warrant of
commitment, and such other papers in the proceedings as may be shown
to the Court or Judge, that the party is guilty of a criminal
offense, or ought not to be discharged, such Court or Judge, although
the charge is defective or unsubstantially set forth in such process
or warrant of commitment, must cause the complainant or other
necessary witnesses to be subpoenaed to attend at such time as
ordered, to testify before the Court or Judge; and upon the
examination he may discharge such prisoner, let him to bail, if the
offense be bailable, or recommit him to custody, as may be just and
legal.

1490.  When a person is imprisoned or detained in custody on any
criminal charge, for want of bail, such person is entitled to a writ
of habeas corpus for the purpose of giving bail, upon averring that
fact in his petition, without alleging that he is illegally confined.

1491.  Any judge before whom a person who has been committed upon a
criminal charge may be brought on a writ of habeas corpus, if the
same is bailable, may take an undertaking of bail from such person as
in other cases, and file the same in the proper court. Whenever a
writ of habeas corpus is returned to a court for hearing and the
petitioner is charged with an offense other than a crime of violence
or committed with a deadly weapon or involving the forcible taking or
destruction of the property of another, but the prisoner does not
stand convicted of any offense, the amount of the bail must be set
immediately if no bail has theretofore been fixed.

1492.  If a party brought before the Court or Judge on the return of
the writ is not entitled to his discharge, and is not bailed, where
such bail is allowable, the Court or Judge must remand him to custody
or place him under the restraint from which he was taken, if the
person under whose custody or restraint he was is legally entitled
thereto.

1493.  In cases where any party is held under illegal restraint or
custody, or any other person is entitled to the restraint or custody
of such party, the Judge or Court may order such party to be
committed to the restraint or custody of such person as is by law
entitled thereto.

1494.  Until judgment is given on the return, the Court or Judge
before whom any party may be brought on such writ may commit him to
the custody of the Sheriff of the county, or place him in such care
or under such custody as his age or circumstances may require.

1495.  No writ of habeas corpus can be disobeyed for defect of form,
if it sufficiently appear therefrom in whose custody or under whose
restraint the party imprisoned or restrained is, the officer or
person detaining him, and the Court or Judge before whom he is to be
brought.

1496.  No person who has been discharged by the order of the Court
or Judge upon habeas corpus can be again imprisoned, restrained, or
kept in custody for the same cause, except in the following cases:
   1. If he has been discharged from custody on a criminal charge,
and is afterwards committed for the same offense, by legal order or
process;
   2. If, after a discharge for defect of proof, or for any defect of
the process, warrant, or commitment in a criminal case, the prisoner
is again arrested on sufficient proof and committed by legal process
for the same offense.

1497.  When it appears to any court, or judge, authorized by law to
issue the writ of habeas corpus, that any one is illegally held in
custody, confinement, or restraint, and that there is reason to
believe that the person will be carried out of the jurisdiction of
the court or judge before whom the application is made, or will
suffer some irreparable injury before compliance with the writ of
habeas corpus can be enforced, the court or judge may cause a warrant
to be issued, reciting the facts, and directed to any peace officer,
commanding the peace officer to take the person held in custody,
confinement, or restraint, and immediately bring him or her before
the court or judge, to be dealt with according to law.

1498.  The Court or Judge may also insert in such warrant a command
for the apprehension of the person charged with such illegal
detention and restraint.

1499.  The officer to whom such warrant is delivered must execute it
by bringing the person therein named before the Court or Judge who
directed the issuing of such warrant.

1500.  The person alleged to have such party under illegal
confinement or restraint may make return to such warrant as in case
of a writ of habeas corpus, and the same may be denied, and like
allegations, proofs, and trial may thereupon be had as upon a return
to a writ of habeas corpus.

1501.  If such party is held under illegal restraint or custody, he
must be discharged; and if not, he must be restored to the care or
custody of the person entitled thereto.

1502.  Any writ or process authorized by this Chapter may be issued
and served on any day or at any time.

1503.  All writs, warrants, process, and subpoenas authorized by the
provisions of this Chapter must be issued by the Clerk of the Court,
and, except subpoenas, must be sealed with the seal of such Court,
and served and returned forthwith, unless the Court or Judge shall
specify a particular time for any such return.

1504.  All such writs and process, when made returnable before a
Judge, must be returned before him at the county seat, and there
heard and determined.

1505.  If the officer or person to whom a writ of habeas corpus is
directed, refuses obedience to the command thereof, he shall forfeit
and pay to the person aggrieved a sum not exceeding ten thousand
dollars ($10,000), to be recovered by action in any court of
competent jurisdiction.

1506.  An appeal may be taken to the court of appeal by the people
from a final order of a superior court made upon the return of a writ
of habeas corpus discharging a defendant or otherwise granting all
or any part of the relief sought, in all criminal cases, excepting
criminal cases where judgment of death has been rendered, and in such
cases to the Supreme Court; and in all criminal cases where an
application for a writ of habeas corpus has been heard and determined
in a court of appeal, either the defendant or the people may apply
for a hearing in the Supreme Court. Such appeal shall be taken and
such application for hearing in the Supreme Court shall be made in
accordance with rules to be laid down by the Judicial Council. If the
people appeal from an order granting the discharge or release of the
defendant, or petition for hearing in either the court of appeal or
the Supreme Court, the defendant shall be admitted to bail or
released on his own recognizance or any other conditions which the
court deems just and reasonable, subject to the same limitations,
terms, and conditions which are applicable to, or may be imposed
upon, a defendant who is awaiting trial. If the order grants relief
other than a discharge or release from custody, the trial court or
the court in which the appeal or petition for hearing is pending may,
upon application by the people, in its discretion, and upon such
conditions as it deems just stay the execution of the order pending
final determination of the matter.

1507.  Where an application for a writ of habeas corpus has been
made by or on behalf of any person other than a defendant in a
criminal case, an appeal may be taken to the court of appeal from a
final order of a superior court granting all or any part of the
relief sought; and where such application has been heard and
determined in a court of appeal, either on an application filed in
that court or on appeal from a superior court, and all or any part of
the relief sought has been granted, an application may be made for a
hearing in the Supreme Court. Such appeal shall be taken and such
application for hearing in the Supreme Court shall be made in
accordance with rules to be laid down by the Judicial Council. The
court which made the order granting relief or the court in which the
appeal or petition for hearing is pending may, in its discretion, and
upon such conditions as it deems just stay the execution of the
order pending final determination of the matter.

1508.  (a) A writ of habeas corpus issued by the Supreme Court or a
judge thereof may be made returnable before the issuing judge or his
court, before any court of appeal or judge thereof, or before any
superior court or judge thereof.
   (b) A writ of habeas corpus issued by a court of appeal or a judge
thereof may be made returnable before the issuing judge or his court
or before any superior court or judge thereof located in that
appellate district.
   (c) A writ of habeas corpus issued by a superior court or a judge
thereof may be made returnable before the issuing judge or his court.


Disclaimer: These codes may not be the most recent version. California may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.