CODES MODULE, PART III

PENAL CODE, FEDERAL RULES, CALIFORNIA CONSTITUTION, &

UNITED STATES CONSTITUTION

PENAL CODE

17 Felony; Misdemeanor; Infraction

A felony is a crime which is punishable with death or by imprisonment in the state prison.Every other crime or public offense is a misdemeanor, except those offenses that are classified as infractions.

When a crime is punishable, in the court’s discretion, by imprisonment in the state or county jail or by fine, it is a misdemeanor when

the court decides not to send the defendant to state prisonthe court sends the defendant to the Youth Authority and designates the offense a misdemeanorthe court grants probation to the defendant and declares the offense a misdemeanor

the prosecutor files the case as a misdemeanor, unless the defendant objectsthe magistrate determines that the offense is a misdemeanor

A violation is an infraction whenthe prosecutor files the case as an infraction, unless the defendant objectsthe court determines that the offense is an infraction

869 Authentication; Preparation

Each witness’ testimony in a homicide case will be reduced to writing, as a deposition.The testimony shall state the name of the witness, his address, and business.If the witness is a peace officer, the testimony shall state his name and address given at the hearing.

All objections and rulings will be included.Any questions that the witness declines to answer will also be included.The deposition must be signed by the witness, except when the deposition is taken stenographically.If the defendant is held to answer or if the transcript is ordered, the reporter must prepare the transcript within 10 days.

The reporter must make an original and one copy and as many additional copies as there are defendants and deliver them to the county clerk.The reporter shall file with the auditor of the county an affidavit stating that the transcript and copies have been delivered to the county clerk within the allotted time.Failure to deliver the transcripts in a timely manner will cut the reporter’s pay in half.

If the reporter delivers the transcripts in a timely manner, he will receive the compensation fixed by law.The county clerk will file the original transcript with the papers in the case and immediately must deliver a copy to the district attorney.The county clerk must deliver a copy to each defendant at least five days before trial.

938 Stenographic Reporter

Criminal causes being investigated by the grand jury must be reported by a shorthand reporter.A transcript is prepared when an indictment is returned.Upon request of the grand jury, any testimony taken during a session of the previous grand jury may be transcribed.

938.1 Transcript of Testimony

The reporter must deliver to the county clerk an original transcript and a copy and as many additional copies as there are defendants within 10 days of an indictment being returned or an accusation presented against a defendant.An extension of 20 days is allowed for good cause.

The county clerk will file the original transcript with the papers in the case and immediately must deliver a copy to the district attorney.The county clerk must deliver a copy to each defendant at least ten days before trial.The case may be postponed if the defendant has not received the transcript 10 days before trial.

The transcript will not be open to the public until 10 days after its delivery to the defendant.Unless the court orders otherwise, the transcript shall be open to the public, unless the court orders the transcript, or any part, be sealed to ensure that the defendant receives a fair trial.

939 Private Sessions

No person, except those specified in Article 3 or an officer having custody of a prisoner witness, is permitted to be present during the criminal sessions of the grand jury except the members and the witness being examined.Excused grand jurors are not allowed to be present.No one except grand jurors are allowed to be present when voting on a matter takes place.

Questions on Penal Code

1. When a crime is punishable by imprisonment in the state prison or in the county jail at the discretion of the judge, if the court imposes a county jail sentence, the crime is

A. a felonyB. a misdemeanorC. an infractionD. second degree felony

Answer: B

2. A preliminary hearing transcript must be filed within

A. 10 daysB. 15 daysC. 20 daysD. 30 days

Answer: A

3. A felony is defined as a crime which is punishable by

A. under a year in the county jailB. imprisonment in the state prisonC. over a year in the county jailD. a fine

Answer: B

4. Before being paid for the transcript of a preliminary hearing, the reporter must

A. file an affidavit that the transcript was filed within 10 days

B. have the judge sign an authentication

C. have the transcript notarizedD. deliver a copy to defense counsel

Answer: A

5. If a reporter does not file the transcript of a preliminary hearing within 10 days,

A. the judge must sign the automatic waiverB. the transcript must be delivered directly to

the district attorney’s officeC. defense counsel shall pay one-half of the

costD. his or her compensation shall be reduced by

half

Answer: D

6. If a reporter files a preliminary transcript in a timely fashion, he or she will receive

A. compensation allowed by law to reporters in the superior court

B. compensation at 50 percent above that allowed by law to reporters in the superior court

C. compensation at $2.50 per pageD. compensation tied to the prevailing costs in

the general reporting fieldAnswer: A

7. Offenses which are classified as infractions are

A. misdemeanorsB. feloniesC. either felonies or misdemeanorsD. neither felonies nor misdemeanors

Answer: D

8. The reporter shall transcribe a preliminary hearing

A. alwaysB. only after a court orderC. within 72 hoursD. if the defendant is held to answer

Answer: D

9. The reporter delivers the original and all copies of a preliminary felony hearing to

A. the district attorneyB. the magistrateC. the county clerkD. the appellate court

Answer: C

10.During the expression of the opinions of the grand jurors or their voting, no person shall be present except

A. no exceptionsB. the district attorneyC. the defendantD. the court reporter

Answer: A

11.Each defendant receives a copy of his preliminary hearing transcript

A. at one-half of the normal costB. at least five days before trialC. when he is not held to answerD. within 30 days of the preliminary

hearingAnswer: B

12.A transcript of a grand jury indictment hearing shall not be open to the public until

A. 10 days after its delivery to the defendantB. 15 days after its delivery to the defendantC. 20 days after its delivery to the defendantD. 30 days after its delivery to the defendant

Answer: A

13.The reporter shall make an original and how many copies of a preliminary hearing transcript?

A. two for the courtB. one plus one for each defendantC. three plus one for each defendantD. one for the court and one for the DA

Answer: B

14.Grand jury proceedings are transcribed

A. when an indictment is returnedB. when requested by the defendantC. automaticallyD. after the expiration of ten days

Answer: A

15.The reporter files an affidavit that the transcript has been delivered with the

A. superior courtB. municipal magistrateC. county auditorD. county clerk

Answer: C

True or False

1. The court may have the discretion in some cases to commit a defendant to the Youth Authority and designate an offense to be a misdemeanor.

True

2. The transcript of a grand jury indictment hearing may be sealed if the court determines that making it public would prejudice the defendant’s right to a fair trial.

True

3. Upon receipt by the reporter, the county clerk shall deliver the transcript of a grand jury indictment hearing to superior court.

False

4. If the magistrate determines an offense to be a misdemeanor, the reporter sends a transcript of proceedings to the municipal court within 10 days.

False

5. The reporter has 20 days to provide a transcript if an indictment is not returned.

False

FEDERAL RULES

Rule 28 Persons Before Whom Depositions May

Be Taken (a)A deposition may be taken before an officer authorized to administer oaths under US law or under the laws where the deposition is held within the United States or a territory or insular possession.The court may also appoint a person to administer oaths and to take the testimony.

Rule 28 Persons Before Whom Depositions May

Be Taken (b)Depositions may be taken in a foreign country

pursuant to any applicable treaty or conventionpursuant to a letter of requeston notice before a person authorized to administer oaths in the place in which the examination is heldbefore a person commissioned by the court and who is given a commission

A commission or letter of commission is issued on application and notice.A commission may designate the person before whom the deposition is taken by name or descriptive title.When a letter of request is used pursuant to a treaty, it shall be captioned in the form prescribed by that treaty.Evidence obtained in response to a letter of request need not be excluded because it is not a verbatim transcript or the witness was not sworn before giving the testimony.

Rule 28 Persons Before Whom Depositions May

Be Taken (c)No deposition shall be taken before a person who is a relative or employee or attorney or counsel of any of the parties, or is a relative or employee of such attorney or counsel, or is financially interested in the action.

30 Depo Upon Oral Examination (a)

A party can take the testimony of any person by deposition without court permission, except for deponents in jail.The witness may be subpoenaed.

Court permission is required to take a deposition if

more than ten depositions have been taken by the plaintiffs, defendants, or third-party defendantsa witness is to be deposed againa party wants to take a deposition without adequate notice, unless the party taking the deposition can certify the deponent is leaving the country and won’t be available for a future deposition

A party who wants to take a deposition must give reasonable written notice to all other parties.The notice shall state the time and place for the depo and the name and address of the deponent(s).If a subpoena duces tecum is to be served, a list of the items to be produced must be included in the notice.

30 Depo Upon Oral Examination (b)

The notice shall state how the depo is going to be recorded (stenographically, by tape-recording, or videotaping).The party taking the deposition pays for the cost of recording the depo.If the depo is not recorded stenographically, any party may arrange for transcription of the recording.If another party wishes the depo be recorded in a fashion other than that stated in the notice, he must pay for it himself.

Depositions are taken before an officer as designated in Rule 28 and begin with a statement on the record by the officer that includes

A. the officer’s name and business address

B. the date, time, and place of the depoC. the name of the deponentD. the administration of the oath or

affirmationE. an identification of all persons present

If the depo is not recorded stenographically, Items A through C must be repeated at the beginning of each unit of recorded medium.The medium used must not distort the appearance of any of the parties in the deposition.At the end of the depo, the officer must state that the depo is complete and set forth any stipulations made by counsel concerning the custody of the transcript or recordings or exhibits or any other matters.

The parties may stipulate, or the court may order, a depo be taken telephonically or by some other remote electronic means (using videoconferencing or over the Internet).A deposition taken by such means is taken in the district where the deponent is to answer the questions.

The depo officer shall put the witness on oath or affirmation and record the testimony of the witness.All objections made shall be noted upon the record of the depo; however, the examination will continue.A party may choose to serve written questions instead of appearing at the depo, and the officer shall propound and record the questions verbatim.

30 Depo Upon Oral Examination (c)

Objections shall be stated concisely and in a neutral manner.A party may instruct a deponent not to answer only to preserve a privilege, to enforce a limitation on evidence, or to present a motion.The court may limit the time permitted for the conduct of a depo.If a party impedes the taking of the testimony, sanctions may be imposed.

30 Depo Upon Oral Examination (d)

If a motion is made that the depo is being conducted in bad faith, the depo will be suspended pending a court ruling.The court may order the officer to cease taking the deposition or to limit the scope of the deposition.

The deponent must request that after notification that the transcript is ready he have 30 days in which to review it, make any changes, and sign it.The officer’s certificate must indicate if a review was requested.The transcript must be appended with any changes made by the deponent.

30 Depo Upon Oral Examination (e)

The officer shall certify that the witness was duly sworn by him and that the deposition is a true record of the testimony given by the witness.The certification must accompany the deposition.The officer shall seal the depo in an envelope with the title of the action and the name of the deponent.

30 Depo Upon Oral Examination (f)

The transcript shall be filed in the court in which the action is pending or sent to the party taking the deposition, who shall store it in such a way to prevent its loss or destruction.Exhibits produced during the examination shall be marked for identification and attached to the deposition.The exhibits may be inspected and copied by any party.

However, if the party who produces the exhibits wishes to retain them,

he may offer copies to serve as originals, as long as he allows the other parties to compare the copies to the originalsor he can have the originals marked and allow the other parties to inspect them and make copies themselves, which shall be used as if annexed to the deposition.

Any party can move to have the originals annexed to the deposition.

The officer shall retain all stenographic notes of the deposition or a copy of any recording, if made.The deponent or any party may purchase a copy of the transcript or recording.The party noticing the deposition shall promptly inform all parties that the transcript has been filed.

31 Depo Upon Written Questions

A party can take the testimony of any person by deposition without court permission, except for deponents in jail.The witness may be subpoenaed.

Court permission is required to take a deposition if

more than ten depositions have been taken by the plaintiffs, defendants, or third-party defendantsa witness is to be deposed again without a stipulation of the partiesa party wants to take a deposition without adequate notice

The written questions shall be served upon every other party with the notice.

The notice shall include the name and address of the person who is to answer them and the name of the officer before whom the depo will be taken.A deposition upon written questions may be taken of a public or private corporation, a partnership, an association, or a governmental agency.Within 14 days of being served, a party may serve cross questions on all other parties. Those parties can serve redirect questions within 7 days, and any recross questions must be served within 7 days after that.

Questions on Federal Rules

1. If a person has already been deposed,

A. he cannot have his deposition taken again

B. he can only have it taken by leave of court

C. he can have it taken by stipulation

Answer: C

2. The reporter shall cease taking a deposition

A. upon motion of the deponent that he is be oppressed

B. only upon order of the courtC. only if all parties stipulate

Answer: A

3. A party may instruct a deponent not to answer

A. because the question is immaterialB. to preserve a privilegeC. because the question is compound

Answer: B

4. If an objection is made to the evidence presented,

A. the court must rule on the objection before proceeding

B. the officer shall stop the depositionC. the examination shall proceed

subject to the objection

Answer: C

5. A telephone deposition isA. is not permittedB. must be taken before the courtC. must be taken at the place where

the deponent is to answer questions

Answer: C

True or False

1. Depositions in any federal case must be taken before a federal notary.

False

2. No depositions may be taken in foreign countries without securing a subpoena from the country involved.

False

3. All depositions in a foreign country must be certified by a local reporter.

False

4. A person who has been a close friend to a party to the action for a period of 21 or more years cannot have his deposition taken because he is a legally “interested” party.

False

5. The parties may stipulate in writing that a deposition can be taken by telephone.

True

6. The oath may never be administered by a person whose authority was granted in a jurisdiction other than where the action is pending.

False

7. If a party desires to maintain the original of an exhibit, he must give each party the opportunity to examine the exhibit.

True

8. A party may take the deposition of a non-party by written questions but only by leave of court.

False

9. It is customary to state the date, time, and place of taking the deposition on the record at the beginning of the deposition.

True

10.The deposition officer must state on the record at the beginning of the deposition that he is a disinterested person.

False

CALIFORNIA CONSTITUTION

Article VI, Section1

The judicial power of the state is vested in the Supreme Court, courts of appeal, superior courts, and municipal courts.All are courts of record.

Article VI, Section 2

The Supreme Court consists of the Chief Justice of California and six associate justices.The Chief Justice may convene the court at any time.The concurrence of four judges is necessary for a judgment.

An acting Chief Justice shall perform the duties of the Chief Justice when the Chief Justice is absent.The Chief Justice appoints the acting Chief Justice.If the Chief Justice does not, the court will select the acting Chief Justice.

Article VI, Section 3

The state is divided into districts each containing a court of appeal.Each division consists of a presiding judge and 2 or more associate judges.The court of appeal is conducted as a three-judge court.The concurrence of 2 judges is necessary for a judgment.

Article VI, Section 4

Each county has a superior court of at least one judge.Each superior court has an appellate division.The Chief Justice assigns judges to the appellate division for specified terms.

Questions on California Constitution

1. How many justices are there on the Supreme Court?

7 — 1 Chief Justice and 6 associate justices

2. In addition to the Chief Justice, how many justices are there on the Supreme Court?

Six

3. When may the Chief Justice convene the Supreme Court?

At any time

4. How many judges must concur in order to render a judgment?

Four

5. Who presides if the Chief Justice is unable to preside?

An acting Chief Justice

6. Who selects an acting Chief Justice?

The Chief Justice

7. If the Chief Justice fails to select an acting Chief Justice, who selects the acting Chief Justice?

The court

Multiple Choice

1. There is a state court of appeal with at least one division in each

A. countyB. districtC. city of over one million

Answer: B

2. How many judges are there in each division?

A. 3B. 5C. 7

Answer: A

3. The concurrence of how many judges of the appellate court is necessary for a judgment

A. 2B. 4C. 6

Answer: A

4. There is a superior court with one or more judges in each

A. cityB. districtC. county

Answer: C

5. There is an appellate division in each

A. municipal courtB. supreme courtC. superior court

Answer: C

UNITED STATES CONSTITUTION

Article III, Section 1

The judicial power of the United States shall be vested in one supreme court and in inferior court established by Congress.The judges of both courts hold office for as long as they do not engage in improper behavior.

Article III, Section 2

Judicial power extends toall law and equity cases arising under the laws of the United States, the Constitution, and any treaties madeall cases affecting ambassadors and consulsall cases of admiraltycontroversies where the United States is a party

controversies between two or more statescontroversies between a state and citizens of another state*controversies between citizens of different statescontroversies between citizens of the same state claiming lands under grants of different statescontroversies between a state or its citizens and a foreign state or its citizens**Limited by Amendment XI

The supreme court has original jurisdiction in all cases affecting ambassadors and consuls and those where a state is a party.In all other cases, the supreme court has appellate jurisdiction.Trials will be by jury and will be held in the state where the crimes were committed.When a crime is not committed in any state, it is held where Congress by law directs it may be held.

Amendment XI

The judicial power of the United States does not extend to any suit against a state by citizens of another state or citizens of a foreign state.

Questions on the US Constitution

1. The Supreme Court’s jurisdiction is generally original.

False

2. The judicial power of the United States extends to all suits commenced against a state by a citizen of another state.

False

3. The Supreme Court has original jurisdiction over cases affecting ambassadors.

True

4. The Supreme Court has original jurisdiction over admiralty cases.

True

5. The judicial power of the United States shall extend to controversies in which the United States is a party.

True

6. The judicial power of the United States shall extend to controversies between two or more states.

True

7. The trial of crimes shall be held in the District of Columbia.

False