SECTIONS 1326-1332 - California Statutes

PENAL CODE

SECTION 1326-1332

1326. (a) The process by which the attendance of a witness before a
court or magistrate is required is a subpoena. It may be signed and
issued by any of the following:
(1) A magistrate before whom a complaint is laid or his or her
clerk, the district attorney or his or her investigator, or the
public defender or his or her investigator, for witnesses in the
state.
(2) The district attorney, his or her investigator, or, upon
request of the grand jury, any judge of the superior court, for
witnesses in the state, in support of an indictment or information,
to appear before the court in which it is to be tried.
(3) The district attorney or his or her investigator, the public
defender or his or her investigator, or the clerk of the court in
which a criminal action is to be tried. The clerk shall, at any time,
upon application of the defendant, and without charge, issue as many
blank subpoenas, subscribed by him or her, for witnesses in the
state, as the defendant may require.
(4) The attorney of record for the defendant.
(b) A subpoena issued in a criminal action that commands the
custodian of records or other qualified witness of a business to
produce books, papers, documents, or records shall direct that those
items be delivered by the custodian or qualified witness in the
manner specified in subdivision (b) of Section 1560 of the Evidence
Code. Subdivision (e) of Section 1560 of the Evidence Code shall not
apply to criminal cases.
(c) In a criminal action, no party, or attorney or representative
of a party, may issue a subpoena commanding the custodian of records
or other qualified witness of a business to provide books, papers,
documents, or records, or copies thereof, relating to a person or
entity other than the subpoenaed person or entity in any manner other
than that specified in subdivision (b) of Section 1560 of the
Evidence Code. When a defendant has issued a subpoena to a person or
entity that is not a party for the production of books, papers,
documents, or records, or copies thereof, the court may order an in
camera hearing to determine whether or not the defense is entitled to
receive the documents. The court may not order the documents
disclosed to the prosecution except as required by Section 1054.3.
(d) This section shall not be construed to prohibit obtaining
books, papers, documents, or records with the consent of the person
to whom the books, papers, documents, or records relate.

1326.1. (a) An order for the production of utility records in
whatever form and however stored shall be issued by a judge only upon
a written ex parte application by a peace officer showing specific
and articulable facts that there are reasonable grounds to believe
that the records or information sought are relevant and material to
an ongoing investigation of a felony violation of Section 186.10 or
of any felony subject to the enhancement set forth in Section 186.11.
The ex parte application shall specify with particularity the
records to be produced, which shall be only those of the individual
or individuals who are the subject of the criminal investigation. The
ex parte application and any subsequent judicial order shall be open
to the public as a judicial record unless ordered sealed by the
court, for a period of 60 days. The sealing of these records may be
extended for 60-day periods upon a showing to the court that it is
necessary for the continuance of the investigation. Sixty-day
extensions may continue for up to one year or until termination of
the investigation of the individual or individuals, whichever is
sooner. The records ordered to be produced shall be returned to the
peace officer applicant or his or her designee within a reasonable
time period after service of the order upon the holder of the utility
records.
(b) As used in subdivision (a), "utility records" include, but are
not limited to, subscriber information, telephone or pager number
information, toll call records, call detail records, automated
message accounting records, billing statements, payment records, and
applications for service in the custody of companies engaged in the
business of providing telephone, pager, electric, gas, propane,
water, or other like services. "Utility records" do not include the
installation of, or the data collected from the installation of pen
registers or trap-tracers, nor the contents of a wire or electronic
communication.
(c) Nothing in this section shall preclude the holder of the
utility records from notifying a customer of the receipt of the order
for production of records unless a court orders the holder of the
utility records to withhold notification to the customer upon a
finding that this notice would impede the investigation. Where a
court has made an order to withhold notification to the customer
under this subdivision, the peace officer or law enforcement agency
who obtained the utility records shall notify the customer by
delivering a copy of the ex parte order to the customer within 10
days of the termination of the investigation.
(d) No holder of utility records, or any officer, employee, or
agent thereof, shall be liable to any person for (A) disclosing
information in response to an order pursuant to this section, or (B)
complying with an order under this section not to disclose to the
customer, the order or the dissemination of information pursuant to
the order.
(e) Nothing in this section shall preclude the holder of the
utility records from voluntarily disclosing information or providing
records to law enforcement upon request.
(f) Utility records released pursuant to this section shall be
used only for the purpose of criminal investigations and
prosecutions.

1326.2. (a) An order for the production of escrow or title records
in whatever form and however stored shall be issued by a judge only
upon a written ex parte application by a peace officer showing
specific and articulable facts that there are reasonable grounds to
believe that the records or information sought are relevant and
material to an ongoing investigation of a felony violation of Section
186.10 or of any felony subject to the enhancement set forth in
Section 186.11. The ex parte application shall specify with
particularity the records to be produced, which shall be only those
of the individual or individuals who are the subject of the criminal
investigation. The ex parte application and any subsequent judicial
order shall be open to the public as a judicial record unless ordered
sealed by the court, for a period of 60 days. The sealing of these
records may be extended for 60-day periods upon a showing to the
court that it is necessary for the continuance of the investigation.
Sixty-day extensions may continue for up to one year or until
termination of the investigation of the individual or individuals,
whichever is sooner. The records ordered to be produced shall be
returned to the peace officer applicant or his or her designee within
a reasonable time period after service of the order upon the holder
of the escrow or title records.
(b) As used in subdivision (a), "holder of escrow or title records"
means a title insurer that engages in the "business of title
insurance," as defined by Section 12340.3 of the Insurance Code, an
underwritten title company, or an escrow company.
(c) Nothing in this section shall preclude the holder of the
escrow or title records from notifying a customer of the receipt of
the order for production of records unless a court orders the holder
of the escrow or title records to withhold notification to the
customer upon a finding that this notice would impede the
investigation. Where a court has made an order to withhold
notification to the customer under this subdivision, the peace
officer or law enforcement agency who obtained the escrow or title
records shall notify the customer by delivering a copy of the ex
parte order to the customer within 10 days of the termination of the
investigation.
(d) No holder of escrow or title records, or any officer,
employee, or agent thereof, shall be liable to any person for (A)
disclosing information in response to an order pursuant to this
section, or (B) complying with an order under this section not to
disclose to the customer, the order or the dissemination of
information pursuant to the order.
(e) Nothing in this section shall preclude the holder of the
escrow or title records from voluntarily disclosing information or
providing records to law enforcement upon request.

1327. A subpoena authorized by Section 1326 shall be substantially
in the following form:

The people of the State of California to A. B.:
You are commanded to appear before C. D., a judge of the ____
Court of ____ County, at (naming the place), on (stating the day and
hour), as a witness in a criminal action prosecuted by the people of
the State of California against E. F.
Given under my hand this ____ day of ____, A.D. 19____. G. H.,
Judge of the ____ Court (or "J. K., District Attorney," or "J. K.,
District Attorney Investigator," or "D. E., Public Defender," or "D.
E., Public Defender Investigator," or "F. G., Defense Counsel," or
"By order of the court, L. M., Clerk," or as the case may be).

If books, papers, or documents are required, a direction to the
following effect must be contained in the subpoena: "And you are
required, also, to bring with you the following" (describing
intelligibly the books, papers, or documents required).

1328. (a) A subpoena may be served by any person, except that the
defendant may not serve a subpoena in the criminal action to which he
or she is a party, but a peace officer shall serve in his or her
county any subpoena delivered to him or her for service, either on
the part of the people or of the defendant, and shall, without delay,
make a written return of the service, subscribed by him or her,
stating the time and place of service. The service is made by
delivering a copy of the subpoena to the witness personally.
(b) (1) If service is to be made on a minor, service shall be made
on the minor's parent, guardian, conservator, or similar fiduciary,
or if one of them cannot be located with reasonable diligence, then
service shall be made on any person having the care or control of the
minor or with whom the minor resides or by whom the minor is
employed, unless the parent, guardian, conservator, or fiduciary or
other specified person is the defendant, and on the minor if the
minor is 12 years of age or older. The person served shall have the
obligation of producing the minor at the time and place designated in
the subpoena. A willful failure to produce the minor is punishable
as a contempt pursuant to Section 1218 of the Code of Civil
Procedure. The person served shall be allowed the fees and expenses
that are provided for subpoenaed witnesses.
(2) If the minor is alleged to come within the description of
Section 300, 601, or 602 of the Welfare and Institutions Code, and
the minor is not residing with a parent or guardian, regardless of
the age of the minor, service shall also be made upon the designated
agent for service of process at the county child welfare department
or the probation department under whose jurisdiction the child has
been placed.
(3) The court having jurisdiction of the case shall have the power
to appoint a guardian ad litem to receive service of a subpoena of
the child and shall have the power to produce the child ordered to
court under this section.
(c) If any peace officer designated in Section 830 is required as
a witness before any court or magistrate in any action or proceeding
in connection with a matter regarding an event or transaction which
he or she has perceived or investigated in the course of his or her
duties, a criminal subpoena issued pursuant to this chapter requiring
his or her attendance may be served either by delivering a copy to
the peace officer personally or by delivering two copies to his or
her immediate superior or agent designated by his or her immediate
superior to receive the service or, in those counties where the local
agencies have consented with the marshal's office or sheriff's
office, where appropriate, to participate, by sending a copy by
electronic means, including electronic mail, computer modem,
facsimile, or other electronic means, to his or her immediate
superior or agent designated by the immediate superior to receive the
service. If the service is made by electronic means, the immediate
superior or agency designated by his or her immediate superior shall
acknowledge receipt of the subpoena by telephone or electronic means
to the sender of origin. If service is made upon the immediate
superior or agent designated by the immediate superior, the immediate
superior or the agent shall deliver a copy of the subpoena to the
peace officer as soon as possible and in no event later than a time
which will enable the peace officer to comply with the subpoena.
(d) If the immediate superior or his or her designated agent upon
whom service is attempted to be made knows he or she will be unable
to deliver a copy of the subpoena to the peace officer within a time
which will allow the peace officer to comply with the subpoena, the
immediate superior or agent may refuse to accept service of process
and is excused from any duty, liability, or penalty arising in
connection with the service, upon notifying the server of that fact.
(e) If the immediate superior or his or her agent is tendered
service of a subpoena less than five working days prior to the date
of hearing, and he or she is not reasonably certain he or she can
complete the service, he or she may refuse acceptance.
(f) If the immediate superior or agent upon whom service has been
made, subsequently determines that he or she will be unable to
deliver a copy of the subpoena to the peace officer within a time
which will allow the peace officer to comply with the subpoena, the
immediate superior or agent shall notify the server or his or her
office or agent not less than 48 hours prior to the hearing date
indicated on the subpoena, and is thereby excused from any duty,
liability, or penalty arising because of his or her failure to
deliver a copy of the subpoena to the peace officer. The server, so
notified, is therewith responsible for preparing the written return
of service and for notifying the originator of the subpoena if
required.
(g) Notwithstanding subdivision (c), in the case of peace officers
employed by the California Highway Patrol, if service is made upon
the immediate superior or upon an agent designated by the immediate
superior of the peace officer, the immediate superior or the agent
shall deliver a copy of the subpoena to the peace officer on the
officer's first workday following acceptance of service of process.
In this case, failure of the immediate superior or the designated
agent to deliver the subpoena shall not constitute a defect in
service.

1328.5. Whenever any peace officer is a witness before any court or
magistrate in any criminal action or proceeding in connection with a
matter regarding an event or transaction which he has perceived or
investigated in the course of his duties, where his testimony would
become a matter of public record, and where he is required to state
the place of his residence, he need not state the place of his
residence, but in lieu thereof, he may state his business address.

1328.6. Whenever any criminalist, questioned document examiner,
latent print analyst, polygraph examiner employed by the Department
of Justice, a police department, a sheriff's office, or a district
attorney's office, an intelligence specialist or other technical
specialist employed by the Department of Justice, a custodial officer
employed in a local detention facility, or an employee of the county
welfare department or the department which administers the county
public social services program, is a witness before any court or
magistrate in any criminal action or proceeding in connection with a
matter regarding an event or transaction which he or she has
perceived or investigated in the course of his or her official
duties, where his or her testimony would become a matter of public
record, and where he or she is required to state the place of his or
her residence, he or she need not state the place of his or her
residence, but in lieu thereof, he or she may state his or her
business address, unless the court finds, after an in camera hearing,
that the probative value of the witness's residential address
outweighs the creation of substantial danger to the witness.
Nothing in this section shall abridge or limit a defendant's right
to discover or investigate this information. This section is not
intended to apply to confidential informants.

1328a. A telegraphic copy of a subpoena for a witness in a criminal
proceeding may be sent by telegraph or teletype to one or more peace
officers, and such copy is as effectual in the hands of any officer,
and he must proceed in the same manner under it, as though he held
the original subpoena issued.

1328b. Every officer causing telegraphic copies of subpoenas to be
sent, must certify as correct, and file in the telegraph office from
which such copies are sent, a copy of the subpoena, and must return
the original with a statement of his action thereunder.

1328c. A peace officer must serve in his county or city any
subpoena delivered to him by telegraph or teletype for service and
must without delay make a return of the service by telegraph or
teletype. Any officer making a return of service of a subpoena by
telegraph or teletype must certify as to his actions in making the
service and file in the telegraph office from which the return is
sent a written statement with his signature in the same form as the
return on an original subpoena. The service of a teletype subpoena is
made by showing the original teletype to the witness personally and
informing him of its contents and delivering to him a copy of the
teletype.

1328d. Notwithstanding Section 1328, a subpoena may be delivered by
mail or messenger. Service shall be effected when the witness
acknowledges receipt of the subpoena to the sender, by telephone, by
mail, over the Internet by e-mail or by completion of the sender's
online form, or in person, and identifies himself or herself by
reference to his or her date of birth and his or her driver's license
number or Department of Motor Vehicles identification card number.
The sender shall make a written notation of the identifying
information obtained during any acknowledgment by telephone or in
person. The sender shall retain a copy of any acknowledgment received
over the Internet until the court date for which the subpoena was
issued or until any further date as specified by the court. A
subpoena issued and acknowledged pursuant to this section shall have
the same force and effect as a subpoena personally served. Failure to
comply with a subpoena issued and acknowledged pursuant to this
section may be punished as a contempt and the subpoena may so state;
provided, that a warrant of arrest or a body attachment may not be
issued based upon a failure to appear after being subpoenaed pursuant
to this section.
A party requesting a continuance based upon the failure of a
witness to appear in court at the time and place required for his or
her appearance or testimony pursuant to a subpoena, shall prove to
the court that the party has complied with the provisions of this
section. Such a continuance shall only be granted for a period of
time which would allow personal service of the subpoena and in no
event longer than that allowed by law, including the requirements of
Sections 861 and 1382.

1329. (a) When a person attends before a magistrate, grand jury, or
court, as a witness in a criminal case, whether upon a subpoena or
in pursuance of an undertaking, or voluntarily, the court, at its
discretion, if the attendance of the witness be upon a trial may by
an order upon its minutes, or in any criminal proceeding, by a
written order, direct the county auditor to draw his warrant upon the
county treasurer in favor of such witness for witness' fees at the
rate of twelve dollars ($12) for each day's actual attendance and for
a reasonable sum to be specified in the order for the necessary
expenses of such witness. The court, in its discretion, may make an
allowance under this section, or under any appropriate section in
Chapter 1 (commencing with Section 68070), Title 8, of the Government
Code, other than Section 68093. The allowances are county charges.
(b) The court, in its discretion, may authorize payment to such a
witness, if he is employed and if his salary is not paid by his
employer during the time he is absent from his employment because of
being such a witness, of a sum equal to his gross salary for such
time, but such sum shall not exceed eighteen dollars ($18) per day.
The sum is a county charge.
A person compensated under the provisions of this subdivision may
not receive the payment of witness' fees as provided for in
subdivision (a).

1329.1. Any witness who is subpoenaed in any criminal action or
proceeding shall be given written notice on the subpoena that the
witness may be entitled to receive fees and mileage. Such notice
shall indicate generally the manner in which a request or claim for
fees and mileage should be made.

1330. No person is obliged to attend as a witness before a court or
magistrate out of the county where the witness resides, or is served
with the subpoena, unless the distance be less than 150 miles from
his or her place of residence to the place of trial, or unless the
judge of the court in which the offense is triable, or a justice of
the Supreme Court, or a judge of a superior court, or, in the case of
a minor concerning whom a petition has been filed pursuant to
Article 16 (commencing with Section 650) of Chapter 2 of Part 1 of
Division 2 of the Welfare and Institutions Code, by the judge of the
juvenile court hearing the petition, upon an affidavit of the
district attorney or prosecutor, or of the defendant, or his or her
counsel, or in the case involving a minor in whose behalf a petition
has been filed in the juvenile court, of the probation officer
approving the filing of the petition or of any party to the action,
or his or her counsel, stating that he or she believes the evidence
of the witness is material, and his or her attendance at the
examination, trial, or hearing is material and necessary, shall
endorse on the subpoena an order for the attendance of the witness.
When a subpoena duces tecum is duly issued according to any other
provision of law and is served upon a custodian of records or other
qualified witness as provided in Article 4 (commencing with Section
1560) of Chapter 2 of Division 11 of the Evidence Code, and his or
her personal attendance is not required by the terms of the subpoena,
the limitations of this section shall not apply.

1331. Disobedience to a subpoena, or a refusal to be sworn or to
testify as a witness, may be punished by the Court or magistrate as a
contempt. A witness disobeying a subpoena issued on the part of the
defendant, unless he show good cause for his nonattendance, is liable
to the defendant in the sum of one hundred dollars, which may be
recovered in a civil action.

1331.5. Any person who is subpoenaed to appear at a session of
court, or at the trial of an issue therein, may, in lieu of
appearance at the time specified in the subpoena, agree with the
party at whose request the subpoena was issued, to appear at another
time or upon such notice as may be agreed upon. Any failure to appear
pursuant to such agreement may be punished as a contempt, and a
subpoena shall so state. The facts establishing such agreement and
the failure to appear may be shown by the affidavit of any person
having personal knowledge of the facts and the court may grant such
continuance as may be appropriate.

1332. (a) Notwithstanding the provisions of Sections 878 to 883,
inclusive, when the court is satisfied, by proof on oath, that there
is good cause to believe that any material witness for the
prosecution or defense, whether the witness is an adult or a minor,
will not appear and testify unless security is required, at any
proceeding in connection with any criminal prosecution or in
connection with a wardship petition pursuant to Section 602 of the
Welfare and Institutions Code, the court may order the witness to
enter into a written undertaking to the effect that he or she will
appear and testify at the time and place ordered by the court or that
he or she will forfeit an amount the court deems proper.
(b) If the witness required to enter into an undertaking to appear
and testify, either with or without sureties, refuses compliance
with the order for that purpose, the court may commit the witness, if
an adult, to the custody of the sheriff, and if a minor, to the
custody of the probation officer or other appropriate agency, until
the witness complies or is legally discharged.
(c) When a person is committed pursuant to this section, he or she
is entitled to an automatic review of the order requiring a written
undertaking and the order committing the person, by a judge or
magistrate having jurisdiction over the offense other than the one
who issued the order. This review shall be held not later than two
days from the time of the original order of commitment.
(d) If it is determined that the witness must remain in custody,
the witness is entitled to a review of that order after 10 days.
(e) When a witness has entered into an undertaking to appear, upon
his or her failure to do so the undertaking is forfeited in the same
manner as undertakings of bail.