Chapter 2. The Trial of California Penal Code >> Title 7. >> Part 2. >> Chapter 2.
The jury having been impaneled and sworn, unless waived, the
trial shall proceed in the following order, unless otherwise directed
by the court:
(a) If the accusatory pleading be for a felony, the clerk shall
read it, and state the plea of the defendant to the jury, and in
cases where it charges a previous conviction, and the defendant has
confessed the same, the clerk in reading it shall omit therefrom all
that relates to such previous conviction. In all other cases this
formality may be dispensed with.
(b) The district attorney, or other counsel for the people, may
make an opening statement in support of the charge. Whether or not
the district attorney, or other counsel for the people, makes an
opening statement, the defendant or his or her counsel may then make
an opening statement, or may reserve the making of an opening
statement until after introduction of the evidence in support of the
(c) The district attorney, or other counsel for the people shall
then offer the evidence in support of the charge. The defendant or
his or her counsel may then offer his or her evidence in support of
(d) The parties may then respectively offer rebutting testimony
only, unless the court, for good reason, in furtherance of justice,
permit them to offer evidence upon their original case.
(e) When the evidence is concluded, unless the case is submitted
on either side, or on both sides, without argument, the district
attorney, or other counsel for the people, and counsel for the
defendant, may argue the case to the court and jury; the district
attorney, or other counsel for the people, opening the argument and
having the right to close.
(f) The judge may then charge the jury, and shall do so on any
points of law pertinent to the issue, if requested by either party;
and the judge may state the testimony, and he or she may make such
comment on the evidence and the testimony and credibility of any
witness as in his or her opinion is necessary for the proper
determination of the case and he or she may declare the law. At the
beginning of the trial or from time to time during the trial, and
without any request from either party, the trial judge may give the
jury such instructions on the law applicable to the case as the judge
may deem necessary for their guidance on hearing the case. Upon the
jury retiring for deliberation, the court shall advise the jury of
the availability of a written copy of the jury instructions. The
court may, at its discretion, provide the jury with a copy of the
written instructions given. However, if the jury requests the court
to supply a copy of the written instructions, the court shall supply
the jury with a copy.
In any criminal case which is being tried before the court
with a jury, all requests for instructions on points of law must be
made to the court and all proposed instructions must be delivered to
the court before commencement of argument. Before the commencement of
the argument, the court, on request of counsel, must: (1) decide
whether to give, refuse, or modify the proposed instructions; (2)
decide which instructions shall be given in addition to those
proposed, if any; and (3) advise counsel of all instructions to be
given. However, if, during the argument, issues are raised which have
not been covered by instructions given or refused, the court may, on
request of counsel, give additional instructions on the subject
When the state of the pleadings requires it, or in any other
case, for good reasons, and in the sound discretion of the court, the
order prescribed in Section 1093 may be departed from.
If the offense charged is punishable with death, two counsel
on each side may argue the cause. In any other case the court may, in
its discretion, restrict the argument to one counsel on each side.
A defendant in a criminal action is presumed to be innocent
until the contrary is proved, and in case of a reasonable doubt
whether his or her guilt is satisfactorily shown, he or she is
entitled to an acquittal, but the effect of this presumption is only
to place upon the state the burden of proving him or her guilty
beyond a reasonable doubt. Reasonable doubt is defined as follows:
"It is not a mere possible doubt; because everything relating to
human affairs is open to some possible or imaginary doubt. It is that
state of the case, which, after the entire comparison and
consideration of all the evidence, leaves the minds of jurors in that
condition that they cannot say they feel an abiding conviction of
the truth of the charge."
1096a. In charging a jury, the court may read to the jury Section
1096, and no further instruction on the subject of the presumption of
innocence or defining reasonable doubt need be given.
When it appears that the defendant has committed a public
offense, or attempted to commit a public offense, and there is
reasonable ground of doubt in which of two or more degrees of the
crime or attempted crime he is guilty, he can be convicted of the
lowest of such degrees only.
When two or more defendants are jointly charged with any
public offense, whether felony or misdemeanor, they must be tried
jointly, unless the court order separate trials. In ordering separate
trials, the court in its discretion may order a separate trial as to
one or more defendants, and a joint trial as to the others, or may
order any number of the defendants to be tried at one trial, and any
number of the others at different trials, or may order a separate
trial for each defendant; provided, that where two or more persons
can be jointly tried, the fact that separate accusatory pleadings
were filed shall not prevent their joint trial.
When two or more defendants are included in the same
accusatory pleading, the court may, at any time before the defendants
have gone into their defense, on the application of the prosecuting
attorney, direct any defendant to be discharged, that he may be a
witness for the people.
When two or more defendants are included in the same
accusatory pleading, and the court is of opinion that in regard to a
particular defendant there is not sufficient evidence to put him on
his defense, it must order him to be discharged before the evidence
is closed, that he may be a witness for his codefendant.
The order mentioned in Sections 1099 and 1100 is an acquittal
of the defendant discharged, and is a bar to another prosecution for
the same offense.
The rules of evidence in civil actions are applicable also to
criminal actions, except as otherwise provided in this Code.
The right of a victim of crime to be present during any
criminal proceeding shall be secured as follows:
(a) Notwithstanding any other law, and except as specified in
subdivision (d), a victim shall be entitled to be present and seated
at all criminal proceedings where the defendant, the prosecuting
attorney, and the general public are entitled to be present.
(b) A victim may be excluded from a criminal proceeding only if
each of the following criteria are met:
(1) Any movant, including the defendant, who seeks to exclude the
victim from any criminal proceeding demonstrates that there is a
substantial probability that overriding interests will be prejudiced
by the presence of the victim. "Overriding interests" may include,
but are not limited to, the following:
(A) The defendant's right to a fair trial.
(B) The government's interest in inhibiting the disclosure of
(C) The protection of witnesses from harassment and physical harm.
(D) The court's interest in maintaining order.
(E) The protection of sexual offense victims from the trauma and
embarrassment of testifying.
(F) Safeguarding the physical and psychological well-being of a
(G) The preservation of trade secrets.
(2) The court considers reasonable alternatives to exclusion of
the victim from the criminal proceeding.
(3) The exclusion of the victim from any criminal proceeding, or
any limitation on his or her presence at any criminal proceeding, is
narrowly tailored to serve the overriding interests identified by the
(4) Following a hearing at which any victim who is to be excluded
from a criminal proceeding is afforded an opportunity to be heard,
the court makes specific factual findings that support the exclusion
of the victim from, or any limitation on his or her presence at, the
(c) As used in this section, "victim" means (1) the alleged victim
of the offense and one person of his or her choosing or however many
more the court may allow under the particular circumstances
surrounding the proceeding, (2) in the event that the victim is
unable to attend the proceeding, two persons designated by the victim
or however many more the court may allow under the particular
circumstances surrounding the proceeding, or (3) if the victim is no
longer living, two members of the victim's immediate family or
however many more the court may allow under the particular
circumstances surrounding the proceeding.
(d) Nothing in this section shall prevent a court from excluding a
victim from a criminal proceeding, pursuant to Section 777 of the
Evidence Code, when the victim is subpoenaed as a witness. An order
of exclusion shall be consistent with the objectives of paragraphs
(1) to (4), inclusive, of subdivision (b) to allow the victim to be
present, whenever possible, at all proceedings.
Upon a trial for procuring or attempting to procure an
abortion, or aiding or assisting therein, or for inveigling,
enticing, or taking away an unmarried female of previous chaste
character, under the age of eighteen years, for the purpose of
prostitution, or aiding or assisting therein, the defendant cannot be
convicted upon the testimony of the woman upon or with whom the
offense was committed, unless she is corroborated by other evidence.
A conviction can not be had upon the testimony of an
accomplice unless it be corroborated by such other evidence as shall
tend to connect the defendant with the commission of the offense; and
the corroboration is not sufficient if it merely shows the
commission of the offense or the circumstances thereof.
An accomplice is hereby defined as one who is liable to
prosecution for the identical offense charged against the defendant
on trial in the cause in which the testimony of the accomplice is
(a) A jury or judge may not convict a defendant, find a
special circumstance true, or use a fact in aggravation based on the
uncorroborated testimony of an in-custody informant. The testimony of
an in-custody informant shall be corroborated by other evidence that
connects the defendant with the commission of the offense, the
special circumstance, or the evidence offered in aggravation to which
the in-custody informant testifies. Corroboration is not sufficient
if it merely shows the commission of the offense or the special
circumstance or the circumstance in aggravation. Corroboration of an
in-custody informant shall not be provided by the testimony of
another in-custody informant unless the party calling the in-custody
informant as a witness establishes by a preponderance of the evidence
that the in-custody informant has not communicated with another
in-custody informant on the subject of the testimony.
(b) As used in this section, "in-custody informant" means a
person, other than a codefendant, percipient witness, accomplice, or
coconspirator, whose testimony is based on statements allegedly made
by the defendant while both the defendant and the informant were held
within a city or county jail, state penal institution, or
correctional institution. Nothing in this section limits or changes
the requirements for corroboration of accomplice testimony pursuant
to Section 1111.
Notwithstanding the provisions of subdivision (d) of Section
28 of Article I of the California Constitution, the trial court shall
not order any prosecuting witness, complaining witness, or any other
witness, or victim in any sexual assault prosecution to submit to a
psychiatric or psychological examination for the purpose of assessing
his or her credibility.
The Court may direct the jury to be discharged where it
appears that it has not jurisdiction of the offense, or that the
facts charged do not constitute an offense punishable by law.
If the jury be discharged because the Court has not
jurisdiction of the offense charged, and it appear that it was
committed out of the jurisdiction of this State, the defendant must
If the offense was committed within the exclusive
jurisdiction of another county of this State, the Court must direct
the defendant to be committed for such time as it deems reasonable,
to await a warrant from the proper county for his arrest; or if the
offense is a misdemeanor only, it may admit him to bail in an
undertaking, with sufficient sureties, that he will, within such time
as the Court may appoint, render himself amenable to a warrant for
his arrest from the proper county; and, if not sooner arrested
thereon, will attend at the office of the Sheriff of the county where
the trial was had, at a certain time particularly specified in the
undertaking, to surrender himself upon the warrant, if issued, or
that his bail will forfeit such sum as the Court may fix, to be
mentioned in the undertaking; and the Clerk must forthwith transmit a
certified copy of the indictment or information, and of all the
papers filed in the action, to the District Attorney of the proper
county, the expense of which transmission is chargeable to that
If the defendant is not arrested on a warrant from the proper
county, as provided in section 1115, he must be discharged from
custody, or his bail in the action is exonerated, or money deposited
instead of bail must be refunded to him or to the person or persons
found by the court to have deposited said money on behalf of said
defendant, as the case may be, and the sureties in the undertaking,
as mentioned in that section, must be discharged. If he is arrested,
the same proceedings must be had thereon as upon the arrest of a
defendant in another county on a warrant of arrest issued by a
If the jury is discharged because the facts as charged do not
constitute an offense punishable by law, the court must order that
the defendant, if in custody, be discharged; or if admitted to bail,
that his bail be exonerated; or, if he has deposited money or if
money has been deposited by another or others instead of bail for his
appearance, that the money be refunded to him or to the person or
persons found by the court to have deposited said money on behalf of
said defendant, unless in its opinion a new indictment or information
can be framed upon which the defendant can be legally convicted, in
which case it may direct the district attorney to file a new
information, or (if the defendant has not been committed by a
magistrate) direct that the case be submitted to the same or another
grand jury; and the same proceedings must be had thereon as are
prescribed in section 998; provided, that after such order or
submission the defendant may be examined before a magistrate, and
discharged or committed by him as in other cases.
In a case tried by the court without a jury, a jury having
been waived, the court on motion of the defendant or on its own
motion shall order the entry of a judgment of acquittal of one or
more of the offenses charged in the accusatory pleading after the
evidence of the prosecution has been closed if the court, upon
weighing the evidence then before it, finds the defendant not guilty
of such offense or offenses. If such a motion for judgment of
acquittal at the close of the evidence offered by the prosecution is
not granted, the defendant may offer evidence without first having
reserved that right.
In a case tried before a jury, the court on motion of the
defendant or on its own motion, at the close of the evidence on
either side and before the case is submitted to the jury for
decision, shall order the entry of a judgment of acquittal of one or
more of the offenses charged in the accusatory pleading if the
evidence then before the court is insufficient to sustain a
conviction of such offense or offenses on appeal. If such a motion
for judgment of acquittal at the close of the evidence offered by the
prosecution is not granted, the defendant may offer evidence without
first having reserved that right.
A judgment of acquittal entered pursuant to the provisions
of Section 1118 or 1118.1 shall not be appealable and is a bar to any
other prosecution for the same offense.
When, in the opinion of the court, it is proper that the jury
should view the place in which the offense is charged to have been
committed, or in which any other material fact occurred, or any
personal property which has been referred to in the evidence and
cannot conveniently be brought into the courtroom, it may order the
jury to be conducted in a body, in the custody of the sheriff or
marshal, as the case may be, to the place, or to the property, which
must be shown to them by a person appointed by the court for that
purpose; and the officer must be sworn to suffer no person to speak
or communicate with the jury, nor to do so himself or herself, on any
subject connected with the trial, and to return them into court
without unnecessary delay, or at a specified time.
If a juror has any personal knowledge respecting a fact in
controversy in a cause, he or she must declare the same in open court
during the trial. If, during the retirement of the jury, a juror
declares a fact that could be evidence in the cause, as of his or her
own knowledge, the jury must return into court. In either of these
cases, the juror making the statement must be sworn as a witness and
examined in the presence of the parties in order that the court may
determine whether good cause exists for his or her discharge as a
The jurors sworn to try an action may, in the discretion of
the court, be permitted to separate or be kept in charge of a proper
officer. Where the jurors are permitted to separate, the court shall
properly admonish them. Where the jurors are kept in charge of a
proper officer, the officer must be sworn to keep the jurors together
until the next meeting of the court, to suffer no person to speak to
them or communicate with them, nor to do so himself, on any subject
connected with the trial, and to return them into court at the next
(a) After the jury has been sworn and before the people's
opening address, the court shall instruct the jury generally
concerning its basic functions, duties, and conduct. The instructions
shall include, among other matters, all of the following
(1) That the jurors shall not converse among themselves, or with
anyone else, conduct research, or disseminate information on any
subject connected with the trial. The court shall clearly explain, as
part of the admonishment, that the prohibition on conversation,
research, and dissemination of information applies to all forms of
electronic and wireless communication.
(2) That they shall not read or listen to any accounts or
discussions of the case reported by newspapers or other news media.
(3) That they shall not visit or view the premises or place where
the offense or offenses charged were allegedly committed or any other
premises or place involved in the case.
(4) That prior to, and within 90 days of, discharge, they shall
not request, accept, agree to accept, or discuss with any person
receiving or accepting, any payment or benefit in consideration for
supplying any information concerning the trial.
(5) That they shall promptly report to the court any incident
within their knowledge involving an attempt by any person to
improperly influence any member of the jury.
(b) The jury shall also, at each adjournment of the court before
the submission of the cause to the jury, whether permitted to
separate or kept in charge of officers, be admonished by the court
that it is their duty not to conduct research, disseminate
information, or converse among themselves, or with anyone else, on
any subject connected with the trial, or to form or express any
opinion about the case until the cause is finally submitted to them.
The court shall clearly explain, as part of the admonishment, that
the prohibition on research, dissemination of information, and
conversation applies to all forms of electronic and wireless
(a) The court, in its discretion, may, at each adjournment
of the court before the submission of the cause to the jury, admonish
the jury, whether permitted to be separate or kept in charge of
officers, that, on pain of contempt of court, no juror shall, prior
to discharge, accept, agree to accept, or benefit, directly or
indirectly, from any payment or other consideration for supplying any
information concerning the trial.
(b) In enacting this section, the Legislature recognizes that the
appearance of justice, and justice itself, may be undermined by any
juror who, prior to discharge, accepts, agrees to accept, or benefits
from valuable consideration for providing information concerning a
The Court must decide all questions of law which arise in the
course of a trial.
In a trial for any offense, questions of law are to be
decided by the court, and questions of fact by the jury. Although the
jury has the power to find a general verdict, which includes
questions of law as well as of fact, they are bound, nevertheless, to
receive as law what is laid down as such by the court.
All instructions given shall be in writing, unless there is a
phonographic reporter present and he takes them down, in which case
they may be given orally; provided however, that in all misdemeanor
cases oral instructions may be given pursuant to stipulation of the
prosecuting attorney and counsel for the defendant. In charging the
jury the court may instruct the jury regarding the law applicable to
the facts of the case, and may make such comment on the evidence and
the testimony and credibility of any witness as in its opinion is
necessary for the proper determination of the case and in any
criminal case, whether the defendant testifies or not, his failure to
explain or to deny by his testimony any evidence or facts in the
case against him may be commented upon by the court. The court shall
inform the jury in all cases that the jurors are the exclusive judges
of all questions of fact submitted to them and of the credibility of
the witnesses. Either party may present to the court any written
charge on the law, but not with respect to matters of fact, and
request that it be given. If the court thinks it correct and
pertinent, it must be given; if not, it must be refused. Upon each
charge presented and given or refused, the court must endorse and
sign its decision and a statement showing which party requested it.
If part be given and part refused, the court must distinguish,
showing by the endorsement what part of the charge was given and what
1127a. (a) As used in this section, an "in-custody informant" means
a person, other than a codefendant, percipient witness, accomplice,
or coconspirator whose testimony is based upon statements made by the
defendant while both the defendant and the informant are held within
a correctional institution.
(b) In any criminal trial or proceeding in which an in-custody
informant testifies as a witness, upon the request of a party, the
court shall instruct the jury as follows:
"The testimony of an in-custody informant should be viewed with
caution and close scrutiny. In evaluating such testimony, you should
consider the extent to which it may have been influenced by the
receipt of, or expectation of, any benefits from the party calling
that witness. This does not mean that you may arbitrarily disregard
such testimony, but you should give it the weight to which you find
it to be entitled in the light of all the evidence in the case."
(c) When the prosecution calls an in-custody informant as a
witness in any criminal trial, contemporaneous with the calling of
that witness, the prosecution shall file with the court a written
statement setting out any and all consideration promised to, or
received by, the in-custody informant.
The statement filed with the court shall not expand or limit the
defendant's right to discover information that is otherwise provided
by law. The statement shall be provided to the defendant or the
defendant's attorney prior to trial and the information contained in
the statement shall be subject to rules of evidence.
(d) For purposes of subdivision (c), "consideration" means any
plea bargain, bail consideration, reduction or modification of
sentence, or any other leniency, benefit, immunity, financial
assistance, reward, or amelioration of current or future conditions
of incarceration in return for, or in connection with, the informant'
s testimony in the criminal proceeding in which the prosecutor
intends to call him or her as a witness.
1127b. When, in any criminal trial or proceeding, the opinion of
any expert witness is received in evidence, the court shall instruct
the jury substantially as follows:
Duly qualified experts may give their opinions on questions in
controversy at a trial. To assist the jury in deciding such
questions, the jury may consider the opinion with the reasons stated
therefor, if any, by the expert who gives the opinion. The jury is
not bound to accept the opinion of any expert as conclusive, but
should give to it the weight to which they shall find it to be
entitled. The jury may, however, disregard any such opinion, if it
shall be found by them to be unreasonable.
No further instruction on the subject of opinion evidence need be
1127c. In any criminal trial or proceeding where evidence of flight
of a defendant is relied upon as tending to show guilt, the court
shall instruct the jury substantially as follows:
The flight of a person immediately after the commission of a
crime, or after he is accused of a crime that has been committed, is
not sufficient in itself to establish his guilt, but is a fact which,
if proved, the jury may consider in deciding his guilt or innocence.
The weight to which such circumstance is entitled is a matter for
the jury to determine.
No further instruction on the subject of flight need be given.
1127d. (a) In any criminal prosecution for the crime of rape, or
for violation of Section 261.5, or for an attempt to commit, or
assault with intent to commit, any such crime, the jury shall not be
instructed that it may be inferred that a person who has previously
consented to sexual intercourse with persons other than the defendant
or with the defendant would be therefore more likely to consent to
sexual intercourse again. However, if evidence was received that the
victim consented to and did engage in sexual intercourse with the
defendant on one or more occasions prior to that charged against the
defendant in this case, the jury shall be instructed that this
evidence may be considered only as it relates to the question of
whether the victim consented to the act of intercourse charged
against the defendant in the case, or whether the defendant had a
good faith reasonable belief that the victim consented to the act of
sexual intercourse. The jury shall be instructed that it shall not
consider this evidence for any other purpose.
(b) A jury shall not be instructed that the prior sexual conduct
in and of itself of the complaining witness may be considered in
determining the credibility of the witness pursuant to Chapter 6
(commencing with Section 780) of Division 6 of the Evidence Code.
1127e. The term "unchaste character" shall not be used by any court
in any criminal case in which the defendant is charged with a
violation of Section 261, 261.5, or 262 of the Penal Code, or attempt
to commit or assault with intent to commit any crime defined in any
of these sections, in any instruction to the jury.
1127f. In any criminal trial or proceeding in which a child 10
years of age or younger testifies as a witness, upon the request of a
party, the court shall instruct the jury, as follows:
In evaluating the testimony of a child you should consider all of
the factors surrounding the child's testimony, including the age of
the child and any evidence regarding the child's level of cognitive
development. Although, because of age and level of cognitive
development, a child may perform differently as a witness from an
adult, that does not mean that a child is any more or less credible a
witness than an adult. You should not discount or distrust the
testimony of a child solely because he or she is a child.
1127g. In any criminal trial or proceeding in which a person with a
developmental disability, or cognitive, mental, or communication
impairment testifies as a witness, upon the request of a party, the
court shall instruct the jury, as follows:
In evaluating the testimony of a person with a developmental
disability, or cognitive, mental, or communication impairment, you
should consider all of the factors surrounding the person's
testimony, including their level of cognitive development. Although,
because of his or her level of cognitive development, a person with a
developmental disability, or cognitive, mental, or communication
impairment may perform differently as a witness, that does not mean
that a person with a developmental disability, or cognitive, mental,
or communication impairment is any more or less credible a witness
than another witness. You should not discount or distrust the
testimony of a person with a developmental disability, or cognitive,
mental, or communication impairment solely because he or she is a
person with a developmental disability, or cognitive, mental, or
1127h. In any criminal trial or proceeding, upon the request of a
party, the court shall instruct the jury substantially as follows:
"Do not let bias, sympathy, prejudice, or public opinion influence
your decision. Bias includes bias against the victim or victims,
witnesses, or defendant based upon his or her disability, gender,
nationality, race or ethnicity, religion, gender identity, or sexual
After hearing the charge, the jury may either decide in court
or may retire for deliberation. If they do not agree without
retiring for deliberation, an officer shall be sworn to keep them
together for deliberation in some private and convenient place, and,
during the deliberation, not to permit any person to speak to or
communicate with them, including any form of electronic or wireless
communication, nor to do so himself or herself, unless by order of
the court, or to ask them whether they have agreed upon a verdict,
and to return them into court when they have so agreed, or when
ordered by the court. The court shall fix the time and place for
deliberation. The jurors shall not deliberate on the case except
under those circumstances. If the jurors are permitted by the court
to separate, the court shall properly admonish them as provided in
subdivision (b) of Section 1122. If the jury is composed of both men
and women, and the jurors are not permitted by the court to separate,
in the event that it becomes necessary to retire for the night, the
women shall be kept in a room or rooms separate and apart from the
When a defendant who has given bail appears for trial, the
Court may, in its discretion, at any time after his appearance for
trial, order him to be committed to the custody of the proper officer
of the county, to abide the judgment or further order of the court,
and he must be committed and held in custody accordingly.
If the prosecuting attorney fails to attend at the trial of a
felony, the court must appoint an attorney at law to perform the
duties of the prosecuting attorney on such trial.