Van De Kamp, 051184 CAAGO, AGO 83-806

Docket Nº:AGO 83-806
Case Date:May 11, 1984
Court:California
 
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JOHN K. VAN DE KAMP Attorney General
JOHN T. MURPHY Deputy Attorney General
AGO 83-806
No. 83-806
California Attorney General Opinion
Office of the Attorney General State of California
May 11, 1984
         THE HONORABLE ROBERT H. PHILIBOSIAN, DISTRICT ATTORNEY, LOS ANGELES COUNTY, has asked for an opinion on the following questions relating to conditional examinations of witnesses in criminal cases:          1. May the deposition of a conditionally examined witness, if otherwise admissible, be used at a preliminary hearing?          2. Will the deposition of a conditionally examined witness when admitted into evidence have the same effect as if the witness had appeared and testified at the preliminary hearing or the trial?          3. Does the procedure for the conditional examination of a witness apply in a misdemeanor case?          4. May a witness be conditionally examined when he is about to leave this state for another state which has adopted the Uniform Act to Secure the Attendance of Witnesses from without the State in Criminal Cases?          5. Will notice to the defendant by the police that a witness will be conditionally examined commence the running of the three days' notice period?          6. How is the three days' notice period calculated?          7. May a conditional examination be conducted on less than three days' notice?          8. Is a hearing always necessary on an application for a conditional examination?          9. May the prosecutor request bail to ensure the defendant's presence at a conditional examination?          10. May a continuance be granted in the taking of a conditional examination?          11. Does the defendant waive his rights to counsel and to confrontation when his counsel does not attend the conditional examination?          12. When the defendant's counsel does not attend the conditional examination, may the judge ordering the examination or the magistrate presiding at the examination appoint another counsel to represent the defendant at the examination?          13. May a conditional examination be conducted in the absence of the defendant and his counsel?          14. Must the party introducing the transcript of the conditional examination at the preliminary hearing or at the trial meet the requirements of Evidence Code section 240?          15. May the magistrate presiding over the preliminary hearing, who was also the magistrate presiding over the conditional examination, take judicial notice of the conditional examination in lieu of the production of a transcript?          16. May a videotape of a conditional examination be used in evidence in lieu of a transcript?          CONCLUSIONS          1. The deposition of a conditionally examined witness, if otherwise admissible, may be used at a preliminary hearing.          2. The deposition of a conditionally examined witness when admitted into evidence will have the same effect as if the witness had appeared and testified at the preliminary hearing or the trial.          3. The procedure for the conditional examination of a witness applies in a misdemeanor case.          4. A witness may be examined conditionally when he is about to leave this state for another state which has adopted the Uniform Act to Secure the Attendance of Witnesses from without the State in Criminal Cases.          5. Notice to the defendant by the police that a witness will be conditionally examined does not commence the running of the three days' notice period.          6. The three days' notice period is calculated pursuant to Civil Code section 10.          7. A conditional examination, when ordered, may be conducted on less than three days' notice.          8. A hearing is necessary on an application for a conditional examination unless the parties stipulate to the examination order, the hearing is waived by the parties or the application is uncontested.          9. The prosecutor may request bail to ensure the defendant's presence at a conditional examination of a witness.          10. A continuance may be granted in the taking of a conditional examination.          11. The fact that defendant's counsel does not attend the conditional examination does not in itself establish that the defendant has waived his rights to counsel and to confrontation.          12. When the defendant's counsel does not attend the conditional examination the judge ordering the examination or the magistrate presiding over it may appoint another counsel to represent the defendant at the examination.          13. A conditional examination may be conducted in the absence of the defendant and his counsel but the transcript thereof may be inadmissible if the defendant was denied his rights to counsel and to confrontation.          14. The party introducing the transcript of the conditional examination at the preliminary hearing or at the trial must meet the requirements of Evidence Code section 240.          15. The magistrate presiding over the preliminary hearing, who was also the magistrate presiding over the conditional examination, may not take judicial notice of the conditional examination in lieu of the production of a transcript.          16. A videotape of a conditional examination may not be used in evidence in lieu of a transcript.          ANALYSIS          I          THE DEPOSITION OF A CONDITIONALLY EXAMINED WITNESS, IF OTHERWISE ADMISSIBLE, MAY BE USED AT A PRELIMINARY HEARING.          Penal Code1 sections 1335-1345 allow for the examination by deposition before a magistrate of a material witness who is about to leave the state or who is so sick or infirm as to afford reasonable grounds for apprehension that he will be unable to attend trial. (See Cal. Const., art. I, § 15.) Section 1335 provides as follows:
"When a defendant has been charged with a public offense triable in any court, he in all cases, and the people in cases other than those for which the punishment may be death, may, if the defendant has been fully informed of his right to counsel as provided by law, have witnesses examined conditionally in his or their behalf, as prescribed in this chapter."
         Section 1336 provides as follows:
"When a material witness for the defendant, or for the people, is about to leave the state, or is so sick or infirm as to afford reasonable grounds for apprehension that he will be unable to attend the trial, the defendant or the people may apply for an order that the witness be examined conditionally."
         We are asked whether the testimony of a witness examined conditionally may be used at a preliminary hearing. We conclude that it may be so used.          Section 1335 provides two threshold requirements to the use of the conditional examination procedure. The defendant must be "charged with a public offense triable in any court" and the defendant must be "fully informed of his right to counsel as provided by law." Both requirements will be met when the defendant is arraigned before commencement of the preliminary hearing.          A defendant is charged, inter alia, when there is a "complaint filed with a magistrate charging a public offense of which the superior court has original trial jurisdiction . . . ." (§§ 691(4), 949-950, 959.) When the defendant is arraigned the complaint is read to him and a copy delivered to him. (§§ 859, 859a, 859b, 987-990.) At this time he is also advised of his right to counsel. (§§ 859, 987-990.) Upon the defendant being so charged and so advised, the defendant or the prosecutor may then apply to the court for an order to have a witness examined conditionally. (§ 1338.) The application must meet the requirements of section 1337:          "The application must be made upon affidavit stating:
"1. The nature of the offense charged; "2. The state of the proceedings in the action; "3. The name and residence of the witness, and that his testimony is material to the defense or the prosecution of the action; "4. That the witness is about to leave the state, or is so sick or infirm as to afford reasonable grounds for apprehending that he will not be able to attend the trial."
         The application also should be made upon at least three days' notice to the...

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