Rule 1.20. Effective Date of Filing ............................................................................ 6 (2017)

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Rule 1.20. Effective Date of Filing ............................................................................ 6

Rule 1.201. Protection of privacy .............................................................................. 7

Rule 2.100. Form and format of papers presented for filing in the trial courts ......... 8

Rule 2.103. Size, quality, and color of papers ........................................................... 8

Rule 2.104. Printing; Font size; printing.................................................................... 9

Rule 2.105. Font style ................................................................................................ 9

Rule 2.109. Page numbering ...................................................................................... 9

Rule 2.110. Footer...................................................................................................... 9

Rule 2.111. Format of first page ................................................................................ 9

Rule 2.114. Exhibits................................................................................................. 10

Rule 2.118. Acceptance of papers for filing ............................................................ 10

Rule 2.140. Judicial Council forms.......................................................................... 11

Rule 2.251. Electronic service ................................................................................. 11

Rule 2.256. Responsibilities of electronic filer ........................................................ 12

Rule 2.306. Service of papers by fax transmission .................................................. 13

Rule 2.551. Procedures for filing records under seal ............................................... 13

Rule 2.577. Procedures for filing confidential name change records under seal ..... 15

Rule 2.810. Temporary judges appointed by the trial courts ................................... 17

Rule 3.250. Limitations on the filing of papers ....................................................... 17

Rule 3.751. Electronic service ................................................................................. 18

Rule 3.823. Rules of evidence at arbitration hearing ............................................... 18

Rule 3.1110. General format .................................................................................... 19

Rule 3.1113. Memorandum ..................................................................................... 20

Rule 3.1302. Place and manner of filing.................................................................. 21

Rule 3.1306. Evidence at hearing ............................................................................ 22

Rule 3.1362. Motion to be relieved as counsel ........................................................ 22

Rule 4.403. Application ........................................................................................... 24

Rule 4.405. Definitions ............................................................................................ 24

Rule 4.406. Reasons................................................................................................. 26

Rule 4.409. Consideration of criteria ....................................................................... 27

Rule 4.410. General objectives in sentencing .......................................................... 27

Rule 4.411.5. Probation officer’s presentence investigation report ......................... 28

Rule 4.412. Reasons—agreement to punishment as an adequate reason and as

abandonment of certain claims ................................................................................. 29

Rule 4.414. Criteria affecting probation .................................................................. 29

Rule 4.415. Criteria affecting the imposition of mandatory supervision ................. 30

Rule 4.420. Selection of term of imprisonment ....................................................... 31

Rule 4.421. Circumstances in aggravation .............................................................. 33

Rule 4.423. Circumstances in mitigation ................................................................. 35

Rule 4.425. Criteria affecting concurrent or consecutive sentences ........................ 35

Rule 4.427. Hate crimes ........................................................................................... 36

Rule 4.431. Proceedings at sentencing to be reported ............................................. 36

Rule 4.433. Matters to be considered at time set for sentencing ............................. 36

Rule 4.435. Sentencing on revocation of probation................................................. 39

Rule 4.452. Determinate sentence consecutive to prior determinate sentence ........ 40

Rule 4.472. Determination of presentence custody time credit ............................... 40

Rule 4.480. Judge’s statement under section 1203.01 ............................................. 40

Rule 4.530. Intercounty transfer of probation and mandatory supervision cases .... 41

Rule 5.66. Proof of service ...................................................................................... 43

Rule 5.504. Judicial Council forms.......................................................................... 44

Rule 5.324. Telephone appearance in title IV-D hearings and conferences ............ 44

Rule 5.380. Agreement and judgment of parentage in Domestic Violence

Prevention Act cases ................................................................................................. 45

Rule 5.390. Bifurcation of issues ............................................................................. 45

Rule 5.392. Interlocutory appeals ............................................................................ 45

Rule 5.534. General provisions—all proceedings ................................................... 47

Rule 5.555. Hearing to consider termination of juvenile court jurisdiction over a

nonminor—dependents or wards of the juvenile court in a foster care placement and

nonminor dependents (§§ 224.1(b), 303, 366.31, 391, 451, 452, 607.2, 607.3,

16501.1(f)(g)(16)) ..................................................................................................... 50

Rule 5.610. Transfer-out hearing ............................................................................. 55

Rule 5.612. Transfer-in hearing ............................................................................... 57

Rule 5.613. Transfer of nonminor dependents......................................................... 58

Rule 5.668. Commencement of hearing—explanation of proceedings (§§ 316,

316.2) ........................................................................................................................ 62

Rule 5.670. Initial hearing; detention hearings; time limit on custody; setting

jurisdiction hearing; visitation (§§ 309, 311, 313, 315, 362.1) ................................. 63

Rule 5.674. Conduct of hearing; admission, no contest, submission ...................... 65

Rule 5.680. Detention rehearings; prima facie hearings .......................................... 66

Rule 5.682. Commencement of jurisdiction hearing—advisement of trial rights;

admission, no contest, submission ............................................................................ 67

Rule 5.684. Contested hearing on petition ............................................................... 69

Rule 5.686. Continuance pending disposition hearing ............................................ 71

Rule 5.688. Failure to cooperate with services (§ 360(b)) ....................................... 71

Rule 5.690. General conduct of disposition hearing ................................................ 72

Rule 5.695. Findings and orders of the court—disposition ..................................... 73

Rule 5.706. Family maintenance review hearings (§ 364) ...................................... 83

Rule 5.708. General review hearing requirements................................................... 84

Rule 5.710. Six-month review hearing .................................................................... 90

Rule 5.715. Twelve-month permanency hearing ..................................................... 94

Rule 5.720. Eighteen-month permanency review hearing ....................................... 98

Rule 5.722. Twenty-four-month subsequent permanency review hearing ............ 102

Rule 5.725. Selection of permanent plan (§§ 366.24, 366.26, 727.31) ................. 105

Rule 5.726. Prospective adoptive parent designation (§§ 366.26(n), 16010.6) ..... 111

Rule 5.727. Proposed removal (§ 366.26(n)) ......................................................... 115

Rule 5.728. Emergency removal (§ 366.26(n)) ..................................................... 117

Rule 5.730. Adoption (§§ 366.24, 366.26(e), Fam. Code, § 8600 et seq.) ............ 120

Rule 5.735. Legal guardianship ............................................................................. 120

Rule 5.740. Hearings subsequent to a permanent plan (§§ 366.26, 366.3, 16501.1)

................................................................................................................................. 121

Article 2. Service, Filing, Filing Fees, Form, and Number of Documents Privacy ... 125

Rule 8.41. Protection of privacy in documents and records .................................. 125

Rule 8.45. General provisions ................................................................................ 125

Rule 8.70. Purpose, aApplication, construction, and definitions ........................... 126

Rule 8.71. Electronic service ................................................................................. 127

Rule 8.71. Electronic filing .................................................................................... 130

Rule 8.72. Documents that may be filed electronically ......................................... 131

Rule 8.73. Court order requiring electronic service or filing ................................. 132

Rule 8.74 8.72. Responsibilities of court ............................................................... 133

Rule 8.75 8.73. Contracts with electronic filing service providers ........................ 133

Rule 8.76 8.74. Responsibilities of electronic filer ................................................ 134

Rule 8.77 8.75. Requirements for signatures on documents.................................. 135

Rule 8.78 8.76. Payment of filing fees................................................................... 135

Rule 8.79 8.77. Actions by court on receipt of electronic filing ............................ 135

Rule 8.71 8.78. Electronic service ......................................................................... 137

Rule 8.73 8.79. Court order requiring electronic service or filing ......................... 139

Article 7. Privacy ....................................................................................................... 141

Rule 8.90. Privacy in opinions ............................................................................... 141

Rule 8.104. Time to appeal .................................................................................... 142

Rule 8.124. Appendixes ......................................................................................... 143

Rule 8.130. Reporter’s transcript ........................................................................... 143

Rule 8.144. Form of the record .............................................................................. 144

Rule 8.150. Filing the record ................................................................................. 145

Rule 8.200. Briefs by parties and amici curiae ...................................................... 145

Rule 8.204. Contents and form of briefs ................................................................ 145

Rule 8.336. Preparing, certifying, and sending the record..................................... 146

Rule 8.400. Application ......................................................................................... 147

Rule 8.407. Record on appeal ................................................................................ 147

Rule 8.409. Preparing and sending the record ....................................................... 149

Rule 8.416. Appeals from all terminations of parental rights; dependency appeals in

Orange, Imperial, and San Diego Counties and in other counties by local rule ..... 150

Rule 8.450. Notice of intent to file writ petition to review order setting hearing

under Welfare and Institutions Code section 366.26 .............................................. 151

Rule 8.452. Writ petition to review order setting hearing under Welfare and

Institutions Code section 366.26 ............................................................................. 152

Rule 8.454. Notice of intent to file writ petition under Welfare and Institutions Code

section 366.28 to review order designating specific placement of a dependent child

after termination of parental rights ......................................................................... 153

Rule 8.456. Writ petition under Welfare and Institutions Code section 366.28 to

review order designating or denying specific placement of a dependent child after

termination of parental rights .................................................................................. 154

Rule 8.480. Appeal from order establishing conservatorship ................................ 155

Rule 8.482. Appeal from judgment authorizing conservator to consent to

sterilization of conservatee ..................................................................................... 155

Rule 8.487. Opposition and Attorney General amicus curiae briefs ..................... 155

Rule 8.489. Notice to trial court............................................................................. 156

Rule 8.613. Preparing and certifying the record of preliminary proceedings ........ 157

Rule 8.619. Certifying the trial record for completeness ....................................... 157

Rule 8.625. Certifying the record in pre-1997 trials .............................................. 158

Rule 8.834. Reporter’s transcript ........................................................................... 159

Rule 8.866. Preparation of reporter’s transcript..................................................... 159

Rule 8.919. Preparation of reporter’s transcript..................................................... 160

Rule 8.1007. Transmitting record to Court of Appeal ........................................... 160

Rule 10.742. Use of attorneys as court-appointed temporary judges .................... 161

Rule 10.1028. Preservation and destruction of Court of Appeal records ............... 161

Rule 1.20. Effective Date of Filing

(a)

Effective date of filing

Unless otherwise provided, a document is deemed filed on the date it is received by

the court clerk.

(b)

Protection of privacy

(1)

Scope

The requirements of this subdivision that parties or their attorneys must not

include, or must redact, certain identifiers from documents or records filed

with the court do not apply to documents or records that by court order or

operation of law are filed in their entirety either confidentially or under seal.

(2)

Exclusion or redaction of identifiers

To protect personal privacy and other legitimate interests, parties and their

attorneys must not include, or must redact where inclusion is necessary, the

following identifiers from all pleadings and other papers filed in the court’s

public file, whether filed in paper or electronic form, unless otherwise

provided by law or ordered by the court:

(3)

(A)

Social security numbers. If an individual’s social security number is

required in a pleading or other paper filed in the public file, only the

last four digits of that number may be used.

(B)

Financial account numbers. If financial account numbers are required

in a pleading or other paper filed in the public file, only the last four

digits of these numbers may be used.

Responsibility of the filer

The responsibility for excluding or redacting identifiers identified in (b)(2)

from all documents filed with the court rests solely with the parties and their

attorneys. The court clerk will not review each pleading or other paper for

compliance with this provision.

(4)

Confidential reference list

If the court orders on a showing of good cause, a party filing a document

containing identifiers listed in (b)(2) may file, along with the redacted

document that will be placed in the public file, a reference list. The reference

list is confidential. A party filing a confidential reference list must use

Confidential Reference List of Identifiers (form MC-120) for that purpose.

The confidential list must identify each item of redacted information and

specify an appropriate reference that uniquely corresponds to each item of

redacted information listed. All references in the case to the redacted

identifiers included in the confidential reference list will be understood to

refer to the corresponding complete identifier. A party may amend its

reference list as of right.

Rule 1.20 amended effective January 1, 2017; adopted effective January 1, 2007; previously

amended effective January 1, 2008.

Rule 1.201. Protection of privacy

(a)

Exclusion or redaction of identifiers

To protect personal privacy and other legitimate interests, parties and their

attorneys must not include, or must redact where inclusion is necessary, the

following identifiers from all pleadings and other papers filed in the court’s public

file, whether filed in paper or electronic form, unless otherwise provided by law or

ordered by the court:

(b)

(1)

Social security numbers. If an individual’s social security number is required

in a pleading or other paper filed in the public file, only the last four digits of

that number may be used.

(2)

Financial account numbers. If financial account numbers are required in a

pleading or other paper filed in the public file, only the last four digits of

these numbers may be used.

Responsibility of the filer

The responsibility for excluding or redacting identifiers identified in (a) from all

documents filed with the court rests solely with the parties and their attorneys. The

court clerk will not review each pleading or other paper for compliance with this

provision.

(c)

Confidential reference list

If the court orders on a showing of good cause, a party filing a document

containing identifiers listed in (a) may file, along with the redacted document that

will be placed in the public file, a reference list. The reference list is confidential. A

party filing a confidential reference list must use Confidential Reference List of

Identifiers (form MC-120) for that purpose. The confidential list must identify each

item of redacted information and specify an appropriate reference that uniquely

corresponds to each item of redacted information listed. All references in the case

to the redacted identifiers included in the confidential reference list will be

understood to refer to the corresponding complete identifier. A party may amend its

reference list as of right.

(d)

Scope

The requirements of this rule do not apply to documents or records that by court

order or operation of law are filed in their entirety either confidentially or under

seal.

Rule 1.201 adopted effective January 1, 2017.

Rule 2.100. Form and format of papers presented for filing in the trial courts

(a)–(b) * * *

(c)

Electronic format of papers

Papers that are submitted or filed electronically must meet the requirements in rule

2.256(b).

(Subd (c) adopted effective January 1, 2017.)

Rule 2.100 amended effective January 1, 2017; adopted as rule 201 effective January 1, 1949;

previously amended effective April 1, 1962, May 1, 1962, July 1, 1964, January 1, 1966, July 1,

1969, July 1, 1971, January 1, 1973, July 1, 1974, January 1, 1976, January 1, 1978, May 6,

1978, January 1, 1984, April 1, 1990, July 1, 1990, January 1, 1992, July 1, 1992, January 1,

1993, July 1, 1993, January 1, 1994, January 1, 1998, January 1, 1999, July 1, 1999, July 1,

2000, January 1, 2001, January 1, 2003, and January 1, 2006; previously amended and

renumbered as rule 2.100 effective January 1, 2007.

Rule 2.103. Size, quality, and color of papers

All papers filed must be 8½ by 11 inches. All papers not filed electronically must be on

opaque, unglazed paper, white or unbleached, of standard quality not less than 20-pound

weight.

Rule 2.103 amended effective January 1, 2017; adopted effective January 1, 2007; previously

amended effective January 1, 2016.

Rule 2.104. Printing; Font size; printing

Unless otherwise specified in these rules, all papers filed must be prepared using a font

size not smaller than 12 points. All papers not filed electronically must be printed or

typewritten or be prepared by a photocopying or other duplication process that will

produce clear and permanent copies equally as legible as printing in a font not smaller

than 12 points.

Rule 2.104 amended effective January 1, 2017; adopted effective January 1, 2007; previously

amended effective January 1, 2016.

Rule 2.105. Font style

The font style must be essentially equivalent to Courier, Times New Roman, or Arial.

Rule 2.105 amended effective January 1, 2017; adopted effective January 1, 2007; previously

amended effective January 1, 2016.

Rule 2.109. Page numbering

Each page must be numbered consecutively at the bottom unless a rule provides

otherwise for a particular type of document. The page numbering must begin with the

first page and use only Arabic numerals (e.g., 1, 2, 3). The page number may be

suppressed and need not appear on the first page.

Rule 2.105 amended effective January 1, 2017; adopted effective January 1, 2007.

Rule 2.110. Footer

(a)–(b) * * *

(c)

Type Font size

The title of the paper in the footer must be in at least 10-point type font.

Rule 2.110 amended effective January 1, 2017; adopted effective January 1, 2007.

Rule 2.111. Format of first page

The first page of each paper must be in the following form:

(1)

In the space commencing 1 inch from the top of the page with line 1, to the left of

the center of the page, the name, office address or, if none, residence address or

mailing address (if different), telephone number, fax number and e-mail address (if

available), and State Bar membership number of the attorney for the party in whose

behalf the paper is presented, or of the party if he or she is appearing in person. The

inclusion of a fax number or e-mail address on any document does not constitute

consent to service by fax or e-mail unless otherwise provided by law.

(2)–(11) * * *

Rule 2.111 amended effective January 1, 2017; adopted effective January 1, 2007; previously

amended effective January 1, 2008, and January 1, 2016.

Rule 2.114. Exhibits

Exhibits submitted with papers not filed electronically may be fastened to pages of the

specified size and, when prepared by a machine copying process, must be equal to

computer-processed materials in legibility and permanency of image. Exhibits submitted

with papers filed electronically must meet the requirements in rule 2.256(b).

Rule 2.114 amended effective January 1, 2017; adopted effective January 1, 2007; previously

amended effective January 1, 2016.

Rule 2.118. Acceptance of papers for filing

(a)

Papers not in compliance

The clerk of the court must not accept for filing or file any papers that do not

comply with the rules in this chapter, except the clerk must not reject a paper for

filing solely on the ground that:

(1)

It is handwritten or hand-printed; or

(2)

The handwriting or hand printing on the paper is in a color other than

black or blue-black.; or

(3)

The font size is not exactly the point size required by rules 2.104 and

2.110(c) on papers submitted electronically in portable document

format (PDF). Minimal variation in font size may result from

converting a document created using word processing software to PDF.

(Subd (a) amended effective January 1, 2017.)

(b)–(c) * * *

Rule 2.118 amended effective January 1, 2017; adopted effective January 1, 2007.

Rule 2.140. Judicial Council forms

Judicial Council forms are governed by the rules in this chapter and chapter 4 of title 1.

Electronic Judicial Council forms must meet the requirements in rule 2.256.

Rule 2.140 amended effective January 1, 2017; adopted effective January 1, 2007.

Rule 2.251. Electronic service

(a)–(h) * * *

(i)

Proof of service

(1)

Proof of electronic service may be by any of the methods provided in Code of

Civil Procedure section 1013a, except that with the following exceptions:

(A)

The proof of electronic service does not need to state that the person

making the service is not a party to the case.

(B)

The proof of electronic service must state:

(A)(i) The electronic service address of the person making the service,

in addition to that person’s residence or business address;

(B)(ii) The date and time of the electronic service, instead of the date

and place of deposit in the mail;

(C)(iii) The name and electronic service address of the person served,

in place of that person’s name and address as shown on the

envelope; and

(D)(iv) That the document was served electronically, in place of the

statement that the envelope was sealed and deposited in the mail

with postage fully prepaid.

(2)

***

(3)

Under rule 3.1300(c), proof of electronic service of the moving papers must

be filed at least five court days before the hearing.

(4)

***

(Subd (i) amended effective January 1, 2017; adopted as subd (c); previously amended

effective January 1, 2007, January 1, 2009, July 1, 2009, and January 1, 2010; previously

amended and relettered as subd (g) effective January 1, 2011; previously relettered as

subd (f) effective January 1, 2008, and as subd (i) effective July 1, 2013.)

(j)

***

Rule 2.251 amended effective January 1, 2017; adopted as rule 2060 effective January 1, 2003;

previously amended and renumbered as rule 2.260 effective January 1, 2007, and as rule 2.251

effective January 1, 2011; previously amended effective January 1, 2008, January 1, 2009, July 1,

2009, January 1, 2010, July 1, 2013, and January 1, 2016.

Rule 2.256. Responsibilities of electronic filer

(a)

***

(b)

Format of documents to be filed electronically

A document that is filed electronically with the court must be in a format specified

by the court unless it cannot be created in that format. The format adopted by a

court must meet the following requirements:

(1)–(2) * * *

(3)

The document must be text searchable when technologically feasible without

impairment of the document’s image.

If a document is filed electronically under the rules in this chapter and cannot be

formatted to be consistent with a formatting rule elsewhere in the California Rules

of Court, the rules in this chapter prevail.

(Subd (b) amended effective January 1, 2017; previously amended effective January 1,

2006, January 1, 2008, and January 1, 2010.)

Rule 2.256 amended effective January 1, 2017; adopted as rule 2056 effective January 1, 2003;

previously amended and renumbered effective January 1, 2007; previously amended effective

January 1, 2006, January 1, 2008, January 1, 2010, January 1, 2011, and July 1, 2013.

Advisory Committee Comment

Subdivision (b)(3). The term “technologically feasible” does not require more than the

application of standard, commercially available optical character recognition (OCR) software.

Rule 2.306. Service of papers by fax transmission

(a)–(g) * * *

(h)

Proof of service by fax

Proof of service by fax may be made by any of the methods provided in Code of

Civil Procedure section 1013(a), except that:

(1)

The time, date, and sending fax machine telephone number must be used

instead of the date and place of deposit in the mail;

(2)–(5) * * *

(Subd (h) amended effective January 1, 2017; adopted as subd (e) effective March 1, 1992;

previously amended effective July 1, 1997, and May 1, 1998; previously amended and

relettered as subd (g) effective January 1, 2007; previously relettered as subd (h) effective

January 1, 2008.)

Rule 2.306 amended effective January 1, 2017; adopted as rule 2008 effective March 1, 1992;

previously amended and renumbered effective January 1, 2007; previously amended effective

July 1, 1997, May 1, 1998, January 1, 2008, and July 1, 2008.

Rule 2.551. Procedures for filing records under seal

(a)

***

(b)

Motion or application to seal a record

(1)–(2) * * *

(3)

Procedure for party not intending to file motion or application

(A)

***

(B)

If the party that produced the documents and was served with the notice

under (A)(iii) fails to file a motion or an application to seal the records

within 10 days or to obtain a court order extending the time to file such

a motion or an application, the clerk must promptly remove transfer all

the documents in (A)(i) from the envelope, container, or secure

electronic file where they are located and place them in to the public

file. If the party files a motion or an application to seal within 10 days

or such later time as the court has ordered, these documents are to

remain conditionally under seal until the court rules on the motion or

application and thereafter are to be filed as ordered by the court.

(4)–(5) * * *

(6)

Return of lodged record

If the court denies the motion or application to seal, the clerk must return the

lodged record to the submitting party and must not place it in the case file

unless that party notifies the clerk in writing that the record is to be filed.

Unless otherwise ordered by the court, the submitting party must notify the

clerk within 10 days after the order denying the motion or application. the

moving party may notify the court that the lodged record is to be filed

unsealed. This notification must be received within 10 days of the order

denying the motion or application to seal, unless otherwise ordered by the

court. On receipt of this notification, the clerk must unseal and file the record.

If the moving party does not notify the court within 10 days of the order, the

clerk must (1) return the lodged record to the moving party if it is in paper

form or (2) permanently delete the lodged record if it is in electronic form.

(Subd (b) amended effective January 1, 2017; previously amended effective January 1,

2004, January 1, 2007, and January 1, 2016.)

(c)–(d) * * *

(e)

Order

(1)

If the court grants an order sealing a record and if the sealed record is in

paper format, the clerk must substitute on the envelope or container for the

label required by (d)(2) a label prominently stating “SEALED BY ORDER

OF THE COURT ON (DATE),” and must replace the cover sheet required by

(d)(3) with a filed-endorsed copy of the court’s order. If the sealed record is

in an electronic format, the clerk must file the court’s order, store maintain

the record ordered sealed in a secure manner, and clearly identify the record

as sealed by court order on a specified date.

(2)–(4) * * *

(Subd (e) amended effective January 1, 2017; previously amended effective January 1,

2004, January 1, 2007, and January 1, 2016.)

(f)

Custody of sealed records

Sealed records must be securely filed and kept separate from the public file in the

case. If the sealed records are in electronic form, appropriate access controls must

be established to ensure that only authorized persons may access the sealed records.

(Subd (f) amended effective January 1, 2017; previously amended effective January 1,

2004.)

(g)–(h) * * *

Rule 2.551 amended effective January 1, 2017; adopted as rule 243.2 effective January 1, 2001;

previously amended and renumbered as rule 2.551 effective January 1, 2007; previously

amended effective January 1, 2004, and January 1, 2016.

Rule 2.577. Procedures for filing confidential name change records under seal

(a)

***

(b)

Application to file records in confidential name change proceedings under seal

An application by a confidential name change petitioner to file records under seal

must be filed at the time the petition for name change is submitted to the court. The

application must be made on the Application to File Documents Under Seal in

Name Change Proceeding Under Address Confidentiality Program (Safe at Home)

(form NC-410) and be accompanied by a Declaration in Support of Application to

File Documents Under Seal in Name Change Proceeding Under Address

Confidentiality Program (Safe at Home) (form NC-420), containing facts sufficient

to justify the sealing.

(Subd (b) amended effective January 1, 2017.)

(c)

***

(d)

Procedure for lodging of petition for name change

(1)–(3) * * *

(4)

If the court denies the application to seal, the clerk must return the lodged

record to the petitioner and must not place it in the case file unless the

petitioner notifies the clerk in writing within 10 days after the order denying

the application that the unsealed petition and related papers are to be filed.

the moving party may notify the court that the lodged record is to be filed

unsealed. This notification must be received within 10 days of the order

denying the motion or application to seal, unless otherwise ordered by the

court. On receipt of this notification, the clerk must unseal and file the record.

If the moving party does not notify the court within 10 days of the order, the

clerk must (1) return the lodged record to the moving party if it is in paper

form or (2) permanently delete the lodged record if it is in electronic form.

(Subd (d) amended effective January 1, 2017; previously amended effective January 1,

2016.)

(e)

***

(f)

Order

(1)–(2) * * *

(3)

For petitions transmitted in paper form, if the court grants an order sealing a

record, the clerk must strike out the notation required by (d)(2) on the

Confidential Cover Sheet that the matter is filed “CONDITIONALLY

UNDER SEAL,” add a notation to that sheet prominently stating “SEALED

BY ORDER OF THE COURT ON (DATE),” and file the documents under

seal. For petitions transmitted electronically, the clerk must file the court’s

order, store maintain the record ordered sealed in a secure manner, and

clearly identify the record as sealed by court order on a specified date.

(4)–(5) * * *

(Subd (f) amended effective January 1, 2017; previously amended effective January 1,

2016.)

(g)

Custody of sealed records

Sealed records must be securely filed and kept separate from the public file in the

case. If the sealed records are in electronic form, appropriate access controls must

be established to ensure that only authorized persons may access the sealed records.

(Subd (g) amended effective January 1, 2017.)

(h)

***

Rule 2.577 amended effective January 1, 2017; adopted effective January 1, 2010; previously

amended effective January 1, 2016.

Rule 2.810. Temporary judges appointed by the trial courts

(a)–(c) * * *

(d)

Exception for extraordinary circumstances

A presiding judge may appoint an attorney who is qualified under rule 2.812(a), but

who has not satisfied the other requirements of that rule, only in case of

extraordinary circumstances. Any appointment under this subdivision based on

extraordinary circumstances must be made before the attorney serves as a

temporary judge, must be recorded for reporting purposes under rule 10.742(c)(3),

and must not last more than 10 court days in a three-year period.

(Subd (d) amended effective January 1, 2017; previously amended effective January 1,

2007.)

Rule 2.810 amended effective January 1, 2017; adopted as rule 243.11 effective July 1, 2006;

previously amended and renumbered as rule 2.810 effective January 1, 2007; previously

amended effective January 1, 2009.

Rule 3.250. Limitations on the filing of papers

(a)

***

(b)

Retaining originals of papers not filed

(1)

Unless the paper served is a response, the party who serves a paper listed in

(a) must retain the original with the original proof of service affixed. If

served electronically under rule 2.251, the proof of electronic service must

meet the requirements in rule 2.251(i).

(2)

The original of a response must be served, and it must be retained by the

person upon whom it is served.

(3)

An original must be retained under (1) or (2) in the paper or electronic form

in which it was created or received.

(4)

All original papers must be retained until six months after final disposition of

the case, unless the court on motion of any party and for good cause shown

orders the original papers preserved for a longer period.

(Subd (b) amended effective January 1, 2017; amended effective January 1, 2003, and

January 1, 2007.)

(c)

***

Rule 3.250 amended effective January 1, 2017; adopted as rule 201.5 effective July 1, 1987;

previously amended effective January 1, 2001, and January 1, 2003; previously amended and

renumbered as rule 3.250 effective January 1, 2007.

Rule 3.751. Electronic service

Parties may consent to electronic service, or the court may require electronic service by

local rule or court order, under rule 2.251. The court may provide in a case management

order that documents filed electronically in a central electronic depository available to all

parties are deemed served on all parties.

Rule 3.751 amended effective January 1, 2017; adopted as rule 1830 effective January 1, 2000;

renumbered as rule 3.751 effective January 1, 2007.

Rule 3.823. Rules of evidence at arbitration hearing

(a)–(c) * * *

(d)

Delivery of documents

For purposes of this rule, “delivery” of a document or notice may be accomplished

manually, by electronic means under Code of Civil Procedure section 1010.6 and

rule 2.251, or by mail in the manner provided by Code of Civil Procedure section

1013. If service is by electronic means, the times prescribed in this rule for delivery

of documents, notices, and demands are increased as provided by Code of Civil

Procedure section 1010.6. by two days. If service is in the manner provided by mail

Code of Civil Procedure section 1013, the times prescribed in this rule are

increased as provided by five days that section.

(Subd (d) amended effective January 1, 2017; adopted effective January 1, 1988;

previously amended effective January 1, 2004, and January 1, 2016.)

Rule 3.823 amended effective January 1, 2017; adopted as rule 1613 effective July 1, 1976;

previously amended and renumbered as rule 3.823 effective January 1, 2007; previously

amended effective July 1, 1979, January 1, 1984, January 1, 1988, July 1, 1990, January 1, 2004,

January 1, 2008, and January 1, 2016.

Rule 3.1110. General format

(a)–(b) * * *

(c)

Pagination of documents

Documents bound together must be consecutively paginated. The page numbering

must begin with the first page and use only Arabic numerals (e.g., 1, 2, 3). The

page number may be suppressed and need not appear on the first page.

(Subd (c) amended effective January 1, 2017; adopted as part of subd (b); previously

amended and lettered as subd (c) effective January 1, 2007.

(d)–(e) * * *

(f)

Format of exhibits

(1)

An index of exhibits must be provided. The index must briefly describe the

exhibit and identify the exhibit number or letter and page number.

(2)

Pages from a single deposition must be designated as a single exhibit.

(3)

Each paper exhibit must be separated by a hard 8½ x 11 sheet with hard

paper or plastic tabs extending below the bottom of the page, bearing the

exhibit designation. An index to exhibits must be provided. Pages from a

single deposition and associated exhibits must be designated as a single

exhibit.

(4)

Electronic exhibits must meet the requirements in rule 2.256(b). Unless they

are submitted by a self-represented party, electronic exhibits must include

electronic bookmarks with links to the first page of each exhibit and with

bookmark titles that identify the exhibit number or letter and briefly describe

the exhibit.

(Subd (f) amended effective January 1, 2017; adopted as subd (e) effective July 1, 1997;

previously amended and relettered as subd (f) effective January 1, 2007.)

(g)

***

Rule 3.1110 amended effective January 1, 2017; adopted as rule 311 effective January 1, 1984;

previously amended effective July 1, 1997; previously amended and renumbered as rule 3.1110

effective January 1, 2007; previously amended effective July 1, 1997, and January 1, 2016.

Advisory Committee Comment

Subdivision (f)(4). Under current technology, software programs that allow users to apply

electronic bookmarks to electronic documents are available for free.

Rule 3.1113. Memorandum

(a)–(c) * * *

(d)

Length of memorandum

Except in a summary judgment or summary adjudication motion, no opening or

responding memorandum may exceed 15 pages. In a summary judgment or

summary adjudication motion, no opening or responding memorandum may exceed

20 pages. No reply or closing memorandum may exceed 10 pages. The page limit

does not include the caption page, the notice of motion and motion, exhibits,

declarations, attachments, the table of contents, the table of authorities, or the proof

of service.

(Subd (d) amended effective January 1, 2017; adopted as part of a longer subd (d);

previously amended effective July 1, 1984, January 1, 1992, and January 1, 2004.)

(e)–(g) * * *

(h)

Pagination of memorandum

The pages of a memorandum must be numbered consecutively beginning with the

first page and using only Arabic numerals (e.g., 1, 2, 3). The page number may be

suppressed and need not appear on the first page.

Notwithstanding any other rule, a memorandum that includes a table of contents

and a table of authorities must be paginated as follows:

(1) The caption page or pages must not be numbered;

(2)

The pages of the tables must be numbered consecutively using lowercase roman numerals starting on the first page of the tables; and

(3)

The pages of the text must be numbered consecutively using Arabic

numerals starting on the first page of the text.

(Subd (h) amended effective January 1, 2017; adopted as subd (e) effective July 1, 2000;

previously amended and relettered as subd (f) effective January 1, 2004, and as subd (h)

effective January 1, 2007.)

(i)

Copies of authorities

(1)

A judge may require that if any authority other than California cases, statutes,

constitutional provisions, or state or local rules is cited, a copy of the

authority must be lodged with the papers that cite the authority. and If in

paper form, the authority must be tabbed or separated as required by rule

3.1110(f)(3). If in electronic form, the authority must be electronically

bookmarked as required by rule 3.1110(f)(4).

(2)

If a California case is cited before the time it is published in the advance

sheets of the Official Reports, the party must include the title, case number,

date of decision, and, if from the Court of Appeal, district of the Court of

Appeal in which the case was decided. A judge may require that a copy of

that case must be lodged. and If in paper form, the copy must be tabbed or

separated as required by rule 3.1110(f)(3). If in electronic form, the copy

must be electronically bookmarked as required by rule 3.1110(f)(4).

(3)

***

(Subd (i) amended effective January 1, 2017; adopted as part of subd (e) effective January

1, 1992; previously amended and relettered as subd (h) effective January 1, 2004, and as

subd (j) effective January 1, 2007; previously relettered as part of subd (f) effective July 1,

2000, and as subd. (i) effective January 1, 2008; previously amended effective July 1,

1997, July 1, 2011, and January 1, 2016.)

(j)–(m) * * *

Rule 3.1113 amended effective January 1, 2017; adopted as rule 313 effective January 1, 1984;

previously amended and renumbered as rule 3.1113 effective January 1, 2007; previously

amended effective July 1, 1984, January 1, 1992, July 1, 1997, July 1, 2000, January 1, 2003,

January 1, 2004, January 1, 2008, July 1, 2011, and January 1, 2016.

Rule 3.1302. Place and manner of filing

(a)

***

(b)

Requirements for lodged material

Material lodged physically with the clerk must be accompanied by an addressed

envelope with sufficient postage for mailing the material. Material lodged

electronically must clearly specify the electronic address to which the materials

may be returned a notice of deletion may be sent. After determination of the matter,

the clerk may mail or send the material if in paper form back to the party lodging it.

If the lodged material is in electronic form, the clerk may permanently delete it

after sending notice of the deletion to the party who lodged the material.

(Subd (b) amended effective January 1, 2017; previously amended effective January 1,

2007, and January 1, 2016.)

Rule 3.1302 amended effective January 1, 2017; adopted as rule 319 effective January 1, 1984;

previously amended and renumbered as rule 3.1302 effective January 1, 2007; previously

amended effective January 1, 2016.

Rule 3.1306. Evidence at hearing

(a)–(b) * * *

(c)

Judicial notice

A party requesting judicial notice of material under Evidence Code sections 452 or

453 must provide the court and each party with a copy of the material. If the

material is part of a file in the court in which the matter is being heard, the party

must:

(1)

***

(2)

Either make arrangements with the clerk to have the file in the courtroom at

the time of the hearing or confirm with the clerk that the file is electronically

accessible to the court.

(Subd (c) amended effective January 1, 2017; adopted as subd (b); previously amended

and relettered effective January 1, 2003; previously amended effective January 1, 2007.)

Rule 3.1306 amended effective January 1, 2017; adopted as rule 323 effective January 1, 1984;

previously amended effective January 1, 2003; previously amended and renumbered as rule

3.1306 effective January 1, 2007.

Rule 3.1362. Motion to be relieved as counsel

(a)–(c) * * *

(d)

Service

The notice of motion and motion, the declaration, and the proposed order must be

served on the client and on all other parties who have appeared in the case. The

notice may be by personal service, electronic service, or mail.

(1)

If the notice is served on the client by mail under Code of Civil Procedure

section 1013, it must be accompanied by a declaration stating facts showing

that either:

(1A) The service address is the current residence or business address of the

client; or

(2B) The service address is the last known residence or business address of

the client and the attorney has been unable to locate a more current

address after making reasonable efforts to do so within 30 days before

the filing of the motion to be relieved.

(2)

If the notice is served on the client by electronic service under Code of Civil

Procedure section 1010.6 and rule 2.251, it must be accompanied by a

declaration stating that the electronic service address is the client’s current

electronic service address.

As used in this rule, “current” means that the address was confirmed within 30 days

before the filing of the motion to be relieved. Merely demonstrating that the notice

was sent to the client’s last known address and was not returned or no electronic

delivery failure message was received is not, by itself, sufficient to demonstrate

that the address is current. If the service is by mail, Code of Civil Procedure section

1011(b) applies.

(Subd (d) amended effective January 1, 2017; adopted as subd (c); previously relettered

and amended effective July 1, 2000; previously amended effective July 1, 1991, January 1,

1996, January 1, 2007, and January 1, 2009.)

(e)

***

Rule 3.1362 amended effective January 1, 2017; adopted as rule 376 effective July 1, 1984;

previously amended and renumbered effective January 1, 2007; previously amended effective

July 1, 1991, January 1, 1996, July 1, 2000, and January 1, 2009.

Rule 4.403. Application

These rules apply only to criminal cases in which the defendant is convicted of one or

more offenses punishable as a felony by a determinate sentence imposed under Penal

Code part 2, title 7, chapter 4.5 (commencing with section 1170).

Rule 4.403 amended effective January 1, 2017; adopted as rule 403 effective July 1, 1977;

previously amended and renumbered effective January 1, 2001; previously amended effective

July 1, 2003, and January 1, 2007.

Advisory Committee Comment

The sentencing rules do not apply to offenses carrying a life term or other indeterminate

sentences for which sentence is imposed under section 1168(b).

The operative portions of section 1170 deal exclusively with prison sentences; and the mandate to

the Judicial Council in section 1170.3 is limited to criteria affecting the length of prison

sentences, sentences in county jail under section 1170(h), and the grant or denial of probation.

Criteria dealing with jail sentences, fines, or jail time and fines as conditions of probation, would

substantially exceed the mandate of the legislation.

Rule 4.405. Definitions

As used in this division, unless the context otherwise requires:

(1)–(3) * * *

(4)

“Aggravation” or “circumstances in aggravation” means factors that the court may

consider in its broad discretion in imposing one of the three authorized prison terms

of imprisonment referred to in section 1170(b).

(5)

“Mitigation” or “circumstances in mitigation” means factors that the court may

consider in its broad discretion in imposing one of the three authorized prison terms

of imprisonment referred to in section 1170(b) or factors that may justify the court

in striking the additional punishment for an enhancement when the court has

discretion to do so.

(6)–(7) * * *

(8)

“Imprisonment” means confinement in a state prison or county jail under section

1170(h).

(9)–(10) * * *

(11) “Mandatory supervision” means the period of supervision defined in section

1170(h)(5)(A), (B).

(12) “Postrelease community supervision” means the period of supervision governed by

section 3451 et seq.

(13) “Evidence-based practices” means supervision policies, procedures, programs, and

practices demonstrated by scientific research to reduce recidivism among

individuals under probation, parole, or postrelease supervision.

(14) “Community-based corrections program” means a program consisting of a system

of services for felony offenders under local supervision dedicated to the goals

stated in section 1229(c)(1)–(5).

(15) “Local supervision” means the supervision of an adult felony offender on

probation, mandatory supervision, or postrelease community supervision.

(16) “County jail” means local county correctional facility.

Rule 4.405 amended effective January 1, 2017; adopted as rule 405 effective July 1, 1977;

previously renumbered effective January 1, 2001; previously amended effective July 28, 1977,

January 1, 1991, July 1, 2003, January 1, 2007, and May 23, 2007.

Advisory Committee Comment

“Base term” is the term of imprisonment selected under section 1170(b) from the three possible

terms. (See section 1170(a)(3); People v. Scott (1994) 9 Cal.4th 331, 349.) Following the United

States Supreme Court decision in Cunningham v. California (2007) 549 U.S. 270 __ [127 S.Ct.

856.], the Legislature amended the determinate sentencing law. (See Sen. Bill 40; Stats. 2007, ch.

3.) To comply with those changes, these rules were also amended. In light of those amendments,

for clarity, the phrase “base term” in (4) and (5) was replaced with “one of the three authorized

prison terms.” This language was subsequently changed to “three authorized terms of

imprisonment” to incorporate county jail sentences under section 1170(h) in light of more recent

legislative amendments to the determinate sentencing law. (See Assem. Bill 109; Stats. 2011, ch.

15.) It is an open question whether the definitions in (4) and (5) apply to enhancements for which

the statute provides for three possible terms. The Legislature in SB 40 amended section 1170(b)

but did not modify sections 1170.1(d), 12022.2(a), 12022.3(b), or any other section providing for

an enhancement with three possible terms. The latter sections provide that “the court shall impose

the middle term unless there are circumstances in aggravation or mitigation.” (See, e.g., section

1170.1(d).) It is possible, although there are no cases addressing the point, that this enhancement

triad with the presumptive imposition of the middle term runs afoul of Cunningham. Because of

this open question, rule 4.428(b) was deleted.

“Enhancement.” The facts giving rise to an enhancement, the requirements for pleading and

proving those facts, and the court’s authority to strike the additional term are prescribed by

statutes. See, for example, sections 667.5 (prior prison terms), 12022 (being armed with a firearm

or using a deadly weapon), 12022.5 (using a firearm), 12022.6 (excessive taking or damage),

12022.7 (great bodily injury), 1170.1(e) (pleading and proof), and 1385(c) (authority to strike the

additional punishment). Note: A consecutive sentence is not an enhancement. (See section

1170.1(a); People v. Tassell (1984) 36 Cal.3d 77, 90 [overruled on other grounds in People v.

Ewoldt (1994) 7 Cal.4th 380, 401].)

“Sentence choice.” Section 1170(c) requires the judge to state reasons for the sentence choice.

This general requirement is discussed in rule 4.406.

“Imprisonment” in state prison or county jail under section 1170(h) is distinguished from

confinement in other types of facilities.

“Charged” and “found.” Statutes require that the facts giving rise to all enhancements be charged

and found. See section 1170.1(e).

Item (13), see sections 17.5(a)(9) and 3450(b)(9).

Item (15), see section 1229(e).

Rule 4.406. Reasons

(a)

***

(b)

When reasons required

Sentence choices that generally require a statement of a reason include:

(1)

Granting probation;

(2)

Imposing a prison sentence or sentence in county jail under section 1170(h)

and thereby denying probation;

(3)–(8) * * *

(9)

Not committing an eligible defendant to the California Rehabilitation Center;

and

(10) Striking an enhancement or prior conviction allegation under section

1385(a).; and

(11) Denying mandatory supervision in the interests of justice under section

1170(h)(5)(A).

(Subd (b) amended effective January 1, 2017; previously amended effective January 1,

2001, July 1, 2003, January 1, 2006, January 1, 2007, and May 23, 2007.)

Rule 4.406 amended effective January 1, 2017; adopted as rule 406 effective January 1, 1991;

previously amended and renumbered effective January 1, 2001; previously amended effective

July 1, 2003, January 1, 2006, January 1, 2007, and May 23, 2007.

Rule 4.409. Consideration of criteria

***

Advisory Committee Comment

Relevant criteria are those applicable to the facts in the record of the case; not all criteria will be

relevant to each case. The judge’s duty is similar to the duty to consider the probation officer’s

report. Section 1203.

In deeming the sentencing judge to have considered relevant criteria, the rule applies the

presumption of Evidence Code section 664 that official duty has been regularly performed. (See

People v. Moran (1970) 1 Cal.3d 755, 762 ([trial court presumed to have considered referring

eligible defendant to California Youth Authority in absence of any showing to the contrary, citing

Evidence Code section 664)].)

Rule 4.410. General objectives in sentencing

(a)

General objectives of sentencing include:

(1)–(5) * * *

(6)

Securing restitution for the victims of crime; and

(7)

Achieving uniformity in sentencing.; and

(8)

Increasing public safety by reducing recidivism through community-based

corrections programs and evidence-based practices.

(Subd (a) amended effective January 1, 2017; previously amended effective July 1, 2003,

ad January 1, 2007.)

(b)

***

Rule 4.410 amended effective January 1, 2017; adopted as rule 410 effective July 1, 1977;

previously renumbered effective January 1, 2001; previously amended effective July 1, 2003, ND

January 1, 2007.

Advisory Committee Comment

Statutory expressions of policy include:

Welfare and Institutions Code section 1820 et seq., which provides partnership funding for

county juvenile ranches, camps, or forestry camps.

Section 1203(b)(3), which requires that eligible defendants be considered for probation and

authorizes probation if circumstances in mitigation are found or justice would be served.

Section 1170(a)(1), which expresses the policies of uniformity, proportionality of prison terms of

imprisonment to the seriousness of the offense, and the use of imprisonment as punishment.

Sections 17.5, 1228, and 3450, which express the policies promoting reinvestment of criminal

justice resources to support community-based corrections programs and evidence-based practices

to improve public safety through a reduction in recidivism.

Other statutory provisions that prohibit the grant of probation in particular cases.

Rule 4.411.5. Probation officer’s presentence investigation report

(a)

Contents

A probation officer’s presentence investigation report in a felony case must include

at least the following:

(1)–(5) * * *

(6)

Any relevant facts concerning the defendant’s social history, including those

categories enumerated in section 1203.10, organized under appropriate

subheadings, including, whenever applicable, “Family,” “Education,”

“Employment and income,” “Military,” “Medical/psychological,” “Record of

substance abuse or lack thereof,” and any other relevant subheadings. This

includes facts relevant to whether the defendant may be suffering from sexual

trauma, traumatic brain injury, posttraumatic stress disorder, substance abuse,

or mental health problems as a result of his or her U.S. military service.

(7)–(12) * * *

(Subd (a) amended effective January 1, 2017; previously amended effective January 1,

1991, July 1, 2003, January 1, 2007, and January 1, 2015.)

(b)–(c) * * *

Rule 4.411.5 amended effective January 1, 2017; adopted as rule 419 effective July 1, 1981;

previously amended and renumbered as rule 411.5 effective January 1, 1991; previously

renumbered effective January 1, 2001; previously amended effective July 1, 2003 January 1,

2007, and January 1, 2015.

Rule 4.412. Reasons—agreement to punishment as an adequate reason and as

abandonment of certain claims

(a)

***

(b)

Agreement to sentence abandons section 654 claim

By agreeing to a specified term in prison or county jail under section 1170(h) term

personally and by counsel, a defendant who is sentenced to that term or a shorter

one abandons any claim that a component of the sentence violates section 654’s

prohibition of double punishment, unless that claim is asserted at the time the

agreement is recited on the record.

(Subd (b) amended effective January 1, 2017; previously amended effective January 1,

2007.)

Rule 4.412 amended effective January 1, 2017; adopted as rule 412 effective January 1, 1991;

previously amended and renumbered effective January 1, 2001; previously amended effective

January 1, 2007.

Rule 4.414. Criteria affecting probation

Criteria affecting the decision to grant or deny probation include facts relating to the

crime and facts relating to the defendant.

(a)

***

(b)

Facts relating to the defendant

Facts relating to the defendant include:

(1) * * *

(2)

Prior performance and present status on probation, mandatory supervision,

postrelease community supervision, or parole and present probation or parole

status;

(3)–(8) * * *

(Subd (b) amended effective January 1, 2017; previously amended effective January 1,

1991, July 1, 2003, and January 1, 2007.)

Rule 4.414 amended effective January 1, 2017; adopted as rule 414 effective July 1, 1977;

previously renumbered effective January 1, 2001; previously amended effective January 1, 1991,

July 1, 2003, and January 1, 2007.

Advisory Committee Comment

The sentencing judge’s discretion to grant probation is unaffected by the Uniform Determinate

Sentencing Act (section § 1170(a)(3)).

The decision whether to grant probation is normally based on an overall evaluation of the

likelihood that the defendant will live successfully in the general community. Each criterion

points to evidence that the likelihood of success is great or small. A single criterion will rarely be

determinative; in most cases, the sentencing judge will have to balance favorable and unfavorable

facts.

Under criteria (b)(3) and (b)(4), it is appropriate to consider the defendant’s expressions of

willingness to comply and his or her apparent sincerity, and whether the defendant’s home and

work environment and primary associates will be supportive of the defendant’s efforts to comply

with the terms of probation, among other factors.

Rule 4.415. Criteria affecting the imposition of mandatory supervision

(a)

Presumption

Except where the defendant is statutorily ineligible for suspension of any part of the

sentence, when imposing a term of imprisonment in county jail under section

1170(h), the court must suspend execution of a concluding portion of the term to be

served as a period of mandatory supervision unless the court finds, in the interests

of justice, that mandatory supervision is not appropriate in a particular case.

Because section 1170(h)(5)(A) establishes a statutory presumption in favor of the

imposition of a period of mandatory supervision in all applicable cases, denials of a

period of mandatory supervision should be limited.

(Subd (a) amended effective January 1, 2017.)

(b)–(d) * * *

Rule 4.415 amended effective January 1, 2017; adopted effective January 1, 2015.

Advisory Committee Comment

Penal Code section 1170.3 requires the Judicial Council to adopt rules of court that prescribe

criteria for the consideration of the court at the time of sentencing regarding the court’s decision

to “[d]eny a period of mandatory supervision in the interests of justice under paragraph (5) of

subdivision (h) of Section 1170 or determine the appropriate period of and conditions of

mandatory supervision.”

Subdivision (a). Penal Code section 1170(h)(5)(A): “Unless the court finds, in the interests of

justice, that it is not appropriate in a particular case, the court, when imposing a sentence pursuant

to paragraph (1) or (2) of this subdivision, shall suspend execution of a concluding portion of the

term for a period selected at the court’s discretion.” Under People v. Borynack (2015) 238

Cal.App.4th 958, review denied, courts may not impose mandatory supervision when the

defendant is statutorily ineligible for a suspension of part of the sentence.

Subdivisions (b)(3), (b)(4), and (c)(3). * * *

Subdivision (c)(7). * * *

Rule 4.420. Selection of term of imprisonment

(a)

***

(b)

In exercising his or her discretion in selecting one of the three authorized prison

terms of imprisonment referred to in section 1170(b), the sentencing judge may

consider circumstances in aggravation or mitigation, and any other factor

reasonably related to the sentencing decision. The relevant circumstances may be

obtained from the case record, the probation officer’s report, other reports and

statements properly received, statements in aggravation or mitigation, and any

evidence introduced at the sentencing hearing.

(Subd (b) amended effective January 1, 2017; previously amended effective July 28, 1977,

January 1, 1991, January 1, 2007, May 23, 2007, and January 1, 2008.)

(c)-(d) * * *

(e)

The reasons for selecting one of the three authorized prison terms of imprisonment

referred to in section 1170(b) must be stated orally on the record.

(Subd (e) amended effective January 1, 2017; previously amended and relettered effective

January 1, 1991; previously amended effective July 28, 1977, January 1, 2007, and May

23, 2007.)

Rule 4.420 amended effective January 1, 2017; adopted as rule 439 effective July 1, 1977;

previously amended and renumbered as rule 420 effective January 1, 1991; previously

renumbered effective January 1, 2001; previously amended effective July 28, 1977, January 1,

2007, May 23, 2007, and January 1, 2008.

Advisory Committee Comment

The determinate sentencing law authorizes the court to select any of the three possible prison

terms of imprisonment even though neither party has requested a particular term by formal

motion or informal argument. Section 1170(b) vests the court with discretion to impose any of the

three authorized prison terms of imprisonment and requires that the court state on the record the

reasons for imposing that term.

It is not clear whether the reasons stated by the judge for selecting a particular term qualify as

“facts” for the purposes of the rule prohibition on dual use of facts. Until the issue is clarified,

judges should avoid the use of reasons that may constitute an impermissible dual use of facts. For

example, the court is not permitted to use a reason to impose a greater term if that reason also is

either (1) the same as an enhancement that will be imposed, or (2) an element of the crime. The

court should not use the same reason to impose a consecutive sentence as to impose an upper

term of imprisonment. (People v. Avalos (1984) 37 Cal.3d 216, 233.) It is not improper to use the

same reason to deny probation and to impose the upper term. (People v. Bowen (1992) 11

Cal.App.4th 102, 106.)

The rule makes it clear that a fact charged and found as an enhancement may, in the alternative,

be used as a factor in aggravation.

People v. Riolo (1983) 33 Cal.3d 223, 227 (and note 5 on 227) held that section 1170.1(a) does

not require the judgment to state the base term (upper, middle, or lower) and enhancements,

computed independently, on counts that are subject to automatic reduction under the one-third

formula of section 1170.1(a).

Even when sentencing is under section 1170.1, however, it is essential to determine the base term

and specific enhancements for each count independently, in order to know which is the principal

term count. The principal term count must be determined before any calculation is made using the

one-third formula for subordinate terms.

In addition, the base term (upper, middle, or lower) for each count must be determined to arrive at

an informed decision whether to make terms consecutive or concurrent; and the base term for

each count must be stated in the judgment when sentences are concurrent or are fully consecutive

(i.e., not subject to the one-third rule of section 1170.1(a)).

Rule 4.421. Circumstances in aggravation

Circumstances in aggravation include factors relating to the crime and factors relating to

the defendant.

(a)

***

(b)

Factors relating to the defendant

Factors relating to the defendant include that:

(1)–(2) * * *

(3)

The defendant has served a prior term in prison or county jail under section

1170(h) term;

(4)

The defendant was on probation, mandatory supervision, postrelease

community supervision, or parole when the crime was committed; and

(5)

The defendant’s prior performance on probation, mandatory supervision,

postrelease community supervision, or parole was unsatisfactory.

(Subd (b) amended effective January 1, 2017; previously amended effective January 1,

1991, January 1, 2007, and May 23, 2007.)

(c)

***

Rule 4.421 amended effective January 1, 2017; adopted as rule 421 effective July 1, 1977;

previously renumbered effective January 1, 2001; previously amended effective January 1, 1991,

January 1, 2007, and May 23, 2007.

Advisory Committee Comment

Circumstances in aggravation may justify imposition of the upper of three possible prison terms

of imprisonment. (Section 1170(b).)

The list of circumstances in aggravation includes some facts that, if charged and found, may be

used to enhance the sentence. The rule does not deal with the dual use of the facts; the statutory

prohibition against dual use is included, in part, in rule 4.420.

Conversely, such facts as infliction of bodily harm, being armed with or using a weapon, and a

taking or loss of great value may be circumstances in aggravation even if not meeting the

statutory definitions for enhancements.

Facts concerning the defendant’s prior record and personal history may be considered. By

providing that the defendant’s prior record and simultaneous convictions of other offenses may

not be used both for enhancement and in aggravation, section 1170(b) indicates that these and

other facts extrinsic to the commission of the crime may be considered in aggravation in

appropriate cases. This resolves whatever ambiguity may arise from the phrase “circumstances in

aggravation . . . of the crime.” The phrase “circumstances in aggravation or mitigation of the

crime” necessarily alludes to extrinsic facts.

Refusal to consider the personal characteristics of the defendant in imposing sentence would also

raise serious constitutional questions. The California Supreme Court has held that sentencing

decisions must take into account “the nature of the offense and/or the offender, with particular

regard to the degree of danger both present to society.” In re Rodriguez (1975) 14 Cal.3d 639,

654, quoting In re Lynch (1972) 8 Cal.3d 410, 425. In In re Rodriguez the court released

petitioner from further incarceration because “[I]t appears that neither the circumstances of his

offense nor his personal characteristics establish a danger to society sufficient to justify such a

prolonged period of imprisonment.” (Id. at 655.) (Footnote omitted, emphasis added.) “For the

determination of sentences, justice generally requires . . . that there be taken into account the

circumstances of the offense together with the character and propensities of the offender.”

(Pennsylvania v. Ashe (1937) 302 U.S. 51, 55, quoted with approval in Gregg v. Georgia (1976)

428 U.S. 153, 189.)

The scope of “circumstances in aggravation or mitigation” under section 1170(b) is, therefore,

coextensive with the scope of inquiry under the similar phrase in section 1203.

The 1990 amendments to this rule and the comment included the deletion of most section

numbers. These changes recognize changing statutory section numbers and the fact that there are

numerous additional code sections related to the rule, including numerous statutory enhancements

enacted since the rule was originally adopted.

Former subdivision (a)(4), concerning multiple victims, was deleted to avoid confusion; cases in

which that possible circumstance in aggravation was relied on were frequently reversed on appeal

because there was only a single victim in a particular count.

Old age or youth of the victim may be circumstances in aggravation; see section 1170.85(b).

Other statutory circumstances in aggravation are listed, for example, in sections 422.76, 1170.7,

1170.71, 1170.75, 1170.8, and 1170.85.

Rule 4.423. Circumstances in mitigation

Circumstances in mitigation include factors relating to the crime and factors relating to

the defendant.

(a)

***

(b)

Factors relating to the defendant

Factors relating to the defendant include that:

(1)–(5) * * *

(6)

The defendant’s prior performance on probation, mandatory supervision,

postrelease community supervision, or parole was satisfactory.

(Subd (b) amended effective January 1, 2017; previously amended effective January 1,

1991, January 1, 2007, and May 23, 2007.)

Rule 4.423 amended effective January 1, 2017; adopted as rule 423 effective July 1, 1977;

previously renumbered effective January 1, 2001; previously amended effective January 1, 1991,

July 1, 1993, January 1, 2007, and May 23, 2007.

Rule 4.425. Criteria affecting concurrent or consecutive sentences

Criteria affecting the decision to impose consecutive rather than concurrent sentences

include:

(a)

***

(b)

Other criteria and limitations

Any circumstances in aggravation or mitigation may be considered in deciding

whether to impose consecutive rather than concurrent sentences, except:

(1)

***

(2)

A fact used to otherwise enhance the defendant’s sentence in prison or county

jail under section 1170(h) sentence; and

(3)

***

(Subd (b) amended effective January 1, 2017; previously amended effective January 1,

1991, and January 1, 2007.)

Rule 4.425 amended effective January 1, 2017; adopted as rule 425 effective July 1, 1977;

previously renumbered effective January 1, 2001; previously amended effective January 1, 1991,

and January 1, 2007.

Rule 4.427. Hate crimes

(a)

***

(b)

Felony sentencing under section 422.7

If one of the three factors listed in section 422.7 is pled and proved, a misdemeanor

conviction that constitutes a hate crime under section 422.55 may be sentenced as a

felony. The punishment is imprisonment in state prison or county jail under section

1170(h) as provided by section 422.7.

(Subd (b) amended effective January 1, 2017.)

(c)–(e) * * *

Rule 4.427 amended effective January 1, 2017; adopted effective January 1, 2007.

Rule 4.431. Proceedings at sentencing to be reported

***

Advisory Committee Comment

Reporters’ transcripts of the sentencing proceedings are required on appeal (rule 8.420 8.320,

except in certain cases under subdivision (d) of that rule), and when the defendant is sentenced to

prison (section 1203.01).

Rule 4.433. Matters to be considered at time set for sentencing

(a)

In every case, at the time set for sentencing under section 1191, the sentencing

judge must hold a hearing at which the judge must:

(1)

Hear and determine any matters raised by the defendant under section 1201;

and

(2)

Determine whether a defendant who is eligible for probation should be

granted or denied probation, unless consideration of probation is expressly

waived by the defendant personally and by counsel.; and

(3)

Determine whether to deny a period of mandatory supervision in the interests

of justice under section 1170(h)(5)(A).

(Subd (a) amended effective January 1, 2017; previously amended effective January 1,

2007.)

(b)

If the imposition of a sentence is to be suspended during a period of probation after

a conviction by trial, the trial judge must identify and state circumstances that

would justify imposition of one of the three authorized prison terms of

imprisonment referred to in section 1170(b) if probation is later revoked. The

circumstances identified and stated by the judge must be based on evidence

admitted at the trial or other circumstances properly considered under rule 4.420(b).

(Subd (b) amended effective January 1, 2017; previously amended effective July 28, 1977,

January 1, 2007, May 23, 2007, and January 1, 2008.)

(c)

If a sentence of imprisonment is to be imposed, or if the execution of a sentence of

imprisonment is to be suspended during a period of probation, the sentencing judge

must:

(1)

Determine, under section 1170(b), whether to impose one of the three

authorized prison terms of imprisonment referred to in section 1170(b) and

state on the record the reasons for imposing that term.;

(2)–(5) * * *

(Subd (c) amended effective January 1, 2017; previously amended effective July 28, 1977,

July 1, 2003, January 1, 2007, and May 23, 2007.)

(d)

***

(e)

When a sentence of imprisonment is imposed under (c) or under rule 4.435, the

sentencing judge must inform the defendant,:

(1)

Under section 1170(c), of the parole period provided by section 3000 to be

served after expiration of the sentence, in addition to any period of

incarceration for parole violation.;

(2)

Of the period of postrelease community supervision provided by section 3456

to be served after expiration of the sentence, in addition to any period of

incarceration for a violation of postrelease community supervision; or

(3)

Of any period of mandatory supervision imposed under section

1170(h)(5)(A), (B), in addition to any period of imprisonment for a violation

of mandatory supervision.

(Subd (e) amended effective January 1, 2017; previously amended effective July 28, 1977,

January 1, 1979, July 1, 2003, and January 1, 2007.)

Rule 4.433 amended effective January 1, 2017; adopted as rule 433 effective July 1, 1977;

previously renumbered effective January 1, 2001; previously amended effective July 28, 1977,

January 1, 1979, July 1, 2003, January 1, 2007, May 23, 2007, and January 1, 2008.

Advisory Committee Comment

This rule summarizes the questions that the court is required to consider at the time of sentencing,

in their logical order.

Subdivision (a)(2) makes it clear that probation should be considered in every case, without the

necessity of any application, unless the defendant is statutorily ineligible for probation.

Under subdivision (b), when imposition of sentence is to be suspended, the sentencing judge is

not to make any determinations as to possible length of a prison term of imprisonment on

violation of probation (section 1170(b)). If there was a trial, however, the judge must state on the

record the circumstances that would justify imposition of one of the three authorized prison terms

of imprisonment based on the trial evidence.

Subdivision (d) makes it clear that all sentencing matters should be disposed of at a single hearing

unless strong reasons exist for a continuance.

Rule 4.435. Sentencing on revocation of probation

(a)

***

(b)

On revocation and termination of probation under section 1203.2, when the

sentencing judge determines that the defendant will be committed to prison or

county jail under section 1170(h):

(1)

***

(2)

If the execution of sentence was previously suspended, the judge must order

that the judgment previously pronounced be in full force and effect and that

the defendant be committed to the custody of the Secretary of the Department

of Corrections and Rehabilitation or local county correctional administrator

or sheriff for the term prescribed in that judgment.

(Subd (b) amended effective January 1, 2017; previously amended effective July 1, 2003,

January 1, 2006, and January 1, 2007.)

Rule 4.435 amended effective January 1, 2017; adopted as rule 435 effective July 1, 1977;

previously renumbered effective January 1, 2001; previously amended effective January 1, 1991,

July 1, 2003, January 1, 2006, and January 1, 2007.

Advisory Committee Comment

Subdivision (a) makes it clear that there is no change in the court’s power, on finding cause to

revoke and terminate probation under section 1203.2(a), to continue the defendant on probation.

The restriction of subdivision (b)(1) is based on In re Rodriguez (1975) 14 Cal.3d 639, 652:

“[T]he primary term must reflect the circumstances existing at the time of the offense.”

A judge imposing a prison sentence imprisonment on revocation of probation will have the power

granted by section 1170(d) to recall the commitment on his or her own motion within 120 days

after the date of commitment, and the power under section 1203.2(e) to set aside the revocation of

probation, for good cause, within 30 days after the court has notice that execution of the sentence

has commenced.

Consideration of conduct occurring after the granting of probation should be distinguished from

consideration of preprobation conduct that is discovered after the granting of an order of

probation and before sentencing following a revocation and termination of probation. If the

preprobation conduct affects or nullifies a determination made at the time probation was granted,

the preprobation conduct may properly be considered at sentencing following revocation and

termination of probation. (See People v. Griffith (1984) 153 Cal.App.3d 796, 801.)

Rule 4.452. Determinate sentence consecutive to prior determinate sentence

If a determinate sentence is imposed under section 1170.1(a) consecutive to one or more

determinate sentences imposed previously in the same court or in other courts, the court

in the current case must pronounce a single aggregate term, as defined in section

1170.1(a), stating the result of combining the previous and current sentences. In those

situations:

(1)–(2) * * *

(3)

Discretionary decisions of the judges in the previous cases may not be changed by

the judge in the current case. Such decisions include the decision to impose one of

the three authorized prison terms of imprisonment referred to in section 1170(b),

making counts in prior cases concurrent with or consecutive to each other, or the

decision that circumstances in mitigation or in the furtherance of justice justified

striking the punishment for an enhancement.

Rule 4.452 amended effective January 1, 2017; adopted as rule 452 effective January 1, 1991;

previously renumbered effective January 1, 2001; previously amended effective July 1, 2003,

January 1, 2007, and May 23, 2007.

Rule 4.472. Determination of presentence custody time credit

At the time of sentencing, the court must cause to be recorded on the judgment or

commitment the total time in custody to be credited on the sentence under sections

2900.5, 2933.1(c), and 2933.2(c), and 4019. On referral of the defendant to the probation

officer for an investigation and report under section 1203(b) or 1203(g), or on setting a

date for sentencing in the absence of a referral, the court must direct the sheriff, probation

officer, or other appropriate person to report to the court and notify the defendant or

defense counsel and prosecuting attorney within a reasonable time before the date set for

sentencing as to the number of days that defendant has been in custody and for which he

or she may be entitled to credit. Any challenges to the report must be heard at the time of

sentencing.

Rule 4.472 amended effective January 1, 2017; adopted as rule 252 effective January 1, 1977;

previously amended and renumbered as rule 472 effective January 1, 1991, and as rule 4.472

effective January 1, 2001; previously amended effective July 1, 2003, and January 1, 2007.

Rule 4.480. Judge’s statement under section 1203.01

A sentencing judge’s statement of his or her views under section 1203.01 respecting a

person sentenced to the Department of Corrections and Rehabilitation, Division of Adult

Operations is required only in the event that no probation report is filed. Even though it is

not required, however, a statement should be submitted by the judge in any case in which

he or she believes that the correctional handling and the determination of term and parole

should be influenced by information not contained in other court records.

The purpose of a section 1203.01 statement is to provide assistance to the Department of

Corrections and Rehabilitation, Division of Adult Operations in its programming and

institutional assignment and to the Board of Parole Hearings with reference to term fixing

and parole release of persons sentenced indeterminately, and parole and postrelease

community supervision waiver of persons sentenced determinately. It may amplify any

reasons for the sentence that may bear on a possible suggestion by the Secretary of the

Department of Corrections and Rehabilitation or the Board of Parole Hearings that the

sentence and commitment be recalled and the defendant be resentenced. To be of

maximum assistance to these agencies, a judge’s statements should contain

individualized comments concerning the convicted offender, any special circumstances

that led to a prison sentence rather than local incarceration, and any other significant

information that might not readily be available in any of the accompanying official

records and reports.

If a section 1203.01 statement is prepared, it should be submitted no later than two weeks

after sentencing so that it may be included in the official Department of Corrections and

Rehabilitation, Division of Adult Operations case summary that is prepared during the

time the offender is being processed at the Reception-Guidance Center of the Department

of Corrections and Rehabilitation, Division of Adult Operations.

Rule 4.480 amended effective January 1, 2017; adopted as section 12 of the Standards of Judicial

Administration effective January 1, 1973; previously amended and renumbered as rule 4.480

effective January 1, 2001; previously amended effective July 1, 1978, July 1, 2003, January 1,

2006, and January 1, 2007.

Rule 4.530. Intercounty transfer of probation and mandatory supervision cases

(a)–(f) * * *

(g)

Transfer

(1)–(2) * * *

(3)

Transfer is effective the date the transferring court orders the transfer. Upon

transfer of the case, the receiving court must accept the entire jurisdiction

over the case.

(4)

***

(5)

Upon transfer of the case, tThe transferring court must transmit any records

of payments and the entire original court file, except exhibits, to the receiving

court within two weeks of the transfer order in all cases in which the

supervisee is the sole defendant, except the transferring court shall not

transfer (A) exhibits or (B) any records of payments. If transfer is ordered in

a case involving more than one defendant, the transferring court must

transmit certified copies of the entire original court file, except exhibits and

any records of payments, to the receiving court upon transfer of the case.

(6)

Upon transfer tThe probation officer of the transferring county must transmit,

at a minimum, any court orders, probation or mandatory supervision reports,

and case plans, and all records of payments to the probation officer of the

receiving county within two weeks of the transfer order.

(7)

***

(Subd (g) amended effective January 1, 2017; previously amended effective November 1,

2012.)

(h)

Court-ordered debt

(1)

(2)

In accordance with Penal Code section 1203.9(d) and (e):

(A)

If the transferring court has ordered the defendant to pay fines, fees,

forfeitures, penalties, assessments, or restitution, the transfer order must

require that those and any other amounts ordered by the transferring

court that are still unpaid at the time of transfer be paid by the

defendant to the collection program for the transferring court for proper

distribution and accounting once collected.

(B)

The receiving court and receiving county probation department may

impose additional local fees and costs as authorized.

(C)

Upon approval of a transferring court, a receiving court may elect to

collect all of the court-ordered payments from a defendant attributable

to the case under which the defendant is being supervised.

Policies and procedures for implementation of the collection, accounting, and

disbursement of court-ordered debt under this rule must be consistent with

Judicial Council fiscal procedures available at www.courts.ca.gov.

(Subd (h) adopted effective January 1, 2017.)

Rule 4.530 amended effective January 1, 2017; adopted effective July 1, 2010; previously

amended effective November 1, 2012, and February 20, 2014.

Advisory Committee Comment

Subdivision (g)(5) requires the transferring court to transmit the entire original court file, except

exhibits and any records of payments, to the court of the receiving county in all cases in which

the supervisee is the sole defendant. Before transmitting the entire original court file, transferring

courts should consider retaining copies of the court file in the event of an appeal or a writ. In

cases involving more than one defendant, subdivision (g)(5) requires the transferring court to

transmit certified copies of the entire original court file to ensure that transferring courts are able

to properly adjudicate any pending or future codefendant proceedings. Only documents related to

the transferring defendant must be transmitted to the receiving court.

Subdivision (g)(7) clarifies that any jail sentence imposed as a condition of probation or

mandatory supervision before transfer must be served in the transferring county unless otherwise

authorized by law. For example, Penal Code section 1208.5 authorizes the boards of supervisors

of two or more counties with work furlough programs to enter into agreements to allow workfurlough-eligible persons sentenced to or imprisoned in one county jail to transfer to another

county jail.

Subdivision (h) requires defendants still owing fines, fees, forfeitures, penalties, assessments, or

restitution to pay the transferring court’s collection program. In counties where the county

probation department collects this court-ordered debt, the term “collection program” is intended

to include the county probation department.

Rule 5.66. Proof of service

(a)

Requirements to file proof of service

Parties must file with the court a completed form to prove that the other party

received the petition or complaint or response to petition or complaint.

(Subd (a) amended and lettered effective January 1, 2017; adopted as unlettered subd.)

(b)

Methods of proof of service

(1)

The proof of service of summons may be on a form approved by the Judicial

Council or a document or pleading containing the same information required

in Proof of Service of Summons (form FL-115).

(2)

The proof of service of response to petition or complaint may be on a form

approved by the Judicial Council or a document or pleading containing the

same information required in Proof of Service by Mail (form FL-335) or,

Proof of Personal Service (form FL-330), or Proof of Electronic Service

(form POS-050/EFS-050).

(Subd (b) amended and lettered effective January 1, 2017; adopted as unlettered subd.)

Rule 5.66 amended effective January 1, 2017; adopted effective January 1, 2013.

Rule 5.504. Judicial Council forms

(a)–(b) * * *

(c)

Implementation of new and revised mandatory forms

To help implement mandatory Judicial Council juvenile forms:

(1)

***

(2)

Until January 1, 20179, a court may produce court orders in any form or

format as long as:

(A)–(D) * * *

(Subd (c) amended effective January 1, 2017; adopted effective January 1, 2006;

previously amended effective January 1, 2007, and January 1, 2012.)

Rule 5.504 amended effective January 1, 2017; adopted as rule 1402 effective January 1, 1991;

previously amended and renumbered effective January 1, 2007; previously amended effective

July 1, 1991, January 1, 1992, July 1, 1992, January 1, 1993, January 1, 1994, January 1, 1998,

January 1, 2001, January 1, 2006, July 1, 2006, and January 1, 2012.

Rule 5.324. Telephone appearance in title IV-D hearings and conferences

(a)–(c) * * *

(d)

Exceptions

A telephone appearance is not permitted for any of the following except as

permitted by Family Code section 5700.3164930:

(1)–(2) * * *

(Subd (d) amended effective January 1, 2017; previously amended effective January 1,

2008.)

(e)–(k) * * *

Rule 5.324 amended effective January 1, 2017; adopted effective July 1, 2005; previously

amended effective January 1, 2007, January 1, 2008, July 1, 2008, July 1, 2011, and January 1,

2014.

Rule 5.380. Agreement and judgment of parentage in Domestic Violence Prevention

Act cases

(a)–(b)

(c)

***

Notice of Entry of Judgment

When an Agreement and Judgment of Parentage (form DV-180) is filed, the court

must mail serve a Notice of Entry of Judgment (form FL-190) on the parties.

(Subd (c) amended effective January 1, 2017.)

Rule 5.380 amended effective January 1, 2017; adopted effective January 1, 2012.

Rule 5.390. Bifurcation of issues

(a)–(d)

(e)

***

Notice by clerk

Within 10 days after the order deciding the bifurcated issue and any statement of

decision under rule 3.1591 have been filed, the clerk must mail serve copies to the

parties and file a certificate of mailing or a certificate of electronic service.

(Subd (e) amended effective January 1, 2017.)

Rule 5.390 amended effective January 1, 2017; adopted effective January 1, 2013.

Rule 5.392. Interlocutory appeals

(a)

***

(b)

Certificate of probable cause for appeal

(1)

***

(2)

If it was not in the order, within 10 days after the clerk mails serves the order

deciding the bifurcated issue, a party may notice a motion asking the court to

certify that there is probable cause for immediate appellate review of the

order. The motion must be heard within 30 days after the order deciding the

bifurcated issue is mailed served.

(3)

The clerk must promptly mail serve notice of the decision on the motion to

the parties. If the motion is not determined within 40 days after mailing of

serving the order on the bifurcated issue, it is deemed granted on the grounds

stated in the motion.

(Subd (b) amended effective January 1, 2017; previously amended effective January 1,

2002, and January 1, 2003.)

(c)

***

(d)

Motion to appeal

(1)

If the certificate is granted, a party may, within 15 days after the mailing of

court serves the notice of the order granting it, serve and file in the Court of

Appeal a motion to appeal the decision on the bifurcated issue. On ex parte

application served and filed within 15 days, the Court of Appeal or the trial

court may extend the time for filing the motion to appeal by not more than an

additional 20 days.

(2)–(6) * * *

(Subd (d) amended effective January 1, 2017; previously amended effective January 1,

2002, January 1, 2003, and January 1, 2007.)

(e)

***

(f)

Proceedings if motion to appeal is granted

(1)

***

(2)

The partial record filed with the motion will be considered the record for the

appeal unless, within 10 days from the date notice of the grant of the motion

is mailed served, a party notifies the Court of Appeal of additional portions of

the record that are needed for the full consideration of the appeal.

(3)–(4) * * *

(Subd (f) amended effective January 1, 2017; previously amended effective January 1,

2002, January 1, 2003, and January 1, 2007.)

(g)–(h) * * *

Rule 5.392 renumbered effective January 1, 2017; adopted as rule 1269.5 effective July 1, 1989;

previously amended and renumbered as rule 5.180 effective January 1, 2003; previously

amended effective January 1, 1994, January 1, 2002, January 1, 2007, and January 1, 2013.

Rule 5.534. General provisions—all proceedings

(a)

Control of proceedings (§§ 350, 680)

The court must control all proceedings with a view to quickly and effectively

ascertaining the jurisdictional facts and all information relevant to the present

condition and welfare of the child.

(b)

Conduct of proceedings (§§ 350, 680)

Unless there is a contested issue of fact or law, the proceedings must be conducted

in a nonadversarial atmosphere.

(c)

Testimony of child in chambers (§ 350)

In a hearing under section 300 et seq., a child may testify in chambers and outside

the presence of the child’s parent or guardian if the parent or guardian is

represented by counsel who is present, subject to the right of the parent or guardian

to have the court reporter read back the child’s testimony, and if the court

determines, based on the petitioner’s report or other offers of proof or other

evidence, that any of the following circumstances exist:

(1)

Testimony in chambers is necessary to ensure truthful testimony;

(2)

The child is likely to be intimidated by a formal courtroom setting; or

(3)

The child is afraid to testify in front of the parent or guardian.

(d)

Burden of proof (§§ 350, 701.1)

Meeting the burden of proof:

(1)

In any hearing under section 300 in which the county welfare agency has the

burden of proof, the court may consider whether the burden of proof has been

met only after completion of the agency’s case and the presentation of any

material evidence offered by the child. The court may then, on motion of any

party or on the court’s own motion, order whatever action the law requires if

the court, based on all the evidence then before it, finds that the burden of

proof has not been met.

(2)

In any hearing under section 601 or 602, after the completion of the

petitioner’s case, the court may, on the motion of any party or on the court’s

own motion, order whatever action the law requires if the court, based on all

the evidence then before it, finds that the burden of proof has not been met.

(e)(a) * * *

(Subd (a) relettered effective January 1, 2017; adopted as subd (e); previously amended

effective January 1, 2007, and January 1, 2014.)

(f)(b) * * *

(Subd (b) relettered effective January 1, 2017; adopted as subd (f); previously amended

effective January 1, 2007, January 1, 2011, and January 1, 2014.)

(g)(c) * * *

(Subd (c) relettered effective January 1, 2017; adopted as subd (g); previously amended

effective July 1, 2002, January 1, 2007, and January 1, 2014.)

(h)(d) * * *

(Subd (d) relettered effective January 1, 2017; adopted as subd (h); previously amended

effective July 1, 2002, January 1, 2007, and January 1, 2014.)

(i)(e) * * *

(Subd (e) relettered effective January 1, 2017; adopted as subd (i) effective January 1,

1997; previously amended effective July 1, 2002, and January 1, 2007.)

(j)(f) * * *

(Subd (f) relettered effective January 1, 2017; adopted as subd (j) effective January 1,

2008; previously amended effective January 1, 2014.)

(k)(g) Advisement of hearing rights (§§ 301, 311, 341, 630, 702.5, 827)

(1)

The court must advise the child, parent, and guardian in section 300 cases,

and the child in section 601 or section 602 cases, of the following rights:

(A)

Any The right to assert the privilege against self-incrimination;

(B)–(D) * * *

(2)–(3) * * *

(Subd (g) amended and relettered effective January 1, 2017; adopted as subd (i);

previously amended effective July 1, 2002, and January 1, 2007; previously relettered as

subd (j) effective January 1, 1997, and as subd (k) effective January 1, 2008.

(l)(h) * * *

(Subd (h) relettered effective January 1, 2017; adopted as subd (j); previously amended

effective July 1, 2002, and January 1, 2007; previously relettered as subd (k) effective

January 1, 1997, and as subd (l) effective January 1, 2008.)

(m)(i) * * *

(Subd (i) relettered effective January 1, 2017; adopted as subd (k) effective January 1,

1994; previously relettered as subd (l) effective January 1, 1997; previously relettered as

subd (m) effective January 1, 2008; previously amended effective July 1, 2002, January 1,

2007, and July 1, 2016.)

(n)(j) * * *

(Subd (j) relettered effective January 1, 2017; adopted as subd (m) effective October 1,

2007; previously relettered as subd (n) effective January 1, 2008; previously amended

effective January 1, 2016.)

(o)

Periodic reports (§ 365)

The court may require the petitioner or any other agency to submit reports

concerning a child or youth subject to the jurisdiction of the court.

(p)

Presence of child (§ 349)

(1)

A child who is the subject of a juvenile court hearing is entitled to be present

at the hearing. If the child is present at the hearing, the court must allow the

child, if the child so desires, to address the court and participate in the

hearing.

(2)

If the child is 10 years of age or older and he or she is not present at the

hearing, the court must determine whether the child was properly notified of

his or her right to attend the hearing and ask why the child is not present at

the hearing and whether the child was given an opportunity to attend. If the

court finds that the child was not properly notified or that the child wished to

be present and was not given an opportunity to be present, the court must

continue the hearing to allow the child to attend unless the court finds that it

is in the best interest of the child not to continue the hearing. Any such

continuance must be only for that period of time necessary to provide notice

and secure the presence of the child. The court may issue any and all orders

reasonably necessary to ensure that the child has an opportunity to attend.

Rule 5.534 amended effective January 1, 2017; adopted as rule 1412 effective January 1, 1991;

previously amended and renumbered as rule 5.534 effective January 1, 2007; previously

amended effective January 1, 1994, July 1, 1995, January 1, 1997, January 1, 2000, July 1, 2002,

January 1, 2005, October 1, 2007, January 1, 2008, January 1, 2010, January 1, 2011, January

1, 2014, January 1, 2016, and July 1, 2016.

Advisory Committee Comment

Because the intent of subdivision (n)(j) is to expand access to the courts for caregivers of children

in out-of-home care, the rule should be liberally construed. To promote caregiver participation

and input, judicial officers are encouraged to permit caregivers to orally address the court when

caregivers would like to share information about the child. In addition, court clerks should allow

filings by caregivers even if the caregiver has not strictly adhered to the requirements in the rule

regarding number of copies and filing deadlines.

Rule 5.555. Hearing to consider termination of juvenile court jurisdiction over a

nonminor—dependents or wards of the juvenile court in a foster care

placement and nonminor dependents (§§ 224.1(b), 303, 366.31, 391, 451, 452,

607.2, 607.3, 16501.1(f)(g)(16))

(a)

***

(b)

Setting a hearing

(1)

A court hearing must be placed on the appearance calendar and held

completed before prior to terminating juvenile court jurisdiction is

terminated.

(2)

The hearing under this rule may be held during any regularly scheduled

review hearing or a hearing required on a petition filed under section 366 (g),

366.3, 366.31, 727.2, or 727.3 or rule 5.903 388 or section 778.

(3)

Notice of the hearing must be given as required by section 295.

(4)

Notice of the hearing to the parents of a nonminor dependent as defined in

section 11400(v) is not required, unless the parents are is receiving courtordered family reunification services or the nonminor is living in the home of

the parent or former legal guardian.

(4)(5) * * *

(5)(6) The hearing must be continued for no more than five court days for the

submission of additional information as ordered by the court if the court

determines that the report, the Transitional Independent Living Plan, the

Transitional Independent Living Case Plan, (TILCP) if required, or the 90day Transition Plan submitted by the social worker or probation officer does

not provide the information required by (c) and the court is unable to make

the findings and orders required by (d).

(Subd (b) amended effective January 1, 2017; previously amended effective July 1, 2012,

and January 1, 2014.)

(c)

Reports

(1)

In addition to complying with all other statutory and rule requirements

applicable to the report prepared by the social worker or probation officer for

any hearing during which termination of the court’s jurisdiction will be

considered, The report prepared by the social worker or probation officer for

a hearing under this rule must, in addition to any other elements required by

law, include:

(A)–(C)

(D)

***

Whether the nonminor has applied for title XVI Supplemental Security

Income benefits and, if so, the status of any in-progress that application

pending for title XVI Supplemental Security Income benefits, and

whether remaining under juvenile court jurisdiction until a final

decision has been issued is in the nonminor’s best interests;

(E)

Whether the nonminor has applied for Special Immigrant Juvenile

status or other immigration relief and, if so, the status of any inprogress that application, pending for Special Immigrant Juvenile

Status or other applicable application for legal residency and whether

an active juvenile court case is required for that application;

(F)–(H)

(I)

***

For a nonminor who is not present for the hearing: If the social worker

or probation officer has reason to believe that the nonminor will not

appear at the hearing, documentation of the basis for that belief,

including:

(i)

Documentation of the nonminor’s statement that he or she did

does not wish to appear in court person or by telephone for the

scheduled hearing; or

(ii)

Documentation of the reasonable efforts made to locate find the

nonminor when his or her current location is unknown;

(J)–(K)

***

(2)

The social worker or probation officer must file with the report a completed

Termination of Juvenile Court Jurisdiction—Nonminor (form JV-365).

(3)

The social worker or probation officer must also file with the report the

nonminor’s:

(4)

(A)

***

(B)

Most recent Transitional Independent Living Plan (TILP); and

(C)

***

The social worker’s or probation officer’s report and all documents required

by (c)(2)–(3) must be filed with the court at least 10 calendar days before the

hearing, and the social worker or probation officer must provide copies of the

report and other documents to the nonminor, the nonminor’s parents, and all

attorneys of record. If the nonminor is under juvenile court jurisdiction as a

nonminor dependent, the social worker or probation officer is not required to

provide copies of the report and other documents to the nonminor

dependent’s parents, unless the nonminor dependent’s parents are is receiving

court-ordered family reunification services.

(Subd (c) amended effective January 1, 2017; previously amended effective July 1, 2012,

and January 1, 2014.)

(d)

Findings and orders

In addition to complying with all other statutory and rule requirements applicable

to the hearing, The court must, in addition to any other determinations required by

law, make the following judicial findings and orders must be made and included

them in the written court documentation of the hearing:

(1)

Findings

(A)–(D) * * *

(E)

Whether the nonminor has an in-progress application pending for title

XVI Supplemental Security Income benefits, and if such an application

is pending so, whether it is in the nonminor’s best interests to continue

juvenile court jurisdiction until a final decision has been issued to

ensure that the nonminor receives continued assistance with the

application process;

(F)

Whether the nonminor has an in-progress application pending for

Special Immigrant Juvenile status or other applicable application for

legal residency immigration relief, and whether an active juvenile court

case is required for that application;

(G)–(K) * * *

(L)

Whether the nonminor’s:

(i)

***

(ii)

Transitional Independent Living Plan identifies the nonminor’s

level of functioning, emancipation goals, and the specific skills

he or she needsed to prepare to live independently for

independence and successful adulthood upon leaving foster care;

and

(iii) * * *

(M) For a nonminor who is not present does not appear in person or by

telephone for the hearing, whether the reason for his or her failure to

appear was:

(N)

(2)

(i)

The nonminor’s expressed a wish to not to appear in court for the

scheduled hearing; or

(ii)

The nonminor’s current location remains unknown although and,

if so, whether reasonable efforts were made to locate find the

nonminor.

***

Orders

(A)–(B) * * *

(C)

For a nonminor who does not meet and does not intend to meet the

eligibility requirements for nonminor dependent status but who is

otherwise eligible to and will remain under juvenile court jurisdiction

in a foster care placement, the court must set an appropriate statutory

review hearing under section 366.21, 366.22, 366.25, 366.3, 727.2, or

727.3 within six months of the date of the nonminor’s most recent

status review hearing.

(D)

***

(E)

For a nonminor (1) who does not meet one or more of the eligibility

criteria of section 11403(b) and is not otherwise eligible to remain

under juvenile court jurisdiction, (2) who does or, alternatively, who

meets one or more of the eligibility criteria of section 11403(b) but

either does not wish to remain under the jurisdiction of the juvenile

court as a nonminor dependent, or (3) who does meet one or more of

the eligibility criteria of section 11403(b) but or is not participating in a

reasonable and appropriate Transitional Independent Living Case Plan,

the court may order the termination of juvenile court jurisdiction only

after entering the following findings and orders:

(i)–(ii) * * *

(iii) The nonminor was informed that if juvenile court jurisdiction is

terminated, he or she has the right to file a request to return to

foster care and to file a request to have the juvenile court resume

jurisdiction over him or her as a nonminor dependent until he or

she has attained the age of reached 21 years of age;

(iv)–(vi) * * *

(F)

***

(Subd (d) amended effective January 1, 2017; previously amended effective July 1, 2012,

July 1, 2013, January 1, 2014, and January 1, 2016.)

Rule 5.555 amended effective January 1, 2017; adopted effective January 1, 2012; previously

amended effective July 1, 2012, July 1, 2013, January 1, 2014, and January 1, 2016.

Rule 5.610. Transfer-out hearing

(a)

***

(b)

Verification of residence

The residence of the person entitled to physical custody may be verified by that

person in court or by declaration of a social worker or probation officer in the

transferring or receiving county.

(Subd (b) amended effective January 1, 2017; previously amended effective January 1,

2004, and January 1, 2007.)

(c)–(d) * * *

(e)

Conduct of hearing

(1)

The request for transfer must be made on Motion for Transfer Out (form JV548), which must include all required information.

(2)

After the court determines the identity and residence of the child’s custodian,

the court must consider whether transfer of the case would be in the child’s

best interest. The court may not transfer the case unless it determines that the

transfer will protect or further the child’s best interest.

(Subd (e) amended effective January 1, 2017; repealed and adopted effective January 1,

1990; previously amended effective January 1, 1993, January 1, 2004, and January 1,

2007.)

(f)

Date of transfer-in hearing

(1)

If the transfer-out motion is granted, the sending court must set a date certain

for the transfer-in hearing in the receiving court: within 5 court days of the

transfer-out order if the child is in custody, and within 10 court days of the

transfer-out order if the child is out of custody. The sending court must state

on the record the date, time, and location of the hearing in the receiving court.

(2)

The website for every court must include up-to-date contact information for

the court clerks handling dependency and delinquency matters, as well as upto-date information on when and where transfer-in hearings are held.

(Subd (f) adopted effective January 1, 2017.)

(f)(g) Order of transfer (§§ 377, 752)

The order of transfer must be entered on Juvenile Court Transfer-Out Orders (form

JV-550), which must include all required information and findings.

(Subd (g) amended and relettered effective January 1, 2017; repealed and adopted as subd

(f) effective January 1, 1990; previously amended effective January 1, 1993, January 1,

2004, and January 1, 2007.)

(g)(h) * * *

(Subd (h) relettered January 1, 2017; adopted as subd (g) effective January 1, 2007;

previously amended January 1, 2015.)

(h)(i) Transport of child and transmittal of documents (§§ 377, 752)

(1)

If the child is ordered transported in custody to the receiving county, the child

must be delivered to the receiving county within 7 court days at least two

business days before the transfer-in hearing, and the clerk of the court of the

transferring county must prepare a certified copy of the complete case file so

that it may be transported with the child to the court of the receiving county.

(2)

If the child is not ordered transported in custody, the clerk of the transferring

court must transmit to the clerk of the court of the receiving county within 10

five court days a certified copy of the complete case file.

(3)

The file may be transferred electronically, if possible. A certified copy of the

complete case file is deemed an original.

(Subd (i) amended and relettered effective January 1, 2017; repealed and adopted as subd

(g); previously amended effective January 1, 1992, January 1, 1993, July 1, 1999, and

January 1, 2004; previously amended and relettered as subd (h) effective January 1,

2007.)

(i)(j) * * *

(Subd (j) relettered effective January 1, 2017; repealed and adopted as subd (h);

previously amended effective January 1, 1992, and January 1, 2004; previously amended

and relettered as subd (i) effective January 1, 2007.)

Rule 5.610 amended effective January 1, 2017; adopted as rule 1425 effective January 1, 1990;

previously amended and renumbered effective January 1, 2007; previously amended effective

January 1, 1992, January 1, 1993, July 1, 1999, January 1, 2004, and January 1, 2015.

Advisory Committee Comment

***

Juvenile Court Transfer-Out Orders (form JV-550) was adopted for mandatory use commencing

January 1, 1992. Although the finding regarding the best interest of the child was noted on the

original form, the language has been emphasized on the amended form.

Rule 5.612. Transfer-in hearing

(a)

Procedure on transfer (§§ 378, 753)

(1)

On receipt and filing of a certified copy of a transfer order, the receiving

court must accept jurisdiction of the case. The receiving court may not reject

the case. The clerk of the receiving court must immediately place the

transferred case on the court calendar for a transfer-in hearing confirm the

transfer-in hearing date scheduled by the sending court and ensure that date is

on the receiving court’s calendar. The receiving court must notify the

transferring court on receipt and filing of the certified copies of the transfer

order and complete case file.

(A)

Within two court days after the transfer-out order and documents are

received if the child has been transported in custody and remains

detained; or

(B)

(2)

Within 10 court days after the transfer-out order and documents are

received if the child is not detained in custody.

No requests for additional time for the transfer-in hearing may be approved.

The clerk must immediately cause notice to be given to the child and the

parent or guardian, orally or in writing, of the time and place of the transferin hearing. The receiving court must notify the transferring court on receipt

and filing of the certified copies of the transfer order and complete case file.

(Subd (a) amended effective January 1, 2017; repealed and adopted effective January 1,

1990; previously amended effective January 1, 1992, July 1, 1999, January 1, 2004, and

January 1, 2007.)

(b)–(f) * * *

Rule 5.612 amended effective January 1, 2017; adopted as rule 1426 effective January 1, 1990;

previously amended effective January 1, 1992, July 1, 1999, and January 1, 2004; previously

amended and renumbered as rule 5.612 effective January 1, 2007.

Rule 5.613. Transfer of nonminor dependents

(a)

Purpose

This rule applies to requests to transfer the county of jurisdiction of a nonminor

dependent as allowed by Welfare and Institutions Code section 375. This rule sets

forth the procedures that a court is to follow when it seeks to order a transfer of a

nonminor dependent and those to be followed by the court receiving the transfer.

All other intercounty transfers of juveniles are subject to rules 5.610 and 5.612.

(b)

Transfer-out hearing

(1)

Determination of residence—special rule on intercounty transfers

(§§ 17.1, 375)

(A)

For purposes of this rule, the residence of a nonminor dependent who is

placed in a planned permanent living arrangement may be either the

county in which the court that has jurisdiction over the nonminor is

located or the county in which the nonminor has resided continuously

for at least one year as a nonminor dependent and the nonminor

dependent has expressed his or her intent to remain.

(B)

(2)

If a nonminor dependent’s dependency jurisdiction has been resumed,

or if transition jurisdiction has been assumed or resumed by the

juvenile court that retained general jurisdiction over the nonminor

under section 303, the county that the nonminor dependent is residing

in may be deemed the county of residence of the nonminor dependent.

The court may make this determination if the nonminor has established

a continuous physical presence in the county for one year as a

nonminor and has expressed his or her intent to remain in that county

after the court grants the petition to resume jurisdiction. The period of

continuous physical presence includes any period of continuous

residence immediately before filing the petition.

Verification of residence

The residence of a nonminor may be verified by declaration of a social

worker or probation officer in the transferring or receiving county.

(3)

Transfer to county of nonminor’s residence (§ 375)

If the court is resuming dependency jurisdiction or assuming or resuming

transition jurisdiction of a nonminor for whom the court has retained general

jurisdiction under section 303(b) as a result of a petition filed under section

388(e), after granting the petition, the court may order the transfer of the case

to the juvenile court of the county in which the nonminor is living if the

nonminor establishes residency in that county as provided in (b)(1) and the

court finds that the transfer is in the minor’s best interest.

(4)

Transfer on change in nonminor’s residence (§ 375)

If a nonminor dependent under the dependency or transition jurisdiction of

the court is placed in a planned permanent living arrangement in a county

other than the county with jurisdiction over the nonminor, the court may, on

an application for modification under rule 5.570, transfer the case to the

juvenile court of the county in which the nonminor is living if the nonminor

establishes residency in that county as provided in (b)(1).

(5)

Conduct of hearing

(A)

The request for transfer must be made on Motion for Transfer Out

(form JV-548), which must include all required information.

(B)

After the court determines whether a nonminor has established

residency in another county as required in (b)(1), the court must

consider whether transfer of the case would be in the nonminor’s best

interest. The court may not transfer the case unless it determines that

the nonminor supports the transfer and that the transfer will protect or

further the nonminor’s best interest.

(C)

(6)

If the transfer-out motion is granted, the sending court must set a date

certain for the transfer-in hearing in the receiving court, which must be

within 10 court days of the transfer-out order. The sending court must

state on the record the date, time, and location of the hearing in the

receiving court.

Order of transfer (§ 377)

The order of transfer must be entered on Juvenile Court Transfer-Out

Orders—Nonminor Dependent (form JV-552), which must include all

required information and findings.

(7)

Modification of form JV-552

Juvenile Court Transfer-Out Orders—Nonminor Dependent (form JV-552)

may be modified as follows:

(8)

(A)

Notwithstanding the mandatory use of form JV-552, the form may be

modified for use by a formalized regional collaboration of courts to

facilitate the efficient processing of transfer cases among those courts if

the modification has been approved by the Judicial Council.

(B)

The mandatory form must be used by a regional collaboration when

transferring a case to a court outside the collaboration or when

accepting a transfer from a court outside the collaboration.

Transmittal of documents (§ 377)

The clerk of the transferring court must transmit to the clerk of the court of

the receiving county no later than five court days from the date of the

transfer-out order a certified copy of the entire nonminor file and, at a

minimum, all documents associated with the last status review hearing held

before the nonminor reached majority, including the court report and all

findings and orders. The files may be transferred electronically, if possible. A

certified copy of the complete case file is deemed an original.

(9)

Appeal of transfer order (§ 379)

The order of transfer may be appealed by the transferring or receiving county,

and notice of appeal must be filed in the transferring county, under rule

8.400. Notwithstanding the filing of a notice of appeal, the receiving county

must assume jurisdiction of the case on receipt and filing of the order of

transfer.

(c)

Transfer-in hearing

(1)

Procedure on transfer (§ 378)

On receipt and filing of a certified copy of a transfer order, the receiving

court must accept jurisdiction of the case. The receiving court may not reject

the case. The receiving court must notify the transferring court on receipt and

filing of the certified copies of the transfer order and complete case file. The

clerk of the receiving court must confirm the transfer-in hearing date

scheduled by the sending court and ensure that date is on the receiving

court’s calendar.

(2)

Conduct of hearing

At the transfer-in hearing, the court must:

(3)

(A)

Advise the nonminor of the purpose and scope of the hearing; and

(B)

Provide for the appointment of counsel, if appropriate.

Subsequent proceedings

The proceedings in the receiving court must commence at the same phase as

when the case was transferred. The court may continue the hearing for an

investigation and a report to a date not to exceed 15 court days.

(4)

Setting six-month review (§ 366.31)

When an order of transfer is received and filed relating to a nonminor

dependent, the court must set a date for a six-month review within six months

of the most recent review hearing or, if the sending court transferred the case

immediately after assuming or resuming jurisdiction, within six months of the

date a voluntary reentry agreement was signed.

(5)

Change of circumstances or additional facts (§§ 388, 778)

If the receiving court believes that a change of circumstances or additional

facts indicate that the nonminor does not reside in the receiving county, a

transfer-out hearing must be held under this rule and rule 5.570. The court

may direct the department of social services or the probation department to

seek a modification of orders under section 388 or section 778 and under rule

5.570.

Rule 5.613 adopted effective January 1, 2017.

Rule 5.668. Commencement of hearing—explanation of proceedings (§§ 316, 316.2)

(a)

Commencement of hearing

At the beginning of the initial hearing on the petition, whether the child is detained

or not detained, the court must give advisement as required by rule 5.534 and must

inform each parent and guardian present, and the child, if present:

(1)–(3) * * *

(4)

If the petition is sustained and the child is declared a dependent of the court

and removed from the custody of the parent or guardian, the court-ordered

reunification services must be considered to have been offered or provided on

the date the petition is sustained or 60 days after the child’s initial removal,

whichever is earlier. The time for services must not exceed 12 months for a

child three years of age or older aged three or over at the time of the initial

removal and must not exceed 6 months for a child who was under the age of

three years of age or who is in a sibling group in which one sibling was under

three years of age at the time of the initial removal if the parent or guardian

fails to participate regularly and make substantive progress in any courtordered treatment program.

(Subd (a) amended effective January 1, 2017; adopted effective January 1, 1999;

previously amended effective January 1, 2001, and January 1, 2007.)

(b)

Parentage inquiry

The court must also inquire of the child’s mother and of any other appropriate

person present as to the identity and address of any and all presumed or alleged

parents of the child as set forth in section 316.2. Questions, at the discretion of the

court, may include:

(1)

Has there been a judgment of parentage?

(2)

Was the mother married, or did she believe she was married, at or any time

after the time of conception?

(3)

Was the mother cohabiting at the time of conception?

(4)

Has the mother received support payments or promises of support for the

child or for the mother during her pregnancy?

(5)

Has anyone formally or informally acknowledged parentage, including

through the execution of a voluntary declaration under Family Code section

7571?

(6)

Have tests to determine biological parentage been administered and, if so,

what were the results?

(Subd (b) amended effective January 1, 2017; adopted effective January 1, 1999;

previously amended effective January 1, 2007, and January 1, 2015.)

(c)

***

Rule 5.668 amended effective January 1, 2017; repealed and adopted as rule 1441 effective

January 1, 1998; previously amended and renumbered effective January 1, 2007; previously

amended effective January 1, 1999, January 1, 2001, January 1, 2002, January 1, 2008, and

January 1, 2015.

Rule 5.670. Initial hearing; detention hearings; time limit on custody; setting

jurisdiction hearing; visitation (§§ 309, 311, 313, 315, 362.1)

(a)

***

(b)

Time limit on custody, filing petition, setting hearing (§§ 311, 313)

If the social worker takes the child into custody, the social worker must

immediately file a petition with the clerk of the juvenile court, and the clerk must

immediately set the matter for hearing on the detention hearing calendar. A child

who is detained must be released within 48 hours, excluding noncourt days, unless

a petition has been filed.

(c)

Detention—child in medical facility (§ 309(b))

For purposes of these rules, a child is deemed taken into custody and delivered to

the social worker if the child is under medical care and cannot immediately be

moved and there is reasonable cause to believe the child is described by section

300.

(d)

Detention hearing—time of (§ 315)

Unless the child has been released sooner, the matter concerning a child who is

taken into custody must be brought before the juvenile court for a detention hearing

as soon as possible, but in any event before the end of the next court day after a

petition has been filed. At the detention hearing, the court must determine whether

the child is to continue to be detained in custody. If the detention hearing is not

commenced within that time, the child must be immediately released from custody.

(e)(b) Detention hearing—warrant cases, transfers in, changes in placement

Notwithstanding (c) section 309(b), and unless the child has been released sooner, a

detention hearing must be held as soon as possible, but no later than 48 hours,

excluding noncourt days, after the child arrives at a facility within the county if:

(1)–(3) * * *

At the hearing the court must determine whether the child is to continue to be

detained in custody. If the hearing is not commenced within that time, the child

must be immediately released from custody.

(Subd (b) amended and relettered effective January 1, 2017; adopted as subd (e);

previously amended effective January 1, 2007.)

(f)

Setting jurisdiction hearing (§ 334)

If the child is not detained, the court must set a jurisdiction hearing to be held

within 30 days of the date the petition is filed. If the court orders the child to be

detained, the court must set a jurisdiction hearing within 15 court days of the order

of detention.

(g)(c) * * *

(Subd (c) relettered effective January 1, 2017; adopted as subd (g); previously amended

effective January 1, 2007, and July 1, 2011.)

Rule 5.670 amended effective January 1, 2017; repealed and adopted as rule 1442 effective

January 1, 1998; previously amended and renumbered effective January 1, 2007; previously

amended effective July 1, 2011.

Rule 5.674. Conduct of hearing; admission, no contest, submission

(a)–(b) * * *

(c)

Detention hearing; examination by court (§ 319)

Subject to (d), the court must examine the child’s parent, guardian, or other person

having knowledge relevant to the issue of detention and must receive any relevant

evidence that the petitioner, the child, a parent, a guardian, or counsel for a party

wishes to present.

(d)(c) Detention hearing; rights of child, parent, or guardian (§§ 311, 319)

At the detention hearing, the child, the parent, and the guardian have the right to

assert the privilege against self-incrimination and the right to confront and crossexamine:

(1)

***

(2)

Any person examined by the court under (c) section 319. If the child, parent,

or guardian asserts the right to cross-examine preparers of documents

submitted for court consideration, the court may not consider any such report

or document unless the preparer is made available for cross-examination.

(Subd (c) amended and relettered effective January 1, 2017; adopted as subd (c);

previously amended and relettered as subd (d) effective July 1, 2002; previously amended

effective January 1, 2007.)

(d)

No parent or guardian present and not noticed (§ 321)

If the court orders the child detained at the detention hearing and no parent or

guardian is present and no parent or guardian has received actual notice of the

detention hearing, a parent or guardian may file an affidavit alleging the failure of

notice and requesting a detention rehearing. The clerk must set the rehearing for a

time within 24 hours of the filing of the affidavit, excluding noncourt days. At the

rehearing the court must proceed under rules 5.670–5.678.

(Subd (d) adopted effective January 1, 2017.)

(e)

Hearing for further evidence; prima facie case (§ 321)

If the court orders the child detained, and the child, a parent, a guardian, or counsel

requests that evidence of the prima facie case be presented, the court must set a

prima facie hearing for a time within 3 court days to consider evidence of the prima

facie case or set the matter for jurisdiction hearing within 10 court days. If at the

hearing the petitioner fails to establish the prima facie case, the child must be

released from custody.

(Subd (e) adopted effective January 1, 2017.)

Rule 5.674 amended effective January 1, 2017; repealed and adopted as rule 1444 effective

January 1, 1998; previously amended and renumbered as rule 5.674 effective January 1, 2007;

previously amended effective July 1, 2002, and January 1, 2016.

Rule 5.680. Detention rehearings; prima facie hearings

(a)

No parent or guardian present and not noticed (§ 321)

If the court orders the child detained at the detention hearing and no parent or

guardian is present and no parent or guardian has received actual notice of the

detention hearing, a parent or guardian may file an affidavit alleging the failure of

notice and requesting a detention rehearing. The clerk must set the rehearing for a

time within 24 hours of the filing of the affidavit, excluding noncourt days. At the

rehearing the court must proceed under rules 5.670–5.678.

(b)

Parent or guardian noticed, not present (§ 321)

If the court determines that the parent or guardian received adequate notice of the

detention hearing, and the parent or guardian fails to appear at the hearing, the

request of the parent or guardian for a detention rehearing must be denied absent a

finding that the failure to appear at the hearing was due to good cause.

(c)

Parent or guardian present; preparers available (§ 321)

If a parent or guardian has received notice of the detention hearing, is present at the

hearing, and the preparers of any reports or other documents relied on by the court

in its order detaining the child are present in court or otherwise available for crossexamination, the request for a detention rehearing must be denied.

(d)

Hearing for further evidence; prima facie case (§ 321)

If the court orders the child detained, and the child, a parent, a guardian, or counsel

requests that evidence of the prima facie case be presented, the court must set a

prima facie hearing for a time within 3 court days to consider evidence of the prima

facie case or set the matter for jurisdiction hearing within 10 court days. If at the

hearing petitioner fails to establish the prima facie case, the child must be released

from custody.

Rule 5.680 repealed effective January 1, 2017; repealed and adopted as rule 1447 effective

January 1, 1998; previously amended and renumbered effective January 1, 2007.

Rule 5.682. Commencement of jurisdiction hearing—advisement of trial rights;

admission, no contest, submission

(a)

Petition read and explained (§ 353)

At the beginning of the jurisdiction hearing, the petition must be read to those

present. On request of the child or the parent, guardian, or adult relative, the court

must explain the meaning and contents of the petition and the nature of the hearing,

its procedures, and the possible consequences.

(b)(a) Rights explained (§§ 341, 353, 361.1)

After giving the advisement required by rule 5.534, the court must advise the parent

or guardian of the following rights:

(1)

The right to a hearing by the court on the issues raised by the petition; and

(2)

The right to assert any privilege against self-incrimination;

(3)

The right to confront and to cross-examine all witnesses called to testify;

(4)

The right to use the process of the court to compel attendance of witnesses on

behalf of the parent or guardian; and

(5)(2) * * *

(Subd (a) amended and relettered effective January 1, 2017; adopted as subd (b);

previously amended effective January 1, 2005, and January 1, 2007.)

(c)(b) Admission of allegations; prerequisites to acceptance

The court must then inquire whether the parent or guardian intends to admit or

deny the allegations of the petition. If the parent or guardian neither admits nor

denies the allegations, the court must state on the record that the parent or guardian

does not admit the allegations. If the parent or guardian wishes to admit the

allegations, the court must first find and state on the record that it is satisfied that

the parent or guardian understands the nature of the allegations and the direct

consequences of the admission, and understands and waives the rights in (b) (a) and

(e)(3).

(Subd (b) amended and relettered effective January 1, 2017; adopted as subd (c);

previously amended effective January 1, 2007.)

(d)(c) * * *

(Subd (c) relettered effective January 1, 2017; adopted as subd (d); previously amended

effective January 1, 2007.)

(e)(d) Admission, no contest, submission

The parent or guardian may elect to admit the allegations of the petition, or plead

no contest, or submit the jurisdictional determination to the court based on the

information provided to the court and waive further jurisdictional hearing. The

parent or guardian may elect to submit the jurisdictional determination to the court

based on the information provided to the court and choose whether to waive further

jurisdictional hearing. If the parent or guardian submits to the jurisdictional

determination in writing, Waiver of Rights—Juvenile Dependency (form JV-190)

may must be completed by the parent or guardian and counsel and submitted to the

court.

(Subd (d) amended and relettered effective January 1, 2017; adopted as subd (e);

previously amended effective January 1, 2007.)

(f)(e) Findings of court (§ 356)

After admission, plea of no contest, or submission, the court must make the

following findings noted in the order of the court:

(1)–(6) * * *

(7)

Those allegations of the petition as admitted are true as alleged; or and

(8)

Whether the allegations of the petition as submitted are true as alleged; and

(8)(9) The child is described under by one or more specific subdivisions of section

300.

(Subd (e) amended and relettered effective January 1, 2017; adopted as subd (f);

previously amended effective January 1, 2007.)

(g)(f) Disposition

After accepting an admission, plea of no contest, or submission, the court must

proceed to a disposition hearing under rules 5.686 and 5.690.

(Subd (f) amended and relettered effective January 1, 2017; adopted as subd (g);

previously amended effective January 1, 2007.)

Rule 5.682 amended effective January 1, 2017; adopted as rule 1449 effective January 1, 1991;

previously amended effective January 1, 2005; amended and renumbered as rule 5.692 effective

January 1, 2007.

Rule 5.684. Contested hearing on petition

(a)

***

(b)

Admissibility of evidence—general (§§ 355, 355.1)

Except as provided in sections 355(c) and 355.1 and (c), (d), and (e) (d) of this rule,

the admission and exclusion of evidence must be in accordance with the Evidence

Code as it applies to civil cases.

(Subd (b) amended effective January 1, 2017; previously amended effective July 1, 1997,

and January 1, 2007.)

(c)

Reports

(1)

A social study, with hearsay evidence contained in it, is admissible and is

sufficient to support a finding that the child is described by section 300. as

provided in section 355.

(1) (2) The social study must be provided to all parties and their counsel by the

county welfare department within a reasonable time before the hearing.

(2)

The preparer of the report must be made available for cross-examination on

the request of any party. The preparer may be on telephone standby if the

preparer can be present in court within a reasonable time.

(Subd (c) amended effective January 1, 2017; previously amended effective July 1, 1997,

and January 1, 2007.)

(d)

Hearsay in the report (§ 355)

If a party makes an objection with reasonable specificity to particular hearsay in the

report and provides petitioner a reasonable period to meet the objection, that

evidence must not be sufficient in and of itself to support a jurisdictional finding,

unless:

(1)

The hearsay is admissible under any statutory or judicial hearsay exception;

(2)

The hearsay declarant is a child under 12 years of age who is the subject of

the petition, unless the objecting party establishes that the statement was

produced by fraud, deceit, or undue influence and is therefore unreliable;

The hearsay declarant is a peace officer, a health practitioner, a social worker, or a

teacher and the statement would be admissible if the declarant were testifying in

court; or

The hearsay declarant is available for cross-examination.

(e)(d) * * *

(Subd (d) relettered effective January 1, 2017; adopted as subd (e); previously amended

effective July 1, 1997, and January 1, 2007.)

(f)(e) Findings of court—allegations true (§ 356)

If the court determines by a preponderance of the evidence that the allegations of

the petition are true, the court must make findings on each of the following, noted

in the minutes:

(1)–(3) * * *

(4)

The child is described under by one or more specific subdivisions of section

300.

(Subd (e) amended and relettered effective January 1, 2017; adopted as subd (f);

previously amended effective January 1, 2007.)

(g)(f) Disposition and continuance pending disposition hearing (§§ 356, 358)

After making the findings in (f) (e), the court must proceed to a disposition hearing

under rules 5.686 and 5.690. The court may continue the disposition hearing as

provided in section 358.

(Subd (f) amended and relettered effective January 1, 2017; adopted as subd (g);

previously amended effective July 1, 1997, and January 1, 2007.)

(h)(g) * * *

(Subd (g) relettered effective January 1, 2017; adopted as subd (h); previously amended

effective July 1, 1997, January 1, 2005, and January 1, 2007.)

Rule 5.684 amended effective January 1, 2017; adopted as rule 1450 effective January 1, 1991;

previously amended effective July 1, 1997, and January 1, 2005; previously amended and

renumbered as rule 5.684 effective January 1, 2007.

Rule 5.686. Continuance pending disposition hearing

(a)

Continuance pending disposition hearing (§ 358)

Except as provided in (b), the court may continue the disposition hearing to a date

not to exceed 10 court days if the child is detained or, if the child is not detained, to

a date not to exceed 30 calendar days from the date of the finding under section

356. The court may for good cause continue the hearing for an additional 15

calendar days if the child is not detained.

(b)

Continuance if nonreunification is requested

If petitioner alleges that section 361.5(b) is applicable, the court must continue the

proceedings not more than 30 calendar days. The court must order the petitioner to

notify each parent or guardian of the contents of section 361.5(b) and must inform

each parent that if reunification is not ordered at the disposition hearing, a section

366.26 implementation hearing will be held and parental rights may be terminated.

(c)

Detention pending continued hearing (§ 358)

The court in its discretion may order release or detention of the child during the

continuance.

Rule 5.686 repealed effective January 1, 2017; adopted as rule 1451 effective January 1, 1990;

previously amended and renumbered as rule 5.686 effective January 1, 2007.

Rule 5.688. Failure to cooperate with services (§ 360(b))

(a)

Petition

If the court has ordered services under section 360(b), and within the time period

consistent with section 301 the family is unable or unwilling to cooperate with the

services provided, a petition may be filed as provided in section 360(c).

(b)

Order

At the hearing on the petition the court must dismiss the petition or order a new

disposition hearing to be conducted under rule 5.690.

Rule 5.688 repealed effective January 1, 2017; adopted as rule 1452 effective January 1, 1990;

previously amended effective July 1, 2000; previously amended and renumbered as rule 5.688

effective January 1, 2007.

Rule 5.690. General conduct of disposition hearing

(a)

Social study (§§ 280, 358, 358.1, 360, 361.5, 16002(b))

The petitioner must prepare a social study of the child. The social study must

include a discussion of all matters relevant to disposition and a recommendation for

disposition.

(1)

The petitioner must comply with the following when preparing the social

study:

(A)–(B) * * *

(C)

The social study should must include a discussion of the social

worker’s efforts to comply with rule 5.637, including but not limited to:

(i)–(iv) * * *

(D)

If siblings are not placed together, the social study must include an

explanation of why they have not been placed together in the same

home, what efforts are being made to place the siblings together, or

why making those efforts would be contrary to the safety and wellbeing of any of the siblings.

(D)(E) * * *

(E)(F) * * *

(2)

***

(Subd (a) amended effective January 1, 2017; previously amended effective July 1, 1995,

January 1, 2000, January 1, 2007, and January 1, 2011.)

(b)

***

(c)

Case plan (§ 16501.1)

Whenever child welfare services are provided, the social worker must prepare a

case plan.

(1)–(2) * * *

(3)

For a child 12 years of age or older and in a permanent placement, the court

must consider the case plan and must find as follows:

(A)–(B) * * *

(C)

Whether the case plan was developed in compliance with and meets the

requirements of section 16501.1(g). If the court finds that the

development of the case plan does not comply with section 16501.1(g)

the court must order the agency to comply with the requirements of

section 16501.1(g).

(Subd (c) amended effective January 1, 2017; adopted effective January 1, 2007;

previously amended effective January 1, 2009, and July 1, 2010.)

Rule 5.690 amended effective January 1, 2017; adopted as rule 1455 effective January 1, 1991;

previously amended and renumbered effective January 1, 2007; previously amended effective

July 1, 1995, January 1, 2000, January 1, 2009, July 1, 2010, and January 1, 2011.

Rule 5.695. Findings and orders of the court—disposition

(a)

Orders of the court (§§ 245.5, 358, 360, 361, 361.2, 390)

At the disposition hearing, the court may:

(1)

***

(2)

Place the child under a program of supervision as provided in for a time

period consistent with section 301 and order that services be provided;

(3)

Appoint a legal guardian for the child without declaring dependency and

order the clerk to issue letters of guardianship, which are not subject to the

confidential protections of juvenile court documents as described in section

827;

(4)

Declare dependency and appoint a legal guardian for the child if the

requirements of section 360 are met and order the clerk to issue letters of

guardianship, which are not subject to the confidential protections of juvenile

court documents as described in section 827;

(5)–(7) * * *

(Subd (a) amended effective January 1, 2017; previously amended effective July 1, 1995,

January 1, 2007, and January 1, 2015.)

(b)

Appointment of a legal guardian (§ 360)

(1)

(2)

At the disposition hearing, the court may appoint a legal guardian for the

child if:

(A)

The parent has advised the court that the parent does not wish to

receive family maintenance services or family reunification services;

(B)

The parent has executed and submitted Waiver of Reunification

Services (Juvenile Dependency) (form JV-195);

(C)

The court finds that the parent, and the child if of sufficient age and

comprehension, knowingly and voluntarily waive their rights to

reunification services and agree to the appointment of the legal

guardian; and

(D)

The court finds that the appointment of the legal guardian is in the best

interest of the child.

If the court appoints a legal guardian, it must:

(A)

State on the record or in the minutes that it has read and considered the

assessment;

(B)

State on the record or in the minutes its findings and the factual bases

for them;

(C)

Advise the parent that no reunification services will be offered or

provided;

(3)

(D)

Make any appropriate orders regarding visitation between the child and

the parent or other relative, including any sibling; and

(E)

Order the clerk to issue letters of guardianship, which are not subject to

the confidential protections of juvenile court documents as described in

section 827.

The court may appoint a legal guardian without declaring the child a

dependent of the court. If dependency is declared, a six-month review hearing

must be set.

(c)(b) * * *

(Subd (b) relettered effective January 1, 2017; adopted as subd (b); previously relettered

as subd (c) effective July 1, 1995; previously amended effective July 1, 2002, January 1,

2004, January 1, 2007, January 1, 2008, and January 1, 2014.)

(d)(c) Removal of custody—required findings (§ 361)

The court may not order a dependent removed from the physical custody of a

parent or guardian with whom the child resided at the time the petition was filed,

unless the court finds makes one or more of the findings in subdivision (c) of

section 361 by clear and convincing evidence. any of the following:

(1)

There is a substantial danger to the physical health, safety, protection, or

physical or emotional well-being of the child, or will be if the child is

returned home, and there is no reasonable alternative means to protect that

child;

(2)

The parent or guardian is unwilling to have physical custody of the child and

has been notified that if the child remains out of the parent’s or guardian’s

physical custody for the period specified in section 366.26, the child may be

declared permanently free of his or her custody and control;

(3)

The child is suffering severe emotional damage, as indicated by extreme

anxiety, depression, withdrawal, or untoward aggressive behavior toward self

or others, and no reasonable alternative means to protect the child’s

emotional health exists;

(4)

The child has been sexually abused by a parent or guardian or member of the

household or other person known to his or her parent and there is no

reasonable alternative means to protect the child or the child does not wish to

return to the parent or guardian; or

(5)

The child has been left without any provisions for his or her support and there

is no parent or guardian available to maintain or provide for the care, custody,

and control of the child.

(Subd (c) amended and relettered effective January 1, 2017; adopted as subd (c);

previously relettered as subd (d) effective July 1, 1995; previously amended effective July

1, 1997, July 1, 1999, July 1, 2002, and January 1, 2007.)

(e)(d) Reasonable efforts finding

The court must consider whether reasonable efforts to prevent or eliminate the need

for removal have been made and make one of the following findings:

(1)

Reasonable efforts have been made to prevent removal; or

(2)

Reasonable efforts have not been made to prevent removal.

(Subd (d) amended and relettered effective January 1, 2017; adopted as subd (d);

previously relettered as subd (e) effective July 1, 1995; amended effective July 1, 2002, and

January 1, 2006.)

(f)(e) Family-finding determination (§ 309)

(1)

If the child is removed, the court must consider and determine whether the

social worker has exercised due diligence in conducting the required

investigation to identify, locate, and notify the child’s relatives. The court

may consider the activities listed in (g)(f) as examples of due diligence. The

court must document its determination by making a finding on the record.

If the dispositional hearing is continued, the court may set a hearing to be

held 30 days from the date of removal or as soon as possible thereafter to

consider and determine whether the social worker has exercised due diligence

in conducting the required investigation to identify, locate, and notify the

child’s relatives.

(2)

***

(Subd (e) amended and relettered effective January 1, 2017; adopted as subd (f) effective

January 1, 2011; previously amended effective January 1, 2014, and January 1, 2015.)

(g)(f) Due diligence (§ 309)

When making the determination required in (f)(e), the court may consider, among

other examples of due diligence, whether the social worker has done any of the

following:

(1)–(7) * * *

(Subd (f) amended and relettered effective January 1, 2017; adopted as subd (g) effective

January 1, 2011; previously amended effective January 1, 2014, and January 1, 2015.)

(h)(g) Provision of reunification services (§ 361.5)

(1)

Unless the court makes a finding that reunification services need not be

provided under subdivision (b) of section 361.5 Except as provided in (6), if a

child is removed from the custody of a parent or legal guardian, the court

must order the county welfare department to provide reunification services to

the child and the child’s mother and statutorily presumed parent, or the

child’s legal guardian, to facilitate reunification of the family as required in

section 361.5. For a child who was three years of age or older on the date of

initial removal, services must be provided during the time period beginning

with the dispositional hearing and ending 12 months after the date the child

entered foster care, as defined by section 361.49. For a child who was under

three years of age on the date of initial removal, services must be provided

for a period of 6 months from the dispositional hearing, but no longer than 12

months from the date the child entered foster care, as defined by section

361.49. The time period for the provision of family reunification services

must be calculated consistent with section 361.5(a). The court must inform

the parent or legal guardian of a child who was under three when initially

remo

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