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California Law

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  • Al Cintra-Leite
    Hello , thought that frog farmer and others would like to see this, note in section 1006 that 1006. Upon the demurrer being filed, the argument upon the
    Message 1 of 1 , Apr 27, 2009
      Hello , thought that frog farmer and others would like to see this,
      note in section 1006 that 1006. Upon the demurrer being filed, the
      argument upon the
      objections presented thereby must be heard immediately, unless for
      exceptional cause shown, the court shall grant a continuance. Such
      continuance shall be for no longer time than the ends of justice
      require, and the court shall enter in its minutes the facts requiring
      it.


      It says "Immediately"! And it does not say who they must be heard
      by... though some might say "the court" in section

      PENAL CODE
      SECTION 1002-1012




      1002. The only pleading on the part of the defendant is either a
      demurrer or a plea.



      1003. Both the demurrer and plea must be put in, in open Court,
      either at the time of the arraignment or at such other time as may be
      allowed to the defendant for that purpose.



      1004. The defendant may demur to the accusatory pleading at any
      time prior to the entry of a plea, when it appears upon the face
      thereof either:
      1. If an indictment, that the grand jury by which it was found had
      no legal authority to inquire into the offense charged, or, if any
      information or complaint that the court has no jurisdiction of the
      offense charged therein;
      2. That it does not substantially conform to the provisions of
      Sections 950 and 952, and also Section 951 in case of an indictment
      or information;
      3. That more than one offense is charged, except as provided in
      Section 954;
      4. That the facts stated do not constitute a public offense;
      5. That it contains matter which, if true, would constitute a
      legal justification or excuse of the offense charged, or other legal
      bar to the prosecution.



      1005. The demurrer must be in writing, signed either by the
      defendant or his counsel, and filed. It must distinctly specify the
      grounds of objection to the accusatory pleading or it must be
      disregarded.


      1006. Upon the demurrer being filed, the argument upon the
      objections presented thereby must be heard immediately, unless for
      exceptional cause shown, the court shall grant a continuance. Such
      continuance shall be for no longer time than the ends of justice
      require, and the court shall enter in its minutes the facts requiring
      it.



      1007. Upon considering the demurrer, the court must make an order
      either overruling or sustaining it. If the demurrer to an indictment
      or information is overruled, the court must permit the defendant, at
      the defendant's election, to plead, which the defendant must do
      forthwith, unless the court extends the time. If the demurrer is
      sustained, the court must, if the defect can be remedied by
      amendment, permit the indictment or information to be amended, either
      forthwith or within such time, not exceeding 10 days, as it may fix,
      or, if the defect or insufficiency therein cannot be remedied by
      amendment, the court may direct the filing of a new information or
      the submission of the case to the same or another grand jury. If the
      demurrer to a complaint is sustained, the court must, if the defect
      can be remedied, permit the filing of an amended complaint within
      such time not exceeding 10 days as it may fix. The orders made under
      this section shall be entered in the docket or minutes of the court.



      1008. If the demurrer is sustained, and no amendment of the
      accusatory pleading is permitted, or, in case an amendment is
      permitted, no amendment is made or amended pleading is filed within
      the time fixed therefor, the action shall be dismissed, and, except
      as provided in Section 1010, the court must order, if the defendant
      is in custody, that he be discharged or if he has been admitted to
      bail, that his bail be exonerated, or, if money or other property has
      been deposited instead of bail for his appearance, that such money
      or other property be refunded to him or to the person or persons
      found by the court to have deposited such money or other property on
      his behalf.
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