A three-track worksheet: draft a Penal Code §1004 demurrer against the face of a criminal complaint, document accredited diplomatic or consular status, or document common-law foreign-official immunity — each for a separate motion where applicable. Entries save to this browser only.
This tool organizes research and drafting notes. It does not provide legal advice and is not a substitute for review by counsel admitted in California.
Charge Worksheet
Enter each charged section (e.g. PC 459, VC 23152(a), HS 11350). A link to the official codified text is generated automatically — always confirm the section number on the official page before relying on it.
Face-of-the-Complaint Review — Penal Code §1004
These are the only six grounds a demurrer may raise, per Penal Code §1004 as amended effective January 1, 2024 (Stats. 2023, Ch. 311 / SB 883). Each is tested against the four corners of the pleading itself — not against outside facts, evidence, or defenses.
Judicial notice boundary. Matters properly subject to judicial notice under Evidence Code §452 may inform whether a defect is apparent on the face of the pleading. Facts outside the pleading and outside proper judicial notice are not demurrer material, however relevant they may be to a later motion.
Reference: doctrines that do not apply to a §1004 demurrer
These federal and civil-procedure doctrines are sometimes raised in this context. Each governs a different body of law and does not supply an independent ground for a California criminal demurrer.
Article III, §2, Cl. 1 limits the jurisdiction of federal courts over civil disputes between parties. A state's criminal prosecution of a defendant is not a federal civil case; the state as prosecutor has inherent authority to charge, and the doctrine has no analog that defeats the charging document. See Lujan v. Defenders of Wildlife (1992) 504 U.S. 555; Abbott Labs. v. Gardner (1967) 387 U.S. 136.
Political question doctrine
Bars federal courts from resolving disputes committed to another branch. Baker v. Carr (1962) 369 U.S. 186. A routine criminal charge is not such a dispute.
Diversity / "classes of jurisdiction"
Strawbridge v. Curtiss (1806) 7 U.S. 267 and Sheldon v. Sill (1850) 49 U.S. 441 concern federal subject-matter jurisdiction over civil suits between parties of different citizenship. There is no diversity question when the People of California prosecute someone for a state offense — the state's own courts have jurisdiction under the state constitution and Penal Code, regardless of the defendant's residency.
Sovereign immunity (11th Amendment / FSIA)
Protects a sovereign from being sued as a defendant. It does not apply where the state is the prosecuting party, not the defendant. A defendant's own claim to immunity from prosecution is a distinct question — see Track 2 for the narrow case where accredited diplomatic or consular status is actually at issue.
Scope note. Accredited status is a fact outside the four corners of the complaint, so it is not proper demurrer material. This track builds the record for a separate motion to dismiss or quash, supported by State Department documentation.
Identify the Category
The Vienna Convention on Diplomatic Relations (VCDR) and the Vienna Convention on Consular Relations (VCCR) set different scopes of immunity by category. Select the one that applies.
Documentation Checklist
Assemble the following before filing. The Office of Foreign Missions (OFM) is the federal authority that verifies status.
Waiver Rule
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Immunity belongs to the sending state, not the individual. A valid waiver must be express and in writing from the sending state — the defendant cannot waive it personally, and conduct alone does not waive it. VCDR Art. 32; VCCR Art. 45. Confirm with OFM whether any waiver has been transmitted through the Department of State before assuming immunity is unavailable.
Motion to Dismiss / Quash — Framework
Draft each section here, then move it into the formal motion. This is filed separately from — and is not a substitute for — any demurrer.
Verify status directly with the Department of State — Office of Foreign Missions: state.gov/office-of-foreign-missions. OFM maintains a 24-hour Law Enforcement Liaison line for real-time verification of diplomatic and consular identification.
To authenticate a foreign-issued document with an apostille, confirm the issuing country's membership and find its competent authority via the Hague Conference's official registry: hcch.net — Apostille competent authorities. An apostille authenticates a document's origin; it does not itself establish diplomatic, consular, or any other immunity.
How this differs from Track 2. Track 2 is treaty-based and requires current accreditation under the Vienna Conventions. This track is common-law immunity for a foreign government official — it does not require diplomatic accreditation, but it does require that the person actually hold or have held foreign public office, and it turns on rank or on the official character of the act. It is not governed by the Foreign Sovereign Immunities Act: FSIA (28 U.S.C. §§1602–1611, including §1605's exceptions and §1607's counterclaim rule) defines "foreign state" to mean the state itself and its agencies or instrumentalities, not individual officials — Samantar v. Yousuf (2010) 560 U.S. 305. Individual foreign-official immunity instead comes from federal common law, informed by State Department practice.
Which Type Applies
Status-based immunity is reserved for a narrow set of incumbent offices. Conduct-based immunity is broader in who can claim it but narrower in what it covers.
Documentation & Procedure Checklist
This immunity is typically invoked by requesting that the U.S. Department of State file a Suggestion of Immunity with the court. Courts give substantial weight to a filed Suggestion; if the Department declines to weigh in, the court applies the Department's own stated principles independently.
Scope caution. This body of law has developed almost entirely in civil suits against foreign officials in U.S. courts — tort claims, human-rights litigation, and similar actions. Its extension to defeat a state criminal prosecution is not well-charted; treat this track as a documentation aid, not a settled defense. Many courts also decline to extend conduct-based immunity to jus cogens conduct (torture, genocide, extrajudicial killing) even where the State Department has weighed in. As with Track 2, the facts supporting this status sit outside the four corners of the complaint, so they belong in a separate motion, not the demurrer itself.
Motion Framework
Draft each section here, then move it into the formal motion.
What this track actually does. Tribal sovereign immunity, tribal jurisdiction, and tribal membership are all real, well-established bodies of law — but they belong to tribes, and only to tribes that actually exist as recognized governmental entities. This track is a verification tool: it checks a claimed tribal affiliation against the official federal record and walks through whether that affiliation could plausibly raise any jurisdictional question at all. It is not a source of immunity by itself, and for many fact patterns — including a claimed affiliation with a tribe that isn't on the federal list — the honest answer is that no tribal-law issue is actually presented.
Verify the Claimed Tribe's Status
Recognition is a factual, checkable question — not a matter of self-declaration. The Bureau of Indian Affairs publishes the controlling list annually in the Federal Register under 25 U.S.C. §5131. Select the status that matches what you actually find there.
Verification Record
Document what you checked and what you found — this is the factual record the rest of the analysis rests on.
Jurisdictional Reference
The three doctrines this track actually implicates, and what each one does and does not do.
Off-reservation conduct (the usual case)
California's ordinary criminal jurisdiction applies to conduct occurring outside Indian country regardless of the defendant's tribal membership status — real, claimed, or fictitious. A defendant's Indian status is not, by itself, a jurisdictional defense to a state prosecution for off-reservation conduct; no tribal statute or federal recognition question needs to be reached at all.
Public Law 280 (on-reservation offenses only)
California is one of six original PL 280 states. It gives California state courts jurisdiction over most offenses by or against Indians occurring within Indian country — it is the source of state authority on-reservation, not a limit on state authority off-reservation. If the charged conduct is entirely outside Indian country, PL 280 simply isn't in play either way.
Tribal sovereign immunity
Kiowa Tribe v. Manufacturing Technologies (1998) 523 U.S. 751 and Michigan v. Bay Mills Indian Community (2014) 572 U.S. 782 hold that this immunity belongs to the tribe itself, as a governmental entity — it does not personally immunize an individual member from criminal liability, and it has nothing to attach to where no recognized tribal government exists in the first place.
Tribal membership determination
Santa Clara Pueblo v. Martinez (1978) 436 U.S. 49 confirms that only a tribe itself can authoritatively determine its own membership. A document or self-declaration purporting to confer membership in a group that is not a recognized tribal government establishes nothing under this doctrine — there is no sovereign authority behind it to begin with.
Verification Checklist
Bottom line. Under 25 CFR §83.2, federal recognition is the prerequisite for the immunities and privileges the caselaw above describes. If the tribe named does not appear on the current BIA Federal Register list, that alone isn't dispositive — check for a treaty, an act of Congress, or a completed Part 83 acknowledgment the list may have omitted, and for an ISDEAA contract or compact corroborating that recognition was already established when it was entered. If none of those turns up anything either, there is no recognized tribal government whose immunity, jurisdiction, or membership rules could possibly be at issue. A claimed affiliation with it does not raise a genuine tribal-law question, whatever role that claim plays elsewhere in the case (e.g., as the basis for a forgery or perjury count). Even for a genuinely recognized tribe, membership alone does not defeat state jurisdiction over conduct that occurred off-reservation. Record your conclusion below.
Analysis Conclusion
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