Unless otherwise directed by the court, the trial shall proceed in the following order: (a) If the trial be before the court with a jury, the jury shall be impanelled and sworn.
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(b) The court or clerk shall read the indictment, information, or complaint and the defendant's plea to the jury, but shall omit any reference to a prior conviction charged therein. (c) The prosecuting attorney may make an opening statement. The defendant or his counsel may then make an opening statement or may, at his option, reserve the right to make an opening statement until immediately prior to offering evidence in support of his case. (d) The prosecuting attorney shall offer the evidence in support of the charge. (e) The defendant or his counsel may then open the defense. He may make an opening statement, if he has not already done so pursuant to Subsection (c), and may offer his evidence in support of his defense. (f) The parties may then respectively offer rebutting evidence unless the court, for good reason, in furtherance of justice, permits either party to offer evidence upon his original case. (g) When the evidence is concluded, unless the case is submitted on either side, or on both sides, without argument, the prosecuting attorney, and the counsel for the defendant, may argue the case to the court and jury; the prosecuting attorney opening the argument and having the right to close. (h) If the trial be before the court with a jury, the court shall then instruct the jury. NOTE: Section 90.13 is based on former § 1093 and § 1093 of the California Penal Code. See generally B. Witkin, California Criminal Procedure Trial §§ 393, 427- 499(1963, Supp. 1973). The introductory clause to § 90.13 makes clear that the court may depart from the order prescribed where necessary or desirable. For example, he may at the beginning of the trial or during the course of the trial, give the jury instructions on the applicable law. See Cal. Pen. Code § 1093 (6). See 8 Moore, Federal Practice &30.02(1974). The authority so provided makes redundant the same substantive statement made in former § 1094. Subsection (b) has been revised to make clear that the reading of the accusatory pleading must not include a reference to any previous convictions under any circumstances. Contrast former § 1993(1) and § 1093(1) of the California Penal Code. Subsections (c) and (e) have been revised to make reference to the opening statements which may be made by the respective sides. See generally B. Witkin, supra §§ 428-430. Subsection (g) provides for the order of argument. See also § 90.16 (number of counsel permitted to argue); Fed. R. Crim. P. 29.1 (proposed; same as § 90.13 (g)). See generally B. Witkin, supra §§ 443-467. Subsection (h) has been added to refer to the court's charges to the jury. See also §§ 90.19; 105.14 (written instructions may be taken into jury room). Compare Cal. Pen. Code §§ 1093(6), 1127. See generally B. Witkin, supra §§ 468-499; 8 Moore, Federal Practice &30.09(1974).
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