Bill Text

Bill Information


Add To My Favorites | print page

AB-3156 Misdemeanor: release.(1991-1992)

SHARE THIS: share this bill in Facebook share this bill in Twitter
AB3156:v93#DOCUMENT

Assembly Bill No. 3156
CHAPTER 1105

An act to amend Section 853.6 of the Penal Code, relating to criminal procedure.

[ Filed with Secretary of State  September 29, 1992. Approved by Governor  September 28, 1992. ]

LEGISLATIVE COUNSEL'S DIGEST


AB 3156, Cannella. Misdemeanor: release.
Existing law generally provides that in any case in which a person is arrested for a misdemeanor offense, and the person does not demand that he or she be taken before a magistrate, that person shall instead be released in accordance with a specified procedure. The peace officer may either book the arrested person prior to the release or indicate on the citation that the arrested person shall be booked, in which case, the magistrate shall, before the proceedings are finally concluded, order the defendant to be booked by the arresting agency.
This bill would instead provide that the officer may book the arrested person prior to release or indicate on the citation that the arrested person shall appear at the arresting agency to be booked or fingerprinted prior to the date the arrested person appears in court. If the citation indicates that the arrested person is to be booked or fingerprinted, the magistrate, judge, or court would be required, before the proceedings begin, to order the defendant to provide verification of the booking or fingerprinting or require the defendant to be booked or fingerprinted and to provide verification at the next court appearance.
The bill would require the arresting agency to provide verification to the arrested person at the time of booking or fingerprinting, as specified, thereby creating a state-mandated local program. The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement, including the creation of a State Mandates Claims Fund to pay the costs of mandates which do not exceed $1,000,000 statewide and other procedures for claims whose statewide costs exceed $1,000,000.
This bill would provide that, if the Commission on State Mandates determines that this bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to those statutory procedures and, if the statewide cost does not exceed $1,000,000, shall be made from the State Mandates Claims Fund.

The people of the State of California do enact as follows:


SECTION 1.

 Section 853.6 of the Penal Code is amended to read:

853.6.
 (a)  In any case in which a person is arrested for an offense declared to be a misdemeanor, including a violation of any city or county ordinance, and does not demand to be taken before a magistrate, that person shall, instead of being taken before a magistrate, be released according to the procedures set forth by this chapter. If the person is released, the officer or superior shall prepare in duplicate a written notice to appear in court, containing the name and address of the person, the offense charged, and the time when, and place where, the person shall appear in court. If, pursuant to subdivision (i), the person is not released prior to being booked and the officer in charge of the booking or his or her superior determines that the person should be released, the officer or superior shall prepare a written notice to appear in a court.
In any case in which a person is arrested for a misdemeanor violation of a protective court order involving domestic violence, as defined in subdivision (b) of Section 13700, the person shall be taken before a magistrate instead of being released according to the procedures set forth in this chapter, unless the arresting officer determines that there is not a reasonable likelihood that the offense will continue or resume or that the safety of persons or property would be imminently endangered by release of the person arrested.
Nothing in this subdivision shall be construed to affect a defendant’s ability to be released on bail or on his or her own recognizance.
(b)  Unless waived by the person, the time specified in the notice to appear shall be at least 10 days after arrest if the duplicate notice is to be filed by the officer with the magistrate.
(c)  The place specified in the notice shall be the court of the magistrate before whom the person would be taken if the requirement of taking an arrested person before a magistrate were complied with, or shall be an officer authorized by that court to receive a deposit of bail.
(d)  The officer shall deliver one copy of the notice to appear to the arrested person, and the arrested person, in order to secure release, shall give his or her written promise to appear in court as specified in the notice by signing the duplicate notice which shall be retained by the officer. Upon the signing of the duplicate notice, the arresting officer shall immediately release the person arrested from custody.
(e)  The officer shall, as soon as practicable, file the duplicate notice, as follows:
(1)  It shall be filed with the magistrate if the offense charged is an infraction.
(2)  It shall be filed with the magistrate if the prosecuting attorney has previously directed the officer to do so.
(3)  The duplicate notice and underlying police reports in support of the charge or charges shall be filed with the prosecuting attorney in cases other than those specified in paragraphs (1) and (2).
If the duplicate notice is filed with the prosecuting attorney, he or she, within his or her discretion, may initiate prosecution by filing the notice or a formal complaint with the magistrate specified in the duplicate notice within 25 days from the time of arrest. If the prosecution is not to be initiated, the prosecutor shall send notice to the person arrested at the address on the notice to appear. The failure by the prosecutor to file the notice or formal complaint within 25 days of the time of the arrest shall not bar further prosecution of the misdemeanor charged in the notice to appear. However, any further prosecution shall be preceded by a new and separate citation or an arrest warrant.
Upon the filing of the notice with the magistrate by the officer, or the filing of the notice or formal complaint by the prosecutor, the magistrate may fix the amount of bail which in his or her judgment, in accordance with Section 1275, is reasonable and sufficient for the appearance of the defendant and shall indorse upon the notice a statement signed by him or her in the form set forth in Section 815a. The defendant may, prior to the date upon which he or she promised to appear in court, deposit with the magistrate the amount of bail set by the magistrate. At the time the case is called for arraignment before the magistrate, if the defendant does not appear, either in person or by counsel, the magistrate may declare the bail forfeited, and may, in his or her discretion, order that no further proceedings shall be had in the case, unless the defendant has been charged with violation of Section 374.3 or 374.7 of this code or of Section 11357, 11360, or 13002 of the Health and Safety Code, or a violation punishable under Section 5008.7 of the Public Resources Code, and he or she has previously been convicted of a violation of that section or a violation which is punishable under that section, except in cases where the magistrate finds that undue hardship will be imposed upon the defendant by requiring him or her to appear, the magistrate may declare the bail forfeited and order that no further proceedings be had in the case.
Upon the making of the order that no further proceedings be had, all sums deposited as bail shall immediately be paid into the county treasury for distribution pursuant to Section 1463.
(f)  No warrant shall be issued for the arrest of a person who has given a written promise to appear in court, unless and until he or she has violated that promise or has failed to deposit bail, to appear for arraignment, trial, or judgment or to comply with the terms and provisions of the judgment, as required by law.
(g)  The officer may book the arrested person prior to release or indicate on the citation that the arrested person shall appear at the arresting agency to be booked or indicate on the citation that the arrested person shall appear at the arresting agency to be fingerprinted prior to the date the arrested person appears in court. If it is indicated on the citation that the arrested person shall be booked or fingerprinted prior to the date of the person’s court appearance, the arresting agency at the time of booking or fingerprinting shall provide the arrested person with verification of the booking or fingerprinting by either making an entry on the citation or providing the arrested person a verification form established by the arresting agency. If it is indicated on the citation that the arrested person is to be booked or fingerprinted, the magistrate, judge, or court shall, before the proceedings begin, order the defendant to provide verification that he or she was booked or fingerprinted by the arresting agency. If the defendant cannot produce the verification, the magistrate, judge, or court shall require that the defendant be booked or fingerprinted by the arresting agency before the next court appearance, and that the defendant provide the verification at the next court appearance unless both parties stipulate that booking or fingerprinting is not necessary.
(h)  A peace officer shall use the written notice to appear procedure set forth in this section for any misdemeanor offense in which the officer has arrested a person without a warrant pursuant to Section 836 or in which he or she has taken custody of a person pursuant to Section 847.
(i)  Whenever any person is arrested by a peace officer for a misdemeanor, that person shall be released according to the procedures set forth by this chapter unless one of the following is a reason for nonrelease, in which case the arresting officer may release the person, or the arresting officer shall indicate, on a form to be established by his or her employing law enforcement agency, which of the following was a reason for the nonrelease:
(1)  The person arrested was so intoxicated that he or she could have been a danger to himself or herself or to others.
(2)  The person arrested required medical examination or medical care or was otherwise unable to care for his or her own safety.
(3)  The person was arrested under one or more of the circumstances listed in Sections 40302 and 40303 of the Vehicle Code.
(4)  There were one or more outstanding arrest warrants for the person.
(5)  The person could not provide satisfactory evidence of personal identification.
(6)  The prosecution of the offense or offenses for which the person was arrested, or the prosecution of any other offense or offenses, would be jeopardized by immediate release of the person arrested.
(7)  There was a reasonable likelihood that the offense or offenses would continue or resume, or that the safety of persons or property would be imminently endangered by release of the person arrested.
(8)  The person arrested demanded to be taken before a magistrate or refused to sign the notice to appear.
(9)  There is reason to believe that the person would not appear at the time and place specified in the notice. The basis for this determination shall be specifically stated.
The form shall be filed with the arresting agency as soon as practicable and shall be made available to any party having custody of the arrested person, subsequent to the arresting officer, and to any person authorized by law to release him or her for custody before trial.
(j)  Once the arresting officer has prepared the written notice to appear and has delivered a copy to the person arrested, the officer shall deliver the remaining original and all copies as provided by subdivision (e).
Any person, including the arresting officer and any member of the officer’s department or agency, or any peace officer, who alters, conceals, modifies, nullifies, or destroys, or causes to be altered, concealed, modified, nullified, or destroyed, the face side of the remaining original or any copy of a citation that was retained by the officer, for any reason, before it is filed with the magistrate or with a person authorized by the magistrate to receive deposit of bail, is guilty of a misdemeanor.
If, after an arrested person has signed and received a copy of a notice to appear, the arresting officer determines that, in the interest of justice, the citation or notice should be dismissed, the arresting agency may recommend, in writing, to the magistrate that the charges be dismissed. The recommendation shall cite the reasons for the recommendation and shall be filed with the court.
If the magistrate makes a finding that there are grounds for dismissal, the finding shall be entered in the record and the charges dismissed.
Under no circumstances shall a personal relationship with any officer, public official, or law enforcement agency be grounds for dismissal.
(k)  For purposes of this section, the term “arresting agency” includes any other agency designated by the arresting agency to provide booking or fingerprinting services.

SEC. 2.

 The written notice to appear form approved by the Judicial Council prior to January 1, 1993, may continue to be used after January 1, 1993, if proper entries are made on the form to comply with this act.

SEC. 3.

 Notwithstanding Section 17610 of the Government Code, if the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code. If the statewide cost of the claim for reimbursement does not exceed one million dollars ($1,000,000), reimbursement shall be made from the State Mandates Claims Fund. Notwithstanding Section 17580 of the Government Code, unless otherwise specified in this act, the provisions of this act shall become operative on the same date that the act takes effect pursuant to the California Constitution.