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AB-2710 Warrants.(2017-2018)

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Date Published: 08/20/2018 09:00 PM
AB2710:v95#DOCUMENT

Assembly Bill No. 2710
CHAPTER 176

An act to amend Sections 817 and 1526 of the Penal Code, relating to criminal procedure.

[ Approved by Governor  August 20, 2018. Filed with Secretary of State  August 20, 2018. ]

LEGISLATIVE COUNSEL'S DIGEST


AB 2710, Obernolte. Warrants.
(1) Existing law governs the procedure for issuing a warrant of arrest and requires that a declaration in support of a warrant of probable cause for arrest be a sworn statement made in writing. Existing law authorizes a magistrate to take an oral statement under oath in lieu of the written declaration if the oath is taken under penalty of perjury and recorded and transcribed, or, in the alternative, made during a telephone conversation with the magistrate. If the oath was made during a telephone conversation, existing law requires the magistrate to carry out specified duties in connection with issuing the warrant of arrest, as specified. Existing law deems the warrant signed by the magistrate to be the original warrant and the copy of the document transmitted to the declarant to be a duplicate.
This bill would delete the authority of a magistrate to take an oral statement under oath made during a telephone conversation in lieu of a declaration in support of a warrant of probable cause for arrest and would eliminate specified related procedural duties of the magistrate. The bill would deem the warrant that is signed by the magistrate and received by the declarant to be the original warrant. The bill would make technical and conforming changes.
(2) Existing law requires a search warrant to be issued upon probable cause, supported by a written affidavit, and governs the process for issuing a search warrant. Existing law authorizes a magistrate to take an oral statement under oath in lieu of a written affidavit if the oral statement is made under penalty of perjury or, in the alternative, made during a telephone conversation with the magistrate. Existing law requires the magistrate to carry out specified duties in issuing a search warrant.
This bill would delete the authority of a magistrate to take an oral statement under oath made during a telephone conversation and would eliminate related procedural duties of the magistrate, as specified. The bill would make related and conforming changes.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

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


SECTION 1.

 Section 817 of the Penal Code is amended to read:

817.
 (a) (1) If a declaration of probable cause is made by a peace officer of this state, in accordance with subdivisions (b), (c), and (d), as applicable, the magistrate shall issue a warrant of probable cause for the arrest of the defendant only if he or she is satisfied after reviewing the declaration that there exists probable cause that the offense described in the declaration has been committed and that the defendant described therein has committed the offense.
(2) The warrant of probable cause for arrest shall not begin a complaint process pursuant to Section 740 or 813. The warrant of probable cause for arrest shall have the same authority for service as set forth in Section 840 and the same time limitations as that of an arrest warrant issued pursuant to Section 813.
(b) The declaration in support of the warrant of probable cause for arrest shall be a sworn statement made in writing. If the declarant transmits the proposed warrant and all affidavits and supporting documents to the magistrate using facsimile transmission equipment, email, or computer server, the conditions in subdivision (d) shall apply.
(c) In lieu of the written declaration required in subdivision (b), the magistrate may accept an oral statement made under penalty of perjury and recorded and transcribed. The transcribed statement shall be deemed to be the declaration for the purposes of this section. The recording of the sworn oral statement and the transcribed statement shall be certified by the magistrate receiving it and shall be filed with the clerk of the court. In the alternative, the sworn oral statement may be recorded by a certified court reporter who shall certify the transcript of the statement, after which the magistrate receiving it shall certify the transcript, which shall be filed with the clerk of the court.
(d) (1) The declarant shall sign under penalty of perjury his or her declaration in support of the warrant of probable cause for arrest. The declarant’s signature shall be in the form of a digital signature or electronic signature if email or computer server is used for transmission to the magistrate. The proposed warrant and all supporting declarations and attachments shall be transmitted to the magistrate utilizing facsimile transmission equipment, email, or computer server.
(2) The magistrate shall verify that all the pages sent have been received, that all the pages are legible, and that the declarant’s signature, digital signature, or electronic signature is genuine.
(e) A warrant of probable cause for arrest shall contain the information required pursuant to Sections 815 and 815a.
(f) A warrant of probable cause for arrest may be in substantially the following form:
County of ______, State of California.
The people of the State of California to any peace officer of the STATE:
Proof by declaration under penalty of perjury having been made this day to me by _____ (name of declarant) _____ ,
I find that there is probable cause to believe that the crime(s)
of _____ (designate the crime/s) _____
has (have) been committed by the defendant named and described below.
Therefore, you are commanded to arrest
_____ (name of defendant) _____ and to bring the defendant
before any magistrate in _______ County pursuant to Sections 821, 825, 826, and 848 of the Penal Code.
Defendant is admitted to bail in the amount of ______ dollars ($______).
Time Issued: 
_____ (Signature of the Judge) _____
Dated:  Judge of the  Court
(g) Before issuing a warrant, the magistrate may examine under oath the person seeking the warrant and any witness the person may produce, take the written declaration of the person or witness, and cause the person or witness to subscribe the declaration. If the magistrate decides to issue the warrant, he or she shall do all of the following:
(1) Sign the warrant. The magistrate’s signature may be in the form of a digital signature or electronic signature if email or computer server was used for transmission to the magistrate.
(2) Note on the warrant the date and time of the issuance of the warrant.
(3) Transmit via facsimile transmission equipment, email, or computer server the signed warrant to the declarant. The warrant, signed by the magistrate and received by the declarant, shall be deemed to be the original warrant.
(h) An original warrant of probable cause for arrest or the duplicate original warrant of probable cause for arrest is sufficient for booking a defendant into custody.
(i) After the defendant named in the warrant of probable cause for arrest has been taken into custody, the agency that obtained the warrant shall file a “certificate of service” with the clerk of the issuing court. The certificate of service shall contain all of the following:
(1) The date and time of service.
(2) The name of the defendant arrested.
(3) The location of the arrest.
(4) The location where the defendant was incarcerated.

SEC. 2.

 Section 1526 of the Penal Code is amended to read:

1526.
 (a) Before issuing the search warrant, the magistrate may examine on oath the person seeking the warrant and any witnesses the person may produce, and shall take his or her affidavit or their affidavits in writing, and cause the affidavit or affidavits to be subscribed by the party or parties making them. If the affiant transmits the proposed search warrant and all affidavits and supporting documents to the magistrate using facsimile transmission equipment, email, or computer server, the conditions in subdivision (c) apply.
(b) In lieu of the written affidavit required in subdivision (a), the magistrate may take an oral statement under oath if the oath is made under penalty of perjury and recorded and transcribed. The transcribed statement shall be deemed to be an affidavit for the purposes of this chapter. The recording of the sworn oral statement and the transcribed statement shall be certified by the magistrate receiving it and shall be filed with the clerk of the court. In the alternative, the sworn oral statement shall be recorded by a certified court reporter and the transcript of the statement shall be certified by the reporter, after which the magistrate receiving it shall certify the transcript which shall be filed with the clerk of the court.
(c) (1) The affiant shall sign under penalty of perjury his or her affidavit in support of probable cause for issuance of a search warrant. The affiant’s signature may be in the form of a digital signature or electronic signature if email or computer server is used for transmission to the magistrate.
(2) The magistrate shall verify that all the pages sent have been received, that all the pages are legible, and that the declarant’s signature, digital signature, or electronic signature is genuine.
(3) If the magistrate decides to issue the search warrant, he or she shall do both of the following:
(A) Sign the warrant. The magistrate’s signature may be in the form of a digital signature or electronic signature if email or computer server is used for transmission by the magistrate.
(B) Note on the warrant the date and time of the issuance of the warrant.
(4) The magistrate shall transmit via facsimile transmission equipment, email, or computer server the signed search warrant to the affiant. The search warrant signed by the magistrate and received by the affiant shall be deemed to be the original warrant. The original warrant and any affidavits or attachments in support thereof shall be returned as provided in Section 1534.