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AB-61 Criminal procedure: arraignment.(2023-2024)

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Date Published: 03/08/2023 09:00 PM
AB61:v97#DOCUMENT

Amended  IN  Assembly  March 08, 2023
Amended  IN  Assembly  February 23, 2023

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Assembly Bill
No. 61

Introduced by Assembly Member Bryan

December 06, 2022

An act to amend Section 825 Sections 825 and 849 of the Penal Code, and to amend Section 631 of the Welfare and Institutions Code, relating to criminal procedure.


LEGISLATIVE COUNSEL'S DIGEST


AB 61, as amended, Bryan. Criminal procedure: arraignment.
Existing law requires a person arrested without a warrant to person, once arrested, to be taken before a magistrate without delay and, in any event, within 48 hours after arrest, not including weekends and holidays, as specified.
This bill would remove the weekends and holidays exemption, thereby requiring a person to be taken before the court within 48 hours of their arrest, or to be released, except that if the 48-hour period expires at a time that the court is in session, the arraignment can occur anytime that day. The bill would require that this initial appearance be an arraignment and include the consideration of conditions of release or bail. The bill would also require the court to make an initial determination of probable cause, as specified.
Existing law requires a person arrested without a warrant to be taken before the nearest magistrate in the county in which the offense is triable without delay. Existing law also authorizes a peace officer to release the arrested person from custody instead of taking them before a magistrate under certain specified circumstances, including if the person was arrested for intoxication only.
This bill would require the person to be taken before the magistrate within 48 hours of their arrest. This bill would require that the court make an initial determination of probable cause, as specified, no more than 48 hours after the warrantless arrest. The bill would also require that if the court makes an initial finding of no probable cause, the court order the person to be released immediately.
Existing law similarly requires a juvenile that has been arrested to be released with 48 hours, excluding judicial holidays, unless a petition has been filed to make the minor a ward of the court or charges have been filed charging the minor as an adult.
This bill would additionally prohibit any juvenile from being held for more than 48 hours without receiving an initial judicial determination of probable cause. remove the judicial holidays exemption and the petition exemption and would instead prohibit any juvenile from being held more than 48 hours if they did not receive an initial judicial determination of probable cause.
By imposing a higher level of service on prosecutors, public defenders, police, jails, and courthouses, this bill would impose 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.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

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


SECTION 1.

 The Legislature finds and declares all of the following:

(a)It is the intent of the Legislature to update California’s criminal pretrial procedures by ensuring that arraignments occur at regular times and to adhere to applicable precedent from the United States Supreme Court. The Committee on Revision of the Penal Code has recently recommended these reforms in its 2022 Annual Report and Recommendations.

(b)Numerous other states require initial court appearances at more regular times than California does. At least 13 states require a first appearance to be held within 48 hours of arrest or sooner, including Texas, Florida, Alabama, Georgia, Mississippi, and New York.

(c)The Penal Code also does not contain a codification of the requirement from County of Riverside v. McLaughlin (1991) 500 U.S. 44 that every warrantless arrest be reviewed by a neutral judicial officer for probable cause promptly, but no more than 48 hours after the arrest. Numerous other states such as Florida, Louisiana, and Arizona, expressly incorporate McLaughlin’s requirements of a prompt review of probable cause into their criminal codes.

(a) It is the intent of the Legislature to codify the holding in County of Riverside v. McLaughlin (1991) 500 U.S. 44 that every warrantless arrest be reviewed by a judicial officer for probable cause promptly after arrest, that probable cause determinations made after 48 hours requires the government to demonstrate the existence of a bona fide emergency or other extraordinary circumstance, and that matters such as intervening weekends or the need for consolidating pretrial proceedings are not extraordinary circumstances.

(d)

(b) It is the intent of the Legislature to abrogate the holding of Alfredo A. v. Superior Court (1994) 6 Cal.4th 1212 that a probable cause determination for juveniles may occur more than 48 hours after arrest.

SEC. 2.

 Section 825 of the Penal Code is amended to read:

825.
 (a) (1) Except as provided in paragraph (2), the defendant shall in all cases be taken before the court for arraignment and consideration of conditions of release or setting of bail, magistrate without unnecessary delay, and, in any event, within 48 hours after their arrest.
(2) When the 48 hours prescribed by paragraph (1) expires at a time when the court is in session, the arraignment may take place at any time during that session.
(b) After the arrest, any attorney at law entitled to practice in the courts of record of California, may, at the request of the prisoner or any relative of the prisoner, visit the prisoner. Any officer having charge of the prisoner who willfully refuses or neglects to allow that attorney to visit a prisoner is guilty of a misdemeanor. Any officer having a prisoner in charge, who refuses to allow the attorney to visit the prisoner when proper application is made, shall forfeit and pay to the party aggrieved the sum of five hundred dollars ($500), to be recovered by action in any court of competent jurisdiction.

(c)(1)Promptly after any warrantless arrest, but no more than 48 hours after the arrest, the court shall review the basis for the arrest and make an initial determination whether probable cause exists that an offense has been committed and that the arrested person committed it.

(2)The initial probable cause determination described in paragraph (1) may be based on sworn statements from the arresting officer, may be conducted in chambers or remotely by the court, and need not be an adversary proceeding. It may also occur at the proceeding specified in subdivision (a).

(3)If the court makes an initial finding of no probable cause pursuant to paragraph (1), the court shall order the person to be released immediately, and shall immediately convey that order to the person having custody of the arrested person.

(4)The court shall make a record of the initial determination of probable cause in the court file. Such record shall include, without limitation, the initial determination of whether the arrest was supported by probable cause, the time of the arrest, the time of the initial determination of probable cause, and any materials relied on by the court in making the determination.

(5)An initial determination of probable cause pursuant to this subdivision shall not be binding on the court in a preliminary hearing or any other future evidentiary proceeding to determine the existence of probable cause.

SEC. 3.

 Section 849 of the Penal Code is amended to read:

849.
 (a) When an arrest is made without a warrant by a peace officer or private person, the person arrested, if not otherwise released, shall, without unnecessary delay, and, in any event, within 48 hours after their arrest, be taken before the nearest or most accessible magistrate in the county in which the offense is triable, and a complaint stating the charge against the arrested person shall be laid before the magistrate.
(1) Promptly after any warrantless arrest, but no more than 48 hours after the arrest, the court shall review the basis for the arrest and make an initial determination as to whether probable cause exists that an offense has been committed and that the arrested person committed it. If a probable cause determination has not been made within 48 hours, the prosecution must demonstrate the existence of a bona fide emergency or other extraordinary circumstance.
(2) The initial probable cause determination described in paragraph (1) may be based on sworn statements from the arresting officer, may be conducted in chambers or remotely by the court, and need not be an adversary proceeding. The determination may also occur at the proceeding pursuant to subdivision (a) of this section and subdivision (a) of Section 825.
(3) If the court makes an initial finding of no probable cause pursuant to paragraph (1), the court shall order the person to be released immediately, and shall immediately convey that order to the person having custody of the arrested person.
(4) The court shall make a record of the initial determination of probable cause in the court file. That record shall include, without limitation, the initial determination of whether the arrest was supported by probable cause, the time of the arrest, the time of the initial determination of probable cause, and any materials relied on by the court in making the determination.
(5) An initial determination of probable cause pursuant to this subdivision shall not be binding on the court in a preliminary hearing or any other future evidentiary proceeding to determine the existence of probable cause.
(b) A peace officer may release from custody, instead of taking the person before a magistrate, a person arrested without a warrant in the following circumstances:
(1) The officer is satisfied that there are insufficient grounds for making a criminal complaint against the person arrested.
(2) The person arrested was arrested for intoxication only, and no further proceedings are desirable.
(3) The person was arrested only for being under the influence of a controlled substance or drug and the person is delivered to a facility or hospital for treatment and no further proceedings are desirable.
(4) The person was arrested for driving under the influence of alcohol or drugs and the person is delivered to a hospital for medical treatment that prohibits immediate delivery before a magistrate.
(5) The person was arrested and subsequently delivered to a hospital or other urgent care facility, including, but not limited to, a facility for the treatment of co-occurring substance use disorders, for mental health evaluation and treatment, and no further proceedings are desirable.
(c) The record of arrest of a person released pursuant to paragraph (1), (3), or (5) of subdivision (b) shall include a record of release. Thereafter, the arrest shall not be deemed an arrest, but a detention only.

SEC. 3.SEC. 4.

 Section 631 of the Welfare and Institutions Code is amended to read:

631.
 (a) Except as provided in subdivision (b), whenever Whenever a minor is taken into custody by a peace officer or probation officer, except when the minor willfully misrepresents themselves as 18 or more years of age, the minor shall be released within 48 hours after having been taken into custody, excluding nonjudicial days, unless within that period of time a petition to declare the minor a ward has been filed pursuant to this chapter or a criminal complaint against the minor has been filed in a court of competent jurisdiction. if that minor does not receive an initial judicial determination of probable cause. This determination may be based on sworn statements from the arresting officer, may be conducted in chambers or remotely by the court, and need not be an adversary proceeding. The determination may also occur at the detention hearing described in Section 632 if that hearing occurs within 48 hours after the arrest.
(b) Except when the minor represents themselves as 18 or more years of age, whenever a minor is taken into custody by a peace officer or probation officer without a warrant on the belief that the minor has committed a misdemeanor that does not involve violence, the threat of violence, or possession or use of a weapon, and if the minor is not currently on probation or parole, the minor shall be released within 48 hours after having been taken into custody , excluding nonjudicial days, unless a petition has been filed to declare the minor to be a ward of the court and the minor has been ordered detained by a judge or referee of the juvenile court pursuant to Section 635. In all cases involving the detention of a minor pursuant to this subdivision, section, any decision to detain the minor more than 24 hours shall be subject to written review and approval by a probation officer who is a supervisor as soon as possible after it is known that the minor will be detained more than 24 hours. However, if the initial decision to detain the minor more than 24 hours is made by a probation officer who is a supervisor, the decision shall not be subject to review and approval.
(c) Whenever a minor who has been held in custody for more than 24 hours by the probation officer is subsequently released and no petition is filed, the probation officer shall prepare a written explanation of why the minor was held in custody for more than 24 hours. The written explanation shall be prepared within 72 hours after the minor is released from custody and filed in the record of the case. A copy of the written explanation shall be sent to the parents, guardian, or other person having care or custody of the minor.

(d)In any case, a minor shall be released within 48 hours after having been taken into custody if that minor does not receive an initial judicial determination of probable cause. This determination may be based on sworn statements from the arresting officer, may be conducted in chambers or remotely by the court, and need not be an adversary proceeding. It may also occur at the detention hearing described in Section 632 if that hearing occurs within 48 hours after the arrest.

SEC. 4.SEC. 5.

 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.