Code Section Group

Penal Code - PEN

PART 2. OF CRIMINAL PROCEDURE [681 - 1620]

  ( Part 2 enacted 1872. )

TITLE 10. MISCELLANEOUS PROCEEDINGS [1268 - 1424.5]

  ( Title 10 enacted 1872. )

CHAPTER 1.5. Pretrial Custody Status [1320.7 - 1320.34]

  ( Chapter 1.5 added by Stats. 2018, Ch. 244, Sec. 4. )

ARTICLE 7. Preventive Detention Hearing [1320.19 - 1320.23]
  ( Article 7 added by Stats. 2018, Ch. 244, Sec. 4. )

1320.19.
  

(a) If the defendant is detained in custody, the preventive detention hearing shall be held no later than three court days after the motion for preventive detention is filed. If the defendant is not detained in custody, the preventive detention hearing shall be held no later than three court days after the defendant is brought into custody as a result of a warrant issued in accordance with subdivision (c). If the defendant is not in custody at the time of the request for a preventive detention hearing and the court does not issue a warrant in connection with the request for a hearing, the preventive detention hearing shall be held within five court days of the request for the hearing. By stipulation of counsel and with agreement of the court, the preventive detention hearing may be held in conjunction with the arraignment, or within three days after arraignment.

(b) For good cause, the defense or the prosecution may seek a continuance of the preventive detention hearing. If a request for a continuance is granted, the continuance may not exceed three court days unless stipulated by the parties.

(c) The hearing shall be completed at one session, unless the defendant personally waives his or her right to a continuous preventive detention hearing. If the defendant is out of custody at the time the preventive detention hearing is requested, the court, upon the filing of an application for a warrant in conjunction with the motion for preventive detention, may issue a warrant requiring the defendant’s placement in custody pending the completion of the preventive detention hearing.

(d) The defendant shall have the right to be represented by counsel at the hearing. If financially unable to obtain representation, the defendant has a right to have counsel appointed. The defendant has the right to be heard at the preventive detention hearing.

(e) Upon request of the victim of the crime, the victim shall be given notice by the prosecution of the preventive detention hearing. If requested, the victim shall be given a reasonable opportunity to be heard on the matter of the defendant’s custody status.

(f) The prosecution shall make a reasonable effort to contact the victim for comment on the defendant’s custody status. In instances where a victim cannot or does not wish to appear at the preventive detention hearing, the prosecution shall submit the victim’s comments, if any, on the defendant’s custody status in writing to the court and counsel.

(g) The appearance or nonappearance of a victim, and comments provided by a victim, shall be included in the record.

(Added by Stats. 2018, Ch. 244, Sec. 4. (SB 10) Effective date (January 1, 2019) suspended pursuant to referendum petition. Effective only if Ch. 244 is approved as a referendum measure at the November 3, 2020, election.)

1320.20.
  

(a) There shall be a rebuttable presumption that no condition or combination of conditions of pretrial supervision will reasonably assure public safety if the court finds probable cause to believe either of the following:

(1) The current crime is a violent felony as defined in subdivision (c) of Section 667.5, or was a felony offense committed with violence against a person, threatened violence, or with a likelihood of serious bodily injury, or one in which the defendant was personally armed with or personally used a deadly weapon or firearm in the commission of the crime, or was one in which he or she personally inflicted great bodily injury in the commission of the crime; or

(2) The defendant is assessed as “high risk” to the safety of the public or a victim and any of the following:

(A) The defendant was convicted of a serious felony as defined in subdivision (c) of Section 1192.7 or a violent felony as defined in subdivision (c) of Section 667.5, within the past 5 years.

(B) The defendant committed the current crime while pending sentencing for a crime described in paragraph (1) of subdivision (a).

(C) The defendant has intimidated, dissuaded, or threatened retaliation against a witness or victim of the current crime.

(D) At the time of arrest, the defendant was on any form of postconviction supervision other than informal probation or court supervision.

(b) The prosecution shall establish at the preventive detention hearing that there is probable cause to believe the defendant committed the charged crime or crimes in cases where there is no indictment, or if the defendant has not been held to answer following a preliminary hearing or waiver of a preliminary hearing, and the defendant challenges the sufficiency of the evidence showing that he or she committed the charged crime or crimes.

(c) The court shall make its decision regarding preventive detention, including the determination of probable cause to believe the defendant committed the charged crime or crimes, based on the statements, if any, of the defendant, offers of proof and argument of counsel, input from a victim, if any, and any evidence presented at the hearing. The court may consider reliable hearsay in making any decision under this section. The defendant shall have the right to testify at the hearing.

(d) (1) At the detention hearing, the court may order preventive detention of the defendant pending trial or other hearing only if the detention is permitted under the United States Constitution and under the California Constitution, and the court determines by clear and convincing evidence that no nonmonetary condition or combination of conditions of pretrial supervision will reasonably assure public safety or the appearance of the defendant in court as required. The court shall state the reasons for ordering preventive detention on the record.

(2) Upon the request of either party, a transcript of the hearing shall be provided within two court days after the request is made.

(3) If either party files a writ challenging the decision, the court of appeal shall expeditiously consider that writ.

(e) (1) If the court determines there is not a sufficient basis for detaining the defendant, the court shall release the defendant on his or her own recognizance or supervised own recognizance and impose the least restrictive nonmonetary condition or combination of conditions of pretrial release to reasonably assure public safety and the appearance of the defendant in court as required.

(2) A person shall not be required to pay for any nonmonetary condition or combination of conditions imposed pursuant to this subdivision.

(f) Solely for the purpose of determining whether the person should be detained or to establish the least restrictive nonmonetary conditions of pretrial release to impose, the court may take into consideration any relevant information, as set forth in a California Rule of Court, including, but not limited to, all of the following:

(1) The nature and circumstances of the crime charged.

(2) The weight of the evidence against the defendant, except that the court may consider the admissibility of any evidence sought to be excluded.

(3) The defendant’s past conduct, family and community ties, criminal history, and record concerning appearance at court proceedings.

(4) Whether, at the time of the current crime or arrest, the defendant was on probation, parole, or on another form of supervised release pending trial, sentencing, appeal, or completion of sentence for an offense under federal law, or the law of this or any other state.

(5) The nature and seriousness of the risk to the safety of any other person or the community posed by the defendant’s release, if applicable.

(6) The recommendation of Pretrial Assessment Services obtained using a validated risk assessment instrument.

(7) The impact of detention on the defendant’s family responsibilities and community ties, employment, and participation in education.

(8) Any proposed plan of supervision.

(g) If a defendant is released from custody following a preventive detention hearing, the court, in the document authorizing the defendant’s release, shall notify the defendant of both of the following:

(1) All the conditions, if any, to which the release is subject, in a manner sufficiently clear and specific to serve as a guide for the defendant’s conduct.

(2) The penalties for and other consequences of violating a condition of release, which may include the immediate arrest or issuance of a warrant for the defendant’s arrest.

(Added by Stats. 2018, Ch. 244, Sec. 4. (SB 10) Effective date (January 1, 2019) suspended pursuant to referendum petition. Effective only if Ch. 244 is approved as a referendum measure at the November 3, 2020, election.)

1320.21.
  

(a) Upon a showing of newly discovered evidence, facts, or material change in circumstances, the prosecution or defense may file a motion to reopen a preventive detention hearing or for a new hearing at any time before trial. The court, on its own motion, may reopen a preventive detention hearing based on newly discovered evidence, facts, or a material change in circumstances brought to the court’s attention by Pretrial Assessment Services.

(b) Any motion for a hearing after the initial preventive detention hearing shall state the evidence or circumstances not known at the time of the preventive detention hearing or the material change in circumstances warranting a reopened or new preventive detention hearing, including whether there are conditions of release that will reasonably assure public safety and the defendant’s return to court as required.

(c) Upon request of the victim of the crime, the victim shall be given notice by the prosecution of the reopened preventive detention hearing. If requested, the victim shall be given a reasonable opportunity to be heard on the matter of the defendant’s custody status.

(d) The court may grant the motion to reopen a preventive detention hearing or for a new hearing upon good cause shown.

(e) The court’s determination regarding the custody status of the defendant shall be made in accordance with the provisions of this chapter.

(Added by Stats. 2018, Ch. 244, Sec. 4. (SB 10) Effective date (January 1, 2019) suspended pursuant to referendum petition. Effective only if Ch. 244 is approved as a referendum measure at the November 3, 2020, election.)

1320.22.
  

The court may issue a warrant for the defendant’s arrest upon an ex parte application showing that the defendant has violated a condition of release imposed by the court. Upon the defendant’s arrest, his or her custody status shall be reviewed in accordance with this chapter.

(Added by Stats. 2018, Ch. 244, Sec. 4. (SB 10) Effective date (January 1, 2019) suspended pursuant to referendum petition. Effective only if Ch. 244 is approved as a referendum measure at the November 3, 2020, election.)

1320.23.
  

(a) If the court issues an arrest warrant, or a bench warrant based upon a defendant’s failure to appear in court as required, or upon allegations that the defendant has violated a condition of pretrial or postconviction supervision, the court may indicate on the face of the warrant whether, at the time the defendant is arrested on the warrant, the defendant should be booked and released, detained for an initial review, detained pending arraignment, or detained pending a hearing on the violation of supervision.

(b) If the prosecution, law enforcement, or supervising agency requests a warrant with a custody status for the defendant other than book and release, the agency shall provide the court with the factors justifying a higher level of supervision or detention.

(c) The court’s release or detention indication on the warrant shall be binding on the arresting and booking agency and the custody facility, but is not binding on any subsequent decision by a court or Pretrial Assessment Services. The indication is, however, one factor that may be considered by Pretrial Assessment Services or the court when determining the person’s custody status in subsequent proceedings.

(d) If the person is arrested on a misdemeanor warrant, the determination of the person’s custody status shall start with the procedures set forth in Section 1320.8. If the person is arrested on a felony warrant, the determination of the person’s custody status shall start with the procedures set forth in Section 1320.9.

(Added by Stats. 2018, Ch. 244, Sec. 4. (SB 10) Effective date (January 1, 2019) suspended pursuant to referendum petition. Effective only if Ch. 244 is approved as a referendum measure at the November 3, 2020, election.)

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