Bill Text: CA AB1209 | 2023-2024 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Criminal procedure: public defenders.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Failed) 2024-02-01 - From committee: Filed with the Chief Clerk pursuant to Joint Rule 56. [AB1209 Detail]

Download: California-2023-AB1209-Amended.html

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Amended  IN  Assembly  April 17, 2023

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Assembly Bill

No. 1209

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Introduced by Assembly Member Jones-Sawyer

February 16, 2023

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An act to amend Section 825 of the Penal Code, Sections 27706 and 27707 of the Government Code, and to amend Sections 813, 825, 851.5, 853.6, 987.2, and 1018 of, and to add Section 975 to, the Penal Code, relating to criminal procedure.

LEGISLATIVE COUNSEL'S DIGEST

AB 1209, as amended, Jones-Sawyer. Criminal procedure: attorney visits. public defenders.

(1) Existing law allows the board of supervisors of any county to establish the office of the public defender and requires the public defender to, among other duties, defend a person who is not financially able to employ counsel and who is charged with the commission of a crime. Existing law authorizes the court to make the final determination as to whether a defendant is financially able to employ counsel and qualifies for the services of the public defender.

This bill would require this representation to commence as soon as feasible after being notified of a person’s arrest, but in any case within 24 hours after booking or sufficiently before the arraignment to allow the provision of meaningful representation, as specified. The bill would establish a presumption that a person detained when this representation begins is unable to financially employ counsel and eligible for indigent defense services. The bill would additionally require the public defender or indigent defense provider to, prior to the arraignment, individually and confidentially advise a person who has been cited or arrested for a misdemeanor or felony on the importance of the right to counsel, including potential collateral consequences and the right to the assistance of counsel at no expense if the defendant is not financially able to employ counsel. The bill would require the court to ensure this advisal has occurred prior to accepting a waiver of counsel.

(2) Under existing law, immediately upon being booked and, except where physically impossible, no later than three hours after arrest, an arrested person has the right to make at least three completed telephone calls, as specified. Existing law requires that a sign informing the arrested person of this right be posted in a conspicuous place. Under existing law, if the arrested person is identified as a custodial parent with responsibility for a minor child, the arrested person is entitled to make 2 additional calls for the purpose of arranging for the care of the minor child in the parent’s absence, as specified.

This bill would additionally require the arresting or booking officer to verbally inform the arrested person of this right. The bill would specify that the arrested person has the right to free telephone calls both during and outside of business hours. The bill would allow an arrested person to make 2 additional calls if they are responsible for providing care to another household member for the purpose of arranging for their care. The bill would require the arresting or booking officer to, immediately upon booking and no later than 2 hours after arrest, notify the public defender or indigent defense provider for the county that the arrested person is in custody.

(3) Existing law prohibits the court from accepting a plea of guilty for a felony not punishable by death or life imprisonment from a defendant who does not appear with counsel unless the court fully informs the defendant of the right to counsel and finds that the defendant understands the right and freely waives it, as specified.

This bill would expand this to misdemeanors, require an additional advisal prior to a person waiving the right to counsel, and require the court to inform the defendant through an individualized colloquy and in writing of their right to counsel, as specified. The bill would establish a presumption that a plea taken without counsel is not knowing, intelligent, and voluntary, as specified. The bill would prohibit a prosecutor and judge from communicating a plea offer, disposition, or resolution to a defendant unless counsel is present or the defendant has waived counsel, as specified.

Existing

(4) Existing law requires a person 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. Existing law allows an attorney to visit a prisoner after their arrest upon the request of the prisoner or their relative, as specified.

This bill would additionally allow an attorney’s representative to visit a prisoner after their arrest.

By expanding the duties of the public defender and imposing new duties on local agencies, 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.

Digest Key

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NOYES   Local Program: NOYES  

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Bill Text

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

SECTION 1.

 Section 27706 of the Government Code is amended to read:

27706.

 The public defender shall perform the following duties:

(a) (1) Upon request of the defendant defendant, following arrest and booking into jail and beginning prior to the arraignment, or upon order of the court, the public defender shall defend, without expense to the defendant, any person who is not financially able to employ counsel and who is charged with the commission of any contempt or offense triable in the superior courts at all stages of the proceedings, including the arraignment, pretrial release hearing, and preliminary examination. The public defender shall, upon request, shall give counsel and advice to such person about any charge against the person upon which the public defender is conducting the defense, and shall prosecute all appeals to a higher court or courts of any person who has been convicted, where, in the opinion of the public defender, the appeal will or might reasonably be expected to result in the reversal or modification of the judgment of conviction.

(2) The public defender shall commence the representation described in this subdivision as soon as feasible after being notified of a person’s arrest, but in any case within 24 hours after booking or sufficiently before the arraignment to allow the provision of meaningful representation, whichever occurs sooner. Sufficient time before the arraignment means the public defender has time to interview the defendant, make a meaningful argument to secure pretrial release when appropriate, and adequately advise the accused.

(b) Upon request, the public defender shall prosecute actions for the collection of wages and other demands of any person who is not financially able to employ counsel, where the sum involved does not exceed one hundred dollars ($100), and where, in the judgment of the public defender, the claim urged is valid and enforceable in the courts.

(c) Upon request, the public defender shall defend any person who is not financially able to employ counsel in any civil litigation in which, in the judgment of the public defender, the person is being persecuted or unjustly harassed.

(d) Upon request, or upon order of the court, the public defender shall represent any person who is not financially able to employ counsel in proceedings under Division 4 (commencing with Section 1400) of the Probate Code and Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code.

(e) Upon order of the court, the public defender shall represent any person who is entitled to be represented by counsel but is not financially able to employ counsel in proceedings under Chapter 2 (commencing with Section 500) of Part 1 of Division 2 of the Welfare and Institutions Code.

(f) Upon order of the court the public defender shall represent any person who is required to have counsel pursuant to Section 686.1 of the Penal Code.

(g) Upon the order of the court or upon the request of the person involved, the public defender may represent any person who is not financially able to employ counsel in a proceeding of any nature relating to the nature or conditions of detention, of other restrictions prior to adjudication, of treatment, or of punishment resulting from criminal or juvenile proceedings.

(h)This section shall become operative July 1, 2021.

SEC. 2.

 Section 27707 of the Government Code is amended to read:

27707.

 (a) The court in which the proceeding is pending may make the final determination in each case as to whether a defendant or person described in Section 27706 is financially able to employ counsel and qualifies for the services of the public defender. The public defender shall, however, render legal services as provided in subdivisions (a), (b) and (c) of Section 27706 for any person the public defender determines is not financially able to employ counsel until such time as a contrary determination is made by the court. If a contrary determination is made, the public defender thereafter may not render services for such person except in a proceeding to review the determination of that issue or in an unrelated proceeding. In order to assist the court or public defender in making the determination, the court or the public defender may require a defendant or person requesting services of the public defender to file a financial statement under penalty of perjury. The financial statement shall be confidential and privileged and shall not be admissible as evidence in any criminal proceeding except the prosecution of an alleged offense of perjury based upon false material contained in the financial statement. The financial statement shall be made available to the prosecution only for purposes of investigation of an alleged offense of perjury based upon false material contained in the financial statement at the conclusion of the proceedings for which such financial statement was required to be submitted.

(b)This section shall become operative on July 1, 2021.

(b) A person who is detained when the representation in subdivision (a) of Section 27706 begins shall be presumed unable to financially employ counsel and eligible for indigent defense services.

SEC. 3.

 Section 813 of the Penal Code is amended to read:

813.

 (a) When a complaint is filed with a magistrate charging a felony originally triable in the superior court of the county in which he or she sits, they sit, if, and only if, the magistrate is satisfied from the complaint that the offense complained of has been committed and that there is reasonable ground to believe that the defendant has committed it, the magistrate shall issue a warrant for the arrest of the defendant, except that, upon the request of the prosecutor, a summons instead of an arrest warrant shall be issued.

(b) A summons issued pursuant to this section shall be in substantially the same form as an arrest warrant and shall contain all of the following:

(1) The name of the defendant.

(2) The date and time the summons was issued.

(3) The city or county where the summons was issued.

(4) The signature of the magistrate, judge, justice, or other issuing authority who is issuing the summons with the title of his or her their office and the name of the court or other issuing agency.

(5) The offense or offenses with which the defendant is charged.

(6) The time and place at which the defendant is to appear.

(7) Notification that the defendant is to complete the booking process on or before his or her their first court appearance, as well as instructions for the defendant on completing the booking process.

(8) A provision for certification by the booking agency that the defendant has completed the booking process which shall be presented to the court by the defendant as proof of booking.

(9) Notification of the defendant’s right to counsel, the right to the assistance of counsel at no expense if the defendant is not financially able to employ counsel, and the contact information for the public defender or, if there is no public defender, the indigent defense provider for the county.

(c) If a defendant has been properly served with a summons and thereafter fails to appear at the designated time and place, a bench warrant for arrest shall issue. In the absence of proof of actual receipt of the summons by the defendant, a failure to appear shall not be used in any future proceeding.

(d) A defendant who responds to a summons issued pursuant to this section and who has not been booked as provided in subdivision (b) shall be ordered by the court to complete the booking process.

(e) The prosecutor shall not request the issuance of a summons in lieu of an arrest warrant as provided in this section under any of the following circumstances:

(1) The offense charged involves violence.

(2) The offense charged involves a firearm.

(3) The offense charged involves resisting arrest.

(4) There are one or more outstanding arrest warrants for the person.

(5) The prosecution of the offense or offenses with which the person is charged, or the prosecution of any other offense or offenses would be jeopardized.

(6) There is a reasonable likelihood that the offense or offenses would continue or resume, or that the safety of persons or property would be imminently endangered.

(7) There is reason to believe that the person would not appear at the time and place specified in the summons.

SECTION 1.SEC. 4.

 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 magistrate without unnecessary delay, and, in any event, within 48 hours after their arrest, excluding Sundays and holidays.

(2) If the 48 hours prescribed by paragraph (1) expire at a time when the court in which the magistrate is sitting is not in session, that time shall be extended to include the duration of the next court session on the judicial day immediately following. If the 48-hour period expires at a time when the court in which the magistrate is sitting is in session, the arraignment may take place at any time during that session. However, when the defendant’s arrest occurs on a Wednesday after the conclusion of the day’s court session, and if the Wednesday is not a court holiday, the defendant shall be taken before the magistrate not later than the following Friday, if the Friday is not a court holiday.

(b) After the arrest, an attorney at law entitled to practice in the courts of record of California, or an attorney’s representative, may, at the request of the prisoner or a relative of the prisoner, visit the prisoner. An officer having charge of the prisoner who willfully refuses or neglects to allow that attorney to visit a prisoner is guilty of a misdemeanor. An 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 a court of competent jurisdiction.

SEC. 5.

 Section 851.5 of the Penal Code is amended to read:

851.5.

 (a) (1) Immediately upon being booked and, except where physically impossible, no later than three hours after arrest, an arrested person has the right to make at least three completed telephone calls, as described in subdivision (b).

(2) The arrested person shall be entitled to make at least three calls at no expense if the calls are completed to telephone numbers within the local calling area or at his or her their own expense if outside the local calling area.

(b) At any a police facility or place where an arrestee arrested person is detained, the arresting or booking officer shall verbally inform the arrested person of the following information, and a sign containing the following information in bold block type shall be posted in a conspicuous place:

The arrestee arrested person has the right to free telephone calls calls, both during and outside of business hours, within the local calling area, or at his or her their own expense if outside the local calling area, to three of the following:

(1) An attorney of his or her their choice or, if he or she has they have no funds, the public defender or other attorney assigned by the court to assist indigents, whose telephone number shall be posted. This telephone call shall not be monitored, eavesdropped upon, or recorded.

(2) A bail bondsman.

(3) A relative or other person.

(c) As soon as practicable upon being arrested but, except where physically impossible, no later than three hours after arrest, the arresting or booking officer shall inquire as to whether the arrested person is a custodial parent with responsibility for a minor child. child, or is responsible for providing care to another household member. The arresting or booking officer shall notify the arrested person who is a custodial parent with responsibility for a minor child or who is responsible for providing care for another household member that he or she is they are entitled to, and may request to, make two additional telephone calls at no expense if the telephone calls are completed to telephone numbers within the local calling area, or at his or her their own expense if outside the local calling area, to a relative or other person for the purpose of arranging for the care of the minor child or children in the parent’s absence. household member in the arrested person’s absence.

(d) At any a police facility or place where an arrestee arrested person is detained, a sign containing the following information in bold block type shall be posted in a conspicuous place:

The arrestee, arrested person, if he or she is they are a custodial parent with responsibility for a minor child, has the right to two additional telephone calls within the local dialing area, or at his or her their own expense if outside the local area, for the purpose of arranging for the care of the minor child or children in the parent’s absence.

(e) These telephone calls shall be given immediately upon request, or as soon as practicable.

(f) The signs posted pursuant to subdivisions (b) and (d) shall make the specified notifications in English and any non-English language spoken by a substantial number of the public, as specified in Section 7296.2 of the Government Code, who are served by the police facility or place of detainment.

(g) The rights and duties set forth in this section shall be enforced regardless of the arrestee’s arrested person’s immigration status.

(h) This provision shall not abrogate a law enforcement officer’s duty to advise a suspect of his or her their right to counsel or of any other right.

(i) Any public officer or employee who willfully deprives an arrested person of any right granted by this section is guilty of a misdemeanor.

(j) Immediately upon booking, and no later than two hours after the arrest, the arresting or booking officer shall notify the public defender or, if there is no public defender, the indigent defense provider for the county, that the arrested person is in custody.

SEC. 6.

 Section 853.6 of the Penal Code, as amended by Section 1 of Chapter 856 of the Statutes of 2022, is amended to read:

853.6.

 (a) (1) When a person is arrested for an offense declared to be a misdemeanor, including a violation of a 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, although nothing prevents an officer from first booking an arrestee arrested person pursuant to subdivision (g). If the person is released, the officer or the officer’s 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. The notice shall also include notification of the defendant’s right to counsel, the right to the assistance of counsel at no expense if the defendant is not financially able to employ counsel, and the contact information for the public defender or, if there is no public defender, the indigent defense provider for the county. If, pursuant to subdivision (i), the person is not released prior to being booked and the officer in charge of the booking or the officer’s superior determines that the person should be released, the officer or the officer’s superior shall prepare a written notice to appear in a court.

(2) When a person is arrested for a misdemeanor violation of a protective court order involving domestic violence, as defined in Section 13700, or arrested pursuant to a policy, as described in Section 13701, 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. Prior to adopting these provisions, each city, county, or city and county shall develop a protocol to assist officers to determine when arrest and release is appropriate, rather than taking the arrested person before a magistrate. The county shall establish a committee to develop the protocol, consisting of, at a minimum, the police chief or county sheriff within the jurisdiction, the district attorney, county counsel, city attorney, representatives from domestic violence shelters, domestic violence councils, and other relevant community agencies.

(3) This subdivision does not apply to the crimes specified in Section 1270.1, including crimes defined in each of the following:

(A) Paragraph (1) of subdivision (e) of Section 243.

(B) Section 273.5.

(C) Section 273.6, if the detained person made threats to kill or harm, has engaged in violence against, or has gone to the residence or workplace of, the protected party.

(D) Section 646.9.

(4) This subdivision shall not affect a defendant’s ability to be released on bail or on their own recognizance, except as specified in Section 1270.1.

(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 their written promise to appear in court as specified in the notice by signing the duplicate notice, which shall be retained by the officer, and the officer may require the arrested person, if the arrested person has no satisfactory identification, to place a right thumbprint, or a left thumbprint or fingerprint if the person has a missing or disfigured right thumb, on the notice to appear. Except for law enforcement purposes relating to the identity of the arrestee, arrested person, a person or entity shall not sell, give away, allow the distribution of, include in a database, or create a database with, this print. 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) (A) 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).

(B) If the duplicate notice is filed with the prosecuting attorney, the prosecuting attorney, within their 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.

(C) 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 that in the magistrate’s judgment, in accordance with Section 1275, is reasonable and sufficient for the appearance of the defendant and shall endorse upon the notice a statement signed by the magistrate in the form set forth in Section 815a. The defendant may, prior to the date upon which the defendant 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 the magistrate’s discretion, order that further proceedings shall not be had in the case, unless the defendant has been charged with a 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 the defendant has previously been convicted of a violation of that section or a violation that is punishable under that section, except when the magistrate finds that undue hardship will be imposed upon the defendant by requiring the defendant to appear, the magistrate may declare the bail forfeited and order that further proceedings not be had in the case.

(D) Upon the making of the order that further proceedings not be had, all sums deposited as bail shall immediately be paid into the county treasury for distribution pursuant to Section 1463.

(f) A warrant shall not be issued for the arrest of a person who has given a written promise to appear in court, unless and until the person 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 at the scene or at the arresting agency 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 making an entry on the citation. 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 the defendant 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 the officer has taken custody of a person pursuant to Section 847.

(i) When a person is arrested by a peace officer for a misdemeanor, that person shall be released according to the procedures set forth in this chapter unless one of the following is a reason for nonrelease, in which case the arresting officer may release the person, except as provided in subdivision (a), or the arresting officer shall indicate, on a form to be established by the officer’s employing law enforcement agency, which of the following was a reason for the nonrelease:

(1) The person arrested was so intoxicated that they could have been a danger to themselves or to others.

(2) The person arrested required medical examination or medical care or was otherwise unable to care for their 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.

(10) (A) The person was subject to Section 1270.1.

(B) 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 the arrested person from custody before trial.

(11) The person has been cited, arrested, or convicted for misdemeanor or felony theft from a store in the previous six months.

(12) There is probable cause to believe that the person arrested is guilty of committing organized retail theft, as defined in subdivision (a) of Section 490.4.

(j) (1) 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).

(2) 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 a 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.

(3) 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.

(4) If the magistrate makes a finding that there are grounds for dismissal, the finding shall be entered in the record and the charges dismissed.

(5) A personal relationship with any officer, public official, or law enforcement agency shall not be grounds for dismissal.

(k) (1) A person contesting a charge by claiming under penalty of perjury not to be the person issued the notice to appear may choose to submit a right thumbprint, or a left thumbprint if the person has a missing or disfigured right thumb, to the issuing court through the person’s local law enforcement agency for comparison with the one placed on the notice to appear. A local law enforcement agency providing this service may charge the requester no more than the actual costs. The issuing court may refer the thumbprint submitted and the notice to appear to the prosecuting attorney for comparison of the thumbprints. When there is no thumbprint or fingerprint on the notice to appear, or when the comparison of thumbprints is inconclusive, the court shall refer the notice to appear or copy thereof back to the issuing agency for further investigation, unless the court finds that referral is not in the interest of justice.

(2) Upon initiation of the investigation or comparison process by referral of the court, the court shall continue the case and the speedy trial period shall be tolled for 45 days.

(3) Upon receipt of the issuing agency’s or prosecuting attorney’s response, the court may make a finding of factual innocence pursuant to Section 530.6 if the court determines that there is insufficient evidence that the person cited is the person charged and shall immediately notify the Department of Motor Vehicles of its determination. If the Department of Motor Vehicles determines the citation or citations in question formed the basis of a suspension or revocation of the person’s driving privilege, the department shall immediately set aside the action.

(4) If the prosecuting attorney or issuing agency fails to respond to a court referral within 45 days, the court shall make a finding of factual innocence pursuant to Section 530.6, unless the court finds that a finding of factual innocence is not in the interest of justice.

(5) The citation or notice to appear may be held by the prosecuting attorney or issuing agency for future adjudication should the arrestee arrested person who received the citation or notice to appear be found.

(l) For purposes of this section, the term “arresting agency” includes any other agency designated by the arresting agency to provide booking or fingerprinting services.

(m) This section shall remain in effect only until January 1, 2026, and as of that date is repealed.

SEC. 7.

 Section 853.6 of the Penal Code, as added by Section 2 of Chapter 856 of the Statutes of 2022, is amended to read:

853.6.

 (a) (1) When a person is arrested for an offense declared to be a misdemeanor, including a violation of a 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, however an officer may first book an arrestee arrested person pursuant to subdivision (g). If the person is released, the officer or the officer’s 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. The notice shall also include notification of the defendant’s right to counsel, the right to the assistance of counsel at no expense if the defendant is not financially able to employ counsel, and the contact information for the public defender or, if there is no public defender, the indigent defense provider for the county. If, pursuant to subdivision (i), the person is not released prior to being booked and the officer in charge of the booking or the officer’s superior determines that the person should be released, the officer or the officer’s superior shall prepare a written notice to appear in a court.

(2) When a person is arrested for a misdemeanor violation of a protective court order involving domestic violence, as defined in subdivision (b) of Section 13700, or arrested pursuant to a policy described in Section 13701, 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. Prior to adopting these provisions, each city, county, or city and county shall develop a protocol to assist officers to determine when arrest and release is appropriate, rather than taking the arrested person before a magistrate. The county shall establish a committee to develop the protocol, consisting of, at a minimum, the police chief or county sheriff within the jurisdiction, the district attorney, county counsel, city attorney, representatives from domestic violence shelters, domestic violence councils, and other relevant community agencies.

(3) This subdivision shall not apply to the crimes specified in Section 1270.1, including crimes defined in each of the following:

(A) Paragraph (1) of subdivision (e) of Section 243.

(B) Section 273.5.

(C) Section 273.6, if the detained person made threats to kill or harm, has engaged in violence against, or has gone to the residence or workplace of, the protected party.

(D) Section 646.9.

(4) This subdivision does not affect a defendant’s ability to be released on bail or on their own recognizance, except as specified in Section 1270.1.

(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 their written promise to appear in court as specified in the notice by signing the duplicate notice, which shall be retained by the officer. The officer may require the arrested person, if the arrested person has no satisfactory identification, to place a right thumbprint, or a left thumbprint or fingerprint if the person has a missing or disfigured right thumb, on the notice to appear. Except for law enforcement purposes relating to the identity of the arrestee, arrested person, a person or entity may not sell, give away, allow the distribution of, include in a database, or create a database with, this print. Upon the person signing 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) (A) 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).

(B) If the duplicate notice is filed with the prosecuting attorney, the prosecuting attorney, within their 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.

(C) 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 that in the magistrate’s judgment, in accordance with Section 1275, is reasonable and sufficient for the appearance of the defendant and shall endorse upon the notice a statement signed by the magistrate in the form set forth in Section 815a. The defendant may, prior to the date upon which the defendant promised to appear in court, deposit with the magistrate the amount of bail set by the magistrate. When 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 the magistrate’s discretion, order that no further proceedings shall be had in the case, unless the defendant has been charged with a 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 the defendant has previously been convicted of a violation of that section or a violation that is punishable under that section, except in cases where the magistrate finds that undue hardship will be imposed upon the defendant by requiring the defendant to appear, the magistrate may declare the bail forfeited and order that no further proceedings be had in the case.

(D) 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) A warrant shall not be issued for the arrest of a person who has given a written promise to appear in court, unless and until the person 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 at the scene or at the arresting agency 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 making an entry on the citation. 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 the defendant 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 the officer has taken custody of a person pursuant to Section 847.

(i) When a 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, except as provided in subdivision (a), or the arresting officer shall indicate, on a form to be established by the officer’s employing law enforcement agency, which of the following was a reason for the nonrelease:

(1) The person arrested was so intoxicated that they could have been a danger to themselves or to others.

(2) The person arrested required medical examination or medical care or was otherwise unable to care for their 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.

(10) (A)   The person was subject to Section 1270.1.

(B) 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 the arrested person from custody before trial.

(j) (1) 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).

(2) A 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.

(3) 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.

(4) If the magistrate makes a finding that there are grounds for dismissal, the finding shall be entered in the record and the charges dismissed.

(5) A personal relationship with any officer, public official, or law enforcement agency shall not be grounds for dismissal.

(k) (1) A person contesting a charge by claiming under penalty of perjury not to be the person issued the notice to appear may choose to submit a right thumbprint, or a left thumbprint if the person has a missing or disfigured right thumb, to the issuing court through the person’s local law enforcement agency for comparison with the one placed on the notice to appear. A local law enforcement agency providing this service may charge the requester no more than the actual costs. The issuing court may refer the thumbprint submitted and the notice to appear to the prosecuting attorney for comparison of the thumbprints. When there is no thumbprint or fingerprint on the notice to appear, or when the comparison of thumbprints is inconclusive, the court shall refer the notice to appear, or a copy thereof, back to the issuing agency for further investigation, unless the court finds that referral is not in the interest of justice.

(2) Upon initiation of the investigation or comparison process by referral of the court, the court shall continue the case and the speedy trial period shall be tolled for 45 days.

(3) Upon receipt of the issuing agency’s or prosecuting attorney’s response, the court may make a finding of factual innocence pursuant to Section 530.6 if the court determines that there is insufficient evidence that the person cited is the person charged and shall immediately notify the Department of Motor Vehicles of its determination. If the Department of Motor Vehicles determines the citation or citations in question formed the basis of a suspension or revocation of the person’s driving privilege, the department shall immediately set aside the action.

(4) If the prosecuting attorney or issuing agency fails to respond to a court referral within 45 days, the court shall make a finding of factual innocence pursuant to Section 530.6, unless the court finds that a finding of factual innocence is not in the interest of justice.

(5) The citation or notice to appear may be held by the prosecuting attorney or issuing agency for future adjudication should the arrestee arrested person who received the citation or notice to appear be found.

(l) For purposes of this section, the term “arresting agency” includes any other agency designated by the arresting agency to provide booking or fingerprinting services.

(m) This section shall become operative January 1, 2026.

SEC. 8.

 Section 975 is added to the Penal Code, to read:

975.

 (a) The public defender or indigent defense provider shall individually and confidentially advise a person who has been cited, summoned, or arrested for a misdemeanor or felony on the importance of the right to counsel, including potential collateral consequences and the right to the assistance of counsel at no expense if the defendant is not financially able to employ counsel.

(b) The court shall ensure that the requirements of this section are met prior to accepting a waiver of counsel.

(c) The individual advisal described in subdivision (a) shall occur in advance of the defendant’s initial arraignment and shall not delay a court date set for the defendant, unless the defendant consents to the delay.

SEC. 9.

 Section 987.2 of the Penal Code is amended to read:

987.2.

 (a) In any case in which a person, including a person who is a minor, desires but is unable to employ counsel, and in which counsel is assigned in the superior court to represent the person in a criminal trial, proceeding, or appeal, the following assigned counsel shall receive a reasonable sum for compensation and for necessary expenses, the amount of which shall be determined by the court, to be paid out of the general fund of the county:

(1) In a county or city and county in which there is no public defender.

(2) In a county of the first, second, or third class where there is no contract for criminal defense services between the county and one or more responsible attorneys.

(3) In a case in which the court finds that, because of a conflict of interest or other reasons, the public defender has properly refused.

(4) In a county of the first, second, or third class where attorneys contracted by the county are unable to represent the person accused.

(b) The sum provided for in subdivision (a) may be determined by contract between the court and one or more responsible attorneys after consultation with the board of supervisors as to the total amount of compensation and expenses to be paid, which shall be within the amount of funds allocated by the board of supervisors for the cost of assigned counsel in those cases.

(c) In counties that utilize an assigned private counsel system as either the primary method of public defense or as the method of appointing counsel in cases where the public defender is unavailable, the assigned private counsel shall perform the duties required of the public defender pursuant to subdivision (a) of Section 27706 of the Government Code. The county, the courts, or the local county bar association working with the courts are encouraged to do all of the following:

(1) Establish panels that shall be open to members of the State Bar of California.

(2) Categorize attorneys for panel placement on the basis of experience.

(3) Refer cases to panel members on a rotational basis within the level of experience of each panel, except that a judge may exclude an individual attorney from appointment to an individual case for good cause.

(4) Seek to educate those panel members through an approved training program.

(d) In a county of the first, second, or third class, the court shall first utilize the services of the public defender to provide criminal defense services for indigent defendants. In the event that the public defender is unavailable and the county and the courts have contracted with one or more responsible attorneys or with a panel of attorneys to provide criminal defense services for indigent defendants, the court shall utilize the services of the county-contracted attorneys prior to assigning any other private counsel. Nothing in this subdivision shall be construed to require the appointment of counsel in any case in which the counsel has a conflict of interest. In the interest of justice, a court may depart from that portion of the procedure requiring appointment of a county-contracted attorney after making a finding of good cause and stating the reasons therefor on the record.

(e) In a county of the first, second, or third class, the court shall first utilize the services of the public defender to provide criminal defense services for indigent defendants. In the event that the public defender is unavailable and the county has created a second public defender and contracted with one or more responsible attorneys or with a panel of attorneys to provide criminal defense services for indigent defendants, and if the quality of representation provided by the second public defender is comparable to the quality of representation provided by the public defender, the court shall next utilize the services of the second public defender and then the services of the county-contracted attorneys prior to assigning any other private counsel. Nothing in this subdivision shall be construed to require the appointment of counsel in any case in which the counsel has a conflict of interest. In the interest of justice, a court may depart from that portion of the procedure requiring appointment of the second public defender or a county-contracted attorney after making a finding of good cause and stating the reasons therefor on the record.

(f) In any case in which counsel is assigned as provided in subdivision (a), that counsel appointed by the court and any court-appointed licensed private investigator shall have the same rights and privileges to information as the public defender and the public defender investigator. It is the intent of the Legislature in enacting this subdivision to equalize any disparity that exists between the ability of private, court-appointed counsel and investigators, and public defenders and public defender investigators, to represent their clients. This subdivision is not intended to grant to private investigators access to any confidential Department of Motor Vehicles’ information not otherwise available to them. This subdivision is not intended to extend to private investigators the right to issue subpoenas.

(g) Notwithstanding any other provision of this section, where an indigent defendant is first charged in one county and establishes an attorney-client relationship with the public defender, defense services contract attorney, or private attorney, and where the defendant is then charged with an offense in a second or subsequent county, the court in the second or subsequent county may appoint the same counsel as was appointed in the first county to represent the defendant when all of the following conditions are met:

(1) The offense charged in the second or subsequent county would be joinable for trial with the offense charged in the first if it took place in the same county, or involves evidence which would be cross-admissible.

(2) The court finds that the interests of justice and economy will be best served by unitary representation.

(3) Counsel appointed in the first county consents to the appointment.

(h) The county may recover costs of public defender services under Chapter 6 (commencing with Section 4750) of Title 5 of Part 3 for any case subject to Section 4750.

(i) Counsel shall be appointed to represent, in a misdemeanor case, a person who desires but is unable to employ counsel, when it appears that the appointment is necessary to provide an adequate and effective defense for the defendant. counsel. Appointment of counsel in an infraction case is governed by Section 19.6.

(j) As used in this section, “county of the first, second, or third class” means the county of the first class, county of the second class, and county of the third class as provided by Sections 28020, 28022, 28023, and 28024 of the Government Code.

(k)This section shall become operative on July 1, 2021.

SEC. 10.

 Section 1018 of the Penal Code is amended to read:

1018.

 (a) Unless otherwise provided by law, every plea shall be entered or withdrawn by the defendant himself or herself in open court. No A plea of guilty of a felony for which the maximum punishment is death, or life imprisonment without the possibility of parole, shall not be received from a defendant who does not appear with counsel, nor shall that plea be received without the consent of the defendant’s counsel. No A plea of guilty of a felony for which the maximum punishment is not death or life imprisonment without the possibility of parole shall be accepted from any defendant who does not appear with counsel unless the court shall first fully inform him or her of the right to counsel and unless the court shall find parole, or a misdemeanor, shall not be accepted from a defendant who does not appear with counsel unless the consultation described in Section 975 has occurred and the court, in the presence of counsel and the defendant, first fully informs the defendant through an individualized colloquy and in writing of the right to counsel and the court finds that the defendant understands the right to counsel and freely waives it, and then only if the defendant has expressly stated in open court, court and in writing, to the court, that he or she does they do not wish to be represented by counsel. On application of the defendant at any time before judgment or within six months after an order granting probation is made if entry of judgment is suspended, the court may, and in case of a defendant who appeared without counsel at the time of the plea the court shall, for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted. Upon indictment or information against a corporation a plea of guilty may be put in by counsel. This section shall be liberally construed to effect these objects and to promote justice.

(b) There shall be a presumption that a plea taken without counsel is not knowing, intelligent, and voluntary in violation of the Fifth Amendment to the United States Constitution. This presumption shall only be overcome if the defendant has waived counsel pursuant to the requirements of subdivision (a) and the consultation pursuant to Section 975 has occurred. The court retains jurisdiction to hear a motion to vacate a conviction pursuant to this subdivision at any time after the conviction.

(c) A prosecutor or a judge shall not communicate a plea offer, disposition, or resolution on a pending charge or charge where prosecution is being considered to a defendant unless counsel is present, or unless the consultation pursuant to Section 975 has occurred and the defendant has waived counsel pursuant to the requirements of subdivision (a). In a case in which the defendant has waived counsel pursuant to the requirements of subdivision (a), only a prosecutor or a judge shall communicate a plea offer to a defendant.

SEC. 11.

 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.