Amended
IN
Assembly
August 21, 2017 |
Amended
IN
Assembly
July 05, 2017 |
Amended
IN
Senate
March 27, 2017 |
Amended
IN
Senate
January 17, 2017 |
Senate Bill | No. 10 |
Introduced by Senators Hertzberg, Allen, Anderson, Atkins, Beall, Bradford, Lara, Mitchell, Monning, Skinner, Wieckowski, and Wiener (Principal coauthors: Assembly Members Bonta, Bloom, Chiu, Jones-Sawyer, Quirk, and Mark Stone) |
December 05, 2016 |
(a)If the offense charged is a felony, and the arrest occurs in the county in which the warrant was issued, the officer making the arrest must take the defendant before the magistrate who issued the warrant or some other magistrate of the same county.
(b)If the defendant is arrested in another county, the officer must, without unnecessary delay, inform the defendant in writing of his or her right to be taken before a magistrate in that county, note on the warrant that he or she has so informed defendant, and, upon being required by defendant, take him or her before a magistrate in that county, who must release the defendant
subject to a release agreement under Section 1318, with or without conditions, or set monetary bail pursuant to Section 1275a if the warrant authorizes pretrial release pursuant to that section, and direct the defendant to appear before the court or magistrate by whom the warrant was issued on or before a day certain which shall in no case be more than 25 days after
pretrial release or admission to bail. If bail or pretrial release is granted, the magistrate shall endorse a memorandum of the order for the appearance of the defendant, or may release the defendant pursuant to Section 1269b, without an appearance if the warrant authorizes pretrial release pursuant to that section.
(c)If the warrant on which the defendant is arrested in another county does not authorize pretrial release or admission to bail, or if the defendant arrested in another county does not require the arresting officer to take him or her before a magistrate in that county for the purpose of pretrial release or admission to bail, or if such defendant, after being admitted to bail, does not provide bail, the arresting officer shall immediately notify the law enforcement agency requesting the arrest in the
county in which the warrant was issued that such defendant is in custody, and the law enforcement agency shall take custody of the defendant within five days, or five court days if the law enforcement agency requesting the arrest is more than 400 miles from the county in which the defendant is held in custody, in the county in which he or she was arrested and shall take the defendant before the magistrate who issued the warrant, or before some other magistrate of the same county.
(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 his or her arrest, excluding Sundays and holidays.
(2)When 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, if 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, any attorney at law entitled to practice in the courts of record of California, may, at the request of the detainee or any relative of the detainee, visit the detainee. Any officer having charge of the detainee who willfully refuses or neglects to allow that attorney to visit a detainee is guilty of a misdemeanor. Any officer having a detainee in charge, who refuses to allow the attorney to visit the detainee 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.
The taking of monetary bail consists in the acceptance, by a competent court or magistrate, of the undertaking of sufficient monetary bail for the appearance of the defendant, according to the terms of the undertaking, or that the bail will pay to the people of this state a specified sum. Upon filing, the clerk shall enter in the register of actions the date and amounts of the bond, the defendant’s name, and, if applicable, the name or names of the surety or sureties thereon. In the event of the loss or destruction of such bond, such entries so made shall be prima facie evidence of the due execution of such bond as required by law.
Whenever any bail bond has been deposited in any criminal action
or proceeding in a municipal or superior court or in any proceeding in habeas corpus in a superior court, and it is made to appear to the satisfaction of the court by affidavit or by testimony in open court that more than three years have elapsed since the exoneration or release of said bail, the court must direct that such bond be destroyed.
Except as otherwise provided by law, a defendant charged in a warrant of arrest with any public offense shall not be discharged from custody upon monetary bail except upon a written order of a competent court or magistrate admitting the defendant to bail in the amount determined pursuant to subdivision (c) of Section 1275a and where an undertaking is furnished, upon a written order of the court or magistrate approving the undertaking. All those orders shall be signed by the court or magistrate and delivered to the officer having custody of the defendant before the defendant is released. Any officer releasing any defendant upon bail otherwise than as herein provided shall be guilty of a misdemeanor.
Whenever
If a defendant is arrested without a warrant for a bailable felony offense or for the misdemeanor offense of violating a domestic violence restraining order, and a peace officer has reasonable cause to believe that release subject to a release agreement under Section 1318 without further conditions is insufficient to ensure the defendant’s appearance or to ensure the protection of a victim, or family member of a victim, of domestic violence, the peace officer shall, no later than six hours after the arrest, prepare a declaration under penalty of perjury setting forth the facts and circumstances in support of his or her belief and file it with a magistrate, as defined in Section 808, or his or her commissioner, in the county in which the offense is alleged to have
been committed or having personal jurisdiction over the defendant, requesting an order pursuant to subdivision (f) of Section 1269b imposing a condition or conditions of release.
(a)Monetary bail, pursuant to this chapter, shall not be accepted unless a judge or magistrate finds that no portion of the consideration, pledge, security, deposit, or indemnification paid, given, made, or promised for its execution was feloniously obtained.
(b)A hold on the release of a defendant from custody shall only be ordered by a magistrate or judge if any of the following occurs:
(1)A peace officer, as defined in Section 830, files a declaration
executed under penalty of perjury setting forth probable cause to believe that the source of any consideration, pledge, security, deposit, or indemnification paid, given, made, or promised for its execution was feloniously obtained.
(2)A prosecutor files a declaration executed under penalty of perjury setting forth probable cause to believe that the source of any consideration, pledge, security, deposit, or indemnification paid, given, made, or promised for its execution was feloniously obtained. A prosecutor shall have absolute civil immunity for executing a declaration pursuant to this paragraph.
(3)The magistrate or judge has probable cause to believe that the source of any consideration, pledge, security, deposit, or indemnification paid, given, made, or promised for
its execution was feloniously obtained.
(c)Once a magistrate or judge has determined that probable cause exists, as provided in subdivision (b), a defendant bears the burden by a preponderance of the evidence to show that no part of any consideration, pledge, security, deposit, or indemnification paid, given, made, or promised for its execution was obtained by felonious means. Once a defendant has met such burden, the magistrate or judge shall release the hold previously ordered and the defendant shall be released under the authorized amount of bail.
(d)The defendant and his or her attorney shall be provided with a copy of the declaration of probable cause filed under subdivision (b) no later than the date set forth in Section 825.
(e)Nothing in this section shall prohibit a defendant from obtaining a loan of money so long as the loan will be funded and repaid with funds not feloniously obtained.
(f)At the request of any person providing any portion of the consideration, pledge, security, deposit, or indemnification paid, given, made, or promised for its execution, the magistrate or judge, at an evidentiary hearing to determine the source of the funds, may close it to the general public to protect the person’s right to privacy in his or her financial affairs.
(g)If the declaration, having been filed with a magistrate or judge, is not acted on within 24 hours, the defendant shall be released from custody upon posting of the amount of bail set.
(h)Nothing in this code shall deny the right of the defendant, either personally or through his or her attorney, bail agent licensed by the Department of Insurance, admitted surety insurer licensed by the Department of Insurance, friend, or member of his or her family from making an application to the magistrate or judge for the release of the defendant on monetary bail.
(i)The bail of any defendant found to have willfully misled the court regarding the source of bail may be increased as a result of the willful misrepresentation, so long as the amount conforms with subdivision (c) of Section 1275a. The misrepresentation may be a factor considered in any subsequent bail hearing.
(j)If a defendant has met the burden under subdivision (c), and a defendant will be released from
custody upon the issuance of a bail bond issued pursuant to authority of Section 1269 by any admitted surety insurer or any bail agent, approved by the Insurance Commissioner, the magistrate or judge shall vacate the holding order imposed under subdivision (b) upon the condition that the consideration for the bail bond is approved by the court.
(k)As used in this section, “feloniously obtained” means any consideration, pledge, security, deposit, or indemnification paid, given, made, or promised for its execution which is possessed, received, or obtained through an unlawful act, transaction, or occurrence constituting a felony.
When the defendant has been held to answer upon an examination for a public offense, pretrial release pursuant to Section 1275a or admission to bail may be by the magistrate by whom he or she is so held, or by any magistrate who has power to issue the writ of habeas corpus.
(a)(1)Upon a finding that monetary bail should be set pursuant to subdivision (c) of Section 1275a, the defendant may execute an unsecured appearance bond or a secured bond in the amount specified by the court. The court may require, and the defendant may request, that an unsecured appearance bond be signed by uncompensated third parties.
(2)For the purposes of this subdivision, “unsecured appearance bond” means an order to release a person upon his or her promise to appear in court and his or her unsecured promise to pay an amount of money, specified by the court, if he or she fails to appear as promised.
(b)A secured bond is put in by a written undertaking, executed by two sufficient sureties (with or without the defendant, in the discretion of the magistrate), and acknowledged before the court or magistrate, in substantially the following form:
An order having been made on the ____ day of ____, 20__, by ____, a judge of the ____ Court of ____ County, that ____ be held to answer upon a charge of (stating briefly the nature of the offense), upon which he or she has been admitted to bail in the sum of ____ dollars ($____); we, ____ and ____, of ____ (stating their place of residence and occupation), hereby undertake that the above-named ____ will appear and answer any charge in any accusatory pleading based upon the acts supporting the charge above mentioned, in whatever court it may be prosecuted, and
will at all times hold himself or herself amenable to the orders and process of the court, and if convicted, will appear for pronouncement of judgment or grant of probation, or if he or she fails to perform either of these conditions, that we will pay to the people of the State of California the sum of ____ dollars ($____) (inserting the sum in which the defendant is admitted to bail). If the forfeiture of this bond be ordered by the court, judgment may be summarily made and entered forthwith against the said (naming the sureties), and the defendant if he or she be a party to the bond, for the amount of their respective undertakings herein, as provided by Sections 1305 and 1306.
(c)Every undertaking of bail shall contain the bail agent license number of the owner of the bail agency issuing the undertaking along with the name,
address, and phone number of the agency, regardless of whether the owner is an individual, partnership, or corporation. The bail agency name on the undertaking shall be a business name approved by the Insurance Commissioner for use by the bail agency owner, and be so reflected in the public records of the commissioner. The license number of the bail agent appearing on the undertaking shall be in the same type size as the name, address, and phone number of the agency.
When the offense charged is not punishable with death, the officer serving the bench warrant must, if required, take the defendant before a magistrate in the county in which it is issued, or in which he or she is arrested, for the purpose of a pretrial release hearing. If the defendant appears before such magistrate without the bench warrant having been served upon him or her, the magistrate shall deliver him or her into the custody of the sheriff for the purpose of immediate booking and the recording of identification data, whereupon the sheriff shall deliver the defendant back before the magistrate for the purpose of a pretrial release hearing.
(a)The defendant, at any time after an order admitting the defendant to bail pursuant to Section 1275a, instead of giving bail may deposit, with the clerk of the court in which the defendant is held to answer or notified to appear for arraignment, the sum mentioned in the order or a percentage of the sum mentioned in the order, not to exceed 10 percent, and, upon delivering to the officer, in whose custody defendant is a certificate of the deposit, the defendant shall be discharged from custody.
(b)Where more than one deposit is made with respect to any charge in any accusatory pleading based upon the acts supporting the original charge as a result
of which an earlier deposit was made, the defendant shall receive credit in the amount of any earlier deposit.
(c)The clerk of the court shall not accept a general assistance check for this deposit or any part thereof.
The defendant shall not be released from custody under his or her own recognizance with no further conditions, or released with a further condition or conditions, until the defendant files with the clerk of the court or other person authorized to accept bail a signed release agreement which includes:
(a)The defendant’s promise to appear at all times and places, as ordered by the court or magistrate and as ordered by any court in which, or any magistrate before whom the charge is subsequently pending.
(b)The defendant’s promise to obey all reasonable conditions imposed by the court or magistrate.
(c)The defendant’s promise not to depart this state without leave of the court.
(d)Agreement by the defendant to waive extradition if the defendant fails to appear as required and is apprehended outside of the State of California.
(e)The acknowledgment of the defendant that he or she has been informed of the consequences and penalties applicable to
violation of the conditions of release.