BILL NUMBER: AB 1004 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 21, 2013
INTRODUCED BY Assembly Member Gray
FEBRUARY 22, 2013
An act to amend Section 817 of the
Penal Code, relating to crime crimes
.
LEGISLATIVE COUNSEL'S DIGEST
AB 1004, as amended, Gray. Crimes.
Criminal procedure.
Existing law requires that a declaration in support of the warrant
of probable cause for arrest be a sworn statement made in writing.
Existing law also authorizes the magistrate to take an oral statement
under oath under specified conditions that provide for the use of
facsimile transmission equipment or electronic mail if prescribed
conditions are met, including, but not limited to, the inclusion of
the declarant's digital signature.
This bill would specify that the declaration may be by telephone
and computer server and that the signature may be an electronic
signature, and would make conforming changes.
Existing law requires the magistrate to print related electronic
documents and sign the warrant if the warrant is granted.
This bill would delete the requirement that these documents be
printed and would specify that the magistrate's signature may be in
the form of an electronic signature.
Existing law provides that all persons who commit, in whole or in
part, any crime within this state are liable to punishment under the
laws of this state.
This bill would declare the intent of the Legislature to enact
legislation that would revise provisions governing crime and
punishment in this state.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 817 of the Penal
Code is amended to read:
817. (a) (1) When a declaration of probable cause is made by a
peace officer of this state, in accordance with subdivision (b) or
(c), the magistrate, if, and only if, satisfied from the declaration
that there exists probable cause that the offense described in the
declaration has been committed and that the defendant described
therein has committed the offense, shall issue a warrant of probable
cause for the arrest of the defendant.
(2) The warrant of probable cause for arrest shall not begin a
complaint process pursuant to Section 740 or 813. The warrant of
probable cause for arrest shall have the same authority for service
as set forth in Section 840 and the same time limitations as that of
an arrest warrant issued pursuant to Section 813.
(b) The declaration in support of the warrant of probable cause
for arrest shall be a sworn statement made in writing.
(c) In lieu of the written declaration required in subdivision
(b), the magistrate may take an oral statement under oath under
either one of the following conditions:
(1) The oath shall be taken under penalty of perjury and recorded
and transcribed. The transcribed statement shall be deemed to be the
declaration for the purposes of this section. The recording of the
sworn oral statement and the transcribed statement shall be certified
by the magistrate receiving it and shall be filed with the clerk of
the court. In the alternative, the sworn oral statement may be
recorded by a certified court reporter who shall certify the
transcript of the statement, after which the magistrate receiving it
shall certify the transcript, which shall be filed with the clerk of
the court.
(2) The oath is made using telephone and facsimile transmission
equipment, or made using telephone and electronic mail, or
telephone and computer server, under all of the following
conditions:
(A) The oath is made during a telephone conversation with the
magistrate, after which the declarant shall sign his or her
declaration in support of the warrant of probable cause for arrest.
The declarant's signature shall be in the form of a digital signature
or electronic signature if electronic mail or
computer server is used for transmission to the magistrate. The
proposed warrant and all supporting declarations and attachments
shall then be transmitted to the magistrate utilizing facsimile
transmission equipment or , electronic
mail , or computer server .
(B) The magistrate shall confirm with the declarant the receipt of
the warrant and the supporting declarations and attachments. The
magistrate shall verify that all the pages sent have been received,
that all pages are legible, and that the declarant's signature,
or digital signature, or electronic signature
is acknowledged as genuine.
(C) If the magistrate decides to issue the warrant, he or she
shall:
(i) Cause the warrant, supporting declarations, and attachments,
to be printed if received by electronic mail.
(ii)
(i) Sign the warrant. The magistrate's signature
may be in the form of a digital signature or electronic signature if
electronic mail or computer server is used for transmission to the
magistrate.
(iii)
(ii) Note on the warrant the exact date and time of the
issuance of the warrant.
(iv)
(iii) Indicate on the warrant that the oath of the
declarant was administered orally over the telephone.
The completed warrant, as signed by the magistrate, shall be
deemed to be the original warrant.
(D) The magistrate shall transmit via facsimile transmission
equipment, or via electronic mail, or
computer server, the signed warrant to the declarant who shall
telephonically acknowledge its receipt. The magistrate shall then
telephonically authorize the declarant to write the words "duplicate
original" on the copy of the completed warrant transmitted to the
declarant and this document shall be deemed to be a duplicate
original warrant.
(d) Before issuing a warrant, the magistrate may examine under
oath the person seeking the warrant and any witness the person may
produce, take the written declaration of the person or witness, and
cause the person or witness to subscribe the declaration.
(e) A warrant of probable cause for arrest shall contain the
information required pursuant to Sections 815 and 815a.
(f) A warrant of probable cause for arrest may be in substantially
the following form:
County of ______, State of California.
The people of the State of California to any
peace officer of the STATE:
Proof by declaration under penalty of perjury
having been made this day to me by _________
(name of
_________,
affiant)
I find that there is probable cause to believe
that the crime(s)
of _________________________
(designate the crime/s)
has (have) been committed by the defendant named
and described below.
Therefore, you are commanded to arrest
_____________________ and to bring the
(name of defendant)
defendant
before any magistrate in _______ County
pursuant to Sections 821, 825, 826, and 848 of
the Penal Code.
Defendant is admitted to bail in the amount
of______dollars ($______).
Time Issued:____________ __________________
(Signature of the
_______
Judge)
Dated:____________________ Judge of the_____Court
(g) An original warrant of probable cause for arrest or the
duplicate original warrant of probable cause for arrest shall be
sufficient for booking a defendant into custody.
(h) Once the defendant named in the warrant of probable cause for
arrest has been taken into custody, the agency which
that obtained the warrant shall file a
"certificate of service" with the clerk of the issuing court. The
certificate of service shall contain all of the following:
(1) The date and time of service.
(2) The name of the defendant arrested.
(3) The location of the arrest.
(4) The location where the defendant was incarcerated.
SECTION 1. It is the intent of the Legislature
to enact legislation that would revise provisions governing crime and
punishment in this state.