Amended in Assembly May 15, 2013

Amended in Assembly March 21, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 1004

Introduced by Assembly Member Gray

February 22, 2013

An act to amend Section 817 of the Penal Code, relating to crimes.

LEGISLATIVE COUNSEL’S DIGEST

AB 1004, as amended, Gray. 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 begin delete delete the requirement end delete begin insert require, if the documents are received by electronic mail or computer server, end insert that these documents be begin insert subsequently end insert printed and would specify that the magistrate’s signature may be in the form of begin insert a digital signature or end insert an electronic signature.

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 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,
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, digital signature, or electronic signature is acknowledged
as genuine.

(C) If the magistrate decides to issue the warrant, he or she shall:

begin insert

(i) Cause the warrant, supporting declarations, and attachments
to be subsequently printed if those documents are received by
electronic mail or computer server.

end insert begin delete

(i)

end delete

begin insert (ii) end insert  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.

begin delete

(ii)

end delete

begin insert (iii) end insert  Note on the warrant the exact date and time of the issuance
of the warrant.

begin delete

(iii)

end delete

begin insert (iv) end insert  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, 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 defendant (name of 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 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.