BILL ANALYSIS                                                                                                                                                                                                    Ó







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              A
                             2013-2014 Regular Session               B

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          AB 1004 (Gray)                                             4
          As Amended May 15, 2013 
          Hearing date:  June 18, 2013
          Penal Code
          MK:mc

                                  CRIMINAL PROCEDURE  

                                       HISTORY

          Source:  Judicial Council

          Prior Legislation: AB 2505 (Strickland) - Chapter 98, Stats.  
          2002

          Support: California District Attorneys Association

          Opposition:None known

          Assembly Floor Vote:  Ayes 74 - Noes 0



                                         KEY ISSUE
           
          SHOULD THE LAW ALLOW AN ARREST WARRANT WHEN THE SUPPORTING DOCUMENTS  
          AND THE WARRANT ITSELF WERE SIGNED AND TRANSMITTED BY E-MAIL,  
          COMPUTER OR TELEPHONE? 



                                       PURPOSE





                                                                     (More)






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          The purpose of this bill is to make technological updates to  
          procedures related to the judicial issuance of an arrest  
          warrant.
          
           

           Existing law  states that when a declaration of probable cause is  
          made be a peace officer of this state, 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.  The declaration in support of  
          the warrant of probable cause for arrest shall be a sworn  
          statement in writing.  (Penal Code § 817(a) and (b).) 


           Existing law  provides that in lieu of the written declaration,  
          the magistrate may take an oral statement under oath under  
          either of the following conditions: 

                 The oath shall be made 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. 
                 The oath is made using telephone and facsimile  
               transmission equipment, or made using telephone and  
               electronic mail, under all of the following conditions: 
                  o         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  











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                    declarant's signature shall be in the form of a  
                    digital signature if electronic mail 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. 
                  o         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, is  
                    acknowledged as genuine. 
                  o         If the magistrate decides to issue the  
                    warrant, he or she shall: 

                       §              Cause the warrant, supporting  
                         affidavit, and attachments to be printed if  
                         received by electronic mail. 
                       §              Sign the warrant. 
                       §              Note on the warrant the exact date  
                         and time of the issuance of the warrant.
                       §              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.  (Penal Code 
                         § 817(c).) 

           Existing law  requires the magistrate to transmit via facsimile  
          transmission equipment or via electronic mail, 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.  (Penal Code § 817(c)(2)(D).) 

           Existing law  provides that before issuing a warrant of probable  











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          cause for arrest, 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.   
          (Penal Code § 817(d).) 

           This bill  allows an oath in support of a declaration of probable  
          cause for arrest to be made using a telephone and computer  
          server. 

           This bill  provides that the declarant's signature may be in the  
          form of an electronic signature. 
           
          This bill  allows the magistrate to subsequently print the  
          warrant, supporting affidavit, and attachments if received by  
          electronic mail or computer server. 
           
          This bill  allows the magistrate to sign an arrest warrant using  
          a digital signature or electronic signature if electronic mail  
          or computer server is used for transmission to the magistrate. 
           
          This bill  authorizes a signed arrest warrant to be transmitted  
          by a computer server to the declarant. 

                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the last several years, severe overcrowding in California's  
          prisons has been the focus of evolving and expensive litigation  
          relating to conditions of confinement.  On May 23, 2011, the  
          United States Supreme Court ordered California to reduce its  
          prison population to 137.5 percent of design capacity within two  
          years from the date of its ruling, subject to the right of the  
          state to seek modifications in appropriate circumstances.   

          Beginning in early 2007, Senate leadership initiated a policy to  
          hold legislative proposals which could further aggravate the  
          prison overcrowding crisis through new or expanded felony  
          prosecutions.  Under the resulting policy known as "ROCA" (which  
          stands for "Receivership/ Overcrowding Crisis Aggravation"), the  











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          Committee held measures which created a new felony, expanded the  
          scope or penalty of an existing felony, or otherwise increased  
          the application of a felony in a manner which could exacerbate  
          the prison overcrowding crisis.  Under these principles, ROCA  
          was applied as a content-neutral, provisional measure necessary  
          to ensure that the Legislature did not erode progress towards  
          reducing prison overcrowding by passing legislation which would  
          increase the prison population.  ROCA necessitated many hard and  
          difficult decisions for the Committee.

          In January of 2013, just over a year after the enactment of the  
          historic Public Safety Realignment Act of 2011, the State of  
          California filed court documents seeking to vacate or modify the  
          federal court order issued by the Three-Judge Court three years  
          earlier to reduce the state's prison population to 137.5 percent  
          of design capacity.  The State submitted in part that the, ". .  
          .  population in the State's 33 prisons has been reduced by over  
          24,000 inmates since October 2011 when public safety realignment  
          went into effect, by more than 36,000 inmates compared to the  
          2008 population . . . , and by nearly 42,000 inmates since 2006  
          . . . ."  Plaintiffs, who opposed the state's motion, argue in  
          part that, "California prisons, which currently average 150% of  
          capacity, and reach as high as 185% of capacity at one prison,  
          continue to deliver health care that is constitutionally  
          deficient."  In an order dated January 29, 2013, the federal  
          court granted the state a six-month extension to achieve the  
          137.5 % prisoner population cap by December 31st of this year.  

          In an order dated April 11, 2013, the Three-Judge Court denied  
          the state's motions, and ordered the state of California to  
          "immediately take all steps necessary to comply with this  
          Court's . . . Order . . . requiring defendants to reduce overall  
          prison population to 137.5% design capacity by December 31,  
          2013."         

          The ongoing litigation indicates that prison capacity and  
          related issues concerning conditions of confinement remain  
          unresolved.  However, in light of the real gains in reducing the  
          prison population that have been made, although even greater  











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          reductions are required by the court, the Committee will review  
          each ROCA bill with more flexible consideration.  The following  
          questions will inform this consideration:

                 whether a measure erodes realignment;
                 whether a measure addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
                 whether a bill corrects a constitutional infirmity or  
               legislative drafting error; 
                 whether a measure proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy; and
                 whether a bill addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy.

                                      COMMENTS

          1.    Need for This Bill  

          According to the author:

               While AB 2505 authorized magistrates to receive search  
               warrants by computer server and to sign search warrants  
               digitally or electronically, it did not similarly  
               authorize the use of electronic signature for arrest  
               warrants even though obtaining original signatures  
               faces similar challenges.  Similar to the process for  
               obtaining search warrants prior to  AB 2505, the  
               existing process for obtaining an arrest warrant is a  
               lengthy process of approving, signing, and returning a  
               warrant to the court that can be fraught with technical  
               and hardware challenges such as jammed printers or  
               exhausting an ink cartridge in the middle of the night.  
                Also, even though existing law permits law enforcement  
               to submit an arrest warrant via email, law enforcement  
               must still travel to court, or if after hours, to the  
               home of a magistrate to obtain a signature on an arrest  











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               warrant, thus wasting time and incurring needless  
               travel costs.

               This bill would streamline the process for obtaining  
               signatures on arrest warrants by amending Section 817  
               of the Penal Code to permit arrest warrants to be  
               submitted not only by e-mail, but also by computer  
               server, and would permit magistrates to sign search  
               warrants digitally or electronically.  By making the  
               process for obtaining magistrate signatures on arrest  
               warrants more efficient, this change will not only  
               bring cost savings to court, but also to cities and  
               counties because law enforcement will no longer be  
               required to travel to court, or if outside of regular  
               hours, to a magistrate's home to obtain a signature on  
               an arrest warrant.  Allowing affiants and magistrates  
               to utilize e-mail is a secure alternative method of  
               transmission and signing of arrest warrants that will  
               give law enforcement the flexibility and rapidity to  
               more effectively respond to crime in the modern world.

          2.    Arrest Warrants  

          Existing law allows search warrants to be received by  
          magistrates by computers and allows the magistrate to authorize  
          the warrant with a digital signature.  When that bill was  
          passed, arrest warrants were not included in that update of the  
          law.  This bill would allow an arrest warrant to be requested  
          and authorized by e-mail or computer service and to be signed by  
          a digital signature.


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