BILL NUMBER: SB 123 CHAPTERED
BILL TEXT
CHAPTER 279
FILED WITH SECRETARY OF STATE AUGUST 15, 1997
APPROVED BY GOVERNOR AUGUST 15, 1997
PASSED THE SENATE AUGUST 4, 1997
PASSED THE ASSEMBLY JULY 21, 1997
AMENDED IN ASSEMBLY JULY 8, 1997
AMENDED IN ASSEMBLY JUNE 16, 1997
AMENDED IN SENATE MAY 19, 1997
AMENDED IN SENATE APRIL 24, 1997
INTRODUCED BY Senator Peace
JANUARY 8, 1997
An act to amend Sections 817, 861, and 1538.5 of the Penal Code,
relating to criminal procedure.
LEGISLATIVE COUNSEL'S DIGEST
SB 123, Peace. Criminal procedure.
(1) Under existing law, a defendant may move for the return of
property or to suppress as evidence any tangible or intangible thing
obtained as a result of a search or seizure based on specified
grounds, including the ground that the search or seizure without a
warrant was unreasonable. Existing law permits the motion to be
heard at a preliminary hearing, a special hearing, or at a trial, as
specified.
This bill would require the motion to be made in writing and
accompanied by a memorandum of points and authorities and proof of
service. The bill also would require the defendant, with respect to
a motion made at the preliminary examination, to file and personally
serve on the people the written motion and memorandum of points and
authorities at least 5 court days before the date set for the
preliminary examination. This bill would additionally authorize the
magistrate, at the preliminary hearing, to grant the defendant a
continuance to file and serve the motion upon a specified showing.
(2) Existing law provides that the preliminary examination shall
be completed at one session unless the magistrate postpones it for
good cause, but the postponement shall not be for more than 10 court
days unless the defendant personally waives his or her right to a
continuous preliminary hearing or the prosecution establishes good
cause.
This bill would provide that a request for a continuance of the
preliminary hearing by the defendant or his or her attorney of record
shall be deemed a personal waiver of the defendant's right to a
continuous preliminary examination.
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 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, 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 proposed warrant and all supporting declarations and attachments
shall then be transmitted to the magistrate utilizing facsimile
transmission equipment.
(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 is
acknowledged as genuine.
(C) If the magistrate decides to issue the warrant, he or she
shall sign the warrant, note on the warrant the exact date and time
of the issuance of the warrant, and 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 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 which 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.
SEC. 2. Section 861 of the Penal Code is amended to read:
861. (a) The preliminary examination shall be completed at one
session or the complaint shall be dismissed, unless the magistrate,
for good cause shown by affidavit, postpones it. The postponement
shall not be for more than 10 court days, unless either of the
following occur:
(1) The defendant personally waives his or her right to a
continuous preliminary examination.
(2) The prosecution establishes good cause for a postponement
beyond the 10-court-day period. If the magistrate postpones the
preliminary examination beyond the 10-court-day period, and the
defendant is in custody, the defendant shall be released pursuant to
subdivision (b) of Section 859b.
(b) The preliminary examination shall not be postponed beyond 60
days from the date the motion to postpone the examination is granted,
unless by consent or on motion of the defendant.
(c) Nothing in this section shall preclude the magistrate from
interrupting the preliminary examination to conduct brief court
matters so long as a substantial majority of the court's time is
devoted to the preliminary examination.
(d) A request for a continuance of the preliminary examination
that is made by the defendant or his or her attorney of record for
the purpose of filing a motion pursuant to paragraph (2) of
subdivision (f) of Section 1538.5 shall be deemed a personal waiver
of the defendant's right to a continuous preliminary examination.
SEC. 3. Section 1538.5 of the Penal Code is amended to read:
1538.5. (a) (1) A defendant may move for the return of property
or to suppress as evidence any tangible or intangible thing obtained
as a result of a search or seizure on either of the following
grounds:
(A) The search or seizure without a warrant was unreasonable.
(B) The search or seizure with a warrant was unreasonable because
any of the following apply:
(i) The warrant is insufficient on its face.
(ii) The property or evidence obtained is not that described in
the warrant.
(iii) There was not probable cause for the issuance of the
warrant.
(iv) The method of execution of the warrant violated federal or
state constitutional standards.
(v) There was any other violation of federal or state
constitutional standards.
(2) A motion pursuant to paragraph (1) shall be made in writing
and accompanied by a memorandum of points and authorities and proof
of service. The memorandum shall list the specific items of property
or evidence sought to be returned or suppressed and shall set forth
the factual basis and the legal authorities that demonstrate why the
motion should be granted.
(b) When consistent with the procedures set forth in this section
and subject to the provisions of Section 170 to 170.6, inclusive, of
the Code of Civil Procedure, the motion should first be heard by the
magistrate who issued the search warrant if there is a warrant.
(c) Whenever a search or seizure motion is made in the municipal
or superior court as provided in this section, the judge or
magistrate shall receive evidence on any issue of fact necessary to
determine the motion.
(d) If a search or seizure motion is granted pursuant to the
proceedings authorized by this section, the property or evidence
shall not be admissible against the movant at any trial or other
hearing unless further proceedings authorized by this section,
Section 871.5, 1238, or 1466 are utilized by the people.
(e) If a search or seizure motion is granted at a trial, the
property shall be returned upon order of the court unless it is
otherwise subject to lawful detention. If the motion is granted at a
special hearing, the property shall be returned upon order of the
court only if, after the conclusion of any further proceedings
authorized by this section, Section 1238 or 1466, the property is not
subject to lawful detention or if the time for initiating the
proceedings has expired, whichever occurs last. If the motion is
granted at a preliminary hearing, the property shall be returned upon
order of court after 10 days unless the property is otherwise
subject to lawful detention or unless, within that time, further
proceedings authorized by this section, Section 871.5 or 1238 are
utilized; if they are utilized, the property shall be returned only
if, after the conclusion of the proceedings, the property is no
longer subject to lawful detention.
(f) (1) If the property or evidence relates to a felony offense
initiated by a complaint, the motion shall be made in the superior
court only upon filing of an information, except that the defendant
may make the motion at the preliminary hearing in the municipal
court, but the motion in the municipal court shall be restricted to
evidence sought to be introduced by the people at the preliminary
hearing.
(2) The motion may be made at the preliminary examination only if
at least five court days before the date set for the preliminary
examination the defendant has filed and personally served on the
people a written motion accompanied by a memorandum of points and
authorities as required by paragraph (2) of subdivision (a). At the
preliminary examination, the magistrate may grant the defendant a
continuance for the purpose of filing the motion and serving the
motion upon the people, at least five court days before resumption of
the examination, upon a showing that the defendant or his or her
attorney of record was not aware of the evidence or was not aware of
the grounds for suppression before the preliminary examination.
(3) Any written response by the people to the motion described in
paragraph (2) shall be filed with the court and personally served on
the defendant or his or her attorney of record at least two court
days prior to the hearing at which the motion is to be made.
(g) If the property or evidence relates to a misdemeanor
complaint, the motion shall be made in the municipal court before
trial and heard prior to trial at a special hearing relating to the
validity of the search or seizure. If the property or evidence
relates to a misdemeanor filed together with a felony, the procedure
provided for a felony in this section and Sections 1238 and 1539
shall be applicable.
(h) If, prior to the trial of a felony or misdemeanor, opportunity
for this motion did not exist or the defendant was not aware of the
grounds for the motion, the defendant shall have the right to make
this motion during the course of trial in the municipal or superior
court.
(i) If the property or evidence obtained relates to a felony
offense initiated by complaint and the defendant was held to answer
at the preliminary hearing, or if the property or evidence relates to
a felony offense initiated by indictment, the defendant shall have
the right to renew or make the motion in the superior court at a
special hearing relating to the validity of the search or seizure
which shall be heard prior to trial and at least 10 court days after
notice to the people, unless the people are willing to waive a
portion of this time. Any written response by the people to the
motion shall be filed with the court and personally served on the
defendant or his or her attorney of record at least two court days
prior to the hearing, unless the defendant is willing to waive a
portion of this time. If the offense was initiated by indictment or
if the offense was initiated by complaint and no motion was made at
the preliminary hearing, the defendant shall have the right to fully
litigate the validity of a search or seizure on the basis of the
evidence presented at a special hearing. If the motion was made at
the preliminary hearing, unless otherwise agreed to by all parties,
evidence presented at the special hearing shall be limited to the
transcript of the preliminary hearing and to evidence that could not
reasonably have been presented at the preliminary hearing, except
that the people may recall witnesses who testified at the preliminary
hearing. If the people object to the presentation of evidence at
the special hearing on the grounds that the evidence could reasonably
have been presented at the preliminary hearing, the defendant shall
be entitled to an in camera hearing to determine that issue. The
superior court shall base its ruling on all evidence presented at the
special hearing and on the transcript of the preliminary hearing,
and the findings of the magistrate shall be binding on the superior
court as to evidence or property not affected by evidence presented
at the special hearing. After the special hearing is held in the
superior court, any review thereafter desired by the defendant prior
to trial shall be by means of an extraordinary writ of mandate or
prohibition filed within 30 days after the denial of his or her
motion at the special hearing.
(j) If the property or evidence relates to a felony offense
initiated by complaint and the defendant's motion for the return of
the property or suppression of the evidence at the preliminary
hearing is granted, and if the defendant is not held to answer at the
preliminary hearing, the people may file a new complaint or seek an
indictment after the preliminary hearing, and the ruling at the prior
hearing shall not be binding in any subsequent proceeding, except as
limited by subdivision (p). In the alternative, the people may move
to reinstate the complaint, or those parts of the complaint for
which the defendant was not held to answer, pursuant to Section
871.5. If the property or evidence relates to a felony offense
initiated by complaint and the defendant's motion for the return or
suppression of the property or evidence at the preliminary hearing is
granted, and if the defendant is held to answer at the preliminary
hearing, the ruling at the preliminary hearing shall be binding upon
the people unless, upon notice to the defendant and the court in
which the preliminary hearing was held and upon the filing of an
information, the people, within 15 days after the preliminary
hearing, request in the superior court a special hearing, in which
case the validity of the search or seizure shall be relitigated de
novo on the basis of the evidence presented at the special hearing,
and the defendant shall be entitled, as a matter of right, to a
continuance of the special hearing for a period of time up to 30
days. The people may not request relitigation of the motion at a
special hearing if the defendant's motion has been granted twice. If
the defendant's motion is granted at a special hearing in the
superior court, the people, if they have additional evidence relating
to the motion and not presented at the special hearing, shall have
the right to show good cause at the trial why the evidence was not
presented at the special hearing and why the prior ruling at the
special hearing should not be binding, or the people may seek
appellate review as provided in subdivision (o), unless the court,
prior to the time the review is sought, has dismissed the case
pursuant to Section 1385. If the case has been dismissed pursuant to
Section 1385, or if the people dismiss the case on their own motion
after the special hearing, the people may file a new complaint or
seek an indictment after the special hearing, and the ruling at the
special hearing shall not be binding in any subsequent proceeding,
except as limited by subdivision (p). If the property or evidence
seized relates solely to a misdemeanor complaint, and the defendant
made a motion for the return of property or the suppression of
evidence in the municipal court prior to trial, both the people and
defendant shall have the right to appeal any decision of that court
relating to that motion to the superior court of the county in which
the municipal court is located, in accordance with the California
Rules of Court provisions governing appeals from municipal courts in
criminal cases. If the people prosecute review by appeal or writ to
decision, or any review thereof, in a felony or misdemeanor case, it
shall be binding upon them.
(k) If the defendant's motion to return property or suppress
evidence is granted and the case is dismissed pursuant to Section
1385, or the people appeal in a misdemeanor case pursuant to
subdivision (j), the defendant shall be released pursuant to Section
1318 if he or she is in custody and not returned to custody unless
the proceedings are resumed in the trial court and he or she is
lawfully ordered by the court to be returned to custody.
If the defendant's motion to return property or suppress evidence
is granted and the people file a petition for writ of mandate or
prohibition pursuant to subdivision (o) or a notice of intention to
file such a petition, the defendant shall be released pursuant to
Section 1318, unless (1) he or she is charged with a capital offense
in a case where the proof is evident and the presumption great, or
(2) he or she is charged with a noncapital offense defined in Chapter
1 (commencing with Section 187) of Title 8 of Part 1, and the court
orders that the defendant be discharged from actual custody upon
bail.
(l) If the defendant's motion to return property or suppress
evidence is granted, the trial of a criminal case shall be stayed to
a specified date pending the termination in the appellate courts of
this state of the proceedings provided for in this section, Section
871.5, 1238, or 1466 and, except upon stipulation of the parties,
pending the time for the initiation of these proceedings. Upon the
termination of these proceedings, the defendant shall be brought to
trial as provided by Section 1382, and, subject to the provisions of
Section 1382, whenever the people have sought and been denied
appellate review pursuant to subdivision (o), the defendant shall be
entitled to have the action dismissed if he or she is not brought to
trial within 30 days of the date of the order that is the last denial
of the petition. Nothing contained in this subdivision shall
prohibit a court, at the same time as it rules upon the search and
seizure motion, from dismissing a case pursuant to Section 1385 when
the dismissal is upon the court's own motion and is based upon an
order at the special hearing granting the defendant's motion to
return property or suppress evidence. In a misdemeanor case, the
defendant shall be entitled to a continuance of up to 30 days if he
or she intends to file a motion to return property or suppress
evidence and needs this time to prepare for the special hearing on
the motion. In case of an appeal by the defendant in a misdemeanor
case from the denial of the motion, he or she shall be entitled to
bail as a matter of right, and, in the discretion of the trial or
appellate court, may be released on his or her own recognizance
pursuant to Section 1318.
(m) The proceedings provided for in this section, and Sections
871.5, 995, 1238, and 1466 shall constitute the sole and exclusive
remedies prior to conviction to test the unreasonableness of a search
or seizure where the person making the motion for the return of
property or the suppression of evidence is a defendant in a criminal
case and the property or thing has been offered or will be offered as
evidence against him or her. A defendant may seek further review of
the validity of a search or seizure on appeal from a conviction in a
criminal case notwithstanding the fact that the judgment of
conviction is predicated upon a plea of guilty. Review on appeal may
be obtained by the defendant provided that at some stage of the
proceedings prior to conviction he or she has moved for the return of
property or the suppression of the evidence.
(n) This section establishes only the procedure for suppression of
evidence and return of property, and does not establish or alter any
substantive ground for suppression of evidence or return of
property. Nothing contained in this section shall prohibit a person
from making a motion, otherwise permitted by law, to return property,
brought on the ground that the property obtained is protected by the
free speech and press provisions of the United States and California
Constitutions. Nothing in this section shall be construed as
altering (1) the law of standing to raise the issue of an
unreasonable search or seizure; (2) the law relating to the status of
the person conducting the search or seizure; (3) the law relating to
the burden of proof regarding the search or seizure; (4) the law
relating to the reasonableness of a search or seizure regardless of
any warrant that may have been utilized; or (5) the procedure and law
relating to a motion made pursuant to Section 871.5 or 995, or the
procedures that may be initiated after the granting or denial of such
a motion.
(o) Within 30 days after a defendant's motion is granted at a
special hearing in the superior court, the people may file a petition
for writ of mandate or prohibition, seeking appellate review of the
ruling regarding the search or seizure motion. If the trial of a
criminal case is set for a date that is less than 30 days from the
granting of a defendant's motion at a special hearing in the superior
court, the people, if they have not filed such a petition and wish
to preserve their right to file a petition, shall file in the
superior court on or before the trial date or within 10 days after
the special hearing, whichever occurs last, a notice of intention to
file a petition and shall serve a copy of the notice upon the
defendant.
(p) If a defendant's motion to return property or suppress
evidence in a felony matter has been granted twice, the people may
not file a new complaint or seek an indictment in order to relitigate
the motion or relitigate the matter de novo at a special hearing in
the superior court as otherwise provided by subdivision (j), unless
the people discover additional evidence relating to the motion that
was not reasonably discoverable at the time of the second suppression
hearing. Relitigation of the motion shall be heard by the same
judge who granted the motion at the first hearing if the judge is
available.
(q) The amendments to this section enacted in the 1997 portion of
the 1997-98 Regular Session of the Legislature shall apply to all
criminal proceedings conducted on or after January 1, 1998.
SEC. 4. The Legislature finds and declares that Section 1 of this
act, which amends Section 817 of the Penal Code, is declaratory of
existing law.
SEC. 5. Nothing in this act shall be construed to abrogate the
holding in Badillo v. Superior Court (1956), 46 Cal. 2d 269, that the
people bear the burden of proving that a search or seizure without a
warrant is valid.