813-829
PENAL CODE
SECTION 813-829
813. (a) When a complaint is filed with a magistrate charging a
felony originally triable in the superior court of the county in
which he or she sits, if, and only if, the magistrate is satisfied
from the complaint that the offense complained of has been committed
and that there is reasonable ground to believe that the defendant has
committed it, the magistrate shall issue a warrant for the arrest of
the defendant, except that, upon the request of the prosecutor, a
summons instead of an arrest warrant shall be issued.
(b) A summons issued pursuant to this section shall be in
substantially the same form as an arrest warrant and shall contain
all of the following:
(1) The name of the defendant.
(2) The date and time the summons was issued.
(3) The city or county where the summons was issued.
(4) The signature of the magistrate, judge, justice, or other
issuing authority who is issuing the summons with the title of his or
her office and the name of the court or other issuing agency.
(5) The offense or offenses with which the defendant is charged.
(6) The time and place at which the defendant is to appear.
(7) Notification that the defendant is to complete the booking
process on or before his or her first court appearance, as well as
instructions for the defendant on completing the booking process.
(8) A provision for certification by the booking agency that the
defendant has completed the booking process which shall be presented
to the court by the defendant as proof of booking.
(c) If a defendant has been properly served with a summons and
thereafter fails to appear at the designated time and place, a bench
warrant for arrest shall issue. In the absence of proof of actual
receipt of the summons by the defendant, a failure to appear shall
not be used in any future proceeding.
(d) A defendant who responds to a summons issued pursuant to this
section and who has not been booked as provided in subdivision (b)
shall be ordered by the court to complete the booking process.
(e) The prosecutor shall not request the issuance of a summons in
lieu of an arrest warrant as provided in this section under any of
the following circumstances:
(1) The offense charged involves violence.
(2) The offense charged involves a firearm.
(3) The offense charged involves resisting arrest.
(4) There are one or more outstanding arrest warrants for the
person.
(5) The prosecution of the offense or offenses with which the
person is charged, or the prosecution of any other offense or
offenses would be jeopardized.
(6) There is a reasonable likelihood that the offense or offenses
would continue or resume, or that the safety of persons or property
would be imminently endangered.
(7) There is reason to believe that the person would not appear at
the time and place specified in the summons.
814. A warrant of arrest issued under Section 813 may be in
substantially the following form:
County of ____
The people of the State of California to any peace officer of said
State:
Complaint on oath having this day been laid before me that the
crime of ____ (designating it generally) has been committed and
accusing ____ (naming defendant) thereof, you are therefore commanded
forthwith to arrest the above named defendant and bring him before
me at ____ (naming the place), or in case of my absence or inability
to act, before the nearest or most accessible magistrate in this
county.
Dated at __________________ (place) this
______________ day of __,
19__.
_______________
(Signature and full official title of
magistrate.)
815. A warrant of arrest shall specify the name of the defendant
or, if it is unknown to the magistrate, judge, justice, or other
issuing authority, the defendant may be designated therein by any
name. It shall also state the time of issuing it, and the city or
county where it is issued, and shall be signed by the magistrate,
judge, justice, or other issuing authority issuing it with the title
of his office and the name of the court or other issuing agency.
815a. At the time of issuing a warrant of arrest, the magistrate
shall fix the amount of bail which in his judgment in accordance with
the provisions of section 1275 will be reasonable and sufficient for
the appearance of the defendant following his arrest, if the offense
is bailable, and said magistrate shall endorse upon said warrant a
statement signed by him, with the name of his office, dated at the
county, city or town where it is made to the following effect "The
defendant is to be admitted to bail in the sum of ____ dollars"
(stating the amount).
816. A warrant of arrest shall be directed generally to any peace
officer, or to any public officer or employee authorized to serve
process where the warrant is for a violation of a statute or
ordinance which such person has the duty to enforce, in the state,
and may be executed by any of those officers to whom it may be
delivered.
When a warrant of arrest has been delivered to a peace officer and
the person named in the warrant is otherwise lawfully in the custody
of the peace officer, the warrant may be executed by the peace
officer or by any clerk of a city or county jail authorized to act
and acting under the peace officer's direction.
816a. A summons issued pursuant to Section 813 shall be served by
any peace officer, or any public officer or employee authorized to
serve process when the summons is for a violation of a statute or
ordinance which that person has the duty to enforce, within the
state. Upon service of the summons, the officer or employee shall
deliver one copy of the summons to the defendant and shall file a
duplicate copy with the magistrate before whom the defendant is to
appear.
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, or made using telephone and electronic mail, 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
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.
(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, 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) Sign the warrant.
(iii) Note on the warrant the exact date and time of the issuance
of the warrant.
(iv) 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, 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.
817.5. (a) On or after June 30, 2001, upon the issuance of any
arrest warrant, the issuing law enforcement agency may enter the
warrant information into the Department of Justice's Wanted Persons
System.
(b) Notwithstanding any other provision of law, any state or local
governmental agency shall, upon request, provide to the Department
of Justice, a court, or any California law enforcement agency, the
address of any person represented by the department, the court, or
the law enforcement agency to be a person for whom there is an
outstanding arrest warrant.
818. In any case in which a peace officer serves upon a person a
warrant of arrest for a misdemeanor offense under the Vehicle Code or
under any local ordinance relating to stopping, standing, parking,
or operation of a motor vehicle and where no written promise to
appear has been filed and the warrant states on its face that a
citation may be used in lieu of physical arrest, the peace officer
may, instead of taking the person before a magistrate, prepare a
notice to appear and release the person on his promise to appear, as
prescribed by Sections 853. 6 through 853.8 of the Penal Code.
Issuance of a notice to appear and securing of a promise to appear
shall be deemed a compliance with the directions of the warrant, and
the peace officer issuing such notice to appear and obtaining such
promise to appear shall endorse on the warrant "Section 818, Penal
Code, complied with" and return the warrant to the magistrate who
issued it.
821. 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.
If the defendant is arrested in another county, the officer must,
without unnecessary delay, inform the defendant in writing of his
right to be taken before a magistrate in that county, note on the
warrant that he has so informed defendant, and, upon being required
by defendant, take him before a magistrate in that county, who must
admit him to bail in the amount specified in the endorsement referred
to in Section 815a, 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 such
admittance to bail. If bail be forthwith given, the magistrate shall
take the same and endorse thereon a memorandum of the aforesaid order
for the appearance of the defendant, or, if the defendant so
requires, he may be released on bail set on the warrant by the
issuing court, as provided in Section 1269b of this code, without an
appearance before a magistrate.
If the warrant on which the defendant is arrested in another
county does not have bail set thereon, or if the defendant arrested
in another county does not require the arresting officer to take him
before a magistrate in that county for the purpose of being admitted
to bail, or if such defendant, after being admitted to bail, does not
forthwith give 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
thereafter such 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
was arrested and shall take such defendant before the magistrate who
issued the warrant, or before some other magistrate of the same
county.
822. If the offense charged is a misdemeanor, and the defendant is
arrested in another county, the officer must, without unnecessary
delay, inform the defendant in writing of his right to be taken
before a magistrate in that county, note on the warrant that he has
so informed defendant, and, upon being required by defendant, take
him before a magistrate in that county, who must admit him to bail in
the amount specified in the indorsement referred to in Section 815a,
or if no bail is specified, the magistrate may set bail; if the
defendant is admitted to bail the magistrate shall 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 such admittance to bail. If bail be
forthwith given, the magistrate shall take the same and indorse
thereon a memorandum of the aforesaid order for the appearance of the
defendant.
If the defendant arrested in another county on a misdemeanor
charge does not require the arresting officer to take him before a
magistrate in that county for the purpose of being admitted to bail,
or if such defendant, after being admitted to bail, does not
forthwith give 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
thereafter such law enforcement agency shall take custody of such
defendant within five days in the county in which he was arrested and
shall take such defendant before the magistrate who issued the
warrant, or before some other magistrate of the same county.
If a defendant is arrested in another county on a warrant charging
the commission of a misdemeanor, upon which warrant the amount of
bail is indorsed as provided in Section 815a, and defendant is held
in jail in the county of arrest pending appearance before a
magistrate, the officer in charge of the jail shall, to the same
extent as provided by Section 1269b, have authority to approve and
accept bail from defendant in the amount indorsed on the warrant, to
issue and sign an order for the release of the defendant, and, on
posting of such bail, shall discharge defendant from custody.
823. On taking the bail, the magistrate must certify that fact on
the warrant, and deliver the warrant to the officer having charge of
the defendant. The magistrate shall issue to defendant a receipt for
the undertaking of bail. The officer must then discharge the
defendant from arrest, and must, without delay, deliver the warrant
to the clerk of the court at which the defendant is required to
appear. If the undertaking of bail is in the form of a bond, the
magistrate shall forward the bond to the court at which defendant is
required to appear. If the undertaking is in the form of cash, the
magistrate shall deposit the cash in the county treasury, notifying
the county auditor thereof, and the county auditor shall, by warrant,
transmit the amount of the undertaking to the court at which the
defendant is required to appear. If authorized by the county auditor,
the magistrate may deposit the money in a bank account pursuant to
Section 68084 of the Government Code, and by check drawn on such bank
account transmit the amount of the undertaking to the court at which
the defendant is required to appear.
824. When an adult willfully misrepresents himself or herself to be
a minor under 18 years of age when taken into custody and this
misrepresentation effects a material delay in investigation which
prevents the filing of a criminal complaint against him or her in a
court of competent jurisdiction within 48 hours, the complaint shall
be filed within 48 hours from the time the true age is determined,
excluding nonjudicial days.
825. (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, when 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
prisoner or any relative of the prisoner, visit the prisoner. Any
officer having charge of the prisoner who willfully refuses or
neglects to allow that attorney to visit a prisoner is guilty of a
misdemeanor. Any officer having a prisoner in charge, who refuses to
allow the attorney to visit the prisoner 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.
825.5. Any physician and surgeon, including a psychiatrist,
licensed to practice in this state, or any psychologist licensed to
practice in this state who holds a doctoral degree and has at least
two years of experience in the diagnosis and treatment of emotional
and mental disorders, who is employed by the prisoner or his or her
attorney to assist in the preparation of the defense, shall be
permitted to visit the prisoner while he or she is in custody.
826. If on a warrant issued under Section 813 or 817 the defendant
is brought before a magistrate other than the one who issued the
warrant, the complaint on which the warrant was issued must be sent
to that magistrate, or if it cannot be procured, a new complaint may
be filed before that magistrate.
827. When a complaint is filed with a magistrate of the commission
of a felony originally triable in the superior court of another
county of the state than that in which the magistrate sits, but
showing that the defendant is in the county where the complaint is
filed, the same proceedings must be had as prescribed in this
chapter, except that the warrant must require the defendant to be
taken before the nearest or most accessible magistrate of the county
in which the offense is triable, and the complaint must be delivered
by the magistrate to the officer to whom the warrant is delivered.
827.1. A person who is specified or designated in a warrant of
arrest for a misdemeanor offense may be released upon the issuance of
a citation, in lieu of physical arrest, unless one of the following
conditions exists:
(a) The misdemeanor cited in the warrant involves violence.
(b) The misdemeanor cited in the warrant involves a firearm.
(c) The misdemeanor cited in the warrant involves resisting
arrest.
(d) The misdemeanor cited in the warrant involves giving false
information to a peace officer.
(e) The person arrested is a danger to himself or herself or
others due to intoxication or being under the influence of drugs or
narcotics.
(f) The person requires medical examination or medical care or was
otherwise unable to care for his or her own safety.
(g) The person has other ineligible charges pending against him or
her.
(h) There is reasonable likelihood that the offense or offenses
would continue or resume, or that the safety of persons or property
would be immediately endangered by the release of the person.
(i) The person refuses to sign the notice to appear.
(j) The person cannot provide satisfactory evidence of personal
identification.
(k) The warrant of arrest indicates that the person is not
eligible to be released on a citation.
The issuance of a citation under this section shall be undertaken
in the manner set forth in Sections 853.6 to 853.8, inclusive.
828. The officer who executes the warrant must take the defendant
before the nearest or most accessible magistrate of the county in
which the offense is triable, and must deliver to him the complaint
and the warrant, with his return endorsed thereon, and the magistrate
must then proceed in the same manner as upon a warrant issued by
himself.
829. When a complaint is filed with a magistrate of the commission
of a misdemeanor or infraction triable in another county of the state
than that in which the magistrate sits, but showing that the
defendant is in the county where the complaint is filed, the officer
must, upon being required by the defendant, take the defendant before
a magistrate of the county in which the warrant was issued, who must
admit the defendant to bail in the amount specified in the
endorsement referred to in Section 815a, and immediately transmit the
warrant, complaint, and undertaking to the clerk of the court in
which the defendant is required to appear.