AB 1209: Criminal procedure: public defenders.
- Session Year: 2023-2024
- House: Assembly
- Latest Version Date: 2023-04-26
Current Status:
Failed
(2024-02-01: From committee: Filed with the Chief Clerk pursuant to Joint Rule 56.)
Introduced
In Committee
First Chamber
In Committee
Second Chamber
Enacted
What does this bill do?
The bill requires public defenders or other indigent defense providers to begin representing or advising people who are arrested or cited as soon as possible—within 24 hours of booking or before arraignment—and it presumes a person held at that time cannot afford a lawyer. It also requires a confidential, individual explanation of the right to counsel and possible collateral consequences before anyone can give up the right to a lawyer, and bars courts or prosecutors from offering or accepting plea deals in misdemeanor or most felony cases unless counsel is present or the required explanation and waiver have occurred. The bill further requires officers to tell arrestees about free phone-call rights, allows two extra calls to arrange care for household members, requires notification to the public defender within two hours of booking, and allows an attorney’s representative to visit detainees.
The summary is provided by generative AI which can make mistakes. For original language, please view the details in the table below.
(1)Existing law allows the board of supervisors of any county to establish the office of the public defender and requires the public defender to, among other duties, defend a person who is not financially able to employ counsel and who is charged with the commission of a crime. Existing law authorizes the court to make the final determination as to whether a defendant is financially able to employ counsel and qualifies for the services of the public defender.
This bill would require this representation to commence as soon as feasible after being notified of a persons arrest, but in any case within 24 hours after booking or sufficiently before the arraignment to allow the provision of meaningful representation, as specified. The bill would establish a presumption that a person detained when this representation begins is unable to financially employ counsel and eligible for indigent defense services. The bill would additionally require the public defender or indigent defense provider to, prior to the arraignment, individually and confidentially advise a person who has been cited or arrested for a misdemeanor or felony on the importance of the right to counsel, including potential collateral consequences and the right to the assistance of counsel at no expense if the defendant is not financially able to employ counsel. The bill would require the court to ensure this advisal has occurred prior to accepting a waiver of counsel.
(2)Under existing law, immediately upon being booked and, except where physically impossible, no later than three hours after arrest, an arrested person has the right to make at least three completed telephone calls, as specified. Existing law requires that a sign informing the arrested person of this right be posted in a conspicuous place. Under existing law, if the arrested person is identified as a custodial parent with responsibility for a minor child, the arrested person is entitled to make 2 additional calls for the purpose of arranging for the care of the minor child in the parents absence, as specified.
This bill would additionally require the arresting or booking officer to verbally inform the arrested person of this right. The bill would specify that the arrested person has the right to free telephone calls both during and outside of business hours. The bill would allow an arrested person to make 2 additional calls if they are responsible for providing care to another household member for the purpose of arranging for their care. The bill would require the arresting or booking officer to, immediately upon booking and no later than 2 hours after arrest, notify the public defender or indigent defense provider for the county that the arrested person is in custody.
(3)Existing law prohibits the court from accepting a plea of guilty for a felony not punishable by death or life imprisonment from a defendant who does not appear with counsel unless the court fully informs the defendant of the right to counsel and finds that the defendant understands the right and freely waives it, as specified.
This bill would expand this to misdemeanors, require an additional advisal prior to a person waiving the right to counsel, and require the court to inform the defendant through an individualized colloquy and in writing of their right to counsel, as specified. The bill would establish a presumption that a plea taken without counsel is not knowing, intelligent, and voluntary, as specified. The bill would prohibit a prosecutor and judge from communicating a plea offer, disposition, or resolution to a defendant unless counsel is present or the defendant has waived counsel, as specified.
(4)Existing law requires a person arrested to be taken before a magistrate without delay and, in any event, within 48 hours after arrest, not including weekends and holidays, as specified. Existing law allows an attorney to visit a prisoner after their arrest upon the request of the prisoner or their relative, as specified.
This bill would additionally allow an attorneys representative to visit a prisoner after their arrest.
By expanding the duties of the public defender and imposing new duties on local agencies, this bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
(1)Existing law allows the board of supervisors of any county to establish the office of the public defender and requires the public defender to, among other duties, defend a person who is not financially able to employ counsel and who is charged with the commission of a crime. Existing law authorizes the court to make the final determination as to whether a defendant is financially able to employ counsel and qualifies for the services of the public defender.
This bill would require this representation to commence as soon as feasible after being notified of a persons arrest, but in any case within 24 hours after booking or sufficiently before the arraignment to allow the provision of meaningful representation, as specified. The bill would establish a presumption that a person detained when this representation begins is unable to financially employ counsel and eligible for indigent defense services. The bill would additionally require the public defender or indigent defense provider to, prior to the arraignment, individually and confidentially advise a person who has been cited or arrested for a misdemeanor or felony on the importance of the right to counsel, including potential collateral consequences and the right to the assistance of counsel at no expense if the defendant is not financially able to employ counsel. The bill would require the court to ensure this advisal has occurred prior to accepting a waiver of counsel.
(2)Under existing law, immediately upon being booked and, except where physically impossible, no later than three hours after arrest, an arrested person has the right to make at least three completed telephone calls, as specified. Existing law requires that a sign informing the arrested person of this right be posted in a conspicuous place. Under existing law, if the arrested person is identified as a custodial parent with responsibility for a minor child, the arrested person is entitled to make 2 additional calls for the purpose of arranging for the care of the minor child in the parents absence, as specified.
This bill would additionally require the arresting or booking officer to verbally inform the arrested person of this right. The bill would specify that the arrested person has the right to free telephone calls both during and outside of business hours. The bill would allow an arrested person to make 2 additional calls if they are responsible for providing care to another household member for the purpose of arranging for their care. The bill would require the arresting or booking officer to, immediately upon booking and no later than 2 hours after arrest, notify the public defender or indigent defense provider for the county that the arrested person is in custody.
(3)Existing law prohibits the court from accepting a plea of guilty for a felony not punishable by death or life imprisonment from a defendant who does not appear with counsel unless the court fully informs the defendant of the right to counsel and finds that the defendant understands the right and freely waives it, as specified.
This bill would expand this to misdemeanors, require an additional advisal prior to a person waiving the right to counsel, and require the court to inform the defendant through an individualized colloquy and in writing of their right to counsel, as specified. The bill would establish a presumption that a plea taken without counsel is not knowing, intelligent, and voluntary, as specified. The bill would prohibit a prosecutor and judge from communicating a plea offer, disposition, or resolution to a defendant unless counsel is present or the defendant has waived counsel, as specified.
Existing(4)Existing law requires a person arrested to be taken before a magistrate without delay and, in any event, within 48 hours after arrest, not including weekends and holidays, as specified. Existing law allows an attorney to visit a prisoner after their arrest upon the request of the prisoner or their relative, as specified.
This bill would additionally allow an attorneys representative to visit a prisoner after their arrest.
By expanding the duties of the public defender and imposing new duties on local agencies, this bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
Existing law requires a person arrested to be taken before a magistrate without delay and, in any event, within 48 hours after arrest, not including weekends and holidays, as specified. Existing law allows an attorney to visit a prisoner after their arrest upon the request of the prisoner or their relative, as specified.
This bill would additionally allow an attorneys representative to visit a prisoner after their arrest.
The public defender shall perform the following duties:
(a)(1)Upon request of the defendant, following arrest and booking into jail and beginning prior to the arraignment, or upon order of the court, the The public defender shall defend, without expense to the defendant, any person who is not financially able to employ counsel and who is charged with the commission of any contempt or offense triable in the superior courts at all stages of the proceedings, including the arraignment, pretrial release hearing, and preliminary examination. The examination in any of the following circumstances:
(A)At any time upon the request of the defendant.
(B)Following arrest and booking prior to any bail or court proceeding.
(C)Upon the order of the court.
(2)The public defender shall give counsel and advice to such person a defendant described in paragraph (1) about any charge against the person upon which the public defender is conducting the defense, and shall prosecute all appeals to a higher court or courts of any person who has been convicted, where, in the opinion of the public defender, the appeal will or might reasonably be expected to result in the reversal or modification of the judgment of conviction.
(2)(3)The public defender shall commence the representation described in this subdivision as soon as feasible after being notified of a persons arrest, but in any case within 24 hours after booking or sufficiently before the arraignment to allow the provision of meaningful representation, whichever occurs sooner. Sufficient time before the arraignment means the public defender has time to interview the defendant, make a meaningful argument to secure pretrial release when appropriate, accurately and adequately advise the accused and the court, and take any other necessary actions to protect the rights of the accused.
(b)Upon request, the public defender shall prosecute actions for the collection of wages and other demands of any person who is not financially able to employ counsel, where the sum involved does not exceed one hundred dollars ($100), and where, in the judgment of the public defender, the claim urged is valid and enforceable in the courts.
(c)Upon request, the public defender shall defend any person who is not financially able to employ counsel in any civil litigation in which, in the judgment of the public defender, the person is being persecuted or unjustly harassed.
(d)Upon request, or upon order of the court, the public defender shall represent any person who is not financially able to employ counsel in proceedings under Division 4 (commencing with Section 1400) of the Probate Code and Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code.
(e)Upon order of the court, the public defender shall represent any person who is entitled to be represented by counsel but is not financially able to employ counsel in proceedings under Chapter 2 (commencing with Section 500) of Part 1 of Division 2 of the Welfare and Institutions Code.
(f)Upon order of the court the public defender shall represent any person who is required to have counsel pursuant to Section 686.1 of the Penal Code.
(g)Upon the order of the court or upon the request of the person involved, the public defender may represent any person who is not financially able to employ counsel in a proceeding of any nature relating to the nature or conditions of detention, of other restrictions prior to adjudication, of treatment, or of punishment resulting from criminal or juvenile proceedings.
SEC. 2.Section 27707 of the Government Code is amended to read:27707.(a)The court in which the proceeding is pending may make the final determination in each case as to whether a defendant or person described in Section 27706 is financially able to employ counsel and qualifies for the services of the public defender. The public defender shall, however, render legal services as provided in subdivisions (a), (b) (b), and (c) of Section 27706 for any person the public defender determines is not financially able to employ counsel until such time as a contrary determination is made by the court. If a contrary determination is made, the public defender thereafter may not render services for such person except in a proceeding to review the determination of that issue or in an unrelated proceeding. In order to assist the court or public defender in making the determination, the court or the public defender may require a defendant or person requesting services of the public defender to file a financial statement under penalty of perjury. The financial statement shall be confidential and privileged and shall not be admissible as evidence in any criminal proceeding except the prosecution of an alleged offense of perjury based upon false material contained in the financial statement. The financial statement shall be made available to the prosecution only for purposes of investigation of an alleged offense of perjury based upon false material contained in the financial statement at the conclusion of the proceedings for which such financial statement was required to be submitted.
(b)A person who is detained when the representation in subdivision (a) of Section 27706 begins shall be presumed not financially able to employ counsel and eligible for indigent defense services.
SEC. 3.Section 813 of the Penal Code is amended to read:813.(a)When a complaint is filed with a magistrate charging a felony originally triable in the superior court of the county in which they sit, 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 their 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 their 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.
(9)Notification of the defendants right to counsel, the right to the assistance of counsel at no expense if the defendant is not financially able to employ counsel, and the contact information for the public defender or, if there is no public defender, the indigent defense provider for the county.
(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.
SEC. 4.Section 825 of the Penal Code is amended to read: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 their arrest, excluding Sundays and holidays.
(2)If 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 defendants arrest occurs on a Wednesday after the conclusion of the days 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, an attorney at law entitled to practice in the courts of record of California, or an attorneys representative, may, at the request of the prisoner or a relative of the prisoner, visit the prisoner. An officer having charge of the prisoner who willfully refuses or neglects to allow that attorney to visit a prisoner is guilty of a misdemeanor. An 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 a court of competent jurisdiction.
SEC. 5.Section 851.5 of the Penal Code is amended to read:851.5.(a)(1)Immediately upon being booked and, except where physically impossible, no later than three hours after arrest, an arrested person has the right to make at least three completed telephone calls, as described in subdivision (b).
(2)The arrested person shall be entitled to make at least three calls at no expense if the calls are completed to telephone numbers within the local calling area or at their own expense if outside the local calling area.
(b)At a police facility or place where an arrested person is detained, the arresting or booking officer shall verbally inform the arrested person of the following information, and a sign containing the following information in bold block type shall be posted in a conspicuous place:
The arrested person has the right to free telephone calls, both during and outside of business hours, within the local calling area, or at their own expense if outside the local calling area, to three of the following:
(1)An attorney of their choice or, if they have no funds, the public defender or other attorney assigned by the court to assist indigents, whose telephone number shall be posted. This telephone call shall not be monitored, eavesdropped upon, or recorded.
(2)A bail bondsman.
(3)A relative or other person.
(c)As soon as practicable upon being arrested but, except where physically impossible, no later than three hours after arrest, the arresting or booking officer shall inquire as to whether the arrested person is a custodial parent with responsibility for a minor child, or is responsible for providing care to another household member. The arresting or booking officer shall notify the arrested person who is a custodial parent with responsibility for a minor child or who is responsible for providing care for another household member that they are entitled to, and may request to, make two additional telephone calls at no expense if the telephone calls are completed to telephone numbers within the local calling area, or at their own expense if outside the local calling area, to a relative or other person for the purpose of arranging for the care of the minor child or household member in the arrested persons absence.
(d)At a police facility or place where an arrested person is detained, a sign containing the following information in bold block type shall be posted in a conspicuous place:
The arrested person, if they are a custodial parent with responsibility for a minor child, has the right to two additional telephone calls within the local dialing area, or at their own expense if outside the local area, for the purpose of arranging for the care of the minor child or children in the parents absence.
(e)These telephone calls shall be given immediately upon request, or as soon as practicable.
(f)The signs posted pursuant to subdivisions (b) and (d) shall make the specified notifications in English and any non-English language spoken by a substantial number of the public, as specified in Section 7296.2 of the Government Code, who are served by the police facility or place of detainment.
(g)The rights and duties set forth in this section shall be enforced regardless of the arrested persons immigration status.
(h)This provision shall not abrogate a law enforcement officers duty to advise a suspect of their right to counsel or of any other right.
(i)Any public officer or employee who willfully deprives an arrested person of any right granted by this section is guilty of a misdemeanor.
(j)Immediately upon booking, and no later than two hours after the arrest, the arresting or booking officer shall notify the public defender or, if there is no public defender, the indigent defense provider for the county, that the arrested person is in custody.
SEC. 6.Section 853.6 of the Penal Code, as amended by Section 1 of Chapter 856 of the Statutes of 2022, is amended to read:853.6.(a)(1)When a person is arrested for an offense declared to be a misdemeanor, including a violation of a city or county ordinance, and does not demand to be taken before a magistrate, that person shall, instead of being taken before a magistrate, be released according to the procedures set forth by this chapter, although nothing prevents an officer from first booking an arrested person pursuant to subdivision (g). If the person is released, the officer or the officers superior shall prepare in duplicate a written notice to appear in court, containing the name and address of the person, the offense charged, and the time when, and place where, the person shall appear in court. The notice shall also include notification of the defendants right to counsel, the right to the assistance of counsel at no expense if the defendant is not financially able to employ counsel, and the contact information for the public defender or, if there is no public defender, the indigent defense provider for the county. If, pursuant to subdivision (i), the person is not released prior to being booked and the officer in charge of the booking or the officers superior determines that the person should be released, the officer or the officers superior shall prepare a written notice to appear in a court.
(2)When a person is arrested for a misdemeanor violation of a protective court order involving domestic violence, as defined in Section 13700, or arrested pursuant to a policy, as described in Section 13701, the person shall be taken before a magistrate instead of being released according to the procedures set forth in this chapter, unless the arresting officer determines that there is not a reasonable likelihood that the offense will continue or resume or that the safety of persons or property would be imminently endangered by release of the person arrested. Prior to adopting these provisions, each city, county, or city and county shall develop a protocol to assist officers to determine when arrest and release is appropriate, rather than taking the arrested person before a magistrate. The county shall establish a committee to develop the protocol, consisting of, at a minimum, the police chief or county sheriff within the jurisdiction, the district attorney, county counsel, city attorney, representatives from domestic violence shelters, domestic violence councils, and other relevant community agencies.
(3)This subdivision does not apply to the crimes specified in Section 1270.1, including crimes defined in each of the following:
(A)Paragraph (1) of subdivision (e) of Section 243.
(B)Section 273.5.
(C)Section 273.6, if the detained person made threats to kill or harm, has engaged in violence against, or has gone to the residence or workplace of, the protected party.
(D)Section 646.9.
(4)This subdivision shall not affect a defendants ability to be released on bail or on their own recognizance, except as specified in Section 1270.1.
(b)Unless waived by the person, the time specified in the notice to appear shall be at least 10 days after arrest if the duplicate notice is to be filed by the officer with the magistrate.
(c)The place specified in the notice shall be the court of the magistrate before whom the person would be taken if the requirement of taking an arrested person before a magistrate were complied with, or shall be an officer authorized by that court to receive a deposit of bail.
(d)The officer shall deliver one copy of the notice to appear to the arrested person, and the arrested person, in order to secure release, shall give their written promise to appear in court as specified in the notice by signing the duplicate notice, which shall be retained by the officer, and the officer may require the arrested person, if the arrested person has no satisfactory identification, to place a right thumbprint, or a left thumbprint or fingerprint if the person has a missing or disfigured right thumb, on the notice to appear. Except for law enforcement purposes relating to the identity of the arrested person, a person or entity shall not sell, give away, allow the distribution of, include in a database, or create a database with, this print. Upon the signing of the duplicate notice, the arresting officer shall immediately release the person arrested from custody.
(e)The officer shall, as soon as practicable, file the duplicate notice, as follows:
(1)It shall be filed with the magistrate if the offense charged is an infraction.
(2)It shall be filed with the magistrate if the prosecuting attorney has previously directed the officer to do so.
(3)(A)The duplicate notice and underlying police reports in support of the charge or charges shall be filed with the prosecuting attorney in cases other than those specified in paragraphs (1) and (2).
(B)If the duplicate notice is filed with the prosecuting attorney, the prosecuting attorney, within their discretion, may initiate prosecution by filing the notice or a formal complaint with the magistrate specified in the duplicate notice within 25 days from the time of arrest. If the prosecution is not to be initiated, the prosecutor shall send notice to the person arrested at the address on the notice to appear. The failure by the prosecutor to file the notice or formal complaint within 25 days of the time of the arrest shall not bar further prosecution of the misdemeanor charged in the notice to appear. However, any further prosecution shall be preceded by a new and separate citation or an arrest warrant.
(C)Upon the filing of the notice with the magistrate by the officer, or the filing of the notice or formal complaint by the prosecutor, the magistrate may fix the amount of bail that in the magistrates judgment, in accordance with Section 1275, is reasonable and sufficient for the appearance of the defendant and shall endorse upon the notice a statement signed by the magistrate in the form set forth in Section 815a. The defendant may, prior to the date upon which the defendant promised to appear in court, deposit with the magistrate the amount of bail set by the magistrate. At the time the case is called for arraignment before the magistrate, if the defendant does not appear, either in person or by counsel, the magistrate may declare the bail forfeited, and may, in the magistrates discretion, order that further proceedings shall not be had in the case, unless the defendant has been charged with a violation of Section 374.3 or 374.7 of this code or of Section 11357, 11360, or 13002 of the Health and Safety Code, or a violation punishable under Section 5008.7 of the Public Resources Code, and the defendant has previously been convicted of a violation of that section or a violation that is punishable under that section, except when the magistrate finds that undue hardship will be imposed upon the defendant by requiring the defendant to appear, the magistrate may declare the bail forfeited and order that further proceedings not be had in the case.
(D)Upon the making of the order that further proceedings not be had, all sums deposited as bail shall immediately be paid into the county treasury for distribution pursuant to Section 1463.
(f)A warrant shall not be issued for the arrest of a person who has given a written promise to appear in court, unless and until the person has violated that promise or has failed to deposit bail, to appear for arraignment, trial, or judgment, or to comply with the terms and provisions of the judgment, as required by law.
(g)The officer may book the arrested person at the scene or at the arresting agency prior to release or indicate on the citation that the arrested person shall appear at the arresting agency to be booked or indicate on the citation that the arrested person shall appear at the arresting agency to be fingerprinted prior to the date the arrested person appears in court. If it is indicated on the citation that the arrested person shall be booked or fingerprinted prior to the date of the persons court appearance, the arresting agency, at the time of booking or fingerprinting, shall provide the arrested person with verification of the booking or fingerprinting by making an entry on the citation. If it is indicated on the citation that the arrested person is to be booked or fingerprinted, the magistrate, judge, or court shall, before the proceedings begin, order the defendant to provide verification that the defendant was booked or fingerprinted by the arresting agency. If the defendant cannot produce the verification, the magistrate, judge, or court shall require that the defendant be booked or fingerprinted by the arresting agency before the next court appearance, and that the defendant provide the verification at the next court appearance unless both parties stipulate that booking or fingerprinting is not necessary.
(h)A peace officer shall use the written notice to appear procedure set forth in this section for any misdemeanor offense in which the officer has arrested a person without a warrant pursuant to Section 836 or in which the officer has taken custody of a person pursuant to Section 847.
(i)When a person is arrested by a peace officer for a misdemeanor, that person shall be released according to the procedures set forth in this chapter unless one of the following is a reason for nonrelease, in which case the arresting officer may release the person, except as provided in subdivision (a), or the arresting officer shall indicate, on a form to be established by the officers employing law enforcement agency, which of the following was a reason for the nonrelease:
(1)The person arrested was so intoxicated that they could have been a danger to themselves or to others.
(2)The person arrested required medical examination or medical care or was otherwise unable to care for their own safety.
(3)The person was arrested under one or more of the circumstances listed in Sections 40302 and 40303 of the Vehicle Code.
(4)There were one or more outstanding arrest warrants for the person.
(5)The person could not provide satisfactory evidence of personal identification.
(6)The prosecution of the offense or offenses for which the person was arrested, or the prosecution of any other offense or offenses, would be jeopardized by immediate release of the person arrested.
(7)There was a reasonable likelihood that the offense or offenses would continue or resume, or that the safety of persons or property would be imminently endangered by release of the person arrested.
(8)The person arrested demanded to be taken before a magistrate or refused to sign the notice to appear.
(9)There is reason to believe that the person would not appear at the time and place specified in the notice. The basis for this determination shall be specifically stated.
(10)(A)The person was subject to Section 1270.1.
(B)The form shall be filed with the arresting agency as soon as practicable and shall be made available to any party having custody of the arrested person, subsequent to the arresting officer, and to any person authorized by law to release the arrested person from custody before trial.
(11)The person has been cited, arrested, or convicted for misdemeanor or felony theft from a store in the previous six months.
(12)There is probable cause to believe that the person arrested is guilty of committing organized retail theft, as defined in subdivision (a) of Section 490.4.
(j)(1)Once the arresting officer has prepared the written notice to appear and has delivered a copy to the person arrested, the officer shall deliver the remaining original and all copies as provided by subdivision (e).
(2)Any person, including the arresting officer and any member of the officers department or agency, or any peace officer, who alters, conceals, modifies, nullifies, or destroys, or causes to be altered, concealed, modified, nullified, or destroyed, the face side of the remaining original or a copy of a citation that was retained by the officer, for any reason, before it is filed with the magistrate or with a person authorized by the magistrate to receive deposit of bail, is guilty of a misdemeanor.
(3)If, after an arrested person has signed and received a copy of a notice to appear, the arresting officer determines that, in the interest of justice, the citation or notice should be dismissed, the arresting agency may recommend, in writing, to the magistrate that the charges be dismissed. The recommendation shall cite the reasons for the recommendation and shall be filed with the court.
(4)If the magistrate makes a finding that there are grounds for dismissal, the finding shall be entered in the record and the charges dismissed.
(5)A personal relationship with any officer, public official, or law enforcement agency shall not be grounds for dismissal.
(k)(1)A person contesting a charge by claiming under penalty of perjury not to be the person issued the notice to appear may choose to submit a right thumbprint, or a left thumbprint if the person has a missing or disfigured right thumb, to the issuing court through the persons local law enforcement agency for comparison with the one placed on the notice to appear. A local law enforcement agency providing this service may charge the requester no more than the actual costs. The issuing court may refer the thumbprint submitted and the notice to appear to the prosecuting attorney for comparison of the thumbprints. When there is no thumbprint or fingerprint on the notice to appear, or when the comparison of thumbprints is inconclusive, the court shall refer the notice to appear or copy thereof back to the issuing agency for further investigation, unless the court finds that referral is not in the interest of justice.
(2)Upon initiation of the investigation or comparison process by referral of the court, the court shall continue the case and the speedy trial period shall be tolled for 45 days.
(3)Upon receipt of the issuing agencys or prosecuting attorneys response, the court may make a finding of factual innocence pursuant to Section 530.6 if the court determines that there is insufficient evidence that the person cited is the person charged and shall immediately notify the Department of Motor Vehicles of its determination. If the Department of Motor Vehicles determines the citation or citations in question formed the basis of a suspension or revocation of the persons driving privilege, the department shall immediately set aside the action.
(4)If the prosecuting attorney or issuing agency fails to respond to a court referral within 45 days, the court shall make a finding of factual innocence pursuant to Section 530.6, unless the court finds that a finding of factual innocence is not in the interest of justice.
(5)The citation or notice to appear may be held by the prosecuting attorney or issuing agency for future adjudication should the arrested person who received the citation or notice to appear be found.
(l)For purposes of this section, the term arresting agency includes any other agency designated by the arresting agency to provide booking or fingerprinting services.
(m)This section shall remain in effect only until January 1, 2026, and as of that date is repealed.
SEC. 7.Section 853.6 of the Penal Code, as added by Section 2 of Chapter 856 of the Statutes of 2022, is amended to read:853.6.(a)(1)When a person is arrested for an offense declared to be a misdemeanor, including a violation of a city or county ordinance, and does not demand to be taken before a magistrate, that person shall, instead of being taken before a magistrate, be released according to the procedures set forth by this chapter, however an officer may first book an arrested person pursuant to subdivision (g). If the person is released, the officer or the officers superior shall prepare, in duplicate, a written notice to appear in court, containing the name and address of the person, the offense charged, and the time when, and place where, the person shall appear in court. The notice shall also include notification of the defendants right to counsel, the right to the assistance of counsel at no expense if the defendant is not financially able to employ counsel, and the contact information for the public defender or, if there is no public defender, the indigent defense provider for the county. If, pursuant to subdivision (i), the person is not released prior to being booked and the officer in charge of the booking or the officers superior determines that the person should be released, the officer or the officers superior shall prepare a written notice to appear in a court.
(2)When a person is arrested for a misdemeanor violation of a protective court order involving domestic violence, as defined in subdivision (b) of Section 13700, or arrested pursuant to a policy described in Section 13701, the person shall be taken before a magistrate instead of being released according to the procedures set forth in this chapter, unless the arresting officer determines that there is not a reasonable likelihood that the offense will continue or resume or that the safety of persons or property would be imminently endangered by release of the person arrested. Prior to adopting these provisions, each city, county, or city and county shall develop a protocol to assist officers to determine when arrest and release is appropriate, rather than taking the arrested person before a magistrate. The county shall establish a committee to develop the protocol, consisting of, at a minimum, the police chief or county sheriff within the jurisdiction, the district attorney, county counsel, city attorney, representatives from domestic violence shelters, domestic violence councils, and other relevant community agencies.
(3)This subdivision shall not apply to the crimes specified in Section 1270.1, including crimes defined in each of the following:
(A)Paragraph (1) of subdivision (e) of Section 243.
(B)Section 273.5.
(C)Section 273.6, if the detained person made threats to kill or harm, has engaged in violence against, or has gone to the residence or workplace of, the protected party.
(D)Section 646.9.
(4)This subdivision does not affect a defendants ability to be released on bail or on their own recognizance, except as specified in Section 1270.1.
(b)Unless waived by the person, the time specified in the notice to appear shall be at least 10 days after arrest if the duplicate notice is to be filed by the officer with the magistrate.
(c)The place specified in the notice shall be the court of the magistrate before whom the person would be taken if the requirement of taking an arrested person before a magistrate were complied with, or shall be an officer authorized by that court to receive a deposit of bail.
(d)The officer shall deliver one copy of the notice to appear to the arrested person, and the arrested person, in order to secure release, shall give their written promise to appear in court as specified in the notice by signing the duplicate notice, which shall be retained by the officer. The officer may require the arrested person, if the arrested person has no satisfactory identification, to place a right thumbprint, or a left thumbprint or fingerprint if the person has a missing or disfigured right thumb, on the notice to appear. Except for law enforcement purposes relating to the identity of the arrested person, a person or entity may not sell, give away, allow the distribution of, include in a database, or create a database with, this print. Upon the person signing the duplicate notice, the arresting officer shall immediately release the person arrested from custody.
(e)The officer shall, as soon as practicable, file the duplicate notice, as follows:
(1)It shall be filed with the magistrate if the offense charged is an infraction.
(2)It shall be filed with the magistrate if the prosecuting attorney has previously directed the officer to do so.
(3)(A)The duplicate notice and underlying police reports in support of the charge or charges shall be filed with the prosecuting attorney in cases other than those specified in paragraphs (1) and (2).
(B)If the duplicate notice is filed with the prosecuting attorney, the prosecuting attorney, within their discretion, may initiate prosecution by filing the notice or a formal complaint with the magistrate specified in the duplicate notice within 25 days from the time of arrest. If the prosecution is not to be initiated, the prosecutor shall send notice to the person arrested at the address on the notice to appear. The failure by the prosecutor to file the notice or formal complaint within 25 days of the time of the arrest shall not bar further prosecution of the misdemeanor charged in the notice to appear. However, any further prosecution shall be preceded by a new and separate citation or an arrest warrant.
(C)Upon the filing of the notice with the magistrate by the officer, or the filing of the notice or formal complaint by the prosecutor, the magistrate may fix the amount of bail that in the magistrates judgment, in accordance with Section 1275, is reasonable and sufficient for the appearance of the defendant and shall endorse upon the notice a statement signed by the magistrate in the form set forth in Section 815a. The defendant may, prior to the date upon which the defendant promised to appear in court, deposit with the magistrate the amount of bail set by the magistrate. When the case is called for arraignment before the magistrate, if the defendant does not appear, either in person or by counsel, the magistrate may declare the bail forfeited, and may, in the magistrates discretion, order that no further proceedings shall be had in the case, unless the defendant has been charged with a violation of Section 374.3 or 374.7 of this code or of Section 11357, 11360, or 13002 of the Health and Safety Code, or a violation punishable under Section 5008.7 of the Public Resources Code, and the defendant has previously been convicted of a violation of that section or a violation that is punishable under that section, except in cases where the magistrate finds that undue hardship will be imposed upon the defendant by requiring the defendant to appear, the magistrate may declare the bail forfeited and order that no further proceedings be had in the case.
(D)Upon the making of the order that no further proceedings be had, all sums deposited as bail shall immediately be paid into the county treasury for distribution pursuant to Section 1463.
(f)A warrant shall not be issued for the arrest of a person who has given a written promise to appear in court, unless and until the person has violated that promise or has failed to deposit bail, to appear for arraignment, trial, or judgment or to comply with the terms and provisions of the judgment, as required by law.
(g)The officer may book the arrested person at the scene or at the arresting agency prior to release or indicate on the citation that the arrested person shall appear at the arresting agency to be booked or indicate on the citation that the arrested person shall appear at the arresting agency to be fingerprinted prior to the date the arrested person appears in court. If it is indicated on the citation that the arrested person shall be booked or fingerprinted prior to the date of the persons court appearance, the arresting agency, at the time of booking or fingerprinting, shall provide the arrested person with verification of the booking or fingerprinting by making an entry on the citation. If it is indicated on the citation that the arrested person is to be booked or fingerprinted, the magistrate, judge, or court shall, before the proceedings begin, order the defendant to provide verification that the defendant was booked or fingerprinted by the arresting agency. If the defendant cannot produce the verification, the magistrate, judge, or court shall require that the defendant be booked or fingerprinted by the arresting agency before the next court appearance, and that the defendant provide the verification at the next court appearance unless both parties stipulate that booking or fingerprinting is not necessary.
(h)A peace officer shall use the written notice to appear procedure set forth in this section for any misdemeanor offense in which the officer has arrested a person without a warrant pursuant to Section 836 or in which the officer has taken custody of a person pursuant to Section 847.
(i)When a person is arrested by a peace officer for a misdemeanor, that person shall be released according to the procedures set forth by this chapter unless one of the following is a reason for nonrelease, in which case the arresting officer may release the person, except as provided in subdivision (a), or the arresting officer shall indicate, on a form to be established by the officers employing law enforcement agency, which of the following was a reason for the nonrelease:
(1)The person arrested was so intoxicated that they could have been a danger to themselves or to others.
(2)The person arrested required medical examination or medical care or was otherwise unable to care for their own safety.
(3)The person was arrested under one or more of the circumstances listed in Sections 40302 and 40303 of the Vehicle Code.
(4)There were one or more outstanding arrest warrants for the person.
(5)The person could not provide satisfactory evidence of personal identification.
(6)The prosecution of the offense or offenses for which the person was arrested, or the prosecution of any other offense or offenses, would be jeopardized by immediate release of the person arrested.
(7)There was a reasonable likelihood that the offense or offenses would continue or resume, or that the safety of persons or property would be imminently endangered by release of the person arrested.
(8)The person arrested demanded to be taken before a magistrate or refused to sign the notice to appear.
(9)There is reason to believe that the person would not appear at the time and place specified in the notice. The basis for this determination shall be specifically stated.
(10)(A) The person was subject to Section 1270.1.
(B)The form shall be filed with the arresting agency as soon as practicable and shall be made available to any party having custody of the arrested person, subsequent to the arresting officer, and to any person authorized by law to release the arrested person from custody before trial.
(j)(1)Once the arresting officer has prepared the written notice to appear and has delivered a copy to the person arrested, the officer shall deliver the remaining original and all copies as provided by subdivision (e).
(2)A person, including the arresting officer and any member of the officers department or agency, or any peace officer, who alters, conceals, modifies, nullifies, or destroys, or causes to be altered, concealed, modified, nullified, or destroyed, the face side of the remaining original or any copy of a citation that was retained by the officer, for any reason, before it is filed with the magistrate or with a person authorized by the magistrate to receive deposit of bail, is guilty of a misdemeanor.
(3)If, after an arrested person has signed and received a copy of a notice to appear, the arresting officer determines that, in the interest of justice, the citation or notice should be dismissed, the arresting agency may recommend, in writing, to the magistrate that the charges be dismissed. The recommendation shall cite the reasons for the recommendation and shall be filed with the court.
(4)If the magistrate makes a finding that there are grounds for dismissal, the finding shall be entered in the record and the charges dismissed.
(5)A personal relationship with any officer, public official, or law enforcement agency shall not be grounds for dismissal.
(k)(1)A person contesting a charge by claiming under penalty of perjury not to be the person issued the notice to appear may choose to submit a right thumbprint, or a left thumbprint if the person has a missing or disfigured right thumb, to the issuing court through the persons local law enforcement agency for comparison with the one placed on the notice to appear. A local law enforcement agency providing this service may charge the requester no more than the actual costs. The issuing court may refer the thumbprint submitted and the notice to appear to the prosecuting attorney for comparison of the thumbprints. When there is no thumbprint or fingerprint on the notice to appear, or when the comparison of thumbprints is inconclusive, the court shall refer the notice to appear, or a copy thereof, back to the issuing agency for further investigation, unless the court finds that referral is not in the interest of justice.
(2)Upon initiation of the investigation or comparison process by referral of the court, the court shall continue the case and the speedy trial period shall be tolled for 45 days.
(3)Upon receipt of the issuing agencys or prosecuting attorneys response, the court may make a finding of factual innocence pursuant to Section 530.6 if the court determines that there is insufficient evidence that the person cited is the person charged and shall immediately notify the Department of Motor Vehicles of its determination. If the Department of Motor Vehicles determines the citation or citations in question formed the basis of a suspension or revocation of the persons driving privilege, the department shall immediately set aside the action.
(4)If the prosecuting attorney or issuing agency fails to respond to a court referral within 45 days, the court shall make a finding of factual innocence pursuant to Section 530.6, unless the court finds that a finding of factual innocence is not in the interest of justice.
(5)The citation or notice to appear may be held by the prosecuting attorney or issuing agency for future adjudication should the arrested person who received the citation or notice to appear be found.
(l)For purposes of this section, the term arresting agency includes any other agency designated by the arresting agency to provide booking or fingerprinting services.
(m)This section shall become operative January 1, 2026.
SEC. 8.Section 975 is added to the Penal Code, to read:975.(a)The public defender or indigent defense provider shall individually and confidentially advise a person who has been cited, summoned, or arrested for a misdemeanor or felony on the importance of the right to counsel, including potential collateral consequences and the right to the assistance of counsel at no expense if the defendant is not financially able to employ counsel.
(b)The court shall ensure that the requirements of this section are met prior to accepting a waiver of counsel.
(c)The individual advisal described in subdivision (a) shall occur in advance of the defendants initial arraignment and shall not delay a court date set for the defendant, unless the defendant consents to the delay.
SEC. 9.Section 987.2 of the Penal Code is amended to read:987.2.(a)In any case in which a person, including a person who is a minor, desires but is unable to employ counsel, and in which counsel is assigned in the superior court to represent the person in a criminal trial, proceeding, or appeal, the following assigned counsel shall receive a reasonable sum for compensation and for necessary expenses, the amount of which shall be determined by the court, to be paid out of the general fund of the county:
(1)In a county or city and county in which there is no public defender.
(2)In a county of the first, second, or third class where there is no contract for criminal defense services between the county and one or more responsible attorneys.
(3)In a case in which the court finds that, because of a conflict of interest or other reasons, the public defender has properly refused.
(4)In a county of the first, second, or third class where attorneys contracted by the county are unable to represent the person accused.
(b)The sum provided for in subdivision (a) may be determined by contract between the court and one or more responsible attorneys after consultation with the board of supervisors as to the total amount of compensation and expenses to be paid, which shall be within the amount of funds allocated by the board of supervisors for the cost of assigned counsel in those cases.
(c)In counties that utilize an assigned private counsel system as either the primary method of public defense or as the method of appointing counsel in cases where the public defender is unavailable, the assigned private counsel shall perform the duties required of the public defender pursuant to subdivision (a) of Section 27706 of the Government Code. The county, the courts, or the local county bar association working with the courts are encouraged to do all of the following:
(1)Establish panels that shall be open to members of the State Bar of California.
(2)Categorize attorneys for panel placement on the basis of experience.
(3)Refer cases to panel members on a rotational basis within the level of experience of each panel, except that a judge may exclude an individual attorney from appointment to an individual case for good cause.
(4)Seek to educate those panel members through an approved training program.
(d)In a county of the first, second, or third class, the court shall first utilize the services of the public defender to provide criminal defense services for indigent defendants. In the event that the public defender is unavailable and the county and the courts have contracted with one or more responsible attorneys or with a panel of attorneys to provide criminal defense services for indigent defendants, the court shall utilize the services of the county-contracted attorneys prior to assigning any other private counsel. Nothing in this subdivision shall be construed to require the appointment of counsel in any case in which the counsel has a conflict of interest. In the interest of justice, a court may depart from that portion of the procedure requiring appointment of a county-contracted attorney after making a finding of good cause and stating the reasons therefor on the record.
(e)In a county of the first, second, or third class, the court shall first utilize the services of the public defender to provide criminal defense services for indigent defendants. In the event that the public defender is unavailable and the county has created a second public defender and contracted with one or more responsible attorneys or with a panel of attorneys to provide criminal defense services for indigent defendants, and if the quality of representation provided by the second public defender is comparable to the quality of representation provided by the public defender, the court shall next utilize the services of the second public defender and then the services of the county-contracted attorneys prior to assigning any other private counsel. Nothing in this subdivision shall be construed to require the appointment of counsel in any case in which the counsel has a conflict of interest. In the interest of justice, a court may depart from that portion of the procedure requiring appointment of the second public defender or a county-contracted attorney after making a finding of good cause and stating the reasons therefor on the record.
(f)In any case in which counsel is assigned as provided in subdivision (a), that counsel appointed by the court and any court-appointed licensed private investigator shall have the same rights and privileges to information as the public defender and the public defender investigator. It is the intent of the Legislature in enacting this subdivision to equalize any disparity that exists between the ability of private, court-appointed counsel and investigators, and public defenders and public defender investigators, to represent their clients. This subdivision is not intended to grant to private investigators access to any confidential Department of Motor Vehicles information not otherwise available to them. This subdivision is not intended to extend to private investigators the right to issue subpoenas.
(g)Notwithstanding any other provision of this section, where an indigent defendant is first charged in one county and establishes an attorney-client relationship with the public defender, defense services contract attorney, or private attorney, and where the defendant is then charged with an offense in a second or subsequent county, the court in the second or subsequent county may appoint the same counsel as was appointed in the first county to represent the defendant when all of the following conditions are met:
(1)The offense charged in the second or subsequent county would be joinable for trial with the offense charged in the first if it took place in the same county, or involves evidence which would be cross-admissible.
(2)The court finds that the interests of justice and economy will be best served by unitary representation.
(3)Counsel appointed in the first county consents to the appointment.
(h)The county may recover costs of public defender services under Chapter 6 (commencing with Section 4750) of Title 5 of Part 3 for any case subject to Section 4750.
(i)Counsel shall be appointed to represent, in a misdemeanor case, a person who desires but is unable to employ counsel. Appointment of counsel in an infraction case is governed by Section 19.6.
(j)As used in this section, county of the first, second, or third class means the county of the first class, county of the second class, and county of the third class as provided by Sections 28020, 28022, 28023, and 28024 of the Government Code.
SEC. 10.Section 1018 of the Penal Code is amended to read:1018.(a)Unless otherwise provided by law, every plea shall be entered or withdrawn by the defendant in open court. A plea of guilty of a felony for which the maximum punishment is death, or life imprisonment without the possibility of parole, shall not be received from a defendant who does not appear with counsel, nor shall that plea be received without the consent of the defendants counsel. A plea of guilty of a felony for which the maximum punishment is not death or life imprisonment without the possibility of parole, or a misdemeanor, shall not be accepted from a defendant who does not appear with counsel unless the consultation advisal described in Section 975 has occurred and the court, in the presence of counsel and the defendant, first fully informs the defendant through an individualized colloquy and in writing of the right to counsel and the court finds that the defendant understands the right to counsel and freely waives it, and then only if the defendant has expressly stated in open court and in writing, to the court, that they do not wish to be represented by counsel. On application of the defendant at any time before judgment or within six months after an order granting probation is made if entry of judgment is suspended, the court may, and in case of a defendant who appeared without counsel at the time of the plea the court shall, for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted. Upon indictment or information against a corporation a plea of guilty may be put in by counsel. This section shall be liberally construed to effect these objects and to promote justice.
(b)There shall be a presumption that a plea taken without counsel is not knowing, intelligent, and voluntary in violation of the Fifth Amendment to the United States Constitution. This presumption shall only be overcome if the defendant has waived counsel pursuant to the requirements of subdivision (a) and the consultation pursuant to Section 975 has occurred. The court retains jurisdiction to hear a motion to vacate a conviction pursuant to this subdivision at any time after the conviction.
(c)A prosecutor or a judge shall not communicate a plea offer, disposition, or resolution on a pending charge or charge where prosecution is being considered to a defendant unless counsel is present, or unless the consultation advisal pursuant to Section 975 has occurred and the defendant has waived counsel pursuant to the requirements of subdivision (a). In a case in which the defendant has waived counsel pursuant to the requirements of subdivision (a), only a prosecutor or a judge shall communicate a plea offer to a defendant.
SEC. 11.If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.
The public defender shall perform the following duties:
(a)(1)Upon request of the defendant defendant, following arrest and booking into jail and beginning prior to the arraignment, or upon order of the court, the public defender shall defend, without expense to the defendant, any person who is not financially able to employ counsel and who is charged with the commission of any contempt or offense triable in the superior courts at all stages of the proceedings, including the arraignment, pretrial release hearing, and preliminary examination. The public defender shall, upon request, shall give counsel and advice to such person about any charge against the person upon which the public defender is conducting the defense, and shall prosecute all appeals to a higher court or courts of any person who has been convicted, where, in the opinion of the public defender, the appeal will or might reasonably be expected to result in the reversal or modification of the judgment of conviction.
(2)The public defender shall commence the representation described in this subdivision as soon as feasible after being notified of a persons arrest, but in any case within 24 hours after booking or sufficiently before the arraignment to allow the provision of meaningful representation, whichever occurs sooner. Sufficient time before the arraignment means the public defender has time to interview the defendant, make a meaningful argument to secure pretrial release when appropriate, accurately and adequately advise the accused and the court, and take any other necessary actions to protect the rights of the accused.
(b)Upon request, the public defender shall prosecute actions for the collection of wages and other demands of any person who is not financially able to employ counsel, where the sum involved does not exceed one hundred dollars ($100), and where, in the judgment of the public defender, the claim urged is valid and enforceable in the courts.
(c)Upon request, the public defender shall defend any person who is not financially able to employ counsel in any civil litigation in which, in the judgment of the public defender, the person is being persecuted or unjustly harassed.
(d)Upon request, or upon order of the court, the public defender shall represent any person who is not financially able to employ counsel in proceedings under Division 4 (commencing with Section 1400) of the Probate Code and Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code.
(e)Upon order of the court, the public defender shall represent any person who is entitled to be represented by counsel but is not financially able to employ counsel in proceedings under Chapter 2 (commencing with Section 500) of Part 1 of Division 2 of the Welfare and Institutions Code.
(f)Upon order of the court the public defender shall represent any person who is required to have counsel pursuant to Section 686.1 of the Penal Code.
(g)Upon the order of the court or upon the request of the person involved, the public defender may represent any person who is not financially able to employ counsel in a proceeding of any nature relating to the nature or conditions of detention, of other restrictions prior to adjudication, of treatment, or of punishment resulting from criminal or juvenile proceedings.
(h)This section shall become operative July 1, 2021.SEC. 2.Section 27707 of the Government Code is amended to read:27707.(a)The court in which the proceeding is pending may make the final determination in each case as to whether a defendant or person described in Section 27706 is financially able to employ counsel and qualifies for the services of the public defender. The public defender shall, however, render legal services as provided in subdivisions (a), (b) and (c) of Section 27706 for any person the public defender determines is not financially able to employ counsel until such time as a contrary determination is made by the court. If a contrary determination is made, the public defender thereafter may not render services for such person except in a proceeding to review the determination of that issue or in an unrelated proceeding. In order to assist the court or public defender in making the determination, the court or the public defender may require a defendant or person requesting services of the public defender to file a financial statement under penalty of perjury. The financial statement shall be confidential and privileged and shall not be admissible as evidence in any criminal proceeding except the prosecution of an alleged offense of perjury based upon false material contained in the financial statement. The financial statement shall be made available to the prosecution only for purposes of investigation of an alleged offense of perjury based upon false material contained in the financial statement at the conclusion of the proceedings for which such financial statement was required to be submitted.
(b)This section shall become operative on July 1, 2021.(b)A person who is detained when the representation in subdivision (a) of Section 27706 begins shall be presumed not financially able to employ counsel and eligible for indigent defense services.
SEC. 3.Section 813 of the Penal Code is amended to read: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, they sit, 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 their 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 their 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.
(9)Notification of the defendants right to counsel, the right to the assistance of counsel at no expense if the defendant is not financially able to employ counsel, and the contact information for the public defender or, if there is no public defender, the indigent defense provider for the county.
(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.
SECTION 1.SEC. 4.Section 825 of the Penal Code is amended to read: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 their arrest, excluding Sundays and holidays.
(2)If 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 defendants arrest occurs on a Wednesday after the conclusion of the days 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, an attorney at law entitled to practice in the courts of record of California, or an attorneys representative, may, at the request of the prisoner or a relative of the prisoner, visit the prisoner. An officer having charge of the prisoner who willfully refuses or neglects to allow that attorney to visit a prisoner is guilty of a misdemeanor. An 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 a court of competent jurisdiction.
SEC. 5.Section 851.5 of the Penal Code is amended to read:851.5.(a)(1)Immediately upon being booked and, except where physically impossible, no later than three hours after arrest, an arrested person has the right to make at least three completed telephone calls, as described in subdivision (b).
(2)The arrested person shall be entitled to make at least three calls at no expense if the calls are completed to telephone numbers within the local calling area or at his or her their own expense if outside the local calling area.
(b)At any a police facility or place where an arrestee arrested person is detained, the arresting or booking officer shall verbally inform the arrested person of the following information, and a sign containing the following information in bold block type shall be posted in a conspicuous place:
The arrestee arrested person has the right to free telephone calls calls, both during and outside of business hours, within the local calling area, or at his or her their own expense if outside the local calling area, to three of the following:
(1)An attorney of his or her their choice or, if he or she has they have no funds, the public defender or other attorney assigned by the court to assist indigents, whose telephone number shall be posted. This telephone call shall not be monitored, eavesdropped upon, or recorded.
(2)A bail bondsman.
(3)A relative or other person.
(c)As soon as practicable upon being arrested but, except where physically impossible, no later than three hours after arrest, the arresting or booking officer shall inquire as to whether the arrested person is a custodial parent with responsibility for a minor child. child, or is responsible for providing care to another household member. The arresting or booking officer shall notify the arrested person who is a custodial parent with responsibility for a minor child or who is responsible for providing care for another household member that he or she is they are entitled to, and may request to, make two additional telephone calls at no expense if the telephone calls are completed to telephone numbers within the local calling area, or at his or her their own expense if outside the local calling area, to a relative or other person for the purpose of arranging for the care of the minor child or children in the parents absence. household member in the arrested persons absence.
(d)At any a police facility or place where an arrestee arrested person is detained, a sign containing the following information in bold block type shall be posted in a conspicuous place:
The arrestee, arrested person, if he or she is they are a custodial parent with responsibility for a minor child, has the right to two additional telephone calls within the local dialing area, or at his or her their own expense if outside the local area, for the purpose of arranging for the care of the minor child or children in the parents absence.
(e)These telephone calls shall be given immediately upon request, or as soon as practicable.
(f)The signs posted pursuant to subdivisions (b) and (d) shall make the specified notifications in English and any non-English language spoken by a substantial number of the public, as specified in Section 7296.2 of the Government Code, who are served by the police facility or place of detainment.
(g)The rights and duties set forth in this section shall be enforced regardless of the arrestees arrested persons immigration status.
(h)This provision shall not abrogate a law enforcement officers duty to advise a suspect of his or her their right to counsel or of any other right.
(i)Any public officer or employee who willfully deprives an arrested person of any right granted by this section is guilty of a misdemeanor.
(j)Immediately upon booking, and no later than two hours after the arrest, the arresting or booking officer shall notify the public defender or, if there is no public defender, the indigent defense provider for the county, that the arrested person is in custody.
SEC. 6.Section 853.6 of the Penal Code, as amended by Section 1 of Chapter 856 of the Statutes of 2022, is amended to read:853.6.(a)(1)When a person is arrested for an offense declared to be a misdemeanor, including a violation of a city or county ordinance, and does not demand to be taken before a magistrate, that person shall, instead of being taken before a magistrate, be released according to the procedures set forth by this chapter, although nothing prevents an officer from first booking an arrestee arrested person pursuant to subdivision (g). If the person is released, the officer or the officers superior shall prepare in duplicate a written notice to appear in court, containing the name and address of the person, the offense charged, and the time when, and place where, the person shall appear in court. The notice shall also include notification of the defendants right to counsel, the right to the assistance of counsel at no expense if the defendant is not financially able to employ counsel, and the contact information for the public defender or, if there is no public defender, the indigent defense provider for the county. If, pursuant to subdivision (i), the person is not released prior to being booked and the officer in charge of the booking or the officers superior determines that the person should be released, the officer or the officers superior shall prepare a written notice to appear in a court.
(2)When a person is arrested for a misdemeanor violation of a protective court order involving domestic violence, as defined in Section 13700, or arrested pursuant to a policy, as described in Section 13701, the person shall be taken before a magistrate instead of being released according to the procedures set forth in this chapter, unless the arresting officer determines that there is not a reasonable likelihood that the offense will continue or resume or that the safety of persons or property would be imminently endangered by release of the person arrested. Prior to adopting these provisions, each city, county, or city and county shall develop a protocol to assist officers to determine when arrest and release is appropriate, rather than taking the arrested person before a magistrate. The county shall establish a committee to develop the protocol, consisting of, at a minimum, the police chief or county sheriff within the jurisdiction, the district attorney, county counsel, city attorney, representatives from domestic violence shelters, domestic violence councils, and other relevant community agencies.
(3)This subdivision does not apply to the crimes specified in Section 1270.1, including crimes defined in each of the following:
(A)Paragraph (1) of subdivision (e) of Section 243.
(B)Section 273.5.
(C)Section 273.6, if the detained person made threats to kill or harm, has engaged in violence against, or has gone to the residence or workplace of, the protected party.
(D)Section 646.9.
(4)This subdivision shall not affect a defendants ability to be released on bail or on their own recognizance, except as specified in Section 1270.1.
(b)Unless waived by the person, the time specified in the notice to appear shall be at least 10 days after arrest if the duplicate notice is to be filed by the officer with the magistrate.
(c)The place specified in the notice shall be the court of the magistrate before whom the person would be taken if the requirement of taking an arrested person before a magistrate were complied with, or shall be an officer authorized by that court to receive a deposit of bail.
(d)The officer shall deliver one copy of the notice to appear to the arrested person, and the arrested person, in order to secure release, shall give their written promise to appear in court as specified in the notice by signing the duplicate notice, which shall be retained by the officer, and the officer may require the arrested person, if the arrested person has no satisfactory identification, to place a right thumbprint, or a left thumbprint or fingerprint if the person has a missing or disfigured right thumb, on the notice to appear. Except for law enforcement purposes relating to the identity of the arrestee, arrested person, a person or entity shall not sell, give away, allow the distribution of, include in a database, or create a database with, this print. Upon the signing of the duplicate notice, the arresting officer shall immediately release the person arrested from custody.
(e)The officer shall, as soon as practicable, file the duplicate notice, as follows:
(1)It shall be filed with the magistrate if the offense charged is an infraction.
(2)It shall be filed with the magistrate if the prosecuting attorney has previously directed the officer to do so.
(3)(A)The duplicate notice and underlying police reports in support of the charge or charges shall be filed with the prosecuting attorney in cases other than those specified in paragraphs (1) and (2).
(B)If the duplicate notice is filed with the prosecuting attorney, the prosecuting attorney, within their discretion, may initiate prosecution by filing the notice or a formal complaint with the magistrate specified in the duplicate notice within 25 days from the time of arrest. If the prosecution is not to be initiated, the prosecutor shall send notice to the person arrested at the address on the notice to appear. The failure by the prosecutor to file the notice or formal complaint within 25 days of the time of the arrest shall not bar further prosecution of the misdemeanor charged in the notice to appear. However, any further prosecution shall be preceded by a new and separate citation or an arrest warrant.
(C)Upon the filing of the notice with the magistrate by the officer, or the filing of the notice or formal complaint by the prosecutor, the magistrate may fix the amount of bail that in the magistrates judgment, in accordance with Section 1275, is reasonable and sufficient for the appearance of the defendant and shall endorse upon the notice a statement signed by the magistrate in the form set forth in Section 815a. The defendant may, prior to the date upon which the defendant promised to appear in court, deposit with the magistrate the amount of bail set by the magistrate. At the time the case is called for arraignment before the magistrate, if the defendant does not appear, either in person or by counsel, the magistrate may declare the bail forfeited, and may, in the magistrates discretion, order that further proceedings shall not be had in the case, unless the defendant has been charged with a violation of Section 374.3 or 374.7 of this code or of Section 11357, 11360, or 13002 of the Health and Safety Code, or a violation punishable under Section 5008.7 of the Public Resources Code, and the defendant has previously been convicted of a violation of that section or a violation that is punishable under that section, except when the magistrate finds that undue hardship will be imposed upon the defendant by requiring the defendant to appear, the magistrate may declare the bail forfeited and order that further proceedings not be had in the case.
(D)Upon the making of the order that further proceedings not be had, all sums deposited as bail shall immediately be paid into the county treasury for distribution pursuant to Section 1463.
(f)A warrant shall not be issued for the arrest of a person who has given a written promise to appear in court, unless and until the person has violated that promise or has failed to deposit bail, to appear for arraignment, trial, or judgment, or to comply with the terms and provisions of the judgment, as required by law.
(g)The officer may book the arrested person at the scene or at the arresting agency prior to release or indicate on the citation that the arrested person shall appear at the arresting agency to be booked or indicate on the citation that the arrested person shall appear at the arresting agency to be fingerprinted prior to the date the arrested person appears in court. If it is indicated on the citation that the arrested person shall be booked or fingerprinted prior to the date of the persons court appearance, the arresting agency, at the time of booking or fingerprinting, shall provide the arrested person with verification of the booking or fingerprinting by making an entry on the citation. If it is indicated on the citation that the arrested person is to be booked or fingerprinted, the magistrate, judge, or court shall, before the proceedings begin, order the defendant to provide verification that the defendant was booked or fingerprinted by the arresting agency. If the defendant cannot produce the verification, the magistrate, judge, or court shall require that the defendant be booked or fingerprinted by the arresting agency before the next court appearance, and that the defendant provide the verification at the next court appearance unless both parties stipulate that booking or fingerprinting is not necessary.
(h)A peace officer shall use the written notice to appear procedure set forth in this section for any misdemeanor offense in which the officer has arrested a person without a warrant pursuant to Section 836 or in which the officer has taken custody of a person pursuant to Section 847.
(i)When a person is arrested by a peace officer for a misdemeanor, that person shall be released according to the procedures set forth in this chapter unless one of the following is a reason for nonrelease, in which case the arresting officer may release the person, except as provided in subdivision (a), or the arresting officer shall indicate, on a form to be established by the officers employing law enforcement agency, which of the following was a reason for the nonrelease:
(1)The person arrested was so intoxicated that they could have been a danger to themselves or to others.
(2)The person arrested required medical examination or medical care or was otherwise unable to care for their own safety.
(3)The person was arrested under one or more of the circumstances listed in Sections 40302 and 40303 of the Vehicle Code.
(4)There were one or more outstanding arrest warrants for the person.
(5)The person could not provide satisfactory evidence of personal identification.
(6)The prosecution of the offense or offenses for which the person was arrested, or the prosecution of any other offense or offenses, would be jeopardized by immediate release of the person arrested.
(7)There was a reasonable likelihood that the offense or offenses would continue or resume, or that the safety of persons or property would be imminently endangered by release of the person arrested.
(8)The person arrested demanded to be taken before a magistrate or refused to sign the notice to appear.
(9)There is reason to believe that the person would not appear at the time and place specified in the notice. The basis for this determination shall be specifically stated.
(10)(A)The person was subject to Section 1270.1.
(B)The form shall be filed with the arresting agency as soon as practicable and shall be made available to any party having custody of the arrested person, subsequent to the arresting officer, and to any person authorized by law to release the arrested person from custody before trial.
(11)The person has been cited, arrested, or convicted for misdemeanor or felony theft from a store in the previous six months.
(12)There is probable cause to believe that the person arrested is guilty of committing organized retail theft, as defined in subdivision (a) of Section 490.4.
(j)(1)Once the arresting officer has prepared the written notice to appear and has delivered a copy to the person arrested, the officer shall deliver the remaining original and all copies as provided by subdivision (e).
(2)Any person, including the arresting officer and any member of the officers department or agency, or any peace officer, who alters, conceals, modifies, nullifies, or destroys, or causes to be altered, concealed, modified, nullified, or destroyed, the face side of the remaining original or a copy of a citation that was retained by the officer, for any reason, before it is filed with the magistrate or with a person authorized by the magistrate to receive deposit of bail, is guilty of a misdemeanor.
(3)If, after an arrested person has signed and received a copy of a notice to appear, the arresting officer determines that, in the interest of justice, the citation or notice should be dismissed, the arresting agency may recommend, in writing, to the magistrate that the charges be dismissed. The recommendation shall cite the reasons for the recommendation and shall be filed with the court.
(4)If the magistrate makes a finding that there are grounds for dismissal, the finding shall be entered in the record and the charges dismissed.
(5)A personal relationship with any officer, public official, or law enforcement agency shall not be grounds for dismissal.
(k)(1)A person contesting a charge by claiming under penalty of perjury not to be the person issued the notice to appear may choose to submit a right thumbprint, or a left thumbprint if the person has a missing or disfigured right thumb, to the issuing court through the persons local law enforcement agency for comparison with the one placed on the notice to appear. A local law enforcement agency providing this service may charge the requester no more than the actual costs. The issuing court may refer the thumbprint submitted and the notice to appear to the prosecuting attorney for comparison of the thumbprints. When there is no thumbprint or fingerprint on the notice to appear, or when the comparison of thumbprints is inconclusive, the court shall refer the notice to appear or copy thereof back to the issuing agency for further investigation, unless the court finds that referral is not in the interest of justice.
(2)Upon initiation of the investigation or comparison process by referral of the court, the court shall continue the case and the speedy trial period shall be tolled for 45 days.
(3)Upon receipt of the issuing agencys or prosecuting attorneys response, the court may make a finding of factual innocence pursuant to Section 530.6 if the court determines that there is insufficient evidence that the person cited is the person charged and shall immediately notify the Department of Motor Vehicles of its determination. If the Department of Motor Vehicles determines the citation or citations in question formed the basis of a suspension or revocation of the persons driving privilege, the department shall immediately set aside the action.
(4)If the prosecuting attorney or issuing agency fails to respond to a court referral within 45 days, the court shall make a finding of factual innocence pursuant to Section 530.6, unless the court finds that a finding of factual innocence is not in the interest of justice.
(5)The citation or notice to appear may be held by the prosecuting attorney or issuing agency for future adjudication should the arrestee arrested person who received the citation or notice to appear be found.
(l)For purposes of this section, the term arresting agency includes any other agency designated by the arresting agency to provide booking or fingerprinting services.
(m)This section shall remain in effect only until January 1, 2026, and as of that date is repealed.
SEC. 7.Section 853.6 of the Penal Code, as added by Section 2 of Chapter 856 of the Statutes of 2022, is amended to read:853.6.(a)(1)When a person is arrested for an offense declared to be a misdemeanor, including a violation of a city or county ordinance, and does not demand to be taken before a magistrate, that person shall, instead of being taken before a magistrate, be released according to the procedures set forth by this chapter, however an officer may first book an arrestee arrested person pursuant to subdivision (g). If the person is released, the officer or the officers superior shall prepare, in duplicate, a written notice to appear in court, containing the name and address of the person, the offense charged, and the time when, and place where, the person shall appear in court. The notice shall also include notification of the defendants right to counsel, the right to the assistance of counsel at no expense if the defendant is not financially able to employ counsel, and the contact information for the public defender or, if there is no public defender, the indigent defense provider for the county. If, pursuant to subdivision (i), the person is not released prior to being booked and the officer in charge of the booking or the officers superior determines that the person should be released, the officer or the officers superior shall prepare a written notice to appear in a court.
(2)When a person is arrested for a misdemeanor violation of a protective court order involving domestic violence, as defined in subdivision (b) of Section 13700, or arrested pursuant to a policy described in Section 13701, the person shall be taken before a magistrate instead of being released according to the procedures set forth in this chapter, unless the arresting officer determines that there is not a reasonable likelihood that the offense will continue or resume or that the safety of persons or property would be imminently endangered by release of the person arrested. Prior to adopting these provisions, each city, county, or city and county shall develop a protocol to assist officers to determine when arrest and release is appropriate, rather than taking the arrested person before a magistrate. The county shall establish a committee to develop the protocol, consisting of, at a minimum, the police chief or county sheriff within the jurisdiction, the district attorney, county counsel, city attorney, representatives from domestic violence shelters, domestic violence councils, and other relevant community agencies.
(3)This subdivision shall not apply to the crimes specified in Section 1270.1, including crimes defined in each of the following:
(A)Paragraph (1) of subdivision (e) of Section 243.
(B)Section 273.5.
(C)Section 273.6, if the detained person made threats to kill or harm, has engaged in violence against, or has gone to the residence or workplace of, the protected party.
(D)Section 646.9.
(4)This subdivision does not affect a defendants ability to be released on bail or on their own recognizance, except as specified in Section 1270.1.
(b)Unless waived by the person, the time specified in the notice to appear shall be at least 10 days after arrest if the duplicate notice is to be filed by the officer with the magistrate.
(c)The place specified in the notice shall be the court of the magistrate before whom the person would be taken if the requirement of taking an arrested person before a magistrate were complied with, or shall be an officer authorized by that court to receive a deposit of bail.
(d)The officer shall deliver one copy of the notice to appear to the arrested person, and the arrested person, in order to secure release, shall give their written promise to appear in court as specified in the notice by signing the duplicate notice, which shall be retained by the officer. The officer may require the arrested person, if the arrested person has no satisfactory identification, to place a right thumbprint, or a left thumbprint or fingerprint if the person has a missing or disfigured right thumb, on the notice to appear. Except for law enforcement purposes relating to the identity of the arrestee, arrested person, a person or entity may not sell, give away, allow the distribution of, include in a database, or create a database with, this print. Upon the person signing the duplicate notice, the arresting officer shall immediately release the person arrested from custody.
(e)The officer shall, as soon as practicable, file the duplicate notice, as follows:
(1)It shall be filed with the magistrate if the offense charged is an infraction.
(2)It shall be filed with the magistrate if the prosecuting attorney has previously directed the officer to do so.
(3)(A)The duplicate notice and underlying police reports in support of the charge or charges shall be filed with the prosecuting attorney in cases other than those specified in paragraphs (1) and (2).
(B)If the duplicate notice is filed with the prosecuting attorney, the prosecuting attorney, within their discretion, may initiate prosecution by filing the notice or a formal complaint with the magistrate specified in the duplicate notice within 25 days from the time of arrest. If the prosecution is not to be initiated, the prosecutor shall send notice to the person arrested at the address on the notice to appear. The failure by the prosecutor to file the notice or formal complaint within 25 days of the time of the arrest shall not bar further prosecution of the misdemeanor charged in the notice to appear. However, any further prosecution shall be preceded by a new and separate citation or an arrest warrant.
(C)Upon the filing of the notice with the magistrate by the officer, or the filing of the notice or formal complaint by the prosecutor, the magistrate may fix the amount of bail that in the magistrates judgment, in accordance with Section 1275, is reasonable and sufficient for the appearance of the defendant and shall endorse upon the notice a statement signed by the magistrate in the form set forth in Section 815a. The defendant may, prior to the date upon which the defendant promised to appear in court, deposit with the magistrate the amount of bail set by the magistrate. When the case is called for arraignment before the magistrate, if the defendant does not appear, either in person or by counsel, the magistrate may declare the bail forfeited, and may, in the magistrates discretion, order that no further proceedings shall be had in the case, unless the defendant has been charged with a violation of Section 374.3 or 374.7 of this code or of Section 11357, 11360, or 13002 of the Health and Safety Code, or a violation punishable under Section 5008.7 of the Public Resources Code, and the defendant has previously been convicted of a violation of that section or a violation that is punishable under that section, except in cases where the magistrate finds that undue hardship will be imposed upon the defendant by requiring the defendant to appear, the magistrate may declare the bail forfeited and order that no further proceedings be had in the case.
(D)Upon the making of the order that no further proceedings be had, all sums deposited as bail shall immediately be paid into the county treasury for distribution pursuant to Section 1463.
(f)A warrant shall not be issued for the arrest of a person who has given a written promise to appear in court, unless and until the person has violated that promise or has failed to deposit bail, to appear for arraignment, trial, or judgment or to comply with the terms and provisions of the judgment, as required by law.
(g)The officer may book the arrested person at the scene or at the arresting agency prior to release or indicate on the citation that the arrested person shall appear at the arresting agency to be booked or indicate on the citation that the arrested person shall appear at the arresting agency to be fingerprinted prior to the date the arrested person appears in court. If it is indicated on the citation that the arrested person shall be booked or fingerprinted prior to the date of the persons court appearance, the arresting agency, at the time of booking or fingerprinting, shall provide the arrested person with verification of the booking or fingerprinting by making an entry on the citation. If it is indicated on the citation that the arrested person is to be booked or fingerprinted, the magistrate, judge, or court shall, before the proceedings begin, order the defendant to provide verification that the defendant was booked or fingerprinted by the arresting agency. If the defendant cannot produce the verification, the magistrate, judge, or court shall require that the defendant be booked or fingerprinted by the arresting agency before the next court appearance, and that the defendant provide the verification at the next court appearance unless both parties stipulate that booking or fingerprinting is not necessary.
(h)A peace officer shall use the written notice to appear procedure set forth in this section for any misdemeanor offense in which the officer has arrested a person without a warrant pursuant to Section 836 or in which the officer has taken custody of a person pursuant to Section 847.
(i)When a person is arrested by a peace officer for a misdemeanor, that person shall be released according to the procedures set forth by this chapter unless one of the following is a reason for nonrelease, in which case the arresting officer may release the person, except as provided in subdivision (a), or the arresting officer shall indicate, on a form to be established by the officers employing law enforcement agency, which of the following was a reason for the nonrelease:
(1)The person arrested was so intoxicated that they could have been a danger to themselves or to others.
(2)The person arrested required medical examination or medical care or was otherwise unable to care for their own safety.
(3)The person was arrested under one or more of the circumstances listed in Sections 40302 and 40303 of the Vehicle Code.
(4)There were one or more outstanding arrest warrants for the person.
(5)The person could not provide satisfactory evidence of personal identification.
(6)The prosecution of the offense or offenses for which the person was arrested, or the prosecution of any other offense or offenses, would be jeopardized by immediate release of the person arrested.
(7)There was a reasonable likelihood that the offense or offenses would continue or resume, or that the safety of persons or property would be imminently endangered by release of the person arrested.
(8)The person arrested demanded to be taken before a magistrate or refused to sign the notice to appear.
(9)There is reason to believe that the person would not appear at the time and place specified in the notice. The basis for this determination shall be specifically stated.
(10)(A) The person was subject to Section 1270.1.
(B)The form shall be filed with the arresting agency as soon as practicable and shall be made available to any party having custody of the arrested person, subsequent to the arresting officer, and to any person authorized by law to release the arrested person from custody before trial.
(j)(1)Once the arresting officer has prepared the written notice to appear and has delivered a copy to the person arrested, the officer shall deliver the remaining original and all copies as provided by subdivision (e).
(2)A person, including the arresting officer and any member of the officers department or agency, or any peace officer, who alters, conceals, modifies, nullifies, or destroys, or causes to be altered, concealed, modified, nullified, or destroyed, the face side of the remaining original or any copy of a citation that was retained by the officer, for any reason, before it is filed with the magistrate or with a person authorized by the magistrate to receive deposit of bail, is guilty of a misdemeanor.
(3)If, after an arrested person has signed and received a copy of a notice to appear, the arresting officer determines that, in the interest of justice, the citation or notice should be dismissed, the arresting agency may recommend, in writing, to the magistrate that the charges be dismissed. The recommendation shall cite the reasons for the recommendation and shall be filed with the court.
(4)If the magistrate makes a finding that there are grounds for dismissal, the finding shall be entered in the record and the charges dismissed.
(5)A personal relationship with any officer, public official, or law enforcement agency shall not be grounds for dismissal.
(k)(1)A person contesting a charge by claiming under penalty of perjury not to be the person issued the notice to appear may choose to submit a right thumbprint, or a left thumbprint if the person has a missing or disfigured right thumb, to the issuing court through the persons local law enforcement agency for comparison with the one placed on the notice to appear. A local law enforcement agency providing this service may charge the requester no more than the actual costs. The issuing court may refer the thumbprint submitted and the notice to appear to the prosecuting attorney for comparison of the thumbprints. When there is no thumbprint or fingerprint on the notice to appear, or when the comparison of thumbprints is inconclusive, the court shall refer the notice to appear, or a copy thereof, back to the issuing agency for further investigation, unless the court finds that referral is not in the interest of justice.
(2)Upon initiation of the investigation or comparison process by referral of the court, the court shall continue the case and the speedy trial period shall be tolled for 45 days.
(3)Upon receipt of the issuing agencys or prosecuting attorneys response, the court may make a finding of factual innocence pursuant to Section 530.6 if the court determines that there is insufficient evidence that the person cited is the person charged and shall immediately notify the Department of Motor Vehicles of its determination. If the Department of Motor Vehicles determines the citation or citations in question formed the basis of a suspension or revocation of the persons driving privilege, the department shall immediately set aside the action.
(4)If the prosecuting attorney or issuing agency fails to respond to a court referral within 45 days, the court shall make a finding of factual innocence pursuant to Section 530.6, unless the court finds that a finding of factual innocence is not in the interest of justice.
(5)The citation or notice to appear may be held by the prosecuting attorney or issuing agency for future adjudication should the arrestee arrested person who received the citation or notice to appear be found.
(l)For purposes of this section, the term arresting agency includes any other agency designated by the arresting agency to provide booking or fingerprinting services.
(m)This section shall become operative January 1, 2026.
SEC. 8.Section 975 is added to the Penal Code, to read:975.(a)The public defender or indigent defense provider shall individually and confidentially advise a person who has been cited, summoned, or arrested for a misdemeanor or felony on the importance of the right to counsel, including potential collateral consequences and the right to the assistance of counsel at no expense if the defendant is not financially able to employ counsel.
(b)The court shall ensure that the requirements of this section are met prior to accepting a waiver of counsel.
(c)The individual advisal described in subdivision (a) shall occur in advance of the defendants initial arraignment and shall not delay a court date set for the defendant, unless the defendant consents to the delay.
SEC. 9.Section 987.2 of the Penal Code is amended to read:987.2.(a)In any case in which a person, including a person who is a minor, desires but is unable to employ counsel, and in which counsel is assigned in the superior court to represent the person in a criminal trial, proceeding, or appeal, the following assigned counsel shall receive a reasonable sum for compensation and for necessary expenses, the amount of which shall be determined by the court, to be paid out of the general fund of the county:
(1)In a county or city and county in which there is no public defender.
(2)In a county of the first, second, or third class where there is no contract for criminal defense services between the county and one or more responsible attorneys.
(3)In a case in which the court finds that, because of a conflict of interest or other reasons, the public defender has properly refused.
(4)In a county of the first, second, or third class where attorneys contracted by the county are unable to represent the person accused.
(b)The sum provided for in subdivision (a) may be determined by contract between the court and one or more responsible attorneys after consultation with the board of supervisors as to the total amount of compensation and expenses to be paid, which shall be within the amount of funds allocated by the board of supervisors for the cost of assigned counsel in those cases.
(c)In counties that utilize an assigned private counsel system as either the primary method of public defense or as the method of appointing counsel in cases where the public defender is unavailable, the assigned private counsel shall perform the duties required of the public defender pursuant to subdivision (a) of Section 27706 of the Government Code. The county, the courts, or the local county bar association working with the courts are encouraged to do all of the following:
(1)Establish panels that shall be open to members of the State Bar of California.
(2)Categorize attorneys for panel placement on the basis of experience.
(3)Refer cases to panel members on a rotational basis within the level of experience of each panel, except that a judge may exclude an individual attorney from appointment to an individual case for good cause.
(4)Seek to educate those panel members through an approved training program.
(d)In a county of the first, second, or third class, the court shall first utilize the services of the public defender to provide criminal defense services for indigent defendants. In the event that the public defender is unavailable and the county and the courts have contracted with one or more responsible attorneys or with a panel of attorneys to provide criminal defense services for indigent defendants, the court shall utilize the services of the county-contracted attorneys prior to assigning any other private counsel. Nothing in this subdivision shall be construed to require the appointment of counsel in any case in which the counsel has a conflict of interest. In the interest of justice, a court may depart from that portion of the procedure requiring appointment of a county-contracted attorney after making a finding of good cause and stating the reasons therefor on the record.
(e)In a county of the first, second, or third class, the court shall first utilize the services of the public defender to provide criminal defense services for indigent defendants. In the event that the public defender is unavailable and the county has created a second public defender and contracted with one or more responsible attorneys or with a panel of attorneys to provide criminal defense services for indigent defendants, and if the quality of representation provided by the second public defender is comparable to the quality of representation provided by the public defender, the court shall next utilize the services of the second public defender and then the services of the county-contracted attorneys prior to assigning any other private counsel. Nothing in this subdivision shall be construed to require the appointment of counsel in any case in which the counsel has a conflict of interest. In the interest of justice, a court may depart from that portion of the procedure requiring appointment of the second public defender or a county-contracted attorney after making a finding of good cause and stating the reasons therefor on the record.
(f)In any case in which counsel is assigned as provided in subdivision (a), that counsel appointed by the court and any court-appointed licensed private investigator shall have the same rights and privileges to information as the public defender and the public defender investigator. It is the intent of the Legislature in enacting this subdivision to equalize any disparity that exists between the ability of private, court-appointed counsel and investigators, and public defenders and public defender investigators, to represent their clients. This subdivision is not intended to grant to private investigators access to any confidential Department of Motor Vehicles information not otherwise available to them. This subdivision is not intended to extend to private investigators the right to issue subpoenas.
(g)Notwithstanding any other provision of this section, where an indigent defendant is first charged in one county and establishes an attorney-client relationship with the public defender, defense services contract attorney, or private attorney, and where the defendant is then charged with an offense in a second or subsequent county, the court in the second or subsequent county may appoint the same counsel as was appointed in the first county to represent the defendant when all of the following conditions are met:
(1)The offense charged in the second or subsequent county would be joinable for trial with the offense charged in the first if it took place in the same county, or involves evidence which would be cross-admissible.
(2)The court finds that the interests of justice and economy will be best served by unitary representation.
(3)Counsel appointed in the first county consents to the appointment.
(h)The county may recover costs of public defender services under Chapter 6 (commencing with Section 4750) of Title 5 of Part 3 for any case subject to Section 4750.
(i)Counsel shall be appointed to represent, in a misdemeanor case, a person who desires but is unable to employ counsel, when it appears that the appointment is necessary to provide an adequate and effective defense for the defendant. counsel. Appointment of counsel in an infraction case is governed by Section 19.6.
(j)As used in this section, county of the first, second, or third class means the county of the first class, county of the second class, and county of the third class as provided by Sections 28020, 28022, 28023, and 28024 of the Government Code.
(k)This section shall become operative on July 1, 2021.SEC. 10.Section 1018 of the Penal Code is amended to read:1018.(a)Unless otherwise provided by law, every plea shall be entered or withdrawn by the defendant himself or herself in open court. No A plea of guilty of a felony for which the maximum punishment is death, or life imprisonment without the possibility of parole, shall not be received from a defendant who does not appear with counsel, nor shall that plea be received without the consent of the defendants counsel. No A plea of guilty of a felony for which the maximum punishment is not death or life imprisonment without the possibility of parole shall be accepted from any defendant who does not appear with counsel unless the court shall first fully inform him or her of the right to counsel and unless the court shall find parole, or a misdemeanor, shall not be accepted from a defendant who does not appear with counsel unless the consultation described in Section 975 has occurred and the court, in the presence of counsel and the defendant, first fully informs the defendant through an individualized colloquy and in writing of the right to counsel and the court finds that the defendant understands the right to counsel and freely waives it, and then only if the defendant has expressly stated in open court, court and in writing, to the court, that he or she does they do not wish to be represented by counsel. On application of the defendant at any time before judgment or within six months after an order granting probation is made if entry of judgment is suspended, the court may, and in case of a defendant who appeared without counsel at the time of the plea the court shall, for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted. Upon indictment or information against a corporation a plea of guilty may be put in by counsel. This section shall be liberally construed to effect these objects and to promote justice.
(b)There shall be a presumption that a plea taken without counsel is not knowing, intelligent, and voluntary in violation of the Fifth Amendment to the United States Constitution. This presumption shall only be overcome if the defendant has waived counsel pursuant to the requirements of subdivision (a) and the consultation pursuant to Section 975 has occurred. The court retains jurisdiction to hear a motion to vacate a conviction pursuant to this subdivision at any time after the conviction.
(c)A prosecutor or a judge shall not communicate a plea offer, disposition, or resolution on a pending charge or charge where prosecution is being considered to a defendant unless counsel is present, or unless the consultation pursuant to Section 975 has occurred and the defendant has waived counsel pursuant to the requirements of subdivision (a). In a case in which the defendant has waived counsel pursuant to the requirements of subdivision (a), only a prosecutor or a judge shall communicate a plea offer to a defendant.
SEC. 11.If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.
CORRECTIONS: TextPages 4 and 5.(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 their arrest, excluding Sundays and holidays.
(2)When If 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 defendants arrest occurs on a Wednesday after the conclusion of the days 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 an attorney at law entitled to practice in the courts of record of California, or an attorneys representative, may, at the request of the prisoner or any a relative of the prisoner, visit the prisoner. Any An 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 An 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 a court of competent jurisdiction.
|
Date
|
Status
|
|---|---|
| Feb 1, 2024 | From committee: Filed with the Chief Clerk pursuant to Joint Rule 56. |
| Jan 31, 2024 | Died pursuant to Art. IV, Sec. 10(c) of the Constitution. |
| May 18, 2023 | In committee: Held under submission. |
| May 10, 2023 | In committee: Set, first hearing. Referred to APPR. suspense file. |
| Apr 27, 2023 | Re-referred to Com. on APPR. |
| Apr 26, 2023 | Read second time and amended. |
| Apr 25, 2023 | From committee: Amend, and do pass as amended and re-refer to Com. on APPR. (Ayes 7. Noes 0.) (April 25). |
| Apr 18, 2023 | Measure version as amended on April 17 corrected. |
| Apr 18, 2023 | Re-referred to Com. on PUB. S. |
| Apr 17, 2023 | From committee chair, with author's amendments: Amend, and re-refer to Com. on PUB. S. Read second time and amended. |
| Mar 16, 2023 | In committee: Hearing postponed by committee. |
| Mar 2, 2023 | Referred to Com. on PUB. S. |
| Feb 17, 2023 | From printer. May be heard in committee March 19. |
| Feb 16, 2023 | Read first time. To print. |
|
Date
|
Description
|
Location
|
Votes
|
|
|---|---|---|---|---|
| Apr 25, 2023 | Do pass as amended and be re-referred to the Committee on [Appropriations] | Assembly Standing Committee on Public Safety |
Passed |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
|
Organization
|
Position
|
Date
|
|---|---|---|
| Aclu California Action | * Support | Apr 25, 2023 |
| California Attorneys For Criminal Justice | * Support | Apr 25, 2023 |
| California Public Defender's Office | * Support | Apr 25, 2023 |
| California Public Defenders Association | ** Support | |
| Californians for Safety and Justice | * Support | Apr 25, 2023 |
| Californians United for a Responsible Budget | ** Support | |
| Communities United for Restorative Youth Justice | ** Support | |
| Ella Baker Center For Human Rights | * Support | Apr 25, 2023 |
| Fair Chance Project | ** Support | |
| Initiate Justice | ** Support | |
| Interfaith Movement for Human Integrity | ** Support | |
| NAACP Bakersfield Branch | ** Support | |
| Riverside County Sheriff's Office | ** Against | |
| Safe Return Project | ** Support | |
| San Francisco Public Defender | * Support | Apr 25, 2023 |
| Smart Justice California | * Support | Apr 25, 2023 |
| Starting Over, Inc. | ** Support | |
| Young Women's Freedom Center | ** Support |
Date of Hearing: May 10, 2023
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Chris Holden, Chair
ABPCA Bill Id:AB 1209
Author:(Jones-Sawyer) – As Amended Ver:April 26, 2023
Policy Committee: | Public Safety | Vote: | 7 - 0 |
|
| ||
|
|
Urgency: No State Mandated Local Program: Yes Reimbursable: Yes
SUMMARY:
This bill requires a public defender or indigent defense attorney to start representation of someone who has been arrested shortly after they are booked, requires a private advisal of consequences and rights be given by counsel to a defendant before a plea can be taken, and allows a court to vacate pleas taken without advisal of counsel at any time after the plea is entered.
Specifically, this bill:
- Requires public defenders and indigent defense attorneys to commence their representation of an arrestee shortly after the booking process begins so that counsel can interview the arrestee, advise them of their rights, and make a meaningful argument during a bail hearing.
- Specifies that counsel must commence representation as soon as feasible after being notified that an arrestee has been booked, within 24 hours or sufficiently before the arraignment.
- States that all persons who are arrested and booked are presumed financially unable to employ counsel for indigent defense purposes.
- States that, immediately upon booking and in no event later than 2 hours after the arrest, a booking officer must notify the local public defender or indigent defense provider that an arrestee is in custody.
- Requires a defendant, before arraignment, to be individually and confidentially advised by a public defender or indigent defense provider of the importance of the right to counsel, potential collateral consequences of a conviction, and the right to assistance of counsel if the defendant is indigent. Requires a court to ensure the defendant receives this advisal.
- Prevents a court, in a felony case that is not punishable by death or life imprisonment, or in a misdemeanor case, from accepting a plea from a defendant without counsel unless the defendant waives their right to counsel in writing and verbally after receiving a confidential advisal on their rights, as specified.
- Authorizes a court to vacate a plea taken without counsel, as described above, at any time after a conviction.
- Adds additional procedural requirements that must be observed for a summons, at arresting or booking, for a misdemeanor citation, and in other circumstances.
FISCAL EFFECT:
- Costs (Trial Court Trust Fund, General Fund) to the courts of an unknown but potentially significant amount. This bill requires a court to ensure that a defendant has received certain information before waiving their right to counsel, allows the court to hear a motion to withdraw a plea at any time, and grants the court authority to vacate a plea taken without counsel. Costs for some of these provisions will depend on the discretion of individual judges, but in the aggregate the bill will result in increased workload to the courts. Although courts are not funded on the basis of workload, increased pressure on the Trial Court Trust Fund may create a need for increased funding for courts from the General Fund.
- Potentially reimbursable costs (local funds, General Fund) to local detention facilities and county public defender offices. This bill adds duties for arresting and booking officers, and requires a public defender to begin representing an indigent defendant “as soon as feasible” after the defendant’s arrest, within 24 hours after booking or early enough to provide meaningful representation before arraignment. To the extent the bill’s requirements lead to an increase in workload for public defenders and local detention facilities, those costs may be reimbursable. General Fund costs will depend on whether the duties imposed by this bill constitute a reimbursable state mandate, as determined by the Commission on State Mandates.
COMMENTS:
- Author’s Statement. According to the author:
The right to effective legal counsel is a fundamental constitutional right endowed by our U.S. and California Constitutions. In spite of this right, defendants who cannot afford legal counsel are appearing in court without counsel, and often entering a plea without ever having spoken to an attorney on the facts of their case. As recommended by the Committee on the Revision of the Penal Code, AB 1209 ensures that people who cannot afford private attorneys are not denied their right to effective assistance of counsel at their initial court appearance. As such, this bill will improve fairness in the criminal legal system, reduce racial disparities, and enhance community safety, consistent with data showing effective counsel yields enhanced public safety outcomes.
- Background. The Committee on Revision of the Penal Code (CRPC) was established by Governor Newsom in 2020 to study the California Penal Code and recommend statutory reforms to simplify and rationalize the law and procedures, establish alternatives to incarceration that will aid in rehabilitation, and improve the parole and probation system. Among other provisions, this bill codifies recommendations regarding early access to legal counsel made in CPRC’s 2022 Annual Report. Existing law does not require a defendant to speak to an attorney or be provided information about obtaining legal counsel until their arraignment. Generally, at arraignment, the court informs the defendant of their charges, and tells them that if they are indigent a public defender may be appointed to represent them – but an indigent defendant may not actually obtain counsel until after the early stages of their case. According to CPRC:
Data show that effective legal representation at an arrested person’s first court appearance reduces recidivism and saves money. Under current California law, only people who can pay for their own attorney are guaranteed legal representation prior to a court appearance. California does not currently provide appointment of public defenders for indigent people facing criminal charges until after someone’s first appearance in court.
A few public defender offices in the state have implemented early representation programs that allow attorneys to begin assisting people earlier in the legal process. For example, Santa Clara County established a program that provides earlier access to legal counsel, allows information sharing between relevant county agencies, and has been supported by the county’s district attorneys, who point out that assigning counsel earlier in the process leads to more favorable public safety outcomes because people can be released from custody sooner and begin accessing services.
This bill also provides additional provisions to ensure that a defendant is adequately informed of their right to counsel and may later move to withdraw their plea if they were not represented by counsel when they entered the plea.
- Related Legislation. AB 61 (Bryan) requires that someone who has been arrested be arraigned within 48 hours of their arrest. AB 61 is currently pending in this committee.
Analysis Prepared by: Annika Carlson / APPR. / (916) 319-2081
Date of Hearing: April 25, 2023
Counsel: Mureed Rasool
ASSEMBLY COMMITTEE ON
Reginald Byron Jones-Sawyer, Sr., Chair
ABPCA Bill Id:
Author:() – As Ver:
As Proposed to be Amended in Committee
SUMMARY:
Requires public defenders and indigent defense attorneys to commence representation of an arrestee shortly after the booking process, requires a private advisal of consequences and rights be given by counsel to a defendant before a plea can be taken, and allows courts to vacate pleas taken without advisal of counsel at any time after the plea is entered. Specifically, this bill:
- Requires public defenders and indigent defense attorneys to commence their representation of an arrestee shortly after the booking process begins so that counsel can interview the arrestee, advise them of their rights, and make a meaningful argument during a bail hearing.
- Specifies that counsel must commence representation as soon as feasible after being notified that an arrestee has been booked, but in no event after 24 hours or sufficiently before the arraignment. Defines a sufficient time before arraignment as time that allows counsel to interview the arrestee, make meaningful bail arguments, properly advise the arrestee of their rights, and take any other necessary steps to protect the arrestee’s rights.
- States that all persons who are arrested and booked are presumed financially unable to employ counsel for indigent defense purposes.
- Requires a summons in a felony case to include information notifying the defendant of their right to free counsel and the contact information for the local public defender or indigent defense provider.
- Provides that an arresting or booking officer must verbally inform an arrestee of their right to call, at any hour, an attorney, bail bondsman, or other person.
- Requires a booking officer to inquire whether an arrestee is responsible for providing care to another household member and to notify the arrestee that they may make two additional phone calls for the purpose of arranging for the household member’s care.
- States that, immediately upon booking and in no event later than 2 hours after the arrest, a booking officer must notify the local public defender or indigent defense provider that an arrestee is in custody.
- States that an arresting officer’s citation in a misdemeanor case must include, among other things, information notifying an arrestee of their right to free counsel and the contact information for the local public defender or indigent defense provider.
- Requires a defendant, before arraignment, to be individually and confidentially advised by a public defender or indigent defense provider of the importance of the right to counsel, potential collateral consequences of a conviction, and the right to assistance of counsel if the defendant is indigent.
- States that a court must ensure the defendant receives an individual and confidential advisal by a public defender or indigent defense provider prior to accepting a waiver of counsel.
- Provides that the individual and confidential advisal by defense counsel must occur in advance of a defendant’s arraignment and must not delay a court date set for the defendant unless the defendant consents to the delay.
- States that indigent defense providers in counties with a private counsel system as their primary method of public defense must perform duties required of the public defender, as specified.
- Prevents a court, in a felony case that is not punishable by death or life imprisonment, or in a misdemeanor case, from accepting a plea from a defendant without counsel unless a defendant has been given a confidential advisal by counsel, been individually advised of their rights by the court in writing and verbally, and the defendant waives their right to counsel in writing and verbally.
- Creates a presumption that a plea taken without counsel is not knowing, voluntary, and intelligent in violation of the Fifth Amendment.
- Authorizes a court to vacate a plea taken without counsel, as described above, at any time after a conviction.
- Prevents a prosecutor or judge from offering a plea offer, disposition, or resolution on a charge unless defendant’s counsel is present or if the defendant has been given an advisal, as described above, by counsel.
EXISTING LAW:
- States that a defendant in a criminal cause has the right to, among other things, the assistance of counsel for the defendant’s defense and to be personally present with counsel. (Cal. Const. Art. I, § 15.)
- States that an arraignment must be generally made by the court and consists of reading the accusatory pleading to the defendant, delivering them a copy, and inquiring as to whether the defendant pleads guilty or not guilty. (Pen. Code, § 988.)
- States that when a defendant first appears for arraignment the magistrate must immediately inform them of the charges and of their right to counsel. (Pen. Code, § 858, subd. (a).)
- States that a defendant charged with the commission of a felony by written complaint shall, without unnecessary delay, be taken before a magistrate of the court in which the complaint is on file and that the magistrate must deliver a copy of the complaint, inform of the right to assistance of counsel, and inquire into whether the defendant desires counsel. (Pen. Code, § 859.)
- States that, in a noncapital case, a defendant appearing at arraignment without counsel must be informed by the court they have a right to counsel and must be asked if they desire counsel. If the defendant is unable to employ counsel and desires counsel, the court must appoint them counsel. (Pen. Code, § 987, subd. (a).)
- Provides that, in a capital case, a defendant appearing at arraignment without counsel must be informed that they will be represented by counsel at all stages of the proceedings, at public expense if they are unable to pay. (Pen. Code, § 987, subd. (b).)
- Authorizes defendants, for misdemeanor offenses, to enter a plea through counsel, except for an offense of driving under the influence. (Pen. Code, § 977, subd. (a)(3).)
- States that, for felonies punishable by death or life imprisonment without parole, a court may not accept a plea of guilty from a defendant appearing without counsel, nor may a court accept a guilty plea without the consent of defendant’s counsel. (Pen. Code, § 1018.)
- States that, for felonies not punishable by death or life imprisonment without parole:
- A court may not accept a plea of guilty from a defendant who appears without counsel unless the court first fully informs them of their right to counsel, makes a finding that the defendant understands the right to counsel and freely waives it, and if the defendant expressly states in open court that they do not wish to be represented by counsel.
- A court may, upon a defendant’s motion to withdraw and good cause shown, permit a guilty plea to be withdrawn and substituted with a plea of not guilty at any time before judgment, or within six months after an order granting probation when the entry of judgment is suspended. (Pen. Code, § 1018.)
- Authorizes a defendant no longer in criminal custody to make a motion to vacate a conviction or sentence if they were not meaningfully informed of immigration consequences, discovered new evidence of actual innocence that should result in the motion being granted in the interests of justice, or if their conviction or sentence was improperly obtained based on their race or ethnicity. (Pen. Code, § 1473.7, subd. (a).)
- Provides that a motion to vacate a conviction or sentence based on immigration consequences may be untimely if it is not filed with reasonable diligence after discovering the existence of pending immigration proceedings. (Pen. Code, § 1473.7, subd. (b)(2).)
- States that a motion to vacate a conviction or sentence based on newly discovered evidence of actual innocence or based on race or ethnicity may be untimely if it is not filed without undue delay from the date the defendant discovered, or reasonably should have discovered, the evidence providing the basis for relief. (Pen. Code, § 1473.7, subd. (c).)
- Establishes the office of the Public Defender and outlines the duties and responsibilities of public defenders. (Gov. Code, §§ 27700 et seq.)
- Outlines standard procedures for indigent defense providers in counties without public defenders, or where indigent defense providers are the primary method of public defense. (Pen. Code, § 987.2.)
- Requires a magistrate to issue an arrest warrant upon receiving a felony complaint if, and only if, they are satisfied there is reasonable ground to believe the defendant committed the offense. (Pen. Code, § 813, subd. (a).)
- States that a magistrate may issue a summons in a felony case in lieu of an arrest warrant and that the summons must contain the defendant’s name, the offense charged, the time and place for the defendant to appear, and a notification outlining the booking process, among other things. (Pen. Code, § 813, subd. (b).)
- Provides, among other things, that an attorney at law may visit an arrestee, upon the request of an arrestee or arrestee’s family. (Pen. Code, § 825.)
- States, among other things, that a booking facility shall contain a sign informing an arrestee of numerous matters, such as their right to free telephone calls, their right to an attorney, and other information. (Pen. Code, § 851.5.)
- Provides that a citation for a misdemeanor offense must include the offense charged, the name and address of the arrestee, and the date and time the arrestee must appear in court. (Pen. Code, 853.6.)
FEDERAL LAW: States that in all criminal prosecutions, the accused has the right to, among other things, assistance of counsel for their defense. (U.S. Const. Amend. VI.)
FISCAL EFFECT:
Unknown
COMMENTS:
- Author's Statement: According to the author, “The right to effective legal counsel is a fundamental constitutional right endowed by our U.S. and California Constitutions. In spite of this right, defendants who cannot afford legal counsel are appearing in court without counsel, and often entering a plea without ever having spoken to an attorney on the facts of their case. As recommended by the Committee on the Revision of the Penal Code, AB 1209 ensures that people who cannot afford private attorneys are not denied their right to effective assistance of counsel at their initial court appearance. As such, this bill will improve fairness in the criminal legal system, reduce racial disparities, and enhance community safety, consistent with data showing effective counsel yields enhanced public safety outcomes.”
- Pretrial Detention Effects: According to some researchers who examined pretrial detentions and recidivism rates, there are three major takeaways about the effect of pretrial detentions:
“First, being held in detention pretrial beyond one or two days increases a person’s chances of being arrested and charged again pretrial (for those eventually released before case disposition) and post-disposition. Second, all things considered, the longer one’s stint in detention, the greater the odds of new penal contact. And third, the effects of pretrial detention on future penal system involvement are especially pronounced for low-risk defendants, individuals who likely would not have had further criminal legal system involvement had they not been held in detention. Thus, a growing body of research indicates that pretrial detention is creating ‘recidivators’ out of individuals who might not otherwise (re)offend.”
(Sandra Smith PH.D. Pretrial Detention, Pretrial Release, & Public Safety. (Jul. 2022) <https://www.hks.harvard.edu/publications/pretrial-detention-pretrial-release-public-safety> [as of Mar. 2, 2023] at p. 6, footnotes omitted.)
The California Committee on Revision of the Penal Code (CRPC) has recently stated that providing legal assistance early in the criminal legal process can result in improved public safety benefits. (CRPC. Annual Report and Recommendations. (hereafter CRPC Recommendations) (Dec. 2022) <http://www.clrc.ca.gov/CRPC.html> [as of Apr. 19, 2023] at p. 44.) They pointed out that, in one study, arrestees who received a public defender prior to their bail hearing were 64% less likely to have a bail violation and 26% less likely to be arrested in the future. (Id. at 45.) CRPC also pointed to studies showing a significant increase in pretrial release rates, which meant that counties saved money they would have otherwise spent on incarcerating arrestees who deserved to be released. (Ibid.) One study from Cook County, Illinois estimated that providing counsel within 24 hours of arrest would save $12 million to $44 million annually. (Ibid.)
Currently, in California, defendants are not provided an adequate opportunity to receive advice from a public defender until after the arraignment. (Pen. Code, § 858, subd. (a).) It is at arraignment that a court informs a defendant of their charges, and then informs them that if they are indigent they can be provided a public defender or other indigent defense provider. (Ibid.) As the public defender would generally not be involved in the case at that point, the public defender is given insufficient time to gather background information on the case and the defendant to develop a meaningful bail argument or be able to properly decide what the next immediate step in the case should be. (CRPC Recommendations at 41.) And that is assuming the defendant even decides to utilize their right to counsel. One study of Kern County over a period of 7 years found that 30% of misdemeanor defendants pled guilty at arraignment without having counsel. (Id. at 44.)
This bill would require, among other things, a booking officer to call a public defender or indigent defense provider upon receiving an arrestee, as specified, and requires the public defender or indigent defense provider to begin representing the arrestee as soon as possible, and in no event later than 24 hours after the booking. As such, this bill seeks to ensure an arrestee has a defense attorney as soon possible so that they can properly prepare an argument for release at their bail hearing, and can have a meaningful conversation with their defense attorney before their arraignment.
- Advisal of Rights and Plea Withdrawals: Penal Code Section 1018, in part, allows a court to permit a defendant to withdraw their guilty plea upon a showing of good cause that they, “were operating under mistake, ignorance, or any other factor overcoming the exercise of his or her free judgment, including inadvertence.” (People v. Breslin (2012) 205 Cal.App.4th 1409, 1416; People v. Huricks (1995) 32 Cal.App.4th 1201, 1207-08.) If the defendant was without counsel at the time of the plea, then upon a showing of good cause, the court must allow them to withdraw their guilty plea. (People v. Cruz (1974) 12 Cal.3d. 562, 566.) A defendant can file their motion any time before sentencing, or within 6 months after receiving a grant of probation. (Ibid.) A defendant’s successful motion to withdraw their plea results in the case being restored exactly to where it was right before the plea, meaning that the defendant would have to renegotiate another plea or take the matter to trial. (People v. Superior Court (Garcia) (1982) 131 Cal.App.3d 256, 258.)
There are many different circumstances by which a defendant’s free judgment can be overcome, including: favorable evidence being withheld, a failure to outline the direct consequences of a plea, and a failure to advise the defendant of their constitutional rights. (People v. Ramirez (2006) 141 Cal.App.4th 1501, 1506; People v. Howard (1992) 1 Cal.4th 1132, 1175; People v. Walker (1991) 54 Cal.3d 1013, 1023.) Under current law, a defendant may succeed on a motion to withdraw their plea even if they were represented by counsel at the time of the plea, but received incorrect legal advice. (People v. Archer (hereafter Archer) (2014) 230 Cal.App.4th 693, 702.)
This bill, in part, establishes a presumption that a plea taken without counsel means the plea was not knowing, voluntary, or intelligent, in other words, the absence of counsel meant the defendant’s free judgment was not able to be exercised when entering into the plea. If, as in Archer, a defendant’s plea based on mistaken legal advice is good cause to withdraw a plea, then it makes sense to presume that a plea with no legal representation is likely to constitute good cause for withdrawal of a plea. (Archer, supra, 230 Cal.App.4th at 702.)
This bill also gives the court jurisdiction to hear such a motion at any time after conviction. Currently, the maximum time a defendant is allowed to bring a motion to with draw a plea is six months after an order of probation. (Pen. Code, § 1018.) At times, a defendant may not be made aware until much later of the fact that they were operating under mistake or ignorance when entering their plea. Current law does allow for an extended time period, but only for certain scenarios. (Pen. Code, § 1473.7.) For example, a person who is no longer in custody may make a motion to vacate their conviction or sentence if they were not aware of certain immigration consequences, if they discovered new evidence in their case exonerating them, or if their conviction or sentence was obtained based on a prejudice due to their race or ethnicity. (Pen. Code, § 1473.7, subd. (a).) A defendant can move to vacate their conviction or sentence in these matters any time afterwards, however, their motion can be deemed untimely if they fail to file it without undue delay after being apprised of such information, or if they should have known earlier by exercising due diligence. (Pen. Code, § 1473.7, subd. (b) & (c).)
- Requiring Advisement of Counsel: One part of this bill would require a defendant to speak with a defense attorney before entering into a plea. It does raise the question of respecting an individual’s Sixth Amendment right to proceed through the judicial system. (Faretta v. Cal. (1975) 422 U.S. 806.) However, under current law, a defendant facing the death penalty or life imprisonment without possibility of parole (LWOP) cannot plead without consent of counsel. (Pen. Code, § 1018.) This means that counsel must be appointed and must agree to a defendant’s plea in a death penalty or LWOP case. The California Supreme Court noted that there indeed was an infringement on the right of self-representation as a result of forcing a defendant to have counsel, but that the infringement was minor in comparison to the danger of the state erroneously subjecting a defendant to death. (People v. Frederickson (2020) 8 Cal.5th 963, 991-92 [quoting People v. Chadd (1981) 28 Cal.3d 739].) However, this bill only requires a defendant speak to counsel before entering a plea, not to obtain counsel’s consent before a plea. As such, the infringement on an individual’s right to self-representation is considerably lower when considering the balance between an erroneous conviction and the right to self-representation.
- Arguments in Support:
- According to the bill’s sponsor, ACLU California Action, “The Sixth Amendment to the Constitution guarantees the right of the accused to the assistance of counsel. In Gideon v. Wainwright, the U.S. Supreme Court reinforced this right, specifying that all people accused of crimes, regardless of wealth or education, are entitled to qualified legal counsel to assist in their defense. (Gideon v. Wainwright, (1963) 372 U.S. 335.) Since the Court’s landmark decision in Gideon, the “assistance of counsel [has been] one of the safeguards of the Sixth Amendment deemed necessary to insure fundamental human rights of life and liberty. (Id. at 342.)
“However, despite the guarantees of the Sixth Amendment, many Californians are being denied their right to counsel. In counties across the state, thousands of residents enter guilty pleas each year without speaking to an attorney before doing so. Entering uncounseled pleas, even for misdemeanors, can have grave consequences. These consequences range from loss of public housing or custody rights, eligibility for professional licenses, and reduced employment or earning capacity, to incarceration. For noncitizens, the consequences of an uncounseled plea may include deportation, inability to adjust their immigration status, and permanent family separation. Uncounseled guilty pleas also undermine the criminal legal process, increasing the likelihood of erroneous convictions and further eroding defendants’ and the public’s trust in the criminal adjudication process.
“In addition to the problems stemming from uncounseled guilty pleas, other decisions made without the effective assistance of counsel at a defendant’s initial appearance can have equally, if not more, devastating consequences. Without a meaningful opportunity to consult with an attorney prior to arraignment, indigent pretrial defendants are less likely to obtain pretrial release, instead remaining in jail for the pendency of their case. Pretrial detention, in turn, increases the likelihood of conviction and the length of sentence – not to mention the further overcrowding of our already dangerous jails.
“Access to attorneys is inconsistent across the state and in some counties people unable to afford private representation wait days in jail before seeing an attorney after their arrest. Unsurprisingly, these and other consequences of lack of access to counsel at initial appearance fall disproportionately on BIPOC community members, people with disabilities, and noncitizens.
“When compared with other states, California’s laws on access to the effective assistance of counsel at initial appearance are clearly behind. In a recent report by the Deason Criminal Justice Center, California received an ‘F’, failing on 4 out of 5 of the metrics used to evaluate a state’s initial appearance laws. For these reasons, the Legislative Analyst’s Office, the Committee on Revision of the Penal Code, and the Sixth Amendment Center have all recommended that the state address the problem of lack of access to counsel prior to arraignment.
“AB 1209 addresses California’s access to counsel practices by requiring that indigent legal representation begin as soon as feasible after a person is arrested, but in any case within 24 hours after booking or sufficiently before the arraignment to allow for the provision of meaningful representation. Further, AB 1209 will ensure that before being allowed to waive their right to counsel or plead guilty to a crime, every person charged with a crime must receive an individual and confidential advisal from an attorney.” (footnotes omitted) - According to the California Public Defenders Association, “This is an ambitious and much needed bill that defenders wholly support. No individual should be in a position where they enter a plea that could have far reaching consequences without first having access to counsel to advise them of the evidence against them, their possible defenses, and the consequences of entering a plea. Early representation also ensures that evidence of innocence including video surveillance, DNA, and other types of physical evidence, as well as evidence of an alibi is preserved and not lost or destroyed. It also dramatically improves the chance that an arrested individual will be released from custody and be able to maintain their job and support their family while their case is being litigated. Finally, early representation improves outcomes and reduces recidivism by improving the chances that an individual remains out of custody during the pendency of their case.
“It is for all these reasons indigent defenders have aspired to provide representation at the earliest possible time and sufficiently before the first appearance and to ensure that all individuals arrested have access to their services. However, in the vast majority of California counties, this aspiration has not been realized because there is no funding. In the counties where some type of early representation has been attempted, there have been a number of obstacles that have stood in the way of the program’s success including a failure to provide meaningful access to clients in the jails and sub-stations, and a failure to provide necessary and basic case information required to effectively advocate on behalf of an individual at their first appearance. The failure to provide basic case information, including the names of individuals arrested with the client has also led to the unnecessary declaration of conflicts of interest on the part of defenders.
“For this bill to be effectuated, defenders would need increased resources including sufficient funding and statutory authority to ensure access to clients and necessary client and case-related information. With funding and access, AB 1209 will help prevent wrongful convictions, keep people employed and productive, lower recidivism and ensure that individuals do not plead guilty without fully understanding the consequences and implications of their plea. AB 1209 will also help prevent non-citizens, even in minor cases, from taking plea bargains that can result in major immigration consequences for them and their families.”
- According to the bill’s sponsor, ACLU California Action, “The Sixth Amendment to the Constitution guarantees the right of the accused to the assistance of counsel. In Gideon v. Wainwright, the U.S. Supreme Court reinforced this right, specifying that all people accused of crimes, regardless of wealth or education, are entitled to qualified legal counsel to assist in their defense. (Gideon v. Wainwright, (1963) 372 U.S. 335.) Since the Court’s landmark decision in Gideon, the “assistance of counsel [has been] one of the safeguards of the Sixth Amendment deemed necessary to insure fundamental human rights of life and liberty. (Id. at 342.)
- Argument in Opposition: According to the Riverside County Sheriff’s Office, “AB 1209 would propose an amendment to §825(b) PC. This proposed amendment would allow an attorney, or an attorney's representative, at the request of the incarcerated person, or a relative of the incarcerated person, to visit them in one of our correctional facilities. The terminology used in AB 1209 is vague at best, and does not define what an ‘attorney's representative’ is? The lack of clarity in this amendment leaves a lotto interpretation. Potentially, AB 1209 could give the general public private, confidential access to the incarcerated population that they typically would not be afforded.
“We do not take issue with attorneys holding private, confidential meetings with their clients within our facilities. We respect the right of confidentiality and intend to maintain the integrity of the criminal justice system. However, allowing their representatives into our facilities raises serious logistical and security concerns. The practice of law is highly regulated through Rules of Professional Conduct (Rule) established by the State Bar of California, the Business and Professions Code, and the Supreme Court of California. In fact, even prior to an attorney being admitted to the Bar, they must pass an extensive background check. Attorneys are bound by these rules and face harsh disciplinary action if they violate these rules, to include being disbarred. In contrast, their staff of representatives are not held to these same standards and they are not subject to a background check.
“For example, attorneys are prohibited from engaging in sexual relations with their clients (Rule 1.8.10), attorneys are generally prohibited from receiving gifts from their clients (Rule 1.8.3), an attorney shall not counsel a client to engage, or assist a client in conduct that the attorney knows is criminal, fraudulent, or a violation of any law (Rule 1.2.1), an attorney shall not enter into a business, attorney shall not engage in conduct involving dishonesty fraud, or deceit. (Rule 8.4). None of these rules apply to an attorney’s representative. Affording an attorney’s designee the same confidentiality and privacy could potentially lead to more contraband being smuggled into our facilities. This statement is not mere speculation, it is factually based.
“In the Riverside County Jail System, we have documented incidents, in which, items considered contraband were attempted to be smuggled in by people who represented themselves as paralegal or legal runners. The following is a brief synopsis of each of these incidents:
- On June 18, 2020, an internal memorandum was authored, documenting the discovery that two court-appointed paralegals were abusing their status to relay messages to and from various inmates. In this case, the involved inmates were granted Pro-Per status by the courts and utilized their legal runners to circumvent jails security and pass messages to other inmates housed at other Riverside County jail facilities. The messages involved what inmates had obtained leadership positions in a specific security threat group.
- On September 29, 2020, a criminal report was filed under RSO file #SC20740002 / SWF2101371, charging the defendants Sarah Vierra and Ryan Durham, with PC § 182 and PC § 4573, conspiracy to smuggle a controlled substances into a jail. During this investigation, several jail calls were made regarding the introduction of narcotics, by means of legal mail. On September 30, 2020, Ms. Vierra attempted to drop off legal supplies and paperwork to Mr. Durham. A scan of the paperwork revealed abnormalities in the paper. There appeared to be water stains on various sheets of paper. Those sheets of paper eventually tested positive for methamphetamine. On August 30, 2022, Ms. Vierra pled guilty on this case and was sentenced to 24-months formal probation.
- Recently, the RSO Corrections Intelligence Bureau (CIB) was provided sensitive information by an incarcerated person regarding another inmate’s attempt to introduce contraband into the John Benoit Detention Center, located in Indio, California. Information gathered stated the incarcerated person was conspiring with associates to introduce legal documents laced with illicit drugs into the facility via a paralegal. This investigation is ongoing.
“Due to the diligence of our custody staff, these attempts to introduce narcotics into the Riverside County Jail System were thwarted. It is our opinion that if AB 1209 is passed, these attempts would rise in frequency because it would allow non-lawyers the same privilege as lawyers to hold private, confidential meetings with an incarcerated person. It could also lead to unsanctioned conjugal or other sexual visits within our facilities because the phrase ‘attorney’s representative’ is not clearly defined and could be interpreted to include anyone outside of the attorney’s office staff…”
- Related Legislation: AB 61 (Bryan), would requires that a person must be taken before a court without unnecessary delay, and, at the most, within 48 hours of their arrest. AB 61 is currently pending hearing in the Assembly Appropriations Committee.
- Prior Legislation:
- AB 2542 (Kalra), Chapter 317, Statutes of 2020, authorized post-conviction relief for convictions or sentences obtained based on prejudice against race or ethnicity.
- AB 2867 (Gonzalez Fletcher), Chapter 825, Statutes of 2018, made changes to the post-conviction relief for convictions or sentences obtained without proper advisal of immigration consequences by, among other things, further outlining the timeliness requirements and further defining what types of immigration consequences a defendant must face.
- AB 813 (Gonzalez), Chapter 739, Statutes of 2016, authorized post-conviction relief for convictions or sentences obtained without proper advisal of immigration consequences.
- AB 2542 (Kalra), Chapter 317, Statutes of 2020, authorized post-conviction relief for convictions or sentences obtained based on prejudice against race or ethnicity.
REGISTERED SUPPORT / OPPOSITION:
Support
ACLU California Action (Sponsor)
California Public Defenders Association (CPDA)
Californians United for A Responsible Budget
Communities United for Restorative Youth Justice (CURYJ)
Fair Chance Project
Initiate Justice
Interfaith Movement for Human Integrity
NAACP Bakersfield Branch
Safe Return Project
Smart Justice California
Starting Over, INC.
Young Women's Freedom Center
Opposition
Riverside County Sheriff's Office
Analysis Prepared by:
Discussed in Hearing
9MIN
Assembly Standing Committee on Public Safety
Bill Author
Bill Co-Author(s):