The opinion
TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
JOHN K. VAN DE KAMP
Attorney General
_________________________
:
OPINION : No. 85-802
:
of : JUNE 23, 1986
:
JOHN K. VAN DE KAMP :
Attorney General :
:
JACK R. WINKLER :
Deputy Attorney General :
:
________________________________________________________________________
THE HONORABLE ARLO SMITH, DISTRICT ATTORNEY FOR THE
CITY AND COUNTY OF SAN FRANCISCO, has requested an opinion on the
following question:
May a person arrested for a misdemeanor pursuant to a warrant for his or
her arrest be released on a promise to appear in court as provided in Penal Code section
853.6?
CONCLUSION
A person arrested for a misdemeanor pursuant to a warrant for his or her
arrest may not be released on a promise to appear in court as provided in Penal Code
section 853.6.
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ANALYSIS
The procedures to be followed upon an arrest for traffic offenses are set
forth in the Vehicle Code. (§ 40300 et seq.) The procedures to be followed upon an
arrest for other offenses are set forth in the Penal Code. A review of the longstanding
procedures on warrants, arrests and bail will provide the background into which the more
recent citation procedures of section 853.6 have been set.
Section 14271 prescribes the procedure for issuing a warrant for the arrest of
a person for a misdemeanor offense triable in a municipal or justice court. Subdivision
(a) provides that "[w]hen a complaint is presented to a judge of an inferior court of the
commission of a public offense appearing to be triable in his court, he must, if satisfied
therefrom that the offense complained of has been committed and that there is reasonable
grounds to believe that the defendant has committed it, issue a warrant, for the arrest of
the defendant." Subdivision (b) provides the form such warrant may take. It is addressed
to "any peace officer in this state" and after reciting that a complaint under oath was
presented to the judge stating that a named offense was committed and accusing the
named defendant thereof, the warrant commands the arrest of the named defendant and to
"bring him forthwith before the _________ court of (stating full title of court) at (naming
place)." The warrant is issued over the signature of the judge and the seal of the court.
Section 815a provides:
"At the time of issuing a warrant of arrest, the magistrate shall fix
the amount of bail which in his judgment in accordance with the provisions
of section 1275 will be reasonable and sufficient for the appearance of the
defendant following his arrest, if the offense is bailable, and said magistrate
shall endorse upon said warrant a statement signed by him, with the name
of his office, dated at the county, city or town where it is made to the
following effect 'The defendant is to be admitted to bail in the sum of
_________ dollars' (stating the amount)."
Section 848 provides:
"DUTY OF OFFICER ARRESTING WITH WARRANT. An
officer making an arrest, in obedience to a warrant, must proceed with the
person arrested as commanded by the warrant, or as provided by law."
1
Section references are to the Penal Code unless otherwise indicated.
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A peace officer's statutory authority to make an arrest for a misdemeanor is
set forth in section 836 as follows:
"A peace officer may make an arrest in obedience to a warrant, or
may, . . . , without a warrant, arrest a person:
"1. Whenever he has reasonable cause to believe that the person to
be arrested has committed a public offense in his presence.
". . . . . . . . . . . . . . . . . . . . . ."
Section 849(a) provides:
"When an arrest is made without a warrant by a peace officer or
private person, the person arrested, if not otherwise released, shall, without
unnecessary delay, be taken before the nearest or most accessible
magistrate in the county in which the offense is triable, and a complaint
stating the charge against the arrested person shall be laid before such
magistrate."
These traditional procedures are divided categorically into arrests with a
warrant and arrests without a warrant. In warrant arrests a judge has determined probable
cause for the arrest and fixed bail for the defendant before the arrest is made. On arrests
without a warrant the officer is required to take the defendant before the judge and file a
complaint so the judge may then determine probable cause and fix bail. The defendant is
released from custody only after posting bail or dismissal of the case under these
traditional procedures.
In 1959 the Legislature introduced a new citation procedure for arrests for
state law misdemeanors by the enactment of sections 853.6, 853.7 and 853.8.2 The new
procedure provides for releasing a defendant arrested for a misdemeanor on his written
promise to appear in court at the time and place stated in the notice to appear (the
citation).
The question presented is whether the new citation procedures are
applicable to arrests made pursuant to warrants. Research has revealed no reported
judicial decisions addressing this question. Accordingly we must interpret section 853.6
making use of the rules of statutory construction used by the courts. The principal rules
2
The current wording of sections 853.6, 853.7 and 853.8 is set forth in the Appendix.
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were summarized in Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230,
as follows:
"We begin with the fundamental rule that a court should ascertain
the intent of the Legislature so as to effectuate the purpose of the law. In
determining such intent the court turns first to the words themselves for the
answer. We are required to give effect to statutes according to the usual,
ordinary import of the language employed in framing them. If possible,
significance should be given to every word, phrase, sentence and part of an
act in pursuance of the legislative purpose; a construction making some
words surplusage is to be avoided. When used in a statute words must be
construed in context, keeping in mind the nature and obvious purpose of the
statute where they appear. Moreover, the various parts of a statutory
enactment must be harmonized by considering the particular clause or
section in the context of the statutory framework as a whole." (Citations
and quotations omitted.)
The first sentence of section 853.6(a) indicates that the section applies "[i]n
any case in which a person is arrested for . . . a misdemeanor. . . ." without any reference
to warrants. Taken alone the word "any" would appear to make the section apply to
arrests with as well as those without a warrant. However, when this language is read in
context with other provisions of section 853.6 a serious question arises whether the
legislature intended the section to apply to arrests made pursuant to warrants.
Subdivision (a) refers to release of the arrested person on a notice to appear
in court "instead of being taken before a magistrate." This refers to the section 849(a)
requirement that a person arrested without a warrant be taken before the nearest or most
accessible magistrate in the county in which the offense is triable." The magistrate
language is not used for an arrest pursuant to a warrant which commands that the
defendant be taken before a named court. Similar "magistrate" language is used in
subdivision (c) of section 853.6 again suggesting that the section was applicable only to
arrests made without a warrant.
Subdivision (e) of section 853.6 provides that when the notice to appear is
filed with the magistrate, the magistrate will then fix bail and endorse the amount of bail
on the notice to appear in the form specified in section 815a. This language contemplates
that the notice to appear follows an arrest without a warrant where there is a need to fix
bail, not to an arrest pursuant to a warrant upon which bail has been endorsed as required
by section 815a.
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Subdivision (f) of section 853.6 provides that "[n]o warrant shall issue on
such charge for the arrest of a person who has given such written promise to appear in
court, . . . ." Again, this language contemplates an arrest made without a warrant and is
meaningless with respect to an arrest made pursuant to a warrant.
When the "in any case" language of subdivision (a) of section 853.6 is read
in context with the provisions just mentioned, the words become ambiguous. The context
indicates that they refer to any case of a misdemeanor arrest without a warrant while the
literal meaning of the first sentence would apply to any case of a misdemeanor arrest,
with or without a warrant. The courts will disregard the literal meaning of the language
of a statute, where, in light of the statute's legislative history, this is necessary to give
effect to the manifest purpose of the statute as it appears from its provisions considered as
a whole. (Silver v. Brown (1966) 63 Cal.2d 841, 845; County of Sacramento v. Hickman
(1967) 66 Cal.2d 841, 849, fn. 6.)
To ascertain whether the Legislature intended section 853.6 to apply to
warrant arrests, we have examined the legislative history of the section. The section was
patterned after the traffic citation procedures found in the Vehicle Code. (34 State Bar
Journal 712, 714.) More specifically, section 739 of the Vehicle Code as it read before
1959, appears to have been the model for section 853.6 as it was first enacted in 1959.
The original section 853.6 was composed of six subdivisions designated (a) through (f).
Vehicle Code section 739 (as it read before Chapter 2011, Statutes of 1957 added a new
subdivision) also contained six subdivisions designated (a) through (f) whose subject
matter corresponded with those in section 853.6. Both sections provided for similar
citation procedures. Subdivision (a) provided for the preparation of a notice to appear in
court on the arrest of a person for certain misdemeanors. Subdivision (b) provided for the
time to appear and subdivision (c) for the place to appear for the violation. Subdivision
(d) provided for a promise to appear and subdivision (e) required copies of the notice to
appear to be filed with the court. Subdivision (f) provided that no warrant would issue
for one who had given a written promise to appear.
Since section 853.6 was patterned after Vehicle Code section 739, we look
to the Vehicle Code provisions to determine their application to arrests made pursuant to
war- rants. In 1959 Vehicle Code section 743.5 provided:
"The foregoing provisions of this chapter shall govern all peace
officers in making arrests for violations of this code without a warrant for
offenses committed in their presence but the procedure prescribed herein
shall not otherwise be exclusive of any other method prescribed by law for
the arrest and prosecution of a person for an offense of like grade."
(Emphasis added.)
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This provision was in the Vehicle Code when it was first codified in 1935
and is now contained in section 40300 of the current Vehicle Code. Thus, it is clear that
the Vehicle Code citation procedures from which section 853.6 was patterned were and
are not applicable to arrests made pursuant to warrants. This is so in spite of the fact that
Vehicle Code section 739 stated that it applied "[w]henever a person is arrested for any
violation of this code . . . ." (emphasis added) without any reference to warrants.
Another important consideration in the construction of section 853.6 is to
determine the effect of alternative constructions on other provisions of the law. To
ascertain legislative intent, the courts construe a statute with reference to the whole
system of law of which it is a part, so that all may be harmonized and have effect.
(People v. Comingore (1977) 20 Cal.3d 142, 147.)
We have quoted section 849a (supra) which requires a magistrate who
issues a warrant of arrest for a misdemeanor to endorse the amount of bail on the warrant.
Section 1269a provides:
"Except as otherwise provided by law, no defendant charged in a
warrant of arrest with any public offense shall be discharged from custody
upon bail except upon a written order of a competent court or magistrate
admitting the defendant to bail in the amount specified in the indorsement
referred to in Section 815a, and where an undertaking is furnished, upon a
written order of such court or magistrate approving the undertaking. All
such orders must be signed by such court or magistrate and delivered to the
officer having custody of the defendant before the defendant is released.
Any officer releasing any defendant upon bail otherwise than as herein
provided shall be guilty of a misdemeanor."
Section 1270 provides that any court which may release a defendant upon bail may also
order the release of the defendant on his own recognizance provided the defendant signs
an agreement to appear in court as required by section 1318.
If section 853.6 is construed to apply to warrant arrests, the release of the
defendant upon his promise to appear as provided in that section would render the court's
bail determination meaningless and usurp the court's function of determining whether the
defendant should be released without bail on his own recognizance upon his agreement to
appear in court. The effect of such construction is to recognize two independent
procedures for the release of a person arrested on a misdemeanor warrant which are
inconsistent with one another. It would mean that police officers could release a person
arrested on a misdemeanor warrant upon the defendant's promise to appear in the face of
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a formal court order in the warrant to take the defendant before the court if he does not
post bail in the sum fixed by the court and endorsed on the warrant.
On the other hand construing section 836.5 to apply only to arrests made
without a warrant would not conflict with the bail statutes because there would be no
judicial bail determinations made before the defendant is released on his promise to
appear. We conclude that section 853.6 is best harmonized with the bail statutes by
construing the section inapplicable to warrant arrests.
Disharmony with Vehicle Code citation procedures would also occur if
section 853.6 were construed to apply to warrant arrests. We have already pointed out
that Vehicle Code section 40300 limits the citation procedures in that code to arrests
made without a warrant. To apply section 853.6 to warrant arrests would produce some
incongruous results. A person arrested upon a warrant for a non-Vehicle Code
misdemeanor could be released on his promise to appear, but a person arrested on a
warrant for a Vehicle Code misdemeanor could not.
We believe that the Legislature intended section 853.6 to apply to
misdemeanor arrests without a warrant but not to arrests made pursuant to a warrant for
three basic reasons. First, the language of the section when read in its entirety indicates
that its application to warrant arrests was not contemplated. Second, the legislative his-
tory of section 853.6 indicates it was patterned after the Vehicle Code citation procedures
which did not apply to warrant arrests. Third, applying section 853.6 to warrant arrests
would conflict with the statutes on bail and be inconsistent with parallel citation
procedures in the Vehicle Code.
We conclude that a person arrested for a misdemeanor pursuant to a
warrant for his or her arrest may not be released on a promise to appear in court as
provided in section 853.6.3
*****
3
The unpublished opinion No. CR 77/6 I.L. issued by this office on April 11, 1977, reaching
a contrary conclusion is disapproved.
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APPENDIX
Section 853:6:
(a) In any case which a person is arrested for an offense declared to be a
misdemeanor, including violation of any 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. If the person
is released, the officer or 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
and place where and when the person shall appear in court. If, pursuant to subdivision
(i), the person is not released prior to being booked and the officer in charge of the
booking or his or her superior determines that the person should be released, the officer
or superior shall prepare a written notice to appear in court.
(b) Unless waived by the person, the time specified in the notice to appear
must 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 his or her written
promise so to appear in court by signing the duplicate notice which shall be retained by
the officer. Thereupon 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 field with the magistrate if the prosecuting attorney has
previously directed the officer to do so.
(3) 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
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specified in paragraphs (1) and (2).
If the duplicate notice is filed with the prosecuting attorney, he or she,
within his or her discretion, may initiate prosecution by filing the notice or a formal
complaint with the magistrate specified therein 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.
Upon the filing of the notice with the magistrate by the officer, or the filing
of the notice of formal complaint by the prosecutor, the magistrate may fix the amount of
bail which in his or her judgment, in accordance with the provisions of section 12757,
will be reasonable and sufficient for the appearance of the defendant and shall indorse
upon the notice a statement signed by him or her in the form set forth in section 815a.
The defendant may, prior to the date upon which he or she promised to appear in court,
deposit with the magistrate the amount of bail thus set. Thereafter, at the time when the
case is called for arraignment before the magistrate, if the defendant shall not appear,
either in person or by counsel, the magistrate may declare the bail forfeited, and may in
his or her discretion order that no further proceedings shall be had in such case, unless the
defendant has been charged with violation of section 374b or 374e 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 he or she has previously been
convicted of a violation of that section or a violation which is punishable under that
section, except in cases where the magistrate finds that undue hardship will be imposed
upon the defendant by requiring him or her to appear, the magistrate may declare the bail
forfeited and order that no further proceedings shall be had in such case.
Upon the making of such order that no further proceedings be had, all sums
deposited as bail shall forthwith be paid into the county treasury for distribution pursuant
to section 1463.
(f) No warrant shall issue on such charge for the arrest of a person who has
given such a written promise to appear in court, unless and until he or she 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 either book the arrested person, as defined in
subdivision 21 of section 7, proper to release or indicate on the citation that the arrested
person shall be booked. In the event it is indicated on the citation that the arrested person
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shall be booked, the magistrate shall, before the proceedings are finally concluded, order
the defendant to be booked by the arresting agency.
(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 he or she has taken custody
of a person pursuant to section 847.
(i) Whenever any 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, or the arresting officer shall indicate, on a form to be established by
his or her employing law enforcement agency, which of the following was a reason for
the nonrelease:
(1) The person arrested was so intoxicated that he or she could have been a
danger to itself or herself or to others.
(2) The person arrested required medical examination or medical care or
was otherwise unable to care for his or her own safety.
(3) The person was arrested under one or more of the circumstances listed
in Section 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
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and place specified in the notice. The basis for this determination shall be specifically
stated.
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 him or her for (sic)
custody before trial.
Section 853.7:
Any person who willfully violates his written promise to appear in court is
guilty of a misdemeanor, regardless of the disposition of the charge upon which he was
originally arrested.
Section 853.8:
When a person signs a written promise to appear at the time and place
specified in the written promise to appear and has not posted bail as provided in section
853.6, the magistrate shall issue and have delivered for execution a warrant for his arrest
within twenty (20) days after his failure to appear as promised.
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