What is an Arrest Warrant?
An “arrest warrant” is a legal basis for a person to be arrested and be held in custody. There are several types of arrest warrants, that derive their authority from different sections of the Penal Code. The most common types of arrest warrants in California include:
- A warrant for arrest issued after a formal criminal complaint for a public offense that has been filed in a Superior Court;
- When a defendant fails to appear in Court after being ordered to do so, or fails to appear at an arraignment after the issuance of an indictment (called a “bench warrant”);
- When a defendant is determined to have violated probation, parole, community supervision, or mandatory supervision; or
- When police/prosecutor obtain a warrant directly from a judge or magistrate without filing a criminal complaint after submitting a declaration to a judge that they believe the person committed a crime and that it was the listed suspect, also known as a “Ramey Warrant” (People v. Ramey (1976) 16 Cal.3d 263).
We will discuss each of these types of arrest warrants in turn, and how hiring a competent attorney gives you the best chances of avoiding arrest.
Arrest Warrant after Filing Criminal Complaint
Under Penal Code section 813(a), an arrest warrant may be issued upon the filing of a felony criminal complaint:
When a complaint is filed with a magistrate charging a felony originally triable in the superior court of the county in which he or she sits, if, and only if, the magistrate is satisfied from the complaint that the offense complained of has been committed and that there is reasonable ground to believe that the defendant has committed it, the magistrate shall issue a warrant for the arrest of the defendant, except that, upon the request of the prosecutor, a summons instead of an arrest warrant shall be issued.
Cal. Penal Code § 813(a), emphasis added.
As noted, the prosecution may elect to instead issue a “Notice to Appear” to a defendant, also known as a “summons”, which would allow the defendant the opportunity to appear to contest any charges without being arrested. (See Cal. Penal Code § 813(a), (b)).
If the defendant is issued a properly noticed summons fails to appear at the scheduled court date, the judge “shall” issue a bench warrant. (See Cal. Penal Code § 813(c)). However, summonses can only be substituted for an arrest warrant in certain cases, as Penal Code section 813(e) indicates:
(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.
Cal. Penal Code § 813(e).
If you suspect that you are subject to a criminal investigation, it is therefore important to hire an attorney who can establish a line of communication with the prosecution and attempt to persuade them that you would not be a flight risk and would comply with any summons.
Arrest Warrants issued for Failing to Appear, AKA “Bench Warrants”
A defendant is expected to appear at every court appearance scheduled, or to appear through their attorney where the law so permits. (See, e.g., Cal. Penal Code § 977). If a defendant fails to appear when his appearance in Court is necessary, the Court may issue a “bench warrant” for his arrest. (See, e.g., Cal. Penal Code § 1195). Similarly, if a grand jury indicts a defendant and the defendant fails to appear at the time set for arraignment, a judge or magistrate shall issue a “bench warrant” for his arrest. (See, Cal. Penal Code §§ 945, 979). Regardless of where the defendant is arrested, the peace officer making the arrest of the defendant upon the bench warrant must bring the defendant to the county where the warrant was originally issued. (See Cal. Penal Code § 1199). This type of arrest warrant is called a “bench warrant” because it is usually issued in open court, wherein the judge or magistrate calls the case to be heard and the defendant fails to appear, and thereafter issues the warrant out loud, in open court.
If a bench warrant does issue for your arrest, hiring an attorney can assist you in avoiding actual arrest upon the warrant. This can be accomplished through the attorney asking the Court clerk to put your matter on calendar for “Voluntary Return on a Bench Warrant”, where you would be able to appear in Court and have your attorney explain why you did not appear and ask the judge to recall the bench warrant. Some counties, such as Napa County, allow “walk-in” voluntary returns, where your attorney can contact the Court clerk’s office in the morning and you can appear with your attorney in the afternoon to request the warrant to be recalled.
Arrest Warrants Issued for Violation of Probation, Parole, PRCS, or Mandatory Supervision.
If you are on Probation, Parole, PRCS, or Mandatory Supervision, your case has already concluded and you are being monitored by the Court, Probation Department, or Parole Operations and subject to terms of your release, which can be wide-ranging. If you are believed to be in violation of any term of your release, an arrest warrant can be issued at the request of a Probation Officer, Parole Officer, or peace officer:
(a) At any time during the period of supervision of a person (1) released on probation under the care of a probation officer pursuant to this chapter, (2) released on conditional sentence or summary probation not under the care of a probation officer, (3) placed on mandatory supervision pursuant to subparagraph (B) of paragraph (5) of subdivision (h) of Section 1170, (4) subject to revocation of postrelease community supervision pursuant to Section 3455, or (5) subject to revocation of parole supervision pursuant to Section 3000.08, if any probation officer, parole officer, or peace officer has probable cause to believe that the supervised person is violating any term or condition of the person’s supervision, the officer may, without warrant or other process and at any time until the final disposition of the case, rearrest the supervised person and bring them before the court or the court may, in its discretion, issue a warrant for their rearrest.
See Cal. Penal Code § 1203.2(a).
Once a person subject to supervision is arrested, an attorney may argue for release on Own Recognizance, “Supervised” Own Recognizance, or on bail. (Cal. Penal Code § 1203.25). However, a skilled criminal defense lawyer may be able to calendar a hearing for Voluntary Return on a Warrant related to a violation of Probation, Parole, PRCS, or Mandatory Supervision, so that you may be able to avoid being arrested in the first instance.
“Ramey” Warrants for Arrest
A Ramey warrant is where a peace officer or prosecutor issues a sworn probable cause declaration to a judge or magistrate indicating that they believe a particular suspect committed a crime and therefore should be arrested.(See People v. Ramey (1976) 16 Cal.3d 263). It differs from the previously mentioned arrest warrant after filing of a criminal complaint, because, there is no criminal complaint filed in Court in Ramey Warrant situations. It thus gives police the power of an arrest warrant without requiring a prosecutor to review all of their investigation and have the prosecution determine that charges should be filed. The process is governed by Penal Code section 817, which indicates:
(a) (1) Before issuing an arrest warrant, the magistrate shall examine a declaration of probable cause made by a peace officer or, when the defendant is a peace officer, an employee of a public prosecutor’s office of this state, in accordance with subdivisions (b), (c), and (d), as applicable. The magistrate shall issue a warrant of probable cause for the arrest of the defendant only if the magistrate is satisfied after reviewing the declaration that there exists probable cause that the offense described in the declaration has been committed and that the defendant described therein has committed the offense.
(2) The warrant of probable cause for arrest shall not begin a complaint process pursuant to Section 740 or 813. The warrant of probable cause for arrest shall have the same authority for service as set forth in Section 840 and the same time limitations as that of an arrest warrant issued pursuant to Section 813.
(b) The declaration in support of the warrant of probable cause for arrest shall be a sworn statement made in writing. If the declarant transmits the proposed warrant and all affidavits and supporting documents to the magistrate using facsimile transmission equipment, email, or computer server, the conditions in subdivision (d) shall apply.
(c) In lieu of the written declaration required in subdivision (b), the magistrate may accept an oral statement made under penalty of perjury and recorded and transcribed. The transcribed statement shall be deemed to be the declaration for the purposes of this section. The recording of the sworn oral statement and the transcribed statement shall be certified by the magistrate receiving it and shall be filed with the clerk of the court. In the alternative, the sworn oral statement may be recorded by a certified court reporter who shall certify the transcript of the statement, after which the magistrate receiving it shall certify the transcript, which shall be filed with the clerk of the court.
(d) (1) The declarant shall sign under penalty of perjury their declaration in support of the warrant of probable cause for arrest. The declarant’s signature shall be in the form of a digital signature or electronic signature if email or computer server is used for transmission to the magistrate. The proposed warrant and all supporting declarations and attachments shall be transmitted to the magistrate utilizing facsimile transmission equipment, email, or computer server.
(2) The magistrate shall verify that all the pages sent have been received, that all the pages are legible, and that the declarant’s signature, digital signature, or electronic signature is genuine.
(e) A warrant of probable cause for arrest shall contain the information required pursuant to Sections 815 and 815a.
(f) A warrant of probable cause for arrest may be in substantially the following form:
County of ______, State of California. The people of the State of California to any peace officer of the STATE: Proof by declaration under penalty of perjury having been made this day to me by _____ (name of declarant) _____ , I find that there is probable cause to believe that the crime(s)
of _____ (designate the crime/s) _____
has (have) been committed by the defendant named and described below.
Therefore, you are commanded to arrest
_____ (name of defendant) _____ and to bring the defendant
before any magistrate in _______ County pursuant to Sections 821, 825, 826, and 848 of the Penal Code.
Defendant is admitted to bail in the amount of ______ dollars ($______). Time Issued: _____ (Signature of the Judge) _____ Dated: Judge of the Court
(g) Before issuing a warrant, the magistrate may examine under oath the person seeking the warrant and any witness the person may produce, take the written declaration of the person or witness, and cause the person or witness to subscribe the declaration. If the magistrate decides to issue the warrant, the magistrate shall do all of the following:
(1) Sign the warrant. The magistrate’s signature may be in the form of a digital signature or electronic signature if email or computer server was used for transmission to the magistrate.
(2) Note on the warrant the date and time of the issuance of the warrant.
(3) Transmit via facsimile transmission equipment, email, or computer server the signed warrant to the declaration. The warrant, signed by the magistrate and received by the declarant, shall be deemed to be the original warrant.
(h) An original warrant of probable cause for arrest or the duplicate original warrant of probable cause for arrest is sufficient for booking a defendant into custody.
(i) After the defendant named in the warrant of probable cause for arrest has been taken into custody, the agency that obtained the warrant shall file a “certificate of service” with the clerk of the issuing court. The certificate of service shall contain all of the following:
(1) The date and time of service.
(2) The name of the defendant arrested.
(3) The location of the arrest.
(4) The location where the defendant was incarcerated.
Cal. Penal Code § 817.
In Ramey Warrant situations, a knowledgeable criminal defense attorney can reach out to the police and/or prosecutor to determine if the matter may be handled by way of Court summons without necessitating arrest, or can use the assistance of a private investigator to provide defense evidence to a prosecutor that may exonerate or cast substantial doubt on the police investigation, as oftentimes the police declaration will leave out or overlook exculpatory information.
Call Honeychurch & Giambona Free Today to Assist in Seeking to Avoid Jail if There is a Possible Warrant for Your Arrest.
As you have seen from the above examination of the various types of arrest warrants, having a dedicated, knowledgeable attorney at your side when you are facing the possibility of arrest upon such warrants can greatly increase your chances of avoiding incarceration.
If you believe you are subject to a criminal investigation in Solano County, Napa County, or Yolo County, call Honeychurch & Giambona today for a free consultation as to how we may be able to assist you in avoiding arrest We will help you defend your rights in any felony, misdemeanor, or Violation of Parole, Probation, PRCS, or Mandatory Supervision case and fight to achieve the best possible results for your situation.