2009 California Penal Code - Section 833-851.90 :: Chapter 5. Arrest, By Whom And How Made

833.  A peace officer may search for dangerous weapons any person
whom he has legal cause to arrest, whenever he has reasonable cause
to believe that the person possesses a dangerous weapon. If the
officer finds a dangerous weapon, he may take and keep it until the
completion of the questioning, when he shall either return it or
arrest the person. The arrest may be for the illegal possession of
the weapon.

833.2.   (a) It is the intent of the Legislature to encourage law
enforcement and county child welfare agencies to develop protocols in
collaboration with other local entities, which may include local
educational, judicial, correctional, and community-based
organizations, when appropriate, regarding how to best cooperate in
their response to the arrest of a caretaker parent or guardian of a
minor child, to ensure the child's safety and well-being.
   (b) The Legislature encourages the Department of Justice to apply
to the federal government for a statewide training grant on behalf of
California law enforcement agencies, with the purpose of enabling
local jurisdictions to provide training for their law enforcement
officers to assist them in developing protocols and adequately
addressing issues related to child safety when a caretaker parent or
guardian is arrested.

833.5.  (a) In addition to any other detention permitted by law, if
a peace officer has reasonable cause to believe that a person has a
firearm or other deadly weapon with him or her in violation of any
provision of law relating to firearms or deadly weapons the peace
officer may detain that person to determine whether a crime relating
to firearms or deadly weapons has been committed.
   For purposes of this section "reasonable cause to detain" requires
that the circumstances known or apparent to the officer must include
specific and articulable facts causing him or her to suspect that
some offense relating to firearms or deadly weapons has taken place
or is occurring or is about to occur and that the person he or she
intends to detain is involved in that offense. The circumstances must
be such as would cause any reasonable peace officer in like
position, drawing when appropriate on his or her training and
experience, to suspect the same offense and the same involvement by
the person in question.
   (b) Incident to any detention permitted pursuant to subdivision
(a), a peace officer may conduct a limited search of the person for
firearms or weapons if the peace officer reasonably concludes that
the person detained may be armed and presently dangerous to the peace
officer or others. Any firearm or weapon seized pursuant to a valid
detention or search pursuant to this section shall be admissible in
evidence in any proceeding for any purpose permitted by law.
   (c) This section shall not be construed to otherwise limit the
authority of a peace officer to detain any person or to make an
arrest based on reasonable cause.
   (d) This section shall not be construed to permit a peace officer
to conduct a detention or search of any person at the person's
residence or place of business absent a search warrant or other
reasonable cause to detain or search.
   (e) If a firearm or weapon is seized pursuant to this section and
the person from whom it was seized owned the firearm or weapon and is
convicted of a violation of any offense relating to the possession
of such firearm or weapon, the court shall order the firearm or
weapon to be deemed a nuisance and disposed of in the manner provided
by Section 12028.

834.  An arrest is taking a person into custody, in a case and in
the manner authorized by law. An arrest may be made by a peace
officer or by a private person.

834a.  If a person has knowledge, or by the exercise of reasonable
care, should have knowledge, that he is being arrested by a peace
officer, it is the duty of such person to refrain from using force or
any weapon to resist such arrest.

834b.  (a) Every law enforcement agency in California shall fully
cooperate with the United States Immigration and Naturalization
Service regarding any person who is arrested if he or she is
suspected of being present in the United States in violation of
federal immigration laws.
   (b) With respect to any such person who is arrested, and suspected
of being present in the United States in violation of federal
immigration laws, every law enforcement agency shall do the
following:
   (1) Attempt to verify the legal status of such person as a citizen
of the United States, an alien lawfully admitted as a permanent
resident, an alien lawfully admitted for a temporary period of time
or as an alien who is present in the United States in violation of
immigration laws. The verification process may include, but shall not
be limited to, questioning the person regarding his or her date and
place of birth, and entry into the United States, and demanding
documentation to indicate his or her legal status.
   (2) Notify the person of his or her apparent status as an alien
who is present in the United States in violation of federal
immigration laws and inform him or her that, apart from any criminal
justice proceedings, he or she must either obtain legal status or
leave the United States.
   (3) Notify the Attorney General of California and the United
States Immigration and Naturalization Service of the apparent illegal
status and provide any additional information that may be requested
by any other public entity.
   (c) Any legislative, administrative, or other action by a city,
county, or other legally authorized local governmental entity with
jurisdictional boundaries, or by a law enforcement agency, to prevent
or limit the cooperation required by subdivision (a) is expressly
prohibited.

834c.  (a) (1) In accordance with federal law and the provisions of
this section, every peace officer, upon arrest and booking or
detention for more than two hours of a known or suspected foreign
national, shall advise the foreign national that he or she has a
right to communicate with an official from the consulate of his or
her country, except as provided in subdivision (d). If the foreign
national chooses to exercise that right, the peace officer shall
notify the pertinent official in his or her agency or department of
the arrest or detention and that the foreign national wants his or
her consulate notified.
   (2) The law enforcement official who receives the notification
request pursuant to paragraph (1) shall be guided by his or her
agency's procedures in conjunction with the Department of State
Guidelines Regarding Foreign Nationals Arrested or Detained in the
United States, and make the appropriate notifications to the consular
officers at the consulate of the arrestee.
   (3) The law enforcement official in charge of the custodial
facility where an arrestee subject to this subdivision is located
shall ensure that the arrestee is allowed to communicate with,
correspond with, and be visited by, a consular officer of his or her
country.
   (b) The 1963 Vienna Convention on Consular Relations Treaty was
signed by 140 nations, including the United States, which ratified
the agreement in 1969. This treaty guarantees that individuals
arrested or detained in a foreign country must be told by police
"without delay" that they have a right to speak to an official from
their country's consulate and if an individual chooses to exercise
that right a law enforcement official is required to notify the
consulate.
   (c) California law enforcement agencies shall ensure that policy
or procedure and training manuals incorporate language based upon
provisions of the treaty that set forth requirements for handling the
arrest and booking or detention for more than two hours of a foreign
national pursuant to this section prior to December 31, 2000.
   (d) Countries requiring mandatory notification under Article 36 of
the Vienna Convention shall be notified as set forth in this section
without regard to an arrested or detained foreign national's request
to the contrary. Those countries, as identified by the United States
Department of State on July 1, 1999, are as follows:
   (1) Antigua and Barbuda.
   (2) Armenia.
   (3) Azerbaijan.
   (4) The Bahamas.
   (5) Barbados.
   (6) Belarus.
   (7) Belize.
   (8) Brunei.
   (9) Bulgaria.
   (10) China.
   (11) Costa Rica.
   (12) Cyprus.
   (13) Czech Republic.
   (14) Dominica.
   (15) Fiji.
   (16) The Gambia.
   (17) Georgia.
   (18) Ghana.
   (19) Grenada.
   (20) Guyana.
   (21) Hong Kong.
   (22) Hungary.
   (23) Jamaica.
   (24) Kazakhstan.
   (25) Kiribati.
   (26) Kuwait.
   (27) Kyrgyzstan.
   (28) Malaysia.
   (29) Malta.
   (30) Mauritius.
   (31) Moldova.
   (32) Mongolia.
   (33) Nigeria.
   (34) Philippines.
   (35) Poland (nonpermanent residents only).
   (36) Romania.
   (37) Russia.
   (38) Saint Kitts and Nevis.
   (39) Saint Lucia.
   (40) Saint Vincent and the Grenadines.
   (41) Seychelles.
   (42) Sierra Leone.
   (43) Singapore.
   (44) Slovakia.
   (45) Tajikistan.
   (46) Tanzania.
   (47) Tonga.
   (48) Trinidad and Tobago.
   (49) Turkmenistan.
   (50) Tuvalu.
   (51) Ukraine.
   (52) United Kingdom.
   (53) U.S.S.R.
   (54) Uzbekistan.
   (55) Zambia.
   (56) Zimbabwe.
   However, any countries requiring notification that the above list
does not identify because the notification requirement became
effective after July 1, 1999, shall also be required to be notified.

835.  An arrest is made by an actual restraint of the person, or by
submission to the custody of an officer. The person arrested may be
subjected to such restraint as is reasonable for his arrest and
detention.

835a.  Any peace officer who has reasonable cause to believe that
the person to be arrested has committed a public offense may use
reasonable force to effect the arrest, to prevent escape or to
overcome resistance.
   A peace officer who makes or attempts to make an arrest need not
retreat or desist from his efforts by reason of the resistance or
threatened resistance of the person being arrested; nor shall such
officer be deemed an aggressor or lose his right to self-defense by
the use of reasonable force to effect the arrest or to prevent escape
or to overcome resistance.

836.  (a) A peace officer may arrest a person in obedience to a
warrant, or, pursuant to the authority granted to him or her by
Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2,
without a warrant, may arrest a person whenever any of the following
circumstances occur:
   (1) The officer has probable cause to believe that the person to
be arrested has committed a public offense in the officer's presence.
   (2) The person arrested has committed a felony, although not in
the officer's presence.
   (3) The officer has probable cause to believe that the person to
be arrested has committed a felony, whether or not a felony, in fact,
has been committed.
   (b) Any time a peace officer is called out on a domestic violence
call, it shall be mandatory that the officer make a good faith effort
to inform the victim of his or her right to make a citizen's arrest.
This information shall include advising the victim how to safely
execute the arrest.
   (c) (1) When a peace officer is responding to a call alleging a
violation of a domestic violence protective or restraining order
issued under Section 527.6 of the Code of Civil Procedure, the Family
Code, Section 136.2, 646.91, or paragraph (2) of subdivision (a) of
Section 1203.097 of this code, Section 213.5 or 15657.03 of the
Welfare and Institutions Code, or of a domestic violence protective
or restraining order issued by the court of another state, tribe, or
territory and the peace officer has probable cause to believe that
the person against whom the order is issued has notice of the order
and has committed an act in violation of the order, the officer
shall, consistent with subdivision (b) of Section 13701, make a
lawful arrest of the person without a warrant and take that person
into custody whether or not the violation occurred in the presence of
the arresting officer. The officer shall, as soon as possible after
the arrest, confirm with the appropriate authorities or the Domestic
Violence Protection Order Registry maintained pursuant to Section
6380 of the Family Code that a true copy of the protective order has
been registered, unless the victim provides the officer with a copy
of the protective order.
   (2) The person against whom a protective order has been issued
shall be deemed to have notice of the order if the victim presents to
the officer proof of service of the order, the officer confirms with
the appropriate authorities that a true copy of the proof of service
is on file, or the person against whom the protective order was
issued was present at the protective order hearing or was informed by
a peace officer of the contents of the protective order.
   (3) In situations where mutual protective orders have been issued
under Division 10 (commencing with Section 6200) of the Family Code,
liability for arrest under this subdivision applies only to those
persons who are reasonably believed to have been the dominant
aggressor. In those situations, prior to making an arrest under this
subdivision, the peace officer shall make reasonable efforts to
identify, and may arrest, the dominant aggressor involved in the
incident. The dominant aggressor is the person determined to be the
most significant, rather than the first, aggressor. In identifying
the dominant aggressor, an officer shall consider (A) the intent of
the law to protect victims of domestic violence from continuing
abuse, (B) the threats creating fear of physical injury, (C) the
history of domestic violence between the persons involved, and (D)
whether either person involved acted in self-defense.
   (d) Notwithstanding paragraph (1) of subdivision (a), if a suspect
commits an assault or battery upon a current or former spouse,
fiancé, fiancée, a current or former cohabitant as defined in Section
6209 of the Family Code, a person with whom the suspect currently is
having or has previously had an engagement or dating relationship,
as defined in paragraph (10) of subdivision (f) of Section 243, a
person with whom the suspect has parented a child, or is presumed to
have parented a child pursuant to the Uniform Parentage Act (Part 3
(commencing with Section 7600) of Division 12 of the Family Code), a
child of the suspect, a child whose parentage by the suspect is the
subject of an action under the Uniform Parentage Act, a child of a
person in one of the above categories, any other person related to
the suspect by consanguinity or affinity within the second degree, or
any person who is 65 years of age or older and who is related to the
suspect by blood or legal guardianship, a peace officer may arrest
the suspect without a warrant where both of the following
circumstances apply:
   (1) The peace officer has probable cause to believe that the
person to be arrested has committed the assault or battery, whether
or not it has in fact been committed.
   (2) The peace officer makes the arrest as soon as probable cause
arises to believe that the person to be arrested has committed the
assault or battery, whether or not it has in fact been committed.
   (e) In addition to the authority to make an arrest without a
warrant pursuant to paragraphs (1) and (3) of subdivision (a), a
peace officer may, without a warrant, arrest a person for a violation
of Section 12025 when all of the following apply:
   (1) The officer has reasonable cause to believe that the person to
be arrested has committed the violation of Section 12025.
   (2) The violation of Section 12025 occurred within an airport, as
defined in Section 21013 of the Public Utilities Code, in an area to
which access is controlled by the inspection of persons and property.
   (3) The peace officer makes the arrest as soon as reasonable cause
arises to believe that the person to be arrested has committed the
violation of Section 12025.

836.1.  When a person commits an assault or battery against the
person of a firefighter, emergency medical technician, or mobile
intensive care paramedic while that person is on duty engaged in the
performance of his or her duties in violation of subdivision (b) of
Section 241 or subdivision (b) of Section 243, a peace officer may,
without a warrant, arrest the person who commits the assault or
battery:
   (a) Whenever the peace officer has reasonable cause to believe
that the person to be arrested has committed the assault or battery,
although the assault or battery was not committed in the peace
officer's presence.
   (b) Whenever the peace officer has reasonable cause to believe
that the person to be arrested has committed the assault or battery,
whether or not the assault or battery has in fact been committed.

836.3.  A peace officer may make an arrest in obedience to a warrant
delivered to him, or may, without a warrant, arrest a person who,
while charged with or convicted of a misdemeanor, has escaped from
any county or city jail, prison, industrial farm or industrial road
camp or from the custody of the officer or person in charge of him
while engaged on any county road or other county work or going to or
returning from such county road or other county work or from the
custody of any officer or person in whose lawful custody he is when
such escape is not by force or violence.

836.5.  (a) A public officer or employee, when authorized by
ordinance, may arrest a person without a warrant whenever the officer
or employee has reasonable cause to believe that the person to be
arrested has committed a misdemeanor in the presence of the officer
or employee that is a violation of a statute or ordinance that the
officer or employee has the duty to enforce.
   (b) There shall be no civil liability on the part of, and no cause
of action shall arise against, any public officer or employee acting
pursuant to subdivision (a) and within the scope of his or her
authority for false arrest or false imprisonment arising out of any
arrest that is lawful or that the public officer or employee, at the
time of the arrest, had reasonable cause to believe was lawful. No
officer or employee shall be deemed an aggressor or lose his or her
right to self-defense by the use of reasonable force to effect the
arrest, prevent escape, or overcome resistance.
   (c) In any case in which a person is arrested pursuant to
subdivision (a) and the person arrested does not demand to be taken
before a magistrate, the public officer or employee making the arrest
shall prepare a written notice to appear and release the person on
his or her promise to appear, as prescribed by Chapter 5C (commencing
with Section 853.5). The provisions of that chapter shall thereafter
apply with reference to any proceeding based upon the issuance of a
written notice to appear pursuant to this authority.
   (d) The governing body of a local agency, by ordinance, may
authorize its officers and employees who have the duty to enforce a
statute or ordinance to arrest persons for violations of the statute
or ordinance as provided in subdivision (a).
   (e) For purposes of this section, "ordinance" includes an order,
rule, or regulation of any air pollution control district.
   (f) For purposes of this section, a "public officer or employee"
includes an officer or employee of a nonprofit transit corporation
wholly owned by a local agency and formed to carry out the purposes
of the local agency.

836.6.  (a) It is unlawful for any person who is remanded by a
magistrate or judge of any court in this state to the custody of a
sheriff, marshal, or other police agency, to thereafter escape or
attempt to escape from that custody.
   (b) It is unlawful for any person who has been lawfully arrested
by any peace officer and who knows, or by the exercise of reasonable
care should have known, that he or she has been so arrested, to
thereafter escape or attempt to escape from that peace officer.
   (c) Any person who violates subdivision (a) or (b) is guilty of a
misdemeanor, punishable by imprisonment in a county jail not to
exceed one year. However, if the escape or attempted escape is by
force or violence, and the person proximately causes a peace officer
serious bodily injury, the person shall be punished by imprisonment
in the state prison for two, three, or four years, or by imprisonment
in a county jail not to exceed one year.

837.  A private person may arrest another:
   1. For a public offense committed or attempted in his presence.
   2. When the person arrested has committed a felony, although not
in his presence.
   3. When a felony has been in fact committed, and he has reasonable
cause for believing the person arrested to have committed it.

838.  A magistrate may orally order a peace officer or private
person to arrest any one committing or attempting to commit a public
offense in the presence of such magistrate.

839.  Any person making an arrest may orally summon as many persons
as he deems necessary to aid him therein.

840.  An arrest for the commission of a felony may be made on any
day and at any time of the day or night. An arrest for the commission
of a misdemeanor or an infraction cannot be made between the hours
of 10 o'clock p.m. of any day and 6 o'clock a.m. of the succeeding
day, unless:
   (1) The arrest is made without a warrant pursuant to Section 836
or 837.
   (2) The arrest is made in a public place.
   (3) The arrest is made when the person is in custody pursuant to
another lawful arrest.
   (4) The arrest is made pursuant to a warrant which, for good cause
shown, directs that it may be served at any time of the day or
night.

841.  The person making the arrest must inform the person to be
arrested of the intention to arrest him, of the cause of the arrest,
and the authority to make it, except when the person making the
arrest has reasonable cause to believe that the person to be arrested
is actually engaged in the commission of or an attempt to commit an
offense, or the person to be arrested is pursued immediately after
its commission, or after an escape.
   The person making the arrest must, on request of the person he is
arresting, inform the latter of the offense for which he is being
arrested.

841.5.  (a) Except as otherwise required by Chapter 10 (commencing
with Section 1054) of Title 7, or by the United States Constitution
or the California Constitution, no law enforcement officer or
employee of a law enforcement agency shall disclose to any arrested
person, or to any person who may be a defendant in a criminal action,
the address or telephone number of any person who is a victim or
witness in the alleged offense.
   (b) Nothing in this section shall impair or interfere with the
right of a defendant to obtain information necessary for the
preparation of his or her defense through the discovery process.
   (c) Nothing in this section shall impair or interfere with the
right of an attorney to obtain the address or telephone number of any
person who is a victim of, or a witness to, an alleged offense where
a client of that attorney has been arrested for, or may be a
defendant in, a criminal action related to the alleged offense.
   (d) Nothing in this section shall preclude a law enforcement
agency from releasing the entire contents of an accident report as
required by Section 20012 of the Vehicle Code.

842.  An arrest by a peace officer acting under a warrant is lawful
even though the officer does not have the warrant in his possession
at the time of the arrest, but if the person arrested so requests it,
the warrant shall be shown to him as soon as practicable.

843.  When the arrest is being made by an officer under the
authority of a warrant, after information of the intention to make
the arrest, if the person to be arrested either flees or forcibly
resists, the officer may use all necessary means to effect the
arrest.

844.  To make an arrest, a private person, if the offense is a
felony, and in all cases a peace officer, may break open the door or
window of the house in which the person to be arrested is, or in
which they have reasonable grounds for believing the person to be,
after having demanded admittance and explained the purpose for which
admittance is desired.

845.  Any person who has lawfully entered a house for the purpose of
making an arrest, may break open the door or window thereof if
detained therein, when necessary for the purpose of liberating
himself, and an officer may do the same, when necessary for the
purpose of liberating a person who, acting in his aid, lawfully
entered for the purpose of making an arrest, and is detained therein.

846.  Any person making an arrest may take from the person arrested
all offensive weapons which he may have about his person, and must
deliver them to the magistrate before whom he is taken.

847.  (a) A private person who has arrested another for the
commission of a public offense must, without unnecessary delay, take
the person arrested before a magistrate, or deliver him or her to a
peace officer.
   (b) There shall be no civil liability on the part of, and no cause
of action shall arise against, any peace officer or federal criminal
investigator or law enforcement officer described in subdivision (a)
or (d) of Section 830.8, acting within the scope of his or her
authority, for false arrest or false imprisonment arising out of any
arrest under any of the following circumstances:
   (1) The arrest was lawful, or the peace officer, at the time of
the arrest, had reasonable cause to believe the arrest was lawful.
   (2) The arrest was made pursuant to a charge made, upon reasonable
cause, of the commission of a felony by the person to be arrested.
   (3) The arrest was made pursuant to the requirements of Section
142, 837, 838, or 839.

847.5.  If a person has been admitted to bail in another state,
escapes bail, and is present in this State, the bail bondsman or
other person who is bail for such fugitive, may file with a
magistrate in the county where the fugitive is present an affidavit
stating the name and whereabouts of the fugitive, the offense with
which the alleged fugitive was charged or of which he was convicted,
the time and place of same, and the particulars in which the fugitive
has violated the terms of his bail, and may request the issuance of
a warrant for arrest of the fugitive, and the issuance, after
hearing, of an order authorizing the affiant to return the fugitive
to the jurisdiction from which he escaped bail. The magistrate may
require such additional evidence under oath as he deems necessary to
decide the issue. If he concludes that there is probable cause for
believing that the person alleged to be a fugitive is such, he may
issue a warrant for his arrest. The magistrate shall notify the
district attorney of such action and shall direct him to investigate
the case and determine the facts of the matter. When the fugitive is
brought before him pursuant to the warrant, the magistrate shall set
a time and place for hearing, and shall advise the fugitive of his
right to counsel and to produce evidence at the hearing. He may admit
the fugitive to bail pending the hearing. The district attorney
shall appear at the hearing. If, after hearing, the magistrate is
satisfied from the evidence that the person is a fugitive he may
issue an order authorizing affiant to return the fugitive to the
jurisdiction from which he escaped bail.
   A bondsman or other person who is bail for a fugitive admitted to
bail in another state who takes the fugitive into custody, except
pursuant to an order issued under this section, is guilty of a
misdemeanor.

848.  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.

849.  (a) 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.
   (b) Any peace officer may release from custody, instead of taking
such person before a magistrate, any person arrested without a
warrant whenever:
   (1) He or she is satisfied that there are insufficient grounds for
making a criminal complaint against the person arrested.
   (2) The person arrested was arrested for intoxication only, and no
further proceedings are desirable.
   (3) The person was arrested only for being under the influence of
a controlled substance or drug and such person is delivered to a
facility or hospital for treatment and no further proceedings are
desirable.
   (c) Any record of arrest of a person released pursuant to
paragraphs (1) and (3) of subdivision (b) shall include a record of
release. Thereafter, such arrest shall not be deemed an arrest, but a
detention only.

849.5.  In any case in which a person is arrested and released and
no accusatory pleading is filed charging him with an offense, any
record of arrest of the person shall include a record of release.
Thereafter, the arrest shall not be deemed an arrest, but a detention
only.

850.  (a) A telegraphic copy of a warrant or an abstract of a
warrant may be sent by telegraph, teletype, or any other electronic
devices, to one or more peace officers, and such copy or abstract is
as effectual in the hands of any officer, and he shall proceed in the
same manner under it, as though he held the original warrant issued
by a magistrate or the issuing authority or agency.
   (b) Except as otherwise provided in Section 1549.2 relating to
Governor's warrants of extradition, an abstract of the warrant as
herein referred to shall contain the following information: the
warrant number, the charge, the court or agency of issuance, the
subject's name, address and description, the bail, the name of the
issuing magistrate or authority, and if the offense charged is a
misdemeanor, whether the warrant has been certified for night
service.
   (c) When the subject of a written or telegraphic warrant or
abstract of warrant is in custody on another charge, the custodial
officer shall, immediately upon receipt of information as to the
existence of any such warrant or abstract, obtain and deliver a
written copy of the warrant or abstract to the subject and shall
inform him of his rights under Section 1381, where applicable, to
request a speedy trial and under Section 858.7 relating to Vehicle
Code violations.

851.  Every officer causing telegraphic copies or abstracts of
warrants to be sent, must certify as correct, and file in the
telegraphic office from which such copies are sent, a copy of the
warrant, and must return the original with a statement of his action
thereunder.

851.5.  (a) 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).
   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.
   (b) At any police facility or place where an arrestee is detained,
a sign containing the following information in bold block type shall
be posted in a conspicuous place:
   That the arrestee has the right to free telephone calls within the
local dialing area, or at his or her own expense if outside the
local area, to three of the following:
   (1) An attorney of his or her choice or, if he or she has 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) If, upon questioning during the booking process, the arrested
person is identified as a custodial parent with responsibility for a
minor child, the arrested person shall be entitled to make two
additional calls at no expense if the calls are completed to
telephone numbers within 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 parent's absence.
   (d) These telephone calls shall be given immediately upon request,
or as soon as practicable.
   (e) This provision shall not abrogate a law enforcement officer's
duty to advise a suspect of his or her right to counsel or of any
other right.
   (f) Any public officer or employee who willfully deprives an
arrested person of any right granted by this section is guilty of a
misdemeanor.

851.6.  (a) In any case in which a person is arrested and released
pursuant to paragraph (1) or (3) of subdivision (b) of Section 849,
the person shall be issued a certificate, signed by the releasing
officer or his superior officer, describing the action as a
detention.
   (b) In any case in which a person is arrested and released and no
accusatory pleading is filed charging him with an offense, the person
shall be issued a certificate by the law enforcement agency which
arrested him describing the action as a detention.
   (c) The Attorney General shall prescribe the form and content of
such certificate.
   (d) Any reference to the action as an arrest shall be deleted from
the arrest records of the arresting agency and of the Bureau of
Criminal Identification and Investigation of the Department of
Justice. Thereafter, any such record of the action shall refer to it
as a detention.

851.7.  (a) Any person who has been arrested for a misdemeanor, with
or without a warrant, while a minor, may, during or after minority,
petition the court in which the proceedings occurred or, if there
were no court proceedings, the court in whose jurisdiction the arrest
occurred, for an order sealing the records in the case, including
any records of arrest and detention, if any of the following
occurred:
   (1) He was released pursuant to paragraph (1) of subdivision (b)
of Section 849.
   (2) Proceedings against him were dismissed, or he was discharged,
without a conviction.
   (3) He was acquitted.
   (b) If the court finds that the petitioner is eligible for relief
under subdivision (a), it shall issue its order granting the relief
prayed for. Thereafter, the arrest, detention, and any further
proceedings in the case shall be deemed not to have occurred, and the
petitioner may answer accordingly any question relating to their
occurrence.
   (c) This section applies to arrests and any further proceedings
that occurred before, as well as those that occur after, the
effective date of this section.
   (d) This section does not apply to any person taken into custody
pursuant to Section 625 of the Welfare and Institutions Code, or to
any case within the scope of Section 781 of the Welfare and
Institutions Code, unless, after a finding of unfitness for the
juvenile court or otherwise, there were criminal proceedings in the
case, not culminating in conviction. If there were criminal
proceedings not culminating in conviction, this section shall be
applicable to such criminal proceedings if such proceedings are
otherwise within the scope of this section.
   (e) This section does not apply to arrests for, and any further
proceedings relating to, any of the following:
   (1) Offenses for which registration is required under Section 290.
   (2) Offenses under Division 10 (commencing with Section 11000) of
the Health and Safety Code.
   (3) Offenses under the Vehicle Code or any local ordinance
relating to the operation, stopping, standing, or parking of a
vehicle.
   (f) In any action or proceeding based upon defamation, a court,
upon a showing of good cause, may order any records sealed under this
section to be opened and admitted in evidence. The records shall be
confidential and shall be available for inspection only by the court,
jury, parties, counsel for the parties, and any other person who is
authorized by the court to inspect them. Upon the judgment in the
action or proceeding becoming final, the court shall order the
records sealed.
   (g) This section shall apply in any case in which a person was
under the age of 21 at the time of the commission of an offense as to
which this section is made applicable if such offense was committed
prior to March 7, 1973.

851.8.  (a) In any case where a person has been arrested and no
accusatory pleading has been filed, the person arrested may petition
the law enforcement agency having jurisdiction over the offense to
destroy its records of the arrest. A copy of the petition shall be
served upon the prosecuting attorney of the county or city having
jurisdiction over the offense. The law enforcement agency having
jurisdiction over the offense, upon a determination that the person
arrested is factually innocent, shall, with the concurrence of the
prosecuting attorney, seal its arrest records, and the petition for
relief under this section for three years from the date of the arrest
and thereafter destroy its arrest records and the petition. The law
enforcement agency having jurisdiction over the offense shall notify
the Department of Justice, and any law enforcement agency that
arrested the petitioner or participated in the arrest of the
petitioner for an offense for which the petitioner has been found
factually innocent under this subdivision, of the sealing of the
arrest records and the reason therefor. The Department of Justice and
any law enforcement agency so notified shall forthwith seal their
records of the arrest and the notice of sealing for three years from
the date of the arrest, and thereafter destroy their records of the
arrest and the notice of sealing. The law enforcement agency having
jurisdiction over the offense and the Department of Justice shall
request the destruction of any records of the arrest which they have
given to any local, state, or federal agency or to any other person
or entity. Each agency, person, or entity within the State of
California receiving the request shall destroy its records of the
arrest and the request, unless otherwise provided in this section.
   (b) If, after receipt by both the law enforcement agency and the
prosecuting attorney of a petition for relief under subdivision (a),
the law enforcement agency and prosecuting attorney do not respond to
the petition by accepting or denying the petition within 60 days
after the running of the relevant statute of limitations or within 60
days after receipt of the petition in cases where the statute of
limitations has previously lapsed, then the petition shall be deemed
to be denied. In any case where the petition of an arrestee to the
law enforcement agency to have an arrest record destroyed is denied,
petition may be made to the superior court that would have had
territorial jurisdiction over the matter. A copy of the petition
shall be served on the law enforcement agency and the prosecuting
attorney of the county or city having jurisdiction over the offense
at least 10 days prior to the hearing thereon. The prosecuting
attorney and the law enforcement agency through the district attorney
may present evidence to the court at the hearing. Notwithstanding
Section 1538.5 or 1539, any judicial determination of factual
innocence made pursuant to this section may be heard and determined
upon declarations, affidavits, police reports, or any other evidence
submitted by the parties which is material, relevant and reliable. A
finding of factual innocence and an order for the sealing and
destruction of records pursuant to this section shall not be made
unless the court finds that no reasonable cause exists to believe
that the arrestee committed the offense for which the arrest was
made. In any court hearing to determine the factual innocence of a
party, the initial burden of proof shall rest with the petitioner to
show that no reasonable cause exists to believe that the arrestee
committed the offense for which the arrest was made. If the court
finds that this showing of no reasonable cause has been made by the
petitioner, then the burden of proof shall shift to the respondent to
show that a reasonable cause exists to believe that the petitioner
committed the offense for which the arrest was made. If the court
finds the arrestee to be factually innocent of the charges for which
the arrest was made, then the court shall order the law enforcement
agency having jurisdiction over the offense, the Department of
Justice, and any law enforcement agency which arrested the petitioner
or participated in the arrest of the petitioner for an offense for
which the petitioner has been found factually innocent under this
section to seal their records of the arrest and the court order to
seal and destroy the records, for three years from the date of the
arrest and thereafter to destroy their records of the arrest and the
court order to seal and destroy such records. The court shall also
order the law enforcement agency having jurisdiction over the offense
and the Department of Justice to request the destruction of any
records of the arrest which they have given to any local, state, or
federal agency, person or entity. Each state or local agency, person
or entity within the State of California receiving such a request
shall destroy its records of the arrest and the request to destroy
the records, unless otherwise provided in this section. The court
shall give to the petitioner a copy of any court order concerning the
destruction of the arrest records.
   (c) In any case where a person has been arrested, and an
accusatory pleading has been filed, but where no conviction has
occurred, the defendant may, at any time after dismissal of the
action, petition the court that dismissed the action for a finding
that the defendant is factually innocent of the charges for which the
arrest was made. A copy of the petition shall be served on the
prosecuting attorney of the county or city in which the accusatory
pleading was filed at least 10 days prior to the hearing on the
petitioner's factual innocence. The prosecuting attorney may present
evidence to the court at the hearing. The hearing shall be conducted
as provided in subdivision (b). If the court finds the petitioner to
be factually innocent of the charges for which the arrest was made,
then the court shall grant the relief as provided in subdivision (b).
   (d) In any case where a person has been arrested and an accusatory
pleading has been filed, but where no conviction has occurred, the
court may, with the concurrence of the prosecuting attorney, grant
the relief provided in subdivision (b) at the time of the dismissal
of the accusatory pleading.
   (e) Whenever any person is acquitted of a charge and it appears to
the judge presiding at the trial at which the acquittal occurred
that the defendant was factually innocent of the charge, the judge
may grant the relief provided in subdivision (b).
   (f) In any case where a person who has been arrested is granted
relief pursuant to subdivision (a) or (b), the law enforcement agency
having jurisdiction over the offense or court shall issue a written
declaration to the arrestee stating that it is the determination of
the law enforcement agency having jurisdiction over the offense or
court that the arrestee is factually innocent of the charges for
which the person was arrested and that the arrestee is thereby
exonerated. Thereafter, the arrest shall be deemed not to have
occurred and the person may answer accordingly any question relating
to its occurrence.
   (g) The Department of Justice shall furnish forms to be utilized
by persons applying for the destruction of their arrest records and
for the written declaration that one person was found factually
innocent under subdivisions (a) and (b).
   (h) Documentation of arrest records destroyed pursuant to
subdivision (a), (b), (c), (d), or (e) that are contained in
investigative police reports shall bear the notation "Exonerated"
whenever reference is made to the arrestee. The arrestee shall be
notified in writing by the law enforcement agency having jurisdiction
over the offense of the sealing and destruction of the arrest
records pursuant to this section.
   (i) (1) Any finding that an arrestee is factually innocent
pursuant to subdivision (a), (b), (c), (d), or (e) shall not be
admissible as evidence in any action.
   (2) Notwithstanding paragraph (1), a finding that an arrestee is
factually innocent pursuant to subdivisions (a) to (e), inclusive,
shall be admissible as evidence at a hearing before the California
Victim Compensation and Government Claims Board.
   (j) Destruction of records of arrest pursuant to subdivision (a),
(b), (c), (d), or (e) shall be accomplished by permanent obliteration
of all entries or notations upon the records pertaining to the
arrest, and the record shall be prepared again so that it appears
that the arrest never occurred. However, where (1) the only entries
on the record pertain to the arrest and (2) the record can be
destroyed without necessarily affecting the destruction of other
records, then the document constituting the record shall be
physically destroyed.
   (k) No records shall be destroyed pursuant to subdivision (a),
(b), (c), (d), or (e) if the arrestee or a codefendant has filed a
civil action against the peace officers or law enforcement
jurisdiction which made the arrest or instituted the prosecution and
if the agency which is the custodian of the records has received a
certified copy of the complaint in the civil action, until the civil
action has been resolved. Any records sealed pursuant to this section
by the court in the civil actions, upon a showing of good cause, may
be opened and submitted into evidence. The records shall be
confidential and shall be available for inspection only by the court,
jury, parties, counsel for the parties and any other person
authorized by the court. Immediately following the final resolution
of the civil action, records subject to subdivision (a), (b), (c),
(d), or (e) shall be sealed and destroyed pursuant to subdivision
(a), (b), (c), (d), or (e).
   (l) For arrests occurring on or after January 1, 1981, and for
accusatory pleadings filed on or after January 1, 1981, petitions for
relief under this section may be filed up to two years from the date
of the arrest or filing of the accusatory pleading, whichever is
later. Until January 1, 1983, petitioners can file for relief under
this section for arrests which occurred or accusatory pleadings which
were filed up to five years prior to the effective date of the
statute. Any time restrictions on filing for relief under this
section may be waived upon a showing of good cause by the petitioner
and in the absence of prejudice.
   (m) Any relief which is available to a petitioner under this
section for an arrest shall also be available for an arrest which has
been deemed to be or described as a detention under Section 849.5 or
851.6.
   (n) This section shall not apply to any offense which is
classified as an infraction.
   (o) (1) This section shall be repealed on the effective date of a
final judgment based on a claim under the California or United States
Constitution holding that evidence that is relevant, reliable, and
material may not be considered for purposes of a judicial
determination of factual innocence under this section. For purposes
of this subdivision, a judgment by the appellate division of a
superior court is a final judgment if it is published and if it is
not reviewed on appeal by a court of appeal. A judgment of a court of
appeal is a final judgment if it is published and if it is not
reviewed by the California Supreme Court.
   (2) Any decision referred to in this subdivision shall be stayed
pending appeal.
   (3) If not otherwise appealed by a party to the action, any
decision referred to in this subdivision which is a judgment by the
appellate division of the superior court shall be appealed by the
Attorney General.
   (p) A judgment of the court under subdivision (b), (c), (d), or
(e) is subject to the following appeal path:
   (1) In a felony case, appeal is to the court of appeal.
   (2) In a misdemeanor case, or in a case in which no accusatory
pleading was filed, appeal is to the appellate division of the
superior court.

851.85.  Whenever a person is acquitted of a charge and it appears
to the judge presiding at the trial wherein such acquittal occurred
that the defendant was factually innocent of the charge, the judge
may order that the records in the case be sealed, including any
record of arrest or detention, upon the written or oral motion of any
party in the case or the court, and with notice to all parties to
the case. If such an order is made, the court shall give to the
defendant a copy of such order and inform the defendant that he may
thereafter state that he was not arrested for such charge and that he
was found innocent of such charge by the court.

851.86.  Whenever a person is convicted of a charge, and the
conviction is set aside based upon a determination that the person
was factually innocent of the charge, the judge shall order that the
records in the case be sealed, including any record of arrest or
detention, upon written or oral motion of any party in the case or
the court, and with notice to all parties to the case. If such an
order is made, the court shall give the defendant a copy of that
order and inform the defendant that he or she may thereafter state he
or she was not arrested for that charge and that he or she was not
convicted of that charge, and that he or she was found innocent of
that charge by the court. The court shall also inform the defendant
of the availability of indemnity for persons erroneously convicted
pursuant to Chapter 5 (commencing with Section 4900) of Title 6 of
Part 3, and the time limitations for presenting those claims.

851.90.  (a) (1) Whenever a person is diverted pursuant to a drug
diversion program administered by a superior court pursuant to
Section 1000.5 or is admitted to a deferred entry of judgment program
pursuant to Section 1000 or 1000.8, the person successfully
completes the program, and it appears to the judge presiding at the
hearing where the diverted charges are dismissed that the interests
of justice would be served by sealing the records of the arresting
agency and related court files and records with respect to the
diverted person, the judge may order those records and files to be
sealed, including any record of arrest or detention, upon the written
or oral motion of any party in the case, or upon the court's own
motion, and with notice to all parties in the case.
   (2) If the order is made, the clerk of the court shall thereafter
not allow access to any records concerning the case, including the
court file, index, register of actions, or other similar records.
   (3) If the order is made, the court shall give a copy of the order
to the defendant and inform the defendant that he or she may
thereafter state that he or she was not arrested for the charge.
   (4) The defendant may, except as specified in subdivisions (b),
(c), and (d), indicate in response to any question concerning the
defendant's prior criminal record that the defendant was not arrested
or granted statutorily authorized drug diversion or deferred entry
of judgment for the offense.
   (5) Subject to subdivisions (b), (c), and (d), a record pertaining
to an arrest resulting in the successful completion of a statutorily
authorized drug diversion or deferred entry of judgment program
shall not, without the defendant's permission, be used in any way
that could result in the denial of any employment, benefit, or
certificate.
   (6) Sealing orders made pursuant to this subdivision shall not be
forwarded to the Department of Justice to be included or notated in
the department's manual or electronic fingerprint image or criminal
history record systems. Any sealing order made pursuant to this
subdivision and received by the Department of Justice need not be
processed by the department.
   (b) The defendant shall be advised that, regardless of the
defendant's successful completion of a statutorily authorized drug
diversion or deferred entry of judgment program, the arrest upon
which the case was based shall be disclosed by the Department of
Justice in response to any peace officer application request, and
that, notwithstanding subdivision (a), this section does not relieve
the defendant of the obligation to disclose the arrest in response to
any direct question contained in any questionnaire or application
for a position as a peace officer, as defined in Section 830.
   (c) The defendant shall be advised that, regardless of the
defendant's successful completion of a statutorily authorized drug
diversion or deferred entry of judgment program, the arrest upon
which the case was based shall be disclosed by the Department of
Justice or the court in which the matter was heard in response to any
subsequent inquiry by the district attorney, court, probation
department, or counsel for the defendant concerning the defendant's
eligibility for any statutorily authorized drug diversion or deferred
entry of judgment program in the future.
   (d) A sealing order made pursuant to this section shall not apply
to any record or document received or maintained by the Department of
Justice; the court shall advise a defendant that, notwithstanding
the issuance of a sealing order pursuant to this section, the
Department of Justice shall continue to be able to maintain and
disseminate any records or documents received or maintained by the
department, as authorized by law.