                                     TO BE PUBLISHED IN THE OFFICIAL REPORTS

                                          OFFICE OF THE ATTORNEY GENERAL
                                                    State of California

                                                  DANIEL E. LUNGREN
                                                     Attorney General
                                         ______________________________________

                                       OPINION             :
                                                           :       No. 96-803
                                       of                  :
                                                           :       March 21, 1997
                             DANIEL E. LUNGREN             :
                                Attorney General           :
                                                           :
                             GREGORY S. GONOT              :
                             Deputy Attorney General       :
                                                           :
                    ______________________________________________________________________

                    THE HONORABLE THOMAS W. SNEDDON, JR., DISTRICT ATTORNEY, COUNTY
         OF SANTA BARBARA, has requested an opinion on the following questions:

                          1. When an arrest warrant or bench warrant is issued after a defendant has failed to appear
         in court upon being released from the county jail and the defendant is rearrested in another county, which
         agency bears the cost of transporting the defendant back to the original county?

                          2. When a warrant for rearrest is issued for a violation of probation and the defendant is
         rearrested in another county, which agency bears the cost of transporting the defendant back to the original
         county?

                                                        CONCLUSIONS

                          1. &nbspWhen an arrest warrant or bench warrant is issued after a defendant has failed to
         appear in court upon being released from the county jail and the defendant is rearrested in another county, the
         law enforcement agency that initiated the prosecution bears the cost of transporting the defendant back to the
         original county.

                          2. When a warrant for rearrest is issued for a violation of probation and the defendant is
         rearrested in another county, the probation department bears the cost of transporting the defendant back to the
         original county.

                                                           ANALYSIS

                           The two questions presented for resolution concern the costs of transporting a criminal
         defendant from one county to another. In the first situation, the defendant was booked
         Footnote No. 1 into the county jail by a city police officer, was released from custody, and was then rearrested
         in another county after he failed to appear in court. In the second situation, the defendant was convicted, was
         placed upon probation, and was rearrested in another county for violating the terms of his probation. In both
         cases, a judge in the original county issued a warrant for the defendant's arrest, and the defendant was

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         transported back to the original county. Which government agency pays for the transportation costs?

                          1. Defendant Booked Into the County Jail, Released, and Rearrested in Another
                             County

                           Generally speaking, after being booked into a county jail for a misdemeanor or felony
         charge, a criminal defendant may gain his release by posting bail (Pen. Code, § 1268, et seq.),
         Footnote No. 2 being "cite released" by the sheriff upon a promise to appear (§§ 818, 827.1), or being released
         on his own recognizance by the court (§§ 1270, 1318, 1318.1, 1319). If the defendant fails to appear for his
         court date, the local law enforcement agency (e.g., the sheriff or a city police department) that initiated the
         prosecution may obtain an arrest warrant or bench warrant for his arrest. (§§ 813-816, 978.5-984.) "Warrants
         of arrest and bench warrants are commands to peace officers to bring persons before the court." (66
         Ops.Cal.Atty.Gen. 256, 257 (1983).)

                            Two statutes govern our analysis of the first question. Section 821 sets forth the procedures
         to be utilized following an arrest for a felony:

                         "If the offense charged is a felony, and the arrest occurs in the county in which the
               warrant was issued, the officer making the arrest must take the defendant before the magistrate
               who issued the warrant or some other magistrate of the same county.

                           "If the defendant is arrested in another county, the officer must, without unnecessary
               delay, inform the defendant in writing of his right to be taken before a magistrate in that county,
               note on the warrant that he has so informed defendant, and, upon being required by defendant,
               take him before a magistrate in that county, who must admit him to bail in the amount specified
               in the endorsement referred to in Section 815a, and direct the defendant to appear before the
               court or magistrate by whom the warrant was issued on or before a day certain which shall in no
               case be more than 25 days after such admittance to bail. If bail be forthwith given, the magistrate
               shall take the same and endorse thereon a memorandum of the aforesaid order for the appearance
               of the defendant, or, if the defendant so requires, he may be released on bail set on the warrant
               by the issuing court, as provided in Section 1269b of this code, without an appearance before a
               magistrate.

                            "If the warrant on which the defendant is arrested in another county does not have
               bail set thereon, or if the defendant arrested in another county does not require the arresting
               officer to take him before a magistrate in that county for the purpose of being admitted to bail, or
               if such defendant, after being admitted to bail, does not forthwith give bail, the arresting officer
               shall immediately notify the law enforcement agency requesting the arrest in the county in which
               the warrant was issued that such defendant is in custody, and thereafter such law enforcement
               agency shall take custody of the defendant within five days, or five court days if the law
               enforcement agency requesting the arrest is more than 400 miles from the county in which the
               defendant is held in custody, in the county in which he was arrested and shall take such
               defendant before the magistrate who issued the warrant, or before some other magistrate of the
               same county. " (Italics added.)

         Section 822 provides nearly identical procedures to be used in the event of an arrest for a misdemeanor:

                           "If the offense charged is a misdemeanor, and the defendant is arrested in another
               county, the officer must, without unnecessary delay, inform the defendant in writing of his right
               to be taken before a magistrate in that county, note on the warrant that he has so informed
               defendant, and, upon being required by defendant, take him before a magistrate in that county,
               who must admit him to bail in the amount specified in the indorsement referred to in Section
               815      if    b il i      ifi d th      it t         t b il if th d f d t i d itt d t b il th

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               815a, or if no bail is specified, the magistrate may set bail; if the defendant is admitted to bail the
               magistrate shall direct the defendant to appear before the court or magistrate by whom the
               warrant was issued on or before a day certain which shall in no case be more that 25 days after
               such admittance to bail. If bail be forthwith given, the magistrate shall take the same and indorse
               thereon a memorandum of the aforesaid order for the appearance of the defendant.

                           "If the defendant arrested in another county on a misdemeanor charge does not
               require the arresting officer to take him before a magistrate in that county for the purpose of
               being admitted to bail, or if such defendant, after being admitted to bail, does not forthwith give
               bail, the arresting officer shall immediately notify the law enforcement agency requesting the
               arrest in the county in which the warrant was issued that such defendant is in custody, and
               thereafter such law enforcement agency shall take custody of such defendant within five days in
               the county in which he was arrested and shall take such defendant before the magistrate who
               issued the warrant, or before some other magistrate of the same county."

                           "If a defendant is arrested in another county on a warrant charging the commission of
               a misdemeanor, upon which warrant the amount of bail is indorsed as provided in Section 815a,
               and defendant is held in jail in the county of arrest pending appearance before a magistrate, the
               officer in charge of the jail shall, to the same extent as provided by Section 1269b, have
               authority to approve and accept bail from defendant in the amount indorsed on the warrant, to
               issue and sign an order for the release of the defendant, and, on posting of such bail, shall
               discharge defendant from custody." (Italics added.)

                           We have previously addressed the scope of the terms contained in sections 821 and 822 that
         refer to the responsibilities of "the law enforcement agency requesting the arrest." In 1958, we were asked
         whether the costs of returning a defendant from another county were chargeable to the City of Stockton or the
         County of San Joaquin where city police officers had initiated the prosecution. (31 Ops.Cal.Atty.Gen. 141
         (1958).) We stated:

                           "The investigation and prevention of felony and misdemeanor offenses occurring
               within the corporate city limits is the function of the city police department. Although the sheriff
               exercises jurisdiction concurrent with the various police departments, the police departments of
               the various municipalities throughout the state have been chiefly responsible for the prevention
               and detection of crime within their respective corporate limits. The police function includes the
               arrest of persons for violations occurring within a city. The cost of effecting the arrest, including
               the cost of transporting the prisoner, is properly attributable to the city as part of the cost of
               police protection.

                           "Furthermore, it should be noted that section 821 of the Penal Code places the duty
               upon the law enforcement agency requesting the arrest in another county to take custody of said
               arrested felon, and to return him before the magistrate who issued the warrant. It is thus the
               express duty of the Stockton Police Department to transport a felon to Stockton where he has
               been arrested in another county pursuant to a warrant forwarded by the Stockton Police
               Department." (Id., at pp. 142-143.)

                           In 47 Ops.Cal.Atty.Gen. 58 (1966) we were asked whether a municipal court marshal who
         received an arrest warrant and forwarded it to another county was the "law enforcement agency requesting
         the arrest" for purposes of transporting the prisoner back to the original county. We concluded:

                          "In the typical criminal case a warrant of arrest is issued only after a complaint
               charging a public offense has been filed with a magistrate. Pen. Code § 813. The criminal
               complaint which affords the basis for the issuance of the warrant of arrest is ordinarily secured
               from the district attorney by the law enforcement agency which has investigated the offense In

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               from the district attorney by the law enforcement agency which has investigated the offense. In
               this context, it seems apparent that when sections 821 and 822 of the Penal Code use the phrase
               `law enforcement agency requesting the arrest,' they refer to the agency which has investigated
               the offense and secured the issuance of the complaint from the district attorney which afforded
               the basis for the issuance of the warrant of arrest." (Id., at p. 59.)

                           In another 1966 opinion, we were asked to determine which agency was responsible for
         returning a defendant from another county if the warrant was issued at the request of (1) a state agency, (2) a
         city police department, or (3) some other law enforcement agency. (48 Ops.Cal.Atty.Gen. 8 (1966).) In
         accordance with our earlier opinion that year, we concluded that where the warrant of arrest was issued at the
         request of a city police department, the duty of returning the prisoner from the other county would fall upon
         the city, and where the warrant was issued at the request of some other state or local law enforcement agency,
         the duty of returning the prisoner would fall on that law enforcement agency. (Id., at p. 9.)

                            Here, the sheriff has had custody of the defendant in the county jail, unlike the sheriff in 31
         Ops.Cal.Atty.Gen. 141, supra. Such fact, however, does not shift the duty and cost of transporting the
         defendant from "the agency which investigated the offense . . ." (47 Ops.Cal.Atty.Gen., supra, at 58) for
         purposes of the governing statutes. If a city police department was the investigating agency, it will remain
         liable for the transportation costs regardless of where the booking of the defendant took place. Neither
         section 821 nor section 822 changes the rules based upon the booking location.

                           We conclude in answer to the first question that when an arrest warrant or bench warrant is
         issued after a defendant has failed to appear in court upon being released from the county jail and the
         defendant is rearrested in another county, the law enforcement agency that initiated the prosecution, i.e.,
         investigated the offense and secured the issuance of the complaint, bears the cost of transporting the
         defendant back to the original county.

                           2. Defendant Rearrested in Another County After Violating the Terms of Probation

                           Subdivision (a) of section 1203.2 provides:

                           "At any time during the probationary period of a person released on probation under
               the care of a probation officer pursuant to this chapter, or of a person released on conditional
               sentence or summary probation not under the care of a probation officer, if any probation officer
               or peace officer has probable cause to believe that the probationer is violating any term or
               condition of his or her probation or conditional sentence, the officer may, without warrant or
               other process and at any time until the final disposition of the case, rearrest the person and
               bring him or her before the court or the court may, in its discretion, issue a warrant for his or
               her rearrest. Upon such rearrest, or upon the issuance of a warrant for rearrest the court may
               revoke and terminate such probation if the interests of justice so require and the court, in its
               judgment, has reason to believe from the report of the probation officer or otherwise that the
               person has violated any of the conditions of his or her probation, has become abandoned to
               improper associates or a vicious life, or has subsequently committed other offenses, regardless
               whether he or she has been prosecuted for such offenses. . . ." (Italics added.)

                          A person has been convicted and placed on probation by a court. Thereafter, he fails to
         comply with the terms of his probation. Upon being rearrested in another county pursuant to a warrant issued
         under the terms of subdivision (a) of section 1203.2, which law enforcement agency must bear the
         transportation costs of returning the defendant to the original county?

                          The chief probation officer of a county is an appointee of the superior court, except in a
         charter county, where he may be appointed by the board of supervisors. (§ 1203.6.) Each probation officer
         has the status and powers of a peace officer. (§ 830.5; Code Civ. Proc., § 131.4; 72 Ops.Cal.Atty.Gen 167


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         (1967).) A person placed on probation is the responsibility of the county probation department in that he is
         "committed to the care of the probation officer" during the period of his probation. (§ 1203.10). The
         probation officer is required to report to the court any violation of the terms and conditions of probation by
         the person placed in the officer's care. (§ 1203.12.) As indicated in section 1203.2, a probation officer's
         powers with respect to a probationer are exceedingly broad. Expenses incurred by probation officers in the
         performance of their duties are a charge upon the county. (Code Civ. Proc., § 131.6.)

                           We note that a defendant's violation of the terms and conditions of probation may occur long
         after he has committed the misdemeanor or felony offense for which he was convicted. The violation may
         have little to do with the original charge. For example, a warrant may issue for the failure to report to the
         probation officer, for the commission of unrelated crimes in another jurisdiction, or for the failure to attend
         mandated probation department programs.

                           Given these circumstances and the broad statutory authority of probation officers, we view
         the county probation department as the law enforcement agency that bears the responsibility for enforcing the
         terms and conditions of probation for all persons placed in its care. It is of no consequence that another local
         law enforcement agency initiated prosecution of the initial offense. Once the person is placed under the care
         of a probation officer, the expenses of transporting the person from another county pursuant to a warrant for
         violating the terms of probation would be the responsibility of the probation department. The probation
         department is the law enforcement agency that is requesting the arrest of the probationer.

                           We conclude in answer to the second question that when a warrant for rearrest is issued for a
         violation of probation and the defendant is rearrested in another county, the probation department bears the
         cost of transporting the defendant back to the original county.

                                                                    *****

         Footnote No. 1
         "To `book' signifies the recordation of an arrest in official police records, and the taking by the police of fingerprints and
         photographs of the person arrested, or any of these acts following an arrest." (Pen. Code, § 7, subd. 21.)
         Footnote No. 2
         All undesignated section references hereafter are to the Penal Code.




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