BILL ANALYSIS
AB 2057
Page 1
Date of Hearing: March 23, 2010
Counsel: Kimberly A. Horiuchi
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2057 (Miller) - As Introduced: February 18, 2010
SUMMARY : Creates a new exception to the requirement that a
defendant charged with a felony face a preliminary examination
within 60 days to include instances where good cause for
continuance is determined for a jointly charged co-defendant
regardless of any waiver of time.
EXISTING LAW :
1)States at the time the defendant appears before the magistrate
for arraignment, if the public offense is a felony to which
the defendant has not pleaded guilty, as specified, the
magistrate, immediately upon the appearance of counsel, or if
none appears, after waiting a reasonable time therefor, shall
set a time for the examination of the case and shall allow not
less than two days, excluding Sundays and holidays, for the
district attorney and the defendant to prepare for the
examination. The magistrate shall also issue subpoenas, duly
subscribed, for witnesses within the state, required either by
the prosecution or the defense. Both the defendant and the
people have the right to a preliminary examination at the
earliest possible time, and unless both waive that right or
good cause for a continuance is found as specified, the
preliminary examination shall be held within 10 court days of
the date the defendant is arraigned or pleads, whichever
occurs later, or within 10 court days of the date criminal
proceedings are reinstated pursuant existing law. (Penal Code
Section 859b.)
2)Provides that whenever the defendant is in custody, the
magistrate shall dismiss the complaint if the preliminary
examination is set or continued beyond 10 court days from the
time of the arraignment, plea, or reinstatement of criminal
proceedings pursuant to existing law, and the defendant has
remained in custody for 10 or more court days solely on that
complaint, unless either of the following occur:
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a) The defendant personally waives his or her right to
preliminary examination within the 10 court days; or,
b) The prosecution establishes good cause for a continuance
beyond the 10-court-day period. [Penal Code Section
859b(a) and (b).]
3)Defines "good cause" as including, but is not limited to,
those cases involving allegations that a violation of one or
more of provisions of law related to the Child Abuse Neglect
or Reporting Act or a specified offense of the Child Abuse
Neglect or Reporting Act has occurred and the prosecuting
attorney assigned to the case has another trial, preliminary
hearing, or motion to suppress in progress in that court or
another court. Any continuance under this paragraph shall be
limited to a maximum of three additional court days. (Penal
Code Section 859b.)
4)States that if the preliminary examination is set or continued
beyond the 10-court-day period, the defendant shall be
released unless:
a) The defendant requests the setting of continuance of the
preliminary examination beyond the 10-court-day period;
b) The defendant is charged with a capital offense in a
cause where the proof is evident and the presumption great;
or,
c) A witness necessary for the preliminary examination is
unavailable due to the actions of the defendant. [Penal
Code Section 859b(1) to (3).]
5)States that in a felony case, when a defendant is not brought
to trial within 60 days of the defendant's arraignment on an
indictment or information, or reinstatement of criminal
proceedings pursuant to existing law, or, in case the cause is
to be tried again following a mistrial, an order granting a
new trial from which an appeal is not taken, or an appeal from
the superior court, within 60 days after the mistrial has been
declared, after entry of the order granting the new trial, or
after the filing of the remittitur in the trial court, or
after the issuance of a writ or order which, in effect, grants
a new trial, within 60 days after notice of the writ or order
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is filed in the trial court and served upon the prosecuting
attorney, or within 90 days after notice of the writ or order
is filed in the trial court and served upon the prosecuting
attorney in any case where the district attorney chooses to
resubmit the case for a preliminary examination after an
appeal or the issuance of a writ reversing a judgment of
conviction upon a plea of guilty prior to a preliminary
hearing. However, an action shall not be dismissed under this
paragraph if either of the following circumstances exists:
a) The defendant enters a general waiver of the 60-day
trial requirement. A general waiver of the 60-day trial
requirement entitles the superior court to set or continue
a trial date without the sanction of dismissal should the
case fail to proceed on the date set for trial. If the
defendant, after proper notice to all parties, later
withdraws, in open court, his or her waiver in the superior
court, the defendant shall be brought to trial within 60
days of the date of that withdrawal. Upon the withdrawal
of a general time waiver in open court, a trial date shall
be set and all parties shall be properly notified of that
date. If a general time waiver is not expressly entered,
subparagraph (B) shall apply.
b) The defendant requests or consents to the setting of a
trial date beyond the 60-day period. In the absence of an
express general time waiver from the defendant, or upon the
withdrawal of a general time waiver, the court shall set a
trial date. Whenever a case is set for trial beyond the
60-day period by request or consent, expressed or implied,
of the defendant without a general waiver, the defendant
shall be brought to trial on the date set for trial or
within 10 days thereafter. Whenever a case is set for
trial after a defendant enters either a general waiver as
to the 60-day trial requirement or requests or consents,
expressed or implied, to the setting of a trial date beyond
the 60-day period pursuant to this paragraph, the court may
not grant a motion of the defendant to vacate the date set
for trial and to set an earlier trial date unless all
parties are properly noticed and the court finds good cause
for granting that motion. [Penal Code Section
1382(a)(2)(A) and (B).]
FISCAL EFFECT : Unknown
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COMMENTS :
1)Author's Statement : According to the author, "Penal Code 859b
requires the magistrate to dismiss a felony complaint if a
defendant's preliminary hearing is not held within 60 days of
the date of arraignment, plea, or reinstatement of criminal
proceedings unless the defendant personally waives his or her
right to a preliminary hearing within the 60 days.
"Penal Code 1050.1, which applies in cases in which two or more
defendants are jointly charged, requires the trial court or
magistrate, when good cause is shown by one defendant to
continue his or her arraignment, preliminary hearing or trial,
to use the continuance upon motion of the prosecuting
attorney, to constitute good cause to continue the remaining
defendants' cases so as to maintain joinder.
"In Ramos v. Superior Court, a motion was made by one
co-defendant to continue the preliminary hearing and the other
co-defendant objected. The first co-defendant agreed to waive
time, the objecting co-defendant did not. This is a very
typical way to gain severance by default, which at the very
least makes it difficult to try defendants together in
superior court, or makes it functionally impossible to proceed
with one or more of the defendants due to proof issues created
by the 'empty chair' defense (i.e., the defendant on trial
shifting blame onto the missing co-defendant, which the
district attorney is not allowed to address by explaining the
procedural mechanism that thwarted a joint trial).
"The court held that because the language in section 859b is
mandatory and section 1050.1 does not expressly provide a good
cause exception to the 60-day rule in section 859b, in a case
where a co-defendant fails to waive the 60-day rule and a
preliminary hearing does not occur in that time period, the
co-defendant is entitled to a dismissal.
"The reason this holding is problematic is that many felony
cases of extreme complexity, with many pages of reports,
investigative audio and video recordings, business records,
and the like, will require defense attorneys to spend a large
amount of time in preparation. Different defendants, and
defense counsels, in the same case could have substantially
different theories of how best to defend against the charges.
One defendant and their counsel might feel completely prepared
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in a short time, whereas a joined defendant and their counsel
might feel the need for a much longer period of investigation
and preparation. The defendant moving for a continuance will
easily be able to substantiate the need for more time before
the preliminary hearing, and a continuance of that hearing to
a later date is a virtual certainty. However, all attendant
co-defendants in such a scenario would do best to refuse to
waive time. The holding in Ramos mandates a severance of
those defendants who would otherwise be properly jointly
charged and tried (and thus giving the defendants the benefits
that go with separate trials), or the prosecutor can hope
that, post preliminary hearing, a motion for joinder would be
feasible to re-join the defendants before trial.
"Amending Penal Code 859b to expressly include a Penal Code
1050.1 good cause exception to the 60-day rule would allow
prosecutors to maintain joinder in consolidated cases with
multiple defendants."
2)Right to a Speedy Trial : Both the Federal and State
Constitutions guarantee all criminal defendants the right to a
speedy and public trial. [U.S. Const., 6th Amend; Cal.
Const., art. I, 15; Penal Code Section 686(1).] "The right
to a speedy trial is fundamental and is imposed by the Due
Process Clause of the 14th Amendment on the states." [Barker
vs. Wingo (1972) 407 U.S. 514.] This guarantee imposes an
affirmative duty on the court, the prosecution, and the
defense to expedite criminal proceedings consistent with the
ends of justice. [Penal Code Section 1050(a).] According to
the U.S. Supreme Court in Wingo:
"The right to speedy trial is a more vague concept than other
procedural rights. It is, for example, impossible to
determine with precision when the right has been denied.
Courts cannot definitely say how long is too long in a system
where justice is supposed to be swift but deliberate. As a
consequence, there is no fixed point in the criminal process
when the state can put the defendant to the choice of either
exercising or waiving the right to a speedy trial. If, for
example, the state moves for a 60-day continuance, granting
that continuance is not a violation of the right to speedy
trial unless the circumstances of the case are such that
further delay would endanger the values the right protects.
It is impossible to do more than generalize about when those
circumstances exist. There is nothing comparable to the point
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in the process when a defendant exercises or waives his right
to counsel or his right to a jury trial." (Wingo at 521.)
The right to a speedy trial seems based on the notion that
evidence presented in a timely fashion is considered more
reliable. As time elapses, the integrity of evidence may be
compromised.
"The Legislature has also provided for a speedy and public trial
as one of the fundamental rights preserved to a defendant in a
criminal action. Penal Code Section 1382 constitutes a
legislative endorsement of dismissal as a proper judicial
sanction for violation of the constitutional guarantee of a
speedy trial and as a legislative determination that a trial
delayed more than the prescribed period is prima facie in
violation of a defendant's constitutional right. Thus the
accused is entitled to a dismissal if he is brought to trial
beyond the time fixed in Penal Code Section 1382." [Rhinehart
vs. Municipal Court (1984) 35 Cal. 3rd 772, 776.]
The Wingo Court articulated a preference for a four-factor test
to determine if the defendant's right to a speedy trial is
violated: length of the delay, the reason for the delay, the
defendant's assertion of his or her right, and the prejudice
to the defendant. (Wingo at 530.) The Court further
clarified that such a determination can only occur on a
case-by-case basis. (Wingo at 529.)
3)Statutory Time Frame : Depending on the type of criminal case,
misdemeanor of felony, and the custody status of the
defendant, he or she must be brought to trial within a
particular period of time. Generally, for misdemeanors, an
out-of-custody defendant must be brought to trial within 45
days of arraignment; 30 days if the defendant is in custody.
[Penal Code Section 1382(a)(3); but see Penal Code Section
1382(a)(3)(A) and Baustert vs. Superior Court (2005) 129
Cal.App. 4th 1269.] If the defendant is charged with a
felony, he or she must be brought to trial within 60 days
without reference to custody status. [Penal Code Section
1382(b)(2); but see Penal Code Section 1382(a)(2)(A)(B).]
Failure to bring a defendant to trial within the statutory
time frame, barring good cause (explained below), is
considered a violation of his or her right to a speedy trial
and the charges are dismissed. [Penal Code Section
1382(a)(b).]
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A continuance beyond the statutory time frame may be granted in
certain circumstances. Most often, the defendant enters a
general time waiver, meaning the case may be continued at the
convenience of the court, the parties or witnesses. Both the
prosecution and the defendant may also ask for a "good cause"
continuance. "Good cause" is defined by who is requesting the
continuance. The defendant, as noted above, may enter a
general time waiver, but for the defense to ask for a
continuance for good cause relates mostly to the defendant's
actions (e.g., he or she is unable or unwilling to appear in
court). The prosecution may ask for a "good cause"
continuance if, for example, a witness or attorney is ill or
unavailable or in certain cases, the prosecutor must appear in
another trial. [See Penal Code Section 859b(b) specifically
defines "good cause" in requesting a continuance in a
preliminary hearing.]
4)Preliminary Examinations : The vast majority of felony cases
in California begin with the filing of a complaint. (Cal.
Const., art. I, 14.) Once the defendant is charged with a
felony, a preliminary hearing is scheduled to determine if
enough evidence exists to hold the defendant over for trial.
[Penal Code Section 872; People vs. Slaughter (1984) 35
Cal.3rd 629.] The judge in the preliminary hearing must find
that sufficient cause exists to believe that the defendant
committed the alleged crime. [Penal Code Section 872(a).]
The People must then file the complaint in the trial court
within 15 days. [Penal Code Section 739; Penal Code Section
1382(a)(1).] Since the passage of Proposition 115 in 1990,
preliminary hearings usually entail testimony from the
arresting officer or, if necessary, a witness needed to prove
an element of the crime. The arresting officer(s) may testify
as to hearsay statements made by others to prove the elements
of the crime. [Williams vs. Superior Court (1991) 54 Cal.3rd
1063.]
Penal Code Section 859b was enacted in 1963 and states if the
defendant is in custody, he or she must appear at a
preliminary hearing within 10 days unless he or she waives or
the prosecutor is able to show "good cause". A showing of
"good cause" in Penal Code Section 859b only extends the
10-day period an additional three days. However, regardless
of the defendant's custody status, he or she must be brought
to a preliminary hearing within 60 days or the court must
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dismiss the complaint. [Penal Code Section 859b(b).] This
appears to be an absolute right in which the court has no
discretion.
However, the prosecutor may re-file the charges beginning the
time again as double jeopardy has not attached at this stage
of the criminal proceeding. [See Penal Code Section 1387(b);
Penal Code Section 1387.1; Greenberger vs. Superior Court
(1991) 219 Cal.App. 3rd 487.] In cases of multiple
defendants, if Defendant A enters a general time waiver and
Defendant B does not, the prosecutor may conduct two separate
preliminary hearings and still try the defendants together.
5)Proposition 115 and Penal Code Section 1050.1 : In June 1990,
the voters passed Proposition 115, "Crime Victims Justice
Reform Act", which made numerous changes to Article I of the
California Constitution. [See California Attorney General,
Full text of Proposition 115, Section 1(c), Primary Election
(June 5, 1990).] Specifically, and among other things, the
initiative states hearsay evidence is admissible at
preliminary hearings, preliminary hearings may no longer be
used for discovery purposes, and admission of hearsay evidence
was designed to accelerate the trial process. [See California
Constitution, Art. I, Section 30(b).] Proposition 115 also
stated a preference for joinder of criminal cases and
defendants involving the same crime or victims. [Cal. Const.,
art. I, 30; Penal Code Section 1098(a); People vs. Keenan
(1988) 46 Cal. 3rd 478, 499.]
Penal Code Section 1050.1, included in the Penal Code by
Proposition 115, states,
"In any case in which two or more defendants are jointly charged
in the same complaint, indictment, or information, and the
court or magistrate, for good cause shown, continues the
arraignment, preliminary hearing, or trial of one or more
defendants, the continuance shall, upon motion of the
prosecuting attorney, constitute good cause to continue the
remaining defendants' case so as to maintain joinder. The
court or magistrate shall not cause jointly charged cases to
be severed due to the unavailability or unpreparedness of one
or more defendants unless it appears to the court or
magistrate that it will be impossible for all defendants to be
available and prepared within a reasonable period of time."
(Penal Code Section 1050.1.)
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Despite Penal Code Section 859b and 1050.1 co-existing for
almost 20 years, they do appear to be in conflict. As
mentioned above, if a defendant does not waive time, he or she
must appear at a preliminary hearing within 60 days of
arraignment regardless of the co-defendant's status. However,
Penal Code Section 1050.1 clearly authorizes a good cause
continuance in co-defendant cases in order to maintain
joinder. Also, as noted above, the prosecutor may conduct two
separate preliminary hearings without filing a motion to sever
the defendants. The prosecutor simply files a joint complaint
or a motion to join in superior court after the preliminary
hearing. As noted above, Proposition 115 created a statutory
preference for joinder where appropriate; a motion to join the
defendants after the preliminary hearing will likely always be
successful. It is also important to note that preliminary
hearings should occur relatively soon after arrest as it is,
after all, a determination that probable cause exists for that
arrest. [Gerstein vs. Pugh (1975) 420 U.S. 103.]
6)Ramos vs. Superior Court and other Relevant Case law : The
California Court of Appeals addressed the conflict between
Penal Code Section 859b and 1050.1 in Ramos vs. Superior Court
of Los Angeles (2007) 146 Cal.App. 4th 719 (hereinafter
Ramos). In Ramos, the Court of Appeals found that Penal Code
Section 859b conferred an "absolute statutory right to a
preliminary hearing within 60 days of arraignment absent a
personal waiver." (Ramos at 727.)
The court held, "As an initial matter, the 60-day rule in
section 859b, absent a defendant's personal waiver of the
right to a preliminary hearing within 60 days of arraignment,
is absolute. Whether or not good cause exists to continue the
hearing, absent a personal waiver, the 60-day limit is a bar
to extending the hearing date. In this regard, the 60-day
provision of section 859b is unlike that section's initial
10-court-day period in which the preliminary hearing is to be
held, which may be extended based on a showing of good cause.
(See Cal. Judges Bench guide 92: Preliminary Hearings (CJER
rev. 2004) 92.37, Consequences of Untimely Hearing ['The
magistrate must dismiss the complaint if the preliminary
hearing is not held within 60 calendar days from the date of
the arraignment or plea, whichever is later, unless the
defendant personally waives the right to a preliminary hearing
within 60 days. This rule applies whether or not the defendant
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is in custody and whether or not good cause exists for the
delay']; see also 2 Rucker & Overland, Cal. Criminal
Practice.: Motions, Jury Instructions and Sentencing (2006)
Speedy Trial, 21:14 ['There is no 'good cause' exception to
the 60-day rule'].)"
"Indeed, the fact the Legislature included a good-cause
exception to the 10-court-day rule in section 859b yet omitted
any such exception from the 60-day rule is a strong indication
of its intent that a good-cause exception not apply to the
60-day rule." (Ramos at 731.)
However, in the alternative, In re Samano (1995) 31 Cal.App.4th
984 (hereinafter Samano), the Court of Appeal held that, "The
court does not read Section 859b in isolation. To do so would
negate the letter, the spirit and the fair import of Cal.
Penal Code Section 1050.1, California Constitution, Article I,
Section 30(a) and the bail provisions set forth in the state
constitution and statutes." (Samano at 990.) "A defendant's
statutory rights are merely supplementary to and a
construction of the constitution. They do not carry the force
of weight of constitutionally mandated imperatives. The
defendant's statutory right to speedy trial is not without
limitation." [Samano at 991 quoting People vs. Kowalski
(1987) 196 Cal.App. 3rd 174, 179.] "Cal Penal Code Section
859b must be harmonized with Cal. Penal Code Section 1050.1 in
a multiple defendant case; the request of one properly joined
defendant for a continuance of the preliminary examination
with good cause shall be deemed a request of all jointly
charged defendants." (Samano at 993.)
Finally, Smith vs. Superior Court (2009) 178 Cal.App. 4th 373,
which has been superseded by grant of review, raises the same
issue of conflict between the defendant's right to a speedy
trial and the statutory good cause in multiple defendant cases
expressed in Penal Code Section 1050.1. (Smith vs. Superior
Court is cited here only to demonstrate a conflict in case law
and that the issue posited by this bill is pending appeal to
the California Supreme Court. It is not cited as binding
authority to be considered by the Committee.) Smith attempted
to harmonize the conflict between Penal Code Sections 1050.1
and 1382(a)(2)(B) which authorizes a 10-day extension of the
60-day trial rule where one defendant consents. In that case,
the court decided that the 10-day grace period does not apply
to each co-defendant but only the co-defendant who consents.
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Although the court specified that it did not construe Penal
Code Section 1050.1 and Section 1382(a)(2)(B) as incongruous
and those statutes may be read together. (Smith at 384.)
This case is currently on appeal to the California Supreme
Court. Additional briefing was requested in January 2010. It
is possible the Court will review and resolve this conflict so
as to avoid any further confusion or legislation.
Despite the stated desire for joinder as an element for judicial
expediency expressed in Proposition 115, the defendant has a
constitutional, not just a statutory right to a speedy trial
without respect to joinder. The statutory right referenced by
the Court in Samano appears to be the 60-day time frame, but
the Court in Wingo explicitly states that the right to a
speedy trial is a fundamental constitutional right. However,
simply because a defendant is joined does not abrogate his or
her Sixth Amendment right. [Klopfer vs. North Carolina (1967)
386 U.S. 213; Townsend vs. Superior Court (1975) 15. Cal. 3rd
774.] Case-by-case determinations ought to be considered
without reference to Penal Code Section 1050.1 in order to
ensure the defendant's right to a speedy trial is not rendered
meaningless. The Wingo Court stated, "An inquiry into a
speedy trial claim necessitates a functional analysis of the
right in a particular context of the case. The right to a
speedy trial is necessarily relative. It is consistent with
delays and depends on circumstances." (Wingo at 522.) Hence,
perhaps a court could find that the defendant's right to a
speedy trial is not jeopardized by a continuance of longer
than 60 days. However, it should not rest solely on his or
her status as a co-defendant.
7)Arguments in Support : According to the California District
Attorneys Association , "Ramos v. Superior Court (2007) 146
Cal.App.4th 719 illustrates a conflict between Penal Code
section 859b's requirement that a magistrate dismiss a felony
complaint if a defendant's preliminary hearing is not held
within 60 days of arraignment absent a personal time waiver,
and Penal Code section 1050.1's definitional statement that
good cause for a continuance of one jointly charged defendant
is good cause for all validly joined defendants.
"Penal Code section 1050.1, which applies in cases in which two
or more defendants are jointly charged, requires the trial
court or magistrate, when good cause is shown by one defendant
to continue his or her arraignment, preliminary hearing or
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trial, to use the continuance upon motion of the prosecuting
attorney, to constitute good cause to continue the remaining
defendants' cases so as to maintain joinder.
"In Ramos, a motion was made by one co-defendant to continue the
preliminary hearing and the other co-defendant objected. The
first co-defendant agreed to waive time; the objecting
co-defendant did not. T his is a very typical way to gain
severance by default, which at the very least makes it
difficult to try defendants together in superior court, or
makes it functionally impossible to proceed with one or more
of the defendants due to proof issues created by the 'empty
chair' defense (i.e., the defendant on trial shifting blame
onto the missing co-defendant, which the district attorney is
not allowed to address by explaining the procedural mechanism
that thwarted a joint trial).
"The court held that because the language in section 859b is
mandatory and section 1050.1 does not expressly provide a good
cause exception to the 60-day rule in section 859b, in a case
where a co-defendant fails to waive the 60-day rule and a
preliminary hearing does not occur in that time period, the
co-defendant is entitled to a dismissal.
"The reason this holding is problematic is that many felony
cases of extreme complexity, with many pages of reports,
investigative audio and video recordings, business records,
and the like, will require defense attorneys to spend a large
amount of time in preparation. Different defendants, and
defense counsels, in the same case could have substantially
different theories of how best to defend against the charges.
One defendant and his or her counsel might feel completely
prepared in a short time, whereas a joined defendant and his
or her counsel might feel the need for a much longer period of
investigation and preparation. The defendant moving for a
continuance will easily be able to substantiate the need for
more time before the preliminary hearing, and a continuance of
that hearing to a later date is a virtual certainty. However,
all attendant co-defendants in such a scenario would do best
to refuse to waive time. The holding in Ramos mandates a
severance of those defendants who would otherwise be properly
jointly charged and tried (and thus giving the defendants the
benefits that go with separate trials), or the prosecutor can
hope that, post-preliminary hearing, a motion for joinder
would be feasible to re-join the defendants before trial.
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"Amending Penal Code section 859b to expressly include a Penal
Code section 1050.1 good cause exception to the 60-day rule
would allow prosecutors to maintain joinder in consolidated
cases with multiple defendants."
8)Arguments in Opposition :
a) California Public Defenders Association , "This proposed
legislation would amend Penal Code Section 859b to allow
the continuance of a jointly charged defendant's
preliminary hearing beyond the 60-day time period
regardless of whether the jointly charged defendant waives
his right to a 60-day preliminary hearing. Specifically,
this proposed legislation would operate by allowing the
court to find good cause for a continuance under Penal Code
Section 1050.1.
"This seemingly small change in criminal procedure would
wreck havoc. Under existing law, Penal Code Section 1050.1
allows the court, after finding good cause, to continue
jointly charged defendants' preliminary hearings and trials
within the statutory time limits in order to prevent the
prosecution from being forced to sever the defendants'
cases.
"Penal Code Section 1050.1 is designed to strike a balance
between co-defendants' due process rights, prosecutorial
discretion and judicial economy. It allows the prosecution
to determine whether to proceed against co-defendants
separately or jointly and saves valuable court time.
Because it does not supersede statutory and constitutional
time limits, it strikes an appropriate balance.
"This proposed legislation upends that appropriate balance
because it may result in allying the prosecution with the
more serious offender. Co-defendants interests may be
antithetical to each other - either because one defendant
is innocent or guilty of a lesser offense. The result of
implementation of this measure may be to force innocent
co-defendants to plead guilty in order to get out of
custody to save their jobs, families, and educations.
"An example might be a situation where a concealed handgun is
found in a car with two occupants. The actual possessor -
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the passenger, and the innocent party - the driver of the
car are charged. If the case proceeded to a proceeded to a
preliminary hearing in a timely manner, the evidence would
be sufficient to hold only the passenger to answer and the
driver would be discharged and released. Under this
proposed legislation, the guilty passenger might be able to
bail and waive time, while the innocent driver who cannot
afford bail languishes in custody.
"When innocent or less culpable defendants are released, jobs
are saved, lives are salvaged, courtrooms are available,
and police and sheriffs' budgets are saved. Daily
preliminary hearings are held in courtrooms throughout
California. Unlike trials which can take weeks or months,
preliminary hearings range in length from 30 minutes to
several days. The preliminary hearing magistrate
determines whether a crime has been committed and whether
there is probable cause to believe that the defendant(s)
committed the offense. A number of preliminary hearings
result in in-custody defendants being released either
because the defendants are discharged o r plead to lesser
felony offenses or misdemeanors and are released. Given
the short duration, it is not a significant hardship for
prosecutors to sever co-defendants' preliminary hearings to
comply with statutory deadlines."
b) California Attorneys for Criminal Justice : "Individuals
accused of felony charges have a right to a preliminary
examination within sixty days of an arraignment. During
this hearing the prosecutor is required to present evidence
that a crime was committed and that the accused was indeed
the person who violated the law. The defendant has an
opportunity to cross-examine witnesses presented by the
prosecution. While the evidentiary threshold is relatively
low, charges may be dismissed if the People fail to make
its case. Often innocent people are exonerated without
having to endure extended periods of incarceration and the
demands of a lengthy trial. Under most circumstances,
this 60-day deadline cannot be violated unless the accused
voluntarily waives this right. AB 2507 would permit a
court to delay a preliminary hearing beyond the sixty days
and over the objection of an accused if the delay is
requested by a co-defendant.
"AB 2507 allows a co-defendant, who may have adverse
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interests, to control whether or not she is granted a
timely preliminary examination. Someone can spend an
extended amount of time in county jail awaiting her
preliminary examination simply because of a co-defendant;
even if that co-defendant has accused the other of
committing the underlying crime. It is extremely dangerous
to give such power to someone who is neither obligated, nor
many times inclined, to be concerned with the best
interests of a co-defendant. There may be rare occasions
when such a delay beyond the 60-day deadline is warranted
for one co-defendant, but not the other. However, current
law provides a prosecutor with multiple options that do not
undermine a person's right to speedy proceedings.
"For example, a prosecutor could simply conduct a separate
preliminary examination of a single co-defendant in order
to preserve the sixty-day deadline. In the alternative,
the prosecution could dismiss charges, thereby allowing the
accused to be released from jail custody; charges could be
re-filed without prejudice pursuant to Penal Code section
1387(a). AB 2507 is an unnecessary infringement of an
individual's right to a speedy preliminary hearing that
could result in extended incarceration. Unfortunately,
this measure permits a co-defendant to control whether or
not a speedy hearing is granted or denied.
REGISTERED SUPPORT / OPPOSITION :
Support
California District Attorneys Association
California State Sheriffs' Association
Opposition
California Public Defenders Association
California Attorneys for Criminal Justice
Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
319-3744