BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
5
9
SB 59 (Huff)
As Amended April 21, 2009
Hearing date: April 28, 2009
Penal Code
MK:mc
CRIMINAL PROCEDURE: TRIALS: CONTINUANCES
HISTORY
Source: Author
Prior Legislation: AB 1424 (Davis) - Chapter 152, Stats. 2008
(relevant portion deleted in Assm. Public Safety)
AB 2814 (Koretz) - failed Senate Public Safety,
2006
AB 1050 (Pacheco) - not heard Assm. Public Safety,
2004
AB 1273 (Nakanishi) - Ch. 133, Stats. 2003
AB 2653 (Chu) - Ch. 788, Stats. 2002
AB 2125 (Pacheco) - Ch. 268, Stats. 2000
SB 69 (Murray) - Ch. 580, Stats. 1999
AB 501 (Nakano) - Ch. 382, Stats. 1999
AB 1754 (Havice) - Ch. 61, Stats. 1998
SB 215 (Alpert) - Ch. 69, Stats. 1997
SB 1292 (Maddy) - Ch. 897, Stats. 1989
AB 452 (Bronzan) - Ch. 461, Stats. 1987
Support: California District Attorneys Association; California
Narcotic Officers Association; California Police Chiefs
Association; California Peace Officers' Association;
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Crime Victims United; Peace Officers Research
Association of California (PORAC); Mothers Taking
Action Against Gang Violence; Crime Victims Action
Alliance
Opposition:California Judges Association; Judicial Council of
California
KEY ISSUE
SHOULD THE COURT BE REQUIRED TO CONTINUE A GANG TRIAL OR HEARING
DATE FOR UP TO TEN COURT DAYS WHERE THE PROSECUTOR ASSIGNED HAS
ANOTHER TRIAL, PRELIMINARY HEARING, OR MOTION TO SUPPRESS?
PURPOSE
The purpose of this bill is to require the court to continue a
gang trial or hearing date for up to ten court days where the
prosecutor assigned has another trial or hearing in progress.
Existing Constitutional law provides that both the People and a
defendant have a right to a speedy trial. (California
Constitution, Article I, Section 13.)
Existing law states that the People, the defendant, the victims
and other witnesses have the right to an expeditious disposition
and to that end it shall be the duty of all courts and all
counsel to expedite these proceedings to the greatest degree
that is consistent with the ends of justice. (Pen. Code
1050(a).)
Existing law provides that in certain cases involving murder,
sexual assault, and child abuse that reasonable efforts must be
made to avoid setting that trial on the same day that another
trial is set involving the same prosecuting attorney. (Pen.
Code 1048.1.)
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Existing law provides that a trial or court hearing may not be
continued without a two-day advance written notice justifying
the continuance for good cause. (Pen. Code 1050(b).)
Existing law requires that criminal cases be given precedence
over, and set for trial and heard without regard to the pendency
of, any civil matter or proceeding, and that death penalty cases
be given precedence over other criminal and civil matters.
(Pen. Code 1050(a).)
Existing law provides that in certain murder, stalking, hate
crime, sexual assault, domestic violence and child abuse cases,
the court may find good cause to continue the trial or hearing
for up to 10 days where the prosecutor has another trial,
preliminary hearing or motion to suppress in progress. (Pen.
Code 1050(g)(2).)
Existing law provides that in a felony case, when a defendant is
not brought to trial within 60 days of the defendant's
arraignment on an indictment, information, or within 60 days of
specified situations, the court, unless good cause to the
contrary is shown, shall dismiss the case. (Pen. Code
1382(a)(2).)
Existing law provides that in a misdemeanor case, regardless of
when the complaint was filed, if the defendant is not brought to
trial within 30 days of arraignment if the defendant is in
custody, or within 45 days of arraignment if the defendant is
not in custody, the court shall dismiss the case. (Pen. Code
1382(a)(3).)
Existing law defines a "criminal street gang" as any ongoing
organization, association, or group of three or more persons .
. . having as one of its primary activities the commission of
one or more enumerated offenses, having a common name or
identifying sign or symbol, and whose members engage in a
pattern of gang activity. (Pen. Code 186.22, subd. (f).)
Existing law provides that any person who actively participates
in a criminal street gang with knowledge that its members engage
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in or have engaged in a pattern of criminal gang activity and
who promotes, furthers, or assists in any felonious conduct by
members of the gang, is guilty of an alternate
felony-misdemeanor. (Pen. Code 186.22, subd. (a).) Existing
law does not specifically define what constitutes being a gang
member.
Existing law provides that any person who is convicted of a
felony committed for the benefit of, at the direction of, or in
association with any criminal street gang, with the specific
intent to promote, further, or assist in criminal conduct by
gang members, shall receive a specified sentence enhancement or
specified life term. These penalties range from a triad of 2,
3, or 4 years, to a life term with a minimum term of 15 years.
(Pen. Code 186.22, subd. (b).)
Existing law provides that any person who is convicted of
either a felony or misdemeanor that is committed for the
benefit of, at the direction of, or in association with any
criminal street gang, with the specific intent to promote,
further, or assist in any criminal conduct by gang members,
shall be punished by imprisonment in the county jail for up to
one year, or by 1, 2, or 3 years in state prison. (Pen. Code
186.22, subd. (d).)
Existing law defines "pattern of criminal gang activity" as the
commission of two or more of enumerated offenses, provided at
least one of the offenses occurred after the effective date of
the statute and the last of the offenses occurred within three
years after a prior offense, and the offenses were committed on
separate occasions, or by two or more persons. (Pen. Code
186.22, subd. (e).) These offenses need not result in a
conviction, although prosecutors typically prove the pattern
through prior convictions.
This bill expands the list of cases where it is good cause for
continuance when the prosecuting attorney assigned to the case
is in another trial, preliminary hearing or motion to suppress
when the case to be continued involves a violation of the
California Street Terrorism Enforcement and Prevention Act.
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RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
incarceration.<1>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
----------------------
<1> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
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supported the existence of conditions of "extreme
peril to the safety of persons and property."
(citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
Although the evidence may be less than perfectly
clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .
Under the PLRA, any prisoner release order that we
issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
correct the violation of those rights. For this
reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
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period of two or three years.<2>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
1. Need for This Bill
According to the author:
Current law allows for an additional trial period for
certain specialized cases including homicide, sexual
assault, domestic violence, and career criminals.
For many of the same reasons as homicides and
statutorily recognized cases, gang cases should also be
included. Gang cases are a specialized area of
prosecution and often include sensitive victim and/or
witness issues. The cases usually involve extremely
reluctant, uncooperative, and fearful victims and
witnesses. Many of the victims and witnesses are also
participants in a victim/witness relocation program.
Additionally, gang crimes are bifurcated prosecutions
(they require conviction of the original crime in
addition to proving the crime was done for the benefit
of the gang) and are usually highly complex cases.
Given these issues, a majority of the pretrial work-up
of gang cases is spent establishing a relationship of
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<2> Three Judge Court Tentative Ruling, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (Feb. 9, 2009).
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trust with victims and witnesses who would otherwise
refuse to cooperate with law enforcement and who already
possess an ingrained distrust of the criminal justice
process developed over their lifetime. Often times this
relationship starts to form before a decision is made on
filing the initial criminal complaint. Prosecutors work
very closely with investigating law enforcement agencies
and on numerous occasions participate in the initial law
enforcement interview of the victim/witness.
Developing trust between the prosecutors and the victims
and witnesses they serve is key to the success of gang
prosecutions. Gang cases typically take around a year
from the filing of charges to judgment and sentence.
Changing the prosecutor during this process, especially
at the last second and at the most critical stage of the
process, undermines all efforts put forward by
prosecutors in fostering trust with victims.
SB 59 would help address this problem by providing
prosecutors an extended trial period for gang cases.
2. Sixth Amendment
A defendant has a right to a speedy trial guaranteed by the
Sixth Amendment of the United States Constitution, and Article
I, Section 13, of the California Constitution. The United
States Supreme Court set forth a four-element test in
determining whether a delay in trial violated federal
constitutional standards: "Length of delay, the reason for the
delay, the defendant's assertion of his right, and prejudice to
the defendant." (Barker v. Wing (1972) 407 U.S. 514, 530.) The
California Supreme Court has held that a delay without good
cause of more than the sixty-day time period set forth in Penal
Code Section 1382 is a legislatively determined violation of a
defendant's constitutional right to a speedy trial. (Sykes v.
Superior Court (1973) 9 Cal.3d 83, 89.)
3. Continuance When Prosecutor in Trial
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Existing law provides generally that the welfare of the people
of California requires that trials be set as early as possible.
In order to further this goal, criminal cases take precedence
over civil cases and death penalty cases over other criminal
cases. The law, however, does provide that a party may make a
motion to continue any criminal proceeding including a trial
provided specified procedures are met. Continuances shall only
be granted upon a showing of good cause and neither the
convenience of the parties nor a stipulation of the parties is
in and of itself good cause.
In general, when deciding whether or not good cause for a
continuance has been shown, the court shall consider the general
convenience and prior commitments of all witnesses, including
peace officers. However, Penal Code Section 1050(g) defines
"good cause" as including cases involving stalking, murder,
sexual assault, domestic violence or hate crimes when the
prosecuting attorney assigned to the case has another trial,
preliminary hearing or motion to suppress in progress in another
court. Thus, the court has no discretion in whether or not to
grant a continuance in these types of cases. A continuance
given under subdivision (g) cannot exceed ten court days.
Hate crimes were added to this provision in 2003 by AB 2653
(Chu); stalking was added as a provision in 1999 by SB 69
(Murray); murder was added in 1998 by AB 1754 (Havice); and
cases of domestic violence were added in 1997 by SB 215
(Alpert).
4. Addition of Gang Cases Under the STEP Act to Definition of
"good cause"
This bill adds violations of the California Street Terrorism
Enforcement and Prevention Act (STEP Act) to the list of crimes
which are defined as good cause when the prosecuting attorney
has another trial, preliminary hearing, or motion to suppress.
Crime Victims United supports this addition, stating:
Gang cases are a specialized area of prosecution and
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often include sensitive victim and/or witness issues.
The cases usually involve fearful victims and witnesses
that take time to gain the courage to participate in
prosecution of offenders. The majority of the pretrial
work-up of gang cases is spent establishing a
relationship of trust with victims and witnesses who
would otherwise refuse to cooperate with law enforcement
and who already possess an ingrained distrust of the
criminal justice process developed over their lifetime.
Often times this relationship starts to form before a
decision is made on filing the initial criminal
complaint.
Developing trust between the prosecutors and the victims
and witnesses they serve is key to the success of gang
prosecutions. SB 59 would help address this problem by
providing prosecutors an extended trial period for gang
cases.
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If a district attorney handling a STEP Act case is in another
trial, the court already has the authority to continue the start
date of the trial. The court may find this appropriate if only
one attorney has handled the case from the time the complaint
was filed, or if there are especially sensitive witnesses. This
bill, however, would give the court no discretion in making that
determination, but state that good cause is found automatically
in any of these cases, even those that were handled by a team of
prosecutors or where there are no special witness
considerations.
SHOULD THE FACT THAT A CASE HAS BEEN CHARGED UNDER THE STEP ACT
AUTOMATICALLY QUALIFY IT FOR A GOOD CAUSE CONTINUANCE IF THE
DISTRICT ATTORNEY IS IN ANOTHER TRIAL OR HEARING?
5. Opposition
Over the years, the courts have been clear that adding crimes to
the definition of "good cause" for continuances wreaks havoc
with courts that are already facing very crowded calendars and
too few judges and courtrooms. The courts also must always keep
in mind the defendant's right to a speedy trial.
Judicial Council opposes stating:
We believe strongly that it is appropriate and more
effective to have the court determine whether there is
good cause for a continuance on a case-by-case basis
based on the particular facts before it. If the
prosecutor makes the necessary showing that the
circumstances in the case reasonably require additional
time, the court can grant the continuance under current
law. Under this proposal, the mere fact that a
prosecutor is trying a criminal street gang case and is
unavailable is enough to give the prosecutor an
automatic continuance. Regardless of the facts or
circumstances, the court would not be authorized to deny
the continuance. This bill is unnecessary and
inappropriately interferes with the court's function.
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Penal Code 1050 currently requires granting of a
continuance to a prosecutor who is unavailable in cases
involving murder, stalking, domestic violence, and
vertical prosecutions handled in the Career Criminal
Prosecution Program. The council is extremely concerned
that the list of "automatic" continuances, which were
unnecessary to begin with, will only continue to grow.
Automatic continuances inappropriately put criminal case
management within the control of the prosecution and
make the court's calendar management much more
difficult.
For these reasons, the Judicial Council opposes SB 59.
The California Judges Association adds in opposition:
Usually a "good cause" request for a continuance comes
up close to the "last day," i.e., the day that the case
has to go to trial or else it will be dismissed.
Typically, a district attorney (DA) will ask to continue
a case for two weeks because he or she is in another
trial. To be thorough, the Master Calendar Judge will
check out the facts underlying the DA's "good cause"
continuance request. This investigation entails making
sure the DA is actually in another trial, whether it
will actually last two weeks, whether the case fits one
of the categories under section 1050(g)(2), etc. This
is already a burdensome process, especially when the
Master Calendar Judge receives an onslaught of such
requests each week.
While stalking, hate crimes, and career criminal cases
can get only one continuance under the Code, there is no
limit to the number of continuances that can be granted
for the other categories of cases, e.g., sex crimes,
murder, etc. So the process of fielding continuance
requests, investigating the integrity of the request,
granting or denying it, then reshuffling an already
brimming court calendar can go on again and again for
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months at a time.
There is also a due process limitation on these requests
because the constitutional speedy trail rights of the
defendant can be affected by the continuance statute.
At some point it becomes unreasonable and unfair to the
defendant to continue a trial. A Master Calendar Judge
needs the discretion to cut off excessive continuances.
SB 59 would undercut the Judge's discretion in this
regard.
Because SB 59 would curtail judicial discretion with
regard to managing trial scheduling, and particularly
with regard to preventing undue delays, CJA opposes SB
59.
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