BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
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AB 568 (Muratsuchi)
As Introduced February 20, 2013
Hearing date: June 11, 2013
Penal Code
MK:jr
CRIMINAL PROCEDURE:
TESTIMONY OF LAW ENFORCEMENT OFFICERS
HISTORY
Source: Los Angeles District Attorney's Office
Prior Legislation:AB 557 (Karnette) - Chapter 18; Statutes of
2005
Support: California District Attorneys Association; Los Angeles
Police Protective League;
Riverside Sheriffs' Association; Association for Los
Angeles Deputy Sheriffs;
Judicial Council of California; California Police
Chiefs Association
Opposition:California Public Defenders Association; California
Attorneys for Criminal Justice
Assembly Floor Vote: Ayes 75 - Noes 0
KEY ISSUE
AB 568 (Muratsuchi)
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SHOULD THE DEFINITION OF LAW ENFORCEMENT OFFICER FOR THE
PURPOSES OF INTRODUCING HEARSAY EVIDENCE AT A PRELIMINARY
HEARING BE CLARIFIED TO INCLUDE THE DEFINITION OF LAW
ENFORCEMENT OFFICER AS DETERMINED BY CASE LAW?
PURPOSE
The purpose of this bill is to clarify the definition of a "law
enforcement officer" for purposes of introducing hearsay
statements at a preliminary hearing.
Existing law states that in order to protect victims and
witnesses in criminal cases, hearsay evidence shall be
admissible at preliminary hearings, as prescribed by the
Legislature or by the people through the initiative process.
(California Constitution, Article I, Section 30(b).)
Existing law defines 'hearsay evidence" as "evidence of a
statement that was made other than by a witness while testifying
at the hearing and that is offered to prove the truth of the
matter stated." (Evidence Code � 1200(a).)
Existing law provides that, except as provided by law, hearsay
evidence is inadmissible. (Evidence Code �1200(b).)
Existing law states that the prohibition against offering
hearsay testimony does not apply at a preliminary hearing
pursuant to Penal Code Section 872(b). (Evidence Code � 1203.1.)
Existing law states that any person who comes within the
provisions of this chapter and who otherwise meets all standards
imposed by law on a peace officer is a peace officer, and
notwithstanding any other law, no person other than those
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designated in this chapter is a peace officer. (Penal Code �
830.)
Existing law declares specific persons to be peace officers.
(Penal Code �� 830.1 through 830.65.)
Existing law declares other specific persons not to be peace
officers, but having powers of arrest. (Penal Code �� 830.7
through 830.9.)
Existing law requires all peace officers to complete an
introductory course of training prescribed by POST, demonstrated
by passage of an appropriate examination developed by POST.
(Penal Code � 832(a).)
Existing law provides that a finding of probable cause at a
preliminary hearing may be based on hearsay statements related
by a law enforcement officer. (Penal Code � 872(b).)
This bill provides that for the purposes of a hearsay
preliminary hearing, a law enforcement officer is any officer or
agent employed by a federal, state, or local government agency
to whom all the following apply:
Has either five years of law enforcement experience or
who has completed a training course certified by the
Commission on Peace Officer Standards and Training that
includes training in the investigation and reporting of
cases and testifying at preliminary hearing.
Whose primary responsibility is the enforcement of any
law, the detection and apprehension of persons who have
violated any law, or the investigation and preparation for
prosecutions of cases involving violation of laws.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
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prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy known as "ROCA" (which
stands for "Receivership/ Overcrowding Crisis Aggravation"), the
Committee held measures which created a new felony, expanded the
scope or penalty of an existing felony, or otherwise increased
the application of a felony in a manner which could exacerbate
the prison overcrowding crisis. Under these principles, ROCA
was applied as a content-neutral, provisional measure necessary
to ensure that the Legislature did not erode progress towards
reducing prison overcrowding by passing legislation which would
increase the prison population. ROCA necessitated many hard and
difficult decisions for the Committee.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order issued by the Three-Judge Court three years
earlier to reduce the state's prison population to 137.5 percent
of design capacity. The State submitted in part that the, ". .
. population in the State's 33 prisons has been reduced by over
24,000 inmates since October 2011 when public safety realignment
went into effect, by more than 36,000 inmates compared to the
2008 population . . . , and by nearly 42,000 inmates since 2006
. . . ." Plaintiffs, who opposed the state's motion, argue in
part that, "California prisons, which currently average 150% of
capacity, and reach as high as 185% of capacity at one prison,
continue to deliver health care that is constitutionally
deficient." In an order dated January 29, 2013, the federal
court granted the state a six-month extension to achieve the
137.5 % prisoner population cap by December 31st of this year.
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In an order dated April 11, 2013, the Three-Judge Court denied
the state's motions, and ordered the state of California to
"immediately take all steps necessary to comply with this
Court's . . . Order . . . requiring defendants to reduce overall
prison population to 137.5% design capacity by December 31,
2013."
The ongoing litigation indicates that prison capacity and
related issues concerning conditions of confinement remain
unresolved. However, in light of the real gains in reducing the
prison population that have been made, although even greater
reductions are required by the court, the Committee will review
each ROCA bill with more flexible consideration. The following
questions will inform this consideration:
whether a measure erodes realignment;
whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
whether a bill corrects a constitutional infirmity or
legislative drafting error;
whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and
whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Need for the bill .
According to the sponsor:
Penal Code section 872, subdivision (b), provides that
a finding of probable cause at a preliminary hearing
may be based upon hearsay statements related by a law
enforcement officer. However, the section does not
define "law enforcement officer" for the purposes of
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the statute. Case law has interpreted "law enforcement
officer" under the statute more broadly than the term
"peace officer." In the case of Sims v. Superior
(1993) 18 Cal.App.4th 463 (hereafter Sims), the Court
of Appeal held:
We find that section 872, subdivision (b), is not
restricted in its application to "traditional" law
enforcement officers authorized to carry weapons
and make arrests, but rather is intended to
encompass officers and agents with knowledge of
the pertinent laws underlying the charged crime
who can provide meaningful testimony at
preliminary hearings. For that reason, we
conclude section 872, subdivision (b), applies to
officers and agents employed by a federal, state
or local government agency: 1) who meet the
threshold training and experience requirements set
forth in that provision; and 2) whose primary
responsibility is to investigate and prepare for
prosecution cases involving violations of laws.
Due to this ambiguity, prosecutors face defense
objections where they seek to elicit hearsay testimony
from "non-traditional" law enforcement officers such as
federal agents, special agents working for any of the
various California state agencies, departments or
bureaus, or investigators whose primary purpose is to
enforce the law but who lack the authority to carry
weapons or make arrests. For instance, the Major
Narcotics Division of the Los Angeles County District
Attorney's Office faced an objection to the use of
Penal Code Section � 872(b) to elicit hearsay testimony
from a federal agent called to testify in the case of
People v. Hsiu-Ying (Lisa) Tseng.
While the failure to define a law enforcement officer
for purposes of Proposition 115 may appear to be a
minor problem, this ambiguity in the statute has led to
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several California Court of Appeal cases wherein the
court has been forced to determine whether a witness
called by the People qualified under the definition of
a law enforcement officer for purposes of Penal Code
Section � 872(b).
For example, in the case of People v. Martin (1991) 230
Cal.App.3d 1992, the California Court of Appeal
considered whether an arson investigator qualified
under Penal Code Section � 872(b) as a law enforcement
officer. And in the cases of Sims v. Superior (1993)
18 Cal.App.4th 463 and People v. Silver (1995) 35
Cal.App. 4th 1023, the California Court of Appeal was
called to decide whether the term "law enforcement
officer" properly includes Franchise Tax Board
investigators and correctional officers.
In each of these cases, after time consuming and
expensive litigation, the court decided that each of
these witnesses qualified as a law enforcement officer
under Penal Code Section � 872(b). Although the
California Court of Appeal has taken up the issues of
what constitutes a "law enforcement officer" for
purposes of Penal Code Section � 872(b) three times and
the Sims court went so far as to provide a definition
of this term, it appears that litigation of this issue
will continue until the term "law enforcement officer"
is explicitly defined in statute.
AB 568 should reduce, but will not eliminate,
litigation on the issue of whether an officer is
qualified to relate hearsay testimony. The defense can
still object to an investigator testifying to hearsay
statements, claiming that it is not the primary
responsibility of that investigator to investigate and
prepare for prosecution of violations of the law. The
proposal also does not cover other instances in which
non-traditional law enforcement is primarily
responsible for the initial investigation and arrest of
a suspect, but do not meet the definition of law
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enforcement under Sims.
However, AB 568 provides a statutory guideline for the
admission of hearsay statements via law enforcement
officers, other than traditional peace officers, that
should reduce litigation on the question of whether a
law enforcement officer qualifies under section 872(b).
2. Proposition 115
Proposition 115, which became effective June 6, 1990, added both
constitutional and statutory language to permit a probable cause
determination at a preliminary hearing in felony prosecutions to
be based on hearsay evidence presented by a qualified
investigative officer. Specifically, Proposition 115 added
Section 30 to Article I of the California Constitution which
provides, that in order to protect victims and witnesses in
criminal cases, hearsay evidence shall be admissible at
preliminary hearings. Proposition 115 also added Evidence Code
Section 1203.1 to provide a preliminary hearing exception to the
general requirement that a hearsay declarant be made available
for cross-examination. Proposition 115 amended Penal Code
Section 872 to provide that notwithstanding the hearsay rule,
the finding of probable cause can be based, entirely or in part,
on the sworn testimony of a law enforcement officer relating the
out-of-court statements of declarants which are offered for the
truth of the matter asserted. And Proposition 115 amended Penal
Code Section 866(a) to give the magistrate discretion to limit
the defendant's right to call witnesses on his or her own
behalf. (See Whitman v. Superior Court (1991) 54 Cal.3d 1063,
1070-1071.)
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3. Confrontation Clause
A criminal defendant has the right under both the federal and
state Constitutions to confront the witnesses against him or
her. (U.S. Const., 6th Amend.; Cal. Const., art. 1, � 15.) In
Crawford v. Washington (2004) 541 U.S. 36, 68, the United States
Supreme Court held that "where testimonial hearsay is at issue,"
the Sixth Amendments forbids the prosecution from introducing it
unless the declarant testifies at trial or the right to
confrontation is otherwise honored. "Testimonial evidence" has
been defined as including "statements that were made under
circumstances which would lead an objective witness reasonably
to believe that the statement would be available for use at a
later trial." (Id. at p. 52.) While hearsay introduced by
investigating officers at preliminary hearings would appear to
all under Crawford, the California Supreme Court has held that
the California Constitution does not require confrontation at a
preliminary hearing. In doing so, the court recognized that the
confrontation clause does not bar all hearsay evidence, and that
the United States Supreme Court has repeatedly held that
confrontation is a trial right. (Whitman v. Superior Court,
supra, 54 Cal.3d at pp. 1077 and 1079.) Recently, the Ninth
Circuit reconsidered this proposition in light of Crawford,
supra, and for the same reasons came to the same conclusion.
(Peterson v. California (9th Cir. 2010) 604 F.3d 1166, 1170.)
4. Qualifications and Definition of Law Enforcement Officers
Penal Code Section 872(b) contains experience and training
requirements in order for an investigating officer to be able to
offer hearsay evidence at the preliminary hearing. The section
requires that an officer have at least five years of law
enforcement experience or have completed a course certified by
POST which covers the investigating and reporting of criminal
cases, and testifying at preliminary hearings. (Whitman v.
Superior Court, supra, 54 Cal.3d at p. 1073.)
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Penal Code Section 872 established the training or experience
required for testifying officers, but it did not provide a
definition of what "law enforcement officers" qualify to
testify. The Court of Appeal decisions that have considered the
issue have held that Penal Code Section 872(b) is not limited to
traditional peace officers authorized to carry weapons and to
make arrests. Rather, the intent is to hear from an officer who
has knowledge of the relevant law and facts such that he or she
can provide meaningful testimony at a preliminary hearing. As
such, an arson investigator and a Franchise Tax Board
investigator have both qualified under the statute. (Martin v.
Superior Court (1991) 230 Cal.App.3d 1192 (arson investigator);
and Sims v. Superior Court (1993) 18 Cal.App.4th 463 (tax board
investigator).)
This bill includes in the definition of a "law enforcement
officer" any officer or agent employed by a federal, state, or
local government agency as long as the person also has the
requisite training or expertise, and is also primarily
responsible for enforcing laws, detecting and apprehending law
violators, or investigating and preparing cases for prosecution.
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