BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
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SB 162 (Lieu)
As Amended April 1, 2013
Hearing date: April 23, 2013
Penal Code
AA:mc
TRANSFER OF STATE PRISONERS
HISTORY
Source: Los Angeles County Sheriff's Department
Los Angeles County District Attorney's Office
San Diego County District Attorney's Office
Prior Legislation: AB 2357 (Galgiani) - Ch. 145, Statutes of
2012
Support: Crime Victims United of California; California State
Sheriffs' Association
Opposition:California Attorneys for Criminal Justice
KEY ISSUE
SHOULD A NEW LAW BE ENACTED TO PROVIDE A PROCESS FOR DISTRICT
ATTORNEYS AND PEACE OFFICERS TO SEEK A COURT ORDER FOR THE TEMPORARY
REMOVAL OF A PRISONER FROM PRISON FOR A "LEGITIMATE LAW ENFORCEMENT
PURPOSE," AS SPECIFIED?
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PURPOSE
The purpose of this bill is to enact a new law to provide a
process for district attorneys and peace officers to seek a
court order for the temporary removal of a prisoner from prison
for a "legitimate law enforcement purpose," as specified.
Current statute provides that when it is necessary to have a
person imprisoned in the state prison brought before any court
to be tried for a felony, or for an examination before a grand
jury or magistrate preliminary to such trial, as specified, an
order for the prisoner's temporary removal from prison must be
made by the superior court, and shall be made only upon the
affidavit of the district attorney or defense attorney, stating
the purpose for which said person is to be produced, as
specified. The order is required to be executed by the sheriff
of the county in which it shall be made, whose duty it shall be
to bring the prisoner before the proper court, grand jury or
magistrate, to safely keep the prisoner, and to return the
prisoner to the prison. (Penal Code
§ 2620.)
Current statute provides that when a prisoner is removed from a
state prison under this section the prisoner shall remain in the
constructive custody of the warden. During the prisoner's
absence from the prison, the prisoner may be ordered to appear
in other felony proceedings as a defendant or witness in the
courts of the county from which the original order directing
removal issued, as specified. (Penal Code § 2620.)
Current statute provides that when the testimony of a material
witness is required in a criminal action, before any court in
this state, or in an examination before a grand jury or
magistrate in a felony case and such witness is a prisoner in a
state prison, an order for the prisoner's temporary removal from
such prison may be made by the superior court, as specified.
(Penal Code § 2621.)
Current statute provides that in cases the prison is out of the
county in which the application is made, this order must be made
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upon the affidavit of the district attorney or of the defendant
or the defendant's counsel, showing that the testimony is
material and necessary; and even then the granting of the order
shall be in the discretion of the court. (Id.)
Current statute requires in these cases the order shall be
executed by the sheriff of the county in which it is made, whose
duty it shall be to bring the prisoner before the proper court,
grand jury or magistrate, to safely keep the prisoner, and when
the prisoner is no longer required as a witness and to return
the prisoner to the prison. (Penal Code § 2621.)
Current statute provides that when a prisoner is removed from a
state prison under this section the prisoner shall remain in the
constructive custody of the warden. During the prisoner's
absence from the prison, the prisoner may be ordered to appear
in other felony proceedings as a defendant or witness in the
courts of the county from which the original order directing
removal issued. A copy of the written order directing the
prisoner to appear before any such court shall be forwarded by
the district attorney to the warden of the prison having
protective custody of the prisoner. (Penal Code § 2621.)
Current law provides that the Secretary of the Department of
Corrections and Rehabilitation ("CDCR") may authorize the
temporary removal of any inmate from prison or any other
institution for the detention of adults under the jurisdiction
of CDCR, including removal for the purpose of attending college
classes. The secretary may require that the temporary removal
be under custody. Unless the inmate is removed for medical
treatment, the removal shall not be for a period longer than
three days. The secretary may require the inmate to reimburse
the state, in whole or in part, for expenses incurred by the
state in connection with the temporary removal other than for
medical treatment. (Penal Code § 2690.)
This bill would enact a new law to provide a process for
district attorneys and peace officers to seek a court order for
the temporary removal of a prisoner from prison for a
"legitimate law enforcement purpose." Specifically, this bill
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would provide that "the superior court of the county in which a
requesting district attorney or peace officer has jurisdiction
may order the temporary removal of a prisoner from a state
prison facility, and his or her transportation to a county or
city jail, if a legitimate law enforcement purpose exists to
move the prisoner."
This bill would provide that an "order for the temporary removal
of a prisoner may be issued, at the discretion of the court,
upon a finding of good cause in an affidavit by the requesting
district attorney or peace officer stating that the law
enforcement purpose is legitimate and necessary."
This bill would provide that the order "to a county or city jail
shall not exceed 30 days."
This bill would authorize extensions of these orders upon
application, for no longer than the authorizing judge deems
necessary to achieve the purposes for which it was granted, and
not exceeding additional 30-day period beyond the initial period
specified in the order for temporary removal."
This bill would require that an order for the temporary removal
of a prisoner shall include all of the following:
(1) A recitation of the purposes for which the prisoner is
to be brought to the county or city jail.
(2) The affidavit of the requesting district attorney or
peace officer stating that the law enforcement purpose is
legitimate and necessary. The affidavit shall be supported
by facts establishing good cause.
(3) The signature of the judge or magistrate making the
order.
(4) The seal of the court, if any.
This bill would provide that, "(u)pon the request of a district
attorney or peace officer for a court order for the temporary
removal of a prisoner from a state prison facility pursuant to
this section, the court may, for good cause, seal an order made
pursuant to this section, unless a court determines that the
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failure to disclose the contents of the order would deny a fair
trial to a charged defendant in a criminal proceeding."
This bill would provide that an order for the temporary removal
of a prisoner "shall be executed presumptively by the sheriff of
the county in which the order is issued. It shall be the duty
of the sheriff to bring the prisoner to the proper county or
city jail, to safely retain the prisoner, and to return the
prisoner to the state prison facility when he or she is no
longer required for the stated law enforcement purpose. The
prisoner shall be returned no later than 30 days after his or
her removal from the state prison facility or no later than 30
days after the date of an order authorizing an extension
pursuant to subdivision (a). The expense of executing the order
shall be a proper charge against, and shall be paid by, the
county in which the order is made. The presumption that the
transfer will be effectuated by the sheriff of the county in
which the transfer order is made may be overcome upon
application of the investigating officer or prosecuting attorney
stating the name of each peace officer who will conduct the
transportation of the prisoner."
This bill would provide that if a prisoner is removed from a
state prison facility pursuant to its provisions, "the prisoner
shall remain at all times in the constructive custody of the
warden of the state prison facility from which the prisoner was
removed. During the temporary removal, the prisoner may be
ordered to appear in other felony proceedings as a defendant or
witness in the superior court of the county from which the
original order for the temporary removal was issued."
This bill would require that a copy of the written order
directing the prisoner to appear before the superior court shall
be forwarded by the district attorney to the warden of the
prison having custody of the prisoner."
This bill would expressly state that the state would not be
"liable for any claim of damage, or for the injury or death of
any person, including a prisoner that occurs during either of
the following:
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(1) The temporary removal of a prisoner from a state prison
facility pursuant to this section.
(2) The transportation of a prisoner by a local law
enforcement agency for the purpose of temporary removal
from a state prison facility pursuant to this section."
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
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
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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.
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.
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COMMENTS
1. Stated Need for This Bill
The author states:
Under existing law, the Superior Court is authorized
to order a state prison inmate to be brought before
the court and tried for a felony or to testify as a
material witness in a criminal action or other related
purposes. (When a criminal case has been filed.)
In order to aid the investigation of "Cold Cases" and
other open investigations where a witness or suspect
was in the custody of CDCR, local law enforcement
agencies would obtain a court order to have an inmate
temporarily transferred from a state prison to a
county jail.
However, local law enforcement ability to obtain these
orders was eliminated by the holding in Swarthout v.
Superior Court (2012). The Court of Appeal held that
Superior Courts have no jurisdictional authority to
order the transfer of a state prison inmate to a local
jail as part of a criminal investigation, prior to the
filing of a felony case. The Court of Appeal did not
find there where any constitutional violations
involved in these orders, instead the Court simply
cited a lack of statutory authority for these orders.
Therefore, the only available option for local law
enforcement is to go to the prison and meet with the
inmate. This process involves travel and related
logistical issues that are problematic, costly and
delays justice.
This is especially true in cases where several
investigators may be required to travel perhaps
hundreds of miles to meet with an inmate under limited
availability as set by CDCR. The cost of overtime,
salaries, food, lodging, and transportation to send
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officers, deputies, deputy district attorneys and
other experts to remote prisons is expensive and
inefficient. It would be far more cost effective to
have the inmate transferred to the county and made
available there for lineups, interrogations and
forensic testing.
Additionally, traveling to a remote state prison
creates difficulties when trying to arrange a lineup
so witnesses can participate or identify a suspect or
view evidence difficult to transport.
Finally, there are substantial safety concerns for the
inmate if he or she is seen in prison speaking with
law enforcement officials. By transferring the inmate
to the county jail, it is easier for the inmate to
speak freely with officials without the potential of
being victimized for cooperating with law enforcement.
With the increasing use of DNA and other forensics to
reopen cold cases, local law enforcement agencies need
a means to get access to state prisoners for
interrogations, lineups, forensic testing and other
investigative procedures that prisons cannot
accommodate.
SB 162 would authorize the Superior Court to order the
temporary removal of an inmate from a state prison and
be transferred to a county jail as part of an ongoing
investigation. To obtain a court order, local law
enforcement agencies must have legitimate
investigative purposes supported by an appropriate
affidavit. The requesting county agency would pay all
costs associated with the temporary transfer of the
inmate.
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2. The Swarthout Case; This Bill
This bill responds in part to a case that came out of the Court
of Appeal last year concerning the statutory authority for a
trial court to issue a transfer order for a prison inmate when
the order is sought for an investigative purpose. In Swarthout
v. Superior Court of Los Angeles (2012) 208 Cal.App.4th 701, the
court considered an order of the Los Angeles Superior Court for
the temporary transfer of a prison inmate for investigative
purposes. The warden of the prison where the inmate was housed
argued the trial court lacked jurisdiction to issue the transfer
order under current law (recited earlier in this analysis). The
Court of Appeal took the case up on a writ of mandate, and
reasoned that, "(w)ithout statutory authority, a court has no
inherent powers to assist in the investigation of crimes. . . .
We conclude that the trial court lacked authority for its
order."
This bill would create express statutory authority for a
superior court to issue an inmate transfer order upon the
request of a district attorney or peace officer "if a legitimate
law enforcement purpose exists to move the prisoner." The bill
includes the following key features of this authority:
the order has to state the purposes for the transfer;
the order has to be supported by an affidavit that the
purpose is legitimate and necessary which support facts
establishing good cause;
the sheriff has to do the transfer, and the costs are
county costs;
the inmate has to be returned within 30 days, with the
possibility for another 30-day extension;
transferred inmates remain in constructive custody of
the warden where they are coming from; and
the state would not be liable for any claim of damage,
injury or death during the transfer period, as specified.
3. Liability
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This bill would provide that the state would not be liable for
any claim of damage, or for the injury or death of any person,
including a prisoner, that occurs during the temporary removal
of a prisoner from a state prison facility or the transportation
of a prisoner by a local law enforcement agency for the purpose
of temporary removal from a state prison facility. The bill
also would provide that an order for the temporary removal of a
prisoner would be executed presumptively by the sheriff of the
county in which the order is issued, but that this presumption
"may be overcome upon application of the investigating officer
or prosecuting attorney stating the name of each peace officer
who will conduct the transportation of the prisoner."
Members and the author may wish to clarify this provision to
provide that the state would not be liable where inmates subject
to these provisions are under the exclusive control of the
sheriff or other local peace officer.
SHOULD THIS AMENDMENT BE MADE?
4. Related Bill
This Committee also is scheduled to hear SB 771 (Galgiani) on
the date this bill is set to be heard. SB 771 addresses the
same issues as this bill, but is structured differently.
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