BILL ANALYSIS Ó
SB 162
Page 1
Date of Hearing: June 18, 2013
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 162 (Lieu) - As Amended: May 1, 2013
SUMMARY : Establishes 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 :
1)Provides 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 provides 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/her
transportation to a county or city jail, if a legitimate law
enforcement purpose exists to move the prisoner."
2)Provides 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.
3)Provides that the order to a county or city jail will not
exceed 30 days.
4)Authorizes 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.
5)Requires that an order for the temporary removal of a prisoner
will include all of the following:
a) A recitation of the purposes for which the prisoner is
to be brought to the county or city jail.
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b) The affidavit of the requesting district attorney or
peace officer stating that the law enforcement purpose is
legitimate and necessary. The affidavit will be supported
by facts establishing good cause.
c) The signature of the judge or magistrate making the
order.
d) The seal of the court, if any.
6)Provides that, upon 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, the court may, for good
cause, seal an order made, unless a court determines that the
failure to disclose the contents of the order would deny a
fair trial to a charged defendant in a criminal proceeding.
7)Provides that an order for the temporary removal of a prisoner
will be executed presumptively by the sheriff of the county in
which the order is issued. It will 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/she is no longer required for
the stated law enforcement purpose. The expense of executing
the order will be a proper charge against, and will 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.
8)Provides that if a prisoner is removed from a state prison
facility pursuant to its provisions, the prisoner will 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.
9)Requires that a copy of the written order directing the
prisoner to appear before the superior court will be forwarded
by the district attorney to the warden of the prison having
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custody of the prisoner.
10)States that the state is not liable for any claim of damage,
or for the injury or death of any person, including a
prisoner, that occurs during the period in which the prisoner
is in the exclusive control of a local law enforcement agency.
EXISTING LAW :
1)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 Section 2620.)
2)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 Section 2620.)
3)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
Section 2621.)
4)Provides that in cases where the prison is out of the county
in which the application is made, this order must be made 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. (Penal Code
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Section 2621.)
5)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 Section 2621.)
6)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 Section
2621.)
7)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 Section 2690.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Recently a
Court of Appeals case struck down this historic process by
finding that Superior Courts lacked jurisdictional authority
over the transfers of prison inmates prior to the filing of a
felony case.
"SB 162 simply provides the superior court with the statutory
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authority to order these inmate transfers to county
facilities.
"This is an important investigative process for our local law
enforcement agencies.
"Without approving this measure, local law enforcement would
have to travel to state prisons thus involving travel and
logistical issues that are problematic, costly and delays
justice.
"Additionally, it could pose substantial safety concerns for
the inmate if they are seen assisting law enforcement.
"SB 162 resolves these problems and restores the historic
practice of transferring these inmates."
2)The Swarthout Case : 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:
a) the order has to state the purposes for the transfer;
b) the order has to be supported by an affidavit that the
purpose is legitimate and necessary which support facts
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establishing good cause;
c) the sheriff has to do the transfer, and the costs are
county costs;
d) the inmate has to be returned within 30 days, with the
possibility for another 30-day extension;
e) transferred inmates remain in constructive custody of
the warden where they are coming from; and
f) the state would not be liable for any claim of damage,
injury or death during the transfer period, as specified.
3)Liability : 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 was amended on the Senate Floor to
specify that the removal of state liability would only apply
during the period in which the prisoner is in the exclusive
control of a local law enforcement agency. This addressed the
concerns with the liability provisions and recommended
amendments expressed in the Senate Public Safety Analysis.
4)Argument in Support : The Los Angeles County District
Attorney's Office states, "In order to aid the investigation
of "Cold Cases" and other open investigations when a witness
or suspect was in the custody of the California Department of
Corrections and Rehabilitation 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 Appeals 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 Appeals did not find there were any constitutional
violations involved in these orders instead the Court simply
cited a lack of statutory authority for these orders.
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"Therefore, the only option currently available 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."
5)Related Legislation: SB 771 (Galgiani), authorizes the
Secretary of the California Department of Corrections and
Rehabilitation (CDCR) to temporarily remove an inmate from
prison or any other institution for the purpose of permitting
the inmate to assist with the gathering of evidence related to
crimes. SB 771 was passed by this committee on June 11, 2013.
6)Prior Legislation : AB 2357 (Galgiani), Chapter 145, Statutes
of 2102, authorized CDCR to temporarily remove an inmate from
prison or any other institution to assist in the gathering of
evidence relating to crime. AB 2357 was enacted and repealed
on January1, 2013.
REGISTERED SUPPORT / OPPOSITION :
Support
California State Sheriffs' Association
Los Angeles County District Attorney's Office
Los Angeles County Sheriff's Department
San Diego District Attorney's Office
Opposition
None
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744