BILL ANALYSIS Ó
AB 696
Page 1
Date of Hearing: April 7, 2015
Counsel: David Billingsley
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Bill Quirk, Chair
AB
696 (Jones-Sawyer) - As Introduced February 25, 2015
SUMMARY: Requires the judge to make a finding of probable cause
that a crime has been committed when an out of custody defendant
is facing a misdemeanor charge. Specifically, this bill:
1)Requires that when the defendant is not in custody at the time
he or she appears for arraignment and the offense is a
misdemeanor to which the defendant has pleaded not guilty, the
judge shall determine whether there is probable cause to
believe that a crime has been committed by the defendant,
unless the counsel for the defendant, or the defendant, waives
that determination.
2)States that the probable cause determination be made 30 days
before the date calendared for trial at the arraignment,
unless a later date is requested by the defense in order to
allow the prosecution to supplement the materials described,
with the discovery that the prosecution is legally required to
provide.
EXISTING LAW:
1)Requires that if the defendant is in custody at the time they
AB 696
Page 2
appear before the magistrate for arraignment and, if the
public offense is a misdemeanor to which the defendant has
pleaded not guilty, the magistrate, on motion of counsel for
the defendant or the defendant, shall determine whether there
is probable cause to believe that a public offense has been
committed and that the defendant is guilty thereof (Pen. Code,
§ 991, subd. (a).)
2)Requires the determination of probable cause to be made
immediately unless the court grants a continuance for good
cause not to exceed three court days. (Pen. Code, § 991, subd.
(b).)
3)States that in determining the existence of probable cause,
the magistrate shall consider any warrant of arrest with
supporting affidavits, and the sworn complaint together with
any documents or reports incorporated by reference thereto,
which, if based on information and belief, state the basis for
such information, or any other documents of similar
reliability. (Pen. Code, § 991, subd. (d).)
4)Provides that if, after examining these documents, the court
determines that there exists probable cause to believe that
the defendant has committed the offense charged in the
complaint, it shall set the matter for trial. (Pen. Code, §
991, subd. (e).)
5)Requires the court dismiss the complaint and discharge the
defendant if it determines that no probable cause exists.
(Pen. Code, § 991, subd. (f).)
6)Allows the prosecution to refile the complaint within 15 days
of the dismissal of a complaint pursuant to Penal Code section
991. (Pen. Code, § 991, subd. (g).)
7)States that a second dismissal pursuant to this section is a
bar to any other prosecution for the same offense. (Pen. Code,
§ 991, subd. (h).)
AB 696
Page 3
8)Requires that when a defendant is arrested, they are to be
taken before the magistrate without unnecessary delay, and, in
any event, within 48 hour, excluding Sundays and holidays.
(Pen. Code, § 825, subd. (a)(1).)
9) Prescribes that the 48 hour limitation for arraignment be
extended when:
a) The 48 hours expire at a time when the court in which
the magistrate is sitting is not in session, that time
shall be extended to include the duration of the next court
session on the judicial day immediately following. (Pen.
Code, § 825, subd. (a)(2).)
b) The 48-hour period expires at a time when the court in
which the magistrate is sitting is in session, the
arraignment may take place at any time during that session.
However, when the defendant's arrest occurs on a Wednesday
after the conclusion of the day's court session, and if the
Wednesday is not a court holiday, the defendant shall be
taken before the magistrate not later than the following
Friday, if the Friday is not a court holiday. (Pen. Code, §
825, subd. (a)(2).)
10)Allows after the arrest, any attorney at law entitled to
practice in the courts of record of California, at the request
of the prisoner or any relative of the prisoner, visit the
prisoner. Any officer having charge of the prisoner who
willfully refuses or neglects to allow that attorney to visit
a prisoner is guilty of a misdemeanor. Any officer having a
prisoner in charge, who refuses to allow the attorney to visit
the prisoner when proper application is made, shall forfeit
AB 696
Page 4
and pay to the party aggrieved the sum of five hundred dollars
($500), to be recovered by action in any court of competent
jurisdiction. (Pen. Code, § 825, subd. (b).)
11)Requires the time specified in the notice to appear be at
least 10 days after arrest when a person has been released by
the officer after arrest and issued a citation. (Pen. Code, §
853.6(b).)
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "Current law is
replete with various means to weed out weak, baseless, or
insufficiently supported lawsuits, whether criminal or civil.
Such means are designed to prevent unnecessary stress,
oppression, and expense for civil and criminal defendants, and
also to prevent unnecessary consumption of court time and
resources. By identifying meritless cases at an early stage
before complex and expensive proceedings, including a jury
trial, such costs are prevented.
"Federal constitutional law requires a probable cause
determination by an impartial magistrate within 48 hours of
arrest for those in custody on criminal charges. The US
Constitution, State Constitution, and statutory law require
probable cause determination for accused felons, whether in
custody or not, by way of a grand jury indictment or a felony
preliminary hearing.
"After a felony preliminary hearing, a defendant can seek a
review of the preliminary hearing judge's ruling by way of a
Penal Code section 995 motion. If a misdemeanor defendant is
in custody he can seek a probable cause determination from the
judge presiding at his arraignment by way of a Penal Code 991
motion. What is missing from this otherwise comprehensive
scheme is any vehicle for measuring the merit of misdemeanor
charges for a defendant who is not in custody. He is not
AB 696
Page 5
entitled to an initial probable cause determination or a 991
motion because he is not in custody, and he is not entitled to
a preliminary hearing or a 995 motion because he is not
charged with a felony.
"Preparation for a misdemeanor trial requires investigation,
subpoenaing of witnesses, extensive discovery of the opposing
party's evidence, and often the filing of legal motions and
the analysis of physical evidence and the employment of expert
witnesses. The time and expense required for this preparation
could be obviated if there was a convenient means for washing
out the weak and baseless cases at an early stage.
"In the wake of Proposition 47, it has been projected that
misdemeanor trial courts statewide will be inundated with
thousands and perhaps tens of thousands of what were formerly
low level felonies. These courts and defendants will be
without the means to weed out the weakest of those charges.
Without additional authority to evaluate those cases, the
courts may very well find themselves overwhelmed with pending
misdemeanor trials.
"AB 696 will provide that authority. It will amend Penal Code §
991 to allow courts to make a probable cause determination for
out-of-custody misdemeanors as well as custody misdemeanors.
Unlike custody PC § 991 motions, however, it will not require
the determination to be made at arraignment. It will allow
the prosecutor time to gather more evidence and supporting
documentation. Under Penal Code § 1054, both parties must
provide discovery of their evidence to the other side 30 days
before trial. This bill would provide that the probable cause
determination be made at the point that the prosecution should
have provided all of its evidence to the defense. The
determination will be based on all of that evidence, as long
as it meets the minimum test of reliability.
"Though hundreds of thousands of misdemeanors are filed in this
state each year and tens of thousands of misdemeanants are in
custody at arraignment, experience has shown, since PC § 991
was enacted in 1980, that only a small fraction of those
defendants will bring a PC § 991 motion. When they do bring
the motion, it normally takes the judge only a few minutes to
AB 696
Page 6
read the documents, listen to arguments, and make his ruling.
When defendants are not in custody, and their liberty is
consequently not at stake, it is even less likely that they
will bring a motion unless they legitimately believe there is
insufficient probable cause to support the charges. PPThe
legal calculus dictates that far less time will be consumed by
hearing a few additional PC § 991 motions for out-of-custody
misdemeanants than will be saved from having to conduct
meritless misdemeanor trials that could otherwise be
identified and eliminated at an early stage. This bill would
additionally benefit the prosecution by allowing it more time
to gather and present evidence to support its claim of
probable cause. As such, this authority for expanded probable
cause determination should also place little or no additional
burden on the courts.
"AB 696 provides an inexpensive and streamlined mechanism in
identifying meritless cases and should pay dividends in saved
time, stress, and resources for all involved."
2)Argument in Support: According to Legal Services for
Prisoners with Children, "This bill will increase
Californians' Due Process Rights and also improve judicial
efficiency by giving all defendants a review of the charges
before trial and dismissing charges that are not supported by
probable cause. It will further improve judicial efficiency
and protect people from prosecutorial harassment by limiting
prosecutors from refiling more than once when there is no
probable cause to support the charge(s) filed.
"Even when a person is found not-guilty at trial, the many court
appearances he must make can often harm him. For instance, a
person may need to miss work or school or get child care in
order to go to court. Dismissing charges that are not
supported makes good sense for the defendant and the
overburdened California court system. This will decrease the
number of times a person may have to go to court and improve
his and others' judicial outcomes."
3)Argument in Opposition: According to the California District
Attorneys Association, "In Gerstein v. Pugh (1975) 420 U.S.
103, the United States Supreme Court held that the Fourth
AB 696
Page 7
Amendment provides in-custody defendants with the right to a
prompt post-arrest determination of whether there is probable
cause to believe that he or she has committed a crime.
"Following Gerstein, Penal Code section 991 was enacted "to be a
safeguard against the hardship suffered by a misdemeanant who
is detained in custody, by providing that a probable cause
hearing will be held immediately, at the time of arraignment .
. .: (People v. Ward (1986) 188 Cal.App.3d Supp. 11, 15, 17.)
This is evident from the plain language of PC 991 which begins
with "If the defendant is in custody . . ." The deprivation of
liberty for a confined defendant is the hardship that PC 991
exists to protect against. For an out-of-custody defendant,
there is no such hardship.
"To expand PC 991 to apply to out-of-custody defendants is to
misunderstand the entire purpose of PC 991, and would result
in additional trial court resources being spent to remedy a
hardship that arguably does not exist.
"Further, AB 696 seeks to create a more onerous procedure, with
additional timelines, than that which currently exists for
in-custody misdemeanants. If PC 991 is to be expanded to
include out-of-custody misdemeanants, it follows that the
process should be the same, regardless of custodial status."
REGISTERED SUPPORT / OPPOSITION:
Support
California Public Defenders Association
Legal Services for Prisoners with Children
Opposition
California District Attorneys Association
Analysis Prepared
AB 696
Page 8
by: David Billingsley / PUB. S. / (916) 319-3744