BILL ANALYSIS                                                                                                                                                                                                    

                                                                     AB 696

                                                                    Page  1

          Date of Hearing:  April 7, 2015
          Counsel:               David Billingsley


                                  Bill Quirk, Chair

                 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  

          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.  

          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,   

          FISCAL EFFECT:  Unknown


          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."



          California Public Defenders Association
          Legal Services for Prisoners with Children


          California District Attorneys Association

          Analysis Prepared  


                                                                     AB 696

                                                                    Page  8

          by:              David Billingsley / PUB. S. / (916) 319-3744