BILL ANALYSIS Ó
AB 696
Page 1
ASSEMBLY THIRD READING
AB
696 (Jones-Sawyer)
As Introduced February 25, 2015
Majority vote
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|Committee |Votes |Ayes |Noes |
|----------------+------+-----------------------+--------------------|
|Public Safety |6-0 |Quirk, Gonzalez, | |
| | |Jones-Sawyer, Lackey, | |
| | |Low, Santiago | |
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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.
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EXISTING LAW:
1)Requires that if the defendant is in custody at the time they
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
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.
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.
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.
5)Requires the court dismiss the complaint and discharge the
defendant if it determines that no probable cause exists.
6)Allows the prosecution to refile the complaint within 15 days of
the dismissal of a complaint pursuant to Penal Code Section 991.
7)States that a second dismissal pursuant to this section is a bar
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to any other prosecution for the same offense.
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.
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.
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.
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 and
pay to the party aggrieved the sum of $500, to be recovered by
action in any court of competent jurisdiction.
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.
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FISCAL EFFECT: Unknown. This bill is keyed non-fiscal by the
Legislative Counsel.
COMMENTS: 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 [Section] 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 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
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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
[PC 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 [Section] 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 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
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support the charges. The 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."
Analysis Prepared by:
David Billingsley / PUB. S. / (916) 319-3744 FN:
0000096