BILL ANALYSIS                                                                                                                                                                                                    

                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    AB 696        Hearing Date:    June 16, 2015    
          |Author:    |Jones-Sawyer                                         |
          |Version:   |May 18, 2015                                         |
          |Urgency:   |No                     |Fiscal:    |No               |
          |Consultant:|MK                                                   |
          |           |                                                     |

                          Subject:  Defendants: Arraignment


          Source:   California Public Defenders Association

          Prior Legislation:Unknown

          Support:  Legal Services for Prisoners with Children 

          Opposition:California District Attorneys Association; Judicial  
                    Council of California 

          Assembly Floor Vote:                 60 - 16


          The purpose of this bill is to require 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.
          Existing law 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  


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          probable cause to believe that a public offense has been  
          committed and that the defendant is guilty thereof. (Penal Code,  
           991 (a).) 

          Existing law 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. (Penal Code,  991(b).) 

          Existing law provides 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. (Penal Code  991 (d).) 

          Existing law 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. (Penal Code   

          Existing law requires the court dismiss the complaint and  
          discharge the defendant if it determines that no probable cause  
          exists. (Penal Code,  991 (f).) 

          Existing law allows the prosecution to refile the complaint  
          within 15 days of the dismissal of a complaint pursuant to Penal  
          Code section 991. (Penal Code,  991 (g).) 

          Existing law states that a second dismissal pursuant to this  
          section is a bar to any other prosecution for the same offense.  
          (Penal Code,  991 (h).) 

          Existing law 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. (Penal Code  825 (a)(1).) 

          Existing law requires that the 48 hour limitation for  
          arraignment be extended when: 

                 The 48 hours expire at a time when the court in which  
               the magistrate is sitting is not in session, that time  


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               shall be extended to include the duration of the next court  
               session on the judicial day immediately following. 
                 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. (Penal Code,  
                825 (a)(2).) 

          Existing law 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 five hundred dollars  
          ($500), to be recovered by action in any court of competent  
          jurisdiction. (Penal Code  825 (b).) 

          Existing law 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. (Penal Code,  

          This bill 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  
          magistrate on motion of counsel for the defendant or the  
          defendant shall determine whether there is probable cause to  
          believe that a crime has been committed by the defendant.

          This bill 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  


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          For the past eight years, this Committee has scrutinized  
          legislation referred to its jurisdiction for any potential  
          impact on prison overcrowding.  Mindful of the United States  
          Supreme Court ruling and federal court orders relating to the  
          state's ability to provide a constitutional level of health care  
          to its inmate population and the related issue of prison  
          overcrowding, this Committee has applied its "ROCA" policy as a  
          content-neutral, provisional measure necessary to ensure that  
          the Legislature does not erode progress in reducing prison  

          On February 10, 2014, the federal court ordered California to  
          reduce its in-state adult institution population to 137.5% of  
          design capacity by February 28, 2016, as follows:   

                 143% of design bed capacity by June 30, 2014;
                 141.5% of design bed capacity by February 28, 2015; and,
                 137.5% of design bed capacity by February 28, 2016. 

          In February of this year the administration reported that as "of  
          February 11, 2015, 112,993 inmates were housed in the State's 34  
          adult institutions, which amounts to 136.6% of design bed  
          capacity, and 8,828 inmates were housed in out-of-state  
          facilities.  This current population is now below the  
          court-ordered reduction to 137.5% of design bed capacity."(  
          Defendants' February 2015 Status Report In Response To February  
          10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman  
          v. Brown, Plata v. Brown (fn. omitted).

          While significant gains have been made in reducing the prison  
          population, the state now must stabilize these advances and  
          demonstrate to the federal court that California has in place  
          the "durable solution" to prison overcrowding "consistently  
          demanded" by the court.  (Opinion Re: Order Granting in Part and  
          Denying in Part Defendants' Request For Extension of December  
          31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,  
          Coleman v. Brown, Plata v. Brown (2-10-14).  The Committee's  
          consideration of bills that may impact the prison population  


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          therefore will be informed by the following questions:

              Whether a proposal erodes a measure which has contributed  
               to reducing the prison population;
              Whether a proposal addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy;
              Whether a proposal addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
              Whether a proposal corrects a constitutional problem or  
               legislative drafting error; and
              Whether a proposal proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy.


          1. Need for This Bill
          According to the author:

               In 1975, the United States Supreme Court decided, in  
               Gerstein v. Pugh 420 U.S 103, that the 5th amendment  
               right to due process required that a person arrested  
               without a warrant receive a "prompt" probable cause  
               determination from an impartial magistrate.  That same  
               year, the California Supreme Court decided, in the  
               case of In re Walters 15 Cal3d 738, that Gerstein was  
               binding on California and applied to misdemeanors as  
               well as felonies.  The U.S Supreme Court refined its  
               Gerstein v. Pugh decision by holding, in County of  
               Riverside v. McLaughlin, that "prompt" means within 48  
               hours, with no exception for weekends or holidays.

               In 1980, after Gerstein and Walters, but before  
               McLaughlin, this case law was codified as to  
               misdemeanants in custody, in Penal Code  991.  This  
               does not cover misdemeanants at liberty.  Misdemeanor  
               defendants who are out of custody are in a uniquely  
               disadvantageous position in the judicial system  
               because they have no means of challenging "groundless  
               or unsupported charges" by way of a "prompt probable  


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               cause determination" before an "impartial magistrate."  
                Being that they are not in custody, they cannot ask  
               for a probable cause hearing under  
               Gerstein-Walters-McLaughlin or under PC  991. Being  
               that they are not charged with a felony, they are not  
               entitled to a preliminary hearing or a PC  995  
               motion. Being that they are not a civil litigant, they  
               cannot bring a motion for summary judgment or a  

               Such a person must live under the cloud of such  
               charges for a prolonged period, expending time and  
               resources to prepare a defense.  Only after they  
               proceed to trial, and after the prosecution completes  
               its case, can they ask the judge to dismiss the case  
               for insufficient evidence under Penal Code  1118 and  
                1118.1. By then, not only has the defendant expended  
               almost all of the necessary time and resources for  
               mounting a defense, but the court also has expended  
               its time and resources, including the time, attention,  
               and personal sacrifice of jurors who put their lives  
               on hold to attend the trial.

          2.  Probable Cause Finding For Out of Custody Misdemeanor  
          Defendant at Arraignment
          As noted in the author's statement, existing law provides that  
          upon motion by an in custody defendant charged with a  
          misdemeanor, the court shall determine whether there is probable  
          cause to believe that a public offense was committed by the  
          defendant.  This bill extends the same right to such a finding  
          to an out of custody defendant.  In addition to giving a  
          defendant the ability to not have to live with a potential  
          misdemeanor hanging over his or her head, the sponsor of the  
          bill, the California Public Defenders Association notes that:

               AB 696 would save money and time for county  
               governments who fund prosecutors' and public defense  
               for indigents.  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 analysis of  
               physical evidence and the employment of expert  
               witnesses.  The time and expense for this preparation  


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               could be obviated if the court could make a probable  
               cause determination washing out weak and baseless  
               cases at an early stage.

          3.  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  

          4. 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 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  


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               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  

               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  

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