BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 696 Hearing Date: June 16, 2015
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|Author: |Jones-Sawyer |
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|Version: |May 18, 2015 |
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|Urgency: |No |Fiscal: |No |
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|Consultant:|MK |
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Subject: Defendants: Arraignment
HISTORY
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
PURPOSE
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 §
991(e).)
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,
§ 853.6(b).)
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
provide.
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RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
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
overcrowding.
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.
COMMENTS
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
nonsuit.
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
outcomes.
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
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.
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