BILL ANALYSIS                                                                                                                                                                                                    

                                                                       AB 696

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          696 (Jones-Sawyer)

          As Amended  August 31, 2015

          Majority vote

          |ASSEMBLY:  |      |(April 16,     |SENATE: |23-13 |(September 3,    |
          |           |60-16 |2015)          |        |      |2015)            |
          |           |      |               |        |      |                 |
          |           |      |               |        |      |                 |

          Original Committee Reference:  PUB. S.

          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, on motion by defense counsel. 

          The Senate amendments:

          1)Require defense counsel to bring motion to trigger probable  
            cause determination by the judicial officer.
          2)Delete the requirement that the determination of probable cause  
            be made 30 days before the date for trial.

          EXISTING LAW:  

          1)Requires that if the defendant is in custody at the time they  


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            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  
            to any other prosecution for the same offense. 

          8)Requires that when a defendant is arrested, they are to be taken  


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            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.

          AS PASSED BY THE ASSEMBLY, this bill: 
          1)Required 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  


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          2)Stated 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.

          FISCAL EFFECT:  According to the Senate Appropriations Committee,  
          the effect of this bill would be ongoing increase in court  
          workload and costs, potentially in the millions of dollars  
          (General Fund), for new probable cause determinations for  
          non-custodial misdemeanor defendants. For every 10% of  
          non-custodial defendants charged with a misdemeanor who request  
          such a determination of probable cause, annual costs are estimated  
          at $2.5 million.

          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 [United States]  
          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  


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          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  
          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 [2014], 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  


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          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  
          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:  


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