BILL ANALYSIS Ó
AB 696
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GOVERNOR'S VETO
AB
696 (Jones-Sawyer)
As Enrolled September 10, 2015
2/3 vote
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|ASSEMBLY: | |(April 16, |SENATE: |23-13 |(September 3, |
| |60-16 |2015) | | |2015) |
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|ASSEMBLY: | |(September 8, | | | |
| |61-17 |2015) | | | |
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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:
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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
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.
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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 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
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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 determination.
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.
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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 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
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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 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
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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."
GOVERNOR'S VETO MESSAGE:
This bill would allow an out-of-custody misdemeanor defendant to
ask the court at arraignment rather than at trial to determine
whether or not probable cause exists.
I understand the potential benefits to a defendant in having the
court make this determination earlier in the process. However,
the impact on the courts is unclear and could well be
significant. I would welcome a small, carefully crafted pilot to
assess the impact of this proposal.
Analysis Prepared by:
David Billingsley / PUB. S. / (916) 319-3744
FN: 0002477
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