BILL ANALYSIS                                                                                                                                                                                                    



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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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