BILL ANALYSIS Ó
AB 1106
Page 1
Date of Hearing: January 12, 2016
Counsel: David Billingsley
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Bill Quirk, Chair
AB
1106 (Jones-Sawyer) - As Amended January 4, 2016
SUMMARY: Establishes a five year pilot project, in six
counties, requiring 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, upon request by the
defendant. Specifically, this bill:
1)Establishes a pilot project for five years in six counties to
be selected by the Judicial Council.
2)Specifies that the Judicial Council shall include the County
of Los Angeles within the six counties to be selected.
3)Specifies that the remaining five counties to be selected
shall include counties representing small, medium, and large
counties, by population.
4)Specifies that the following arraignment procedures will apply
in the pilot project counties:
a) When the defendant is out of custody at the time he or
she appears before the magistrate for arraignment and the
defendant has plead not guilty to a misdemeanor charge, the
magistrate, on motion of counsel for the defendant or the
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defendant, shall determine whether there is probable cause
to believe that the defendant committed a criminal offense;
b) The determination of probable cause shall be made
immediately, unless the court grants a continuance for a
good cause not to exceed three court day;.
c) 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, or
any other documents of similar reliability; and
d) If the court determines that no probable cause exists,
it shall dismiss the complaint and discharge the defendant.
5)Specifies that if the charge is dismissed, the prosecution may
refile the complaint within 15 days of the dismissal.
6)States that a second dismissal based on lack of probable will
bar any further prosecution for the same offense.
7)Specifies that the law will become inoperative on July 1,
2022, and repealed as of January 1, 2023, unless there is
further legislation as specified.
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 (Pen. Code,
§ 991, subd. (a).)
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. (Pen. Code, § 991, subd.
(b).)
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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. (Pen. Code, § 991, subd. (d).)
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. (Pen. Code, §
991, subd. (e).)
5)Requires the court dismiss the complaint and discharge the
defendant if it determines that no probable cause exists.
(Pen. Code, § 991, subd. (f).)
6)Allows the prosecution to refile the complaint within 15 days
of the dismissal of a complaint pursuant to Penal Code section
991. (Pen. Code, § 991, subd. (g).)
7)States that a second dismissal pursuant to this section is a
bar to any other prosecution for the same offense. (Pen. Code,
§ 991, subd. (h).)
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 hours, excluding Sundays and holidays.
(Pen. Code, § 825, subd. (a)(1).)
9) Prescribes that the 48 hour limitation for arraignment be
extended when:
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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. (Pen.
Code, § 825, subd. (a)(2).)
b) The 48 hours expire 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. (Pen. Code, § 825, subd.
(a)(2).)
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 five hundred dollars
($500), to be recovered by action in any court of competent
jurisdiction. (Pen. Code, § 825, subd. (b).)
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. (Pen. Code, §
853.6(b).)
FISCAL EFFECT: Unknown
COMMENTS:
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1)Author's Statement: 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
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 or she can seek a probable cause determination
from the judge presiding at his arraignment by way of a Penal
Code 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
or she 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.
"Like in-custody defendants, out of custody defendants charged
with a misdemeanor also have a significant interest in not
facing unsupported charges and having the specter of a trial
looming over them for months. These individuals must take
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time from their work, school or other activities, facing the
anxiety of being charged with a crime. In the face of such
demands, some innocent defendants are forced to 'take a deal'
rather than risk losing a job or failing their school work.
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, 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.
"In addressing these concerns, and pursuant to the Governor's
recommendation, AB 1106 will establish a carefully crafted
pilot that will provide such authority on a limited basis.
Specifically, the bill will establish, by July 1, 2017, a
5-year pilot project in six counties that would require a
judge to make a finding of probable cause in determining
whether a crime has been committed when a defendant is out of
custody and facing a misdemeanor charge. The bill requires
that the County of Los Angeles be included among the six
counties in the pilot and that the remaining five counties be
selected based on population size, including small, medium,
and large counties.
"This bill would provide that, within the applicable counties,
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
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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 will
show how it can benefit the prosecution by allowing it more
time to gather and present evidence to support its claim of
probable cause, and screening out-of-custody misdemeanor cases
before they potentially become an unnecessary burden on our
trial courts.
"AB 1106 provides an inexpensive and streamlined mechanism in
identifying meritless cases and should pay dividends for those
selected counties in saved time, stress, and resources for all
involved."
2)Governor's Veto Message: AB 696 (Jones-Sawyer), of the
2015-2016 Legislative Session, was vetoed by the Governor. AB
696 would have required a probable cause determination for out
of custody misdemeanor defendants upon request by the defense.
The Governor's veto message was as follows: "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."
3)Argument in Support: According to California Public Defenders
Association, "AB 1106 is responsive to the Governor's veto
message on AB 696 that suggests a pilot program be created.
"AB 1106 would create an arraignment pilot program that would
provide a judicial determination of probable cause for out of
custody individuals charged with misdemeanors. This would save
time and money by identifying meritless cases at an early
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stage in the proceedings.
"AB 1106 would save money and time for county government 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
the analysis of physical evidence and the employment of expert
witnesses. The time and expense required for this preparation
could be obviated if the court could make a probable cause
determination washing out weak and baseless cases at an early
stage.
"AB 1106 would prevent jurors from sitting through an entire
misdemeanor trial only to feel that their time has been wasted
by a baseless case. Even if the misdemeanor trial judge
suspects that the case may be weak, the judge has no power to
make that determination before trial. The judge must wait for
the prosecution to conclude its case at trial before it may
rule on the sufficiency of evidence under the authority
granted to the court under Penal Code section 1118 or 1118.1.
By then the court has expended virtually all the resources
involved in a full trial.
"AB 1106 will provide the courts with the authority to
efficiently handle the thousands, perhaps tens of thousands of
new misdemeanors created by Proposition 47. It will amend
Penal Code section 991 to allow courts to make probable cause
determinations for out-of-custody misdemeanors as well as
custody misdemeanors.
"Finally, AB 1106 will prevent unnecessary stress, oppression
and expense for innocent people who have been wrongly arrested
and charged with misdemeanors. The disruption of an
individual's life when under the shadow of a criminal charge
can be enormous. They must take time from their work, school
or other activities. They face the anxiety of being charged
with a crime. In the face of such demands, some innocent
defendants are forced to take a 'deal' rather than risk losing
a job or failing their school work."
4)Related Legislation: AB 696 (Jones-Sawyer), of the 2015-2016
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Legislative Session, would have required probable cause
determination for out of custody misdemeanor defendants upon
request by the defense. AB 696 was vetoed by the governor.
REGISTERED SUPPORT / OPPOSITION:
Support
California Public Defenders Association
Opposition
None
Analysis Prepared
by: David Billingsley / PUB. S. / (916) 319-3744