BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    AB 1272       Hearing Date:    June 14, 2016    
          
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          |Author:    |Grove                                                |
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          |Version:   |January 13, 2016                                     |
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          |Urgency:   |No                     |Fiscal:    |No               |
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          |Consultant:|MK                                                   |
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               Subject:  Criminal Procedure:  Trial Schedule Conflicts



          HISTORY
          
          Source: The Arc 
               United Cerebral Palsy California Collaboration 


          Prior Legislation:AB 2814 (Koretz) failed Senate Public Safety  
          2006
                            AB 1273 (Nakanishi) Chapter 133, Stats. 2003
                                              AB 2653 (Chu) - Chapter 788,  
          Stats. 2002
                                              AB 2125 (Pacheco) Chapter  
          268, Stats. 2000
                                              SB 69 (Murray)  Chapter 580,  
          Stats. 1999
                                               AB 501 (Nakano) Chapter  
                    382, Stats. 1999
                                    AB 1754 (Havice) Chapter 61, Stats.  
                    1998
                                               SB 215  (Alpert) Chapter  
                    69, Stats.  1997
                                               SB 1292 (Maddy) Chapter  
                    897, Stats. 1989
                                              AB 452 (Bronzan) Chapter  
                    461, Stats. 1987







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          Support:     California District Attorneys Association;  
                Disability Rights California; Judicial Council of  
                California

          Opposition:    None known

          Assembly Floor Vote:78 - 0
          PURPOSE

          This bill requires the court to make reasonable efforts to avoid  
          scheduling a case involving a crime committed against a person  
          with a developmental disability when the prosecutor has another  
          trial set.

          Existing law entitles both the prosecution and a defendant to a  
          right to a speedy trial. (Cal. Const., Art. I, § 13.) 

          Existing law provides that absent good cause, a defendant is  
          entitled to have felony charges against him or her dismissed if  
          he or she is not brought to trial within 60 days after  
          arraignment. (Penal Code §§1049.5 & 1382 (a)(2).) 

          Existing law allows a trial court to grant continuances only  
          upon a showing of "good cause." (Penal Code §1050 (e).) 

          Existing law states that neither the convenience of the parties  
          nor a stipulation of the parties is in and of itself good cause.  
          (Penal Code, §1050 (e).)

          Existing law provides that scheduling conflicts of a prosecutor  
          in specific types of cases does constitute good cause for a  
          continuance. (Penal Code §1050 (g)(2).) 

          Existing law requires the court to make reasonable efforts to  
          avoid scheduling a murder, sexual assault, child abuse, or  
          career criminal prosecution case when the prosecutor has another  
          trial set. (Penal Code §1048.1.)

          Existing law provides that "developmental disability" means a  
          disability that originates before an individual attains 18 years  
          of age; continues, or can be expected to continue, indefinitely;  
          and constitutes a substantial disability for that individual. As  
          defined by the Director of Developmental Services, in  








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          consultation with the Superintendent of Public Instruction, this  
          term shall include intellectual disability, cerebral palsy,  
          epilepsy, and autism. This term shall also include disabling  
          conditions found to be closely related to intellectual  
          disability or to require treatment similar to that required for  
          individuals with an intellectual disability, but shall not  
          include other handicapping conditions that are solely physical  
          in nature. (Welfare and Institutions Code § 4512 (a).)

          This bill provides that the court shall also make reasonable  
          efforts to avoid scheduling a trial where an offense is alleged  
          to have occurred against a person with a developmental  
          disability.

          This bill defines developmental disability as the meaning found  
          in Welfare and Institutions Code Section 4512.

                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the past several 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 December of 2015 the administration reported that as "of  
          December 9, 2015, 112,510 inmates were housed in the State's 34  
          adult institutions, which amounts to 136.0% of design bed  
          capacity, and 5,264 inmates were housed in out-of-state  
          facilities.  The current population is 1,212 inmates below the  
          final court-ordered population benchmark of 137.5% of design bed  








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          capacity, and has been under that benchmark since February  
          2015."  (Defendants' December 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).)  One  
          year ago, 115,826 inmates were housed in the State's 34 adult  
          institutions, which amounted to 140.0% of design bed capacity,  
          and 8,864 inmates were housed in out-of-state facilities.   
          (Defendants' December 2014 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 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  
          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:

            Prosecution of a case in which the victim has a  








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            developmental disability can be complex and difficult for  
            several reasons. In cases where the victim has an  
            intellectual disability, the prosecutor may need to use  
            specialized interviewing techniques, and the prosecutor  
            may need to spend more with the victim to gain the  
            victim's trust. In cases involving either intellectual or  
            physical disabilities, in which the victim has speech  
            challenges, an inexperienced prosecutor may have  
            difficulty. In addition, a prosecutor who is not trained  
            or experienced in conveying to a jury that a witness with  
            a developmental disability can be a credible witness may  
            be at a disadvantage in a trial.

            Assigning an inexperienced or untrained prosecutor to a  
            trail can put the prosecution at an unfair disadvantage.

          2.  Sixth Amendment  
          
          A defendant has a right to a speedy trial guaranteed by the  
          Sixth Amendment of the United States Constitution, and Article  
          I, Section 13, of the California Constitution.  The United  
          States Supreme Court set forth a four-element test in  
          determining whether a delay in trial violated federal  
          constitutional standards:  "Length of delay, the reason for the  
          delay, the defendant's assertion of his right, and prejudice to  
          the defendant."  (Barker v. Wing (1972) 407 U.S. 514, 530.)  The  
          California Supreme Court has held that a delay without good  
          cause of more than the sixty-day time period set forth in Penal  
          Code Section 1382 is a legislatively determined violation of a  
          defendant's constitutional right to a speedy trial.  (Sykes v.  
          Superior Court (1973) 9 Cal.3d 83, 89.)

          3. Trial Setting

          As noted above, a defendant has a right to a speedy trial  
          guaranteed by both the Sixth Amendment of the United States  
          Constitution and by the California Constitution. To implement an  
          accused's constitutional right to a speedy trial, the  
          Legislature has prescribed certain time periods within which an  
          accused must be brought to trial. (See Penal Code, § 1382.) To  
          go beyond the time frames good cause must be shown.  Good cause  
          is not defined in statute; rather, what constitutes good cause  
          depends on the totality of the circumstances in each case.  
          (People v. Johnson (1980) 26 Cal.3d 557, 570.) Generally,  








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          unavailability of the prosecutor due to calendar conflicts does  
          not constitute good cause in and of itself. (See e.g., Batey v.  
          Superior Court (1977) 71 Cal.App.3d 952.) However, the  
          Legislature has determined that when the prosecutor is  
          unavailable to try a case involving murder, career criminal  
          prosecutions, child abuse, domestic violence, certain sex  
          offenses, and stalking, this constitutes automatic good cause  
          for a continuance of up to 10 days. (Penal Code, § 1050(g)(2).) 

          Existing law also directs judges to take reasonable efforts to  
          avoid double setting a prosecutor for trial where one of the  
          cases involves a charge of murder, sexual assault, child abuse  
          or a career criminal prosecution. (Penal Code, § 1048.1.) This  
          bill would add cases in which it is charged that the victim is a  
          person with a developmental disability, as defined, to these  
          provisions. It does not provide that automatic good cause for  
          continuance of a criminal trial includes cases where a victim is  
          a person with a developmental disability. The court retains  
          discretion to manage its trial calendar.

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