BILL ANALYSIS Ó
AB 2013
Page 1
Date of Hearing: April 12, 2016
Counsel: David Billingsley
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
AB
2013 (Jones-Sawyer) - As Introduced February 16, 2016
SUMMARY: Establishes a five year pilot program 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 Program for five years in six counties to
be selected by five-member committee.
2)Specifies the members of the committee will be selected as
follows:
a) One member selected by the California Public Defenders
Association.
b) One member selected by the California District Attorneys
Association.
c) One member selected by the Judicial Council.
d) Two members selected by the Governor.
3)Specifies that the County of Los Angeles shall be included in
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the pilot project.
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
defendant's own motion, 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 days.
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.
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)Requires the Department of Justice (DOJ) to provide
information to the Assembly Committee on Budget, The Senate
Committee on Budget and Fiscal Review, and the appropriate
policy committees of the Legislature regarding implementation
of the pilot program, including the number of instances that a
prompt probable cause determination made to an out of custody
defendant facing a misdemeanor charge resulted in the
defendant's early dismissal.
8)Requires the report submitted by DOJ to comply with the
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Government Code, as specified.
9)States that the pilot program will become inoperative on July
1, 2022, and is repealed January 1, 2023, unless there are
later enacted statutes which delete or extend the dates.
EXISTING LAW:
1)Requires that if the defendant is in custody at the time he or
she appears 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's own motion, 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).)
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
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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, he or she is to be
taken before the magistrate without unnecessary delay, and, in
any event, within 48 hour, excluding Sundays and holidays.
(Pen. Code, § 825, subd. (a)(1).)
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. (Pen.
Code, § 825, subd. (a)(2).)
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. (Pen. Code, §
825, subd. (a)(2).)
10)Allows after the arrest, any attorney at law entitled to
practice in 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. (Pen. Code, § 825, subd.
(b).)
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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:
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
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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.
"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
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 2013 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.
"Though hundreds of thousands of misdemeanors are filed in
this state each year and tens of thousands of misdemeanor
defendants 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
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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 2013 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)Legal Background: In 1975, the United States Supreme Court
decided, in Gerstein v. Pugh (1975) 420 U.S 103, that the 5th
amendment right to due process required that a person arrested
without a warrant receive a "prompt" probable cause
determination from an impartial magistrate. That same year,
the California Supreme Court decided, in the case of In re
Walters (1975) 15 Cal.3d 738, that Gerstein was binding on
California and applied to misdemeanors as well as felonies.
The U.S Supreme Court refined its Gerstein v. Pugh decision by
holding, in County of Riverside v. McLaughlin (1991) 500 U.S.
44, that "prompt" means within 48 hours, with no exception for
weekends or holidays.
In 1980, after Gerstein and Walters, but before McLaughlin,
this case law was codified as to misdemeanants in custody, in
Penal Code section 991. Penal Code section 991 does not cover
misdemeanants who are out of custody.
3)Governor's Veto Message: AB 696 (Jones-Sawyer), of the
2015-2016 Legislative Session, was vetoed by the Governor. AB
696 would have required probable cause determination for out
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of custody misdemeanor defendants upon request by counsel.
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."
4)Argument in Support: According to California Attorneys for
Criminal Justice, "Under California law, both felony-charged
and misdemeanor-charged defendants who are in custody, receive
a determination of probable cause within 48 hours of being
arrested. However, misdemeanor defendants who are out of
custody must wait at least 10 days and such determinations can
take weeks or months.
"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
time off work, school or other activities, facing the anxiety
of being charged with a crime. In the face fo such demands,
some innocent defendants are forced to "take a deal"rather
than risk losing a job or failing their school work.
"AB 2013 would establish a 5-year pilot project in six counties
that would require a court, on motion by the defendant or the
defendant's counsel. To make a finding of probable cause in
determining whether a crime has been committed when the
defendant is out of custody and facing a misdemeanor charge.
"As the number of misdemeanor cases increases with the passage
of Proposition 47, and with judicial resources continuing to
shrink, the court system has a vested interest in screening
out-of-custody misdemeanor cases before they become an
unnecessary burden on our trial courts."
5)Prior Legislation:
a) AB 696 (Jones-Sawyer), of the 2015-2016 Legislative
Session, would have required probable cause determination
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for out of custody misdemeanor defendants upon request by
counsel. AB 696 was vetoed by the Governor.
REGISTERED SUPPORT / OPPOSITION:
Support
California Public Defenders Association
California Attorneys for Criminal Justice
Opposition
None
Analysis Prepared
by: David Billingsley / PUB. S. / (916) 319-3744