BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 2013 Hearing Date: June 28, 2016
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|Author: |Jones-Sawyer |
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|Version: |February 16, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|MK |
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Subject: Criminal Procedure: Arraignment Pilot Program
HISTORY
Source: California Public Defenders Association
Prior Legislation:AB 1106 (Jones-Sawyer) not heard Assem. Public
Safety 2016
AB 696 (Jones-Sawyer) Vetoed 2015
Support: American Civil Liberties Union of California;
California Attorneys for Criminal Justice; Conference
of California Bar Associations
Opposition:California District Attorneys Association; Judicial
Council of California
Assembly Floor Vote: 63 - 14
PURPOSE
The purpose of this bill is to establish 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.
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Existing law 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. (Penal Code,
§ 991 (a).)
Existing law 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. (Penal Code, § 991(b).)
Existing law provides 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. (Penal Code § 991 (d).)
Existing law 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. (Penal Code §
991(e).)
Existing law requires the court dismiss the complaint and
discharge the defendant if it determines that no probable cause
exists. (Penal Code, § 991 (f).)
Existing law allows the prosecution to refile the complaint
within 15 days of the dismissal of a complaint pursuant to Penal
Code section 991. (Penal Code, § 991 (g).)
Existing law states that a second dismissal pursuant to this
section is a bar to any other prosecution for the same offense.
(Penal Code, § 991 (h).)
Existing law 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. (Penal Code § 825 (a)(1).)
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Existing law requires that the 48 hour limitation for
arraignment be extended when:
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.
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. (Penal Code,
§ 825 (a)(2).)
Existing law 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. (Penal Code § 825 (b).)
Existing law 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. (Penal Code,
§ 853.6(b).)
This bill establishes a Pilot Program for five years in six
counties to be selected by five-member committee.
This bill 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.
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c) One member selected by the Judicial Council.
d) Two members selected by the Governor.
This bill specifies that the County of Los Angeles shall be
included in the pilot project.
This bill 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.
This bill specifies that if the charge is dismissed, the
prosecution may refile the complaint within 15 days of the
dismissal.
This bill states that a second dismissal based on lack of
probable will bar any further prosecution for the same offense.
This bill 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.
This bill has a sunset date of July 1, 2022.
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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
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
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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:
In 1975, the United States Supreme Court decided, in
Gerstein v. Pugh 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 15 Cal3d 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, 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 § 991. This
does not cover misdemeanants at liberty. Misdemeanor
defendants who are out of custody are in a uniquely
disadvantageous position in the judicial system because
they have no means of challenging "groundless or
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unsupported charges" by way of a "prompt probable cause
determination" before an "impartial magistrate." Being
that they are not in custody, they cannot ask for a
probable cause hearing under
Gerstein-Walters-McLaughlin or under PC § 991. Being
that they are not charged with a felony, they are not
entitled to a preliminary hearing or a PC § 995 motion.
Being that they are not a civil litigant, they cannot
bring a motion for summary judgment or a nonsuit.
Such a person must live under the cloud of such charges
for a prolonged period, expending time and resources to
prepare a defense. Only after they proceed to trial,
and after the prosecution completes its case, can they
ask the judge to dismiss the case for insufficient
evidence under Penal Code § 1118 and § 1118.1. By then,
not only has the defendant expended almost all of the
necessary time and resources for mounting a defense,
but the court also has expended its time and resources,
including the time, attention, and personal sacrifice
of jurors who put their lives on hold to attend the
trial.
2. Prompt Probable Cause Hearing
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. Veto Message AB 696
Last year, AB 696 (Jones-Sawyer) allowed all out of custody
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defendants to ask for a determination of probable cause at
arraignment. Governor Brown vetoed that bill saying:
I am returning Assembly Bill 696 without my signature.
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.
4. Pilot Project
This bill will set up a five year pilot project to evaluate the
impact of probable cause determinations at arraignment for out
of custody defendants. The pilots will take place in Los
Angeles County and five other counties which shall be selected
by a Committee. DOJ will report on the implementation of the
piolet projects.
5. Support
The sponsors of this bill the California Public Defenders
Association believes:
AB 2013 would save money and time for county
governments 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 analysis of
physical evidence and the employment of expert
witnesses. The time and expense for this preparation
could be obviated if the court could make a probable
cause determination washing out weak and baseless
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cases at an early stage.
AB 2013 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 not 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 .1. By then the court has expended
virtually all the resources involved in a full trial.
AAB 2103 will provide the courts with the authority to
efficiently handle 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 determination for out of
custody misdemeanors as well as custody misdemeanors.
Finally, AB 2013 will prevent unnecessary stress,
oppression and expense for innocent people who have
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 charge with a crime.
In the face of such demands, some innocent defendants
are forced to take a "deal" rather than risk losing a
ob or failing their school work.
6. Opposition
The California District Attorneys Association opposes this bill
stating;
In vetoing a substantively similar bill last year (AB
696), Governor Brown noted that he "would welcome a
small, carefully crafted pilot to assess the impact
of this proposal."
Unfortunately, the pilot program envisioned by AB
2013 is neither small, nor carefully crafted.
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Instead, this is simply a policy change affecting six
counties (including the largest single unified trial
court in the United States) with a five year sunset
date, after which the Legislature would ostensibly
seek to impose the policy on the entire state, as was
the intent of AB 696. While the bill requires the
Department of Justice to report to the Legislature on
the number of dismissals resulting from this new
procedure, it is our understanding that the
Department of Justice does not currently track this
information, nor do they have a mechanism by which to
do so.
Even if those logistical hurdles could be cleared, we
believe that this expansion of PC 991 is unnecessary.
In Gerstein v. Pugh (1975) 420 U.S. 103, the United
States Supreme Court held that the Fourth Amendment
provides in-custody defendants with the right to a
prompt post-arrest determination of whether there is
probable cause to believe that he or she has
committed a crime.
Following Gerstein, Penal Code section 991 was
enacted "to be a safeguard against the hardship
suffered by a misdemeanant who is detained in
custody, by providing that a probable cause hearing
will be held immediately, at the time of
arraignment?" (People v. Ward (1986) 188 Cal.App.3d
Supp. 11, 15, 17.) This is evident from the plain
language of PC 991 which begins with "If the
defendant is in custody?" The deprivation of liberty
for a confined defendant is the hardship that PC 991
exists to protect against. For an out-of-custody
defendant, there is no such hardship.
To expand PC 991 to apply to out-of-custody
defendants is to misunderstand the entire purpose of
PC 991, and would result in additional trial court
resources being spent to remedy a hardship that
arguably does not exist.
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