BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON APPROPRIATIONS
                             Senator Ricardo Lara, Chair
                            2015 - 2016  Regular  Session

          AB 2013 (Jones-Sawyer) - Criminal procedure:  arraignment pilot  
          program
          
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          |Version: February 16, 2016      |Policy Vote: PUB. S. 4 - 3      |
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          |Urgency: No                     |Mandate: No                     |
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          |Hearing Date: August 1, 2016    |Consultant: Jolie Onodera       |
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          This bill meets the criteria for referral to the Suspense File. 

          Bill  
          Summary:  AB 2013 would establish a five-year pilot project in  
          six counties that would require a court, upon request by a  
          defendant charged with a misdemeanor who is not in custody, to  
          make a finding at the arraignment as to whether probable cause  
          exists to believe that a public offense has been committed and  
          that the defendant is guilty thereof.  This bill would require  
          the Department of Justice (DOJ) to submit a report to the  
          Legislature no later than July 1, 2021, regarding the  
          implementation of the pilot project, as specified.


          Fiscal  
          Impact:  
            Courts  :  Potentially significant increase in court workload  
            and costs, potentially in excess of the low millions of  
            dollars (General Fund*), including Los Angeles County which is  
            a required pilot participant, for new probable cause  
            determinations for non-custodial misdemeanor defendants. The  
            overall costs of the pilot project would be dependent on the  
            counties selected for the project, which, aside from Los  







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            Angeles County, are not specified.
            DOJ report  :  One-time costs potentially in excess of $50,000  
            (General Fund) to collect the required information, including  
            but not limited to the number of instances that a prompt  
            probable cause determination made to a non-custodial  
            misdemeanor defendant resulted in the defendant's early  
            dismissal, from the pilot counties and report to the specified  
            Legislative committees. Staff notes the Judicial Council,  
            rather than the DOJ, may be the more appropriate agency to  
            submit the report.

          *Trial Court Trust Fund


          Background:  Existing law provides that upon motion by an in-custody  
          defendant at the time he or she appears before a magistrate for  
          arraignment and the offense is a misdemeanor to which the  
          defendant has pleaded not guilty, the magistrate is required to  
          determine whether there is probable cause to believe that a  
          public offense has been committed and that the defendant is  
          guilty thereof. (Penal Code (PC) § 991(a).) 
          Under existing law, the determination of probable cause is  
          required to be made immediately unless the court grants a  
          continuance for good cause not to exceed three court days. In  
          determining the existence of probable cause, the magistrate is  
          required to consider any warrant of arrest with supporting  
          affidavits, and the sworn complaint together with any documents  
          or reports incorporated by reference which, if based on  
          information and belief, state the basis for that information, or  
          any other documents of similar reliability. 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. If  
          the court determines that no such probable cause exists, it  
          shall dismiss the complaint and discharge the defendant. (PC §  
          991(b)-(d).) 

          According to the Appellate Division of the Superior Court for  
          the State of California, County of Los Angeles decision in  
          People v. McGowan (filed 3/27/15 BR 051696; Airport Trial Court  
          No. 4WA22795): 

              It was for good reason that the Legislature  
              implemented a procedure to ensure a confined  








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              misdemeanant is held for trial only if there is  
              probable cause to believe he or she committed a  
              crime charged in the complaint. The constitutional  
              right to a judicial determination of probable  
              cause following arrest has its roots in Gerstein  
              v. Pugh (1975) 420 U.S. 103. In that case, the  
              United States Supreme Court held the Fourth  
              Amendment vests an in-custody defendant with the  
              right to have a prompt post-arrest determination  
              of whether there is probable cause to believe he  
              or she committed "a crime." (Id. at pp. 114,  
              119-120.) The California Supreme Court ultimately  
              applied the Gerstein rule to California  
              misdemeanants held in custody. (In re Walters  
              (1975) 15 Cal.3d 738, 747 (Walters).) Section 991  
              did not exist at the time Walters was decided.  
              Thus, "California procedures governing the  
              pretrial detention of those charged with  
              misdemeanors . . . [did] not . . . comport with .  
              . . constitutional requirements . . . since the  
              defendant [was] not afforded a post-arrest  
              judicial determination that probable cause  
              exist[ed] for his continued detention." (Id. at p.  
              747.) This led to Walters' holding that, "unless  
              waived, a judicial determination of probable cause  
              is required in every case where a defendant  
              charged with a misdemeanor is detained awaiting  
              trial." (Ibid.) In response to the requirements of  
              Walters, 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 bill seeks to provide the same judicial process provided to  
          in-custody misdemeanor defendants to out-of-custody misdemeanor  
          defendants. 




          Proposed Law:  








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           This bill would provide that on or before July 1, 2017, six  
          counties shall be selected to participate in a five-year pilot  
          project that would require a court, upon request by an  
          out-of-custody misdemeanor defendant, to make a finding at the  
          arraignment as to whether probable cause exists to believe that  
          a public offense has been committed and that the defendant is  
          guilty thereof. This bill:
           Provides that the pilot counties shall be selected by a five  
            member committee. One member of the committee shall be  
            selected by the California Public Defenders Association, one  
            member of the committee shall be selected by the California  
            District Attorneys Association, one member of the committee  
            shall be selected by the Judicial Council, and two members of  
            the committee shall be selected by the Governor. The committee  
            shall select the six counties that will participate in the  
            pilot project, provided, however, that the County of Los  
            Angeles shall be included in the pilot project.


           Requires the following arraignment procedure to apply in the  
            pilot project counties:


               o      When the defendant is out of custody at the time he  
                 or she appears before the magistrate for arraignment and  
                 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.


               o      The determination of probable cause shall be made  
                 immediately, unless the court grants a continuance for  
                 good cause not to exceed 15 court days.


               o      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 that information, or any other documents of  








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                 similar reliability.


               o      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 maintain the trial date already  
                 calendared for the defendant.


               o      If the court determines that no probable cause  
                 exists, it shall dismiss the complaint and discharge the  
                 defendant.


               o      The prosecution may refile the complaint within 15  
                 days of the dismissal of a complaint pursuant to this  
                 section.


               o      A second dismissal pursuant to this section is a bar  
                 to any other prosecution for the same offense.


           Requires the Department of Justice to, no later than July 1,  
            2021, provide a report to the Assembly Committee on Budget,  
            the Senate Committee on Budget and Fiscal Review, and the  
            appropriate policy committees of the Legislature regarding the  
            implementation of this section, including, but not limited to,  
            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.


           Provides that the bill's provisions become inoperative on July  
            1, 2022.




          Related  
          Legislation:  AB 1106 (Jones-Sawyer) 2016 would have required  
          the Judicial Council to select six counties, including the  








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          County of Los Angeles, to participate in a five-year pilot  
          project that would require a court, upon request by an  
          out-of-custody misdemeanor defendant, to make a finding at the  
          arraignment as to whether probable cause exists to believe that  
          a public offense has been committed and that the defendant is  
          guilty thereof. This bill was not heard in the Assembly  
          Committee on Public Safety.

          AB 696 (Jones-Sawyer) 2015 would have required probable cause  
          determinations for misdemeanor defendants not in custody to be  
          made 30 days before the date calendared for trial at the  
          arraignment unless a later date is requested by the defense, as  
          specified. This bill was vetoed by the Governor with the  
          following message:


          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.


          Staff  
          Comments:  The Judicial Council has indicated a potentially  
          significant increase in workload for courts should the  
          provisions of this bill become law. By requiring courts to  
          provide in-court probable cause determinations for up to 90  
          percent of a county's charged misdemeanants (as it is estimated  
          10 percent are held in custody), costs for the six-county pilot,  
          which includes Los Angeles County, could potentially exceed  
          several million dollars annually, based on an estimate of three  
          minutes of court time per defendant to complete an uncontested  
          probable cause determination. 


          Recommended  








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          Amendments:  To reduce the potential fiscal impact of this  
          measure, the author may wish to consider (1) reducing the  
          duration of the pilot program from five years to three years,  
          and (2) reducing the number of pilot counties. Additionally, the  
          author may wish to consider an amendment to require the Judicial  
          Council, rather than the DOJ, to provide the legislative report.  



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