BILL ANALYSIS Ó SENATE COMMITTEE ON APPROPRIATIONS Senator Ricardo Lara, Chair 2015 - 2016 Regular Session AB 2013 (Jones-Sawyer) - Criminal procedure: arraignment pilot program ----------------------------------------------------------------- | | | | | | ----------------------------------------------------------------- |--------------------------------+--------------------------------| | | | |Version: February 16, 2016 |Policy Vote: PUB. S. 4 - 3 | | | | |--------------------------------+--------------------------------| | | | |Urgency: No |Mandate: No | | | | |--------------------------------+--------------------------------| | | | |Hearing Date: August 1, 2016 |Consultant: Jolie Onodera | | | | ----------------------------------------------------------------- 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 AB 2013 (Jones-Sawyer) Page 1 of ? 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 AB 2013 (Jones-Sawyer) Page 2 of ? 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: AB 2013 (Jones-Sawyer) Page 3 of ? 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 AB 2013 (Jones-Sawyer) Page 4 of ? 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 AB 2013 (Jones-Sawyer) Page 5 of ? 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 AB 2013 (Jones-Sawyer) Page 6 of ? 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. -- END --