BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 2013|
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THIRD READING
Bill No: AB 2013
Author: Jones-Sawyer (D)
Amended: 8/15/16 in Senate
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE: 4-3, 6/28/16
AYES: Hancock, Leno, Liu, Monning
NOES: Anderson, Glazer, Stone
SENATE APPROPRIATIONS COMMITTEE: 5-2, 8/11/16
AYES: Lara, Beall, Hill, McGuire, Mendoza
NOES: Bates, Nielsen
ASSEMBLY FLOOR: 63-14, 6/1/16 - See last page for vote
SUBJECT: Criminal procedure: arraignment pilot program
SOURCE: California Public Defenders Association
DIGEST: This bill establishes a three year pilot program in
three 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.
ANALYSIS:
Existing law:
1)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
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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).)
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. (Penal Code, § 991(b).)
3)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).)
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. (Penal Code §
991(e).)
5)Requires the court dismiss the complaint and discharge the
defendant if it determines that no probable cause exists.
(Penal Code, § 991 (f).)
6)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).)
7)States that a second dismissal pursuant to this section is a
bar to any other prosecution for the same offense. (Penal
Code, § 991 (h).)
8)States 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).)
9)Requires that the 48 hour limitation for arraignment be
extended when:
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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.
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. (Penal Code,
§ 825 (a)(2).)
1)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).)
2)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:
1)Establishes a Pilot Program for three years in three counties:
a small, medium and large county as defined.
2)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
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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.
e) If, after examining these documents, the court determines
that there exists probable cause to believe the defendant
has committed the offense then it shall maintain the
existing trial date.
f) If the court determines that not probable cause exists,
it shall dismiss the complaint and discharge the defendant.
3)Specifies that if the charge is dismissed, the prosecution may
refile the complaint within 15 days of the dismissal.
4)States that a second dismissal based on lack of probable will
bar any further prosecution for the same offense.
5)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.
6)Sunsets on July 1, 2021.
Background
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
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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
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.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: No
According to the Senate Appropriations Committee Analysis:
Courts: Potentially significant increase in court workload
and costs, potentially in the low millions of dollars (General
Fund*), to the extent Los Angeles County is the large county
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 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
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misdemeanor defendant resulted in the defendant's early
dismissal, from the pilot counties and report to the specified
Legislative committees.
*Trial Court Trust Fund
SUPPORT: (Verified8/11/16)
California Public Defenders Association (source)
American Civil Liberties Union of California
California Attorneys for Criminal Justice
Conference of California Bar Associations
OPPOSITION: (Verified8/11/16)
California District Attorneys Association
Judicial Council of California
Los Angeles District Attorneys Association
ARGUMENTS IN 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
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
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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
job or failing their school work.
ARGUMENTS IN 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.
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
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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.
ASSEMBLY FLOOR: 63-14, 6/1/16
AYES: Achadjian, Alejo, Arambula, Atkins, Bloom, Bonilla,
Bonta, Brown, Burke, Calderon, Campos, Chang, Chau, Chiu, Chu,
Cooley, Dababneh, Daly, Dodd, Eggman, Frazier, Gallagher,
Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez,
Gonzalez, Gordon, Gray, Hadley, Roger Hernández, Holden,
Irwin, Jones, Jones-Sawyer, Lackey, Levine, Linder, Lopez,
Low, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte,
O'Donnell, Olsen, Quirk, Ridley-Thomas, Rodriguez, Salas,
Santiago, Mark Stone, Thurmond, Ting, Waldron, Weber, Wilk,
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Williams, Wood, Rendon
NOES: Travis Allen, Baker, Bigelow, Brough, Chávez, Beth
Gaines, Grove, Harper, Kim, Maienschein, Mathis, Mayes,
Steinorth, Wagner
NO VOTE RECORDED: Cooper, Dahle, Patterson
Prepared by:Mary Kennedy / PUB. S. /
8/15/16 19:39:41
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