BILL ANALYSIS Ó
AB 2013
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CONCURRENCE IN SENATE AMENDMENTS
AB
2013 (Jones-Sawyer)
As Amended August 15, 2016
Majority vote
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|ASSEMBLY: |63-14 |(June 1, 2016) |SENATE: | |(August 24, |
| | | | |22-15 |2016) |
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Original Committee Reference: PUB. S.
SUMMARY: 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.
The Senate amendments:
1)Specify that the provisions of this bill shall become
inoperative on July 1, 2020, and, as of January 1, 2021,are
repealed, unless a later enacted statute deletes or extends
the dates on which it becomes inoperative and is repealed.
2)Provide that the pilot counties shall be selected by a three
member committee consisting of a member selected by the
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California Public Defenders Association, a member selected by
the California District Attorneys Association, and a member
selected by the Judicial Council.
3)State that the committee shall select one small county, one
medium county, and one large county to participate in the
pilot project.
4)Require the committee to consult with the relevant local
officials in the eligible counties in making its selections.
5)Require a county selected for the pilot project to have a
county public defender's office.
6)Define a "small county" as a county with a population of not
less than 250,000 residents and not more than 750,000
residents.
7)Define a "medium county" as a county with a population of not
less than 750,001 and not more than 2,600,000 residents.
8)Define a "large county" as a county with a population of not
less than 2,600,001 residents.
AS PASSED BY THE ASSEMBLY, this bill:
1)Established a Pilot Program for five years in six counties to
be selected by five-member committee.
2)Specified the members of the committee will be selected as
follows:
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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)Specified that the County of Los Angeles shall be included in
the pilot project.
4)Specified 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)Specified that if the charge is dismissed, the prosecution may
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refile the complaint within 15 days of the dismissal.
6)Stated that a second dismissal based on lack of probable will
bar any further prosecution for the same offense.
7)Required 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)Required the report submitted by DOJ to comply with the
Government Code, as specified.
9)Stated 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.
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
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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.
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.
5)Requires the court dismiss the complaint and discharge the
defendant if it determines that no probable cause exists.
6)Allows the prosecution to refile the complaint within 15 days
of the dismissal of a complaint pursuant to Penal Code section
991.
7)States that a second dismissal pursuant to this section is a
bar to any other prosecution for the same offense.
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.
FISCAL EFFECT: According to the Senate Appropriations
Committee:
1)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
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the pilot project would be dependent on the counties selected
for the project, which are not specified.
2)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.
*Trial Court Trust Fund
COMMENTS: 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 [United
States] 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 [PC] 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
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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
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
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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
Section 991 was enacted in 1980, that only a small fraction of
those defendants will bring a PC Section 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 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 Section 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."
Please see the policy committee analysis for a full discussion
of this bill.
Analysis Prepared by:
AB 2013
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David Billingsley / PUB. S. / (916) 319-3744
FN: 0004327