BILL ANALYSIS                                                                                                                                                                                                    Ó




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                                        VETO 


          Bill No:  SB 1052
          Author:   Lara (D) and Mitchell (D), et al.
          Amended:  8/18/16  
          Vote:     21 

           SENATE PUBLIC SAFETY COMMITTEE:  5-1, 4/19/16
           AYES:  Hancock, Anderson, Leno, Liu, Monning
           NOES:  Stone
           NO VOTE RECORDED:  Glazer

           SENATE APPROPRIATIONS COMMITTEE:  5-2, 5/27/16
           AYES:  Lara, Beall, Hill, McGuire, Mendoza
           NOES:  Bates, Nielsen

           SENATE FLOOR:  24-14, 6/1/16
           AYES:  Allen, Beall, Block, Cannella, De León, Hall, Hancock,  
            Hernandez, Hertzberg, Hill, Hueso, Lara, Leno, Leyva, Liu,  
            McGuire, Mendoza, Mitchell, Monning, Pan, Pavley, Roth,  
            Wieckowski, Wolk
           NOES:  Anderson, Bates, Berryhill, Fuller, Gaines, Galgiani,  
            Glazer, Huff, Moorlach, Morrell, Nguyen, Nielsen, Stone, Vidak
           NO VOTE RECORDED:  Jackson, Runner

           SENATE FLOOR:  26-13, 8/30/16
           AYES:  Allen, Beall, Block, Cannella, De León, Galgiani, Hall,  
            Hancock, Hernandez, Hertzberg, Hill, Hueso, Jackson, Lara,  
            Leno, Leyva, Liu, McGuire, Mendoza, Mitchell, Monning, Pan,  
            Pavley, Roth, Wieckowski, Wolk
           NOES:  Anderson, Bates, Berryhill, Fuller, Gaines, Glazer,  
            Huff, Moorlach, Morrell, Nguyen, Nielsen, Stone, Vidak

           ASSEMBLY FLOOR:  50-28, 8/23/16 - See last page for vote

           SUBJECT:   Custodial interrogation:  juveniles









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          SOURCE:    Human Rights Watch
          DIGEST:   This bill requires that a youth under the age of 18  
          consult with counsel prior to a custodial interrogation and  
          before waiving any specified rights.

          Existing law:

          1)Provides that a peace officer may, without a warrant, take  
            into temporary custody a minor. (Welfare and Institutions Code  
            § 625)

          2)Provides that in any case where a minor is taken into  
            temporary custody on the ground that there is reasonable cause  
            for believing that such minor will be adjudged a ward of the  
            court or charged with a criminal action, or that he has  
            violated an order of the juvenile court or escaped from any  
            commitment ordered by the juvenile court, the officer shall  
            advise such minor that anything he says can be used against  
            him and shall advise him of his constitutional rights,  
            including his right to remain silent, his right to counsel  
            present during any interrogation, and his right to have  
            counsel appointed if he is unable to afford counsel. (Welfare  
            and Institutions Code § 625 (c))

          3)Provides that when a minor is taken into a place of  
            confinement the minor shall be advised that he has the right  
            to make at least two telephone calls, one completed to a  
            parent or guardian, responsible adult or employer and one to  
            an attorney. (Welfare and Institutions Code § 627)

          This bill:

          1)Provides that prior to a custodial interrogation and before  
            the waiver of any Miranda rights, a youth under 18 years of  
            age shall consult with legal counsel.

          2)Provides that the consultation with legal counsel shall not be  
            waived.

          3)Provides that consultation with counsel may be in person, by  
            telephone or by video conference.








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          4)Requires the court, in adjudicating the admissibility of  
            statements of youth under 18 years of age made during or after  
            a custodial interrogation, consider the effect of failure to  
            comply with the consultation to counsel requirement.

          5)Provides this bill does not apply to the admissibility of  
            statements of a youth under 18 years of age if both of the  
            following criteria are met:

             a)   The officer who questioned the suspect reasonably  
               believed the information he or she sought was necessary to  
               protect life or property from a substantial threat.
             b)   The officer's questions were limited to those questions  
               that were reasonably necessary to obtain this information

          6)Does not require a probation officer to comply with the  
            consultation with counsel requirement in the normal  
            performance of his or her duties.

          Comments
          
          Miranda v. Arizona
          
              In Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct.  
              1602, 16 L.Ed.2d 694, the Court (5-4) decided four cases  
              (Miranda v. Arizona, Vignera v. New York, Westover v.  
              United States, and California v. Stewart) and imposed  
              new constitutional requirements for custodial police  
              interrogation, beyond those laid down [previously].  The  
              Court required that a person be informed of his or her  
              right to remain silent and stated that the right can be  
              waived it must be made voluntarily, knowingly and  
              intelligently.  If a person indicates that he or she  
              wishes to speak to an attorney or states that he or she  
              does not wish to be interrogated at any time in the  
              process there can be no further questioning.  "The mere  
              fact that he may have answered some questions or  
              volunteered some statements on his own does not deprive  
              him of the right to refrain from answering any further  
              inquiries until he has consulted with an attorney and  
              thereafter consents to be questioned." (86 S.Ct. 1612,  








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              16 L.Ed.2d 706.) (5 Witkin Cal. Crim. Law Crim Trial §  
              107)

          Minors and Miranda. Under this bill, a youth under 18 years of  
          age would be required to consult with legal counsel prior to  
          waiving his or her rights under Miranda.   The right to legal  
          counsel cannot be waived.

          American Academy of Child and Adolescent Psychiatry.  In a  
          Policy Statement dated March 7, 2013 the American Academy of  
          Child and Adolescent Psychiatry expressed its beliefs that  
          juveniles should have counsel present when interrogated by law  
          enforcement:

              Research has demonstrated that brain development  
              continues throughout adolescence and into early  
              adulthood.  The frontal lobes, responsible for mature  
              thought, reasoning and judgment, develop last.   
              Adolescents use their brains in a fundamentally  
              different manner than adults. They are more likely to  
              act on impulse, without fully considering the  
              consequences of their decisions or actions.

              The Supreme Court has recognized these biological and  
              developmental differences in their recent decisions on  
              the juvenile death penalty, juvenile life without parole  
              and the interrogations of juvenile suspects. In  
              particular, the Supreme Court has recognized that there  
              is a heightened risk that juvenile suspects will falsely  
              confess when pressured by police during the  
              interrogation process.  Research also demonstrates that  
              when in police custody, many juveniles do not fully  
              understand or appreciate their rights, options or  
              alternatives. 
               
              Accordingly, the American Academy of Child and  
              Adolescent Psychiatry believes that juveniles should  
              have an attorney present during questioning by police or  
              other law enforcement agencies. While the Academy  
              believes that juveniles should have a right to consult  
              with parents prior to and during questioning, parental  
              presence alone may not be sufficient to protect juvenile  








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              suspects. Moreover, many parents may not be competent to  
              advise their children on whether to speak to the police  
              and may also be persuaded that cooperation with the  
              police will bring leniency. There are numerous cases of  
              juveniles who have falsely confessed with their parents  
              present during questioning?. [citations  
              omitted](https://www.aacap.org/aacap/policy_statements/20 
              13/Interviewing_and_Interrogating_Juvenile_Suspects.aspx) 
              

          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:NoLocal:    No

          According to the Assembly Appropriations Committee analysis:

          1)Significant non-reimbursable annual costs, potentially in the  
            millions of dollars, to local agencies to provide legal  
            counsel to minors prior to custodial interrogations.  
            Proposition 30 exempts the State from mandate reimbursement  
            for realigned responsibilities for "public safety services"  
            including the provision of services for, and supervision of,  
            juvenile offenders. However, legislation enacted after  
            September 30, 2012, that has an overall effect of increasing  
            the costs already borne by a local agency for public safety  
            services applies to local agencies only to the extent that the  
            State provides annual funding for the cost increase.  The  
            provisions of Proposition 30 have not been interpreted through  
            the formal court process to date; however, to the extent local  
            agency costs to county probation and sheriff departments  
            resulting from this measure are determined to be applicable  
            under the provisions of Proposition 30, SB 1052 could  
            potentially result in additional costs to the State 


          2)Minor one-time cost in the $50,000 range, and ongoing cost in  
            the $50,000 range to the Division of Juvenile Justice (DJJ) in  
            the California Department of Corrections and Rehabilitation  
            (CDCR).  One-time cost to update DJJ regulations and  
            procedures, and ongoing costs to provide a higher level of  
            legal services to DJJ wards.










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          3)Minor costs to several state agencies with law enforcement  
            responsibilities (other than CDCR), such as CHP, Department of  
            Justice, and Department of Fish and Wildlife, who may interact  
            juvenile offenders, to update their regulations and  
            procedures.  




          SUPPORT:   (Verified10/17/16)


          Human Rights Watch (source)
          American Civil Liberties Union
          Asian Law Alliance
          California Alliance for Youth and Community Justice
          California Attorneys for Criminal Justice
          California Catholic Conference
          California Public Defenders Association
          Campaign for Youth Justice
          Center on Juvenile and Criminal Justice
          Center on Wrongful Convictions of Youth
          Children's Defense Fund - California
          Coalition for Justice and Accountability
          Disability Rights California
          Ella Baker Center for Human Rights
          Fathers and Families of San Joaquin
          First Focus Campaign for Children
          Friends Committee on Legislation of California
          Justice Not Jails
          Law Office of Jeremy D. Blank
          Legal Services for Prisoners with Children
          National Center for Youth Law
          National Council on Crime and Delinquency
          National Lawyers Guild
          Pacific Juvenile Defender Center
          San Jose/Silicon Valley NAACP
          Services, Immigrant Rights & Education Network
          SFChildrenslaw
          Silicon Valley De-Bug
          The Peace and Justice Commission of St. Mark Presbyterian Church
          Youth Justice Coalition








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          Youth United for Community Action


          OPPOSITION:   (Verified10/17/16)


          California District Attorneys Association
          California State Sheriffs' Association


          ARGUMENTS IN SUPPORT:     The National Center for Youth Law  
          supports this bill stating:

               Currently, youth in California can waive their Miranda  
               rights on their own, as long as the waiver is made in a  
               voluntary, knowing, and intelligent manner. Yet  
               research demonstrates that young people often fail to  
               comprehend the meaning of Miranda rights.  Even more  
               troubling is the fact that young people are unlikely to  
               appreciate the consequences of giving up those rights.   
               They are also more likely than adults to waive their  
               rights and confess to crimes they did not commit.

               Widely accepted research concludes that young people  
               have less capacity to exercise mature judgment and are  
               more likely than adults to disregard the long-term  
               consequences of their behavior.  Over the last 10  
               years, the United States and California Supreme Courts,  
               recognizing that developmental abilities of youth are  
               relevant to criminal culpability and the capacity to  
               understand procedures of the criminal justice system,  
               have enunciated a new jurisprudence grounded in this  
               research.

               Moreover, courts have noted that young people are more  
               vulnerable than adults to interrogation and have a  
               limited understanding of the criminal justice system.  
               These problems are amplified for youth who are very  
               young, or who have developmental disabilities,  
               cognitive delays or mental health challenges.  A recent  
               study of exonerations found that 42 percent of  
               juveniles had falsely confessed as compared to just 13  








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               percent of adults. The ramifications for both the  
               individual and society of soliciting unreliable  
               evidence and false confessions are far-reaching?.


               People who work closely with youth and help them  
               navigate legal decision-making know that a young person  
               can understand the literal meanings of Miranda rights,  
               but fail to appreciate the implications of giving up  
               those rights.  


          ARGUMENTS IN OPPOSITION:     According to the California  
          District Attorneys Association:

               We believe that the procedure sought by this bill  
               would frustrate criminal investigations and cast doubt  
               upon voluntary confessions introduced at trial.

               As subdivision (c) of Section 1 of the bill notes,  
               juveniles already receive a more generous  
               interpretation of Miranda rights, in that the court  
               must take the juvenile's age, education, and  
               immaturity into account when considering whether there  
               has been a valid Miranda waiver.  (Fare v. Michael C.  
               (1979) 442 U.S. 707, 725).  

               SB 1052 would expand those protections even further,  
               by mandating a consultation between a juvenile and an  
               attorney - a consultation that the juvenile is  
               prohibited from waiving.  Failure to follow this  
               procedure would result in a host of sanctions designed  
               to undermine the credibility of any statements made by  
               the juvenile, regardless of whether any actual  
               coercion took place.

               To illustrate one such problem with this approach,  
               consider the following example.  A juvenile is  
               arrested, and properly advised of his Miranda rights.   
               While in custody, and being transported to the police  
               station, he makes statements incriminating himself, or  
               perhaps even confesses to the crime for which he has  








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               been arrested.  Upon reaching the police station, the  
               juvenile consults with counsel, per the mandate in SB  
               1052.

               According to the language of the bill, this would be a  
               "failure to comply" since the statement was made in a  
               custodial setting prior to the juvenile consulting  
               with counsel.  Under proposed Welfare & Institutions  
               Code section 625.6(b)(2), this failure" would be  
               admissible in support of a claim that the statement  
               was made in violation of the juvenile's Miranda  
               rights, was involuntary, or is unreliable.  



          That, of course, is simply untrue.  There was no violation of  
          the juvenile's Miranda rights, as he was properly advised of  
          them, and the court is already required to consider the  
          additional factors pertaining to juveniles under Fare.  The only  
          "right" that was arguably violated was this new statutory right  
          under WIC 625.6 - and even then, the arresting officers  
          attempted to comply at the first available opportunity.  Unless  
          every officer is going to have a defense attorney at his or her  
          side when taking juveniles into custody, it's unclear how this  
          would work in practice.




          GOVERNOR'S VETO MESSAGE:


               I am returning Senate Bill 1052 without my signature.

               This bill would require -- in almost all cases -- that a  
               youth under 18 must consult an attorney before a custodial  
               interrogation begins.

               This bill presents profoundly important questions involving  
               the constitutional right not to incriminate oneself and the  
               ability of the police to interrogate juveniles. Ever since  
               1966, the rule has been that interrogations of criminal  








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               suspects be preceded by the Miranda warning of the right to  
               remain silent and the right to have an attorney.

               In more cases than not, both adult and juvenile suspects  
               waive these rights and go on to answer an investigator's  
               questions. Courts uphold these "waivers" of rights as long  
               as the waiver is knowing and voluntary. It is rare for a  
               court to invalidate such a waiver.

               Recent studies, however, argue that juveniles are more  
               vulnerable than adults and easily succumb to police  
               pressure to talk instead of remaining silent. Other studies  
               show a much higher percentage of false confessions in the  
               case of juveniles.

               On the other hand, in countless cases, police investigators  
               solve very serious crimes through questioning and the  
               resulting admissions or statements that follow.

               These competing realities raise difficult and troubling  
               issues and that is why I have consulted widely to gain a  
               better understanding of what is at stake. I have spoken to  
               juvenile judges, police investigators, public defenders,  
               prosecutors and the proponents of this bill. I have also  
               read several research studies cited by the proponents and  
               the most recent cases dealing with juvenile confessions.

               After carefully considering all the above, I am not  
               prepared to put into law SB 1052's categorical requirement  
               that juveniles consult an attorney before waiving their  
               Miranda rights. Frankly, we need a much fuller  
               understanding of the ramifications of this measure.

               In the coming year, I will work with proponents, law  
               enforcement and other interested parties to fashion reforms  
               that protect public safety and constitutional rights. There  
               is much to be done.

          ASSEMBLY FLOOR:  50-28, 8/23/16
          AYES:  Alejo, Atkins, Bloom, Bonilla, Bonta, Brown, Burke,  
            Calderon, Campos, Chau, Chiu, Chu, Cooley, Cooper, Dababneh,  
            Daly, Dodd, Eggman, Cristina Garcia, Eduardo Garcia, Gipson,  








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            Gomez, Gonzalez, Gordon, Gray, Roger Hernández, Holden, Irwin,  
            Jones-Sawyer, Levine, Lopez, Low, McCarty, Medina, Mullin,  
            Nazarian, O'Donnell, Olsen, Quirk, Ridley-Thomas, Rodriguez,  
            Salas, Santiago, Mark Stone, Thurmond, Ting, Weber, Williams,  
            Wood, Rendon
          NOES:  Achadjian, Travis Allen, Arambula, Baker, Bigelow,  
            Brough, Chang, Chávez, Dahle, Beth Gaines, Gallagher, Gatto,  
            Grove, Hadley, Harper, Jones, Kim, Lackey, Linder, Mathis,  
            Mayes, Melendez, Obernolte, Patterson, Steinorth, Wagner,  
            Waldron, Wilk
          NO VOTE RECORDED:  Frazier, Maienschein


          Prepared by:Mary Kennedy / PUB. S. / 
          10/25/16 13:28:59


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