BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 250|
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THIRD READING
Bill No: AB 250
Author: Miller (R)
Amended: 05/07/09 in Assembly
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 6-0, 6/16/09
AYES: Leno, Benoit, Cedillo, Hancock, Huff, Steinberg
NO VOTE RECORDED: Wright
ASSEMBLY FLOOR : 74-0, 5/18/09 - See last page for vote
SUBJECT : Criminal procedure: trials: timing
SOURCE : California District Attorneys Association
DIGEST : This bill requires that the withdrawal of a
general time waiver be done in open court, and that a trial
date be set and that all parties be properly notified of
the trial date.
ANALYSIS : Existing law states that both the People and a
defendant have a right to a speedy and public trial.
(Article I, Section 13 of the California Constitution)
Existing law provides that in a criminal action the
defendant is entitled to a speedy and public trial.
(Section 686(1) of the Penal Code)
Existing law provides that in a felony case, when a
defendant is not brought to trial within 60 days of the
CONTINUED
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defendant's arraignment on an indictment or information, or
in the case the cause is to be tried again following a
mistrial, the court shall, unless good cause to the
contrary is shown, order that the case be dismissed.
(Section 1382(a)(2) of the Penal Code)
Existing law provides that if the defendant enters a
general time waiver to the 60-day trial requirement, and if
the defendant, after proper notice to all parties, later
withdraws his or her waiver in the superior court, the
defendant shall be brought to trial within 60 days of that
withdrawal. (Section 1382(a)(2)(A) of the Penal Code)
Existing law provides that in a misdemeanor case,
regardless of when the complaint was filed, if the
defendant is not brought to trial within 30 days of
arraignment if the defendant is in custody, or within 45
days of arraignment if the defendant is not in custody, the
court shall dismiss the case. (Section 1382(a)(3) of the
Penal Code)
Existing law provides that if the defendant enters a
general time waiver to the 30-day or 45-day trial
requirement, and if the defendant, after proper notice to
all parties, later withdraws his/her waiver, the defendant
shall be brought to trial within 30 days of that
withdrawal. (Section 1382(a)(3)(A) of the Penal Code)
This bill requires that a defendant must withdraw a general
waiver in open court.
This bill further provides that upon the withdrawal of a
general time waiver in open court, a trial date shall be
set and all parties shall be properly notified of the date.
Background
According to the author:
"Existing law requires that defendant be brought to trial
within 60 days of arraignment in a felony case, or within
30 days of arraignment in a misdemeanor case, as
specified. Currently, a defendant may withdraw his or
her waiver of time (right to a speedy trial) or consent
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to an extension of time, as specified.
"Once a defendant withdraws his or her time waiver, after
all parties have been properly notified, the case is
required to be brought to trial within 60 days (felony
cases) or 30 days (misdemeanor cases) of arraignment. If
a defendant does not waive their right to a "speedy
trial" or consent to an extension of time, as specified,
and the case is not brought to trial within 60 days
(felony cases) or 30 days (misdemeanor cases) of
arraignment, the case must also be dismissed. The
problem is statutes fail to specify that a withdrawal
must be made in open court nor do they specify a minimum
period of notice before the withdrawal becomes effective.
"At the pretrial hearing of Arias v. Superior Court of
Orange County , the petitioner moved for dismissal,
contending that it was the last day to bring the
defendant to trial, because 30 days had lapsed since the
revocation of the general time waiver. The motion was
granted. In spite of this, the court set a trial date-so
the petitioner sought a writ of mandate from the
Appellate Court. The Court held that the defendant
successfully withdrew his waiver of the statutory speedy
trial right. The problem is statute authorizing
withdrawal does not specify that withdrawal must be made
in open court, or require any specific minimum period of
notice prior to the effective date of the withdrawal. In
its opinion, the Court recognized that its conclusion
could have substantial impact on the operation of trial
courts.
"Because of the State's financial difficulties, it is
rare that one deputy handles a case from charge to
sentencing. As a result, deputies are handling multiple
case files at once and often only see the file for the
first time a few days before the scheduled proceeding.
If a general time waiver is filed only in writing and not
in open court, the notice will merely be placed in the
file, only to be seen a few days before the scheduled
proceeding. If a general time waiver is filed only in
writing and not in open court, the notice will merely be
placed in the file, only to be seen a few days or hours
before the 30-day or 60-day period lapses. Deputy
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district attorneys must be as vigilant as possible, but
requiring the time waiver to be withdrawn in open court
is within the best interest of judicial efficiency.
Further, most people would agree that a person who has
committed a crime should not escape prosecution simply
because his or her counsel is not required to withdraw
the waiver in open court."
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 6/17/09)
California District Attorneys Association (source)
California State Sheriff's Association
Chief Probation Officers of California
Crime Victims United of California
Judicial Council
Los Angeles County District Attorney's Office
Office of the Attorney General
Orange County District Attorney's Office
Riverside County District Attorney
OPPOSITION : (Verified 6/17/09)
California Public Defenders Association
ARGUMENTS IN SUPPORT : The California District Attorneys
Association argues that this bill is necessary because
"Prosecution offices are facing increased workloads due to
the filing of more cases and reductions in the number of
deputy district attorneys because of fiscal difficulties.
As a result, deputies are handling large numbers of case
files at any given time, and they often see the file for
the first time only a few days before the next scheduled
proceeding. If a general time waiver is filed only in
writing and not in open court, the distinct probability
exists that it will be placed in the file, only to be seen
a few days or hours before the 30- or 60-day period lapses.
While deputy district attorneys must be as vigilant as
possible, requiring the time waiver to be withdrawn in open
court is within the best interest of judicial efficiency."
The Judicial Council supports this bill stating:
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"The council supports AB 250 because it will improve
court efficiency and ensure all parties have actual
notice of a change in the status of a criminal case.
When parties are unaware of a change of this
significance, court efficiency suffers. For example, if
a prosecutor becomes aware of the withdrawal of the time
waiver late in the process, he or she is likely to seek
dismissal and then re-file the case in order to avoid
violation of the defendant's speedy trial rights. This
results in duplicative and avoidable arraignments and
preliminary hearings.
"In addition requiring withdrawal of the time waiver in
open court would also eliminate the ability of a party to
manipulate the system. For example, a party may set
several cases for hearing on one date and then withdraw
the time waivers. The court then must either find
available courtrooms, judges, and juries, or dismiss the
case.
"By requiring personal appearances to withdraw the
waiver, the court can better manage its calendar. This
will reduce unnecessary and duplicative hearings and
potentially inappropriate dismissals."
ARGUMENTS IN OPPOSITION : The California Public Defenders
Association opposes this bill stating:
"AB 250 is unnecessary and wasteful. That is because, as
pointed out, a general waiver already cannot be withdrawn
without notice to all parties. Since the parties already
receive notice, it is unneeded and wasteful to set yet
another court date, requiring preparation and costs to
the court and prosecutor.
"On rare occasions, however, as noted, the court will
accept a general waiver under Sec. 1382, subd. (a)(2)(A),
but not set a trial date. In that event, of course,
existing law does not require a court to find good cause
to set an earlier trial date because no trial date has
been set anyway.
"No silent withdrawal of the general waiver is allowed:
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notice is required. The second sentence of the "general
waiver" provision expressly states: '[i]f the defendant,
after proper notice to all parties, later withdraws his
or her waiver in the superior court, the defendant shall
be brought to trial within 60 days of that withdrawal.'
So before a time waiver is effective, all parties and the
court must know.
"There are no statutory, or rule, guidelines for when the
court should accept a general waiver without setting a
trial date. Experience, however, shows that this is only
done in unusual cases where a long continuance is
appropriate before a trial date is set. Examples would be
when the time needed to prepare for trial is uncertain,
or where a large amount of restitution is being made by
payments, with an eye toward a negotiated plea agreement.
"If the defendant withdraws a general waiver where no
trial date was set, and both the prosecution and the
court-despite each having received notice-fail to set a
trial date, then the 60-day limit might be exceeded and
the case might have to be dismissed. Of course under
Penal Code section 1387, most felony cases can be
refilled one time.
"The answer to both the prosecutor and the court failing
to set a trial date despite proper notice, however, is
not more legislation. The answer is for the prosecutor
and the court to make sure that when they do receive the
required notice of withdrawal of a general waiver, that
they do set a trial date. Unusual cases like the ones
above require individual handling by the court, not
one-size-fits all blanket legislation resolutions.
"This rare situation arose in a misdemeanor case, where
the time limit is half the 60-day felony time limit,
namely for misdemeanors, being only 30 days. In Arias v.
Superior Court of Orange County (2008) 167 Cal. App. 4th
Supp. 1, the defendant provided notice of withdrawal of
the misdemeanor general waiver, but he prosecutor and
court took no action to bring the defendant to trial.
The court of appeal dismissed.
"But neither the majority nor the concurrence suggested
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that this rare situation is a problem that calls for a
legislative remedy.
"The concurrence in Arias , supra, 167 Cal. App. 4th at
265-266, suggests six possible methods by which the court
and the prosecutor can insure that they do not fail to
set a trial date. None of those six methods involved
legislative actions.
"The Arias court was wise in not suggesting any
legislative action. Legislative action is not appropriate
for those rare situations. On the contrary, rare
situations such as Arias , are as noted, much more
appropriate for the court to address on an individual
bases. Individual action by the court will avoid the
delay and waste of money inherent in AB 250."
ASSEMBLY FLOOR :
AYES: Adams, Anderson, Arambula, Beall, Bill Berryhill,
Tom Berryhill, Blakeslee, Block, Blumenfield, Brownley,
Buchanan, Caballero, Carter, Chesbro, Conway, Cook, Coto,
Davis, De La Torre, De Leon, DeVore, Duvall, Emmerson,
Evans, Feuer, Fletcher, Fong, Fuentes, Furutani, Gaines,
Galgiani, Garrick, Gilmore, Hagman, Hall, Harkey,
Hayashi, Hernandez, Hill, Huber, Huffman, Jeffries,
Jones, Knight, Krekorian, Lieu, Logue, Bonnie Lowenthal,
Ma, Mendoza, Miller, Monning, Nava, Nestande, Niello,
Nielsen, John A. Perez, V. Manuel Perez, Portantino,
Ruskin, Salas, Silva, Skinner, Smyth, Solorio, Audra
Strickland, Swanson, Torlakson, Torres, Torrico, Tran,
Villines, Yamada, Bass
NO VOTE RECORDED: Ammiano, Charles Calderon, Eng, Fuller,
Price, Saldana
RJG:mw 6/17/09 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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