BILL ANALYSIS �
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|SENATE RULES COMMITTEE | SB 162|
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THIRD READING
Bill No: SB 162
Author: Lieu (D)
Amended: 4/1/13
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 7-0, 4/23/13
AYES: Hancock, Anderson, Block, De Le�n, Knight, Liu, Steinberg
SUBJECT : Prisoners: temporary removal
SOURCE : Los Angeles County District Attorney's Office
Los Angeles County Sheriff's Department
San Diego County District Attorney's Office
DIGEST : This bill provides a process for district attorneys
and peace officers to seek a court order for the temporary
removal of a prisoner from prison for a "legitimate law
enforcement purpose," as specified.
ANALYSIS :
Existing law:
1.Provides that when it is necessary to have a person imprisoned
in the state prison brought before any court to be tried for a
felony, or for an examination before a grand jury or
magistrate preliminary to such trial, as specified, an order
for the prisoner's temporary removal from prison must be made
by the superior court, and will be made only upon the
affidavit of the district attorney or defense attorney,
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stating the purpose for which said person is to be produced,
as specified. The order is required to be executed by the
sheriff of the county in which it will be made, whose duty it
will be to bring the prisoner before the proper court, grand
jury or magistrate, to safely keep the prisoner, and to return
the prisoner to the prison. (Penal Code Sec. 2620.)
2.Provides that when a prisoner is removed from a state prison
the prisoner will remain in the constructive custody of the
warden. During the prisoner's absence from the prison, the
prisoner may be ordered to appear in other felony proceedings
as a defendant or witness in the courts of the county from
which the original order directing removal issued, as
specified. (Penal Code Sec. 2620.)
3.Provides that when the testimony of a material witness is
required in a criminal action, before any court in this state,
or in an examination before a grand jury or magistrate in a
felony case and such witness is a prisoner in a state prison,
an order for the prisoner's temporary removal from such prison
may be made by the superior court, as specified. (Penal Code
Sec. 2621.)
This bill:
1.Provides a process for district attorneys and peace officers
to seek a court order for the temporary removal of a prisoner
from prison for a "legitimate law enforcement purpose."
Specifically, this bill provides that "the superior court of
the county in which a requesting district attorney or peace
officer has jurisdiction may order the temporary removal of a
prisoner from a state prison facility, and his/her
transportation to a county or city jail, if a legitimate law
enforcement purpose exists to move the prisoner.
2.Provides that an order for the temporary removal of a prisoner
may be issued, at the discretion of the court, upon a finding
of good cause in an affidavit by the requesting district
attorney or peace officer stating that the law enforcement
purpose is legitimate and necessary.
3.Provides that the order to a county or city jail will not
exceed 30 days.
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4.Authorizes extensions of these orders upon application, for no
longer than the authorizing judge deems necessary to achieve
the purposes for which it was granted, and not exceeding
additional 30-day period beyond the initial period specified
in the order for temporary removal.
5.Requires that an order for the temporary removal of a prisoner
will include all of the following:
A. A recitation of the purposes for which the prisoner is
to be brought to the county or city jail.
B. The affidavit of the requesting district attorney or
peace officer stating that the law enforcement purpose is
legitimate and necessary. The affidavit will be supported
by facts establishing good cause.
C. The signature of the judge or magistrate making the
order.
D. The seal of the court, if any.
1.Provides that, upon the request of a district attorney or
peace officer for a court order for the temporary removal of a
prisoner from a state prison facility, the court may, for good
cause, seal an order made, unless a court determines that the
failure to disclose the contents of the order would deny a
fair trial to a charged defendant in a criminal proceeding.
2.Provides that an order for the temporary removal of a prisoner
will be executed presumptively by the sheriff of the county in
which the order is issued. It will be the duty of the sheriff
to bring the prisoner to the proper county or city jail, to
safely retain the prisoner, and to return the prisoner to the
state prison facility when he/she is no longer required for
the stated law enforcement purpose. The expense of executing
the order will be a proper charge against, and will be paid
by, the county in which the order is made. The presumption
that the transfer will be effectuated by the sheriff of the
county in which the transfer order is made may be overcome
upon application of the investigating officer or prosecuting
attorney stating the name of each peace officer who will
conduct the transportation of the prisoner.
3.Provides that if a prisoner is removed from a state prison
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facility pursuant to its provisions, the prisoner will remain
at all times in the constructive custody of the warden of the
state prison facility from which the prisoner was removed.
During the temporary removal, the prisoner may be ordered to
appear in other felony proceedings as a defendant or witness
in the superior court of the county from which the original
order for the temporary removal was issued.
4.Requires that a copy of the written order directing the
prisoner to appear before the superior court will be forwarded
by the district attorney to the warden of the prison having
custody of the prisoner.
5.States that the state is not liable for any claim of damage,
or for the injury or death of any person, including a prisoner
that occurs during either of the following:
A. The temporary removal of a prisoner from a state prison
facility.
B. The transportation of a prisoner by a local law
enforcement agency for the purpose of temporary removal
from a state prison facility.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local:
No
SUPPORT : (Verified 4/25/13)
Los Angeles County District Attorney's Office (co-source)
Los Angeles County Sheriff's Department (co-source)
San Diego County District Attorney's Office (co-source)
California State Sheriffs' Association
Crime Victims United of California
OPPOSITION : (Verified 4/25/13)
California Attorneys for Criminal Justice
ARGUMENTS IN SUPPORT : The Los Angeles County District
Attorney's Office states: In order to aid the investigation of
"Cold Cases" and other open investigations when a witness or
suspect was in the custody of the California Department of
Corrections and Rehabilitation local law enforcement agencies
would obtain a court order to have an inmate temporarily
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transferred from a state prison to a county jail.
However, local law enforcement ability to obtain these orders
was eliminated by the holding in Swarthout v Superior Court
(2012). The Court of Appeals held that Superior Courts have no
jurisdictional authority to order the transfer of a state prison
inmate to a local jail as part of a criminal investigation,
prior to the filing of a felony case. The Court of Appeals did
not find there were any constitutional violations involved in
these orders instead the Court simply cited a lack of statutory
authority for these orders.
Therefore, the only option currently available for local law
enforcement is to go to the prison and meet with the inmate.
This process involves travel and related logistical issues that
are problematic, costly and delays justice.
ARGUMENTS IN OPPOSITION : The California Attorneys for
Criminal Justice (CACJ) states: This bill would allow for the
temporary transfer of a prisoner from a state prison facility to
a county or city jail, while eliminating the states liability
for any claim of damage, or for the injury or death of any
person that may occur during the transfer.
We understand that there is a need for the transfer of inmates,
for the purposes which can include interrogations, lineups, and
forensic testing. Unfortunately, because this bill eliminates
the state responsibility in the case of injury or death of any
person involved in the transfer of inmates, the bill creates a
substantial safety concern for inmates being transferred. The
elimination of liability leaves inmates unprotected during
transfer.
For obvious reasons of inmate safety protections, CACJ must
oppose SB 162.
JG:ej 4/26/13 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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