Existing law establishes the Department of Conservation in the Natural Resources Agency and provides that the department succeeds to and is vested with all of the duties, powers, purposes, responsibilities, and jurisdiction formerly vested in the Department of Natural Resources or the Director of Natural Resources and exercised by specified divisions of that department. Existing law also provides that the department is under the control of an executive officer known as the Director of Conservation, who is appointed by and holds office at the pleasure of the Governor.

This bill would make nonsubstantive changes to these provisions.

Date of Hearing: January 12, 2016

Counsel: David Billingsley

ASSEMBLY COMMITTEE ON

, Chair

ABPCA Bill Id:

Author:() – As Amended anuary Ver:January 4, 2016

SUMMARY:

Establishes a five year pilot project, in six 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. Specifically, this bill:

1. Establishes a pilot project for five years in six counties to be selected by the Judicial Council.
   
2. Specifies that the Judicial Council shall include the County of Los Angeles within the six counties to be selected.
   
3. Specifies that the remaining five counties to be selected shall include counties representing small, medium, and large counties, by population.
   
4. Specifies that the following arraignment procedures will apply in the pilot project counties:
   
   1. 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, shall determine whether there is probable cause to believe that the defendant committed a criminal offense;
      
   2. The determination of probable cause shall be made immediately, unless the court grants a continuance for a good cause not to exceed three court day;.
      
   3. 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; and
      
   4. If the court determines that no probable cause exists, it shall dismiss the complaint and discharge the defendant.
      
5. Specifies that if the charge is dismissed, the prosecution may refile the complaint within 15 days of the dismissal.
   
6. States that a second dismissal based on lack of probable will bar any further prosecution for the same offense.
   
7. Specifies that the law will become inoperative on July 1, 2022, and repealed as of January 1, 2023, unless there is further legislation as specified.
   

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 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 (Pen. Code, § 991, subd. (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. (Pen. Code, § 991, subd. (b).)
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. (Pen. Code, § 991, subd. (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. (Pen. Code, § 991, subd. (e).)
5. Requires the court dismiss the complaint and discharge the defendant if it determines that no probable cause exists. (Pen. Code, § 991, subd. (f).)
6. Allows the prosecution to refile the complaint within 15 days of the dismissal of a complaint pursuant to Penal Code section 991. (Pen. Code, § 991, subd. (g).)
7. States that a second dismissal pursuant to this section is a bar to any other prosecution for the same offense. (Pen. Code, § 991, subd. (h).)
8. Requires that when a defendant is arrested, they are to be taken before the magistrate without unnecessary delay, and, in any event, within 48 hours, excluding Sundays and holidays. (Pen. Code, § 825, subd. (a)(1).)
9. Prescribes that the 48 hour limitation for arraignment be extended when:
   1. 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. (Pen. Code, § 825, subd. (a)(2).)
   2. The 48 hours expire 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. (Pen. Code, § 825, subd. (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. (Pen. Code, § 825, subd. (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. (Pen. Code, § 853.6(b).)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: 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 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 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 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 1106 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 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. The bill requires that the County of Los Angeles be included among the six counties in the pilot and that the remaining five counties be selected based on population size, including small, medium, and large counties.

“This bill would provide that, within the applicable counties, the probable cause determination be made at the point that the prosecution should have provided all of its evidence to the defense. The determination will be based on all of that evidence, as long as it meets the minimum test of reliability.

“Though hundreds of thousands of misdemeanors are filed in this state each year and tens of thousands of misdemeanants are in custody at arraignment, experience has shown, since PC § 991 was enacted in 1980, that only a small fraction of those defendants will bring a PC § 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 § 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 1106 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.”

1. Governor’s Veto Message: AB 696 (Jones-Sawyer), of the 2015-2016 Legislative Session, was vetoed by the Governor. AB 696 would have required a probable cause determination for out of custody misdemeanor defendants upon request by the defense.
   
   The Governor’s veto message was as follows: “I understand the potential benefits to a defendant in having the court make this determination earlier in the process. However, the impact on the courts is unclear and could well be significant. I would welcome a small, carefully crafted pilot to assess the impact of this proposal.”
   
2. Argument in Support: According to California Public Defenders Association, “AB 1106 is responsive to the Governor's veto message on AB 696 that suggests a pilot program be created. 
   
   “AB 1106 would create an arraignment pilot program that would provide a judicial determination of probable cause for out of custody individuals charged with misdemeanors. This would save time and money by identifying meritless cases at an early stage in the proceedings.
   
   “AB 1106 would save money and time for county government 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 the analysis of physical evidence and the employment of expert witnesses. The time and expense required 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 1106 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 no power to make that 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 or 1118.1. By then the court has expended virtually all the resources involved in a full trial.
   
   “AB 1106 will provide the courts with the authority to efficiently handle the 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 cause determinations for out-of-custody misdemeanors as well as custody misdemeanors.
   
   “Finally, AB 1106 will prevent unnecessary stress, oppression and expense for innocent people who have been 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 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.”
   
3. Related Legislation: AB 696 (Jones-Sawyer), of the 2015-2016 Legislative Session, would have required probable cause determination for out of custody misdemeanor defendants upon request by the defense. AB 696 was vetoed by the governor.
   

REGISTERED SUPPORT / OPPOSITION:

Support

California Public Defenders Association

Opposition

None

Analysis Prepared by: