Existing law requires the magistrate, on motion of counsel for the defendant or the defendant, when the defendant is in custody at the time he or she appears before the magistrate for arraignment and the public offense is a misdemeanor to which the defendant has pleaded not guilty, to determine whether there is probable cause to believe that a public offense has been committed and that the defendant is guilty of that offense. Existing law requires the determination of probable cause to be made immediately, unless the court grants a continuance not to exceed 3 court days, for good cause.

This bill would establish a 3-year pilot project in 3 counties, as specified, that would require a court to apply those same procedures to the arraignment of a defendant who is not in custody for a public offense that is a misdemeanor to which the defendant has pleaded not guilty, except that this bill would allow the court to grant a continuance not to exceed 15 days to determine probable cause.

The bill would require the Department of Justice 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 the implementation of the above provisions no later than July 1, 2020.

Existing law requires the magistrate, on motion of counsel for the defendant or the defendant, when the defendant is in custody at the time he or she appears before the magistrate for arraignment and the public offense is a misdemeanor to which the defendant has pleaded not guilty, to determine whether there is probable cause to believe that a public offense has been committed and that the defendant is guilty of that offense. Existing law requires the determination of probable cause to be made immediately, unless the court grants a continuance not to exceed 3 court days, for good cause.

This bill would establish a 3-year pilot project in 3 counties, as specified, that would require a court to apply those same procedures to the arraignment of a defendant who is not in custody for a public offense that is a misdemeanor to which the defendant has pleaded not guilty, except that this bill would allow the court to grant a continuance not to exceed 15 days to determine probable cause.

The bill would require the Department of Justice 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 the implementation of the above provisions no later than July 1, 2020.

Existing law requires the magistrate, on motion of counsel for the defendant or the defendant, when the defendant is in custody at the time he or she appears before the magistrate for arraignment and the public offense is a misdemeanor to which the defendant has pleaded not guilty, to determine whether there is probable cause to believe that a public offense has been committed and that the defendant is guilty of that offense. Existing law requires the determination of probable cause to be made immediately, unless the court grants a continuance not to exceed 3 court days, for good cause.

This bill would establish a 5-year 3-year pilot project in 6 3 counties, as specified, that would require a court to apply those same procedures in the case of an to the arraignment of a defendant who is not in custody for a public offense that is a misdemeanor to which the defendant has pleaded not guilty, except that this bill would allow the court to grant a continuance not to exceed 15 days to determine probable cause.

The bill would require the Department of Justice 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 the implementation of the above provisions no later than July 1, 2021. 2020.

Existing law requires the magistrate, on motion of counsel for the defendant or the defendant, when the defendant is in custody at the time he or she appears before the magistrate for arraignment and the public offense is a misdemeanor to which the defendant has pleaded not guilty, to determine whether there is probable cause to believe that a public offense has been committed and that the defendant is guilty of that offense. Existing law requires the determination of probable cause to be made immediately, unless the court grants a continuance not to exceed 3 court days, for good cause.

This bill would establish a 5-year pilot project in 6 counties, as specified, that would require a court to apply those same procedures in the case of an arraignment of a defendant who is not in custody for a public offense that is a misdemeanor to which the defendant has pleaded not guilty, except that this bill would allow the court to grant a continuance not to exceed 15 days to determine probable cause.

The bill would require the Department of Justice 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 the implementation of the above provisions no later than July 1, 2021.

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 2013

Author:(Jones-Sawyer)

As Amended Ver:August 15, 2016

Majority vote

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 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:
   1. One member selected by the California Public Defenders Association.
   2. One member selected by the California District Attorneys Association.
   3. One member selected by the Judicial Council.
   4. 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:
   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's own motion, 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 days.
   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.
   4. 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 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
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 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 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 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: David Billingsley / PUB. S. / (916) 319-3744 FN: 0004327

 THIRD READING  

Bill No: AB 2013

Author:

Amended: 8/15/16 in Senate

Vote:

SENATE PUBLIC SAFETY COMMITTEE: 4-3, 6/28/16

AYES: Hancock, Leno, Liu, Monning

NOES: Anderson, Glazer, Stone

SENATE APPROPRIATIONS COMMITTEE: 5-2, 8/11/16

AYES: Lara, Beall, Hill, McGuire, Mendoza

NOES: Bates, Nielsen

ASSEMBLY FLOOR: 63-14, 6/1/16 - See last page for vote

SUBJECT:

SOURCE: California Public Defenders Association

DIGEST: This bill 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.

ANALYSIS:

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. (Penal Code, § 991 (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. (Penal Code, § 991(b).)
3. Provides 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. (Penal Code § 991 (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. (Penal Code § 991(e).)
5. Requires the court dismiss the complaint and discharge the defendant if it determines that no probable cause exists. (Penal Code, § 991 (f).)
6. Allows the prosecution to refile the complaint within 15 days of the dismissal of a complaint pursuant to Penal Code section 991. (Penal Code, § 991 (g).)
7. States that a second dismissal pursuant to this section is a bar to any other prosecution for the same offense. (Penal Code, § 991 (h).)
8. States that when a defendant is arrested, they are to be taken before the magistrate without unnecessary delay, and, in any event, within 48 hour, excluding Sundays and holidays. (Penal Code § 825 (a)(1).)
9. Requires that the 48 hour limitation for arraignment be extended when:
10. 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.
11. The 48-hour period expires 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. (Penal Code, § 825 (a)(2).)
12. 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. (Penal Code § 825 (b).)
13. 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. (Penal Code, § 853.6(b).)

This bill:

1. Establishes a Pilot Program for three years in three counties: a small, medium and large county as defined.
2. Specifies 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.

e) If, after examining these documents, the court determines that there exists probable cause to believe the defendant has committed the offense then it shall maintain the existing trial date.

f) If the court determines that not probable cause exists, it shall dismiss the complaint and discharge the defendant.

1. Specifies that if the charge is dismissed, the prosecution may refile the complaint within 15 days of the dismissal.
2. States that a second dismissal based on lack of probable will bar any further prosecution for the same offense.
3. Requires 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.
4. Sunsets on July 1, 2021.

Background

According to the author:

In 1975, the United States Supreme Court decided, in Gerstein v. Pugh 420 U.S 103, that the 5th amendment right to due process required that a person arrested without a warrant receive a “prompt” probable cause determination from an impartial magistrate. That same year, the California Supreme Court decided, in the case of In re Walters 15 Cal3d 738, that Gerstein was binding on California and applied to misdemeanors as well as felonies. The U.S Supreme Court refined its Gerstein v. Pugh decision by holding, in County of Riverside v. McLaughlin, that “prompt” means within 48 hours, with no exception for weekends or holidays.

In 1980, after Gerstein and Walters, but before McLaughlin, this case law was codified as to misdemeanants in custody, in Penal Code § 991. This does not cover misdemeanants at liberty. Misdemeanor defendants who are out of custody are in a uniquely disadvantageous position in the judicial system because they have no means of challenging “groundless or unsupported charges” by way of a “prompt probable cause determination” before an “impartial magistrate.” Being that they are not in custody, they cannot ask for a probable cause hearing under Gerstein-Walters-McLaughlin or under PC § 991. Being that they are not charged with a felony, they are not entitled to a preliminary hearing or a PC § 995 motion. Being that they are not a civil litigant, they cannot bring a motion for summary judgment or a nonsuit.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to the Senate Appropriations Committee Analysis:

• 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 the pilot project would be dependent on the counties selected for the project, which are not specified.
• 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

SUPPORT: (Verified 8/11/16)

California Public Defenders Association (source)

American Civil Liberties Union of California

California Attorneys for Criminal Justice

Conference of California Bar Associations

OPPOSITION: (Verified 8/11/16)

California District Attorneys Association

Judicial Council of California

Los Angeles District Attorneys Association

ARGUMENTS IN SUPPORT: The sponsors of this bill the California Public Defenders Association believes:

AB 2013 would save money and time for county governments 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 analysis of physical evidence and the employment of expert witnesses. The time and expense 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 2013 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 not 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 .1. By then the court has expended virtually all the resources involved in a full trial.

AAB 2103 will provide the courts with the authority to efficiently handle 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 determination for out of custody misdemeanors as well as custody misdemeanors.

Finally, AB 2013 will prevent unnecessary stress, oppression and expense for innocent people who have 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 charge 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.

ARGUMENTS IN OPPOSITION: The California District Attorneys Association opposes this bill stating;

In vetoing a substantively similar bill last year (AB 696), Governor Brown noted that he “would welcome a small, carefully crafted pilot to assess the impact of this proposal.”

Unfortunately, the pilot program envisioned by AB 2013 is neither small, nor carefully crafted. Instead, this is simply a policy change affecting six counties (including the largest single unified trial court in the United States) with a five year sunset date, after which the Legislature would ostensibly seek to impose the policy on the entire state, as was the intent of AB 696. While the bill requires the Department of Justice to report to the Legislature on the number of dismissals resulting from this new procedure, it is our understanding that the Department of Justice does not currently track this information, nor do they have a mechanism by which to do so.

Even if those logistical hurdles could be cleared, we believe that this expansion of PC 991 is unnecessary.

In Gerstein v. Pugh (1975) 420 U.S. 103, the United States Supreme Court held that the Fourth Amendment provides in-custody defendants with the right to a prompt post-arrest determination of whether there is probable cause to believe that he or she has committed a crime.

Following Gerstein, Penal Code section 991 was enacted "to be a safeguard against the hardship suffered by a misdemeanant who is detained in custody, by providing that a probable cause hearing will be held immediately, at the time of arraignment…" (People v. Ward (1986) 188 Cal.App.3d Supp. 11, 15, 17.) This is evident from the plain language of PC 991 which begins with "If the defendant is in custody…" The deprivation of liberty for a confined defendant is the hardship that PC 991 exists to protect against. For an out-of-custody defendant, there is no such hardship.

To expand PC 991 to apply to out-of-custody defendants is to misunderstand the entire purpose of PC 991, and would result in additional trial court resources being spent to remedy a hardship that arguably does not exist.

ASSEMBLY FLOOR: 63-14, 6/1/16

AYES: Achadjian, Alejo, Arambula, Atkins, Bloom, Bonilla, Bonta, Brown, Burke, Calderon, Campos, Chang, Chau, Chiu, Chu, Cooley, Dababneh, Daly, Dodd, Eggman, Frazier, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Hadley, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Lackey, Levine, Linder, Lopez, Low, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Quirk, Ridley-Thomas, Rodriguez, Salas, Santiago, Mark Stone, Thurmond, Ting, Waldron, Weber, Wilk, Williams, Wood, Rendon

NOES: Travis Allen, Baker, Bigelow, Brough, Chávez, Beth Gaines, Grove, Harper, Kim, Maienschein, Mathis, Mayes, Steinorth, Wagner

NO VOTE RECORDED: Cooper, Dahle, Patterson

Prepared by:

8/15/16 19:39:41

**** END ****

SENATE COMMITTEE ON APPROPRIATIONS

Senator Ricardo Lara, Chair

2015 - 2016 Regular Session

AB 2013 (Jones-Sawyer) - Criminal procedure: arraignment pilot program

*********** ANALYSIS ADDENDUM – SUSPENSE FILE ***********

The following information is revised to reflect amendments

adopted by the committee on August 11, 2016

Bill Summary:

AB 2013 would establish a three-year pilot project in three counties that would require a court, upon request by a defendant charged with a misdemeanor who is not in custody, to make a finding at the arraignment as to whether probable cause exists to believe that a public offense has been committed and that the defendant is guilty thereof. This bill would require the Department of Justice (DOJ) to submit a report to the Legislature no later than July 1, 2020, regarding the implementation of the pilot project, as specified.

Fiscal Impact:

• 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 the pilot project would be dependent on the counties selected for the project, which are not specified.
• 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

Author Amendments:

Reduce the pilot duration from five years to three years, reduce the pilot size from six counties to three counties (one small county, one medium county, and one large county, as defined), and reduce the pilot selection committee size from five to three members. Amendments additionally specify that the committee shall be convened by the California Public Defenders Association and the California District Attorneys Association, as specified.

-- END --

SENATE COMMITTEE ON APPROPRIATIONS

Senator Ricardo Lara, Chair

2015 - 2016 Regular Session

AB 2013 (Jones-Sawyer) - Criminal procedure: arraignment pilot program

This bill meets the criteria for referral to the Suspense File.

Bill Summary:

AB 2013 would establish a five-year pilot project in six counties that would require a court, upon request by a defendant charged with a misdemeanor who is not in custody, to make a finding at the arraignment as to whether probable cause exists to believe that a public offense has been committed and that the defendant is guilty thereof. This bill would require the Department of Justice (DOJ) to submit a report to the Legislature no later than July 1, 2021, regarding the implementation of the pilot project, as specified.

Fiscal Impact:

• Courts: Potentially significant increase in court workload and costs, potentially in excess of the low millions of dollars (General Fund*), including Los Angeles County which is a required pilot participant, for new probable cause determinations for non-custodial misdemeanor defendants. The overall costs of the pilot project would be dependent on the counties selected for the project, which, aside from Los Angeles County, are not specified.
• 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. Staff notes the Judicial Council, rather than the DOJ, may be the more appropriate agency to submit the report.

*Trial Court Trust Fund

Background:

Existing law provides that upon motion by an in-custody defendant at the time he or she appears before a magistrate for arraignment and the offense is a misdemeanor to which the defendant has pleaded not guilty, the magistrate is required to determine whether there is probable cause to believe that a public offense has been committed and that the defendant is guilty thereof. (Penal Code (PC) § 991(a).)

Under existing law, the determination of probable cause is required to be made immediately unless the court grants a continuance for good cause not to exceed three court days. In determining the existence of probable cause, the magistrate is required to consider any warrant of arrest with supporting affidavits, and the sworn complaint together with any documents or reports incorporated by reference which, if based on information and belief, state the basis for that information, or any other documents of similar reliability. 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. If the court determines that no such probable cause exists, it shall dismiss the complaint and discharge the defendant. (PC § 991(b)-(d).)

According to the Appellate Division of the Superior Court for the State of California, County of Los Angeles decision in People v. McGowan (filed 3/27/15 BR 051696; Airport Trial Court No. 4WA22795):

It was for good reason that the Legislature implemented a procedure to ensure a confined misdemeanant is held for trial only if there is probable cause to believe he or she committed a crime charged in the complaint. The constitutional right to a judicial determination of probable cause following arrest has its roots in Gerstein v. Pugh (1975) 420 U.S. 103. In that case, the United States Supreme Court held the Fourth Amendment vests an in-custody defendant with the right to have a prompt post-arrest determination of whether there is probable cause to believe he or she committed “a crime.” (Id. at pp. 114, 119-120.) The California Supreme Court ultimately applied the Gerstein rule to California misdemeanants held in custody. (In re Walters (1975) 15 Cal.3d 738, 747 (Walters).) Section 991 did not exist at the time Walters was decided. Thus, “California procedures governing the pretrial detention of those charged with misdemeanors . . . [did] not . . . comport with . . . constitutional requirements . . . since the defendant [was] not afforded a post-arrest judicial determination that probable cause exist[ed] for his continued detention.” (Id. at p. 747.) This led to Walters’ holding that, “unless waived, a judicial determination of probable cause is required in every case where a defendant charged with a misdemeanor is detained awaiting trial.” (Ibid.) In response to the requirements of Walters, section 991 was enacted “to be a safeguard against the hardship suffered by a misdemeanant who is detained in custody, by providing that a probable cause hearing will be held immediately, at the time of arraignment, . . .” (People v. Ward (1986) 188 Cal.App.3d Supp. 11, 15, 17.)

This bill seeks to provide the same judicial process provided to in-custody misdemeanor defendants to out-of-custody misdemeanor defendants.

Proposed Law:

This bill would provide that on or before July 1, 2017, six counties shall be selected to participate in a five-year pilot project that would require a court, upon request by an out-of-custody misdemeanor defendant, to make a finding at the arraignment as to whether probable cause exists to believe that a public offense has been committed and that the defendant is guilty thereof. This bill:

• Provides that the pilot counties shall be selected by a five member committee. One member of the committee shall be selected by the California Public Defenders Association, one member of the committee shall be selected by the California District Attorneys Association, one member of the committee shall be selected by the Judicial Council, and two members of the committee shall be selected by the Governor. The committee shall select the six counties that will participate in the pilot project, provided, however, that the County of Los Angeles shall be included in the pilot project.
• Requires the following arraignment procedure to apply in the pilot project counties:
  • When the defendant is out of custody at the time he or she appears before the magistrate for arraignment and 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.
  • The determination of probable cause shall be made immediately, unless the court grants a continuance for good cause not to exceed 15 court days.
  • 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 that information, or any other documents of similar reliability.
  • 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 maintain the trial date already calendared for the defendant.
  • If the court determines that no probable cause exists, it shall dismiss the complaint and discharge the defendant.
  • The prosecution may refile the complaint within 15 days of the dismissal of a complaint pursuant to this section.
  • A second dismissal pursuant to this section is a bar to any other prosecution for the same offense.
• Requires the Department of Justice to, no later than July 1, 2021, provide a report to the Assembly Committee on Budget, the Senate Committee on Budget and Fiscal Review, and the appropriate policy committees of the Legislature regarding the implementation of this section, including, but not limited to, 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.
• Provides that the bill’s provisions become inoperative on July 1, 2022.

Related Legislation:

AB 1106 (Jones-Sawyer) 2016 would have required the Judicial Council to select six counties, including the County of Los Angeles, to participate in a five-year pilot project that would require a court, upon request by an out-of-custody misdemeanor defendant, to make a finding at the arraignment as to whether probable cause exists to believe that a public offense has been committed and that the defendant is guilty thereof. This bill was not heard in the Assembly Committee on Public Safety.

AB 696 (Jones-Sawyer) 2015 would have required probable cause determinations for misdemeanor defendants not in custody to be made 30 days before the date calendared for trial at the arraignment unless a later date is requested by the defense, as specified. This bill was vetoed by the Governor with the following message:

I am returning Assembly Bill 696 without my signature. This bill would allow an out-of-custody misdemeanor defendant to ask the court at arraignment rather than at trial to determine whether or not probable cause exists.

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.

Staff Comments:

The Judicial Council has indicated a potentially significant increase in workload for courts should the provisions of this bill become law. By requiring courts to provide in-court probable cause determinations for up to 90 percent of a county’s charged misdemeanants (as it is estimated 10 percent are held in custody), costs for the six-county pilot, which includes Los Angeles County, could potentially exceed several million dollars annually, based on an estimate of three minutes of court time per defendant to complete an uncontested probable cause determination.

Recommended Amendments:

To reduce the potential fiscal impact of this measure, the author may wish to consider (1) reducing the duration of the pilot program from five years to three years, and (2) reducing the number of pilot counties. Additionally, the author may wish to consider an amendment to require the Judicial Council, rather than the DOJ, to provide the legislative report.

-- END --

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Loni Hancock, Chair

2015 - 2016 Regular

Bill No: AB 2013 Hearing Date: June 28, 2016

Subject: Criminal Procedure: Arraignment Pilot Program

HISTORY

Source: California Public Defenders Association

Prior Legislation: AB 1106 (Jones-Sawyer) not heard Assem. Public Safety 2016

AB 696 (Jones-Sawyer) Vetoed 2015

Support: American Civil Liberties Union of California; California Attorneys for Criminal Justice; Conference of California Bar Associations

Opposition: California District Attorneys Association; Judicial Council of California

Assembly Floor Vote: 63 - 14

PURPOSE

The purpose of this bill is to establish a five year pilot program 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.

Existing law 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. (Penal Code, § 991 (a).)

Existing law 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. (Penal Code, § 991(b).)

Existing law provides 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. (Penal Code § 991 (d).)

Existing law 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. (Penal Code § 991(e).)

Existing law requires the court dismiss the complaint and discharge the defendant if it determines that no probable cause exists. (Penal Code, § 991 (f).)

Existing law allows the prosecution to refile the complaint within 15 days of the dismissal of a complaint pursuant to Penal Code section 991. (Penal Code, § 991 (g).)

Existing law states that a second dismissal pursuant to this section is a bar to any other prosecution for the same offense. (Penal Code, § 991 (h).)

Existing law requires that when a defendant is arrested, they are to be taken before the magistrate without unnecessary delay, and, in any event, within 48 hour, excluding Sundays and holidays. (Penal Code § 825 (a)(1).)

Existing law requires that the 48 hour limitation for arraignment be extended when:

• 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.
• The 48-hour period expires 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. (Penal Code, § 825 (a)(2).)

Existing law 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. (Penal Code § 825 (b).)

Existing law 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. (Penal Code, § 853.6(b).)

This bill establishes a Pilot Program for five years in six counties to be selected by five-member committee.

This bill specifies the members of the committee will be selected as follows:

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.

This bill specifies that the County of Los Angeles shall be included in the pilot project.

This bill specifies 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.

This bill specifies that if the charge is dismissed, the prosecution may refile the complaint within 15 days of the dismissal.

This bill states that a second dismissal based on lack of probable will bar any further prosecution for the same offense.

This bill requires 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.

This bill has a sunset date of July 1, 2022.

RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

For the past several years this Committee has scrutinized legislation referred to its jurisdiction for any potential impact on prison overcrowding. Mindful of the United States Supreme Court ruling and federal court orders relating to the state’s ability to provide a constitutional level of health care to its inmate population and the related issue of prison overcrowding, this Committee has applied its “ROCA” policy as a content-neutral, provisional measure necessary to ensure that the Legislature does not erode progress in reducing prison overcrowding.

On February 10, 2014, the federal court ordered California to reduce its in-state adult institution population to 137.5% of design capacity by February 28, 2016, as follows:

• 143% of design bed capacity by June 30, 2014;
• 141.5% of design bed capacity by February 28, 2015; and,
• 137.5% of design bed capacity by February 28, 2016.

In December of 2015 the administration reported that as “of December 9, 2015, 112,510 inmates were housed in the State’s 34 adult institutions, which amounts to 136.0% of design bed capacity, and 5,264 inmates were housed in out-of-state facilities. The current population is 1,212 inmates below the final court-ordered population benchmark of 137.5% of design bed capacity, and has been under that benchmark since February 2015.” (Defendants’ December 2015 Status Report in Response to February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman v. Brown, Plata v. Brown (fn. omitted).) One year ago, 115,826 inmates were housed in the State’s 34 adult institutions, which amounted to 140.0% of design bed capacity, and 8,864 inmates were housed in out-of-state facilities. (Defendants’ December 2014 Status Report in Response to February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman v. Brown, Plata v. Brown (fn. omitted).)

While significant gains have been made in reducing the prison population, the state must stabilize these advances and demonstrate to the federal court that California has in place the “durable solution” to prison overcrowding “consistently demanded” by the court. (Opinion Re: Order Granting in Part and Denying in Part Defendants’ Request For Extension of December 31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court, Coleman v. Brown, Plata v. Brown (2-10-14). The Committee’s consideration of bills that may impact the prison population therefore will be informed by the following questions:

• Whether a proposal erodes a measure which has contributed to reducing the prison population;
• Whether a proposal addresses a major area of public safety or criminal activity for which there is no other reasonable, appropriate remedy;
• Whether a proposal addresses a crime which is directly dangerous to the physical safety of others for which there is no other reasonably appropriate sanction;
• Whether a proposal corrects a constitutional problem or legislative drafting error; and
• Whether a proposal proposes penalties which are proportionate, and cannot be achieved through any other reasonably appropriate remedy.

COMMENTS

1. Need for This Bill

According to the author:

In 1975, the United States Supreme Court decided, in Gerstein v. Pugh 420 U.S 103, that the 5th amendment right to due process required that a person arrested without a warrant receive a “prompt” probable cause determination from an impartial magistrate. That same year, the California Supreme Court decided, in the case of In re Walters 15 Cal3d 738, that Gerstein was binding on California and applied to misdemeanors as well as felonies. The U.S Supreme Court refined its Gerstein v. Pugh decision by holding, in County of Riverside v. McLaughlin, that “prompt” means within 48 hours, with no exception for weekends or holidays.

In 1980, after Gerstein and Walters, but before McLaughlin, this case law was codified as to misdemeanants in custody, in Penal Code § 991. This does not cover misdemeanants at liberty. Misdemeanor defendants who are out of custody are in a uniquely disadvantageous position in the judicial system because they have no means of challenging “groundless or unsupported charges” by way of a “prompt probable cause determination” before an “impartial magistrate.” Being that they are not in custody, they cannot ask for a probable cause hearing under Gerstein-Walters-McLaughlin or under PC § 991. Being that they are not charged with a felony, they are not entitled to a preliminary hearing or a PC § 995 motion. Being that they are not a civil litigant, they cannot bring a motion for summary judgment or a nonsuit.

Such a person must live under the cloud of such charges for a prolonged period, expending time and resources to prepare a defense. Only after they proceed to trial, and after the prosecution completes its case, can they ask the judge to dismiss the case for insufficient evidence under Penal Code § 1118 and § 1118.1. By then, not only has the defendant expended almost all of the necessary time and resources for mounting a defense, but the court also has expended its time and resources, including the time, attention, and personal sacrifice of jurors who put their lives on hold to attend the trial.

2. Prompt Probable Cause Hearing

In 1975, the United States Supreme Court decided, in Gerstein v. Pugh (1975) 420 U.S 103, that the 5th amendment right to due process required that a person arrested without a warrant receive a “prompt” probable cause determination from an impartial magistrate. That same year, the California Supreme Court decided, in the case of In re Walters (1975) 15 Cal.3d 738, that Gerstein was binding on California and applied to misdemeanors as well as felonies. The U.S Supreme Court refined its Gerstein v. Pugh decision by holding, in County of Riverside v. McLaughlin (1991) 500 U.S. 44, that “prompt” means within 48 hours, with no exception for weekends or holidays. In 1980, after Gerstein and Walters, but before McLaughlin, this case law was codified as to misdemeanants in custody, in Penal Code section 991. Penal Code section 991 does not cover misdemeanants who are out of custody.

3. Veto Message AB 696

Last year, AB 696 (Jones-Sawyer) allowed all out of custody defendants to ask for a determination of probable cause at arraignment. Governor Brown vetoed that bill saying:

I am returning Assembly Bill 696 without my signature.

This bill would allow an out-of-custody misdemeanor defendant to ask the court at arraignment rather than at trial to determine whether or not probable cause exists.

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.

4. Pilot Project

This bill will set up a five year pilot project to evaluate the impact of probable cause determinations at arraignment for out of custody defendants. The pilots will take place in Los Angeles County and five other counties which shall be selected by a Committee. DOJ will report on the implementation of the piolet projects.

5. Support

The sponsors of this bill the California Public Defenders Association believes:

AB 2013 would save money and time for county governments 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 analysis of physical evidence and the employment of expert witnesses. The time and expense 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 2013 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 not 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 .1. By then the court has expended virtually all the resources involved in a full trial.

AAB 2103 will provide the courts with the authority to efficiently handle 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 determination for out of custody misdemeanors as well as custody misdemeanors.

Finally, AB 2013 will prevent unnecessary stress, oppression and expense for innocent people who have 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 charge with a crime. In the face of such demands, some innocent defendants are forced to take a “deal” rather than risk losing a ob or failing their school work.

6. Opposition

The California District Attorneys Association opposes this bill stating;

In vetoing a substantively similar bill last year (AB 696), Governor Brown noted that he “would welcome a small, carefully crafted pilot to assess the impact of this proposal.”

Unfortunately, the pilot program envisioned by AB 2013 is neither small, nor carefully crafted. Instead, this is simply a policy change affecting six counties (including the largest single unified trial court in the United States) with a five year sunset date, after which the Legislature would ostensibly seek to impose the policy on the entire state, as was the intent of AB 696. While the bill requires the Department of Justice to report to the Legislature on the number of dismissals resulting from this new procedure, it is our understanding that the Department of Justice does not currently track this information, nor do they have a mechanism by which to do so.

Even if those logistical hurdles could be cleared, we believe that this expansion of PC 991 is unnecessary.

In Gerstein v. Pugh (1975) 420 U.S. 103, the United States Supreme Court held that the Fourth Amendment provides in-custody defendants with the right to a prompt post-arrest determination of whether there is probable cause to believe that he or she has committed a crime.

Following Gerstein, Penal Code section 991 was enacted "to be a safeguard against the hardship suffered by a misdemeanant who is detained in custody, by providing that a probable cause hearing will be held immediately, at the time of arraignment…" (People v. Ward (1986) 188 Cal.App.3d Supp. 11, 15, 17.) This is evident from the plain language of PC 991 which begins with "If the defendant is in custody…" The deprivation of liberty for a confined defendant is the hardship that PC 991 exists to protect against. For an out-of-custody defendant, there is no such hardship.

To expand PC 991 to apply to out-of-custody defendants is to misunderstand the entire purpose of PC 991, and would result in additional trial court resources being spent to remedy a hardship that arguably does not exist.

-- END –

ASSEMBLY THIRD READING

ATR Bill Id:AB 2013

Author:(Jones-Sawyer)

As Introduced Ver:February 16, 2016

Majority vote

SUMMARY: Establishes a five-year pilot program 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 Program for five years in six counties to be selected by five-member committee.
2. Specifies the members of the committee will be selected as follows:
   1. One member selected by the California Public Defenders Association.
   2. One member selected by the California District Attorneys Association.
   3. One member selected by the Judicial Council.
   4. Two members selected by the Governor.
3. Specifies that the County of Los Angeles shall be included in the pilot project.
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's own motion, 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 days.
   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.
   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. Requires 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. Requires the report submitted by DOJ to comply with the Government Code, as specified.
9. States 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.
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 Assembly Appropriations Committee, ongoing increase in court workload and costs, potentially in excess of $1.5 million for new probable cause determinations for non-custodial misdemeanor defendants. Statewide, for every 10% of non-custodial defendants charged with a misdemeanor who request such a determination of probable cause, annual costs are estimated at $2.5 million. Los Angeles County represents approximately one-third of all filings and if five additional counties participate, the cost could exceed $1.5 million, if only ten percent of defendants make the request. (Trial Court Trust Fund)

The five-year pilot program will help determine if there are any ongoing savings.

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 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 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."

Analysis Prepared by: David Billingsley/ PUB. S. / (916) 319-3744 FN: 0003128

Date of Hearing: April 27, 2016

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

ABPCA Bill Id:AB 2013

Author:(Jones-Sawyer) – As Introduced Ver:February 16, 2016

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill establishes a five-year pilot program in Los Angeles County and five other 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 five counties will be selected by a five-member committee comprised of two members selected by the Governor, one each by the Judicial Council, the California Public Defenders Association and the California District Attorneys Association.

FISCAL EFFECT:

Ongoing increase in court workload and costs, potentially in excess of $1.5 million for new probable cause determinations for non-custodial misdemeanor defendants. Statewide, for every 10 percent of non-custodial defendants charged with a misdemeanor who request such a determination of probable cause, annual costs are estimated at $2.5 million. Los Angeles County represents approximately one-third of all filings and if five additional counties participate, the cost could exceed $1.5 million, if only ten percent of defendants make the request. (Trial Court Trust Fund)

The five-year pilot program will help determine if there are any ongoing savings.

COMMENTS:

1. Background/Purpose. Existing law provides that upon a motion by an in-custody defendant charged with a misdemeanor, the court shall determine whether there is probable cause to believe that a public offense was committed by the defendant. This bill, on a pilot project basis, extends the same right to such a finding to an out-of-custody defendant. In addition to giving a defendant the ability to not have to live with a potential misdemeanor hanging over his or her head, it could save a County Public Defender’s Office time and money investigating a case and talking to expert witnesses if a case where there is not probable cause is dismissed early on.

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.

“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.”

1. Support: According to California Attorneys for Criminal Justice, “Under California law, both felony-charged and misdemeanor-charged defendants who are in custody, receive a determination of probable cause within 48 hours of being arrested. However, misdemeanor defendants who are out of custody must wait at least 10 days and such determinations can take weeks or months. These individuals must take time off 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.
   
   “AB 2013 would establish a 5-year pilot project in six counties that would require a court, on motion by the defendant or the defendant’s counsel. To make a finding of probable cause in determining whether a crime has been committed when the defendant is out of custody and facing a misdemeanor charge.
   
2. Prior 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 counsel. AB 696 was vetoed by the Governor; the 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.”

Analysis Prepared by: Pedro Reyes / APPR. / (916) 319-2081

Date of Hearing:

Counsel: David Billingsley

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:AB 2013

Author:(Jones-Sawyer) – As Introduced Ver:February 16, 2016

SUMMARY:

Establishes a five year pilot program 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 Program for five years in six counties to be selected by five-member committee.
   
2. Specifies the members of the committee will be selected as follows:
   
   1. One member selected by the California Public Defenders Association.
      
   2. One member selected by the California District Attorneys Association.
      
   3. One member selected by the Judicial Council.
      
   4. Two members selected by the Governor.
      
3. Specifies that the County of Los Angeles shall be included in the pilot project.
   
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's own motion, 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 days.
      
   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.
      
   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. Requires 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. Requires the report submitted by DOJ to comply with the Government Code, as specified.
   
9. States 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. (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, he or she is to be taken before the magistrate without unnecessary delay, and, in any event, within 48 hour, 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-hour period expires 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 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 $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 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 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 § 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 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.”

1. Legal Background: In 1975, the United States Supreme Court decided, in Gerstein v. Pugh (1975) 420 U.S 103, that the 5th amendment right to due process required that a person arrested without a warrant receive a “prompt” probable cause determination from an impartial magistrate. That same year, the California Supreme Court decided, in the case of In re Walters (1975) 15 Cal.3d 738, that Gerstein was binding on California and applied to misdemeanors as well as felonies. The U.S Supreme Court refined its Gerstein v. Pugh decision by holding, in County of Riverside v. McLaughlin (1991) 500 U.S. 44, that “prompt” means within 48 hours, with no exception for weekends or holidays.
   

In 1980, after Gerstein and Walters, but before McLaughlin, this case law was codified as to misdemeanants in custody, in Penal Code section 991. Penal Code section 991 does not cover misdemeanants who are out of custody.

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 probable cause determination for out of custody misdemeanor defendants upon request by counsel.
   
   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 Attorneys for Criminal Justice, “Under California law, both felony-charged and misdemeanor-charged defendants who are in custody, receive a determination of probable cause within 48 hours of being arrested. However, misdemeanor defendants who are out of custody must wait at least 10 days and such determinations can take weeks or months.
   
   “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 off work, school or other activities, facing the anxiety of being charged with a crime. In the face fo such demands, some innocent defendants are forced to “take a deal”rather than risk losing a job or failing their school work.
   
   “AB 2013 would establish a 5-year pilot project in six counties that would require a court, on motion by the defendant or the defendant’s counsel. To make a finding of probable cause in determining whether a crime has been committed when the defendant is out of custody and facing a misdemeanor charge.
   
   “As the number of misdemeanor cases increases with the passage of Proposition 47, and with judicial resources continuing to shrink, the court system has a vested interest in screening out-of-custody misdemeanor cases before they become an unnecessary burden on our trial courts.”
   
3. Prior Legislation:
   
   1. 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 counsel. AB 696 was vetoed by the Governor.
      

REGISTERED SUPPORT / OPPOSITION:

Support

California Public Defenders Association

California Attorneys for Criminal Justice

Opposition

None

Analysis Prepared by:

David Billingsley / PUB. S. / (916) 319-3744