BILL ANALYSIS                                                                                                                                                                                                    







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              A
                             2013-2014 Regular Session               B

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          AB 2487 (Wagner)                                           7
          As Amended April 22, 2014
          Hearing date:  June 17, 2014
          Vehicle Code
          MK:mc

                                  CRIMINAL PROCEDURE  

                                       HISTORY

          Source:  Judicial Council

          Prior Legislation: None

          Support: Unknown

          Opposition:Safer Streets L.A.; Legal Services for Prisoners with  
                   Children; California Traffic Defense Bar Association;  
                   Taxpayers for Improving Public Safety; several private  
                   citizens

          Assembly Floor Vote:  Ayes 52 - Noes 11


                                         KEY ISSUE
           
          SHOULD THE TRIAL DE NOVO FOLLOWING A TRIAL BY DECLARATION FOR AN  
          ALLEGED VEHICLE CODE VIOLATION BE ELIMINATED?



                                       PURPOSE
          




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          The purpose of this bill is to delete the requirement that a  
          defendant who is dissatisfied with the decision of the court,  
          after having elected to have a trial by declaration for an  
          alleged traffic infraction, shall have the right to a trial de  
          novo.
          

            Existing law  requires that the court shall, by rule, provide  
          that the defendant may elect to have a trial by written  
          declaration upon any alleged infraction, as charged by the  
          citing officer, involving a violation of the Vehicle Code, or  
          any local ordinance, as specified.  (Vehicle Code, 
           40902 (a)(1).) 
           
          Existing law  authorizes the Judicial Council to adopt rules and  
          forms governing trials by declaration.  Any rule or form adopted  
          by the Judicial Council shall supersede any local rule of court  
          adopted pursuant to these provisions.  (Vehicle Code,  40902  
          (a)(2).) 

           Existing law  provides that if the defendant elects to have a  
          trial by written declaration, the defendant shall at the time of  
          submitting the declaration, submit bail in the amount scheduled  
          in the uniform traffic penalty schedule, as specified.  If the  
          defendant is found not guilty or if the charges are otherwise  
          dismissed, the amount of the bail shall be promptly refunded to  
          the defendant.  (Vehicle Code,  40902 (b).) 

           Existing law  provides that notwithstanding the rule of evidence,  
          the rules governing trials by written declaration may provide  
          for testimony and other relevant evidence to be introduced in  
          the form of a notice to appear, a business record or receipt, a  
          sworn declaration of the arresting officer, a written statement,  
          or letter signed by the defendant.  (Vehicle Code,  40902 (c).)  


           Existing law  provides that if the defendant is dissatisfied with  
          the decision of the court in a trial by declaration shall be  
          granted a trial de novo.  (Vehicle Code,  40902 (d).) 




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           This bill  deletes the ability of a defendant to have a trial de  
          novo.


                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the last several years, severe overcrowding in California's  
          prisons has been the focus of evolving and expensive litigation  
          relating to conditions of confinement.  On May 23, 2011, the  
          United States Supreme Court ordered California to reduce its  
          prison population to 137.5 percent of design capacity within two  
          years from the date of its ruling, subject to the right of the  
          state to seek modifications in appropriate circumstances.   

          Beginning in early 2007, Senate leadership initiated a policy to  
          hold legislative proposals which could further aggravate the  
          prison overcrowding crisis through new or expanded felony  
          prosecutions.  Under the resulting policy, known as "ROCA"  
          (which stands for "Receivership/ Overcrowding Crisis  
          Aggravation"), the Committee held measures that created a new  
          felony, expanded the scope or penalty of an existing felony, or  
          otherwise increased the application of a felony in a manner  
          which could exacerbate the prison overcrowding crisis.  Under  
          these principles, ROCA was applied as a content-neutral,  
          provisional measure necessary to ensure that the Legislature did  
          not erode progress towards reducing prison overcrowding by  
          passing legislation, which would increase the prison population.  
            

          In January of 2013, just over a year after the enactment of the  
          historic Public Safety Realignment Act of 2011, the State of  
          California filed court documents seeking to vacate or modify the  
          federal court order requiring the state to reduce its prison  
          population to 137.5 percent of design capacity.  The State  
          submitted that the, ". . .  population in the State's 33 prisons  
          has been reduced by over 24,000 inmates since October 2011 when  
          public safety realignment went into effect, by more than 36,000  
          inmates compared to the 2008 population . . . , and by nearly  




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          42,000 inmates since 2006 . . . ."  Plaintiffs opposed the  
          state's motion, arguing that, "California prisons, which  
          currently average 150% of capacity, and reach as high as 185% of  
          capacity at one prison, continue to deliver health care that is  
          constitutionally deficient."  In an order dated January 29,  
          2013, the federal court granted the state a six-month extension  
          to achieve the 137.5 % inmate population cap by December 31,  
          2013.  

          The Three-Judge Court then ordered, on April 11, 2013, the state  
          of California to "immediately take all steps necessary to comply  
          with this Court's . . . Order . . . requiring defendants to  
          reduce overall prison population to 137.5% design capacity by  
          December 31, 2013."  On September 16, 2013, the State asked the  
          Court to extend that deadline to December 31, 2016.  In  
          response, the Court extended the deadline first to January 27,  
          2014 and then February 24, 2014, and ordered the parties to  
          enter into a meet-and-confer process to "explore how defendants  
          can comply with this Court's June 20, 2013 Order, including  
          means and dates by which such compliance can be expedited or  
          accomplished and how this Court can ensure a durable solution to  
          the prison crowding problem."

          The parties were not able to reach an agreement during the  
          meet-and-confer process.  As a result, the Court ordered  
          briefing on the State's requested extension and, on February 10,  
          2014, issued an order extending the deadline to reduce the  
          in-state adult institution population to 137.5% design capacity  
          to February 28, 2016.  The order requires the state to meet the  
          following interim and final population reduction benchmarks:

                 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. 

          If a benchmark is missed the Compliance Officer (a position  
          created by the February 10, 2016 order) can order the release of  
          inmates to bring the State into compliance with that benchmark.   





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          In a status report to the Court dated May 15, 2014, the state  
          reported that as of May 14, 2014, 116,428 inmates were housed in  
          the State's 34 adult institutions, which amounts to 140.8% of  
          design bed capacity, and 8,650 inmates were housed in  
          out-of-state facilities.   

          The ongoing prison overcrowding litigation indicates that prison  
          capacity and related issues concerning conditions of confinement  
          remain unresolved.  While real gains in reducing the prison  
          population have been made, even greater reductions may be  
          required to meet the orders of the federal court.  Therefore,  
          the Committee's consideration of ROCA bills -bills that may  
          impact the prison population - will be informed by the following  
          questions:

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


                                      COMMENTS

          1.    Need for This Bill  

          According to the author:

               Under existing law a defendant charged with a Vehicle  
               Code infraction may elect to have a trial by written  




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               declaration on the alleged infraction, with the  
               exception of drug and alcohol infractions (Veh. Code   
               40310).  If the defendant is dissatisfied with a  
               decision of the court in that proceeding the defendant  
               is entitled to a "trial de novo" or new trial before a  
               Traffic Court, which results in a waste of court  
               resources.  In other words, the defendant gets two  
               trials on the same issue.  In some counties, a trial de  
               novo is requested in 40 to 50 percent of cases where  
               the defendant has not prevailed on the trial by written  
               declaration.  Rather than providing a convenient way  
               for a traffic violator who lives an impractical or  
               inconvenient distance from the court to contest matters  
               as originally intended by the code section, the process  
               is being used to give traffic violators who chose a  
               trial by written declaration a second bite at the apple  
               to win a case.

               AB 2487 increases the efficiency of traffic courts by  
               amending Vehicle Code section 40902 to require  
               defendants accused of most Vehicle Code infractions to  
               choose either a trial by written declaration or a  
               hearing, but not both.

          2.    No Trial De Novo for Vehicle Code Infractions 

          Under existing law, a person may challenge a Vehicle Code  
          infraction by a trial by written declaration.  The person  
          submits a declaration along with any evidence he or she may have  
          that the infraction was not committed and the full fine.  If the  
          defendant is dissatisfied with the result of the trial by  
          written declaration, he or she shall be granted a trial de novo.  
           This bill would remove the right of a person to have a trial de  
          novo thus even if they  believe the decision was wrong the  
          defendant would have no right to a trial de novo.


          3.    Argument in Support  





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          Judicial Council is the sponsor of the bill and believes that  
          this bill will help court efficiency, stating:

               Under existing law, a defendant charged with a Vehicle  
               Code infraction may elect to have a trial by written  
               declaration on the alleged infraction, with the  
               exception of drug and alcohol infractions (Vehicle Code  
                40310).  If the defendant is dissatisfied with a  
               decision of the court in that proceeding, the defendant  
               is entitled to a "trial de novo" or trial before a  
               Traffic Court, which results in a waste of court  
               resources.  In some counties, a trial de novo is  
               requested in 40 to 50 percent of cases where the  
               defendant has not prevailed on the written declaration.  
                Rather than providing a convenient way for a traffic  
               violator who lives an impractical or inconvenient  
               distance from the court to contest matters, the process  
               is being used to give traffic violators a second bite  
               at the apple to win a case.

          4.    Opposition Arguments
           
          Safe Streets L.A. opposes this bill, stating:

               No evidence has been provided showing that defendants  
               who request a Trial de Novo after being found guilty in  
               a Trial by Written Declaration are a major burden on  
               the court system.  In discussion with representatives  
               from the Judicial Council, we found that they could  
               offer no verifiable data on the number or percentage of  
               defendants who request a Trial de Novo throughout the  
               State.  Further, although the Fact Sheet on this bill  
               prepared by the Author's office claims that, "In some  
               counties, a trial de novo is requested in 40 to 50  
               percent of cases where the defendant has not prevailed  
               on the written declaration", neither the Author's  
               office nor the Judicial Council could provide any  
               background on this statistic. We do not know in which  
               county this may have occurred, whether there are  




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               specific types of cases or reasons for this supposed  
               elevated number of Trial de Novo requests in this  
               location, or whether the percentage reported is 40% -  
               50% of ten trials or
               thousands of trials.  In subsequent conversations, the  
               Judicial Council offered that
               anecdotal information received from a few sources  
               suggested that the percentage might be closer to 25%,  
               but again could not back up this number with any  
               verifiable data.  Without verifiable data, the extent  
               of the problem cannot be determined, nor can we  
               determine a proper solution, or even whether there is a  
               problem that needs to be addressed.

               Currently, there is nothing in State law or the  
               California Rules of Court that specifically permits  
               defendants that do not prevail in their written  
               declaration trials to appeal to a higher court.  Simply  
               eliminating the right to a Trial de Novo without  
               ensuring that defendants retain their right to appeal  
               from a Trial by Written Declaration would deny  
               defendants due process.  However, even if the right to  
               appeal from a Trial by Written Declaration were to be  
               assured, this might add a further burden on the court,  
               outweighing any "efficiencies" gained by eliminating  
               the right to a Trial de Novo.  An appeal after a Trial  
               by Written Declaration creates more work for the trial  
               court than a request for a Trial de Novo.  Currently,  
               when a defendant wishes to challenge a Judicial  
               Officer's rulings in a Trial by Written Declaration  
               they need only file a one page request for a Trial de  
               Novo.  This is a rather simple procedure for both the  
               defendant and the court.  In contrast, the filing of an  
               appeal requires many more steps and a great deal more  
               Paperwork?: Even if just a small portion of Trial by  
               Written Declaration defendants file an appeal rather  
               than request a Trial de Novo, there is more work for  
               the court overall.  Eliminating the right to a Trial de  
               Novo simply shifts a small burden on the trial court to  




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               a much larger burden onto the appellate division.










































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               Furthermore, eliminating the right to a Trial de Novo  
               would make the Trial by Written Declaration an  
               unattractive option for many defendants who would then  
               likely opt for a court trial instead.  Rather than  
               reducing the workload of traffic courts, AB 2487 could  
               unintentionally result in a greater number of court  
               trials, not fewer.

               If the court wishes to gain efficiencies in the Trial  
               by Written Declaration process, there are more  
               equitable options available.  For example, some  
               defendants opt for a Trial de Novo after an  
               unsuccessful Trial by Written Declaration as it is  
               often their only option to request traffic violator  
               school.  Once found guilty in their Trial by Written  
               Declaration, defendants who wish to request traffic  
               school have no formal option for making that request.   
               Therefore, they request a Trial de Novo in order to ask  
               for traffic school, rather than to get "a second bite  
               at the apple".

               Likewise, some defendants opt for a Trial de Novo after  
               an unsuccessful Trial by Written Declaration because  
               some courts routinely deny defendants a fair trial in  
               automated enforcement cases where the identity of the  
               defendant is at issue.  Under current law, the driver  
               of a vehicle is responsible for violations committed on  
               the State's roadways.  In the case of automated  
               enforcement, the identity of the defendant is sometimes  
               at issue as the photograph of the driver may not match  
               the registered owner of the vehicle who receives the  
               citation or the photograph is not sufficiently clear to  
               establish the identity of the driver beyond a  
               reasonable doubt.  Unfortunately, rather than finding  
               defendants not-guilty as the law would require, it is  
               the common practice of some courts to find all  
               defendants guilty in written declaration trials  
               regardless of whether the identity of the driver has  
               been established.  This forces defendants in this  




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               situation to request a Trial de Novo as it is their  
               only option to address this miscarriage of justice.



               Other due process issues exist with regards to written  
               declaration trials, including judicial officers finding  
               defendants guilty even though the citing officer does  
               not submit their declaration.  This practice also  
               causes defendants to request Trials de Novo.   
               Correcting some of the above inequities may  
               significantly reduce the number of requests for Trials  
               de Novo, making AB 2487 unnecessary.

          5.  Proposed Amendment  

          The author will offer an amendment in Committee to clarify that  
          a person still has the right to appeal the hearing by  
          declaration.  The amendment will be to insert the following on  
          page 5,
          line 8:

               (d) A defendant may appeal the court's decision in a  
               trial by written declaration in accordance with Penal  
               Code section 1466.  
           
          It is not clear how this amendment is consistent with court  
          efficiency when an appeal would be more costly than a trial de  
          novo.


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