BILL ANALYSIS Ó SENATE COMMITTEE ON PUBLIC SAFETY Senator Loni Hancock, Chair A 2013-2014 Regular Session B 2 4 8 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 (More) AB 2487 (Wagner) Page 2 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).) (More) AB 2487 (Wagner) Page 3 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 (More) AB 2487 (Wagner) Page 4 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. (More) AB 2487 (Wagner) Page 5 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 (More) AB 2487 (Wagner) Page 6 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 (More) AB 2487 (Wagner) Page 7 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 (More) AB 2487 (Wagner) Page 8 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 (More) AB 2487 (Wagner) Page 9 a much larger burden onto the appellate division. (More) 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 (More) AB 2487 (Wagner) Page 11 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. ***************