BILL ANALYSIS                                                                                                                                                                                                    



                                                                    AB 1106


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          Date of Hearing:  January 12, 2016
          Counsel:               David Billingsley


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY


                                  Bill Quirk, Chair





          AB  
                    1106 (Jones-Sawyer) - As Amended  January 4, 2016




          SUMMARY:  Establishes a five year pilot project, in six  
          counties, requiring the judge to make a finding of probable  
          cause that a crime has been committed when an out of custody  
          defendant is facing a misdemeanor charge, upon request by the  
          defendant.  Specifically, this bill:

          1)Establishes a pilot project for five years in six counties to  
            be selected by the Judicial Council.

          2)Specifies that the Judicial Council shall include the County  
            of Los Angeles within the six counties to be selected.

          3)Specifies that the remaining five counties to be selected  
            shall include counties representing small, medium, and large  
            counties, by population.

          4)Specifies that the following arraignment procedures will apply  
            in the pilot project counties:

             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  








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               defendant, 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 day;.

             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; and

             d)   If the court determines that no probable cause exists,  
               it shall dismiss the complaint and discharge the defendant.

          5)Specifies that if the charge is dismissed, the prosecution may  
            refile the complaint within 15 days of the dismissal.

          6)States that a second dismissal based on lack of probable will  
            bar any further prosecution for the same offense.

          7)Specifies that the law will become inoperative on July 1,  
            2022, and repealed as of January 1, 2023, unless there is  
            further legislation as specified.

          EXISTING LAW:  

          1)Requires that if the defendant is in custody at the time they  
            appear before the magistrate for arraignment and, if the  
            public offense is a misdemeanor to which the defendant has  
            pleaded not guilty, the magistrate, on motion of counsel for  
            the defendant or the defendant, shall determine whether there  
            is probable cause to believe that a public offense has been  
            committed and that the defendant is guilty thereof (Pen. Code,  
             991, subd. (a).)

          2)Requires the determination of probable cause to be made  
            immediately unless the court grants a continuance for good  
            cause not to exceed three court days. (Pen. Code,  991, subd.  
            (b).)









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          3)States that in determining the existence of probable cause,  
            the magistrate shall consider any warrant of arrest with  
            supporting affidavits, and the sworn complaint together with  
            any documents or reports incorporated by reference thereto,  
            which, if based on information and belief, state the basis for  
            such information, or any other documents of similar  
            reliability. (Pen. Code,  991, subd. (d).)

          4)Provides that if, after examining these documents, the court  
            determines that there exists probable cause to believe that  
            the defendant has committed the offense charged in the  
            complaint, it shall set the matter for trial. (Pen. Code,   
            991, subd. (e).)

          5)Requires the court dismiss the complaint and discharge the  
            defendant if it determines that no probable cause exists.  
            (Pen. Code,  991, subd. (f).)

          6)Allows the prosecution to refile the complaint within 15 days  
            of the dismissal of a complaint pursuant to Penal Code section  
            991. (Pen. Code,  991, subd. (g).)



          7)States that a second dismissal pursuant to this section is a  
            bar to any other prosecution for the same offense. (Pen. Code,  
             991, subd. (h).)




          8)Requires that when a defendant is arrested, they are to be  
            taken before the magistrate without unnecessary delay, and, in  
            any event, within 48 hours, excluding Sundays and holidays.  
            (Pen. Code,  825, subd. (a)(1).)



          9) Prescribes that the  48 hour limitation for arraignment be  
            extended when:










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             a)   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).)



             b)   The 48 hours expire at a time when the court in which  
               the magistrate is sitting is in session, the arraignment  
               may take place at any time during that session. However,  
               when the defendant's arrest occurs on a Wednesday after the  
               conclusion of the day's court session, and if the Wednesday  
               is not a court holiday, the defendant shall be taken before  
               the magistrate not later than the following Friday, if the  
               Friday is not a court holiday. (Pen. Code,  825, subd.  
               (a)(2).)

             

          10)Allows after the arrest, any attorney at law entitled to  
            practice in the courts of record of California, at the request  
            of the prisoner or any relative of the prisoner, visit the  
            prisoner. Any officer having charge of the prisoner who  
            willfully refuses or neglects to allow that attorney to visit  
            a prisoner is guilty of a misdemeanor.  Any officer having a  
            prisoner in charge, who refuses to allow the attorney to visit  
            the prisoner when proper application is made, shall forfeit  
            and pay to the party aggrieved the sum of five hundred dollars  
            ($500), to be recovered by action in any court of competent  
            jurisdiction. (Pen. Code,  825, subd. (b).)



          11)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:  








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          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  








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            time from their work, school or other activities, facing the  
            anxiety of being charged with a crime.  In the face of such  
            demands, some innocent defendants are forced to 'take a deal'  
            rather than risk losing a job or failing their school work.   
            The time and expense required for this preparation could be  
            obviated if there was a convenient means for washing out the  
            weak and baseless cases at an early stage.  

            "In the wake of Proposition 47, it has been projected that  
            misdemeanor trial courts statewide will be inundated with  
            thousands and perhaps tens of thousands of what were formerly  
            low level felonies. These courts and defendants will be  
            without the means to weed out the weakest of those charges.  
            Without additional authority to evaluate those cases, the  
            courts may very well find themselves overwhelmed with pending  
            misdemeanor trials. 

            "In addressing these concerns, and pursuant to the Governor's  
            recommendation, AB 1106 will establish a carefully crafted  
            pilot that will provide such authority on a limited basis.   
            Specifically, the bill will establish, by July 1, 2017, a  
            5-year pilot project in six counties that would require a  
            judge to make a finding of probable cause in determining  
            whether a crime has been committed when a defendant is out of  
            custody and facing a misdemeanor charge.  The bill requires  
            that the County of Los Angeles be included among the six  
            counties in the pilot and that the remaining five counties be  
            selected based on population size, including small, medium,  
            and large counties.

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

            "Though hundreds of thousands of misdemeanors are filed in  
            this state each year and tens of thousands of misdemeanants  
            are in custody at arraignment, experience has shown, since PC  
             991 was enacted in 1980, that only a small fraction of those  
            defendants will bring a PC  991 motion. When they do bring  
            the motion, it normally takes the judge only a few minutes to  








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            read the documents, listen to arguments, and make his ruling.  
            When defendants are not in custody, and their liberty is  
            consequently not at stake, it is even less likely that they  
            will bring a motion unless they legitimately believe there is  
            insufficient probable cause to support the charges. 

            "The legal calculus dictates that far less time will be  
            consumed by hearing a few additional PC  991 motions for  
            out-of-custody misdemeanants than will be saved from having to  
            conduct meritless misdemeanor trials that could otherwise be  
            identified and eliminated at an early stage.  This bill will  
            show how it can benefit the prosecution by allowing it more  
            time to gather and present evidence to support its claim of  
            probable cause, and screening out-of-custody misdemeanor cases  
            before they potentially become an unnecessary burden on our  
            trial courts. 

            "AB 1106 provides an inexpensive and streamlined mechanism in  
            identifying meritless cases and should pay dividends for those  
            selected counties in saved time, stress, and resources for all  
            involved."

          2)Governor's Veto Message:  AB 696 (Jones-Sawyer), of the  
            2015-2016 Legislative Session, was vetoed by the Governor.  AB  
            696 would have required a probable cause determination for out  
            of custody misdemeanor defendants upon request by the defense.

          The Governor's veto message was as follows:  "I understand the  
            potential benefits to a defendant in having the court make  
            this determination earlier in the process. However, the impact  
            on the courts is unclear and could well be significant. I  
            would welcome a small, carefully crafted pilot to assess the  
            impact of this proposal."

          3)Argument in Support:  According to California Public Defenders  
            Association, "AB 1106 is responsive to the Governor's veto  
            message on AB 696 that suggests a pilot program be created. 

          "AB 1106 would create an arraignment pilot program that would  
            provide a judicial determination of probable cause for out of  
            custody individuals charged with misdemeanors. This would save  
            time and money by identifying meritless cases at an early  








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            stage in the proceedings.

          "AB 1106 would save money and time for county government who  
            fund prosecutors' and public defense for indigents.  
            Preparation for a misdemeanor trial requires investigation,   
            subpoenaing of witnesses, extensive discovery of the opposing  
            party's evidence, and often the filing of legal motions and  
            the analysis of physical evidence and the employment of expert  
            witnesses. The time and expense required for this preparation  
            could be obviated if the court could make a probable cause  
            determination washing out weak and baseless cases at an early  
            stage.

          "AB 1106 would prevent jurors from sitting through an entire  
            misdemeanor trial only to feel that their time has been wasted  
            by a baseless case. Even if the misdemeanor trial judge  
            suspects that the case may be weak, the judge has no power to  
            make that determination before trial. The judge must wait for  
            the prosecution to conclude its case at trial before it may  
            rule on the sufficiency of evidence under the authority  
            granted to the court under Penal Code section 1118 or 1118.1.  
            By then the court has expended virtually all the resources  
            involved in a full   trial.

          "AB 1106 will provide the courts with the authority to  
            efficiently handle the thousands, perhaps tens of thousands of  
            new misdemeanors created by Proposition 47. It will amend  
            Penal Code section 991 to allow courts to make probable cause  
            determinations for out-of-custody misdemeanors as well as  
            custody misdemeanors. 

          "Finally, AB 1106 will prevent unnecessary stress, oppression  
            and expense for innocent people who have been wrongly arrested  
            and charged with misdemeanors.  The disruption of an  
            individual's life when under the shadow of a criminal charge  
            can be enormous. They must take time from their work, school  
            or other activities. They face the anxiety of being charged  
            with a crime. In the face of such demands, some innocent  
            defendants are forced to take a 'deal' rather than risk losing  
            a job or failing their school work."

          4)Related Legislation:  AB 696 (Jones-Sawyer), of the 2015-2016  








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            Legislative Session, would have required probable cause  
            determination for out of custody misdemeanor defendants upon  
            request by the defense.  AB 696 was vetoed by the governor.





          REGISTERED SUPPORT / OPPOSITION:

          Support

          California Public Defenders Association


          Opposition
          
          None


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