BILL ANALYSIS
SENATE COMMITTEE ON CRIMINAL PROCEDURE
Senator Milton Marks, Chair
A
1995-96 Regular Session
B
1
3
AB 130 (Rainey)
0
As amended May 15, 1995
Hearing date: June 13, 1995
Penal Code
MLK:ll
Criminal Actions: pre-trial information
HISTORY
Source: Contra Costa Superior Court
Prior Legislation: None
Support: Judicial Council; California District Attorneys
Association; California Attorney
General; Los Angeles Municipal Court Judges
Association; California Peace
Officerso Association; California Police Chiefso
Association;
Opposition: Contra Costa Public Defender; California
Attorneys for Criminal Justice
Assembly Floor Vote: Ayes 70 - Noes 1
KEY ISSUE
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SHOULD a judge be permitted to review PROBATION REPORTS,
WITHOUT THE CONSENT OF THE DEFENDANT, AND USE SUCH REPORTS TO
ADOPT A PRE-TRIAL SENTENCING POSITION?
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PURPOSE
Under existing law, a judge cannot review probation reports
about the defendant prior to the defendantos conviction,
unless the defendant consents. (Penal Code section 1204.5;
Breedlove v. Municipal Court (1994) 27 Cal. App. 4th 60.)
Existing law prohibits judicial plea bargaining. ( People v.
Orin (1975) 13 Cal. 3d 937.)
This bill makes an exception to Penal Code section 1204.5 by
allowing a judge, who is not the preliminary hearing or trial
judge, to consider probation and law enforcement reports in
order to adopt a pre-trial sentencing plea, without the
consent of the defendant, provided that the defendant is:
represented by counsel; any information provided to the judge
is provided to the D.A. and defense attorney at least 5 days
prior to the hearing; and the D.A. and defense attorney are
allowed to provide information to supplement the report.
The purpose of this bill is to allow judges to review
probation reports in order to adopt a
pre-trial plea.
COMMENTS
1. Need for the bill.
According to the author:
Existing law prohibits a judge from reading or
considering any information relating to the
arrest or conviction record of the defendant, or
any affidavit or other written report, without
the consent of the defendant, except as
authorized by the rules of evidence or otherwise
specified. These reports provide criminal
calendar judges with sufficient information in
most cases to make fair and meaningful pre-trial
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case disposition offers. Many courts use these
reports as an integral part of court coordination
to set cases at the earliest opportunity.
Trial Court coordination has been very effective
in Contra Costa county, and this would be another
way to increase effectiveness. This truly is a
fundamental tool in the courtos ability to
operate the Court Coordination Plan once receipt
of information has taken place from the Probation
Department about the defense and the defendant at
least five days prior to any hearing or
conference held for the purpose of considering a
proposed guilty plea or proposed sentence.
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2. Background.
a. Practice in Contra Costa Courts pre Breedlove
Since January 1, 1993, the Contra Costa Superior and
Municipal courts, as part of a criminal trial
coordination program (Government Code section 68112)
have followed the following procedures: When a
defendant is charged with a felony, and appears in the
Municipal court to enter a plea of not guilty, three
court dates are set. The first court date, routinely
set on the fourth court day after the plea, is the
pre-preliminary hearing conference. The second, set
routinely on the seventh court day, is a readiness
conference. The third date is the preliminary
hearing, which is routinely set on the ninth court day
following the initial plea.
Until the case of Breedlove v. Municipal Court (1994)
27 Cal. App. 4th 60, at the pre-preliminary hearing,
the Contra Costa Superior Court judge, sitting as a
magistrate, would review a pre-preliminary hearing
report that would consist of a summary of the facts as
presented in any police reports and a summary of the
defendantos criminal record as well as a probation
report. The judge would then present defendantos
counsel with an ooffero representing what the
defendant would be sentenced to at the readiness
conference, if they plead guilty.
If the defendant determines that they do not want to
plead guilty for any reason--i.e. they wish to file a
motion to suppress, there has not been adequate time
to investigate the case or they wish to have a
preliminary hearing--the offer would routinely be
withdrawn, and according to the opposition any
subsequent offer would be greater than the initial
one.
b. Breedlove v. Municipal Court
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The defendant in Breedlove objected to the setting of
the pre-preliminary hearing and the readiness
conference without his consent and that these
procedures violate Penal Code section 1204.5.
The Breedlove court gave the following history of
Penal Code section 1204.5:
Section 1204.5 was enacted in 1968 (Stats.
1968, Ch. 1362, sec. 1, p. 2599) in response
to the concerns of some that many courts
were then requiring prosecutors to file
police reports and criminal records
information together with criminal
complaints, and that this information could
improperly influence judges in their rulings
prior to or during trial to the prejudice of
a defendant. [citations] The bill was
eventually sponsored by the State Bar, and
when passed
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included well-defined exceptions to the
prohibition on the use of the specified
information. [citations] Section 1204.5 has
never been amended and only rarely discussed
in appellate discussions.
The Court concluded that, although they agreed that
the policy reason advanced by the People (the informed
judicial assistance in the possible early resolution
of criminal cases) was compelling, section 1204.5 does
not allow for the review of any pre-preliminary
hearing reports or studies, police reports or any
other summary of the facts of the charge case prior to
the entry of a plea or finding of guilt.
c. After Breedlove
According to the Contra Costa Public Defender, the
procedures in the County have been altered only
slightly since Breedlove. Now the magistrate only
receives the pre-preliminary hearing report if the
defendant consents. This is done in many cases and
the proceedings continue as they did before. If for
some reason the defendant doesnot consent, such as
more investigation is needed, the magistrate does not
extend an offer. The D.A. can extend an offer at any
time.
3. This bill.
This bill abrogates the holding in Breedlove by creating an
exception to section 1204.5. The exception provides that
1204.5 does not preclude a judge, who is not the preliminary
hearing or trial judge, from considering any information
about the defendant for the purposes of that judge adopting a
pre-trial sentencing position or approving or disapprove a
guilty plea pursuant to a plea bargain. The sponsor believes
this will allow Contra Costaos pre- Breedlove practices to
continue.
4. Judicial plea bargaining.
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In People v. Orin (1975) 13 Cal. 3d. 937, the court
specifically prohibited judges from assuming the negotiating
role in plea bargains because: o[s]uch judicial activity,
would detract from the judgeos ability to remain detached and
neutral in evaluating the voluntariness of the plea and the
fairness of the bargain to society as well as to the
defendant, and would present a substantial danger of
unintentional coercion of defendants who may be intimidated
by the judgeos participation in the matter.o ( Orin, 13 Cal.
3d at 943.) Plea bargains should be negotiated solely
between the defense and the prosecution. ( Id. at 942-43.)
Courts have allowed judges to indicate sentences on a given
set of facts and have distinguished this practice from plea
bargaining. ( People v. Superior Court (Ramos) (1991) 235
Cal. App. 3d 1261.)
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5. Opposition arguments.
The Contra Costa Public Defender is greatly concerned about
the impact of this bill on the rights of defendants and set
forth the following arguments in support of their concern.
a. Judicial plea-bargaining
The Contra Costa Public Defender is concerned that
this bill will be read as oLegislative approval of
judicial plea-bargaining, a practice that has
otherwise been barred in California.o
Citing the cases discussed in Comment 4, the Contra
Costa Public Defender states:
The resolution of cases by way of an
oindicated sentence,o
[see People v. Superior Court Ramos, supra.]
clearly contemplates a defendant placing
facts before the judge and seeking an
indicated sentence. To permit a judge to
review the facts and make an offer on the
case, without the defendant having sought
such an offer, would be to permit the very
judicial plea bargaining which the law
forbids. In particular it creates a risk of
coercion of defendants which is inconsistent
with the due process of law.
DOES THIS BILL SANCTION JUDICIAL PLEA-BARGAINING?
b. Federal Court rule
The contra costa public defender notes that Federal
Rule of Criminal Procedure Rule 32(c)(1) provides that
a presentence report may be prepared before trial but
should not be read by the court prior to a plea of
guilty or a finding of guilt. Rule 32 does however,
allow the judge to review the report, with the
defendantos consent. This is similar to existing
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California Penal Code section 1204.5.
Furthermore, o[t]he United States Supreme Court has
said that this rule omust not be taken lightlyo and
that submission of a pre-sentence report to a judge
prior to a verdict or plea of guilty oconstitutes
error or the clearest kind.o
( Gregg v. United States (1969) 394 U.S. 489, 492)o
The Ninth Circuit has held that a violation of Rule 32
is reversible per se and not subject to the harmless
error doctrine. (United States v. Park (9th Cir.
1975) 521 F.2d 1381.)
in light of the Supreme Courtos strict reading of THE federal
rule, should existing law be changed?
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c. Plea-bargaining is a prosecutorial function
The Contra Costa Public Defender points out that
plea-bargaining is a prosecutorial function. ( People
v. Orin (1975) 13 Cal. 3d 937, 942-43.) It is the
prosecutoros decision to determine when, under the
specific factual circumstances, a plea-bargain should
be offered and when, despite the cost, it is important
to go to trial and impose a stiff sentence on a
defendant.
The Public Defender believes that this amendment
raises the risk that a judge will offer a reduced
sentence in order to save judicial resources, even if
the prosecutor does not believe such an offer is
appropriate.
Does this bill undermine prosecutorial discretion?
d. Effective Assistance of Counsel
It is well established that the Sixth Amendment Right
to Counsel gives criminal defendants the right to
effective assistance of counsel at all critical
stages, including the time between arraignment and
trial when consultation, thorough investigation and
preparation are vitally important. ( Powell v. Alabama
(1932) 287 U.S. 45, 57, 71.) The Constitution imposes
upon the criminal defense attorneys the duty to
investigate adequately each case. ( Strickland v.
Washington (1984) 466 U.S. 668, 691.)
One of the major concerns of the Contra Costa Public
Defender is whether the attorneys in his office can
give effective assistance of counsel under the
pre-Breedlove method of the Contra Costa Courts. He
notes:
Although, there are many cases which can be
investigated sufficiently in the seven days
between counsel and plea and the (readiness
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conference), there are also many cases which
cannot be sufficiently investigated within
that time. If the Sixth Amendment right to
counsel means anything, it means the right
to be advised by someone who is schooled in
the applicable law and who has investigated
the facts sufficiently to give intelligent,
professional advice. To force a defendant
and counsel to consider an offer which will
be withdrawn before adequate investigation
can be done is to burden impermissibly the
right to effective assistance of counsel.
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The concern is whether the attorney will be able to
give the defendant informed advise on whether or not
to take the plea-bargain. The attorney needs to
evaluate whether there are any grounds to challenge
any of the evidence, whether the witnesses are
reliable etc. in determining whether or not to advise
a client whether they are better off taking a
plea-bargain.<1> The actual decision to take a plea
is the defendantos but the constitution clearly
requires effective assistance at the time a
plea-bargain is considered. ( Strickland, supra..)
The Public Defender points out that the courts have
found:
Competent representation by counsel is
necessary to assure that the inherently
coercive effect of plea negotiations is not
so great as to cause innocent people to
plead guilty. (See Corbitt v. New Jersey
(9178) 439 U.S. 2123, 225; Brady v. United
States (1970) 397 U.S. 742, 758.)
The fear is people will plead guilty solely because
they know the offer will be raised if they donot, even
if a motion to suppress or preliminary hearing would
have shown flaws in the district attorneyos case.
could this bill interfere with the defendantos sixth
amendment right to counsel?
could this bill prevent a defense attorney from acting
COMPETENTLY?
could this bill interfere with a defense attorneys
ability to adequately investigate a case and therefore
interfere with his/her ability to inform their client?
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<1> o[C]onviction by means of unlawful seizures and enforced
confession... should find not sanction in the judgments of
the courts...,o and ... such evidence oshall not be used at
all.oo (Mapp v. Ohio (1961) 367 U.S. 643, 648.)
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could this bill, by interfering with the effective
assistance of counsel, lead to more pleas being
challenged as unconstitutional?
e. Conclusion
Although Contra Costa County is the only County (known
to the Contra Costa Public Defender) using the early
offer, and preliminary hearing scheme, the Public
Defender is concerned that if this bill is adopted,
more counties will allow judges to use the probation
reports, without the defendantos permission, to force
early pleas.
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