BILL ANALYSIS
SENATE COMMITTEE ON CRIMINAL PROCEDURE
Senator Milton Marks, Chair A
1995-96 Regular Session B
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AB 1452 (Kaloogian) 5
As amended July 3, 1995 2
Hearing date: July 18, 1995
Penal Code
MLK:js
CRIMINAL PROCEDURE
HISTORY
Source: California District Attorneyos Association
Prior Legislation: None
Support: Doris Tate Crime Victims Bureau
Opposition: California Attorneys for Criminal Justice;
American Civil Liberties Association
Assembly Floor Vote: Ayes 71 - Noes 0
(FOR VOTE ONLY)
KEY ISSUE
should the time in which a defendant must be ARRAIGNED be changed from 2 days to 48
hours?
PURPOSE
The U.S. Constitution and California Constitution include in
the right of an accused person to a speedy and public trial
the right of a person in police custody to be promptly
brought before a magistrate and formally charged. (U.S.
Constitution, Amend. 6; Cal. Constitution Art. I, section
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15.)
The California Constitution further provides that o[a] person
charged with a felony by complaint... shall be taken without
necessary delay before a magistrate....o (Cal. Constitution
Art. I, section 14.)
Existing law provides that a defendant be taken before a
magistrate without unnecessary delay, but not more than 2
days after his/her arrest. If the two days expire when the
court is not in regular session (weekends, holidays), the
time shall include the next regular court session on the next
judicial day. (Penal Code section 825 (a)(1).)
The Second district of appeal has interpreted o2 dayso to
require the arraignment of a defendant on the 2nd court day
following the arrest, regardless of the time of the day or
night of the arrest. ( Youngblood v. Gates (1988) 200 Cal.
App. 1302.)
This bill provides that a defendant be taken before the
magistrate without unnecessary delay, but not more than 48
hours after his or her arrest, excluding weekends or court
holidays.
The purpose of this bill is to give the police and district
attorney more time to prepare reports necessary for an
arraignment by changing the time for arraignment from 2 court
days to 48 hours.
COMMENTS
1. Sponsoros Statement.
According to the sponsor:
As presently written, Penal Code section 825 (a)
(1) requires that a defendant in a criminal case
be arraigned within two calendar days of his
arrest, excluding weekends and court holidays.
With the increasing volume of crime and
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diminishing law enforcement resources already
strained to the limit, the ability of law
enforcement agencies to forward completed
investigation reports to the appropriate
prosecuting agencies for review and, if
applicable, the preparation of a criminal
complaint within the two day time limit is
severely constrained.
Law enforcement agencies simply lack the
resources and personnel to prepare reports
quickly enough to forward them to prosecutors in
order to enable legal review of the reports and
the issuance of a complaint within the two day
period. As a consequence, prosecutors are faced
with the distasteful choice of permitting
potentially dangerous criminals to be released
from custody in order to facilitate review of the
police reports or, alternatively, issue a
criminal complaint based upon hastily assembled
or incomplete police reports.
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2. Effect of the Bill.
Under existing law, a defendant must be arraigned within two
court days of being arrested. Thus, a person arrested any
time on Monday is arraigned on or before Wednesday, a person
arrested any time on Wednesday is arraigned on or before
Friday, a person arrested any time on Thursday is arraigned
on or before Monday, a person arrested any time on Friday is
arraigned on or before Tuesday, etc.
By changing the maximum time before arrest to 48 hours,
excluding weekends and holidays, a defendant arrested any
time after court is out of session on Monday will not be
arraigned until Thursday. The most significant impact will
be to those arrested after the court closes on Wednesday,
instead of being arraigned by Friday, they will be arraigned
on Monday. (See Comment 5 for discussion on the extended
stay in jail.)
3. Existing Law.
a. Arraignments.
At the arraignment a defendant is informed of the
charges against him/her, if they are indigent an
attorney is assigned, bail, which is usually set when
they are initially brought to the jail, may be raised,
lowered or the defendant may be released without bail
depending on the charges actually filed.
b. Unreasonable delay.
1) 2 days vs. 48 hours.
Since 1927, California has specified that a defendant
must be arraigned within 2 days. The 2 days was
interpreted as otwo court dayso as early as 1967 when
the California Supreme Court in People v. Powell
stated that it was an unreasonable delay to arraign
the defendant 3 days, although within 48 hours, after
the defendant was arrested. (See People v. Powell
(1967) 67 C.2d. 32, 59.) The court stated that this
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delay oviolates a fundamental right of the arrested
person and is in disobedience of the law.o (Citations
omitted.) ( Id.)
The interpretation of 2 days as otwo court dayso and
not 48 hours, was most recently restated by the Second
District Court of Appeal in Youngblood v. Gates. In
Youngblood the defendant challenged the Los Angeles
Police Departmentos interpretation of the 2 days as 48
hours. The court citing Powell and subsequent
decisions found that Penal Code section 825 required
that the defendant be arraigned within 2 court days.
( Youngblood v. Gates (1988) 200 Cal. App. 3d. 1302.)
SHOULD THIS LONG STANDING LAW BE CHANGED?
2) 2 days may be unreasonable.
The law is clear that it is necessary to bring a
person to arraignment without unreasonable delay.
Courts have continually found that even waiting the
two days as provided by statute constitutionally may
be an unreasonable delay under certain circumstances.
(See People v. Powell, supra.; People v. Williams
(1977) 68 Cal. App. 3d 36; People v. Thompson (1980)
27 C. 3d. 303; People v. Valenzuela (1978) 86 Cal.
App. 3d 427; People v. Cook (1982) 135 Cal. App. 3d
785; Youngblood v. Gates, supra.)
Thus, if all the information necessary to file charges
is in the hands of the police at the time of arrest,
( People v. Cook, supra.) or if the delay is to fill
out the arrest report ( People v. Valenzuela, supra.)
it may be unreasonable to wait the two-court days for
arraignment.
IF ONE OF THE STATED NEEDS FOR THIS BILL IS TIME TO
FILL OUT THE NECESSARY REPORTS, AND IF THE COURTS HAVE
FOUND 2 DAYS TO BE TOO LONG A DELAY JUST TO FILL OUT
REPORTS, HOW WILL CHANGING THE TIME TO 48 HOURS CHANGE
THESE CONSTITUTIONAL REQUIREMENTS?
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c. Probable cause hearing.
The sponsor states that it is not prejudicial to the
defendant to extend the time of arraignment to 48 hours,
excluding holidays, because they are required to do a
probable cause showing within 48 hours, including
holidays, and thus the defendant knows why they are
being held. (See County of Riverside v. McLaughlin
(1991) 500 U.S. 44.)
At a probable cause hearing, the police give an
affidavit to the magistrate to review. The affidavit
states the probable cause for holding the defendant,
i.e., the defendant was caught with an illegal
substance. What the probable cause hearing does not
inform the defendant of is what charges are being
brought against him or her, i.e., possession, possession
for sale, enhancements, etc. According to defense
attorneys, most of the time the defendant does not know
what they are being charged with until the arraignment,
even if they know why they are being held.
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4. Need for the Bill.
a. Time to do paperwork.
As noted above, the sponsor states that this bill is
necessary in part because the peace officers need the
time to do the paperwork and get it to the DAs to
evaluate and file charges.
Opponents question why with access to computers, fax
machines and copiers the police are unable to do in a
timely manner now what they used to be able to do
handwriting reports and making carbon copies? They
believe that any increase in work load would be offset
by these technological advances.
b. Evaluate charges.
According to the sponsor, another reason for the bill is
to give the D.A. adequate time to correctly evaluate the
charges.
Staff is informed that it is common practice for D.A.s
to initially charge a general crime and to later amend
the complaint to include additional crimes and
enhancements.
IF D.A.S COMMONLY AMEND COMPLAINTS AFTER THE
ARRAIGNMENT, DO THEY NEED ADDITIONAL TIME TO INITIALLY
EVALUATE THE CASE?
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5. Extended Time in Jail.
Although some persons may be bailed out before arraignment,
many defendants do not do so until arraignment. Other cases
are disposed of at arraignment because the defendant pleads
or because the charges are dropped.
Assuming that D.A.s use the additional time granted by the 48
hours, this bill would mean that virtually every defendant
who is arrested after 5:00 p.m. any given day (or early in
counties in which the court closes earlier) will spend at
least one additional night in jail. If a person is arrested
after 5:00 p.m. on Wednesday, under existing law they would
have to be arraigned by Friday, under this bill they would
not have to be arraigned until Monday. Thus, these persons
would spend an additional three nights in jail, if it falls
on a Monday holiday weekend that would extend to four days.
The opponents note that not only is this unjust to the
defendant, who will not have been informed of the charges
against them or have an attorney appointed, it will also add
to the overcrowding of the jails. They believe that this
impact could be substantial and could result in jails who are
under non-overcrowding orders to release convicted persons to
make room for those being held.
It should be noted that this bill is not keyed fiscal.
WILL THIS BILL ADD TO THE OVERCROWDING OF JAILS?
6. Amendments Since Committee.
Since this bill was heard on June 6 the author has made what
is essentially a clarifying amendment. It states that if the
48 hours expires at a time when the court is in session then
the defendant need only be arraigned prior to the end of
session. Thus, if the 48 hours expires at 2:30 p.m. on
Tuesday and there is a court session that goes from 1 to 4
p.m., this section will not be violated as long as the
defendant is arraigned before 4 p.m.
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