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AB-1636 Criminal procedure: determination of probable cause.(2019-2020)

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Date Published: 04/04/2019 09:00 PM
AB1636:v98#DOCUMENT

Amended  IN  Assembly  April 04, 2019

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill
No. 1636


Introduced by Assembly Member Bonta

February 22, 2019


An act to amend Section 1387 of, and to add Section 991.2 to to, the Penal Code, relating to criminal procedure.


LEGISLATIVE COUNSEL'S DIGEST


AB 1636, as amended, Bonta. Criminal procedure: determination of probable cause.
Under existing law, a person who is arrested and charged by complaint with a felony offense shall, within 10-days, or later if they waive the 10 day requirement, have a preliminary examination to determine if there is probable cause to hold them to answer. After a finding by the court of probable cause, the defendant may file a motion to set aside the finding of probable cause.
Under existing law, a person arrested and charged with a misdemeanor who is in custody at the time of arraignment may request a determination of probable cause on each charge, which shall be made immediately by the court on the basis of any warrant of arrest, the complaint, or any documents of similar reliability, unless good cause exists to delay the determination for not more than 3 days.
This bill would authorize a person charged by complaint with a felony to, at the time of arraignment, make a motion for a determination of probable cause on each count charged, which shall be made by the court immediately on the basis of the complaint, warrant, police reports, or other documents of similar reliability, or may be continued for not more than 3 days for good cause. The bill would require the court to dismiss any count charged for which the court does not make a finding of probable cause.
This bill would allow any a charge dismissed pursuant to such a motion to be refiled. refiled under certain specified circumstances. The bill would also clarify that a finding of that probable cause exists pursuant to such a motion is not binding on the court in any later hearing for the purpose of determining probable cause.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 991.2 is added to the Penal Code, to read:

991.2.
 (a) At the time the defendant appears before the magistrate for arraignment on a complaint, for each public offense charged in the complaint that is a felony 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 the offense has been committed and whether there is probable cause to believe the defendant has committed the offense.
(b) The determination of probable cause shall be made at the time of arraignment unless the court grants a continuance for good cause not to exceed three days.
(c) In determining the existence of probable cause, the magistrate shall consider the complaint, any warrant of arrest, police reports, affidavits, and any other related documents the magistrate deems to be reliable. The magistrate shall also consider any evidence proffered by the defendant that supports a finding of no probable cause.
(d) After making a determination, the court shall dismiss without prejudice any charge that is not supported by probable cause.
(e) Any finding of that probable cause exists pursuant to this section shall not be binding on the court in the preliminary examination or any future hearing to determine the existence of probable cause.

SEC. 2.

 Section 1387 of the Penal Code is amended to read:

1387.
 (a) An order terminating an action pursuant to this chapter, or Section 859b, 861, 871, 991.2, or 995, is a bar to any other prosecution for the same offense if it is a felony or if it is a misdemeanor charged together with a felony and the action has been previously terminated pursuant to this chapter, or Section 859b, 861, 871, 991.2, or 995, or if it is a misdemeanor not charged together with a felony, except in those felony cases, or those cases where a misdemeanor is charged with a felony, where subsequent to the dismissal of the felony or misdemeanor the judge or magistrate finds any of the following:
(1) That substantial new evidence has been discovered by the prosecution which would not have been known through the exercise of due diligence at, or prior to, the time of termination of the action.
(2) That the termination of the action was the result of the direct intimidation of a material witness, as shown by a preponderance of the evidence.
(3) That the termination of the action was the result of the failure to appear by the complaining witness, who had been personally subpoenaed in a prosecution arising under subdivision (e) of Section 243 or Section 262, 273.5, or 273.6. This paragraph shall apply only within six months of the original dismissal of the action, and may be invoked only once in each action. Nothing in this section shall preclude a defendant from being eligible for diversion.
(4) That the termination of the action was the result of the complaining witness being found in contempt of court as described in subdivision (b) of Section 1219 of the Code of Civil Procedure. This paragraph shall apply only within six months of the original dismissal of the action, and may be invoked only once in each action.
(b) Notwithstanding subdivision (a), an order terminating an action pursuant to this chapter is not a bar to another prosecution for the same offense if it is a misdemeanor charging an offense based on an act of domestic violence, as defined in subdivisions (a) and (b) of Section 13700, and the termination of the action was the result of the failure to appear by the complaining witness, who had been personally subpoenaed. This subdivision shall apply only within six months of the original dismissal of the action, and may be invoked only once in each action. Nothing in this subdivision shall preclude a defendant from being eligible for diversion.
(c)  An order terminating an action is not a bar to prosecution if a complaint is dismissed before the commencement of a preliminary hearing in favor of an indictment filed pursuant to Section 944 and the indictment is based upon the same subject matter as charged in the dismissed complaint, information, or indictment.
However, if the previous termination was pursuant to Section 859b, 861, 871, 991.2, or 995, the subsequent order terminating an action is not a bar to prosecution if:
(1) Good cause is shown why the preliminary examination was not held within 60 days from the date of arraignment or plea.
(2) The motion pursuant to Section 995 was granted because of any of the following reasons:
(A) Present insanity of the defendant.
(B) A lack of counsel after the defendant elected to represent himself or herself rather than being represented by appointed counsel.
(C) Ineffective assistance of counsel.
(D) Conflict of interest of defense counsel.
(E) Violation of time deadlines based upon unavailability of defense counsel.
(F) Defendant’s motion to withdraw a waiver of the preliminary examination.
(3) The motion pursuant to Section 995 was granted after dismissal by the magistrate of the action pursuant to Section 871 and was recharged pursuant to Section 739.