HomeMy WebLinkAboutMINUTES - 01311995 - 1.22 TO: BOARD OF SUPERVISORS s L Contra
-,
FROM: Phil Batchelor, County Administrator
Costa
County
January 24, 1995
DATE: 2`oui+�
SUBJECT: LEGISLATION: AB 130 (Rainey) - AUTHORIZES A JUDGE, WHO IS NOT THE
TRIAL COURT JUDGE, TO CONSIDER ANY INFORMATION ABOUT A DEFENDANT
FOR THE PURPOSE OF ADOPTING A PRE-TRIAL SENTENCING POSITION OR
APPRnVTNC (7R nTRAPPR[ yan A PRF-mI)TDT. nTTTr_my
SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION
RECOMMENDATION:
AGREE that Board of Supervisors is willing to be a CO-SPONSOR of AB
130 by Assemblyman Richard Rainey, which would amend Penal Code S
1204 .5 to clarify that the section' s general prohibition against a
judge reading . or considering any written report of any law
enforcement officer or witness to any offense after the filing of
a complaint and before a plea, finding or verdict of guilty does
not preclude a judge, who is not the trial judge in the case, from
considering any information about the defendant for the purpose of
adopting a pre-trial sentencing position or approving or
disapproving a guilty plea.
BACKGROUND:
In adopting the Board' s 1995 Legislative Program, the Board agreed
to support the efforts of other groups to enact legislation which
would overturn the "Breedlove" decision which interprets Penal Code
S 1204 .5 in such a way as to prevent a judge from reading the pre-
plea reports or receiving any information about a case for the
purpose of pre-trial conferences .
A recent decision by an appellate court has prohibited judges from
reading pre-plea records or otherwise receiving any information
about a case for the purpose of pre-trial conferences . The
Superior Court and District Attorney both are recommending
legislation to clarify that the intent of the Legislature was not
to prevent a judge from reading the pre-plea reports or receiving
CONTINUED ON ATTACHMENT: YES SIGNATURE:
/ L
RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
APPROVE OTHER
SIGNATURE S :
��, Lea
ACTION OF BOARD ON miry 3 1 I APPROVED AS RECOMMENDED OTHER
VOTE OF SUPERVISORS
I HEREBY CERTIFY THAT THIS IS A TRUE
UNANIMOUS(ABSENT ) AND CORRECT COPY OF AN ACTION TAKEN
AYES: NOES: AND ENTERED ON THE MINUTES OF THE BOARD
ABSENT: ABSTAIN: OF SUPERVISORS ON THE DATE SHOWN.
JAN 31 1995
ATTESTED
Contact: PHIL BATCHELOR,CLERK OF THE BOARD OF
cc: See Page 2 SUPERVISORS AND COUNTY ADMINISTRATOR
DEPUTY
Qate,2
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any information about the case for the purpose of pre-trial
conferences . If the decision of the appellate court is allowed to
stand, the ruling could seriously jeopardize our court coordination
program and force a large number of criminal cases back down to the
Municipal Court for preliminary hearings, with adverse budgetary
impacts on our court system and on the District Attorney' s Office.
The appellate court agreed that its decision was required by a
literal reading of the statute and that the remedy for its finding
was legislative, not judicial . The then-Presiding Judge of the
Superior Court, The Honorable Douglas Swager, and the District
Attorney have both urged the Board of Supervisors to support their
position that the statute needs to be amended to provide an
exception to the prohibition on reading or considering any written
report of any law enforcement officer or witness to any offense,
any information reflecting the arrest or conviction record of a
defendant, or any affidavit or representation of any kind, verbal
or written without the defendant' s consent given in open court.
Attached is a copy of the decision of the appellate court in the
"Breedlove" case, which outlines very clearly the thinking of the
appellate court and notes the need for legislative action to
overturn its decision.
In view of the Board' s inclusion of this issue in its 1995
Legislative Program and in view of the negative fiscal consequences
of not amending the statute, it is proper for the Board of
Supervisors to agree at this time to co-sponsor AB 130 by
Assemblyman Rainey.
cc: County Administrator
John Minney, Presiding Judge of the Superior Court
Superior Court Judge Douglas Swager
District Attorney
Sheriff-Coroner
George Roemer, Senior Deputy County Administrator
Les Spahnn; Heim, Noack, Kelly & Spahnn
CALIFORNIA LEGISLATURE-1995-96 REGULAR SESSION
ASSEMBLY BILL No. 130
Introduced by Assembly Member Rainey
January 12, 1995
An act to amend Section 1204.5 of the Penal Code, relating
to.criminal actions.
LEGISLATIVE COUNSEL'S DIGEST .
AB 130, as introduced, Rainey. Criminal actions: pre-trial
information.
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 as otherwise specified.
This bill would state that the above prohibition does not
preclude a judge, who is not the trial judge in the case, from
considering. any information about the defendant for the ,
purpose of that judge adopting a pre-trial sentencing position
or approving or disapproving a guilty plea, as specified.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
The people of the State of California do enact as follows.
1 SECTION 1. Section 1204.5 of the Penal Code is
2 amended to read:
3 1204.5. (a) In any criminal action, after the filing of
4 any complaint or other accusatory pleading and before a
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AB 130 — 2 —
I
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1 plea, finding, or verdict of guilty, no judge of a� eoer-t
2 shall read or consider any written report of any law
3 enforcement officer or witness to any offense, of any
4 information reflecting the arrest or conviction record of
5 a defendant, or any affidavit or representation of any
6 kind, verbal or written, without the defendant's consent
7 given in open court, except as provided in the rules. of
8 evidence applicable at the trial,eT with the eeiisettt of the
9, fteettse given in spur eetfft, or as provided in affidavits
10 in connection,. with the issuance of a warrant or the
11 hearing of any 'law and motion matter, or in any
12 application for an order fixing or changing bail,. or a
13 petition for a writ.
14 (b) This section does not preclude a judge, who is not
15 the trial judge in the case, from considering any
16 information about the defendant for the purpose of that
17 judge adopting . a pre-trial sentencing position or
18 approving or disapproving a guiltyplea entered pursuant
19 to Section 1192.5.
N
0
99
OFFICE OF COUNTY ADMINISTRATOR
CONTRA COSTA COUNTY
Administration Building
Martinez, California
RECERVED
DATE: August 12, 1994
TO: CLAUDE VAN MARTER F-
J
UG
Assistant County Administrator
s
OFFICE OF
FROM: GfOR- -R, Director Y ADMINISTRATOR
usti System Programs
SUBJECT: DECISION IN BREEDLOVE CASE*
Attached is a copy of the Breedlove case decision which represents
an interpretation of Penal Code Section 1204 . 5 that would prevent
our criminal judges from reading the pre plea reports or receiving
any information about the case for the purpose of . pre trial
conferences . This ruling could seriously jeopardize our court
coordination program and force a large number of -criminal cases
back down to the Municipal Court for preliminary hearing, with
adverse budgetary impacts on our court system and the District
Attorney' s Office. This is a case initiated by our Public
Defender's Office.
The conclusion in the Breedlove case' is that a remedy for this
situation is a legislative one. Therefore, I strongly suggest that
we immediately attempt to amend existing law to overcome the
detrimental impact of this ruling. Gary Yancey could suggest
wording if that would be helpful.
GR/jw
Attachment
cc : Phil Batchelor
Judge Douglas E. Swager
Gary Yancey
*State Court of Appeal, First Appellate .District, Division One.
0"3=b4 I FRUI.1 111 rUtSLLl LCr[-JVLCM K1k-n. 1U �� r,u1
QERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
r-- •r
ZERREL BREEDLOVE,
Petitioner,
V.
THE MUNICIPAL COURT OF THE BAY (Contra Costa Cojt2it
JUDICIAL DISTRICT, IN AND FOR THE Bay Municipal Ct.
COUNTY OF CONTRA COSTA AND THE No. 127985-0)
CONTRA COSTA COUNTY SUPERIOR COURT,
Respondents;
THE PEOPLE OF THE STATE OF CALIFORNIA,
Real Party in Interest.
BACKGRounD
Petitioner Zerrel Breedlovel/ seeks extraordinary
relief to prohibit respondent Contra Costa County Municipal and
Superior Courts from violating Penal Code section 1204.52/ by
reviewing a -pre-preliminary hearing- report or any other
`summary of the facts of his case or criminal record, prior to
I/ we previously consolidated this case with that of another
Contra Costa County criminal defendant, Charles Black, who
sought identical relief. While the cases were pending here,
Black pleaded guilty to misdemeanor charges, rendering his case
moot. We have therefore dismissed it by a separate order.
2/ Further statutory references not otherwise specified are to
the- Penal Code.
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his entry of a plea or finding or verdict of guilt, and absent
his consent. As will be seen, we grant the writ.
There is no dispute that the process challenged by
Breedlove is a regular practice of respondent courts.-I,"
Since January 1, 1993, the Superior and Municipal Courts of
Contra Costa County, as part of a criminal trial coordination
program (Gov. Code S 68112) , have followed certain standard
procedures. when a defendant charged with a felony appears in
municipal court and pleads not guilty, three court dates are
set: (a) a pre-preliminary hearing conference before one of
the superior court judges, sitting as a magistrate, assigned to
the coordination program; (b) a readiness conference set before
the same superior court judge; and (c) a preliminary hearing
set in the municipal court. The timing of the three varies
according to whether the defendant has waived time. (§ 859b. )
At 'the pre-preliminary hearing conference the
defendant is not present. Prior to the hearing, the probation
department prepares a study, summarizing the police reports
concerning the charged crime as well as the defendant's
criminal history. This study is provided to defense counsel
and the district attorney in advance of the pre-preliminary
hearing when possible and is otherwise given to them by the
3-/ This petition and our writ are directed to both courts, as
each participates in the challenged practice. -
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VJIJ� -1yl ,q({'lFKUI'1 lJ�l HUBLll. LtttVUtK ICH. TO b "�1�� P.03
judge at the hearing. Counsel may provide information to
supplement or rebut the study at the conference, after which,
the judge states a position regarding sentencing decisions
involved in the case----i .e. , suggests a negotiated disposition.
The district attorney, defense counsel and the
defendant appear at the readiness conference. In theory, prior
to that time defendant and counsel will have discussed the
judge' s offer. If the defendant does not plead guilty at the
readiness conference, the offer is withdrawn, and the
preliminary hearing date is confirmed. That hearing does not
involve the judge who extended and withdrew the offer, but if
held to answer, the defendant later appears before that judge
at arraignment in superior court. At that time, pretrial and
readiness conferences are set before that judge.
Breedlove objected to the setting of the
pre-preliminary hearing conference and prew-preliminary hearing
readiness conference without his consent. His objection was
overruled, and this petition followed. we stayed the
then-pending conferences.
DISCUSSIOR
Breedlove contends that the conference procedures
employed by respondent courts violate section 1204.5.-1f That
A/ Penal Code section 1244.5 provides: "In any criminal
action, after the filing of any complaint or other accusatory
pleading and before a plea, finding or verdict of guilty, no
judge of any court shall read or consider any written report of
any law enforcement officer or witness to any offense, or any
information reflecting the arrest or conviction record of a
(Footnote 4 continued on next page. )
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section prohibits a judge--prior to entry of a plea or a
finding of guilt and absent a defendant's consent in open
court--from reading or considering written reports of law
enforcement personnel or witnesses, criminal record
information, or other affidavits or representations not
admissible under the rules of evidence at trial. Exceptions to
this prohibition are explicit: such information may be
considered in conjunction with issuance of a warrant, an
application for a bail order, a writ petition, or a law and
motion matter. Breedlove correctly argues that the
pre-preliminary hearing conference and the readiness conference
are not encompassed in the foregoing exceptions.
Section 1204.5 was enacted in 1968 (Stats. 1968, ch.
1362, S 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 crimiu.al
complaints, and that this information could improperly
influence judges in their rulings prior to or during trial to
the prejudice of a defendant. (O'Neal v. Superior Court (1986)
185 Cal.App.3d 1086, 1091. ) The bill was eventually sponsored
by the State Bar, and when passed included well-defined
(Footnote 4 continued.)
defendant, or any affidavit or representation of any kind,
verbal or written, except as provided in the rules of evidence
applicable at the trial, or with the consent of the Accu-sed
given in open court, or affidavits in connection with the
issuance of a warrant or the hearing of any law and motion
matter, or any application for an order fixing or changing
bail, or a petition for a writ.*
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exceptions to the prohibition on use of the specified
information. (Q NP�l V. Super io court, supra, 185 Cal.App.3d
1086, 1092-1093. ) section 1204.5 has never been amended and
only rarely discussed in appellate decisions.
where, as here, the language of a statute is clear and
unambiguous, our function is to apply its terms to the facts
presented Church v. County of L.A. (1937) 9
Cal.2d 591, 594) . The People insist, however, that a literal
reading of section 1204.5 will lead to absurd consequences
unintended by the. Legislature. (Pe nle v. King (1993) 5
Cal.4th 59, 69; People v. P'e ers (1991) 52 Cal.3d 894,
898=899. ) They point out that when Section 1204.5 was enacted,
negotiated dispositions in, Criminal cases were in a "limbo of
dubious legality" (Pgople v. Kest (1970) 3 Cal.3d 595, 608) ,
making it unlikely that the Legislature even considered the
obvious need for section 1204.5's prohibited information to
effectuate the early resolution of cases. In the People's
view, therefore, section 1204.5 must be read to state a general
rule, but also to recognize an implied exception for any
situation in which a Judge has a reasonable need for the
.."information. To accept this argum nt, however, would require
us to ignore a basic tenant of statutory construction that
where a statute states a general rule and lists exceptions to
it, the e$ceptions must be strictly construed. (Nlaxrujo v.
Hunt (1977) 71 Cal.App.3d 972, 977; City Qf National City v.
Fri (1949) 33 Ca1.2d 635, 636.)
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Nor do cases cited by the People support the addition
of unspecified exceptions to section 1204.5. . In. People v.
Madison (1969) 3 Cal.App.3d 984, 987) , the defendant objected
to a judge's review of an OR (release on own recognizance)
report. Mgdison was a pre-section 1204.5 case, and the
defendant was deemed to have consented to preparation of the
report when she requested release. The court, however, noted
that after passage of section 1204.5 it would be better
practice to keep the OR file out of the court file. (People v.
Madi;$Q , �,mnra, at p. 987 fn. 2. )
In Q'Ngal v. ^uperior Court, supra, a magistrate
reviewed the defendant's record to set bail. Although no
formal bail motion had been made, the court found that the bail
exception specified in section 1204.5 applied, reasoning that
section 1269b, subdivision (b) required the judge to set bail
and that Article I, section 12 of the California Constitution
required consideration of the defendant's prior criminal
record. (185 Cal.App.3d 1088, 1096.)
in In re Walters (1975) 15 Cal.3d 738 our Supreme
Court held that section 1204.5 was not violated when a
nn=i.cipal court judge read prohibited reports in conjunction
with a defendant's request for a probable cause hearing
(Ge><stein v. Puah (1975) 420 U.S. 103) . The court found that
such a hearing was in the nature of a law and motion matter.
We next turn to the People's further argument that
other statutes create exceptions to section 1204.5. Section
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po- i5
1000.6 involves domestic violence diversion, which is not at
issue in this case. Code of Civil Procedure section 131.3
authorises the probation department to prepare a report at the
time of arrest •when so directed by the court.` But it does
not address the circumstances under which a court may use such
a report beyond those listed in section 1204.5.
Section 1192.5, requiring a judge's initial,
• conditional approval of a proposed negotiated disposition,
contemplates that the judge will be knowledgeable and informed
about the case. Section 1204.5 is no barrier to the section
1192.5 process, however, since the defendant necessarily has
consented to the court's involvement.
Government Code section 6al12, requires courts to
submit trial court coordination plans to the Judicial Council
and sets certain parameters for such plans, including blanket
cross-assignments of judges between municipal and superior
courts. It contains nothing purporting to override section
1204 _5 or any other substantive law. Likewise, rules of court
providing for the pre-hearing conference assisted by a superior
court judge challenged in this case (Cal. Rules of Court, rules
227.2, 227:6 and 227.10) do not purport to -authorize a
violation of section 1204 .5, nor could they. (Cal. Const. ,
art., VI, S 61 People v. Wright (1982) 30 Cal-3d 705, 712;
Rgbert S. v. Superior Court (1992) 9 Cal.App.4th 1.417, 1426.)
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CONCLUSION
we agree that the policy reason advanced by the People
to create an exception to section 1204.5 for the practice
challenged here (the informer,. judicial assistance in the
possible early resolution of criminal cases) is compelling.
But this alteration of the section must be addressed to the
Legislature, not to this court.il "In the construction of a
statute . . . the office of the Judge is simply to ascertain
and declare what is in terms ox in substance contained therein,
not to insert what has been omitted. (Code Civ. Proc.,
Let a peremptory writ of prohibition issue restraining
respondents County of Contra Costa Municipal and Superior
Courts from reviewing any rendition or representation of Zerrel
Breedlove's criminal records, any pre-preliminary hearing
reports or studies, police reports, or any other summary of the
facts of the charged case (Bay Municipal Court Number 127985-0)
in violation of Penal Code section 1204.5.
The stay previously imposed shall remain in effect
until the finality of this opinion.
/ Breedlove's arguments concerning the due process
implications of such a further exception to section 1204.5 and
on counsel's ability to competently represent a defendant are
likewise arguments to be presented, in the first instance, to
the Legislature. -
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We concur:
Strankman, P.J.
stein, J.
CERTIFIED POR PQBLICATZQI�T
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Breedlove v Contra Costa Muni & Super, Cks , A0653.96
_g_