Bill Text: CA SB210 | 2011-2012 | Regular Session | Amended
Bill Title: Criminal procedure: release on defendant's own
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Engrossed - Dead) 2012-08-22 - Read third time and amended. (Page 6086.) Ordered to third reading. [SB210 Detail]
Download: California-2011-SB210-Amended.html
BILL NUMBER: SB 210 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY AUGUST 22, 2012
AMENDED IN ASSEMBLY AUGUST 7, 2012
AMENDED IN ASSEMBLY JUNE 25, 2012
AMENDED IN SENATE JANUARY 4, 2012
INTRODUCED BY Senator Hancock
FEBRUARY 8, 2011
An act to amend Sections 1270, 1275, and 1318.1 of the Penal Code,
relating to criminal procedure.
LEGISLATIVE COUNSEL'S DIGEST
SB 210, as amended, Hancock. Criminal procedure: release on
defendant's own recognizance.
(1) Existing law provides that a defendant who is in custody and
arraigned for a misdemeanor offense, or who has been arrested upon an
out-of-county warrant arising from a case involving only
misdemeanors, is entitled to be released on his or her own
recognizance unless the court finds that the release will compromise
public safety or will not reasonably ensure the appearance of the
defendant, in which case the court is required to set bail and
specify conditions, if any, for release.
This bill would authorize a court to determine, at the time
of arraignment in any case that is before a court upon
an accusatory pleading concerning the commission of a
felony punishable by imprisonment in a county jail, whether
the a defendant who is still in custody
may be released on his or her own recognizance. In making this
decision, the bill would require the court to determine whether the
release will compromise public safety. The bill would
require the court to specify whatever reasonable conditions the court
finds appropriate to ensure the appearance of the defendant, and
would authorize the court to release the defendant on his or her own
recognizance subject to those conditions. The bill would set forth
certain conditions that the court may specify, including, but not
limited to, prohibiting contact with alleged victims or potential
witnesses, or home detention, with or without electronic monitoring.
The bill would authorize the court to consider, in its
discretion, imposing on the defendant any reasonable conditions it
deems appropriate, and would authorize the court to require
supervision by any designated local agency, to ensure public safety
and to ensure the defendant's appearance. The bill, if release
will compromise public safety or will not reasonably ensure the
appearance of the defendant, would require the court to set bail.
(2) Existing law requires a judge or magistrate, in setting,
reducing, or denying bail, to take into consideration the protection
of the public, the seriousness of the offense, the defendant's
previous criminal record, and the probability of the defendant
appearing at trial or a hearing.
This bill would revise the factors that the judge or magistrate
would be required to consider to, among other things, require the
judge or magistrate to consider the history and characteristics of
the defendant, and to consider the nature and circumstances of the
offense. The bill would require a judge or magistrate to also
consider those factors when determining conditions for pretrial
release.
(3) Existing law authorizes a court, with the concurrence of the
county board of supervisors, to employ an investigative staff for the
purpose of recommending whether a defendant should be released on
his or her own recognizance. In cases involving certain crimes,
including violent felonies, an investigative report is required to be
prepared that includes specified information, including outstanding
warrants against the defendant and prior incidents where the
defendant has failed to make a court appearance.
This bill would also authorize a sheriff, county probation
department, or other local governmental agency, with the concurrence
of the board of supervisors, to employ an investigative staff for
those purposes, and would require a pretrial investigative report to
be prepared before a court may order a defendant released on his or
her own recognizance in any case involving specified crimes,
including a violent felony. The bill would authorize the preparation
of a pretrial investigation report in all other cases in which a
court, sheriff, county probation department, or other local
governmental agency has employed an investigative staff to recommend
whether the defendant should be released on his or her own
recognizance. The bill would require any pretrial investigative
report to include the results of an evidence-based pretrial risk
assessment, as defined, evaluating the defendant's probability of
appearing at trial and potential risk to public safety. The bill
would prohibit, for purposes of preparing the report, a defendant
from being interviewed about the facts and circumstances of the
defendant's current offense, and would limit the use and availability
of the information in the report. The bill would authorize a court,
sheriff, county probation department, or other local governmental
agency, with the concurrence of the board of supervisors, to employ
supervision staff to monitor a defendant's compliance with release
conditions ordered by the court, as specified.
(4) Existing constitutional provisions require that a statute that
limits the right of access to meetings of public bodies or the
writings of public officials and agencies be adopted with findings
demonstrating the interest protected by that limitation and the need
for protecting that interest.
This bill would make legislative findings and declarations
relating to, among other things, the necessity of treating pretrial
investigation reports as confidential in order for pretrial programs
to function properly.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares all of the
following:
(a) Pretrial custody reform is urgently needed in California,
where the pretrial population far exceeds the national average of 61
percent. More than 71 percent of the 71,000 Californians held in
county jails statewide on any given day are awaiting trial.
(b) Pretrial custody reform will support the implementation of
public safety realignment by providing counties greater flexibility
in managing their pretrial populations using best practices developed
over many years across many jurisdictions.
(c) Pretrial services programs have been successfully implemented
in many jurisdictions, and have helped to reduce the pretrial jail
populations, save money, reduce recidivism, and protect the public.
(d) Increasing the use of evidence-based practices in pretrial
population management programs will allow better empirical analysis
in pretrial decisions, and will help to ensure that the court's
decision to order release, conditions of release, and bail is based
on a credible assessment of the defendant's risk to public safety and
the likelihood of appearance as required.
(e) In order for pretrial programs to function properly and to
protect the rights of persons submitting sensitive information, it is
essential to treat pretrial investigation reports as confidential so
the reports are used only for release, bail, and monitoring
considerations.
SEC. 2. Section 1270 of the Penal Code is amended to read:
1270. (a) Any person who has been arrested for, or charged with,
an offense other than a capital offense may be released on his or her
own recognizance by a judge or magistrate who could release a
defendant from custody upon the defendant giving bail, including a
defendant arrested upon an out-of-county warrant. A defendant who is
in custody and is arraigned on a complaint alleging an offense that
is a misdemeanor and a defendant who appears before a judge or
magistrate upon an out-of-county warrant arising out of a case
involving only misdemeanors, shall be entitled to an own recognizance
release unless the court makes a finding on the record, in
accordance with Section 1275, that an own recognizance release will
compromise public safety or will not reasonably ensure the appearance
of the defendant as required. Public safety shall be the primary
consideration. If the court makes one of the findings authorized by
this subdivision, the court shall then set bail and specify the
conditions, if any, whereunder the defendant shall be released.
(b) The court shall determine , at the time of arraignment,
whether a defendant who is still in custody, and is
charged with a felony, the sentence for which may be served in a
county jail pursuant to subdivision (h) of Section 1170, is eligible
for release on his or her own recognizance and to be ordered to
appear, as required. Public safety shall be the primary consideration
in this determination. In granting an own recognizance release, a
court may consider, in its discretion, imposing on the defendant
any of the following conditions or any other
reasonable condition that the court
conditions it deems appropriate , and may require
supervision by any designated local agency, to ensure public
safety and to ensure the defendant's appearance, as
required: appearance.
(1) Mandatory reporting to the county, a designated law
enforcement agency, county probation department, or other local
governmental agency.
(2) Prohibiting contact with alleged victims or potential
witnesses who may testify concerning the offense.
(3) Restricting locations, places of abode, and travel.
(4) Specifying curfew.
(5) Restricting consumption of alcohol.
(6) Requiring restraint from any illegal use of a controlled
substance, as defined in Division 10 (commencing with Section 11000)
of the Health and Safety Code.
(7) Home detention, with or without electronic monitoring.
(c) If the court finds that the imposition of one or more of the
conditions specified in subdivision (b), or any other reasonable
condition the court deems appropriate, would reasonably ensure the
defendant's appearance, as required, and the defendant's release
would not compromise public safety, the court may specify the
conditions that the court deems appropriate under which to release
the defendant on his or her own recognizance.
(d)
(c) If the judge or magistrate finds that release
pursuant to subdivision (b) will compromise public safety or will not
reasonably ensure the appearance of the defendant, as required, the
court shall then set bail as is reasonably necessary to ensure the
appearance of the defendant. A judge or magistrate may set bail in an
amount less than what is specified in the county bail schedule,
where he or she determines that the amount specified in the county
bail schedule is higher than necessary to reasonably ensure the
appearance of the defendant. In making this determination, the court
may consider information included in a pretrial services report,
prepared in accordance with Section 1318.1, if one is available.
(e)
(d) Article 9 (commencing with Section 1318) shall
apply to any person who is released pursuant to this section.
SEC. 3. Section 1275 of the Penal Code is amended to read:
1275. (a) In determining conditions for pretrial release, and in
setting, reducing, or denying bail, the judge or magistrate shall, on
the available information, take into consideration the protection of
the public, the nature and circumstances of the offense charged, the
history and characteristics of the defendant, the previous criminal
record of the defendant, including whether the defendant was, at the
time of arrest for the charged offense, on probation, parole, or
other form of release pending trial, sentencing, or appeal, and the
probability of his or her appearing at trial or hearing of the case,
including the defendant's record of appearance at past court hearings
or flight to avoid arrest or prosecution. Public safety shall be the
primary consideration.
(b) In considering the history and characteristics of the
defendant, the judge or magistrate may consider any of the following:
(1) The ties of the defendant to the community, including his or
her employment, the duration of his or her residence, and the
defendant's family attachments.
(2) The defendant's current educational or vocational program
enrollment and participation.
(3) The physical and mental condition of the defendant and the
defendant's history related to dependence on alcohol or controlled
substances, including past and current participation in substance
abuse programs and counseling.
(c) In considering the nature and circumstances of the offense
charged, the judge or magistrate shall include consideration of the
seriousness of the offense, the alleged injury to the victim, alleged
threats to the victim or a witness to the crime charged, and the
alleged use of a firearm or other deadly weapon in the commission of
the crime charged.
(d) In considering offenses wherein a violation of Chapter 6
(commencing with Section 11350) of Division 10 of the Health and
Safety Code is alleged, the judge or magistrate shall consider both
the following:
(1) The amounts of controlled substances alleged to be involved in
the commission of the offense.
(2) Whether the defendant is currently released on bail for an
alleged violation of Chapter 6 (commencing with Section 11350) of
Division 10 of the Health and Safety Code.
(e) Before a court reduces bail below the amount established by
the bail schedule approved for the county, in accordance with
subdivisions (b) and (c) of Section 1269b, for a person charged with
a serious felony, as defined in subdivision (c) of Section 1192.7, or
a violent felony, as defined in subdivision (c) of Section 667.5,
the court shall make a finding of unusual circumstances and shall set
forth those facts on the record. For purposes of this subdivision,
"unusual circumstances" shall not solely be based on the fact that
the defendant has made all prior court appearances or has not
committed any new offenses.
SEC. 4. Section 1318.1 of the Penal Code is amended to read:
1318.1. (a) A court, sheriff, county probation department, or
other local governmental agency, with the concurrence of the board of
supervisors, may employ an investigative staff for the purpose of
making a recommendation, as described in subdivision (c), as to
whether a defendant should be released on his or her own
recognizance.
(b) Whenever a court, sheriff, county probation department, or
other local governmental agency has employed an investigative staff
pursuant to subdivision (a), before a court may order a defendant
released on his or her own recognizance in any case involving a
violent felony, as described in subdivision (c) of Section 667.5, or
a felony in violation of subdivision (a) of Section 23153 of the
Vehicle Code, a pretrial investigation report shall be prepared by
the investigating staff's agency recommending whether the defendant
should be released on his or her own recognizance. The report shall
include all of the following:
(1) Written verification of any outstanding warrants against the
defendant.
(2) Written verification of any prior incidents where the
defendant has failed to make a court appearance.
(3) Written verification of the criminal record of the defendant.
(4) Written verification of the residence of the defendant during
the past year.
After the report is certified pursuant to this subdivision, it
shall be submitted to the court for review, prior to a hearing held
pursuant to Section 1319.
(c) Whenever a court, sheriff, county probation department, or
other local governmental agency has employed an investigative staff
pursuant to subdivision (a), a pretrial investigation report may be
prepared in any case not involving a violent felony, as described in
subdivision (c) of Section 667.5, or a felony in violation of
subdivision (a) of Section 23153 of the Vehicle Code, recommending
whether the defendant should be released on his or her own
recognizance. Only an one agency
authorized pursuant to subdivision (a) shall issue a pretrail
investigation report. Nothing in this section shall be
construed as requiring multiple reports.
(d) Any report prepared pursuant to subdivision (b) or (c) shall
include all of the results of an evidence-based pretrial risk
assessment evaluating the defendant's probability of appearing at
trial and potential risk to public safety. "Evidence-based pretrial
risk assessment" is the objective, standardized analysis of
information about a pretrial defendant in a way that is consistent
with and guided by the best available scientific evidence and
professional knowledge that measures the risk of the defendant's
probability of appearing at trial and the potential risk to public
safety while pending case disposition.
(e) In preparing the report pursuant to subdivision (b) or (c),
the defendant shall not be interviewed about the facts and
circumstances of the current offense, and any information that a
defendant may provide shall not be included in the report. Any
information provided by the defendant shall be used solely for the
purposes of determining whether the defendant should be released on
his or her own recognizance or in setting the conditions of the
defendant's release or modifying a prior release order. The reports
may be filed as part of the case record. The reports are confidential
and shall be sealed upon receipt by the court and made available
only by court order, except that the reports shall be made available
upon request of any of the following:
(1) Any local or state criminal justice agency.
(2) Any agency to which the defendant is referred for assessment
or treatment.
(3) Counsel for the defendant who is the subject of the report.
(f) A court, sheriff, county probation department, or other local
governmental agency may, with the concurrence of the board of
supervisors, employ supervision staff to monitor the defendant's
compliance with the release conditions ordered by the court.
Supervision staff may do any of the following:
(1) Notify the defendant of court appearance obligations.
(2) Require the defendant to report periodically by mail,
telephone, or personal appearance to verify compliance with release
conditions.
(3) Monitor and assist the defendant with complying with release
conditions.
(4) Supervise a defendant placed on home detention, with or
without electronic monitoring, as a condition of release.
(5) Promptly report violations of release conditions to the court.
(6) Provide information to assist any law enforcement officer with
detaining a defendant supervised pursuant to this section and for
whom a bench warrant has been issued.
(g) The salaries of the staff are a proper charge against the
county.
