Bill Text: CA SB210 | 2011-2012 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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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

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BILL NUMBER: SB 210	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  JUNE 25, 2012
	AMENDED IN SENATE  JANUARY 4, 2012

INTRODUCED BY   Senator Hancock
    (   Principal coauthor: 
 Senator   Liu   )


                        FEBRUARY 8, 2011

   An act to amend  Section 3417   Sections
1270, 1275, and 1318.1  of the Penal Code, relating to 
prisoners   criminal procedure  .



	LEGISLATIVE COUNSEL'S DIGEST


   SB 210, as amended, Hancock.  Prisoners: community
treatment program.   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, 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 defendant 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, if release will compromise public
safety or will not reasonably ensure the appearance of the defendant,
would require the court to state the reasons for the finding and 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.  
   Existing law requires the Department of Corrections and
Rehabilitation to establish and implement a community treatment
program, under which a women sentenced to state prison who has one or
more children under 6 years of age, whose child is born prior to
incarceration, or who is pregnant, shall be eligible for release with
her children to a public or private facility in the community
suitable to their needs. Existing law requires the department to deny
placement in the community treatment program, except as provided, to
certain women including, but not limited to, those who have been
convicted of the unlawful sale or possession for sale, manufacture,
or transportation of a controlled substance, as defined, if large
scale and for profit, as defined by the department. 

   This bill would exclude women from denial of placement in the
program who are convicted of planting, cultivating, harvesting,
drying, or processing any marijuana or any part thereof, and persons
who are convicted of possessing for sale any marijuana. 
   Vote: majority. Appropriation: no. Fiscal committee:  yes
  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  court  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  which  
that  is a misdemeanor  ,  and a defendant who
appears before a  court   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  assure
  ensure  the appearance of the defendant as
required. Public safety shall be the primary consideration. If the
court makes one of  those   the  findings
 , the   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 whether a defendant who 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 imposing any of the following conditions or any other
reasonable condition that the court deems appropriate to ensure
public safety and to ensure the defendant's appearance, as required:
 
   (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) If the judge or magistrate makes a finding 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 state on the record the reasons for that finding and
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.
 
   (b) 
    (e)  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   shall, on the available
information,  take into consideration the protection of the
public, the  seriousness   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 t
  ime 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  . The public   , 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  seriousness
  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,
 and  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  ,
and the alleged use or possession of controlled substances by the
defendant  . 
   (b) 
    (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 alleged
amounts of controlled substances involved in the commission of the
offense, and (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.  
   (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.  
   (c) 
    (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"  does
not include   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 recommending 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),  an
investigative report shall be prepared in all cases  
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 
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.  
   (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.  
   (c) 
    (g)  The salaries of the staff are a proper charge
against the county. 
  SECTION 1.    Section 3417 of the Penal Code is
amended to read:
   3417.  (a) Subject to reasonable rules and regulations adopted
pursuant to Section 3414, the Department of Corrections and
Rehabilitation shall admit to the program any applicant whose child
was born prior to the receipt of the inmate by the department, whose
child was born after the receipt of the inmate by the department, or
who is pregnant, if all of the following requirements are met:
   (1) The applicant has a probable release or parole date with a
maximum time to be served of six years, calculated after deduction of
any possible good time credit.
   (2) The applicant was the primary caretaker of the infant prior to
incarceration. "Primary caretaker" as used in this chapter means a
parent who has consistently assumed responsibility for the housing,
health, and safety of the child prior to incarceration. A parent who,
in the best interests of the child, has arranged for temporary care
for the child in the home of a relative or other responsible adult
shall not for that reason be excluded from the category, "primary
caretaker."
   (3) The applicant had not been found to be an unfit parent in any
court proceeding. An inmate applicant whose child has been declared a
dependent of the juvenile court pursuant to Section 300 of the
Welfare and Institutions Code shall be admitted to the program only
after the court has found that participation in the program is in the
child's best interest and that it meets the needs of the parent and
child pursuant to paragraph (3) of subdivision (e) of Section 361.5
of the Welfare and Institutions Code. The fact that an inmate
applicant's child has been found to come within Section 300 of the
Welfare and Institutions Code shall not, in and of itself, be grounds
for denying the applicant the opportunity to participate in the
program.
   (b) The Department of Corrections and Rehabilitation shall deny
placement in the community treatment program if it determines that an
inmate would pose an unreasonable risk to the public, or if any one
of the following factors exist, except in unusual circumstances or if
mitigating circumstances exist, including, but not limited to, the
remoteness in time of the commission of the offense:
   (1) The inmate has been convicted of any of the following:
   (A) A sex offense listed in Section 667.6.
   (B) A sex offense requiring registration pursuant to Section 290.
   (C) A violent offense listed in subdivision (c) of Section 667.5.
   (D) Arson as defined in Sections 450 to 455, inclusive.
   (E) The unlawful sale or possession for sale, manufacture, or
transportation of controlled substances as defined in Chapter 6
(commencing with Section 11350) of Division 10, except Sections 11358
and 11359, of the Health and Safety Code, if large scale for profit
as defined by the department.
   (2) There is probability the inmate may abscond from the program
as evidenced by any of the following:
   (A) A conviction of escape, of aiding another person to escape, or
of an attempt to escape from a jail or prison.
   (B) The presence of an active detainer from a law enforcement
agency, unless the detainer is based solely upon warrants issued for
failure to appear on misdemeanor Vehicle Code violations.
   (3) It is probable the inmate's conduct in a community facility
will be adverse to herself or other participants in the program, as
determined by the Secretary of the Department of Corrections and
Rehabilitation or as evidenced by any of the following:
   (A) The inmate's removal from a community program which resulted
from violation of state laws, rules, or regulations governing
Department of Corrections and Rehabilitation's inmates.
   (B) A finding of the inmate's guilt of a serious rule violation,
as defined by the Secretary of the Department of Corrections and
Rehabilitation, which resulted in a credit loss on one occasion of 91
or more days or in a credit loss on more than one occasion of 31
days or more and the credit has not been restored.
   (C) A current written opinion of a staff physician or psychiatrist
that the inmate's medical or psychiatric condition is likely to
cause an adverse effect upon the inmate or upon other persons if the
inmate is placed in the program.
   (c) Nothing in this section shall be interpreted to limit the
discretion of the Secretary of the Department of Corrections and
Rehabilitation to deny or approve placement when subdivision (b) does
not apply.
   (d) The Department of Corrections and Rehabilitation shall
determine if the applicant meets the requirements of this section
within 30 days of the parent's application to the program. The
department shall establish an appeal procedure for the applicant to
appeal an adverse decision by the department.