BILL NUMBER: SB 210 AMENDED BILL TEXT 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, 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 tostate the reasons for the finding andset 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 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 , in its dis cr etion, 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 magistratemakes a findingfinds that release pursuant to subdivision (b) will compromise public safety or will not reasonably ensure the appearance of the defendant, as required, the court shallstate on the record the reasons for that finding and shallthen 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) 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 ofrecommendingmaking 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 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.