Bill Text: CA SB625 | 2009-2010 | Regular Session | Introduced

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

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Bill Title: Crimes: bail: release on own recognizance.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Engrossed - Dead) 2009-06-30 - Set, first hearing. Hearing canceled at the request of author. [SB625 Detail]

Download: California-2009-SB625-Introduced.html

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BILL NUMBER: SB 625	INTRODUCED
	BILL TEXT


INTRODUCED BY   Senator Wright

                        FEBRUARY 27, 2009

   An act to amend Sections 1270, 1270.1, 1272.1, 1275, and 1319 of
the Penal Code, relating to crime.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 625, as introduced, Wright. Crimes: bail: release on own
recognizance.
   Existing law requires a defendant who is in custody and is
arraigned on a complaint alleging a misdemeanor, including a
defendant arrested pursuant to an out-of-county warrant involving
only misdemeanors, to be released on his or her own recognizance,
unless the court makes a finding on the record that the release will
compromise public safety or will not reasonably assure the appearance
of the defendant as required.
   This bill would require a court, in deciding consistent with
specified constitutional provisions whether to make one of these
findings, to also consider the defendant's record of appearance at
past court hearings or of flight to avoid prosecution, the maximum
potential sentence that could be imposed, the ties of the defendant
to the community, and if there is a federal immigration hold in place
on the defendant.
   Existing law provides that before any person who has been arrested
for a violent felony or certain other crimes is released on bail in
an amount other than that specified in the schedule of bail for the
offense, or is released on his or her own recognizance, a hearing
shall be held at which the court shall consider certain enumerated
factors including any evidence offered by the detained person
regarding his or her ties to the community and his or her ability to
post bond.
   This bill would also require the court, in determining consistent
with specified constitutional provisions whether to change the bail
or release the detained person, to consider what will reasonably
assure the appearance of the detained person as required and if there
is a federal immigration hold in place on the detained person.
   Existing law requires a court to order release of a defendant on
bail pending appeal if the defendant demonstrates certain matters,
including, by clear and convincing evidence, that the defendant is
not likely to flee. For purposes of determining whether the defendant
is not likely to flee, existing law requires the court to consider
specified criteria.
   This bill would also require the court to consider, consistent
with specified constitutional provisions, whether bail would provide
reasonable assurance of the appearance of the defendant as required
and if there is a federal immigration hold in place on the defendant.

   Existing law requires a judge or magistrate to take specified
information, including the seriousness of the offense charged, into
consideration when setting, reducing, or denying bail.
   This bill would require the court, consistent with specified
constitutional provisions, to also consider the maximum potential
sentence that could be imposed, the ties of the defendant to the
community, and if there is a federal immigration hold in place on the
defendant.
   Existing law provides that a defendant charged with a violent
felony shall not be released on his or her own recognizance where it
appears, by clear and convincing evidence, that he or she previously
has been charged with a felony offense and has willfully and without
excuse from the court failed to appear in court as required while
that charge was pending. In all other cases, in making a
determination as to whether or not to grant release under these
provisions, the court is required to consider specified information.
   This bill would also require the court to consider, consistent
with specified constitutional provisions, whether the release would
provide reasonable assurance of the appearance of the defendant as
required, the defendant's record of appearance at past court hearings
or of flight to avoid prosecution, the maximum potential sentence
that could be imposed, the ties of the defendant to the community,
and if there is a federal immigration hold in place on the defendant.

   Because these provisions could result in more jail time for those
awaiting trial or appeal, this bill would impose a state-mandated
local program.
   The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
   This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  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 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
is a misdemeanor, and a defendant who appears before a court 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 the appearance
of the defendant as required.  Public   In
deciding whether to make one of these findings, the court shall
consider, consistent with Section 12 of Article I of the California
Constitution, the defendant's record of appearance at past court
hearings or of flight to avoid prosecution, the maximum potential
sentence that could be imposed, the ties of the defendant to the
community, and if there is a federal immigration hold in place on the
defendant, but public  safety shall be the primary
consideration. If the court makes one of those findings, the court
shall then set bail and specify the conditions, if any, whereunder
the defendant shall be released.
   (b) Article 9 (commencing with Section 1318) shall apply to any
person who is released pursuant to this section.
  SEC. 2.  Section 1270.1 of the Penal Code is amended to read:
   1270.1.  (a) Before any person who is arrested for any of the
following crimes may be released on bail in an amount that is either
more or less than the amount contained in the schedule of bail for
the offense, or may be released on his or her own recognizance, a
hearing shall be held in open court before the magistrate or judge:
   (1) 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, but not including a violation of subdivision (a) of Section
460 (residential burglary).
   (2) A violation of Section 136.1 where punishment is imposed
pursuant to subdivision (c) of Section 136.1, 262, 273.5, 422 where
the offense is punished as a felony, or 646.9.
   (3) A violation of paragraph (1) of subdivision (e) of Section
243.
   (4) A violation of Section 273.6 if the detained person made
threats to kill or harm, has engaged in violence against, or has gone
to the residence or workplace of, the protected party.
   (b) The prosecuting attorney and defense attorney shall be given a
two court-day written notice and an opportunity to be heard on the
matter. If the detained person does not have counsel, the court shall
appoint counsel for purposes of this section only. The hearing
required by this section shall be held within the time period
prescribed in Section 825.
   (c) At the hearing, the court shall consider evidence of past
court appearances of the detained person, the maximum potential
sentence that could be imposed, and the danger that may be posed to
other persons if the detained person is released. In making the
determination whether to release the detained person on his or her
own recognizance, the court shall consider the potential danger to
other persons, including threats that have been made by the detained
person and any past acts of violence. The court shall also consider
 , consistent with Section 12 of Article I of the California
Constitution, what will reasonably assure the appearance of the
detained person as required, and if there is a federal immigration
hold in place on the detained person, and  any evidence offered
by the detained person regarding his or her ties to the community and
his or her ability to post bond.
   (d) If the judge or magistrate sets the bail in an amount that is
either more or less than the amount contained in the schedule of bail
for the offense, the judge or magistrate shall state the reasons for
that decision and shall address the issue of threats made against
the victim or witness, if they were made, in the record. This
statement shall be included in the record.
  SEC. 3.  Section 1272.1 of the Penal Code is amended to read:
   1272.1.  Release on bail pending appeal under subdivision (3) of
Section 1272 shall be ordered by the court if the defendant
demonstrates all the following:
   (a) By clear and convincing evidence, the defendant is not likely
to flee. Under this subdivision the court shall  , consistent
with Section 12 of Article I of the California Constitution, 
consider the following criteria:
   (1) The ties of the defendant to the community, including his or
her employment, the duration of his or her residence, the defendant's
family attachments and his or her property holdings.
   (2) The defendant's record of appearance at past court hearings or
of flight to avoid prosecution.
   (3) The severity of the sentence the defendant faces. 
   (4) If there is a federal immigration hold in place on the
defendant.  
   (5) Whether bail would provide reasonable assurance of the
appearance of the defendant as required. 
   (b) By clear and convincing evidence, the defendant does not pose
a danger to the safety of any other person or to the community.
   Under this subdivision the court shall consider, among other
factors, whether the crime for which the defendant was convicted is a
violent felony, as defined in subdivision (c) of Section 667.5.
   (c) The appeal is not for the purpose of delay and, based upon the
record in the case, raises a substantial legal question which, if
decided in favor of the defendant, is likely to result in reversal.
   For purposes of this subdivision, a "substantial legal question"
means a close question, one of more substance than would be necessary
to a finding that it was not frivolous. In assessing whether a
substantial legal question has been raised on appeal by the
defendant, the court shall not be required to determine whether it
committed error.
   In making its decision on whether to grant defendants' motions for
bail under subdivision (3) of Section 1272, the court shall include
a brief statement of reasons in support of an order granting or
denying a motion for bail on appeal. The statement need only include
the basis for the order with sufficient specificity to permit
meaningful review.
  SEC. 4.  Section 1275 of the Penal Code is amended to read:
   1275.  (a) In setting, reducing, or denying bail, the judge or
magistrate shall take into consideration  , consistent with
Section 12 of Article I of the California Constitution,  the
protection of the public, the seriousness of the offense charged,
 including the maximum potential sentence that could be imposed,
 the previous criminal record of the defendant,  the ties of
the defendant to the community, if there is a federal immigration
hold in place on the defendant,  and the probability of his or
her appearing at trial or hearing of the case. The public safety
shall be the primary consideration.
   In considering the seriousness of the offense charged, the judge
or magistrate shall include consideration of the alleged injury to
the victim, and alleged threats to the victim or a witness to the
crime charged, 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) 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 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.
   (c) 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 the fact that the defendant
has made all prior court appearances or has not committed any new
offenses.
  SEC. 5.  Section 1319 of the Penal Code is amended to read:
   1319.  (a) No person arrested for a violent felony, as described
in subdivision (c) of Section 667.5, may be released on his or her
own recognizance until a hearing is held in open court before the
magistrate or judge, and until the prosecuting attorney is given
notice and a reasonable opportunity to be heard on the matter. In all
cases, these provisions shall be implemented in a manner consistent
with the defendant's right to be taken before a magistrate or judge
without unreasonable delay pursuant to Section 825.
   (b) A defendant charged with a violent felony, as described in
subdivision (c) of Section 667.5, shall not be released on his or her
own recognizance where it appears, by clear and convincing evidence,
that he or she previously has been charged with a felony offense and
has willfully and without excuse from the court failed to appear in
court as required while that charge was pending. In all other cases,
in making the determination as to whether or not to grant release
under this section, the court shall  , consistent with Section 12
of Article I of the California Constitution,  consider all of
the following:
   (1) The existence of any outstanding felony warrants on the
defendant.
   (2) Any other information presented in the report prepared
pursuant to Section 1318.1. The fact that the court has not received
the report required by Section 1318.1, at the time of the hearing to
decide whether to release the defendant on his or her own
recognizance, shall not preclude that release. 
   (3) The defendant's record of appearance at past court hearings or
of flight to avoid prosecution.  
    (4) The maximum potential sentence that could be imposed. 

    (5) The ties of the defendant to the community.  
   (6) If there is a federal immigration hold in place on the
defendant.  
   (7) Whether the release would provide reasonable assurance of the
appearance of the defendant as required.  
   (3) 
    (8)  Any other information presented by the prosecuting
attorney.
   (c) The judge or magistrate who, pursuant to this section, grants
or denies release on a person's own recognizance, within the time
period prescribed in Section 825, shall state the reasons for that
decision in the record. This statement shall be included in the court'
s minutes. The report prepared by the investigative staff pursuant to
subdivision (b) of Section 1318.1 shall be placed in the court file
for that particular matter.
  SEC. 6.  If the Commission on State Mandates determines that this
act contains costs mandated by the state, reimbursement to local
agencies and school districts for those costs shall be made pursuant
to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of
the Government Code.