BILL ANALYSIS AB 688 Page 1 Date of Hearing: April 14, 2009 Counsel: Kimberly A. Horiuchi ASSEMBLY COMMITTEE ON PUBLIC SAFETY Jose Solorio, Chair AB 688 (Eng) - As Introduced: February 26, 2009 PENDING WAIVER OF FOUR-DAY FILE NOTICE SUMMARY : Clarifies that a peace officer may not release a person on his or her own recognizance, as specified, when arrested for a misdemeanor violation of a domestic violence protective order. EXISTING LAW : 1)States in any case in which a person is arrested for an offense declared to be a misdemeanor, including a violation of any city or county ordinance, and does not demand to be taken before a magistrate, that person shall, instead of being taken before a magistrate, be released according to the procedures, as specified. If the person is released, the officer or his or her superior shall prepare in duplicate a written notice to appear in court, containing the name and address of the person, the offense charged, and the time when, and place where, the person shall appear in court. If, pursuant to existing law, the person is not released prior to being booked and the officer in charge of the booking or his or her superior determines that the person should be released, the officer or his or her superior shall prepare a written notice to appear in a court. [Penal Code Section 853.6(a).] 2)Provides that in any case in which a person is arrested for a misdemeanor violation of a protective court order involving domestic violence, as defined in existing law, or arrested pursuant to a policy, as specified, the person shall be taken before a magistrate instead of being released according to the procedures set forth in this chapter, unless the arresting officer determines that there is not a reasonable likelihood that the offense will continue or resume or that the safety of persons or property would be imminently endangered by release AB 688 Page 2 of the person arrested. Prior to adopting these provisions, each city, county, or city and county shall develop a protocol to assist officers to determine when arrest and release is appropriate, rather than taking the arrested person before a magistrate. The county shall establish a committee to develop the protocol, consisting of, at a minimum, the police chief or county sheriff within the jurisdiction, the district attorney, county counsel, city attorney, representatives from domestic violence shelters, domestic violence councils, and other relevant community agencies. Nothing in this provision shall be construed to affect a defendant's ability to be released on bail or on his or her own recognizance. [Penal Code Section 853.6(b).] 3)Provides that 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: a serious felony, as specified, or a violent felony, as specified, but not including a residential burglary; a violation of felony witness intimidation, spousal rape, domestic violence, felony criminal threats or stalking, as specified, battery on a person in a dating relationship; and, violation of a domestic violence restraining order 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. [Penal Code Section 1207.1(a)(1) to (4).] 4)Requires that law enforcement written policies encourage the arrest of domestic violence offenders if there is probable cause that an offense has been committed. These policies also shall require the arrest of an offender, absent exigent circumstances, if there is probable cause that a protective order issued, or by a court of any other state, a commonwealth, territory, or insular possession subject to the jurisdiction of the United States, a military tribunal, or a tribe has been violated. These policies shall discourage, when appropriate, but not prohibit, dual arrests. Peace officers shall make reasonable efforts to identify the dominant aggressor in any incident. The dominant aggressor is the person determined to be the most significant, rather than the first, aggressor. In identifying the dominant aggressor, an officer shall consider the intent of the law to protect AB 688 Page 3 victims of domestic violence from continuing abuse, the threats creating fear of physical injury, the history of domestic violence between the persons involved, and whether either person acted in self-defense. These arrest policies shall be developed, adopted, and implemented by July 1, 1996. Law enforcement agencies shall develop these policies with the input of local domestic violence agencies. [Penal Code Section 13701(a).] FISCAL EFFECT : Unknown COMMENTS : 1)Author's Statement : According to the author, "Current law requires a person charged with a misdemeanor for domestic violence to appear before a judge or commissioner in order to have the facts relevant to the arrest reviewed and determine whether the person is a threat to the alleged victim or to the public. However, there are discrepancies in state law that potentially allow for the release of a person charged without ever appearing before a judge or commissioner. Far too many adults and children continue to live in fear from their assailants. AB 688 will make sure that all persons charged are screened properly before they're put back on the street. No one should have to live their life while constantly looking over their shoulder." 2)Existing Law Related to Own Recognizance Release : Existing law states that any person who is arrested for a misdemeanor need not be taken before a magistrate and may be released on his or her promise to appear in court when required. [Penal Code Section 853.6(a).] If a person is arrested for a misdemeanor violation of a protective order involving domestic violence, as specified, the arrestee must be taken before the court before he or she may be released from custody. However, this is not the case where the arresting officer determines that there is not a reasonable likelihood that the offense will continue or resume or that the safety or persons or property would imminently endangered by release. [Penal Code Section 853.6(a).] Penal Code Section 1270.1 prohibits the arresting officer from releasing an arrestee prior to arraignment for certain specified violent crimes. "Before any person who is arrested for [certain specified 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, AB 688 Page 4 or may be released on his or her own recognizance, a hearing shall be held in open court before a judge." [Penal Code Section 1270.1(a)(1) to (4).] Two of the offenses for which a person may not be released pursuant to Penal Code Section 853.6 is battery on a person in a dating relationship and violating a domestic violence retraining order. [Penal Code Section 243(e)(1); Penal Code Section 273.6(a).] Penal Code Section 1270.1 does not authorize the arresting officer to use discretion in releasing an offender. 3)Arguments in Support : According to the Los Angeles County Sheriff's Department , "California Penal Code Section 853.6 pertains to misdemeanor arrest procedures. Most misdemeanor arrestees are released on their own recognizance. Under this section, the release of a suspect who was arrested for misdemeanor domestic violence would fall under the discretion of the arresting officer. Under California Penal Code Section 1270.1, which is a more contemporary section than 853.6, it states that an individual arrested for misdemeanor domestic violence [and it specifically references the misdemeanor domestic violence Penal Code Section 243(e)(1)] must go to court prior to release on bail or his/her own recognizance. Section 853.6 was never updated to reflect the newer law. Because of the inconsistency in law regarding the arrest procedures for someone arrested for misdemeanor domestic violence, there has been confusion in law enforcement as to which section to follow. Many times law enforcement refers to the standard misdemeanor release section (853.6) for guidance in the release of misdemeanor arrestees. However, this section does not cite or refer to section 1270.1 and section 853.6 has need been updated reflecting the new law regarding the misdemeanor domestic violence arrest and release procedures. The scourge of domestic violence is prevalent in our communities. It is the absolute duty of law enforcement to protect victims of this heinous crime. Many times, the suspect will return and continue to abuse and injure the victim. The Legislature has taked many steps in trying to prevent domestic violence and its re-occurrence. Amending section 853.6 to reflect current law is a huge step forward to erase any confusion that exists between current inconsistencies in law." 4)Prior Legislation : AB 1488 (Bates), Chapter 30, Statutes of 2003, required any person arrested for violation of a domestic violence protective order involving threats to kill to appear AB 688 Page 5 for a hearing in open court before being released on his or her own recognizance (OR) or being released on reduced bail. REGISTERED SUPPORT / OPPOSITION : Support Alameda County Sheriff, Gregory J. Ahern Butte County Sheriff California District Attorneys Association California Partnership to End Domestic Violence California Police Chiefs Association California Police Officers' Association California State Sheriffs Association El Dorado County Sheriff, Jeff Neves Los Angeles County District Attorney's Office Los Angeles County Sheriff's Department Nevada County Sheriff, Keith Royal Opposition None Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916) 319-3744