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  








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            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
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            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
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            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  








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            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