BILL ANALYSIS                                                                                                                                                                                                    







                      SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Mark Leno, Chair                A
                             2009-2010 Regular Session               B

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          AB 688 (Eng)                                                
          As Amended June 8, 2009
          Hearing date:  June 16, 2009
          Penal Code
          MK:mc

                                     MISDEMEANORS  

                                       HISTORY

          Source:  Los Angeles County District Attorney; Los Angeles  
          County Sheriff's Department

          Prior Legislation: None

          Support: California Partnership to End Domestic Violence;  
                   Neighborhood Legal Services of Los Angeles County;  
                   Humboldt County Sheriff; California District Attorneys  
                   Association; Unity and Peace Samantha Salas Scholarship  
                   Fund; Chinatown Service Center; Alameda County Sheriff;  
                   El Dorado County Sheriff; Nevada County Sheriff; Butte  
                   County Sheriff; California State Sheriffs' Association;  
                   California Peace Officers' Association; California  
                   Police Chiefs Association; Los Angeles City Attorney;  
                   Mono County Sheriff; Fresno County Sheriff; Yolo County  
                   Sheriff; Glenn County Sheriff; Stanislaus County  
                   Sheriff; Mariposa County Sheriff; Plumas County Sheriff

          Opposition:None known

          Assembly Floor Vote:  Ayes 78 - Noes 0






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                                                               AB 688 (Eng)
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                                         KEY ISSUE
           
          SHOULD AN AMENDMENT BE MADE TO CLARIFY CONFLICTING STATUTES THAT  
          ADDRESS WHEN A PERSON ARRESTED FOR DOMESTIC VIOLENCE MAY BE RELEASED  
          ON HIS OR HER OWN RECOGNIZANCE?



                                       PURPOSE

          The purpose of this bill is to clarify 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  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  853.6(a).)
           
           Existing law  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  




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                                                               AB 688 (Eng)
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          persons or property would be imminently endangered by release 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  853.6(b).)
           
           Existing law  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   
          1207.1(a)(1) to (4).)
           
           Existing law  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  




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          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 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  13701(a).)

           This bill  clarifies that Penal Code section 1207.1 is an  
          exception to the provision in Penal Code section 853.6 stating  
          that an officer may determine that a person arrested for  
          misdemeanor domestic violence may be released on their own  
          recognizance if the officer determines that there is not a a  
          reasonable likelihood that the offense will continue or resume  
          or that the safety of persons or property would be imminently  
          endangered by the release of that person.
                                          
                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
          
          California continues to face a severe prison overcrowding  
          crisis.  The Department of Corrections and Rehabilitation (CDCR)  
          currently has about 170,000 inmates under its jurisdiction.  Due  
          to a lack of traditional housing space available, the department  
          houses roughly 15,000 inmates in gyms and dayrooms.   
          California's prison population has increased by 125% (an average  
          of 4% annually) over the past 20 years, growing from 76,000  
          inmates to 171,000 inmates, far outpacing the state's population  
          growth rate for the age cohort with the highest risk of  











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          incarceration.<1>

          In December of 2006 plaintiffs in two federal lawsuits against  
          CDCR sought a court-ordered limit on the prison population  
          pursuant to the federal Prison Litigation Reform Act.  On  
          February 9, 2009, the three-judge federal court panel issued a  
          tentative ruling that included the following conclusions with  
          respect to overcrowding:

               No party contests that California's prisons are  
               overcrowded, however measured, and whether considered  
               in comparison to prisons in other states or jails  
               within this state.  There are simply too many  
               prisoners for the existing capacity.  The Governor,  
               the principal defendant, declared a state of emergency  
               in 2006 because of the "severe overcrowding" in  
               California's prisons, which has caused "substantial  
               risk to the health and safety of the men and women who  
               work inside these prisons and the inmates housed in  
               them."  . . .  A state appellate court upheld the  
               Governor's proclamation, holding that the evidence  
               supported the existence of conditions of "extreme  
               peril to the safety of persons and property."  
               (citation omitted)  The Governor's declaration of the  
               state of emergency remains in effect to this day.












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               ----------------------
          <1>  "Between 1987 and 2007, California's population of ages 15  
          through 44 - the age cohort with the highest risk for  
          incarceration - grew by an average of less than 1% annually,  
          which is a pace much slower than the growth in prison  
          admissions."  (2009-2010 Budget Analysis Series, Judicial and  
          Criminal Justice, Legislative Analyst's Office (January 30,  
          2009).)









               . . .  the evidence is compelling that there is no  
               relief other than a prisoner release order that will  
               remedy the unconstitutional prison conditions.

               . . .

               Although the evidence may be less than perfectly  
               clear, it appears to the Court that in order to  
               alleviate the constitutional violations California's  
               inmate population must be reduced to at most 120% to  
               145% of design capacity, with some institutions or  
               clinical programs at or below 100%.  We caution the  
               parties, however, that these are not firm figures and  
               that the Court reserves the right - until its final  
               ruling - to determine that a higher or lower figure is  
               appropriate in general or in particular types of  
               facilities.

               . . .

               Under the PLRA, any prisoner release order that we  
               issue will be narrowly drawn, extend no further than  
               necessary to correct the violation of constitutional  
               rights, and be the least intrusive means necessary to  
               correct the violation of those rights.  For this  
               reason, it is our present intention to adopt an order  
               requiring the State to develop a plan to reduce the  
               prison population to 120% or 145% of the prison's  
               design capacity (or somewhere in between) within a  
               period of two or three years.<2>

          The final outcome of the panel's tentative decision, as well as  
          any appeal that may be in response to the panel's final  
          ---------------------------
          <2>  Three Judge Court Tentative Ruling, Coleman v.  
          Schwarzenegger, Plata v. Schwarzenegger, in the United States  
          District Courts for the Eastern District of California and the  
          Northern District of California United States District Court  
          composed of three judges pursuant to Section 2284, Title 28  
          United States Code (Feb. 9, 2009).



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          decision, is unknown at the time of this writing.

           This bill  does not appear to aggravate the prison overcrowding  
          crisis outlined above.

                                      COMMENTS

          1.    Need for this Bill 

          According to the author:

              Currently there is a conflict in the Penal Code  
              regarding when an individual charged with misdemeanor  
              domestic violence may be released on their own  
              recognizance. Currently Penal Code  853.6 allows a  
              peace officer to release a person charged with  
              misdemeanor domestic violence on their own recognizance  
              without having the person appear in front of a judge or  
              commissioner if he/she believes doing so will not  
              endanger the victim or the victim's property.  However,  
              Penal Code  1270.1 states that a person charged with  
              misdemeanor domestic violence cannot be released on  
              their own recognizance until they have appeared in front  
              of a judge or commissioner. Penal Code  1270.1 contains  
              no exceptions.

              The requirement that a defendant appear before a judge  
              or commissioner before being released on their own  
              recognizance was added to Penal Code  1270.1 in 1994 by  
              AB 59X (Alpert).  Unfortunately, when the Legislature  
              amended  1270.1, it did not delete the conflicting  
              language in Penal Code  853.6.

              In California, when there are two conflicting statutes  
              the most recently enacted statute is presumed to  
              control.  Therefore, the correct law in California is  
              defendants charged with misdemeanor domestic violence  
              shall not be released on their own recognizance until  
              they first appear before a judge or commissioner.













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          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  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 be endangered by release.  (Penal Code   
          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, or may be  
          released on his or her own recognizance, a hearing shall be held  
          in open court before a judge."  (Penal Code  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  243(e)(1); Penal Code  
           273.6(a).)  Penal Code section 1270.1 does not authorize the  
          arresting officer to use discretion in releasing an offender.

          This bill clarifies that the prohibition on release in AB 1270.1  
          for the specified offenses applies as an exception to the  
          general rule in Penal Code section 853.6.


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