BILL ANALYSIS SENATE COMMITTEE ON PUBLIC SAFETY Senator Mark Leno, Chair A 2009-2010 Regular Session B 6 8 8 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 (More) AB 688 (Eng) PageB 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 (More) AB 688 (Eng) PageC 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 (More) AB 688 (Eng) PageD 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 (More) AB 688 (Eng) PageE 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. (More) ---------------------- <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). (More) AB 688 (Eng) PageG 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. AB 688 (Eng) PageH 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. ***************