BILL ANALYSIS
------------------------------------------------------------
|SENATE RULES COMMITTEE | AB 688|
|Office of Senate Floor Analyses | |
|1020 N Street, Suite 524 | |
|(916) 651-1520 Fax: (916) | |
|327-4478 | |
------------------------------------------------------------
THIRD READING
Bill No: AB 688
Author: Eng (D)
Amended: 6/8/09 in Senate
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 6-0, 6/16/09
AYES: Leno, Benoit, Cedillo, Hancock, Huff, Steinberg
NO VOTE RECORDED: Wright
ASSEMBLY FLOOR : 78-0, 5/11/09 (Consent) - See last page
for vote
SUBJECT : Misdemeanors
SOURCE : Los Angeles District Attorney
Los Angeles County Sheriffs Department
DIGEST : This bill clarifies that a peace officer may not
release a person on his/her own recognizance, as specified,
when arrested for a misdemeanor violation of a domestic
violence protective order.
ANALYSIS :
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
CONTINUED
AB 688
Page
2
the person is released, the officer or his/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/her superior
determines that the person should be released, the officer
or his/her superior shall prepare a written notice to
appear in a court. (Penal Code Section 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 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 Section 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/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,
AB 688
Page
3
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 Sections
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 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 Section 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 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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
AB 688
Page
4
Local: No
SUPPORT : (Verified 6/17/09)
Los Angeles County District Attorney (co-source)
Los Angeles County Sheriff's Department (co-source)
Alameda County Sheriff
Butte County Sheriff
California District Attorneys Association
California Partnership to End Domestic Violence
California Peace Officers' Association
California Police Chiefs Association
California State Sheriffs' Association
Chinatown Service Center
El Dorado County Sheriff
Fresno County Sheriff
Glenn County Sheriff
Humboldt County Sheriff
Los Angeles City Attorney
Mariposa County Sheriff
Mono County Sheriff
Neighborhood Legal Services of Los Angeles County
Nevada County Sheriff
Plumas County Sheriff
Stanislaus County Sheriff
Unity and Peace Samantha Salas Scholarship Fund
Yolo County Sheriff
ARGUMENTS IN SUPPORT : According to the author's office,
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 Section 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 Section 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 Section 1270.1 contains no exceptions. The
requirement that a defendant appear before a judge or
AB 688
Page
5
commissioner before being released on their own
recognizance was added to Penal Code Section 1270.1 by AB
59X (Alpert), Chapter 58 in the First Extraordinary
Session, Statutes of 1994. Unfortunately, when the
Legislature amended Section 1270.1, it did not delete the
conflicting language in Penal Code Section 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.
ASSEMBLY FLOOR :
AYES: Adams, Ammiano, Anderson, Arambula, Beall, Bill
Berryhill, Tom Berryhill, Blakeslee, Block, Blumenfield,
Brownley, Buchanan, Caballero, Charles Calderon, Carter,
Chesbro, Conway, Cook, Coto, Davis, De La Torre, De Leon,
DeVore, Emmerson, Eng, Evans, Feuer, Fletcher, Fong,
Fuentes, Fuller, Furutani, Gaines, Galgiani, Garrick,
Gilmore, Hagman, Hall, Harkey, Hayashi, Hernandez, Hill,
Huber, Huffman, Jeffries, Jones, Knight, Krekorian, Lieu,
Logue, Bonnie Lowenthal, Ma, Mendoza, Miller, Monning,
Nava, Nestande, Niello, Nielsen, John A. Perez, V. Manuel
Perez, Portantino, Price, Ruskin, Salas, Saldana, Silva,
Skinner, Smyth, Solorio, Audra Strickland, Swanson,
Torlakson, Torres, Torrico, Tran, Villines, Bass
NO VOTE RECORDED: Duvall, Yamada
RJG:do 6/17/09 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
**** END ****