BILL ANALYSIS
SB 1049
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Date of Hearing: June 22, 2010
Chief Counsel: Gregory Pagan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 1049 (Harman) - As Amended: April 12, 2010
SUMMARY : Provides that a judge or magistrate may, with respect
to a bailable felony offense or a misdemeanor offense of
violating a domestic violence order, increase bail to an amount
exceeding that set forth in the bail schedule without a hearing,
providing a sworn peace officer declares under penalty of
perjury facts and circumstances to support his or her belief
that the scheduled bail is insufficient to ensure the
defendant's appearance, or to ensure the protection of a victim
of domestic violence, notwithstanding other provisions of law
that prohibit a defendant, arrested for specified offenses, from
being released on bail in an amount that is more or less that
scheduled bail until a hearing is held in open court.
EXISTING LAW :
1)States that when a person is arrested without a warrant for a
bailable felony offense or for the misdemeanor offense of
violating a domestic violence restraining order, the following
provisions apply:
a) Where the arresting officer believes that the amount of
bail set forth in the schedule of bail for that offense is
insufficient to assure defendant's appearance or to assure
the protection of a victim, or family member of a victim,
of domestic violence, the peace officer shall prepare a
declaration under penalty of perjury setting forth the
facts and circumstances in support of such a conclusion,
requesting an order setting a higher bail.
b) The defendant, either personally or through his or her
attorney, friend, or family member, also may make an
application for release on bail lower than that provided in
the schedule of bail, or on his or her own recognizance.
c) The court or magistrate to whom the application is made
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is authorized to set bail in an amount he or she deems
sufficient to ensure the defendant's appearance or the
protection of a victim of domestic violence, or family
member of a victim of domestic violence, and to set bail on
the terms and conditions he or she deems appropriate, or he
or she may authorize the defendant's release on his or her
own recognizance.
d) If no order changing bail is issued within eight hours
following application, the defendant shall be entitled to
release on posting the amount set forth on the bail
schedule. (Penal Code Section 1269c.)
2)Provides that before any person arrested for a serious or
violent felony (except residential burglary, dissuading a
witness, spousal rape, domestic violence, criminal threats, or
stalking) may be released on bail in an amount that is more or
less than the amount contained in the schedule of bail for the
offense, or released on his or her own recognizance, a hearing
must be held in open court before the magistrate or judge.
[Penal Code Section 1270.1(a).]
3)Provides that a person accused of a crime is entitled to be
released on bail. The court may not set excessive bail. Bail
may only be denied in capital cases or in felony cases under
certain circumstances. (Article 1, Section 12, California
Constitution.)
4)Provides that any person arrested for, or charged with, an
offense other than a capital offense may be released on his or
her own recognizance by a court or magistrate who could
release a defendant from custody upon the defendant giving
bail. (Penal Code Section 1270.)
5)Allows the court to refuse to accept bail. The defendant may
be held in custody if a peace officer, prosecutor or judge has
probable cause to believe that the source of any
consideration, pledge, security, or deposit was feloniously
obtained. (Penal Code Section 1275.1.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "SB 1049 is
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designed to clarify an ambiguity identified by criminal judges
within the California Judges Association. The ambiguity
concerns the authority to increase bail above the local bail
schedule without a hearing, based upon the declaration of a
peace officer under penalty or perjury, that the amount of
bail is insufficient to assure the defendant's appearance or
protect the victim or victim's family. While Penal Code
Section 1269c seems to clearly support the authority of the
judge to act in this circumstance, the language of Penal Code
Section 1270.1 prescribes a procedure for circumstances where
bail is set higher lower than the schedule, including a
hearing and notice to the prosecuting and defense attorneys.
"SB 1049 is intended to clarify the authority of judges to order
increased bail without a hearing, which is often impractical
when the arrest is made at night or over weekends. The bill
accomplishes this goal by amending Penal Code Section 1270.1
to add the provisions from Penal Code Section 1269c relating
to increased bail upon a declaration by law enforcement."
2)Comments : Penal Code Section 1269c provides that when a
person is arrested for a felony bailable offense or a
misdemeanor violation of a domestic violence restraining
order, a judge or magistrate is authorized to increase bail
above the amount set on the statutory bail schedule if the
arresting officer prepares a declaration under penalty stating
facts and circumstances to support the conclusion that the
statutory scheduled bail is insufficient to ensure the
defendant's appearance, or to ensure the protection of the
victim.
Penal Codes Section 1270.1 prohibits a person from being
released on bail in an amount that is more or less than that
provided in the bail schedule if the person was arrested for a
serious or violent felony, dissuading a witness, domestic
violence, stalking, or criminal threats unless there has been
a hearing held in open court.
This bill reconciles these two conflicting sections by restoring
a judge or magistrate's ability to increase bail in an amount
exceeding that set forth in the bail schedule, without a
hearing, provided an oral or written declaration of facts
justifying the increase is presented under penalty of perjury
by a sworn peace officer. This bill, additionally, clarifies
that an arrested person, his or her attorney, family member or
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friend may make an application to a judge or magistrate for
release on bail in an amount less than that set forth in
schedule of bail, or for release on his or her own
recognizance, unless the offense is one of the offenses listed
in Penal Code Section 1270.1, which require a hearing in open
court prior to bail being reduced, or release on his or her
own recognizance.
REGISTERED SUPPORT / OPPOSITION :
Support
California Judges Association (Sponsor)
California District Attorneys Association
California State Sheriffs' Association
Los Angeles County District Attorney's Office
Opposition
California Attorneys for Criminal Justice
California Public Defenders Association
Taxpayers for Improving Public Safety
Analysis Prepared by : Gregory Pagan / PUB. S. / (916)
319-3744