BILL ANALYSIS Ó
AB 178
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Date of Hearing: March 15, 2011
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 178 (Gorell) - As Introduced: January 24, 2011
SUMMARY : Modifies existing law to apply the same sanctions for
failures to appear in criminal proceedings to individuals
released pursuant to a federal court order mandating the release
of inmates. Specifically, this bill :
1)Creates procedures for defendants who are released from
custody prior to sentencing pursuant to a federal court order
to sign a release agreement. The release agreement shall
include the following:
a) The defendant's promise to appear at the time and place
the defendant is given in writing by the jail personnel at
the time of release;
b) The defendant's promise to appear at all times and
places the defendant is ordered at subsequent hearings by
the court or magistrate and as ordered by any court in
which, or any magistrate before whom, the charge is
pending;
c) The defendant's promise to obey all reasonable
conditions imposed by the court or magistrate;
d) The defendant's promise not to depart California without
leave of the court;
e) Agreement by the defendant to waive extradition if the
defendant fails to appear as required and is apprehended
outside the State of California; and,
f) The acknowledgment of the defendant that he or she has
been informed of the consequences and penalties applicable
to violation of the conditions of release.
2)Applies these same penalties for an individual who fails to
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appear when released under his or her own recognizance to
another person who fails to appear after being released prior
to sentencing from a county jail pursuant to a federal court
order mandating the release of inmates.
3)Applies the same two-year penalty enhancement to a person
arrested for a felony offense alleged to have been committed
while the person while a person is release on his or her own
recognizance to persons released prior to sentencing from a
county jail pursuant to a federal court order mandating the
release of inmates.
EXISTING LAW :
1)Specifies that every person who is charged with or convicted
of the commission of a misdemeanor who is released from
custody on his or her own recognizance and who in order to
evade the process of the court willfully fails to appear as
required, is guilty of a misdemeanor. It shall be presumed
that a defendant who willfully fails to appear within 14 days
of the date assigned for his or her appearance intended to
evade the process of the court. İPenal Code Section 1320(a).]
2)States that every person who is charged with or convicted of
the commission of a felony who is released from custody on his
or her own recognizance and who in order to evade the process
of the court willfully fails to appear as required, is guilty
of a felony, and upon conviction shall be punished by a fine
not exceeding $5,000 or by imprisonment in the state prison,
or in the county jail for not more than one year, or by both
that fine and imprisonment. It shall be presumed that a
defendant who willfully fails to appear within 14 days of the
date assigned for his or her appearance intended to evade the
process of the court. İPenal Code Section 1320(b).]
3)Defines a "primary offense" as a felony offense for which a
person has been released from custody on bail or on his or her
own recognizance prior to the judgment becoming final,
including the disposition of any appeal, or for which release
on bail or his or her own recognizance has been revoked. In
cases where the court has granted a stay of execution of a
county jail commitment or state prison commitment, "primary
offense" also is defined as a felony offense for which a
person is out of custody during the period of time between the
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pronouncement of judgment and the time the person actually
surrenders into custody or is otherwise returned to custody.
İPenal Code Section 12022.1(a)(1).]
4)Defines a "secondary offense" as a felony offense alleged to
have been committed while the person is released from custody
for a primary offense. İPenal Code Section 12022.1(a)(2).]
5)States that any person arrested for a secondary offense which
was alleged to have been committed while that person was
released from custody on a primary offense shall be subject to
a penalty enhancement of an additional two years in state
prison which shall be served consecutive to any other term
imposed by the court. İPenal Code Section 12022.1(b).]
6)Provides that the enhancement allegation provided shall be
pled in the information or indictment which alleges the
secondary offense, or in the information or indictment of the
primary offense if a conviction has already occurred in the
secondary offense, and shall be proved as provided by law.
The enhancement allegation may be pleaded in a complaint but
need not be proved at the preliminary hearing or grand jury
hearing. İPenal Code Section 12022.1(c).]
7)States that whenever there is a conviction for the secondary
offense and the enhancement is proved, and the person is
sentenced on the secondary offense prior to the conviction of
the primary offense, the imposition of the enhancement shall
be stayed pending imposition of the sentence for the primary
offense. The stay shall be lifted by the court hearing the
primary offense at the time of sentencing for that offense and
shall be recorded in the abstract of judgment. If the person
is acquitted of the primary offense the stay shall be
permanent. İPenal Code Section 12022.1(d).]
8)Provides that if the person is convicted of a felony for the
primary offense, is sentenced to state prison for the primary
offense, and is convicted of a felony for the secondary
offense, any state prison sentence for the secondary offense
shall be consecutive to the primary sentence. İPenal Code
Section 12022.1(e).]
9)States that if the person is convicted of a felony for the
primary offense, is granted probation for the primary offense,
and is convicted of a felony for the secondary offense, any
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state prison sentence for the secondary offense shall be
enhanced by an additional two years as specified. İPenal Code
Section 12022.1(f).]
10)Provides that if the primary offense conviction is reversed
on appeal, the enhancement shall be suspended pending retrial
of that felony. Upon retrial and reconviction, the
enhancement shall be reimposed. If the person is no longer in
custody for the secondary offense upon reconviction of the
primary offense, the court may, at its discretion, reimpose
the enhancement and order him or her recommitted to custody.
İPenal Code Section 12022.1(g).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "İc]urrently,
Penal Code section 1318 lists the requirements for a defendant
to be released on his or her own recognizance. It requires a
defendant to file a signed release agreement that includes the
defendant's promise to appear at all times and places as
ordered by the court or magistrate.
"Once released on his or her own recognizance, if a defendant
fails to appear at a court hearing then a new charge, either a
misdemeanor or a felony based on the underlying offense, can
be filed under Penal Code section 1320. Furthermore, pursuant
to Penal Code section 12022.1, if a defendant released on bail
or on his or her own recognizance commits a new felony and is
convicted of both the original crime and new crime, there is
an enhancement of an additional two years in state prison
served consecutively to any other term imposed by the court.
"A majority of California counties are under population caps
that require jails to release inmates when they reach a
certain capacity. These releases are done by jail staff and
not a magistrate or judge, as contemplated in Penal Code
section 1318. A substantial number of these inmates are
failing to appear and/or committing new offenses upon release.
Under the current system, there is no guidance as to the
sanctions for inmates who fail to appear or commit new crimes
after their release. The results of this new paradigm in
local corrections must be addressed in statute.
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"To that end, AB 178 will update and augment current statutes to
(1) require defendants released prior to sentencing by county
jail personnel and pursuant to a federal court order mandating
the release of inmates when the jail facility reaches a
certain capacity, to sign a release agreement; and (2) conform
penalties for defendants who fail to appear or commit a
subsequent crime to those that exist for persons released on
their own recognizance."
2)Background : As provided by the author, "İa]s the number of
inmates released from county jails due to overcrowding grows,
many are failing to appear in court and are committing new
offenses upon release. Unlike defendants who are released on
their own recognizance or on bail, there is a lack of
statutory guidance as to conditions of release for these
inmates, as well as penalties for failing to appear or the
commission of new crimes."
3)Own Recognizance (OR) : A person may be released on his or her
OR in the court's discretion. İCal. Const. art I, Section 12;
Penal Code Section 1270(a).] A defendant charged with only
misdemeanor offenses, including a defendant arrested on an out
of county warrant, is entitled to release on OR unless it will
compromise public safety or will not reasonably ensure the
defendant's appearance in court. İPenal Code Section
1270(a).] Courts consider factors that relate to the
individual defendant, the general welfare of persons accused
of similar crimes to appear for trial, is not a reason to deny
O.R. release. İPeople v. Arnold (1976) 58 Cal.App.3d Supp.
1.]
A defendant must sign a release agreement and file it with the
clerk of the court to be released on OR. (Penal Code Section
1318.) The release includes:
a) The defendant's promise to appear at all times and
places as ordered;
b) The defendant's promise to obey all reasonable
conditions imposed by the court;
c) The defendant's promise not to leave the state without
the court's permission;
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d) The defendant's agreement to waive extradition, if it
becomes necessary; and,
e) The defendant's acknowledgement that he or she has been
informed of the consequences of violating the conditions of
release.
4)Argument in Support : According to the California District
Attorneys Association , "İt]his bill would update and augment
current statutes to (1) require defendants released prior to
sentencing by county jail personnel and pursuant to federal
court order mandating the release of inmates when the jail
facility reaches a certain capacity , to sign a release
agreement; and (2) conform the penalties for defendants who
fail to appear or commit a subsequent crime to those that
exist for persons released on their own recognizance.
"As the number of inmates released from county jails due to
overcrowding grows, many are failing to appear in court and/or
are committing new offenses upon release. Unlike defendants
who are released on their own recognizance or on bail, there
is a lack of statutory guidance as to conditions of release
for these inmates, as well as penalties for failing to appear
or sentence enhancements for the commission of new crimes.
"Currently, Penal Code section 1318 lists the requirements for a
defendant to be released on his or her own recognizance. It
requires a defendant to file a signed release agreement that
includes, among other conditions, the defendant's promise to
appear at all times and places as ordered by the court or
magistrate.
"Once released on his or her own recognizance, if a defendant
fails to appear at a court hearing, a new charge, either a
misdemeanor or a felony based on the underlying offense, can
be filed under Penal Code section 1320. Furthermore, pursuant
to Penal Code section 12022.1. if a defendant released on bail
or on his or her own recognizance commits a new felony and is
convicted of both the original crime and new crime, an
enhancement of an additional two years in state prison served
consecutively to any other term imposed by the court is
available.
"A majority of California's counties are under population caps
that require jails to release inmates when they reach a
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certain capacity. Under the current system, there is no
guidance as to the sanctions for such inmates who fail to
appear or commit new crimes after their release. The results
of this new paradigm in local corrections must be addressed in
statute."
5)Argument in Opposition: According to the California Public
Defenders Association (CPDA), CPDA urges the author to amend
the bill to (1) require the county jail to inform the released
inmate of appearance dates that are the same as any existing
superior court appearance orders, and (2) eliminate the
application of the existing penalties for failure to appear
for inmates released pursuant to federal court orders.
"We believe these amendments are necessary because county jails
do not always inform inmates of court dates in conformity with
the dates the court may have already given. Further, unlike
situations where defendants are released on their own
recognizance or bail, an individual released under a federal
court order does not have a choice in the matter.
"When the superior court has already given an individual a date
to appear on a particular case, the jail's promise to appear
in that case should require the person to appear on those same
dates, rather than on different dates. Unfortunately, this is
not always the case in practice. In some counties, the jail
often gives such defendants an appearance date on their case
that is different from the date already given by the superior
court. This is an ongoing problem that causes great
inconvenience to courts and defendants alike, and sometimes
leads to legal entanglements as to whether a defendant really
has failed to appear as ordered, and what actions, if any, the
court can take."
REGISTERED SUPPORT / OPPOSITION :
Support
Association for Los Angeles Deputy Sheriffs
California District Attorneys Association
California State Sheriffs' Association
Chief Probation Officers of California
Los Angeles County Probation Officers Union,
AFSCME, Local 685
Oxnard Police Department
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Riverside Sheriffs' Association
Sheriff, County of San Barbara
Opposition
California Public Defenders Association
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744