BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
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SB 291 (Vargas)
As Amended April 12, 2011
Hearing date: April 26, 2011
Penal Code
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BAIL: INCREASED AMOUNT FOR EXTRADITED DEFENDANTS
HISTORY
Source: San Diego County District Attorney
Prior Legislation: SB 1049 (Harman) - Ch. 176, Stats. 2010
Support: California District Attorneys Association; California
Peace Officers' Association
Opposition:California Public Defenders Association
KEY ISSUES
WHERE A DEFENDANT HAS BEEN EXTRADITED BACK TO CALIFORNIA, SHOULD
BAIL BE SET AT $100,000, IN ADDITION TO THE BAIL IN THE UNDERLYING
WARRANT?
SHOULD A 48-HOUR NOTICED HEARING BE REQUIRED BEFORE THE COURT CAN
SET ANY OTHER AMOUNT OF BAIL IN THIS CIRCUMSTANCE?
SHOULD THESE PROVISIONS EXPRESSLY PROVIDE THAT THEY ARE NOT INTENDED
TO PRECLUDE A LAW ENFORCEMENT OFFICER, THROUGH AN EX-PARTE
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PROCEDURE, FROM OBTAINING HIGHER BAIL FOR A DEFENDANT IN A FELONY
OFFENSE OR A MISDMEANOR FOR VIOLATING A DOMESTIC VIOLENCE ORDER?
PURPOSE
The purposes of this bill are to provide that 1) where a
defendant has been extradited back to California to face
charges, bail shall be set at $100,000; 2) in these
circumstances a 48-hour noticed hearing is required before the
court can set bail in any other amount; and 3) the provisions of
this bill are not intended to preclude the ex-parte process for
raising bail through an affidavit of a law enforcement officer
in a felony or specified misdemeanor domestic
violence matter, as specified.
Extradition under Existing Law
Existing provisions of the United States Constitution require
the executive authority of one state to surrender to the
executive authority a person charged with a crime in the state
demanding surrender. (United States Const., Art. IV § Cl. 2.)
Existing law provides that where a person charged with a crime
must be returned to California for trial, the district attorney
shall apply to the Governor for extradition. The application
shall include the crime charged and the state and specific
location where the person is located. (Pen. Code § 1554.2,
subd. (a).)
Existing law provides that where a person convicted of a crime
in California has escaped, or violated the terms of bail,
probation or parole, the district attorney or other specified
official shall apply to the Governor for extradition. (Pen.
Code § 1554.2, subd. (b).)
Bail under Existing Law
Existing provisions of the United States Constitution state that
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excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted. (United
States Const., 8th Amend.)
Existing provisions of the California Constitution state that a
person shall be released on bail, except for the following
crimes when the facts are evident or the presumption great:
Capital crimes;
Felonies involving violence or sexual assault when the
court finds by clear and convincing evidence that there is
a substantial likelihood the person's release would result
in great bodily harm to others; and
Felonies where the court finds by clear and convincing
evidence that the person has threatened another with great
bodily harm and that there is a substantial likelihood that
the person would carry out the threat if released.
The court shall consider the seriousness of the offense,
the defendant's criminal record and the probability of his
or her return to court. The court, in its discretion, may
release a person on his or her own recognizance. (Cal.
Const., Art. I, § 12.)
Existing law provides that in making a bail decision the court
shall consider public safety, the seriousness of the offense,
the previous criminal record of the defendant, and the
probability of his or her appearing at trial or hearing of the
case. Public safety shall be the primary consideration. (Pen.
Code § 1275, subd. (a).)
Existing law provides that the superior court in each county
shall adopt a "uniform schedule of bail" for all felony offenses
and for all misdemeanor and infraction offenses except Vehicle
Code infractions. The judges shall consider the seriousness of
the offense, including enhancements and aggravating factors.
(Pen. Code § 1269b, subds. (c)-(e).)
Existing law 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 ("OR"). (Pen. Code § 1270.)
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Existing law provides the following with respect to bail in
specified offenses:
Before any person arrested for a specified crime may be
released on bail in an amount that is below or above the
amount contained in the schedule of bail for the offense,
or released on OR, a hearing must be held in open court.
These crimes include: a serious or violent felony<1>,
specified domestic violence offenses, dissuading a witness,
or felony credible threats to inflict death or great bodily
injury, (Pen. Code § 1270.1, subd. (a).)
Notwithstanding these provisions, a judge or magistrate
may increase, with respect to a bailable felony offense or
a misdemeanor offense of violating a domestic violence
order, bail to 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, as specified. (Pen. Code § 1270.1. subd. (e).)
This Bill
This bill provides that upon return of an extradited defendant
to California, bail shall be set in the amount of $100,000, in
addition to bail on the underlying warrant for the pending
criminal charge.
This bill provides that a 48-hour noticed hearing is required
before bail could be set in another amount.
This bill provides that it is not intended to preclude a law
enforcement officer from seeking increased bail in a felony or
specified domestic violence matter pursuant to Penal Code
Section 1270.1, subd. (e) in an ex-parte proceeding.
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<1> Residential burglary is excluded from this list.
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RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
As these cases have progressed, prison conditions have
continued to be assailed, and the scrutiny of the federal courts
over California's prisons has intensified.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). 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 January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On Monday, June 14, 2010, the U.S. Supreme Court agreed to hear
the state's appeal of this order and, on Tuesday, November 30,
2010, the Court heard oral arguments. A decision is expected as
early as this spring.
In response to the unresolved prison capacity crisis, in early
2007 the Senate Committee on Public Safety began holding
legislative proposals which could further exacerbate prison
overcrowding through new or expanded felony prosecutions.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
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According to the author:
Under existing law defendants extradited back to
California may bail out prior to appearing before a
judge. Sometimes these defendants become fugitives a
second time, leaving California for refuge in another
jurisdiction. Upon capture, these defendants are
extradited back to California at considerable expense
to taxpayers. On other occasions, after an extradited
defendant appears before a magistrate, and despite
prior fugitive status, magistrates, reluctant to
exercise their discretion to raise bail over the
amount designated in the local bail scheduled for the
crime with which the defendant has been charged, set
bail in a relatively low amount easily met by the
defendant.
2. Background: Brief History of Bail
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Bail is a special form of contract where a person is granted
release from jail upon a promise to appear at a specified time
backed by a bond secured by the bail agent. A defendant stays
in the constructive custody of the bail agent at the contractual
consent of the bailed defendant. Bail agents thus have a right
to arrest absconding defendants to perfect the constructive
custody. (Taylor v. Taintor (1862) (16 Wall.) 83 U.S. 366, 372.)
3. Extradition Generally
The United States Constitution provides that a state has the
right to demand that another state return a criminal fugitive
from another state. Witkin describes the basis for extradition
as follows:
Interstate extradition (or rendition) is the right of
one state to demand surrender of a fugitive from the
asylum state. Thus, a person "charged in any state
with treason, felony, or other crime, who shall flee
from justice, and be found in another state, shall on
demand of the executive authority of the state from
which he fled, be delivered up to be removed to the
state having jurisdiction of the crime." (U.S. Const.,
Article IV, §2, Cl. 2.) Therefore, on a proper demand
of the executive of one state on the executive of
another, it is the duty of the latter to have the
fugitive arrested and delivered to the agent of the
demanding state. (4 Witkin, Crim, Law, Juris. and
Venue, §28, citations omitted.)
WHERE A DEFENDANT IS EXTRADITED TO CALIFORNIA FROM ANOTHER
JURISDICTION, SHOULD THE BAIL BE SET AT $100,000, IN ADDITION TO
BAIL ON THE UNDERLYING WARRANT?
BEFORE BAIL CAN BE SET AT AN AMOUNT OTHER THAN $100,000 WHERE A
DEFENDANT HAS BEEN EXTRADICTED BACK TO CALIFORNIA, SHOULD A
48-HOUR NOTICED MOTION BE FILED AND HEARD, AS PROPOSED BY THIS
BILL?
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4. Argument in Support
The San Diego County District Attorney argues in support:
We are sponsoring this legislation because many times
these defendants bail out before we can arraign them
on the old charges. They become fugitives for a
second time, leaving California again for refuge in
another state jurisdiction. This requires California
counties to extradite the defendant a second time.
This places unnecessary financial burden on already
financially strapped counties. Moreover,
since most extraditions involve serious or violent
felonies that put human life at risk, the public is
endangered by the release of such defendants from
custody prior to appearance in court.
5. Argument in Opposition
The California Public Defenders Association argues in
opposition:
In setting the amount of bail on an arrest warrant, a
court has taken into account the requirements in
setting bail - the seriousness of the offense charged,
the previous criminal record of the defendant, et
cetera. By automatically adding $100,000 to the
amount of bail set by a court, this legislation would
fix bail in an amount that is excessive, since all
legally relevant factors had been taken into account
at the time the bail was originally set. The $100,000
additional amount is wholly arbitrary and irrelevant
to the constitutional and statutory factors used in
setting bail.
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