BILL ANALYSIS Ó
------------------------------------------------------------
|SENATE RULES COMMITTEE | SB 291|
|Office of Senate Floor Analyses | |
|1020 N Street, Suite 524 | |
|(916) 445-6614 Fax: (916) | |
|327-4478 | |
------------------------------------------------------------
THIRD READING
Bill No: SB 291
Author: Vargas (D)
Amended: 4/12/11
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 7-0, 4/26/11
AYES: Hancock, Anderson, Calderon, Harman, Liu, Price,
Steinberg
SUBJECT : Bail: increased amount for extradited
defendants
SOURCE : San Diego County District Attorney
DIGEST : This bill provides: (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.
ANALYSIS :
Extradition under Existing Law
Existing provisions of the United States Constitution
require the executive authority of one state to surrender
CONTINUED
SB 291
Page
2
to the executive authority a person charged with a crime in
the state demanding surrender. (U.S. Constitution Article
IV Section Clause 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. (Penal Code ÝPEN] Section 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 Section 1554.2, subd. (b))
Bail under Existing Law
Existing provisions of the United States Constitution state
that excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted.
(U.S. Constitution, 8th Amendment)
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.
CONTINUED
SB 291
Page
3
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. (California Constitution, Article I,
Section 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 Section 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 Section 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/her own recognizance. (PEN Section
1270)
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 own recognizance, a hearing must
be held in open court. These crimes include: a serious
or violent felony, specified domestic violence offenses,
dissuading a witness, or felony credible threats to
inflict death or great bodily injury, (PEN Section
1270.1, subd. (a))
Notwithstanding these provisions, a judge or magistrate
may increase, with respect to a bailable felony offense
CONTINUED
SB 291
Page
4
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 Section 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
PEN Section 1270.1, subd. (e) in an ex-parte proceeding.
Prior Legislation
SB 1049 (Harman), Chapter 176, Statutes of 2010, which
passed the Senate Floor on May 24, 2010 (28-3).
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 4/27/11)
San Diego County District Attorney (source)
California District Attorneys Association
California Peace Officers' Association
Los Angeles County District Attorney
OPPOSITION : (Verified 4/27/11)
California Public Defenders Association
ARGUMENTS IN SUPPORT : According to the author, "Under
existing law defendants extradited back to California may
CONTINUED
SB 291
Page
5
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."
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."
ARGUMENTS 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."
RJG:kc 4/27/11 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
**** END ****
CONTINUED
SB 291
Page
6
CONTINUED