BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  SB 291
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          Date of Hearing:   June 14, 2011
          Counsel:        Gabriel Caswell


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

                    SB 291 (Vargas) - As Amended:  April 12, 2011


           SUMMARY  :   Requires that when a defendant is extradited back to 
          the State of California that judges issue bail in the amount of 
          $100,000, in addition to any bail already issued for the 
          underlying original offense.  Specifically,  this bill  : 

          1)States that after a person has been brought back to this state 
            by extradition proceedings, the person shall be committed to a 
            county jail with bail set in the amount of $100,000 in 
            addition to the amount of bail appearing on the underlying 
            arrest warrant. 

          2)Specifies a 48-hour noticed bail hearing, excluding weekends 
            and holidays, is required to deviate from this prescribed bail 
            amount. 

          3)Clarifies that nothing in this section is intended to preclude 
            the existing ex parte process for raising bail through an 
            affidavit of a law enforcement officer in a felony or 
            specified misdemeanor domestic violence case, as specified.  

           EXISTING LAW  :

          1)States that excessive bail shall not be required, nor 
            excessive fines imposed, nor cruel and unusual punishments 
            inflicted.  (United States Const., 8th Amend.)

          2)Requires under the United States Constitution that 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.)  
           
          3)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 








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            where the person is located.  İPenal Code Section 1554.2(a).]

          4)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.  İPenal 
            Code Section 1554.2(b).]

          5)States that a person shall be released on bail, except for the 
            following crimes when the facts are evident or the presumption 
            great:

             a)   Capital crimes;

             b)   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,

             c)   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, Section 12.)

          6)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.  İPenal Code 
            Section 1275(a).]

          7)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.  
            İPenal Code Section 1269b(c)-(e).]

          8)Provides that any person arrested for, or charged with, an 
            offense other than a capital offense may be released on his or 








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            her own recognizance ("OR").  (Penal Code Section 1270.)

          9)Provides the following with respect to bail in specified 
            offenses:

             a)   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 specified 
               domestic violence offenses, dissuading a witness, or felony 
               credible threats to inflict death or great bodily injury.  
               İPenal Code Section 1270.1(a).]

             b)   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.  İPenal Code Section 1270.1(e).]

           FISCAL EFFECT  :  Unknown

           COMMENTS  :   

           1)Author's Statement  :  According to the author, "SB 291 will 
            discourage the practice of ;jumping bail' and will save 
            taxpayer dollars by dramatically reducing the number of times 
            our counties pay thousands of dollars to chase down and 
            extradite fugitives in other states.  This will also provide 
            district attorneys the opportunity to provide the judge with 
            any additional information that should be considered before 
            deviation from the proposed bail amount."

           2)Bail  :  Bail permits a defendant to be released from actual 
            custody into the constructive custody of a surety on a bond 
            given to procure the defendant's release.  The amount of bail 
            must be specified in a court order or on the arrest warrant.  
            (Penal Code Sections, 1268, 1269a, and 815a.)  Before 
            conviction, bail is a matter of right unless the offense is 
            punishable by death, or a public safety exception is 
            established.  (Cal. Const. art I section 12.)  









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            Bail is initially set by the magistrate at a defendant's first 
            court appearance.  (Penal Code Section 1271.)  A magistrate is 
            authorized to set bail in any amount he or she deems 
            sufficient to ensure the defendant's appearance.  (Penal Code 
            Sections 1268, 1269c, 1275, and 1289.)  Counsel can request a 
            superior court judge set a higher or lower bail amount.  
            (Penal Code Sections 1269c, 1270.2, and 1289.)  In addition, a 
            peace officer may file a declaration stating that he or she 
            does not believe that the amount of the bail set in the 
            schedule is sufficient to assure the defendant's appearance.  
            (Penal Code Section 1269c.)  

            When defendants have been granted and released on bail, the 
            trial court may order him or her placed in custody for a 
            variety of reasons:  (a) the defendant failed to appear and 
            the court has forfeited his or her bail, (b) the court 
            determines that the surety is dead or has left the state, (c) 
            the defendant fails to meet an increased amount of bail, or 
            (d) the defendant is held to answer following a preliminary 
            hearing.  

           3)Bail Forfeiture  :  If a defendant fails to appear as ordered by 
            the court and does not have a valid reason for the missed 
            appearance, the court must declare bail forfeited.  (Penal 
            Code Section 1305).  In addition the court may issue a bench 
            warrant, in an amount determined by the judge to ensure the 
            defendant's appearance, for the defendant's arrest.  (Penal 
            Code Section 978.5).  

           4)Extradition  :  Extradition between states is guaranteed by the 
            United States Constitution, which has been codified into 
            statute.  İUS Const art IV, Section 2(2); 18 USC Section 
            3182].  Generally, a suspected fugitive is arrested on the 
            basis of a demanding state's warrant charging the suspect with 
            a crime.  The prosecutor in the "asylum" state may then file a 
            "fugitive complaint" against the suspect.  When that occurs, 
            the suspect is arraigned and held in custody or admitted to 
            bail pending issuance of a governor's warrant.  The fugitive 
            may deny the allegations in the complaint or waive formal 
            extradition at this point.  Meanwhile, the prosecutor in the 
            "demanding" state assembles the appropriate extradition 
            papers, which are submitted to the governor of the demanding 
            state.  If the papers are approved as to form by the attorney 
            general, the governor of the demanding state submits a 
            requisition, or formal demand, accompanied by the supporting 








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            documents, to the governor of the asylum state.  The governor 
            of the asylum state after review by his or her office and the 
            office of the state Attorney General then issues a warrant of 
            extradition that commands the arrest and rendition of the 
            fugitive.  The fugitive is then arraigned on the governor's 
            warrant and, on request, given the opportunity to challenge 
            its validity by habeas corpus.  If the challenge is 
            unsuccessful, the appropriate agency in the demanding state is 
            notified and sends its agents to return the fugitive to the 
            demanding state.  

           5)Is this bill Unconstitutional Due to Separation of Powers  ?  
            The California Constitution requires that the judicial branch 
            is responsible for setting bail.  İCal. Const. art I, Section 
            28(a)c.]  Judges from each county decide the bail schedule for 
            their particular jurisdiction and what is appropriate by 
            offense.  Those bail schedules are seen as advisory, and 
            judges may deviate from the amount prescribed based on the 
            facts and circumstances of a particular case.  This bill 
            proposes an issue of first impression.  May the Legislature 
            set bail in a particular type of case?  This role has been 
            assigned to the judicial branch in the California 
            Constitution.  The action proposed by this bill may very well 
            be unconstitutional.    
           
           6)Argument in Support :  According to the  San Diego District 
            Attorney  , "İu]nder existing law, criminal defendants are 
            extradited back to California at considerable expense to the 
            taxpayers ranging from $2,000 to $6,000 within the United 
            States.  Unfortunately, these defendants are able to bail out 
            prior to even appearing before a magistrate.  

            "SB 291 provides that a defendant who is extradited shall be 
            committed to a county jail with bail set in the amount of 
            $100,000 in addition to the amount of the bail appearing on 
            the warrant.  If also provides that a 40-hour noticed bail 
            hearing, excluding weekends and holidays, would be required to 
            deviate from this prescribed bail amount.  

            "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 an unnecessary financial burden on 








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            already financially strapped counties.  

            "SB 291 will ensure that when taxpayers' money is spend to 
            send detectives and investigators to locate, rearrest and 
            transport a defendant back to the jurisdiction of record that 
            he/she actually appears in court to face the original charges 
            and is not released before that court date.  On the court 
            date, the court will have discretion to lower bail; but the 
            hearing will provide prosecutors the opportunity to explain to 
            the court why bail should be kept higher that the bail amount 
            prescribed for the underlying crime.  

            "Moreover, since most extraditions involve serious/or violent 
            felonies that put human life at risk, the public is endangered 
            by the release of such defendant from custody prior to 
            appearing before a magistrate."  

           7)Argument in Opposition  :  According to the  California Attorneys 
            for Criminal Justice  (CACJ), "CACJ is concerned that the bill 
            is inconsistent with the California Constitution's requirement 
            that bail be set by the courts and is anchored in the totality 
            of the circumstances of an individual case.  Your bill also 
            permits a "double hit" as courts already increase bail for a 
            person who has a record of missing court appearances.  The 
            $100,000 proposed by SB 291 is an add-on which is applied even 
            if the court has already adjusted bail upwards.  In practical 
            terms, your bill will have its greatest impact on the 
            FIRST-TIME a person misses court, even if there is a justified 
            reason.  Multiple offenders will already have elevated bail 
            amounts.  
             
             "Additionally, your stated goal is to respond to a small 
            percentage of cases where an accused leaves California 
            multiple times in violation of his bail restrictions.  
            However, your bill is not narrowly drafted to apply only to 
            those multiple offenders.  Instead, it would cover a situation 
            of a one-time offender who has a single incident of missing 
            court.  The $100,000 is excessive in this one-time context.  

            "CACJ is also concerned that the bill would equally apply to 
            low-level offenses, even non-violent misdemeanors, whose bail 
            amounts may be 1/10 of the $100,000.  While it may be rare 
            that misdemeanants are extradited, it is as frequent as the 
            person who has to be extradited multiple times.  In the 
            misdemeanor context, the $100,000 amount is excessive and 








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            unjustified.  Current bail schedules are required to be 
            proportionate to the severity of the offense, which is 
            underscored by the language of the California Constitution.  
            Your bill overlooks this restriction by imposing a set amount 
            regardless of the underlying offense.  

            "CACJ is also concerned that SB 291 blurs the line between the 
            judicial and legislative branches.  Your legislation overrules 
            the discretion of judges to set an appropriate bail amount.  
            California Constitution Article I, Section 28(a)3.  This would 
            be the first time the Legislature sets a specific bail amount, 
            a role that should be reserved for the judicial, not 
            legislative branch.  

           8)Prior Legislation  :  SB 1049 (Harman), Statutes of 2010, 
            Chapter 176, 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. 

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          San Diego District Attorney's Office 
          California District Attorneys Association 
          Los Angeles County District Attorney's Office 
          Los Angeles County Sheriff's Office 

           Opposition 
           
          California Attorneys for Criminal Justice 
          California Public Defenders Association

           
          Analysis Prepared by  :    Gabriel Caswell / PUB. S. / (916) 








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