BILL ANALYSIS Ó
SB 291
Page 1
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)
SB 291
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