BILL ANALYSIS Ó
AB 723
Page 1
Date of Hearing: April 2, 2013
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 723 (Quirk) - As Introduced February 21, 2013
SUMMARY : Allows a person on postrelease community supervision
(PRCS) who has a revocation petition filed against him or her to
file an application for bail with the superior court.
Specifically, this bill :
1)Provides that it is within the sole discretion of the court to
admit a person to bail pending revocation of PRCS.
2)States that a bail application made pursuant to this bill
shall be governed by the procedures set forth in existing
provisions of law governing bail.
3)Specifies that this bill does not prohibit a court from making
any order authorized by existing provisions of law governing
bail.
EXISTING LAW :
1)Requires the following persons released from prison on or
after October 1, 2011, be subject to parole under the
supervision of the California Department of Corrections and
Rehabilitation (CDCR):
a) A person who committed a serious felony listed in Penal
Code Section 1192.7(c);
b) A person who committed a violent felony listed in Penal
Code Section 667.5(c);
c) A person serving a Three-Strikes sentence;
d) A high-risk sex offender;
e) A mentally disordered offender [Penal Code Section
3000.08(a)];
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f) A person required to register as a sex offender and
subject to a parole term exceeding three years at the time
of the commission of the offense for which he or she is
being released; and,
g) A person subject to lifetime parole at the time of the
commission of the offense for which he or she is being
released. [Penal Code Section 3000.08(a) and (c).]
2)Requires all other offenders released from prison on or after
October 1, 2011, to be placed on PRCS under the supervision of
a county agency, such as a probation department. [Penal Code
Section 3000.08(b).]
3)Requires PRCS to include all of the following conditions
(Penal Code Section 3453):
a) The person shall be informed of the conditions of
release;
b) The person shall obey all laws;
c) The person shall report to the supervising county agency
within two working days of release from custody;
d) The person shall follow the directives and instructions
of the supervising county agency;
e) The person shall report to the supervising county agency
as directed by that agency;
f) The person, and his or her residence and possessions,
shall be subject to search at any time of the day or night,
with or without a warrant, by an agent of the supervising
county agency or by a peace officer;
g) The person shall waive extradition if found outside the
state;
h) The person shall inform the supervising county agency of
the person's place of residence, employment, education, or
training;
i) The person shall inform the supervising county agency of
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any pending or anticipated changes in residence,
employment, education, or training;
j) If the person enters into new employment, he or she
shall inform the supervising county agency of the new
employment within three business days of that entry;
aa) The person shall immediately inform the supervising
county agency if he or she is arrested or receives a
citation;
bb) The person shall obtain the permission of the
supervising county agency to travel more than 50 miles from
the person's place of residence;
cc) The person shall obtain a travel pass from the
supervising county agency before he or she may leave the
county or state for more than two days;
dd) The person shall not be in the presence of a firearm or
ammunition, or any item that appears to be a firearm or
ammunition;
ee) The person shall not possess, use, or have access to any
of the specified weapons;
ff) Except as provided, the person shall not possess a knife
with a blade longer than two inches;
gg) The person may possess a kitchen knife with a blade
longer than two inches if the knife is used and kept only
in the kitchen of the person's residence;
hh) The person may use a knife with a blade longer than two
inches, if the use is required for that person's
employment, the use has been approved in a document issued
by the supervising county agency, and the person possesses
the document of approval at all times and makes it
available for inspection;
ii) The person shall waive any right to a court hearing
prior to the imposition of a period of "flash
incarceration" in a county jail of not more than 10
consecutive days for any violation of his or her
postrelease supervision conditions;
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jj) The person shall participate in rehabilitation
programming as recommended by the supervising county
agency; and,
aaa) The person shall be subject to arrest with or without a
warrant by a peace officer employed by the supervising
county agency or, at the direction of the supervising
county agency, by any peace officer when there is probable
cause to believe the person has violated the terms and
conditions of his or her release.
4)Provides for intermediate sanctions for violating the terms of
PRCS, including "flash incarceration" for up to 10 days.
(Penal Code Section 3454.)
5)States that upon a finding that a person has violated the
conditions of PRCS, the revocation hearing officer shall have
authority to do the following [Penal Code Section 3455(a)]:
a) Return the person to PRCS with modifications of
conditions, if appropriate, including a period of
incarceration in county jail;
b) Revoke and terminate PRCS and order the person to
confinement in the county jail; or,
c) Refer the person to a reentry court or other
evidence-based program in the court's discretion.
6)Specifies that if PRCS is revoked, the offender may be
incarcerated in the county jail for a period not to exceed 180
days for each custodial sanction. [Penal Code Section
3455(d).]
7)Provides that a defendant who is charged with a noncapital
offense may be admitted to bail before conviction as a matter
of right. [Cal. Const., art. I, sec. 12; Penal Code Section
1271.]
8)States that a defendant who had made an application for
probation or has appealed after a conviction for an offense
not punishable with death may be admitted to bail, as
specified. (Penal Code Section 1272.)
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9)Prohibits excessive bail. [Cal. Const., art. I, sec. 12.]
10)Lists several factors that the court must consider in
setting, reducing, or denying bail: the protection of the
public, the seriousness of the charged offense, the
defendant's prior criminal record, and the probability of his
or her appearing at trial or hearing of the case. Public
safety is the primary consideration. [Penal Code Section
127599(a).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Under
realignment, many more sentences will be served in county jail
rather than in a state prison. This change, though well
intentioned to reduce the prison overcrowding crisis, creates
pressure on the county for bed space.
"Additionally, counties will be responsible for processing
individuals who have been arrested after violating the terms
of post-release community supervision. This too will increase
the number of individuals in county jails as they await court
proceeding to determine if they are going back to jail.
"Bail has been the traditional and proven method of providing a
cost effective means of relieving pressure on the county jail
system. It also provides those incarcerated awaiting a court
proceeding a way to get released back to their family, jobs,
or school. Unfortunately, it is not clear if realignment
allows for bail for those individuals who violate the
conditions of post-release community supervision.
"AB 723 creates a process for those who are incarcerated
awaiting a post-release community supervision revocation
hearing to seek bail. This bill provides the opportunity
under the appropriate circumstances, with all due
consideration for public safety, for individuals to get back
to their families, jobs, and not take up valuable bed space in
our county jails."
2)Parole and Criminal Justice Realignment : Prior to
realignment, individuals released from prison were placed on
parole and supervised in the community by parole agents of
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CDCR. If it was alleged that a parolee had violated a
condition of parole, he or she would have a revocation
proceeding before the Board of Parole Hearings (BPH). If
parole was revoked, the offender would be returned to state
prison for violating parole.
Realignment shifted the supervision of some released prison
inmates from CDCR parole agents to local probation
departments. Parole under the jurisdiction of CDCR for
inmates released from prison on or after October 1, 2011 is
limited to those defendants whose term was for a serious or
violent felony; were serving a Three-Strikes sentence; are
classified as high-risk sex offenders; who are required to
undergo treatment as mentally disordered offenders; or who,
while on certain paroles, commit new offenses. [Penal Code
Sections 3000.08(a) and (c), and 3451(b).] All other inmates
released from prison are subject to up to three years of PRCS
under local supervision. [Penal Code Sections 3000.08(b) and
3451(a).]
Additionally, realignment changed the process for revocation
hearings, but this change is being implemented in phases.
Until July 1, 2013, individuals supervised on parole by state
agents continue to have revocation hearings before the BPH.
After July 1, 2013, the trial courts will assume
responsibility for holding all revocation hearings for those
individuals who remain under the jurisdiction of CDCR. In
contrast, since the inception of realignment, individuals
placed on PRCS stopped appearing before the BPH for revocation
hearings. Their revocation hearings are handled by the trial
court. PRCS currently provides for lesser or "intermediate"
sanctions before PRCS is revoked for a violation. This
includes "flash incarceration" for up to 10 days. (Penal Code
Section 3454.) Intermediate sanctions, including flash
incarceration, will also be available for state parolees after
July 1, 2013. [Penal Code Section 3000.08(d), effective July
1, 2013.]
3)Background on Bail : Existing law provides a process whereby
the court may set a bail amount for a criminal defendant.
(Penal Code Section 1269b.) Additionally, Section 12 of
Article 1 of the California Constitution provides, with
limited exceptions, that a criminal defendant has a right to
bail and what conditions shall be taken into consideration in
setting bail. A defendant may post bail by depositing cash or
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an equivalent form of currency, provide a security in real
property, or undertake bail using a bail bond. The bail bond
is the most likely means by which a person posts bail and is
essentially a private-party contract that provides the court
with a guarantee that the defendant will appear for a hearing
or trial. A defendant would pay a licensed bail agent a
percentage of the total amount of bail ordered as a
non-refundable fee - often an amount in the range of 10%. The
bail agent will contract with a surety company to issue a bail
bond - essentially an insurance policy. The bond is issued
providing that if the defendant fails to appear, the county
will receive the full amount of bail set by the court. The
bond is provided to the court and, if accepted, the defendant
is released. As designed, the bail system often allows the
court to rely on the private sector to ensure appearances and
provide a means for the county to be made whole in the event
that a person fails to appear.
4)Arguments in Support :
a) According to the American Bail Coalition (the sponsor of
this bill), "Unfortunately, it is not clear under
realignment that a bail procedure is set up for those who
violate the conditions of post-release community
supervision. To resolve this issue, AB 723 creates a
process for those who are incarcerated awaiting their
revocation proceeding to seek bail. The procedures would
be the same as pre-trial bail and as such would provide the
opportunity under the appropriate circumstances, with all
due consideration for public safety, for individuals to get
back to their families, jobs, etc. and not take up valuable
bed space in our county jails."
b) According to the California Attorneys on Criminal
Justice , "Although realignment is making progress in
reducing overcrowding in our state prisons, it has also
placed increased pressure on county jails. AB 723 offers
an option to alleviate some of this pressure by allowing
certain individuals to apply for bail, rather than taking
up much-needed bed space in the jails. This bill provides
a narrow instance in which an individual can petition for
bail, with sufficient oversight to protect public safety
interests."
5)Arguments in Opposition :
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a) According to the Chief Probation Officers of California
(CPOC) , "Existing law allows the revocation of postrelease
supervision by a revocation hearing officer, appointed by
the court, upon a finding that the person has violated the
conditions of postrelease supervision.
"While we share the same concerns as it relates to available
space in county jails, CPOC takes into account that once an
inmate has violated the conditions of their release, they
have already exhausted and taken all steps with regard to
treatment services and other rehabilitative resources
available to them. In this scenario revocation is the last
resort. The law requires probation to exhaust all other
options so by the time they are in a revocation proceeding,
they would not likely qualify for bail."
b) According to the California District Attorneys
Association , "[W]e feel AB 723 is unnecessary because there
is no bar, statutory or otherwise, to prevent a supervised
person from seeking, or a court from granting, bail when a
petition to revoke PRCS is filed. The case is the same for
parolees. There is no specific statute that allows a court
to release a parolee facing a petition for revocation on
bail, nor is there a statute that prohibits the granting of
bail in such a case.
"Additionally, we are concerned that such a statute would
encourage courts to grant bail in these cases. We fear
this prospect given that it is likely that a person facing
a PRCS revocation petition has already received
intermediate sanctions and for whom revocation is a 'last
resort,' making release on bail pending that petition
potentially inappropriate."
6)Related Legislation :
a) AB 805 (Jones-Sawyer) provides that in setting,
reducing, or denying bail, a court may consider the report
of staff employed for the purpose of investigating and
recommending whether or not a defendant should be released
on his or her own recognizance. AB 803 is pending hearing
in this Committee.
b) AB 1118 (Hagman) requires the Department of Justice to
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annually prepare a statewide bail schedule for all felony
and misdemeanor offenses, and requires courts to consider
the statewide bail schedule when adopting a countywide
schedule. AB 1118 is pending hearing by this Committee.
7)Prior Legislation :
a) AB 1913 (Skinner), of the 2011-12 Legislative Session,
would have allowed a person on PRCS with a pending
revocation petition to make an application for bail pending
the revocation hearing. AB 1913 was held on the Senate
Appropriations Committee's Suspense File.
b) AB 109 (Committee on Budget), Chapter 15, Statutes of
2011, created the Postrelease Community Supervision Act,
which provides, among other things, that inmates released
from prison who are not required to be on parole are
subject to up to three years of local supervision.
c) AB 117 (Committee on Budget), Chapter 39, Statutes of
2011, amended some provisions of the Postrelease Community
Supervision Act.
REGISTERED SUPPORT / OPPOSITION :
Support
American Bail Coalition (Sponsor)
California Attorneys for Criminal Justice
Golden State Bail Agents Association
Two Jinn, Inc. dba Aladdin Bail Bonds
Opposition
California District Attorneys Association
California Probation, Parole and Correctional Association
Chief Probation Officers of California
Analysis Prepared by : Stella Choe / PUB. S. / (916) 319-3744