BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 805
                                                                  Page  1

          Date of Hearing:  April 9, 2013
          Counsel:       Stella Choe


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

               AB 805 (Jones-Sawyer) - As Introduced  February 21, 2013
           
           
           SUMMARY  :  Provides that in setting bail, a judge or magistrate  
          may consider the report prepared by investigative staff for the  
          purpose of recommending whether a defendant should be released  
          on his or her own recognizance (OR).  

           EXISTING LAW  :

          1)States that in setting, reducing, or denying bail, the judge  
            or magistrate shall take into consideration the protection of  
            the public, the seriousness of the offense charged, the  
            previous criminal record of the defendant, and the probability  
            of his or her appearing at trail or hearing of the case.  The  
            public safety shall be the primary consideration.  [Penal Code  
            Section 1275(a).]

          2)States that in considering the seriousness of the offense  
            charged, the judge or magistrate shall include consideration  
            of the alleged injury to the victim, and alleged threats to  
            the victim or a witness to the crime charged, the alleged use  
            of a firearm or other deadly weapon in the commission of the  
            crime charged, and the alleged use or possession of controlled  
            substances by the defendant.  [Penal Code Section 1275(a).]

          3)Specifies in considering specified offenses involving  
            controlled substances, the judge or magistrate shall consider  
            the following [Penal Code Section 1275(b)]:

             a)   The alleged amounts of controlled substances involved in  
               the commission of the offense; and,

             b)   Whether the defendant is currently released on bail for  
               one of the specified offenses involving controlled  
               substances.

          4)Provides that before a court reduces bail below the amount  








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            established by the bail schedule approved for the county for a  
            person charged with a serious felony listed in subdivision (c)  
            of Penal Code Section 1192.7, or a violent felony listed in  
            subdivision (c) of Penal Code Section 667.5, the court shall  
            make a finding of unusual circumstances and set forth those  
            facts on the record.  For purposes of this subdivision,  
            "unusual circumstances" does not include the fact that the  
            defendant has made all prior court appearances or has not  
            committed any new offenses.  [Penal Code Section 1275(c).]

          5)Authorizes a court, with the concurrence of the board of  
            supervisors, to employ an investigative staff for the purpose  
            of recommending whether a defendant should be released on OR.   
            [Penal Code Section 1318.1(a).]

          6)States that whenever a court has employed investigative staff  
            for the purpose of recommending whether a defendant should be  
            released on OR, an investigative report shall be prepared in  
            all cases involved a violent felony listed in subdivision (c)  
            of Penal Code Section 667.5, or a felony violation of driving  
            under the influence and causing bodily injury to another  
            person, recommending whether the defendant should be released  
            on OR.  The report shall include all of the following [Penal  
            Code Section 1318.1(b)]:

             a)   Written verification of any outstanding warrants against  
               the defendant;

             b)   Written verification of any prior incidents where the  
               defendant has failed to make a court appearance;

             c)   Written verification of the criminal record of the  
               defendant; and,

             d)   Written verification of the residence of the defendant  
               during the past year.

          7)Makes it a felony for every person who is charged with or  
            convicted of the commission of a felony, who is released from  
            custody on bail, and who in order to evade the process of the  
            court willfully fails to appear as required.  Upon a  
            conviction under this section, a person shall be punished by a  
            fine bot to exceed ten thousand dollars ($10,000) or by  
            imprisonment in the county jail for not more than one year, or  
            by both the fine and imprisonment.  Willful failure to appear  








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            within 14 days of the date assigned for appearance may be  
            found to have been for the purpose of evading the process of  
            the court.  (Penal Code Section 1320.5.)

           FISCAL EFFECT  :   Unknown

          COMMENTS  :   

           1)Author's Statement  :  According to the author, "There is  
            confusion as to whether risk assessment reports can only be  
            used to determine a defendant's suitability for release on  
            their own recognizance (OR) in non-felony cases.  Bail and OR  
            are both forms of pretrial release and while bail is a more  
            secure form of pretrial release, all forms of pretrial release  
            are concerned with the same risk factors, e.g. the risk of the  
            defendants failing to appear in court and/or reoffending while  
            on pretrial release.  AB 805 clarifies that judges may use  
            risk assessment reports in setting, reducing or denying bail."

           2)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  
            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 pays 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.  
           
           3)Argument in Support  :  According to  Golden State Bail Agents  








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            Association (GSBAA)  ,   "GSBAA supports AB 805 because it  
            clarifies that judges can use risk assessment reports in  
            setting, reducing or denying bail. Currently, there is  
            confusion as to whether these risk assessment reports can only  
            be used to determine a defendant's suitability for release on  
            his or her own recognizance (OR).  Bail and OR are both forms  
            of pretrial release and while bail is a more secure form of  
            pretrial release, all forms of pretrial release are concerned  
            with the same risk factors, e.g. the risk of the defendant  
            failing to appear in court and/or reoffending while on  
            pretrial release."

           4)Argument in Opposition  :   Aladdin Bail Bonds  writes, "[W]e must  
            oppose . . . AB 805 as it is premised on the false assumption  
            that pretrial service programs are effective.  As a result,  
            your bill will create a serious public safety threat if judges  
            rely on pretrial service reports in setting or reducing bail.

          "The simple fact is that bail works. It is by far the most  
            effective mechanism for ensuring that defendants return to  
            court so that criminal justice system can work efficiently.   
            And best of all, it is absolutely free to taxpayers.   
            Moreover, the investigation and underwriting process used by  
            reputable companies in the bail industry helps to prevent  
            violent tragedies . . . Before writing bail bonds for  
            defendants, bail companies establish a network of involved and  
            caring family members and friends, all of whom work together  
            with the bail agent to ensure the defendant not only returns  
            to court, but does not reoffend in the interim."

           5)Related Legislation  :  

             a)   AB 723 (Quirk) allows a person on post-release community  
               supervision who has a revocation petition filed against him  
               or her to file an application for bail with the superior  
               court.  AB 723 is pending hearing by the Committee on  
               Appropriations.

             b)   AB 1188 (Hagman) requires the Judicial Council to  
               prepare, adopt, and annually revise a statewide bail  
               schedule for all bailable felony offenses and for all  
               misdemeanor and infraction offenses except as provided, and  
               requires a court to consider that statewide bail schedule  
               when adopting a uniform countywide schedule.  AB 1118 is  
               pending hearing by this Committee.








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             c)   SB 210 (Hancock) authorizes a court to determine at  
               arraignment, with public safety as the primary  
               consideration, whether a defendant charged with a jail  
               felony is eligible for release on OR.  SB 210 is pending  
               hearing by the Senate Committee on Public Safety.

           6)Prior Legislation  : 

             a)   SB 210 (Hancock), of the 2011-12 Legislative Session,  
               was substantially similar to SB 210, re-introduced this  
               year by Senator Hancock.  SB 210 failed passage on the  
               Assembly Floor.

             b)   AB 1913 (Skinner), of the 2011-12 Legislative Session,  
               would have allowed a person on post-release community  
               supervision who has a revocation petition filed against him  
               or her to file an application for bail with the superior  
               court.  AB 1913 was held on the Senate Appropriations'  
               Suspense file.

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          California Attorneys for Criminal Justice
          Golden State Bail Agents Association

           Opposition 
          
          Two Jinn, Inc. dba Aladdin Bail Bonds  


          Analysis Prepared by  :    Stella Choe / PUB. S. / (916) 319-3744