BILL ANALYSIS Ó
AB 805
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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