BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
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AB 805 (Jones-Sawyer)
As Introduced February 21, 2013
Hearing date: May 14, 2013
Penal Code
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BAIL SETTING
CONSIDERATION OF REPORT ON OWN RECOGNIZANCE RELEASE
HISTORY
Source: Author
Prior Legislation: SB 1180 (Hancock) - 2012, died on the Senate
Floor
Support: Golden State Bail Agents Association; California
Attorneys for Criminal Justice; Peace Officers Research
Association of California; Taxpayers for Improving
Public Safety
Opposition:Aladdin Bail Bonds
Assembly Floor Vote: Ayes 77 - Noes 0
KEY ISSUE
IN SETTING THE AMOUNT OF BAIL, SHOULD A COURT BE AUTHORIZED TO
CONSIDER THE REPORT CONCERNING WHETHER OR NOT THE DEFENDANT SHOULD
BE RELEASED ON HIS OR HER OWN RECOGNIZANCE?
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PURPOSE
The purpose of this bill is to provide that a judge or
magistrate may consider the report prepared by investigative
staff for the purpose of recommending whether or not a defendant
should be released on his or her own recognizance.
Existing law provides 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 trial or hearing of the
case. The public safety shall be the primary consideration.
(Pen. Code § 1275, subd. (a).)
Existing law provides 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. (Pen.
Code § 1275, subd. (a).)
Existing law provides in considering specified offenses
involving controlled substances, the judge or magistrate shall
consider the following:
the alleged amounts of controlled substances involved in
the commission of the offense; and,
whether the defendant is currently released on bail for
one of the specified offenses involving controlled
substances. (Pen. Code § 1275, subd. (b).)
Existing law provides that before a court reduces bail below the
amount 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
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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. (Pen. Code § 1275, subd. (c).)
Existing law 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 his or her own recognize (OR). (Pen. Code § 1318.1, subd.
(a).)
Existing law 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:
written verification of any outstanding warrants against
the defendant;
written verification of any prior incidents where the
defendant has failed to make a court appearance;
written verification of the criminal record of the
defendant; and
written verification of the residence of the defendant
during the past year. (Pen. Code § 1318.1, subd. (b).)
Existing law provides that any person released on bail who is
charged with or convicted of a felony who thereafter willfully
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fails to appear is guilty of an alternate felony-misdemeanor<1>
and shall be punished by a fine not to exceed ten thousand
dollars ($10,000), or by imprisonment pursuant to Penal Code
Section 1170, subdivision (h), or by imprisonment in the county
jail for not more than one year, or by both the fine and
imprisonment. (Pen. Code § 1320.5.)
Existing law provides that numerous, specified felonies are
punishable by a term of imprisonment in county jail - not prison
- unless the crime of conviction or the defendant's criminal
history makes the defendant ineligible for serving his or her
felony sentence in jail. (Pen. Code § 1170 subd. (h).)
Existing law provides, however, that certain felons are
categorically prohibited from serving an executed felony
sentence in county jail. These include the following persons:
The defendant has a prior or current felony conviction
for:
o a serious felony described in subdivision (c) of
Section 1192.7, or
o a violent felony described in subdivision (c) of
Section 667.5;
The defendant has a prior felony conviction in another
jurisdiction for an offense that has all the elements of a
serious or violent felony in California, as specified;
The defendant is required to register as a sex offender;
or
The defendant is convicted of a crime and as part of the
sentence receives an aggravated while collar crime
enhancement, as specified. (Pen. Code § 1170, subd.
(h)(3).)
This bill 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
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<1> Penal Code Section 1320.5 states that willful failure to
appear in a felony matter is a felony. However, the actual
punishment provision describes an alternate felony-misdemeanor.
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on his or her own recognizance.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy known as "ROCA" (which
stands for "Receivership/ Overcrowding Crisis Aggravation"), the
Committee held measures which created a new felony, expanded the
scope or penalty of an existing felony, or otherwise increased
the application of a felony in a manner which could exacerbate
the prison overcrowding crisis. Under these principles, ROCA
was applied as a content-neutral, provisional measure necessary
to ensure that the Legislature did not erode progress towards
reducing prison overcrowding by passing legislation which would
increase the prison population. ROCA necessitated many hard and
difficult decisions for the Committee.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order issued by the Three-Judge Court three years
earlier to reduce the state's prison population to 137.5 percent
of design capacity. The State submitted in part that the, ". .
. population in the State's 33 prisons has been reduced by over
24,000 inmates since October 2011 when public safety realignment
went into effect, by more than 36,000 inmates compared to the
2008 population . . . , and by nearly 42,000 inmates since 2006
. . . ." Plaintiffs, who opposed the state's motion, argue in
part that, "California prisons, which currently average 150% of
capacity, and reach as high as 185% of capacity at one prison,
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continue to deliver health care that is constitutionally
deficient." In an order dated January 29, 2013, the federal
court granted the state a six-month extension to achieve the
137.5 % prisoner population cap by December 31st of this year.
In an order dated April 11, 2013, the Three-Judge Court denied
the state's motions, and ordered the state of California to
"immediately take all steps necessary to comply with this
Court's . . . Order . . . requiring defendants to reduce overall
prison population to 137.5% design capacity by December 31,
2013."
The ongoing litigation indicates that prison capacity and
related issues concerning conditions of confinement remain
unresolved. However, in light of the real gains in reducing the
prison population that have been made, although even greater
reductions are required by the court, the Committee will review
each ROCA bill with more flexible consideration. The following
questions will inform this consideration:
whether a measure erodes realignment;
whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
whether a bill corrects a constitutional infirmity or
legislative drafting error;
whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and
whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
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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 About Bail
Statutory law provides a process whereby the court may set a
bail amount for a criminal defendant. (Pen. Code § 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. A bail bond is essentially a 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 then contracts 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.
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While the main purpose of a bail bond is to provide some
assurance that a defendant will return to court to resolve the
pending charges, courts also consider the danger a released
defendant will pose to the public or specific persons. Bail is
set through a bail schedule that lists preset amounts of bail
for various crimes. A committee of judges in each county
promulgates the bail schedule for that county. (Pen. Code §
1269b, subd. (c).) A defendant or the prosecution can move the
judge presiding over a particular case to raise or lower the
amount of bail, or the defendant can request release on his or
her own recognizance. (Pen. Code § 1275.) Additional statutory
rules apply if the defendant is charged with a serious felony or
domestic violence. (Pen. Code § 1270.1.)
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3. Reports Concerning Own Recognizance Release
In cases where the defendant is likely to return to court and
where the safety of the public or specific persons will not be
put at risk, a court can release someone on his or her own
recognizance (OR). An OR release is essentially release without
payment of bail pending trial or other resolution of a criminal
case. Defendants who cannot afford bail and who do not obtain
an OR release will remain in custody pending trial, regardless
of whether they would return to court or present a danger to
others.
Existing law authorizes a court, with approval of the board of
supervisors, to employ a staff to recommend whether or not to
grant a defendant an OR release. The governing statute directs
the investigate staff to research and present to the court
whether the defendant has any outstanding warrants, his or her
prior failures to appear in court, criminal record and
residence. While these matters must be included in the report,
the report will likely include the defendant's ties to the
community, including employment, educational program and
numerous other matters. Unlike decisions on bail, the court has
a neutral and objective report to consider in granting or
denying an OR release. Hearings to set, decrease or increase
bail are often adversarial hearings where the defense counsel
and the prosecutor make very different claims as to the amount
of bail that is reasonable or necessary. While the arguments of
defense counsel and the prosecutor would not be eliminated under
this bill, the court would have an additional source of
information to consider in setting bail. Further, once the
court sets bail, the bail agent can do his or her investigation
of the risk of providing the defendant with a bond.
It appears that the subjects considered in an OR investigative
report are relevant to decisions concerning bail. A defendant
with strong ties to the community and with little or no criminal
record may be a good candidate for reduced bail. The court may
wish to set higher bail for a person with a long criminal
history and few ties to the community.
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SHOULD REPORTS CONCERNING A DEFENDANT'S POTENTIAL RELEASE ON HIS
OR HER OWN RECOGNIZANCE BE AVAILABLE TO A COURT IN SETTING BAIL?
4. Argument in Support
According to Golden State Bail Agents 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.
5. Argument in Opposition
According to Aladdin Bail Bonds:
[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
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returns to court, but does not reoffend in the
interim.
6. Jail Population Issues
A report from the Public Policy Institute of California found
that in December of 2011 approximately 65% of jail inmates were
awaiting trial or other resolution of their cases.<2> After
realignment counties must find room in jail for sentenced
felons, including counties with crowded jails.
The two main ways that counties manage the population of
pre-trial and pre-sentence inmates are to grant release on bail
or release on OR. As noted in Comment # 3 above, this bill
could give judges who set bail additional information from a
neutral source about a defendant seeking release. Judges could
then perhaps make better decisions about bail, including
thorough consideration of matters other than the crime charged
against the defendant thus giving the courts and counties more
control over jail populations and reducing the number of
defendants who will abscond and face additional imprisonment for
the crime of failing to appear.
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<2> http://www.ppic.org/main/publication_quick.asp?i=1034.