BILL ANALYSIS                                                                                                                                                                                                    







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              A
                             2013-2014 Regular Session               B

                                                                     8
                                                                     0
                                                                     5
          AB 805 (Jones-Sawyer)                                       
          As Introduced February 21, 2013 
          Hearing date:  May 14, 2013
          Penal Code
          JM:mc

                                     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?




                                                                     (More)







                                                      AB 805 (Jones-Sawyer)
                                                                      PageB



                                       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  




                                                                     (More)







                                                      AB 805 (Jones-Sawyer)
                                                                      PageC

          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  









                                                                     (More)







                                                      AB 805 (Jones-Sawyer)
                                                                      PageD

          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  
          ---------------------------
          <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.   




                                                                     (More)







                                                      AB 805 (Jones-Sawyer)
                                                                      PageE

          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,  




                                                                     (More)







                                                      AB 805 (Jones-Sawyer)
                                                                      PageF

          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:




                                                                     (More)







                                                      AB 805 (Jones-Sawyer)
                                                                      PageG


               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.  
           




                                                                     (More)







                                                      AB 805 (Jones-Sawyer)
                                                                      PageH

          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.) 































                                                                     (More)










          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.





                                                                     (More)







                                                      AB 805 (Jones-Sawyer)
                                                                      PageJ

          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  












                                                      AB 805 (Jones-Sawyer)
                                                                      PageK

               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.  


                                   ***************

















          ---------------------------
          <2> http://www.ppic.org/main/publication_quick.asp?i=1034.