BILL NUMBER: SB 210 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Hancock
FEBRUARY 11, 2013
An act to amend Sections 1270, 1275, and 1318.1 of the Penal Code,
relating to criminal procedure.
LEGISLATIVE COUNSEL'S DIGEST
SB 210, as introduced, Hancock. Criminal procedure: release on
defendant's own recognizance.
(1) Existing law provides that a defendant who is in custody and
arraigned for a misdemeanor offense, or who has been arrested upon an
out-of-county warrant arising from a case involving only
misdemeanors, is entitled to be released on his or her own
recognizance unless the court finds that the release will compromise
public safety or will not reasonably ensure the appearance of the
defendant, in which case the court is required to set bail and
specify conditions, if any, for release.
This bill would authorize a court to determine, at the time of
arraignment in any case that is before a court concerning the
commission of a felony punishable by imprisonment in a county jail,
whether a defendant who is still in custody may be released on his or
her own recognizance. In making this decision, the bill would
require the court to determine whether the release will compromise
public safety. The bill would authorize the court to consider, in its
discretion, imposing on the defendant any reasonable conditions it
deems appropriate, and would authorize the court to require
supervision by any designated local agency, to ensure public safety
and to ensure the defendant's appearance. The bill would require the
court to set bail if release will compromise public safety or will
not reasonably ensure the appearance of the defendant.
(2) Existing law requires a judge or magistrate, in setting,
reducing, or denying bail, to take into consideration the protection
of the public, the seriousness of the offense, the defendant's
previous criminal record, and the probability of the defendant
appearing at trial or a hearing.
This bill would revise the factors that the judge or magistrate
would be required to consider to, among other things, require the
judge or magistrate to consider the history and characteristics of
the defendant, and to consider the nature and circumstances of the
offense. The bill would require a judge or magistrate to also
consider those factors when determining conditions for pretrial
release.
(3) Existing law authorizes a court, with the concurrence of the
county board of supervisors, to employ an investigative staff for the
purpose of recommending whether a defendant should be released on
his or her own recognizance. In cases involving certain crimes,
including violent felonies, an investigative report is required to be
prepared that includes specified information, including outstanding
warrants against the defendant and prior incidents where the
defendant has failed to make a court appearance.
This bill would also authorize a sheriff, county probation
department, or other local governmental agency, with the concurrence
of the board of supervisors, to employ an investigative staff for
those purposes, and would require a pretrial investigative report to
be prepared before a court may order a defendant released on his or
her own recognizance in any case involving specified crimes,
including a violent felony. The bill would authorize the preparation
of a pretrial investigation report in all other cases in which a
court, sheriff, county probation department, or other local
governmental agency has employed an investigative staff to recommend
whether the defendant should be released on his or her own
recognizance. The bill would require any pretrial investigative
report to include the results of an evidence-based pretrial risk
assessment, as defined, evaluating the defendant's probability of
appearing at trial and potential risk to public safety. The bill
would prohibit, for purposes of preparing the report, a defendant
from being interviewed about the facts and circumstances of the
defendant's current offense. The bill would authorize a court,
sheriff, county probation department, or other local governmental
agency, with the concurrence of the board of supervisors, to employ
supervision staff to monitor a defendant's compliance with release
conditions ordered by the court, as specified.
(4) Existing constitutional provisions require that a statute that
limits the right of access to meetings of public bodies or the
writings of public officials and agencies be adopted with findings
demonstrating the interest protected by that limitation and the need
for protecting that interest.
This bill would make legislative findings and declarations
relating to, among other things, the necessity of treating pretrial
investigation reports as confidential in order for pretrial programs
to function properly.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares all of the
following:
(a) Pretrial custody reform is urgently needed in California,
where the pretrial population far exceeds the national average of 61
percent. More than 71 percent of the 71,000 Californians held in
county jails statewide on any given day are awaiting trial.
(b) Pretrial custody reform will support the implementation of
public safety realignment by providing counties greater flexibility
in managing their pretrial populations using best practices developed
over many years across many jurisdictions.
(c) Pretrial services programs have been successfully implemented
in many jurisdictions, and have helped to reduce the pretrial jail
populations, save money, reduce recidivism, and protect the public.
(d) Increasing the use of evidence-based practices in pretrial
population management programs will allow better empirical analysis
in pretrial decisions, and will help to ensure that the court's
decision to order release, conditions of release, and bail is based
on a credible assessment of the defendant's risk to public safety and
the likelihood of appearance as required.
(e) In order for pretrial programs to function properly and to
protect the rights of persons submitting sensitive information, it is
essential to treat pretrial investigation reports as confidential so
the reports are used only for release, bail, and monitoring
considerations.
SEC. 2. Section 1270 of the Penal Code is amended to read:
1270. (a) Any person who has been arrested for, or charged with,
an offense other than a capital offense may be released on his or her
own recognizance by a court or magistrate who could release a
defendant from custody upon the defendant giving bail, including a
defendant arrested upon an out-of-county warrant. A defendant who is
in custody and is arraigned on a complaint alleging an offense which
is a misdemeanor, and a defendant who appears before a court or
magistrate upon an out-of-county warrant arising out of a case
involving only misdemeanors, shall be is
entitled to an own recognizance release unless the court makes
a finding on the record, in accordance with Section 1275, that an own
recognizance release will compromise public safety or will not
reasonably assure the appearance of the defendant as required. Public
safety shall be the primary consideration. If the court makes one of
those findings, the court shall then set bail and
specify the conditions, if any, whereunder the defendant shall be
released.
(b) The court shall determine, at the time of arraignment, whether
a defendant who is still in custody, and is charged with a felony,
the sentence for which may be served in a county jail pursuant to
subdivision (h) of Section 1170, is eligible for release on his or
her own recognizance and to be ordered to appear, as required. Public
safety shall be the primary consideration in this determination. In
granting an own recognizance release, a court may consider, in its
discretion, imposing on the defendant any reasonable conditions it
deems appropriate, and may require supervision by any designated
local agency, to ensure public safety and to ensure the defendant's
appearance.
(c) If the judge or magistrate finds that release pursuant to
subdivision (b) will compromise public safety or will not reasonably
ensure the appearance of the defendant, as required, the court shall
then set bail as is reasonably necessary to ensure the appearance of
the defendant. A judge or magistrate may set bail in an amount less
than what is specified in the county bail schedule, where he or she
determines that the amount specified in the county bail schedule is
higher than necessary to reasonably ensure the appearance of the
defendant. In making this determination, the court may consider
information included in a pretrial services report, prepared in
accordance with Section 1318.1, if one is available.
(b)
(d) Article 9 (commencing with Section 1318) shall
apply to any person who is released pursuant to this section.
SEC. 3. Section 1275 of the Penal Code is amended to read:
1275. (a) In determining conditions for pretrial releas
e, and in setting, reducing, or denying bail, the
judge or magistrate shall , on the available information,
take into consideration the protection of the public, the
seriousness nature and circumstances of the
offense charged, the history and characteristics of
the defendant, the previous criminal record of the defendant,
including whether the defendant was, at the time of arrest for
the charged offense, on probation, parole, or other form of release
pending trial, sentencing, or appeal, and the probability of
his or her appearing at trial or hearing of the case , including
the defendant's record of appearance at past court hearings or of
flight to avoid arrest or prosecution . The public
Public safety shall be the primary
consideration.
(b) In considering the history and characteristics of the
defendant, the judge or magistrate may consider any of the following:
(1) The ties of the defendant to the community, including his or
her employment, the duration of his or her residence, and the
defendant's family attachments.
(2) The defendant's current educational or vocational program
enrollment and participation.
(3) The physical and mental condition of the defendant and the
defendant's history related to dependence on alcohol or controlled
substances, including past and current participation in substance
abuse programs and counseling.
(c) In considering the seriousness
nature and circumstances 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.
(b)
(d) In considering offenses wherein a violation of
Chapter 6 (commencing with Section 11350) of Division 10 of the
Health and Safety Code is alleged, the judge or magistrate shall
consider the following: (1) the alleged amounts of controlled
substances involved in the commission of the offense, and (2) whether
the defendant is currently released on bail for an alleged violation
of Chapter 6 (commencing with Section 11350) of Division 10 of the
Health and Safety Code.
(c)
(e) Before a court reduces bail below the amount
established by the bail schedule approved for the county, in
accordance with subdivisions (b) and (c) of Section 1269b, for a
person charged with a serious felony, as defined in subdivision (c)
of Section 1192.7, or a violent felony, as defined in subdivision (c)
of Section 667.5, the court shall make a finding of unusual
circumstances and shall 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.
SEC. 4. Section 1318.1 of the Penal Code is amended to read:
1318.1. (a) A court, sheriff, county probation department,
or other local governmental agency, with the concurrence of the
board of supervisors, may employ an investigative staff for the
purpose of recommending whether a defendant should be released on his
or her own recognizance.
(b) Whenever a court , sheriff, county probation department,
or other local governmental agency has employed an
investigative staff pursuant to subdivision (a), an
investigative report shall be prepared in all cases
before a court may order a defendant released on his or her own
recognizance in any case involving a violent felony, as
described in subdivision (c) of Section 667.5, or a felony in
violation of subdivision (a) of Section 23153 of the Vehicle Code,
a pretrial investigative report shall be prepared
recommending whether the defendant should be released on his or her
own recognizance. The report shall include all of the following:
(1) Written verification of any outstanding warrants against the
defendant.
(2) Written verification of any prior incidents where the
defendant has failed to make a court appearance.
(3) Written verification of the criminal record of the defendant.
(4) Written verification of the residence of the defendant during
the past year.
After the report is certified pursuant to this subdivision, it
shall be submitted to the court for review, prior to a hearing held
pursuant to Section 1319.
(c) Whenever a court, sheriff, county probation department, or
other local governmental agency has employed an investigative staff
pursuant to subdivision (a), a pretrial investigation report may be
prepared in any case not involving a violent felony, as described in
subdivision (c) of Section 667.5, or a felony in violation of
subdivision (a) of Section 23153 of the Vehicle Code, recommending
whether the defendant should be released on his or her own
recognizance. Only one agency authorized pursuant to subdivision (a)
shall issue a pretrial investigation report.
(d) Any report prepared pursuant to subdivision (b) or (c) shall
include all of the results of an evidence-based pretrial risk
assessment evaluating the defendant's probability of appearing at
trial and potential risk to public safety. "Evidence-based pretrial
risk assessment" is the objective, standardized analysis of
information about a pretrial defendant in a way that is consistent
with and guided by the best available scientific evidence and
professional knowledge that measures the risk of the defendant's
probability of appearing at trial and the potential risk to public
safety while pending case disposition.
(e) In preparing the report pursuant to subdivision (b) or (c),
the defendant shall not be interviewed about the facts and
circumstances of the current offense, and any information that a
defendant may provide shall not be included in the report. Any
information provided by the defendant shall be used solely for the
purposes of determining whether the defendant should be released on
his or her own recognizance or in setting the conditions of the
defendant's release or modifying a prior release order. The reports
may be filed as part of the case record.
(f) A court, sheriff, county probation department, or other local
governmental agency may, with the concurrence of the board of
supervisors, employ supervision staff to monitor the defendant's
compliance with the release conditions ordered by the court.
Supervision staff may do any of the following:
(1) Notify the defendant of court appearance obligations.
(2) Require the defendant to report periodically by mail,
telephone, or personal appearance to verify compliance with release
conditions.
(3) Monitor and assist the defendant with complying with release
conditions.
(4) Supervise a defendant placed on home detention, with or
without electronic monitoring, as a condition of release.
(5) Promptly report violations of release conditions to the court.
(6) Provide information to assist any law enforcement officer with
detaining a defendant supervised pursuant to this section and for
whom a bench warrant has been issued.
(c)
(g) The salaries of the staff are a proper charge
against the county.