BILL ANALYSIS
AB 688
Page 1
Date of Hearing: April 14, 2009
Counsel: Kimberly A. Horiuchi
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 688 (Eng) - As Introduced: February 26, 2009
PENDING WAIVER OF FOUR-DAY FILE NOTICE
SUMMARY : Clarifies that a peace officer may not release a
person on his or her own recognizance, as specified, when
arrested for a misdemeanor violation of a domestic violence
protective order.
EXISTING LAW :
1)States in any case in which a person is arrested for an
offense declared to be a misdemeanor, including a violation of
any city or county ordinance, and does not demand to be taken
before a magistrate, that person shall, instead of being taken
before a magistrate, be released according to the procedures,
as specified. If the person is released, the officer or his
or her superior shall prepare in duplicate a written notice to
appear in court, containing the name and address of the
person, the offense charged, and the time when, and place
where, the person shall appear in court. If, pursuant to
existing law, the person is not released prior to being booked
and the officer in charge of the booking or his or her
superior determines that the person should be released, the
officer or his or her superior shall prepare a written notice
to appear in a court. [Penal Code Section 853.6(a).]
2)Provides that in any case in which a person is arrested for a
misdemeanor violation of a protective court order involving
domestic violence, as defined in existing law, or arrested
pursuant to a policy, as specified, the person shall be taken
before a magistrate instead of being released according to the
procedures set forth in this chapter, unless the arresting
officer determines that there is not a reasonable likelihood
that the offense will continue or resume or that the safety of
persons or property would be imminently endangered by release
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of the person arrested. Prior to adopting these provisions,
each city, county, or city and county shall develop a protocol
to assist officers to determine when arrest and release is
appropriate, rather than taking the arrested person before a
magistrate. The county shall establish a committee to develop
the protocol, consisting of, at a minimum, the police chief or
county sheriff within the jurisdiction, the district attorney,
county counsel, city attorney, representatives from domestic
violence shelters, domestic violence councils, and other
relevant community agencies. Nothing in this provision shall
be construed to affect a defendant's ability to be released on
bail or on his or her own recognizance. [Penal Code Section
853.6(b).]
3)Provides that before any person who is arrested for any of the
following crimes may be released on bail in an amount that is
either more or less than the amount contained in the schedule
of bail for the offense, or may be released on his or her own
recognizance, a hearing shall be held in open court before the
magistrate or judge: a serious felony, as specified, or a
violent felony, as specified, but not including a residential
burglary; a violation of felony witness intimidation, spousal
rape, domestic violence, felony criminal threats or stalking,
as specified, battery on a person in a dating relationship;
and, violation of a domestic violence restraining order if the
detained person made threats to kill or harm, has engaged in
violence against, or has gone to the residence or workplace
of, the protected party. [Penal Code Section 1207.1(a)(1) to
(4).]
4)Requires that law enforcement written policies encourage the
arrest of domestic violence offenders if there is probable
cause that an offense has been committed. These policies also
shall require the arrest of an offender, absent exigent
circumstances, if there is probable cause that a protective
order issued, or by a court of any other state, a
commonwealth, territory, or insular possession subject to the
jurisdiction of the United States, a military tribunal, or a
tribe has been violated. These policies shall discourage,
when appropriate, but not prohibit, dual arrests. Peace
officers shall make reasonable efforts to identify the
dominant aggressor in any incident. The dominant aggressor is
the person determined to be the most significant, rather than
the first, aggressor. In identifying the dominant aggressor,
an officer shall consider the intent of the law to protect
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victims of domestic violence from continuing abuse, the
threats creating fear of physical injury, the history of
domestic violence between the persons involved, and whether
either person acted in self-defense. These arrest policies
shall be developed, adopted, and implemented by July 1, 1996.
Law enforcement agencies shall develop these policies with the
input of local domestic violence agencies. [Penal Code
Section 13701(a).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Current law
requires a person charged with a misdemeanor for domestic
violence to appear before a judge or commissioner in order to
have the facts relevant to the arrest reviewed and determine
whether the person is a threat to the alleged victim or to the
public. However, there are discrepancies in state law that
potentially allow for the release of a person charged without
ever appearing before a judge or commissioner. Far too many
adults and children continue to live in fear from their
assailants. AB 688 will make sure that all persons charged are
screened properly before they're put back on the street. No
one should have to live their life while constantly looking
over their shoulder."
2)Existing Law Related to Own Recognizance Release : Existing
law states that any person who is arrested for a misdemeanor
need not be taken before a magistrate and may be released on
his or her promise to appear in court when required. [Penal
Code Section 853.6(a).] If a person is arrested for a
misdemeanor violation of a protective order involving domestic
violence, as specified, the arrestee must be taken before the
court before he or she may be released from custody. However,
this is not the case where the arresting officer determines
that there is not a reasonable likelihood that the offense
will continue or resume or that the safety or persons or
property would imminently endangered by release. [Penal Code
Section 853.6(a).] Penal Code Section 1270.1 prohibits the
arresting officer from releasing an arrestee prior to
arraignment for certain specified violent crimes. "Before any
person who is arrested for [certain specified crimes] may be
released on bail in an amount that is either more or less than
the amount contained in the schedule of bail for the offense,
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or may be released on his or her own recognizance, a hearing
shall be held in open court before a judge." [Penal Code
Section 1270.1(a)(1) to (4).] Two of the offenses for which a
person may not be released pursuant to Penal Code Section
853.6 is battery on a person in a dating relationship and
violating a domestic violence retraining order. [Penal Code
Section 243(e)(1); Penal Code Section 273.6(a).] Penal Code
Section 1270.1 does not authorize the arresting officer to use
discretion in releasing an offender.
3)Arguments in Support : According to the Los Angeles County
Sheriff's Department , "California Penal Code Section 853.6
pertains to misdemeanor arrest procedures. Most misdemeanor
arrestees are released on their own recognizance. Under this
section, the release of a suspect who was arrested for
misdemeanor domestic violence would fall under the discretion
of the arresting officer. Under California Penal Code Section
1270.1, which is a more contemporary section than 853.6, it
states that an individual arrested for misdemeanor domestic
violence [and it specifically references the misdemeanor
domestic violence Penal Code Section 243(e)(1)] must go to
court prior to release on bail or his/her own recognizance.
Section 853.6 was never updated to reflect the newer law.
Because of the inconsistency in law regarding the arrest
procedures for someone arrested for misdemeanor domestic
violence, there has been confusion in law enforcement as to
which section to follow. Many times law enforcement refers to
the standard misdemeanor release section (853.6) for guidance
in the release of misdemeanor arrestees. However, this
section does not cite or refer to section 1270.1 and section
853.6 has need been updated reflecting the new law regarding
the misdemeanor domestic violence arrest and release
procedures. The scourge of domestic violence is prevalent in
our communities. It is the absolute duty of law enforcement
to protect victims of this heinous crime. Many times, the
suspect will return and continue to abuse and injure the
victim. The Legislature has taked many steps in trying to
prevent domestic violence and its re-occurrence. Amending
section 853.6 to reflect current law is a huge step forward to
erase any confusion that exists between current
inconsistencies in law."
4)Prior Legislation : AB 1488 (Bates), Chapter 30, Statutes of
2003, required any person arrested for violation of a domestic
violence protective order involving threats to kill to appear
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for a hearing in open court before being released on his or
her own recognizance (OR) or being released on reduced bail.
REGISTERED SUPPORT / OPPOSITION :
Support
Alameda County Sheriff, Gregory J. Ahern
Butte County Sheriff
California District Attorneys Association
California Partnership to End Domestic Violence
California Police Chiefs Association
California Police Officers' Association
California State Sheriffs Association
El Dorado County Sheriff, Jeff Neves
Los Angeles County District Attorney's Office
Los Angeles County Sheriff's Department
Nevada County Sheriff, Keith Royal
Opposition
None
Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
319-3744