BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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AB 688 (Eng)
As Amended June 8, 2009
Hearing date: June 16, 2009
Penal Code
MK:mc
MISDEMEANORS
HISTORY
Source: Los Angeles County District Attorney; Los Angeles
County Sheriff's Department
Prior Legislation: None
Support: California Partnership to End Domestic Violence;
Neighborhood Legal Services of Los Angeles County;
Humboldt County Sheriff; California District Attorneys
Association; Unity and Peace Samantha Salas Scholarship
Fund; Chinatown Service Center; Alameda County Sheriff;
El Dorado County Sheriff; Nevada County Sheriff; Butte
County Sheriff; California State Sheriffs' Association;
California Peace Officers' Association; California
Police Chiefs Association; Los Angeles City Attorney;
Mono County Sheriff; Fresno County Sheriff; Yolo County
Sheriff; Glenn County Sheriff; Stanislaus County
Sheriff; Mariposa County Sheriff; Plumas County Sheriff
Opposition:None known
Assembly Floor Vote: Ayes 78 - Noes 0
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AB 688 (Eng)
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KEY ISSUE
SHOULD AN AMENDMENT BE MADE TO CLARIFY CONFLICTING STATUTES THAT
ADDRESS WHEN A PERSON ARRESTED FOR DOMESTIC VIOLENCE MAY BE RELEASED
ON HIS OR HER OWN RECOGNIZANCE?
PURPOSE
The purpose of this bill is to clarify 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 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 853.6(a).)
Existing law 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
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persons or property would be imminently endangered by release 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 853.6(b).)
Existing law 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
1207.1(a)(1) to (4).)
Existing law 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
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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 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 13701(a).)
This bill clarifies that Penal Code section 1207.1 is an
exception to the provision in Penal Code section 853.6 stating
that an officer may determine that a person arrested for
misdemeanor domestic violence may be released on their own
recognizance if the officer determines that there is not a a
reasonable likelihood that the offense will continue or resume
or that the safety of persons or property would be imminently
endangered by the release of that person.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
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incarceration.<1>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
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<1> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
Although the evidence may be less than perfectly
clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .
Under the PLRA, any prisoner release order that we
issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
correct the violation of those rights. For this
reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
period of two or three years.<2>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
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<2> Three Judge Court Tentative Ruling, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (Feb. 9, 2009).
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decision, is unknown at the time of this writing.
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
1. Need for this Bill
According to the author:
Currently there is a conflict in the Penal Code
regarding when an individual charged with misdemeanor
domestic violence may be released on their own
recognizance. Currently Penal Code 853.6 allows a
peace officer to release a person charged with
misdemeanor domestic violence on their own recognizance
without having the person appear in front of a judge or
commissioner if he/she believes doing so will not
endanger the victim or the victim's property. However,
Penal Code 1270.1 states that a person charged with
misdemeanor domestic violence cannot be released on
their own recognizance until they have appeared in front
of a judge or commissioner. Penal Code 1270.1 contains
no exceptions.
The requirement that a defendant appear before a judge
or commissioner before being released on their own
recognizance was added to Penal Code 1270.1 in 1994 by
AB 59X (Alpert). Unfortunately, when the Legislature
amended 1270.1, it did not delete the conflicting
language in Penal Code 853.6.
In California, when there are two conflicting statutes
the most recently enacted statute is presumed to
control. Therefore, the correct law in California is
defendants charged with misdemeanor domestic violence
shall not be released on their own recognizance until
they first appear before a judge or commissioner.
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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 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 be endangered by release. (Penal Code
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, or may be
released on his or her own recognizance, a hearing shall be held
in open court before a judge." (Penal Code 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 243(e)(1); Penal Code
273.6(a).) Penal Code section 1270.1 does not authorize the
arresting officer to use discretion in releasing an offender.
This bill clarifies that the prohibition on release in AB 1270.1
for the specified offenses applies as an exception to the
general rule in Penal Code section 853.6.
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