BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
1
2
0
AB 1209 (Ma) 9
As Amended June 2, 2009
Hearing date: July 14, 2009
Penal Code
MK:br
IDENTIFICATION
HISTORY
Source: Office of the Attorney General
Prior Legislation: SB 752 (Alpert) - Ch. 467, Stats. 2003
SB 1307 (Haynes) - not moved off Assembly Floor,
2002
SB 1541 (Ackerman) - failed Assembly Public Safety
then
gutted and amended, 2002
AB 1944 (Wright) - died on Senate Inactive File,
2002
Support: Los Angeles County Sheriff's Department; Association
for Los Angeles Deputy Sheriffs; San Bernardino County
Sheriff's Office; Crime Victims United; Riverside
Sheriffs' Association; Los Angeles Police Protective
League; California Attorneys for Criminal Justice;
California State Sheriffs' Association; Los Angeles
County District Attorney's Office; California District
Attorneys Association
Opposition:None known
(More)
AB 1209 (Ma)
PageB
Assembly Floor Vote: Ayes 78 - Noes 0
KEY ISSUE
SHOULD THE LAW PROVIDE THAT AN OFFICER MAY BOOK A PERSON ARRESTED
FOR A MISDEMEANOR AT THE SCENE OR AT THE ARRESTING AGENCY?
PURPOSE
The purpose of this bill is to provide that an officer may book
a person arrested for a misdemeanor at the scene or at the
arresting agency.
Existing law states that except as otherwise provided by law, in
any case in which a person is arrested for an offense declared
to be an infraction, the person may be released according to the
procedures set forth by this chapter for the release of persons
arrested for an offense declared to be a misdemeanor. In all
cases, except as specified in provisions of the Vehicle Code, in
which a person is arrested for an infraction, a peace officer
shall only require the arrestee to present his or her driver's
license or other satisfactory evidence of his or her identity
for examination and to sign a written promise to appear
contained in a notice to appear. If the arrestee does not have
a driver's license or other satisfactory evidence of identity in
his or her possession, the officer may require the arrestee to
place a right thumbprint, or a left thumbprint or fingerprint if
the person has a missing or disfigured right thumb, on the
notice to appear. Except for law enforcement purposes relating
to the identity of the arrestee, no person or entity may sell,
give away, allow the distribution of, include in a database, or
create a database with, this print. Only if the arrestee
refuses to sign a written promise, has no satisfactory
identification, or refuses to provide a thumbprint or
fingerprint, may the arrestee be taken into custody. (Penal
Code 853.5 (a).)
(More)
AB 1209 (Ma)
PageC
Existing law provides that a person contesting a charge by
claiming under penalty of perjury not to be the person issued
the notice to appear may choose to submit a right thumbprint,
or a left thumbprint if the person has a missing or disfigured
right thumb, to the issuing court through his or her local law
enforcement agency for comparison with the one placed on the
notice to appear. A local law enforcement agency providing
this service may charge the requester no more than the actual
costs. The issuing court may refer the thumbprint submitted
and the notice to appear to the prosecuting attorney for
comparison of the thumbprints. When there is no thumbprint or
fingerprint on the notice to appear, or when the comparison of
thumbprints is inconclusive, the court shall refer the notice
to appear or copy thereof back to the issuing agency for
further investigation, unless the court finds that referral is
not in the interest of justice. (Penal Code 853.5 (b).)
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
(More)
AB 1209 (Ma)
PageD
that the offense will continue or resume or that the safety of
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 the officer may book the arrested
person prior to release or indicate on the citation that the
arrested person shall appear at the arresting agency to be
booked or indicate on the citation that the arrested person
shall appear at the arresting agency to be fingerprinted prior
to the date the arrested person appears in court. (Penal Code
853.6 (g).)
This bill provides that the officer may book the arrested person
at the scene or at the arresting agency.
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
(More)
AB 1209 (Ma)
PageE
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.
. . . 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
----------------------
<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).)
(More)
AB 1209 (Ma)
PageF
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
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
---------------------------
<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).
(More)
AB 1209 (Ma)
PageG
According to the author:
AB 1209 (Ma & Hagman) will allow law enforcement the
option to use mobile fingerprinting identification (ID)
devices to capture fingerprints in the field when
arrestees do not have proper ID or where the arrestee
voluntarily agrees to a field booking.
Under current law, when a person is arrested for an
infraction or misdemeanor, law enforcement officers are
required to verify a person's ID through a driver's
license or other satisfactory evidence for citation
purposes.
Additionally, when arrestees are cited and released for
certain offenses, they are required to appear at a later
date for booking and fingerprinting.
So long as the arresting officer determines that the
arrestee will not continue to endanger the public, an
arrestee, with proper identification, is cited,
released, and agrees to appear in court at a later date
for booking and fingerprinting, instead of being
transported to a facility to be booked.
(More)
When an arrestee does not have proper ID, the arrestee
provides fingerprints on the citation, agrees to appear
in court and is then released. The arrestee must
arrange to provide preliminary fingerprints before court
arraignment.
Only when an arrestee fails to have proper ID, refuses
to sign a promise to appear in court and to provide
fingerprints may the arrestee be taken into custody.
When an arrestee does not provide proper initial ID or
fingerprints, there is no quick and accurate way of
verifying the information. Rather, an officer must
transport the individual to a police station where
fingerprints are submitted on a LiveScan machine in
order to ensure their identity. While this data is
speedy and precise, the process still requires the
officer to be pulled away from patrolling the streets.
In addition, when an arrestee provides fingerprints on
their citation and agrees to provide more prints at a
later date before arraignment, many fail to appear in
court, preventing the court and law enforcement from
having adequate prints for identification and warrants.
In a time when more local budgets are being cut, it's
important that we try to keep law enforcement on the
street, instead of behind desks.
AB 1209 will provide law enforcement and prosecutors a
better tool to obtain more accurate information while
saving time.
AB 1209 will likely help to reduce failures-to-appear,
and provide the court with enough identification of
individuals who fail to appear for the purpose of
authorizing arrest warrants.
AB 1209 will also save the arrestee time from scheduling
(More)
AB 1209 (Ma)
PageI
and transporting to an arresting agency just to be
booked.
AB 1209 does not change current law that prohibits the
release of fingerprint information to non-authorized
sources. AB 1209 simply provides law enforcement the
option to use accurate technology to save time and fight
crime.
2. Booking at the Scene
Under existing law, when a person is arrested for an infraction
or a misdemeanor the officer may cite and release the person
with a promise that he or she appear in court. If a person does
not have adequate identification on their person, then the
officer may require a thumbprint on the citation. The person
must then appear at the arresting agency to have his or her
fingerprints taken before appearing in court. This bill would
allow the arresting agency to book the person at the scene or at
the arresting agency. According to the sponsor the Attorney
General's Office:
Many subjects who are cited and released fail to appear
in court. Field booking of individuals would provide
the booking officer with immediate positive
identification of individuals subject to arrest, and DOJ
with positive identification of subjects for the
purposes of record keeping and background checks. This
positive identification would result in fewer failures
to appear, and would provide the courts with certain
identification of individuals who have failed to appear
for the purpose of authorizing arrest warrants. This
immediate and positive identification would also avoid
the use of valuable peace officer patrol time required
to take a subject to station or jail for positive
identification by fingerprinting.
SHOULD THE LAW CLEARLY STATE THAT AN ARRESTING AGENCY MAY BOOK A
PERSON FOR A MISDEMEANOR AT THE SCENE?
AB 1209 (Ma)
PageJ
***************