BILL ANALYSIS
AB 1369
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 1369 (Davis)
As Amended August 17, 2010
Majority vote
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|ASSEMBLY: |79-0 |(May 26, 2009) |SENATE: |25-9 |(August 23, |
| | | | | |2010) |
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Original Committee Reference: PUB. S.
SUMMARY : Allows the board of supervisors of any county to
authorize the correctional administrator to offer a program
under which bailable inmates may be placed in an electronic
monitoring program (EMP).
The Senate amendments rewrite the Assembly version of this bill:
1)Provide, notwithstanding any other law, this section shall
only apply to inmates being held in lieu of bail and on no
other basis. This section shall only apply if the
correctional administrator of a county makes a determination
that conditions in a jail facility warrant the necessity of
releasing inmates being held in lieu of bail due to a lack of
jail space and a court-ordered jail population cap.
2)Provide, notwithstanding any other law, the board of
supervisors of any county may authorize the correctional
administrator to offer a program under which inmates being
held in lieu of bail in a county jail or other county
correctional facility may voluntarily participate in an EMP if
the conditions specified below are met.
3)State in order to qualify for participation in an EMP pursuant
to this section, the inmate must be a minimum security inmate
with no holds or outstanding warrants and one of the following
circumstances must exist:
a) A magistrate has approved the electronic monitoring
release;
b) The inmate has been held in custody for at least 30
calendar days from the date of arraignment pending
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disposition of only misdemeanor charges; or,
c) The inmate has been held in custody pending disposition
of charges for at least 60 calendar days from the date of
arraignment.
4)Provide all participants shall be subject to discretionary
review by the correctional administrator consistent with this
section.
5)Provide the county board of supervisors, after consulting with
the sheriff and district attorney, may prescribe reasonable
rules and regulations under which an EMP pursuant to this
section may operate. As a condition of participation in the
EMP, the participant shall give his or her consent in writing
to participate and shall agree in writing to comply with the
rules and regulations of the program, including, but not
limited to, all of the following:
a) The participant shall remain within the interior
premises of his or her residence during the hours
designated by the correctional administrator;
b) The participant shall admit any person or agent
designated by the correctional administrator into his or
her residence at any time for purposes of verifying the
participant's compliance with the conditions of his or her
detention;
c) If released, the participant shall post bond prior to
being placed on electronic monitoring;
d) The electronic monitoring may include global positioning
system (GPS) devices or other supervising devices for the
purpose of helping to verify the participant's compliance
with the rules and regulations of the electronic detention
program. The devices shall not be used to eavesdrop or
record any conversation, except a conversation between the
participant and the person supervising the participant to
be used solely for the purposes of voice identification;
and,
e) The correctional administrator in charge of the county
correctional facility from which the participant was
released may, without further order of the court,
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immediately retake the person into custody if the
electronic monitoring or supervising devices are unable for
any reason to properly perform their function at the
designated place of home detention if the person fails to
remain within the place of home detention as stipulated in
the agreement; if the person willfully fails to pay fees to
the provider of electronic home detention services, as
stipulated in the agreement, subsequent to the written
notification of the participant that the payment has not
been received and that return to custody may result; or if
the person for any other reason no longer meets the
established criteria under this section. A copy of the
signed consent to participate and a copy of the agreement
to comply with the rules and regulations shall be provided
to the participant and a copy shall be retained by the
correctional administrator.
6)Require the rules and regulations and administrative policy of
the program shall be reviewed on an annual basis by the county
board of supervisors and the correctional administrator. The
rules and regulations shall be given to every participant.
7)State whenever the peace officer supervising a participant has
reasonable cause to believe that the participant is not
complying with the rules or conditions of the program, or that
the electronic monitoring devices are unable to function
properly in the designated place of confinement, the peace
officer may, under general or specific authorization of the
correctional administrator and without a warrant of arrest,
retake the person into custody.
8)Provide nothing in this section shall be construed to require
the correctional administrator to allow a person to
participate in this program if it appears from the record that
the person has not satisfactorily complied with reasonable
rules and regulations while in custody. A person shall be
eligible for participation in an EMP only if the correctional
administrator concludes that the person meets the criteria for
release established under this section and that the person's
participation is consistent with any reasonable rules and
regulations prescribed by the board of supervisors or the
administrative policy of the correctional administrator.
9)State the correctional administrator, or his or her designee,
shall have discretionary authority consistent with this
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section to permit program participation as an alternative to
physical custody. All persons approved by the court to
participate in the EMP, pursuant to #5(c) above, who are
denied participation and all persons removed from program
participation shall be notified in writing of the specific
reasons for the denial or removal. The notice of denial or
removal shall include the participant's appeal rights, as
established by program administrative policy.
10)Provide the correctional administrator may permit EMP
participants to seek and retain employment in the community,
attend psychological counseling sessions or educational or
vocational training classes, or seek medical and dental
assistance. Willful failure of the program participant to
return to the place of home detention later than the
expiration of any period of time during which he or she is
authorized to be away from the place of home detention
pursuant to this section and unauthorized departures from the
place of home detention are punishable as provided under
existing law.
11)Allow the board of supervisors to prescribe a program
administrative fee to be paid by each electronic monitoring
participant.
12)Define the following terms as follows:
a) "Correctional administrator" is the sheriff, probation
officer, or director of the county department of
corrections;
b) "Electronic monitoring program" includes, but is not
limited to, home detention programs, work furlough
programs, and work release programs; and,
c) "Minimum security inmate" is an inmate who, by
established local classification criteria, would be
eligible for placement in a Type IV local detention
facility, as described in Title 15 of the California Code
of Regulations.
13)Provide, notwithstanding any other law, upon request of a
local law enforcement agency with jurisdiction over the
location where a participant in an EMP is placed, the
correctional administrator shall provide the following
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information regarding participants in the EMP:
a) The participant's name, address, and date of birth;
b) The offense or offenses alleged to have been committed
by the participant;
c) The period of time the participant will be placed on
home detention;
d) Whether the participant successfully completed the
prescribed period of home detention or was returned to a
county correctional facility, and if the person was
returned to a county correctional facility, the reason for
the return;
e) The gender and ethnicity of the participant;
f) If released, the name, address, and contact information
of any bail agent or surety; and,
g) Any information received by a law enforcement agency, as
specified, shall be used only for the purpose of monitoring
the impact of home EMPs on the community.
14)Provide legislative intent that the EMPs established under
this section maintain the highest public confidence,
credibility, and public safety. In the furtherance of these
standards, the following shall apply:
a) The correctional administrator, with the approval of the
board of supervisors, may administer an EMP as provided in
this section pursuant to written contracts with appropriate
public or private agencies or entities to provide specified
program services. No public or private agency or entity
may operate a home detention program pursuant to this
section in any county without a written contract with that
county's correctional administrator. No public or private
agency or entity entering into a contract may itself employ
any person who is in the EMP;
b) Program participants shall undergo the normal booking
process for arrestees entering the jail. All EMP
participants shall be supervised; and,
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c) All privately operated EMPs shall be under the
jurisdiction of, and subject to the terms and conditions of
the contract entered into with, the correctional
administrator.
15)Require each contract to include, but not be limited to, all
of the following:
a) A provision whereby the private agency or entity agrees
to operate in compliance with any available standards and
all state and county laws applicable to the operation of
EMPs and the supervision of offenders in an EMP;
b) A provision that clearly defines areas of respective
responsibility and liability of the county and the private
agency or entity;
c) A provision that requires the private agency or entity
to demonstrate evidence of financial responsibility,
submitted to and approved by the board of supervisors, in
amounts and under conditions sufficient to fully indemnify
the county for reasonably foreseeable public liability,
including legal defense costs that may arise from, or be
proximately caused by, acts or omissions of the contractor;
d) A provision that requires the private agency or entity
to provide evidence of financial responsibility, such as
certificates of insurance or copies of insurance policies,
prior to commencing any operations pursuant to the contract
or at any time requested by the board of supervisors or
correctional administrator;
e) A provision that requires an annual review by the
correctional administrator to ensure compliance with
requirements set by the board of supervisors and for
adjustment of the financial responsibility requirements if
warranted by caseload changes or other factors; and,
f) A provision that permits the correctional administrator
to immediately terminate the contract with a private agency
or entity at any time that the contractor fails to
demonstrate evidence of financial responsibility.
16)Mandate the board of supervisors, the correctional
administrator, and the designee of the correctional
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administrator to comply with Government Code Section 1090 in
the consideration, making, and execution of contracts pursuant
to this section.
17)State the failure of the private agency or entity to comply
with state or county laws or with the standards established by
the contract with the correctional administrator shall
constitute cause to terminate the contract.
18)Provide upon the discovery that a private agency or entity
with which there is a contract is not in compliance with this
paragraph, the correctional administrator shall give 60-days'
notice to the director of the private agency or entity that
the contract may be canceled if the specified deficiencies are
not corrected.
19)Allow shorter notice may be given or the contract may be
canceled without notice whenever a serious threat to public
safety is present because the private agency or entity has
failed to comply with this section.
20)State for purposes of this section, "evidence of financial
responsibility" may include, but is not limited to, certified
copies of any of the following:
a) A current liability insurance policy;
b) A current errors and omissions insurance policy; or,
c) A surety bond.
21)Define "ability to pay" as the overall capability of the
person to reimburse the costs, or a portion of the costs, of
providing supervision and shall include, but shall not be
limited to, consideration of all of the following factors:
a) Present financial position;
b) Reasonably discernible future financial position. In no
event shall the administrator, or his or her designee,
consider a period of more than six months from the date of
acceptance into the program for purposes of determining
reasonably discernible future financial position;
c) Likelihood that the person shall be able to obtain
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employment within the six-month period from the date of
acceptance into the program; and,
d) Any other factor that may bear upon the person's
financial capability to reimburse the county for the fees
fixed.
22)Allow the administrator, or his or her designee, to charge a
person the fee set by the board of supervisors or any portion
of the fee and may determine the method and frequency of
payment. Any fee the administrator, or his or her designee,
charges pursuant to this section shall not in any case be in
excess of the fee set by the board of supervisors and shall be
based on the person's ability to pay. The administrator, or
his or her designee, shall have the option to waive the fees
for program supervision when deemed necessary, justified, or
in the interests of justice. The fees charged for program
supervision may be modified or waived at any time based on the
changing financial position of the person. All fees paid by
persons for program supervision shall be deposited into the
general fund of the county.
23)Prohibit a person from being denied consideration for, or be
removed from, participation in any of the programs to which
this section applies because of an inability to pay all or a
portion of the program supervision fees. At any time during a
person's sentence, the person may request that the
administrator, or his or her designee, modify or suspend the
payment of fees on the grounds of a change in circumstances
with regard to the person's ability to pay.
24)State if the person and the administrator, or his or her
designee, are unable to come to an agreement regarding the
person's ability to pay, or the amount which is to be paid, or
the method and frequency with which payment is to be made, the
administrator, or his or her designee, shall advise the
appropriate court of the fact that the person and
administrator, or his or her designee, have not been able to
reach agreement and the court shall then resolve the
disagreement by determining the person's ability to pay, the
amount which is to be paid, and the method and frequency with
which payment is to be made.
25)Provide at the time a person is approved for any of the
programs to which this section applies, the administrator, or
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his or her designee, shall furnish the person a written
statement of the person's rights in regard to the program for
which the person has been approved, including, but not limited
to, both of the following:
a) The fact that the person cannot be denied consideration
for or removed from participation in the program because of
an inability to pay; and,
b) The fact that if the person is unable to reach agreement
with the administrator, or his or her designee, regarding
the person's ability to pay, the amount which is to be
paid, or the manner and frequency with which payment is to
be made, that the matter shall be referred to the court to
resolve the differences.
26)Allow in all circumstances where a county board of
supervisors has approved a program administrator to enter into
a contract with a private agency or entity to provide
specified program services, the program administrator shall
ensure that the provisions of this section are contained
within any contractual agreement for this purpose. All
privately operated home detention programs shall comply with
all appropriate, applicable ordinances and regulations as
specified.
27)Provide, notwithstanding any other provision of law, if a
defendant is arrested without a warrant for a bailable offense
and meets the criteria specified, he or she may, either
personally or through his or her attorney, friend, or family
member, make an application to the magistrate after 10 court
days from the date of arraignment for release on bail reduced
by up to 75% of the amount of the defendant's bail.
28)Allow a court to reduce a defendant's bail by up to 75%
pursuant to this section only if a defendant is placed in an
EMP authorized by a county board of supervisors, and the court
and correctional administrator make determinations that the
defendant is eligible to participate in an EMP.
29)Provide this section shall remain in effect only until
January 1, 2015 and as of that date unless a later statute
enacted before January 1, 2015 deletes or extends that date.
30)Make every prisoner who is a participant in an EMP pursuant
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who willfully fails to comply with the prescribed rules and
regulations of that program guilty of a misdemeanor.
31)Make every prisoner arrested and booked for, charged with, or
convicted of a misdemeanor, and every person committed as an
inebriate, who is confined in any county or city jail, prison,
industrial farm, or industrial road camp, is engaged on any
county road or other county work, is in the lawful custody of
any officer or person, is employed or continuing in his or her
regular educational program or authorized to secure employment
or education away from the place of confinement, is authorized
for temporary release for family emergencies or for purposes
preparatory to his or her return to the community, or is a
participant in a home detention program, and who thereafter
escapes or attempts to escape from the county or city jail,
prison, industrial farm, or industrial road camp or from the
custody of the officer or person in charge of him or her while
engaged in or going to or returning from the county work or
from the custody of any officer or person in whose lawful
custody he or she is, or from the place of confinement in a
home detention program, is guilty of a felony and, if the
escape or attempt to escape was not by force or violence, is
punishable by imprisonment in the state prison for a
determinate term of one year and one day, or in a county jail
not exceeding one year.
32)Provide that if the prisoner arrested and booked for, charged
with, or convicted of a misdemeanor escapes or attempts to
escape described is committed by force or violence, the person
is guilty of a felony, punishable by imprisonment in the state
prison for two, four, or six years to be served consecutively,
or in a county jail not exceeding one year. When the second
term of imprisonment is to be served in a county jail, it
shall commence from the time the prisoner otherwise would have
been discharged from jail.
33)State a conviction of a violation involving a participant of
a home detention program that is not committed by force or
violence shall not be charged as a prior felony conviction in
any subsequent prosecution for a public offense.
34)Make every prisoner arrested and booked for, charged with, or
convicted of a felony, and every person committed by order of
the juvenile court, who is confined in any county or city
jail, prison, industrial farm, or industrial road camp, is
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engaged on any county road or other county work, is in the
lawful custody of any officer or person is a participant in a
home detention program, who escapes or attempts to escape from
a county or city jail, prison, industrial farm, or industrial
road camp or from the custody of the officer or person in
charge of him or her while engaged in or going to or returning
from the county work or from the custody of any officer or
person in whose lawful custody he or she is, or from
confinement, or from the place of confinement in a home
detention program, is guilty of a felony and, if the escape or
attempt to escape was not by force or violence, is punishable
by imprisonment in the state prison for 16 months, two years,
or three years, to be served consecutively, or in a county
jail not exceeding one year.
35)Provide that if the prisoner arrested and booked for, charged
with, or convicted of a felony escapes or attempts to escape
is committed by force or violence, the person is guilty of a
felony, punishable by imprisonment in the state prison for a
full term of two, four, or six years to be served
consecutively to any other term of imprisonment, commencing
from the time the person otherwise would have been released
from imprisonment and the term shall not be subject to, or in
a county jail for a consecutive term not to exceed one year,
that term to commence from the time the prisoner otherwise
would have been discharged from jail.
36)Except in unusual cases where the interests of justice would
best be served if the person is granted probation, probation
shall not be granted to any person who is convicted of a
felony offense under this section in that he or she escaped or
attempted to escape from a secure main jail facility, from a
court building, or while being transported between the court
building and the jail facility.
37)State in any case in which a person is convicted of a
violation of this section designated as a misdemeanor, he or
she shall be confined in a county jail for not less than 90
days nor more than one year except in unusual cases where the
interests of justice would best be served by the granting of
probation.
38)Define "main jail facility" as the facility used for the
detention of persons pending arraignment, after arraignment,
during trial, and upon sentence or commitment. The facility
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shall not include an industrial farm, industrial road camp,
work furlough facility, or any other non-secure facility used
primarily for sentenced prisoners. As used in this
subdivision, "secure" is defined as a facility that contains
an outer perimeter characterized by the use of physically
restricting construction, hardware, and procedures designed to
eliminate ingress and egress from the facility except through
a closely supervised gate or doorway.
39)Provide if the court grants probation under this subdivision,
it shall specify the reason or reasons for that order on the
court record.
40)Require any sentence imposed under this subdivision shall be
served consecutive to any other sentence in effect or pending.
41)Mandate the willful failure of a prisoner, whether convicted
of a felony or a misdemeanor, to return to his or her place of
confinement no later than the expiration of the period that he
or she was authorized to be away from that place of
confinement, is an escape from that place of confinement.
This subdivision applies to a prisoner who is employed or
continuing in his or her regular educational program,
authorized to secure employment or education pursuant to the
Cobey Work Furlough Law (Penal Code Section 1208), authorized
for temporary release for family emergencies or for purposes
preparatory to his or her return to the, or permitted to
participate in a home detention program. A prisoner convicted
of a misdemeanor who willfully fails to return to his or her
place of confinement under this subdivision shall be punished
with a felony and, if the escape or attempt to escape was not
by force or violence, is punishable by imprisonment in the
state prison for a determinate term of one year and one day,
or in a county jail not exceeding one year. A prisoner
convicted of a felony who willfully fails to return to his or
her place of confinement shall be convicted of a felony and,
if the escape or attempt toe escape was not by force or
violence, is punishable by imprisonment in the state prison
for 16 months, two years, or three years, to be served
consecutively, or in a county jail not exceeding one year.
42)Provide these sections shall remain in effect only until
January 1, 2015 and as of that date are repealed unless a
later statute enacted before that date deletes or extends that
date.
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43)Double joins this bill with SB 1266 (Liu).
AS PASSED BY THE ASSEMBLY , this bill:
1)Provided that notwithstanding any other provision of law, upon
determination by the correctional administrator that
conditions in a jail facility warrant the necessity of
releasing sentenced inmates prior to them serving the full
amount of a given sentence due to lack of jail space, the
board of supervisors of any county may authorize the
correctional administrator to offer a program under which
inmates committed to a county jail or other county
correctional facility or granted probation, or inmates
participating in a work furlough program, may be required to
participate in an involuntary home detention program, which
shall include electronic monitoring, during their sentence in
lieu of confinement in the county jail or other county
correctional facility or program under the auspices of the
probation officer.
2)Prescribed that every prisoner arrested and booked for,
charged with, or convicted of a felony, who is a participant
in a home detention program under existing law who escapes is
guilty of a felony; and, if the escape or attempt to escape
was not by force or violence, is punishable by imprisonment in
the state prison for 16 months, 2 or 3 years, to be served
consecutively, or in a county jail, not exceeding one year.
3)Stated that if the escape or attempt to escape is committed by
force or violence, the person is guilty of a felony,
punishable by imprisonment in the state prison for a full term
of two, four, or six years to be served consecutively to any
other term of imprisonment, commencing from the time the
person would have been released from imprisonment and the term
shall not be subject to reduction, or in a county jail for a
consecutive term not to exceed one year, that term to commence
from the time the prisoner otherwise would have been
discharged from jail.
4)Excepted in unusual cases where the interests of justice would
best be served if the person is granted probation, probation
shall not be granted to any person who is convicted of a
felony offense under this section in that he or she escaped or
attempted to escape from a home detention program.
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5)Mandated that the willful failure of a prisoner, to return to
his or her place of confinement no later than the expiration
of the period that he or she was permitted to participate in a
home detention program, is an escape. A prisoner convicted of
a felony who willfully fails to return to his or her place of
confinement shall be punished by imprisonment in the state
prison for 16 months, 2 or 3 years, to be served
consecutively, or in a county jail, not exceeding one year.
FISCAL EFFECT : According to the Senate Appropriations
Committee, pursuant to Senate Rule 28.8, negligible state costs.
COMMENTS : According to the author, "Based on the lack of space
in the Los Angeles County jail system, a federal court has
placed a mandatory cap on the number of inmates in the system
(Rutherford v. Block). To adhere to the cap, the Sheriff's
Department has reduced the percentage of time served by inmates
committed to county jail. The Sheriff Department offered the
voluntary EMP and in 2007 ran SB 959 (Romero and Runner) to
create an involuntary home detention EMP, which has been very
successful. Approximately 1,500 inmates are currently on some
form of Home Electronic Monitoring, up from 437 in 2007. Prior
to SB 959, inmates were spending an average of 10% of their
sentence in jail before being released early due to
overcrowding. Now, male inmates are doing approximately 75% of
their sentence.
"Under current law, California Penal Code Section 1203.017
allows involuntary participation by qualified, minimum-security,
low-risk inmates in a home detention EMP in lieu of confinement
in the county jail. By giving the Sheriff's Department the
discretion and the option to put an inmate on the involuntary
home detention EMP, the Department has been able to better
manage and control the jail population. If sentenced qualified,
low-risk felony county jail commitments (currently, there are
about 230 eligible inmates in Los Angeles County) are added to
this section, we can better control our population and create
much needed room for the more serious offenders."
Please see the policy committee for a full discussion of this
bill.
Analysis Prepared by : Nicole J. Hanson / PUB. S. / (916)
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319-3744
FN: 0006248