BILL NUMBER: SB 1049 CHAPTERED
BILL TEXT
CHAPTER 176
FILED WITH SECRETARY OF STATE AUGUST 23, 2010
APPROVED BY GOVERNOR AUGUST 23, 2010
PASSED THE SENATE MAY 24, 2010
PASSED THE ASSEMBLY AUGUST 5, 2010
AMENDED IN SENATE APRIL 12, 2010
INTRODUCED BY Senator Harman
FEBRUARY 16, 2010
An act to amend Sections 1269c and 1270.1 of the Penal Code,
relating to crimes.
LEGISLATIVE COUNSEL'S DIGEST
SB 1049, Harman. Bail.
Existing law authorizes a magistrate or commissioner, with respect
to a defendant who has been arrested for a bailable felony offense
or for the misdemeanor offense of violating a domestic violence
order, to set bail higher than that provided in the schedule of bail
in an amount that he or she deems sufficient to ensure the defendant'
s appearance or to ensure the protection of a victim, or family
member of a victim, of domestic violence. Existing law also provides
that the defendant may make application to the magistrate for release
on bail lower than that provided in the schedule of bail or on his
or her own recognizance.
This bill would prohibit defendants who have been arrested for
specified serious, violent, or other felonies from making an
application to the magistrate for release on bail lower than that
provided in the schedule of bail or on his or her own recognizance.
Existing law also provides that before any person who has been
arrested for commission of certain specified crimes is released on
bail in an amount other than that specified in the schedule of bail
for the offense or is released on his or her own recognizance, a
hearing shall be held at which the court shall consider certain
enumerated factors, including the potential danger the detained
person poses to other persons.
This bill would provide that, notwithstanding this provision, a
judge or magistrate may, with respect to an offense specified in the
provision described above concerning bailable felonies and
misdemeanor domestic violence order violations, increase bail to an
amount exceeding that set forth in the bail schedule without a
hearing, provided an oral or written declaration of facts justifying
the increase is presented under oath by a sworn peace officer. By
expanding the application of the crime of perjury, this bill would
impose a state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1269c of the Penal Code is amended to read:
1269c. If a defendant is arrested without a warrant for a
bailable felony offense or for the misdemeanor offense of violating a
domestic violence restraining order, and a peace officer has
reasonable cause to believe that the amount of bail set forth in the
schedule of bail for that offense is insufficient to ensure the
defendant's appearance or to ensure the protection of a victim, or
family member of a victim, of domestic violence, the peace officer
shall prepare a declaration under penalty of perjury setting forth
the facts and circumstances in support of his or her belief and file
it with a magistrate, as defined in Section 808, or his or her
commissioner, in the county in which the offense is alleged to have
been committed or having personal jurisdiction over the defendant,
requesting an order setting a higher bail. Except where the defendant
is charged with an offense listed in subdivision (a) of Section
1270.1, the defendant, either personally or through his or her
attorney, friend, or family member, also may make application to the
magistrate for release on bail lower than that provided in the
schedule of bail or on his or her own recognizance. The magistrate or
commissioner to whom the application is made is authorized to set
bail in an amount that he or she deems sufficient to ensure the
defendant's appearance or to ensure the protection of a victim, or
family member of a victim, of domestic violence, and to set bail on
the terms and conditions that he or she, in his or her discretion,
deems appropriate, or he or she may authorize the defendant's release
on his or her own recognizance. If, after the application is made,
no order changing the amount of bail is issued within eight hours
after booking, the defendant shall be entitled to be released on
posting the amount of bail set forth in the applicable bail schedule.
SEC. 2. Section 1270.1 of the Penal Code is amended to read:
1270.1. (a) Except as provided in subdivision (e), 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:
(1) 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, but not including a violation of subdivision (a) of Section
460 (residential burglary).
(2) A violation of Section 136.1 where punishment is imposed
pursuant to subdivision (c) of Section 136.1, Section 262, 273.5, or
422 where the offense is punished as a felony, or Section 646.9.
(3) A violation of paragraph (1) of subdivision (e) of Section
243.
(4) A violation of Section 273.6 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.
(b) The prosecuting attorney and defense attorney shall be given a
two-court-day written notice and an opportunity to be heard on the
matter. If the detained person does not have counsel, the court shall
appoint counsel for purposes of this section only. The hearing
required by this section shall be held within the time period
prescribed in Section 825.
(c) At the hearing, the court shall consider evidence of past
court appearances of the detained person, the maximum potential
sentence that could be imposed, and the danger that may be posed to
other persons if the detained person is released. In making the
determination whether to release the detained person on his or her
own recognizance, the court shall consider the potential danger to
other persons, including threats that have been made by the detained
person and any past acts of violence. The court shall also consider
any evidence offered by the detained person regarding his or her ties
to the community and his or her ability to post bond.
(d) If the judge or magistrate sets the bail in an amount that is
either more or less than the amount contained in the schedule of bail
for the offense, the judge or magistrate shall state the reasons for
that decision and shall address the issue of threats made against
the victim or witness, if they were made, in the record. This
statement shall be included in the record.
(e) Notwithstanding subdivision (a), a judge or magistrate,
pursuant to Section 1269c, may, with respect to a bailable felony
offense or a misdemeanor offense of violating a domestic violence
order, increase bail to an amount exceeding that set forth in the
bail schedule without a hearing, provided an oral or written
declaration of facts justifying the increase is presented under
penalty of perjury by a sworn peace officer.
SEC. 3. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.