BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
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SB 1049 (Harman) 9
As Amended April 12, 2010
Hearing date: April 20, 2010
Penal Code
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BAIL AND OWN RECOGNIZANCE RELEASE
HISTORY
Source: California Judges Association
Prior Legislation: AB 1488 (Bates) - Ch. 30, Stats. 2003
AB 1284 (Jackson) - Ch. 703, Stats. 1999
AB 641 (Polanco) - Ch. 557, Stats. 1997
AB 45 (Murray) - Ch. 847, Stats. 1997
Support: California State Sheriffs' Association
Opposition:Taxpayers for Improving Public Safety; California
Public Defenders Association; California Attorneys for Criminal
Justice
KEY ISSUES
PENAL CODE SECTION 1270.1 REQUIRES A HEARING BEFORE A PERSON WHO
HAS BEEN ARRESTED FOR A SERIOUS FELONY, SPOUSAL RAPE, STALKING,
INFLICTING CORPORAL INJURY ON OR BATTERING A COHABITANT, AS
SPECIFIED, DISSUADING A WITNESS, CRIMINAL THREATS OR VIOLATING A
DOMESTIC VIOLENCE RESTRAINING ORDER, CAN BE RELEASED ON HIS OR
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HER OWN RECOGNIZANCE OR ON BAIL THAT IS LOWER OR HIGHER THAN THE
PUBLISHED BAIL SCHEDULE.
(CONTINUED)
PENAL CODE SECTION 1296c ALLOWS A LAW ENFORCEMENT OFFICER TO OBTAIN
AN EX-PARTE ORDER TO RAISE BAIL OR PROHIBIT OWN RECOGNIZANCE RELEASE
IN A FELONY CASE OR A SPECIFIED MISDEMEANOR DOMESTIC VIOLENCE CASE,
IF THE OFFICER DECLARES UNDER PENALTY OF PERJURY THAT THE STANDARD
BAIL IS INSUFFICIENT TO ENSURE EITHER THAT THE ARRESTED PERSON WILL
RETURN TO COURT OR THAT THE DOMESTIC VIOLENCE VICTIM, OR A FAMILY
MEMBER, WOULD BE PROTECTED.
SHOULD PENAL CODE SECTION 1270.1 - WHICH REQUIRES A BAIL HEARING IF
A PERSON WAS ARRESTED FOR A SERIOUS FELONY OR OTHER SPECIFIED CRIME
- EXPLICITLY STATE THAT A LAW ENFORCEMENT OFFICER OBTAIN AN EX-PARTE
ORDER TO RAISE BAIL OR PROHIBIT OWN RECOGNIZANCE RELEASE PURSUANT TO
THE TERMS OF SECTION 1269c?
PENAL CODE SECTION 1269c ALLOWS AN ARRESTED PERSON TO APPLY FOR AN
EX-PARTE ORDER FOR REDUCTION OF BAIL OR OWN RECOGNIZANCE RELEASE.
SHOULD PENAL CODE SECTION 1269c SPECIFY THAT AN ARRESTED PERSON MAY
NOT OBTAIN AN EX-PARTE ORDER FOR OWN RECOGNIZANCE RELEASE OR REDUCED
BAIL IF THE PERSON WAS ARRESTED FOR A SERIOUS FELONY, INTIMIDATING A
WITNESS, SPOUSAL ABUSE, AS SPECIFIED, OR VIOLATION OF A DOMESTIC
VIOLENCE RESTRAINING ORDER, AS SPECIFIED?
PURPOSE
The purposes of this bill are to 1) specify that a peace
officer, through a declaration of facts made under penalty of
perjury establishing that an arrested person may not return to
court or that a domestic violence victim or family member of
such victim may be endangered by the person's release, may
obtain an ex-parte order to raise bail or prevent own
recognizance release of a defendant charged with a serious
felony, spousal rape, stalking, inflicting corporal injury on a
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spouse, battery on a spouse, dissuading a witness, violation of
a domestic violence restraining order, or criminal threats, and
2) to specify that an arrested person may not obtain release
through an ex-parte application if he or she has been charged
with such a crime.
Existing Provisions of the United States Constitution state that
excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.
(U.S.Const., 8th Amend.)
Existing Provisions of the California Constitution state that a
person shall be released on bail, except for the following
crimes when the facts are evident or the presumption great:
Capital crimes;
Felonies involving violence or sexual assault when the
court finds by clear and convincing evidence that there is
a substantial likelihood the person's release would result
in great bodily harm to others; and
Felonies where the court finds by clear and convincing
evidence that the person has threatened another with great
bodily harm and that there is a substantial likelihood that
the person would carry out the threat if released.
The court, in setting bail, shall consider the
seriousness of the offense, the defendant's criminal
record, and the probability of his or her return to court.
The court, in its discretion, may release a person on his
or her own recognizance. (Cal. Const., Art. I, 12.)
Existing statutory law provides that in making a bail decision
the court shall consider public safety, the seriousness of the
offense, the previous criminal record of the defendant, and the
probability of his or her appearing at trial or hearing of the
case. The public safety shall be the primary consideration. In
considering the seriousness of the offense charged, the judge or
magistrate shall include consideration of the alleged injury to
the victim, and alleged threats to the victim or a witness to
the crime charged, the alleged use of a firearm or other deadly
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weapon in the commission of the crime charged, and the alleged
use or possession of controlled substances by the defendant.
(Pen. Code 1275, subd. (a).)
Existing law provides that the superior court in each county
shall adopt a "uniform schedule of bail" for all felony offenses
and for all misdemeanor and infraction offenses except Vehicle
Code infractions. The judges shall consider the seriousness of
the offense, including enhancements and aggravating factors that
may be charged in the complaint. (Pen. Code 1269b, subds.
(c)-(e).)
Existing law provides that any person arrested for, or charged
with, an offense other than a capital offense may be released
on his or her own recognizance ("OR") by a court or magistrate
who could release a defendant from custody upon the defendant
giving bail. (Penal Code 1270.)
Existing law states that where a person has been arrested
without a warrant for a bailable felony offense or the
misdemeanor of violating a domestic violence restraining order,
the following provisions apply:
Where the arresting officer believes that the amount of
bail set out in the bail schedule is insufficient to assure
the appearance of the defendant in court or the amount is
insufficient to assure protection of the victim, or a
relative of a victim, of domestic violence the officer
shall prepare a declaration setting forth the facts
supporting such a conclusion.
The declaration of the officer shall be made under
penalty of perjury.
The defendant may apply to be released on bail in an
amount lower than the schedule provides or on his or her
own recognizance.
The defendant's application may be made personally,
through counsel, or by a family member or friend.
The court or magistrate has discretion to set bail on
terms and conditions that are appropriate.
If no change in bail is made within eight hours
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following application, the defendant shall be entitled to
release pursuant to the bail schedule. (Pen. Code
1269c.)
Existing law provides that before any person arrested for a
serious or violent felony (except residential burglary<1>),
spousal rape, stalking, inflicting corporal injury on or
battering a cohabitant, as specified, dissuading a witness, or
criminal threats may be released on bail in an amount that is
more or less than the amount contained in the schedule of bail
for the offense, or released on his or her own recognizance
("OR"), a hearing must be held in open court before the
magistrate or judge. (Pen. Code 1270.1 (a).)
This bill amends Penal Code Section 1270.1 to provide the
following:
(e) Notwithstanding subdivision (a) [which requires a
hearing before bail is set in an amount other than in
the bail schedule], 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.
This bill amends Penal Code Section 1269c to explicitly
provide that an arrested person, or his or her attorney,
family member or friend, may not make an ex-parte
application for own recognizance release or on bail in
amount lower than provided in the bail schedule if the
person was arrested for an offense listed in Penal Code
Section 1270.1, a serious felony or a violent felony
(except residential burglary), intimidating a witness, as
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<1> All violent felonies (Pen. Code 667.5, subd. (c) are also
serious felonies (Pen. Code 1192.7. subd. (c). For purposes of
this analysis, a reference to serious felonies includes violent
felonies.
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specified, cohabitant or spousal abuse, as specified, or
violating a domestic violence restraining order, as
specified.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
The severe prison overcrowding problem California has
experienced for the last several years has not been solved. In
December of 2006 plaintiffs in two federal lawsuits against the
Department of Corrections and Rehabilitation sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
federal three-judge panel issued an order requiring the state to
reduce its inmate population to 137.5 percent of design capacity
-- a reduction of roughly 40,000 inmates -- within two years.
In a prior, related 184-page Opinion and Order dated August 4,
2009, that court stated in part:
"California's correctional system is in a tailspin,"
the state's independent oversight agency has reported.
. . . (Jan. 2007 Little Hoover Commission Report,
"Solving California's Corrections Crisis: Time Is
Running Out"). Tough-on-crime politics have increased
the population of California's prisons dramatically
while making necessary reforms impossible. . . . As a
result, the state's prisons have become places "of
extreme peril to the safety of persons" they house, .
. . (Governor Schwarzenegger's Oct. 4, 2006 Prison
Overcrowding State of Emergency Declaration), while
contributing little to the safety of California's
residents, . . . . California "spends more on
corrections than most countries in the world," but the
state "reaps fewer public safety benefits." . . . .
Although California's existing prison system serves
neither the public nor the inmates well, the state has
for years been unable or unwilling to implement the
reforms necessary to reverse its continuing
deterioration. (Some citations omitted.)
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. . .
The massive 750% increase in the California prison
population since the mid-1970s is the result of
political decisions made over three decades, including
the shift to inflexible determinate sentencing and the
passage of harsh mandatory minimum and three-strikes
laws, as well as the state's counterproductive parole
system. Unfortunately, as California's prison
population has grown, California's political
decision-makers have failed to provide the resources
and facilities required to meet the additional need
for space and for other necessities of prison
existence. Likewise, although state-appointed experts
have repeatedly provided numerous methods by which the
state could safely reduce its prison population, their
recommendations have been ignored, underfunded, or
postponed indefinitely. The convergence of
tough-on-crime policies and an unwillingness to expend
the necessary funds to support the population growth
has brought California's prisons to the breaking
point. The state of emergency declared by Governor
Schwarzenegger almost three years ago continues to
this day, California's prisons remain severely
overcrowded, and inmates in the California prison
system continue to languish without constitutionally
adequate medical and mental health care.<2>
The court stayed implementation of its January 12, 2010 ruling
pending the state's appeal of the decision to the U.S. Supreme
Court. That appeal, and the final outcome of this litigation,
is not anticipated until later this year or 2011.
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<2> Three Judge Court Opinion and Order, 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 (August 4, 2009).
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This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
According to background information submitted by the author:
SB 1049 is designed to clarify an ambiguity identified
by criminal judges within the California Judges
Association. The ambiguity concerns the authority to
increase bail above the local bail schedule without a
hearing, based upon the declaration of a peace officer
under penalty of perjury, that the amount of bail is
insufficient to assure the defendant's appearance or
protect the victim or victim's family. While Penal
Code Section 1269c seems to clearly support the
authority of the judge to act in this circumstance,
the language of Penal Code Section 1270.1 prescribes a
procedure for circumstances where bail is set higher
or lower than the schedule, including a hearing and
notice to the prosecuting and defense attorneys.
SB 1049 is intended to clarify the authority of judges
to order increased bail without a hearing, which is
often impractical when the arrest is made at night or
over weekends. The bill accomplishes this goal by
amending Penal Code Section 1270.1 to add the
provisions from PC 1269c relating to increased bail
upon a declaration by law enforcement.
2. Conflicting or Confusing Statutes Governing Own Recognizance
Release and Setting Bail in an Amount Above or Below the
Amount the Published Bail Schedules
Hearing Required to Diverge from Bail Schedule in Serious Felony
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or Domestic Violence Matters
Where a defendant is charged with a serious felony, intimidating
a witness, or specified crimes related to domestic violence,
Section 1270.1 requires the court to hold a hearing before the
arrested person can be released on his or her own recognizance,
or released on bail that is either higher or lower than the bail
schedule dictates. The court must consider specified factors,
including the arrested person's past history of court
appearances and the danger that others may face upon the release
of the defendant. The court must state its reasons for its
ruling on the record.
Authorization for a Law Enforcement Officer, without a Hearing,
to Obtain an Order Increasing Bail or Prohibiting Own
Recognizance (OR) Release in a Case where the Arrested Person
may Fail to Return to Court or where a Domestic Violence Victim
or Family Member is Endangered
Section 1269c provides that under specified circumstances a
peace officer may seek an ex-parte order to raise the standard
bail or block own recognizance release. (Ex-parte orders are
those obtained without a hearing.) Such an order can be sought
where the peace officer believes that a person arrested without
a warrant would not return to court after release under the
standard bail or on the person's own recognizance, or that such
a release would endanger a domestic violence victim or the
victim's family member. The peace officer must make the request
pursuant to a written declaration under penalty of perjury.
Authorization for Arrested Person, without a Hearing, to Seek
Reduced Bail or an OR Release
Section 1269c also provides that an arrested person seek an
ex-parte order for OR release or reduced bail. The arrested
person's lawyer, family member or friend can also make the
application. Finally, Section 1269c provides that if the court
does not grant an order pursuant to the application of a peace
officer, arrested person or representative of the arrested
person, the arrested person shall be entitled to release
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according to the bail schedule.
Setting Priority among Bail Statutes through this Bill - Policy
Considerations
Sections 1269c and 1270.1 can be confusing to apply together.
The two sections could perhaps be read to be in conflict. This
bill would set clear policy and procedures, as outlined below:
Boiled down to its essence, this bill makes the following clear:
In a case where the defendant was arrested without a
warrant for a bailable felony offense or a misdemeanor
offense of violating a domestic violence restraining order,
a peace officer may obtain an order prohibiting OR release,
or an order setting bail in an amount in excess of that
prescribed in the bail schedule, for a felony or a
specified misdemeanor domestic violence charge, regardless
of whether or not the arrested person has been arrested for
a serious felony, intimidating a witness, stalking, spousal
rape, criminal threats, cohabitant abuse, or violating a
domestic violence restraining order, as specified.
An arrested person may seek an ex-parte order for OR
release or reduced bail, except where he or she was
arrested for a serious felony, intimidating a witness,
stalking, spousal rape, criminal threats, cohabitant abuse
or battery, or violating a domestic violence restraining
order, as specified.
This bill makes it clear that defendants have less ability to
obtain an OR release or reduced bail than law enforcement has to
have bail increased or OR releases prohibited in cases where the
defendant was arrested for a serious felony, intimidating a
witness, spousal abuse offenses or committing a specified
violation of a domestic violence restraining order. It could
thus be argued that this bill burdens arrested persons, persons
who are presumed innocent and constitutionally entitled to
reasonable bail.
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The California Attorneys for Criminal Justice (CACJ) vehemently
argue that the bill is unconstitutional because it provides
harsher bail rules for persons arrested for violation of
domestic violence misdemeanors than for other misdemeanors.
However, it does appear that the argument of CACJ applies not
simply to this bill, but to the constitutionality of Penal Code
section 1269c in existing law.
It should perhaps be noted in this regard that the 9th Circuit
(Federal) Court of Appeal held in Galen v. County of Los Angeles
(9th Cir. 2007) 477 F.3d 652, where bail was set at $1,000,000
for the alternate felony-misdemeanor of spousal battery, the
bail was not excessive under the federal constitution. Bail in
Galen appears to have been set pursuant to the procedures in
Penal Code Section 1269c, the section CACJ appears to claim is
unconstitutional. Galen arose in the context of a civil suit
filed after the underlying spousal battery case had been
dismissed. While the court did not consider whether or not
Section 1269c violates the California Constitution, the court
did note that California law included a comprehensive bail
setting and review system.
Law enforcement officers would likely point out that they have a
high burden in seeking an ex-parte order setting increased bail
because an officer must make a declaration under penalty of
perjury setting out facts that justify the increased bail or
that prohibit OR release. At the time of arrest, law enforcement
officer might well know more about the case than any person,
with perhaps the exception of the defendant. An arrested person
or his representative need not make a declaration under penalty
of perjury. No specific factual justification is required.
Further, it appears that a defendant is entitled to a hearing
for reduction of bail or for an OR release after the court has
granted a law enforcement application to set bail higher than
provided in the schedule. The critical question presented by
this bill may be whether allowing law enforcement greater
ability to affect bail decisions prior to the beginning of court
proceedings is necessary for the protection of the public and
assuring that defendants will return to court.
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EXISTING LAW PROVIDES THAT WHERE A PERSON HAS BEEN ARRESTED FOR
A SPECIFIED OFFENSE, SUCH AS A SERIOUS FELONY OR VIOLATION OF A
DOMESTIC VIOLENCE RESTRAINING ORDER, THE COURT MUST HOLD A
HEARING BEFORE BAIL CAN BE SET IN AMOUNT THAT IS LOWER OR
GREATER THAN THE AMOUNT SET IN THE BAIL SCHEDULE.
SHOULD THE LAW SPECIFY THAT A PEACE OFFICER, PURSUANT TO AN
EXISTING LAW APPLICABLE TO ANY BAILABLE OFFENSE, MAY OBTAIN AN
EX-PARTE ORDER SETTING BAIL ABOVE THE SCHEDULED AMOUNT OR
PROHIBIT OWN RECOGNIZANCE RELEASE?
SHOULD THE LAW ALSO SPECIFY THAT AN ARRESTED PERSON WHO IS
CHARGED WITH A SERIOUS FELONY, AS SPECIFIED, SPOUSAL RAPE,
STALKING, INFLICTING CORPORAL INJURY ON A SPOUSE, BATTERY ON A
SPOUSE, DISSUADING A WITNESS, OR CRIMINAL THREATS, MAY NOT
OBTAIN AN EX-PARTE ORDER FOR RELEASE ON THE PERSON'S OWN
RECOGNIZANCE OR RELEASE ON REDUCED BAIL?
3. Argument in Opposition
The California Attorneys for Criminal Justice (CACJ)
oppose SB 1049 because the bill is unconstitutional on
its face. The purpose of bail is not to punish, but to
secure the appearance of the defendant. Fixing
arbitrary bail is undesirable and unlawful. (In re
Berman (1930) 105 Cal.App. 270.) SB 1049 would allow
bail to be fixed [in excess of] the bail schedule on
an arbitrarily selected class of misdemeanor cases
without notice or hearing. [The bill would] enable and
perhaps encourage coercion of guilty pleas by
conferring unfair bargaining power of offering release
from jail in order to induce and to secure the
criminal convictions of [the innocent]. If SB 1049
becomes law, many innocent persons, or those with
valid defenses, who would otherwise opt for reasonable
bail and further fact finding would, under this law,
be put to the Hobson's choice of pleading guilty in
order to obtain their release from incarceration. CACJ
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believes that California should not be in the business
of forcing people to forgo one essential right in
order to preserve another.
Article I, section 12, of the California Constitution
provides that bail [shall be] based on seriousness of
the crime, the record of the accused and probability
of his or her showing up in court. (Brosnahan v.
Brown (1982) 32 Cal.3d 236, 255.) Only these criteria
may be used to set bail [and conflicting statutes must
give way to these constitutional provisions. (Marbury
v. Madison (1803) 5 U.S. 137, 177-178.). SB 1049
would create a "special statute" in deviation from the
general bail provisions in the Constitution,
provisions that must be applied uniformly. Thus, any
deviation from existing bail schedules that would
result from passage of this Bill would violate Cal.
Const, Art. IV 16 (b). The resulting specially
increased bail would blur the distinction between
misdemeanor and felony offenses allowing [excessive]
bail. (Ex Parte Rvan (1872) 44 Cal. 555,558.)
SB 1049 would arbitrarily [give preference] to [those]
not charged with violations of domestic violence
restraining orders arbitrarily. [SB 1049 provides no]
legislative findings that [such preferences are
justified]. This severely taxes Article I 7 of the
Constitution, perhaps to the breaking point. The
"decision of the Legislature to distinguish between
similar criminal acts is subject to equal protection
scrutiny." People v. Hofsheier (2006) 37 Cal.4th 1185,
1199.) There is no rational distinction between those
charged with violation of domestic violence
restraining orders and those charged with similar
[non-compliance] with other court orders. CACJ
strongly opposes this proposed legislation.
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