BILL ANALYSIS
Senate Appropriations Committee Fiscal Summary
Senator Christine Kehoe, Chair
1049 (Harman)
Hearing Date: 05/03/2010 Amended: 04/12/2010
Consultant: Jacqueline Wong-HernandezPolicy Vote: Public Safety
4-3
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BILL SUMMARY: SB 1049 specifies that: 1) a peace officer,
through a declaration of facts made under penalty of perjury
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 spouse, battery on a spouse,
dissuading a witness, violation of a domestic violence
restraining order, or criminal threats; and 2) that an arrested
person may not obtain release through an ex-parte application if
he or she has been charged with such a crime.
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Fiscal Impact (in thousands)
Major Provisions 2010-11 2011-12 2012-13 Fund
See staff comments.
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STAFF COMMENTS: 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 has discretion to set bail on appropriate
terms and conditions.
If no change in bail is made within eight hours following
application, the defendant shall be entitled to release
pursuant to the bail schedule. (Pen. Code 1269c.)
Existing law also provides that before any person arrested for a
serious or violent felony, 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/her own recognizance, a hearing must
be held in open court before the magistrate or judge. (Pen.
Code 1270.1 (a).)
Page 2
SB 1049 (Harman)
This bill specifies that a judge has the authority to increase
bail, as discussed, without holding a hearing. Specifically,
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 also 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 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
specified, cohabitant or spousal abuse, as specified, or
violating a domestic violence restraining order, as
specified.
This bill makes changes statutes governing the authority to
increase bail amounts for individuals charged with specified
violent crimes. Because bail is requested, determined, set, and
enforced at the local level, there is no state cost to the bill.
Changing bail regulations is not a reimbursable mandate.