BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 1049|
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THIRD READING
Bill No: SB 1049
Author: Harman (R)
Amended: 4/12/10
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 4-3, 4/20/10
AYES: Cogdill, Cedillo, Huff, Wright
NOES: Leno, Hancock, Steinberg
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
SUBJECT : Bail and own recognizance release
SOURCE : California Judges Association
DIGEST : This bill specifies 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 spouse, battery on a spouse,
dissuading a witness, violation of a domestic violence
restraining order, or criminal threats. This bill also
specifies that an arrested person may not obtain release
through an ex-parte application if he/she has been charged
with such a crime.
CONTINUED
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ANALYSIS : 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. (Eighth Amendment of the
United States Constitution)
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:
1. Capital crimes.
2. 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.
3. 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.
4. The court, in setting bail, shall consider the
seriousness of the offense, the defendant's criminal
record, and the probability of his/her return to court.
The court, in its discretion, may release a person on
his/her own recognizance. (Section 12, Article I of the
California Constitution)
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 weapon in the commission of the crime charged, and
the alleged use or possession of controlled substances by
the defendant. (Section 1275(a) of the Penal Code)
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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. (Section 1269b, (c)-(e) of the Penal Code)
Existing law provides that any person arrested for, or
charged with, an offense other than a capital offense may
be released on his/her own recognizance by a court or
magistrate who could release a defendant from custody upon
the defendant giving bail. (Section 1270 of the Penal
Code)
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:
1. 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.
2. The declaration of the officer shall be made under
penalty of perjury.
3. The defendant may apply to be released on bail in an
amount lower than the schedule provides or on his or her
own recognizance.
4. The defendant's application may be made personally,
through counsel, or by a family member or friend.
5. The court or magistrate has discretion to set bail on
terms and conditions that are appropriate.
6. If no change in bail is made within eight hours
following application, the defendant shall be entitled
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to release pursuant to the bail schedule. (Section
1269c of the Penal Code)
Existing law provides that before any person arrested for a
serious or violent felony (except residential burglary),
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. (Section 1270.1 (a) of the
Penal Code)
This bill amends Section 1270.1 of the Penal Code 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 Section 1269c of the Penal Code to
explicitly provide that an arrested person, or his/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 Section 1270.1
of the Penal Code, 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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
SUPPORT : (Verified 5/11/10)
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California Judges Association (source)
California State Sheriffs' Association
OPPOSITION : (Verified 5/11/10)
California Attorneys for Criminal Justice
California Public Defenders Association
Taxpayers for Improving Public Safety
ARGUMENTS IN SUPPORT : According to the author's office:
"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."
ARGUMENTS IN OPPOSITION : The California Attorneys for
Criminal Justice (CACJ) 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.
CACJ opposes this bill 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
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bail is undesirable and unlawful. ( In re Berman (1930) 105
Cal.App. 270.) This bill allows 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 believes that California should
not be in the business of forcing people to forgo one
essential right in order to preserve another."
RJG:mw 5/11/10 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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