BILL NUMBER: AB 178	INTRODUCED
	BILL TEXT


INTRODUCED BY   Assembly Members Gorell and Williams

                        JANUARY 24, 2011

   An act to amend Sections 1320 and 12022.1 of, and to add Section
1318.2 to, the Penal Code, relating to county jails.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 178, as introduced, Gorell. County jail: release pursuant to
federal court order.
   Under existing law, a defendant in a criminal case shall not be
released from custody under his or her own recognizance until he or
she files a signed release agreement that includes the defendant's
promise to appear at all times and places as ordered by the court
where the charge is pending, to obey conditions imposed by the court,
to not depart the state without leave of the court, to waive
extradition if the defendant fails to appear, and an acknowledgment
that the defendant has been informed of the consequences and
penalties applicable to a violation of the conditions of release.
   This bill would require a defendant who is being released prior to
sentencing by county jail personnel, pursuant to a federal court
order mandating the release of inmates, to sign a release agreement
with the same requirements as those pertaining to a defendant who is
released under his or her own recognizance, including the defendant's
promise to appear at the time and place the defendant is given in
writing by the jail personnel at the time of release.
   Existing law provides that a person who has been released pursuant
to the above agreement and who fails to appear, as specified, is
guilty of a misdemeanor if the underlying charge or conviction is a
misdemeanor, or of a felony, punishable by imprisonment in state
prison or county jail, or a fine not exceeding $5,000, or both, if
the underlying charge or conviction is a felony.
   This bill would apply these same penalties to someone who fails to
appear after being released prior to sentencing from a county jail
pursuant to a federal court order mandating the release of inmates.
Because this bill would create new crimes, it would impose a
state-mandated local program.
   Existing law imposes a penalty enhancement of 2 additional years
in state prison, to be served consecutively to any other term, for a
person arrested for a felony offense alleged to have been committed
while the person was released from custody on bail or on his or her
own recognizance prior to the judgment becoming final.
   This bill would apply this 2-year penalty enhancement to a person
arrested for a felony offense alleged to have been committed while
the person was released prior to sentencing from a county jail
pursuant to a federal court order mandating the release of inmates.
   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.
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 1318.2 is added to the Penal Code, to read:
   1318.2.  (a) Any defendant released prior to sentencing by county
jail personnel pursuant to a federal court order mandating the
release of inmates when the jail facility reaches a certain capacity
shall sign a release agreement that includes all of the following:
   (1) The defendant's promise to appear at the time and place the
defendant is given in writing by the jail personnel at the time of
release.
   (2) The defendant's promise to appear at all times and places the
defendant is ordered at subsequent hearings by the court or
magistrate and as ordered by any court in which, or any magistrate
before whom, the charge is pending.
   (3) The defendant's promise to obey all reasonable conditions
imposed by the court or magistrate.
   (4) The defendant's promise not to depart this state without leave
of the court.
   (5) Agreement by the defendant to waive extradition if the
defendant fails to appear as required and is apprehended outside the
State of California.
   (6) The acknowledgment of the defendant that he or she has been
informed of the consequences and penalties applicable to violation of
the conditions of release.
  SEC. 2.  Section 1320 of the Penal Code is amended to read:
   1320.  (a) Every person who is charged with or convicted of the
commission of a misdemeanor who is released from custody  on
his or her own recognizance   pursuant to Section 1318
or 1318.2  and who in order to evade the process of the court
willfully fails to appear as required, is guilty of a misdemeanor. It
shall be presumed that a defendant who willfully fails to appear
within 14 days of the date assigned for his or her appearance
intended to evade the process of the court.
   (b) Every person  who is  charged with or
convicted of the commission of a felony who is released from custody
 on his or her own recognizance   pursuant to
  S   ection 1318 or 1318.2  and who  ,
 in order to evade the process of the court  , 
willfully fails to appear as required  ,  is guilty
of a felony  ,  and  ,  upon conviction
 ,  shall be punished by a fine not exceeding five thousand
dollars ($5,000) or by imprisonment in the state prison, or in the
county jail for not more than one year, or by both that fine and
imprisonment. It shall be presumed that a defendant who willfully
fails to appear within 14 days of the date assigned for his or her
appearance intended to evade the process of the court.
  SEC. 3.  Section 12022.1 of the Penal Code is amended to read:
   12022.1.  (a) For the purposes of this section only:
   (1) "Primary offense" means a felony offense for which a person
has been released from custody on bail or  on his or her own
recognizance   pursuant to Section 1318 or 1318.2 
prior to the judgment becoming final, including the disposition of
any appeal, or for which release on bail or his or her own
recognizance has been revoked. In cases where the court has granted a
stay of execution of a county jail commitment or state prison
commitment, "primary offense" also means a felony offense for which a
person is out of custody during the period of time between the
pronouncement of judgment and the time the person actually surrenders
into custody or is otherwise returned to custody.
   (2) "Secondary offense" means a felony offense alleged to have
been committed while the person is released from custody for a
primary offense.
   (b) Any person arrested for a secondary offense which was alleged
to have been committed while that person was released from custody on
a primary offense shall be subject to a penalty enhancement of an
additional two years in state prison which shall be served
consecutive to any other term imposed by the court.
   (c) The enhancement allegation provided in subdivision (b) shall
be pleaded in the information or indictment which alleges the
secondary offense, or in the information or indictment of the primary
offense if a conviction has already occurred in the secondary
offense, and shall be proved as provided by law. The enhancement
allegation may be pleaded in a complaint but need not be proved at
the preliminary hearing or grand jury hearing.
   (d) Whenever there is a conviction for the secondary offense and
the enhancement is proved, and the person is sentenced on the
secondary offense prior to the conviction of the primary offense, the
imposition of the enhancement shall be stayed pending imposition of
the sentence for the primary offense. The stay shall be lifted by the
court hearing the primary offense at the time of sentencing for that
offense and shall be recorded in the abstract of judgment. If the
person is acquitted of the primary offense the stay shall be
permanent.
   (e) If the person is convicted of a felony for the primary
offense, is sentenced to state prison for the primary offense, and is
convicted of a felony for the secondary offense, any state prison
sentence for the secondary offense shall be consecutive to the
primary sentence.
   (f) If the person is convicted of a felony for the primary
offense, is granted probation for the primary offense, and is
convicted of a felony for the secondary offense, any state prison
sentence for the secondary offense shall be enhanced as provided in
subdivision (b).
   (g) If the primary offense conviction is reversed on appeal, the
enhancement shall be suspended pending retrial of that felony. Upon
retrial and reconviction, the enhancement shall be reimposed. If the
person is no longer in custody for the secondary offense upon
reconviction of the primary offense, the court may, at its
discretion, reimpose the enhancement and order him or her recommitted
to custody.
  SEC. 4.  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.