BILL ANALYSIS �
AB 178
Page 1
ASSEMBLY THIRD READING
AB 178 (Gorell and Willilams)
As Amended March 22, 2011
Majority vote
PUBLIC SAFETY 6-0 APPROPRIATIONS 17-0
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|Ayes:|Ammiano, Knight, Cedillo, |Ayes:|Fuentes, Harkey, |
| |Hagman, Hill, Mitchell | |Blumenfield, Bradford, |
| | | |Charles Calderon, Campos, |
| | | |Davis, Donnelly, Gatto, |
| | | |Hall, Hill, Lara, |
| | | |Mitchell, Nielsen, Norby, |
| | | |Solorio, Wagner |
| | | | |
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SUMMARY : Modifies existing law to apply the same sanctions for
failures to appear in criminal proceedings to individuals released
pursuant to a federal court order mandating the release of inmates.
Specifically, this bill :
1)Creates procedures for defendants who are released from custody
prior to sentencing pursuant to a federal court order to sign a
release agreement. The release agreement shall include the
following:
a) 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;
b) 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;
c) The defendant's promise to obey all reasonable conditions
imposed by the court or magistrate;
d) The defendant's promise not to depart California without
leave of the court;
e) Agreement by the defendant to waive extradition if the
defendant fails to appear as required and is apprehended outside
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the State of California; and,
f) 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.
2)Applies these same penalties for an individual who fails to appear
when released under his or her own recognizance to another person
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.
3)Applies the same two-year penalty enhancement to a person arrested
for a felony offense alleged to have been committed while the
person while a person is release on his or her own recognizance to
persons released prior to sentencing from a county jail pursuant to
a federal court order mandating the release of inmates.
EXISTING LAW :
1)Specifies that 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 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.
2)States that 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 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 $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.
3)Defines a "primary offense" as a felony offense for which a person
has been released from custody on bail or on his or her own
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recognizance 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 is defined as 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.
4)Defines a "secondary offense" as a felony offense alleged to have
been committed while the person is released from custody for a
primary offense.
5)States that 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.
6)Provides that the enhancement allegation provided shall be pled 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.
7)States that 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.
8)Provides that 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.
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9)States that 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 by an
additional two years as specified.
10)Provides that 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.
FISCAL EFFECT : According to the Assembly Appropriations Committee:
1)Unknown annual General Fund (GF) costs, potentially in excess of
$150,000, for additional state prison commitments. From 2007
through 2010, 190 persons were committed to state prison for
failure to appear. If this bill results in an additional four
commitments, serving one year each, annual GF costs would be about
$250,000, based on per capita inmate costs of $50,000.
2)In addition, while enhancement data shows no enhancements in 2008
through 2010 for committing a felony while released on their own
recognizance, expanding the existing enhancement to specifically
include persons released due to capacity orders, could result in
additional state prison commitments.
COMMENTS : According to the author, "�c]urrently, Penal Code section
1318 lists the requirements for a defendant to be released on his or
her own recognizance. It requires a defendant to file a signed
release agreement that includes the defendant's promise to appear at
all times and places as ordered by the court or magistrate.
"Once released on his or her own recognizance, if a defendant fails
to appear at a court hearing then a new charge, either a misdemeanor
or a felony based on the underlying offense, can be filed under Penal
Code section 1320. Furthermore, pursuant to Penal Code section
12022.1, if a defendant released on bail or on his or her own
recognizance commits a new felony and is convicted of both the
original crime and new crime, there is an enhancement of an
additional two years in state prison served consecutively to any
other term imposed by the court.
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"A majority of California counties are under population caps that
require jails to release inmates when they reach a certain capacity.
These releases are done by jail staff and not a magistrate or judge,
as contemplated in Penal Code section 1318. A substantial number of
these inmates are failing to appear and/or committing new offenses
upon release. Under the current system, there is no guidance as to
the sanctions for inmates who fail to appear or commit new crimes
after their release. The results of this new paradigm in local
corrections must be addressed in statute.
"To that end, AB 178 will update and augment current statutes to:
(1) require defendants released prior to sentencing by county jail
personnel and pursuant to a federal court order mandating the release
of inmates when the jail facility reaches a certain capacity, to sign
a release agreement; and (2) conform penalties for defendants who
fail to appear or commit a subsequent crime to those that exist for
persons released on their own recognizance."
Please see the policy committee for a full discussion of this bill.
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916) 319-3744
FN: 0000891