BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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AB 178 (Gorell)
As Amended March 22, 2011
Hearing date: June 28, 2011
Penal Code
SM:dl
PRETRIAL RELEASES:
PROMISE TO APPEAR
HISTORY
Source: California District Attorneys Association
Prior Legislation: SB 1571 (Kopp) - Chapter 354, Stats. of 1996
Support: American Federation of State, County and Municipal
Employees (AFSCME); Chambers of Commerce Alliance of
Ventura and Santa Barbara Counties; City of Oxnard
Police Department; Association of LA Deputy Sheriffs;
LA County Probation Officers Union; Riverside
Sheriffs' Association; Chief Probation Officers of
California; California State Sheriffs' Association;
Santa Barbara Sheriff
Opposition:California Public Defenders Association
Assembly Floor Vote: Ayes 75 - Noes 0
KEY ISSUES
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SHOULD IT BE REQUIRED THAT ANY PERSON RELEASED FROM COUNTY JAIL
BEFORE SENTENCING DUE TO A COURT ORDER OR POLICY TO RELIEVE
OVERCROWDING SIGN A RELEASE AGREEMENT, AS SPECIFIED?
(CONTINUED)
SHOULD THE SAME PENALTIES APPLY TO A PERSON RELEASED UNDER COURT
ORDER OR POLICY TO RELIEVE OVERCROWDING WHO THEN FAILS TO APPEAR AS
WOULD APPLY TO A PERSON RELEASED ON THEIR "OWN RECOGNIZANCE"?
SHOULD THE SAME PENALTY ENHANCEMENT APPLY TO A PERSON RELEASED DUE
TO A COURT ORDER OR POLICY TO RELIEVE OVERCROWDING WHO COMMITS A NEW
FELONY OFFENSE WHILE ON RELEASE AS WOULD APPLY TO A PERSON WHO
COMMITS SUCH AN OFFENSE WHILE ON AN "OWN RECOGNIZANCE" RELEASE?
PURPOSE
The purpose of this bill is to (1) require any person released
from county jail before sentencing due to a court order or
policy to relieve overcrowding to sign a release agreement, as
specified; (2) apply the same penalties to a person released
under court order or policy to relieve overcrowding and who
fails to appear as would apply to a person released on their
"own recognizance"; and (3) apply the same penalty enhancement
to a person released due to a court order or policy to relieve
overcrowding who commits a new felony offense while on release
as would apply to a person who commits such an offense while on
an "own recognizance" release.
Existing 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
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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.
(Penal Code � 1275(a).)
Existing law 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. (Penal Code � 1320(a).)
Existing law 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. (Penal Code � 1320(b).)
Existing law 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 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. (Penal Code � 12022.1(a)(1).)
Existing law defines a "secondary offense" as a felony offense
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alleged to have been committed while the person is released from
custody for a primary offense. (Penal Code � 12022.1(a)(2).)
Existing law 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. (Penal Code � 12022.1(b).)
Existing law 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.
(Penal Code � 12022.1(c).)
Existing law 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.
(Penal Code � 12022.1(d).)
Existing law 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. (Penal
Code � 12022.1(e).)
Existing law states that if the person is convicted of a felony
for the primary offense, is granted probation for the primary
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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. (Penal Code �
12022.1(f).)
Existing law 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. (Penal
Code � 12022.1(g).)
This bill would require any defendant released from custody
prior to sentencing pursuant to a court order or policy
mandating the release of inmates when the jail reaches a certain
capacity to sign a release agreement that includes the
following:
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;
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;
The defendant's promise to obey all reasonable
conditions imposed by the court or magistrate;
The defendant's promise not to depart California without
leave of the court;
Agreement by the defendant to waive extradition if the
defendant fails to appear as required and is apprehended
outside the State of California; and,
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.
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This bill would apply the same penalties that currently apply to
an individual who fails to appear when released under his or her
own recognizance to any person who fails to appear after being
released prior to sentencing from a county jail pursuant to a
court order or policy mandating the release of inmates when the
jail reaches a certain capacity.
This bill would apply the same two-year penalty enhancement
currently applicable to a person arrested for a new felony
offense committed while the person is on an "own recognizance"
release for a previous offense to persons released prior to
sentencing from a county jail pursuant to a court order or
policy mandating the release of inmates when the jail reaches a
certain capacity.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
As these cases have progressed, prison conditions have
continued to be assailed, and the scrutiny of the federal courts
over California's prisons has intensified.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
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decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances.
In response to the unresolved prison capacity crisis, in early
2007 the Senate Committee on Public Safety began holding
legislative proposals which could further exacerbate prison
overcrowding through new or expanded felony prosecutions.
This bill does appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
According to the author:
In light of the recent Federal Court order to release
33,000 inmates and the ongoing release of defendants
due to overcrowded conditions in our county jails,
many are failing to appear in court and are committing
new offenses upon release. Unlike defendants who are
released on their own recognizance or on bail, there
is a lack of statutory guidance as to conditions of
release for these inmates, as well as penalties for
failing to appear or the commission of new crimes.
Currently, 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
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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.
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
statue.
To that end, AB 178 will update and augment current
statues to (1) require defendants released prior to
sentencing by count 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 exists for persons
released on their own recognizance.
2. Forms of Pretrial Release
Right to Bail
In general, persons arrested are entitled to release on bail
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while awaiting trial, consistent with considerations of public
safety. (U.S.Const., 8th Amend.; Cal. Const., Art. I, � 12.)
Exceptions are:
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.)
Own Recognizance (OR)
A person may be released on his or her OR in the court's
discretion. (Cal. Const. art I, Section 12; Penal Code Section
1270(a).) A defendant charged with only misdemeanor offenses,
including a defendant arrested on an out of county warrant, is
entitled to release on OR unless it will compromise public
safety or will not reasonably ensure the defendant's appearance
in court. (Penal Code Section 1270(a).) Courts consider
factors that relate to the individual defendant, the general
welfare of persons accused of similar crimes to appear for
trial, is not a reason to deny O.R. release. (People v. Arnold
(1976) 58 Cal.App.3d Supp. 1.)
A defendant must sign a release agreement and file it with the
clerk of the court to be released on OR. (Penal Code � 1318.)
The release includes:
The defendant's promise to appear at all times and
places as ordered;
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The defendant's promise to obey all reasonable
conditions imposed by the court;
The defendant's promise not to leave the state without
the court's permission;
The defendant's agreement to waive extradition, if it
becomes necessary; and,
The defendant's acknowledgement that he or she has been
informed of the consequences of violating the conditions of
release.
3. County Jail Inmates and Court-Ordered Population Caps
Some county jail inmates are held while they await trial and
some have been tried and convicted and are serving the sentence
imposed by the court. A court-ordered population cap mandates
the number of people that may legally be held in a given jail at
any given time. If a Sheriff were to release a pretrial
detainee without that person being granted O/R or bail by a
judge, in order to comply with a court-ordered population cap
that would be a discretionary decision by that sheriff, and it
is not clear that any sheriff has done this. The Los Angeles
Sheriff's Department has informed Committee staff that this does
not happen in Los Angeles County Jails, although they are under
a federal court-ordered population cap.
ARE PRETRIAL DETAINEES BEING RELEASED WITHOUT BEING GRANTED O/R
OR BAIL BY A JUDGE?
WOULD A COURT-ORDERED POPULATION CAP REQUIRE SUCH RELEASES?
4. Argument in Support
The Riverside Sheriffs' Association states:
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Existing law does not allow the defendant in a
criminal case to be released from custody until he or
she files a signed release that includes the
defendant's promise to appear at all times and places
as ordered by the court, obey conditions as
instructed, not to depart from the state, waive
extradition, and so on.
AB 178 requires a defendant who is being released
prior to sentencing by county jail personnel and
pursuant to a prior federal court order mandating the
release of inmates, to sign a specific release
agreement that includes the language from the above
Penal Code section. Thereafter, if the released
person, upon call, fails to appear, he or she will be
guilty of an additional punishable enhancement charge
for their misdemeanor or felony, dependent upon the
seriousness and conviction of the original charge.
This bill adds a new calculation into law as
California inmates are released due to overcrowded
jails.
5. Argument in Opposition
The California Public Defenders Association states:
When the superior court has already given an
individual a date to appear on a particular case, the
jail's promise to appear in that case should require
the person to appear on those same dates, rather than
on different dates. Unfortunately, this is not always
the case in practice. In some counties, the jail
often gives such defendants an appearance date on
their case that is different from the date already
given by the superior court. This is an ongoing
problem that causes great inconvenience to courts and
defendants alike, and sometimes leads to legal
entanglements as to whether a defendant really has
failed to appear as ordered, and what actions, if any,
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the courts can take.
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