BILL ANALYSIS �
AB 2388
Page 1
Date of Hearing: April 22, 2014
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2388 (Hagman) - As Amended: March 28, 2014
As Proposed to be Amended in Committee
SUMMARY : Mandates the Judicial Council to prepare, adopt, and
annually revise a statewide bail schedule for all bailable
felony offenses and for all misdemeanor and infraction offenses
except Vehicle Code infractions. Specifically, this bill :
1)Requires the Judicial Council to appoint a group of judges,
deemed by the council sufficient to adequately represent
counties varying in size from throughout the state, to develop
and approve the statewide bail schedule.
2)States that in preparing, adopting, and annually revising the
statewide bail schedule, the Judicial Council shall consult
with the following representatives:
a) A representative appointed by the California District
Attorneys Association;
b) A representative appointed by the California Public
Defenders Association;
c) A representative appointed by the California Attorneys
for Criminal Justice; and,
d) A representative appointed by the California State
Sheriffs' Association.
3)Provides in preparing, adopting, and annually revising the
statewide bail schedule, the Judicial Council shall receive
and consider input regarding the statewide bail schedule from
interested parties other than those specified above.
4)Specifies in adopting the statewide bail schedule for all
bailable felony offenses the Judicial Council shall consider
the seriousness of the offense charged; and in considering the
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seriousness of the offense charged the Judicial Council shall
assign an additional amount of required bail for each
aggravating or enhancing factor chargeable in the complaint,
including, but not limited to, additional bail for charges
alleging facts that would bring a person within specified
sections of the Penal Code and the Health and Safety Code.
5)Provides in considering offenses in which a violation of a
controlled substance offense is alleged, the Judicial Council
shall assign an additional amount of required bail for
offenses involving large quantities of controlled substances.
6)Requires the statewide bail schedule to contain a list of the
offenses and the amounts of bail applicable for each as the
Judicial Council determines to be appropriate; and if the
schedule does not list all offenses specifically, it shall
contain a general clause for designated amounts of bail as the
Judicial Council determines to be appropriate for all the
offenses not specifically listed in the schedule.
7)States that the Judicial Council shall adopt California Rules
of Court consistent with the provisions in this bill.
8)States that it is the intent of the Legislature that the
Judicial Council prepare, adopt and annually revise an
advisory statewide bail schedule that counties may reference
when setting a countywide bail schedule.
EXISTING LAW :
1)Prohibits excessive bail. (Cal. Const., art. I, sec. 12.)
2)States that it is the duty of the superior court judges in
each county to prepare, adopt, and annually revise a uniform
countywide schedule of bail for all bailable felony offenses
and for all misdemeanor and infraction offenses except Vehicle
Code infractions. The penalty schedule for infraction
violations of the Vehicle Code shall be established by the
Judicial Council. (Pen. Code, � 1269b, subd. (c).)
3)Allows a court, by local rule, to prescribe the procedure by
which the uniform countywide schedule of bail is prepared,
adopted, and annually revised by the judges. If a court does
not adopt a local rule, the uniform countywide schedule of
bail shall be prepared, adopted, and annually revised by a
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majority of the judges. (Pen. Code, � 1269b, subd. (d).)
4)Provides in adopting a uniform countywide schedule of bail for
all bailable felony offenses the judges shall consider the
seriousness of the offense charged. In considering the
seriousness of the offense charged the judges shall assign an
additional amount of required bail for each aggravating or
enhancing factor chargeable in the complaint. In considering
offenses in which a violation of a controlled substance
offense is alleged, the judge shall assign an additional
amount of required bail for offenses involving large
quantities of controlled substances. (Pen. Code, � 1269b,
subd. (e).)
5)Requires the countywide bail schedule to contain a list of the
offenses and the amounts of bail applicable for each as the
judges determine to be appropriate. If the schedule does not
list all offenses specifically, it shall contain a general
clause for designated amounts of bail as the judges of the
county determine to be appropriate for all the offenses not
specifically listed in the schedule. A copy of the countywide
bail schedule shall be sent to the officer in charge of the
county jail, to the officer in charge of each city jail within
the county, to each superior court judge and commissioner in
the county, and to the Judicial Council. (Pen. Code, � 1269b,
subd. (f).)
6)Specifies if a defendant has appeared before a judge of the
court on the charge contained in the complaint, indictment, or
information, the bail shall be in the amount fixed by the
judge at the time of the appearance. If that appearance has
not been made, the bail shall be in the amount fixed in the
warrant of arrest or, if no warrant of arrest has been issued,
the amount of bail shall be pursuant to the uniform countywide
schedule of bail for the county in which the defendant is
required to appear, previously fixed and approved. (Pen.
Code, � 1269b, subd. (b).)
7)Lists several factors that the court must consider in setting,
reducing, or denying bail: the protection of the public, the
seriousness of the charged offense, the defendant's prior
criminal record, and the probability of his or her appearing
at trial or hearing of the case. Public safety is the primary
consideration. (Pen. Code, � 1275, subd. (a).)
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8)Requires the Judicial Council to annually adopt a uniform
traffic penalty schedule which shall be applicable to all
nonparking infractions specified in the Vehicle Code, unless
in a particular case before the court the judge or authorized
hearing officer specifies a different penalty. In
establishing a uniform traffic penalty schedule, the Judicial
Council shall classify the offenses into four or fewer penalty
categories, according to the severity of offenses, so as to
permit convenient notice and payment of the scheduled penalty.
(Veh. Code, � 40310.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "To ensure the
reduction in jail overcrowding and the migration of criminals
amongst them, we must create predictability in the states bail
schedules."
2)Background : According to the background materials provided by
the author, "Under existing law, counties are charged with
creating an annual bail schedule that applies to their
respective district. With each county creating their schedule,
bail for a specific crime in one county could vary
significantly in a different county.
"This disparity creates unequal protection under the law. For
instance, the felony of grand theft bail schedules could range
from $5,000 in Placer County to $50,000 in San Bernardino
County.
"As has been seen in Southern California, often when one
county raises the bail amounts the counties near them feel
pressure to follow suit. Once bail amounts become too high
for the accused to pay, they stay in jail until their court
date. This causes overcrowded conditions which necessitates
their release without any assurance they will appear for their
court date. In addition, if an individual is released by
posting bail they are 60% more likely to appear in court for
their hearing."
3)Bail Generally : Existing law provides a process whereby the
court may set a bail amount for a criminal defendant. (Penal
Code Section 1269b.) Additionally, Section 12 of Article 1 of
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the California Constitution provides, with limited exceptions,
that a criminal defendant has a right to bail and what
conditions shall be taken into consideration in setting bail.
A defendant may post bail by depositing cash or an equivalent
form of currency, provide a security in real property, or
undertake bail using a bail bond. The bail bond is the most
likely means by which a person posts bail and is essentially a
private-party contract that provides the court with a
guarantee that the defendant will appear for a hearing or
trial. A defendant would pay a licensed bail agent a
percentage of the total amount of bail ordered as a
non-refundable fee - often an amount in the range of 10%. The
bail agent will contract with a surety company to issue a bail
bond - essentially an insurance policy. The bond is issued
providing that if the defendant fails to appear, the county
will receive the full amount of bail set by the court. The
bond is provided to the court and, if accepted, the defendant
is released.
As designed, the bail system often allows the court to rely on
the private sector to ensure appearances and provide a means
for the county to be made whole in the event that a person
fails to appear.
4)Bail Schedules : Currently, Judicial Council is responsible
for annually revising and adopting a statewide bail schedule
for certain vehicle code non-parking offenses. (Vehicle Code
Section 40310.) Bail for all other felony, misdemeanor and
infraction offenses are set in a countywide bail schedule set
by the presiding judge of the superior court in each county.
These schedules usually list the offense by code section and
description, and indicate the recommended amount of bail. The
schedules also specify additional amounts for cases in which
sentence-enhancing allegations or extraordinary facts exist.
The county jails have a copy of the bail schedule so that a
defendant may post bail to effect his or her release prior to
the initial court appearance. The court will also set bail at
the defendant's initial court appearance. The judge may set
bail at any amount he or she deems sufficient to ensure the
defendant's appearance in court, but the usual practice is to
adhere to the amount set in the county's bail schedule. The
court may depart from the bail schedule based on aggravating
factors to increase bail, or mitigating factors to decrease
it.
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5)Little Hoover Commission Report : In its 2013 report on Bail
and Pre-Trial Services, the Little Hoover Commission
recommended that the Legislature should set criteria for
setting bail schedules. The report stated that "[t]he
Commission recognizes the need for local courts to have the
latitude to set bail schedules to reflect local conditions. It
is important for judges to be able to set schedules, rules,
and fines in the manner they determine best meets the
conditions they see every day. They can be held accountable
for these decisions by voters.
"In assessing the differences in county bail schedules,
however, the Commission is troubled that significant
differences in bail for the same offense, often in adjoining
counties, may raise Constitutional questions regarding the
prohibition of excessive bail. Disparities in bail practices
across counties may be exacerbating the problem of jail
population management and result in the incarceration of
untried defendants who may not pose a flight risk or a threat
to public safety, keeping them away from their families and
jobs.
"The purpose of this study is not to suggest a statewide bail
schedule. Our focus is on the interrelationship with bail
setting and the critical - and growing - problem of
overcrowding in county facilities housing pre-trial detainees,
and the use of evidence-based practices in making pre-trial
custody determinations. Bail is among the oldest of
'evidence-based' tools to ensure the defendant's presence at
trial. It is vital to public safety and the integrity of the
criminal justice system. It also can be abused. Bail standards
must be tied to the specific factual circumstances of the
detainee's alleged offense and prior criminal history. They
are not a space management tool for our county facilities. The
Commission is concerned that the procedures for setting bail,
as well as the amounts required to be posted, may drift from
its primary purpose, as the counties deal with the realities
that there is not space to house pre-trial detainees and
convicted offenders.
"Rather than seek a statewide standard bail schedule, the
Commission recommends that the state establish objective
criteria for bail schedules to ensure that bail schedules are
consistent in their aims statewide and that courts provide an
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objective rationale for such practices as bail stacking. The
recommended bail criteria could represent a benchmark and
require counties that deviate significantly to explain their
schedules in an appropriate public format. The effort could
also set parameters that discourage excessive bail stacking in
individual counties." (Little Hoover Commission, Letter to
Governor Brown and the Legislature on Bail and Pre-Trial
Services (May 30, 2013) pp. 5-6.)
This bill creates an advisory statewide bail schedule that
counties may reference when setting their own countywide bail
schedules. The purpose of the advisory statewide bail
schedule is to provide guidelines to create more consistency
in the countywide schedules.
6)Prior Legislation :
a) AB 1118 (Hagman), of the 2013-14 Legislative Session,
requires the Judicial Council, on or before January 1,
2015, to prepare, adopt and annually revise a statewide
bail schedule for all bailable felony, misdemeanor, and
infraction offenses except Vehicle Code infractions. The
version of the bill that passed out of this Committee also
required the superior courts, in annually adopting
countywide bail schedules, to consider the statewide bail
schedule. That provision was later deleted in an
amendment. AB 1118 failed passage in the Senate Committee
on Public Safety.
b) AB 805 (Jones-Sawyer), Chapter 17, Statutes of 2013,
provides that in setting bail, a judge or magistrate may
consider factors such as the report prepared by
investigative staff for the purpose of recommending whether
a defendant should be released on his/her own recognizance.
c) AB 723 (Quirk), of the 2013-14 Legislative Session,
allows a person on post-release community supervision who
has a revocation petition filed against him or her to file
an application for bail with the superior court. AB 723
was held on the Senate Committee on Appropriations'
Suspense File.
d) AB 1264 (Hagman), of the 2011-12 Legislative Session,
would have repealed the uniform countywide schedule of bail
and instead establish the Statewide Bail Commission. The
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bill would require the commission to prepare, adopt, and
annually revise a statewide bail schedule for all bailable
felony offenses and for all misdemeanor and infraction
offenses except Vehicle Code infractions. AB 1264 was never
heard by this Committee and returned to the Chief Clerk.
REGISTERED SUPPORT / OPPOSITION :
Support
Golden State Bail Bonds Association
Opposition
California District Attorneys Association
Analysis Prepared by : Stella Choe / PUB. S. / (916) 319-3744