Amended in Senate January 27, 2014

Senate Bill No. 210

Introduced by Senator Hancock

February 11, 2013

An act to amend Sections begin delete 1270, 1275, end delete begin insert 1275 end insert and 1318.1 of the Penal Code, relating to criminal procedure.

LEGISLATIVE COUNSEL’S DIGEST

SB 210, as amended, Hancock. Criminal procedure: begin delete release on defendant’s own recognizance. end delete begin insert pretrial release. end insert

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(1) Existing law provides that a defendant who is in custody and arraigned for a misdemeanor offense, or who has been arrested upon an out-of-county warrant arising from a case involving only misdemeanors, is entitled to be released on his or her own recognizance unless the court finds that the release will compromise public safety or will not reasonably ensure the appearance of the defendant, in which case the court is required to set bail and specify conditions, if any, for release.

end delete begin delete

This bill would authorize a court to determine, at the time of arraignment in any case that is before a court concerning the commission of a felony punishable by imprisonment in a county jail, whether a defendant who is still in custody may be released on his or her own recognizance. In making this decision, the bill would require the court to determine whether the release will compromise public safety. The bill would authorize the court to consider, in its discretion, imposing on the defendant any reasonable conditions it deems appropriate, and would authorize the court to require supervision by any designated local agency, to ensure public safety and to ensure the defendant’s appearance. The bill would require the court to set bail if release will compromise public safety or will not reasonably ensure the appearance of the defendant.

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(2)

end delete

begin insert (1) end insert  Existing law requires a judge or magistrate, in setting, reducing, or denying bail, to take into consideration the protection of the public, the seriousness of the offense, the defendant’s previous criminal record, and the probability of the defendant appearing at trial or a hearing.

This bill would revise the factors that the judge or magistrate would be required to consider to, among other things, require the judge or magistrate to consider the history and characteristics of the defendant, and to consider the nature and circumstances of the offense. The bill would require a judge or magistrate to also consider those factors when determining conditions for pretrial release.

begin delete

(3)

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begin insert (2) end insert  Existing law authorizes a court, with the concurrence of the county board of supervisors, to employ an investigative staff for the purpose of recommending whether a defendant should be released on his or her own recognizance. In cases involving certain crimes, including violent felonies, an investigative report is required to be prepared that includes specified information, including outstanding warrants against the defendant and prior incidents where the defendant has failed to make a court appearance.

This bill would also authorize a sheriff, county probation department, or other local governmental agency, with the concurrence of the board of supervisors, to employ an investigative staff for those purposes, and would require a pretrial investigative report to be prepared before a court may order a defendant released on his or her own recognizance in any case involving specified crimes, including a violent felony. The bill would authorize the preparation of a pretrial investigation report in all other cases in which a court, sheriff, county probation department, or other local governmental agency has employed an investigative staff to recommend whether the defendant should be released on his or her own recognizance. The bill would require any pretrial investigative report to include the results of an evidence-based pretrial risk assessment, as defined, evaluating the defendant’s probability of appearing at trial and potential risk to public safety. The bill would prohibit, for purposes of preparing the report, a defendant from being interviewed about the facts and circumstances of the defendant’s current offense. The bill would authorize a court, sheriff, county probation department, or other local governmental agency, with the concurrence of the board of supervisors, to employ supervision staff to monitor a defendant’s compliance with release conditions ordered by the court, as specified.

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(4)

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begin insert (3) end insert  Existing constitutional provisions require that a statute that limits the right of access to meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by that limitation and the need for protecting that interest.

This bill would make legislative findings and declarations relating to, among other things, the necessity of treating pretrial investigation reports as confidential in order for pretrial programs to function properly.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

The Legislature finds and declares all of the
following:

(a) Pretrial custody reform is urgently needed in California,
where the pretrial population far exceeds the national average of
61 percent. More than 71 percent of the 71,000 Californians held
in county jails statewide on any given day are awaiting trial.

(b) Pretrial custody reform will support the implementation of
public safety realignment by providing counties greater flexibility
in managing their pretrial populations using best practices
developed over many years across many jurisdictions.

(c) Pretrial services programs have been successfully
implemented in many jurisdictions, and have helped to reduce the
pretrial jail populations, save money, reduce recidivism, and protect
the public.

(d) Increasing the use of evidence-based practices in pretrial
population management programs will allow better empirical
analysis in pretrial decisions, and will help to ensure that the court’s
decision to order release, conditions of release, and bail is based
on a credible assessment of the defendant’s risk to public safety
and the likelihood of appearance as required.

(e) In order for pretrial programs to function properly and to
protect the rights of persons submitting sensitive information, it
is essential to treat pretrial investigation reports as confidential so
the reports are used only for release, bail, and monitoring
considerations.

begin delete

SEC. 2.  

Section 1270 of the Penal Code is amended to read:

1270.  

(a) Any person who has been arrested for, or charged
with, an offense other than a capital offense may be released on
his or her own recognizance by a court or magistrate who could
release a defendant from custody upon the defendant giving bail,
including a defendant arrested upon an out-of-county warrant. A
defendant who is in custody and is arraigned on a complaint
alleging an offense which is a misdemeanor, and a defendant who
appears before a court or magistrate upon an out-of-county warrant
arising out of a case involving only misdemeanors, is entitled to
an own recognizance release unless the court makes a finding on
the record, in accordance with Section 1275, that an own
recognizance release will compromise public safety or will not
reasonably assure the appearance of the defendant as required.
Public safety shall be the primary consideration. If the court makes
one of those findings, the court shall set bail and specify the
conditions, if any, whereunder the defendant shall be released.

(b) The court shall determine, at the time of arraignment,
whether a defendant who is still in custody, and is charged with a
felony, the sentence for which may be served in a county jail
pursuant to subdivision (h) of Section 1170, is eligible for release
on his or her own recognizance and to be ordered to appear, as
required. Public safety shall be the primary consideration in this
determination. In granting an own recognizance release, a court
may consider, in its discretion, imposing on the defendant any
reasonable conditions it deems appropriate, and may require
supervision by any designated local agency, to ensure public safety
and to ensure the defendant’s appearance.

(c) If the judge or magistrate finds that release pursuant to
subdivision (b) will compromise public safety or will not
reasonably ensure the appearance of the defendant, as required,
the court shall then set bail as is reasonably necessary to ensure
the appearance of the defendant. A judge or magistrate may set
bail in an amount less than what is specified in the county bail
schedule, where he or she determines that the amount specified in
the county bail schedule is higher than necessary to reasonably
ensure the appearance of the defendant. In making this
determination, the court may consider information included in a
pretrial services report, prepared in accordance with Section 1318.1,
if one is available.

(d) Article 9 (commencing with Section 1318) shall apply to
any person who is released pursuant to this section.

SEC. 3.  

Section 1275 of the Penal Code is amended to read:

1275.  

(a) In determining conditions for pretrial release, and
in setting, reducing, or denying bail, the judge or magistrate shall,
on the available information, take into consideration the protection
of the public, the nature and circumstances of the offense charged,
the history and characteristics of the defendant, the previous
criminal record of the defendant, including whether the defendant
was, at the time of arrest for the charged offense, on probation,
parole, or other form of release pending trial, sentencing, or appeal,
and the probability of his or her appearing at trial or hearing of the
case, including the defendant’s record of appearance at past court
hearings or of flight to avoid arrest or prosecution. Public safety
shall be the primary consideration.

(b) In considering the history and characteristics of the
defendant, the judge or magistrate may consider any of the
following:

(1) The ties of the defendant to the community, including his
or her employment, the duration of his or her residence, and the
defendant’s family attachments.

(2) The defendant’s current educational or vocational program
enrollment and participation.

(3) The physical and mental condition of the defendant and the
defendant’s history related to dependence on alcohol or controlled
substances, including past and current participation in substance
abuse programs and counseling.

(c) In considering the nature and circumstances 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.

(d) In considering offenses wherein a violation of Chapter 6
(commencing with Section 11350) of Division 10 of the Health
and Safety Code is alleged, the judge or magistrate shall consider
the following: (1) the alleged amounts of controlled substances
involved in the commission of the offense, and (2) whether the
defendant is currently released on bail for an alleged violation of
Chapter 6 (commencing with Section 11350) of Division 10 of the
Health and Safety Code.

(e) Before a court reduces bail below the amount established
by the bail schedule approved for the county, in accordance with
subdivisions (b) and (c) of Section 1269b, for a person charged
with a serious felony, as defined in subdivision (c) of Section
1192.7, or a violent felony, as defined in subdivision (c) of Section
667.5, the court shall make a finding of unusual circumstances and
shall set forth those facts on the record. For purposes of this
subdivision, “unusual circumstances” does not include the fact
that the defendant has made all prior court appearances or has not
committed any new offenses.

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begin insert

begin insert SEC. 2. end insert   

end insert

begin insert Section 1275 of the end insert begin insert Penal Code end insert begin insert is amended to read: end insert

1275.  

(a) (1) In begin insert determining conditions for pretrial release,
and in end insert setting, reducing, or denying bail, a judge or magistrate
shall begin insert , on the available information, end insert take into consideration the
protection of the public, the begin delete seriousness end delete begin insert nature and circumstances end insert
of the offense charged, begin insert the history and characteristics of the
defendant, end insert the previous criminal record of the defendant, begin insert end insert begin insert including
whether the defendant was, at the time of arrest for the charged
offense, on probation, parole, or other form of release pending
trial, sentencing, or appeal, end insert and the probability of his or her
appearing at trial or hearing of the case begin insert , end insert begin insert including the defendant’s
record of appearance at past court hearings or of flight to avoid
arrest or prosecution end insert . begin delete The public end delete begin insert Public end insert safety begin insert and the safety of
the victim end insert shall be the primary consideration. In setting bail, a
judge or magistrate may consider factors such as the information
included in a report prepared in accordance with Section 1318.1.

(2) In considering the begin delete seriousness end delete begin insert nature and circumstances end insert of
the offense charged, a 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.

begin insert

(3) In considering the history and characteristics of the
defendant, the judge or magistrate may consider any of the
following:

end insert begin insert

(A) The ties of the defendant to the community, including his or
her employment, the duration of his or her residence, and the
defendant’s family attachments.

end insert begin insert

(B) The defendant’s current educational or vocational program
enrollment and participation.

end insert begin insert

(C) The physical and mental condition of the defendant and the
defendant’s history related to dependence on alcohol or controlled
substances, including past and current participation in substance
abuse programs and counseling.

end insert

(b) In considering offenses wherein a violation of Chapter 6
(commencing with Section 11350) of Division 10 of the Health
and Safety Code is alleged, a judge or magistrate shall consider
the following: (1) the alleged amounts of controlled substances
involved in the commission of the offense, and (2) whether the
defendant is currently released on bail for an alleged violation of
Chapter 6 (commencing with Section 11350) of Division 10 of the
Health and Safety Code.

(c) Before a court reduces bail to below the amount established
by the bail schedule approved for the county, in accordance with
subdivisions (b) and (c) of Section 1269b, for a person charged
with a serious felony, as defined in subdivision (c) of Section
1192.7, or a violent felony, as defined in subdivision (c) of Section
667.5, the court shall make a finding of unusual circumstances and
shall set forth those facts on the record. For purposes of this
subdivision, “unusual circumstances” does not include the fact
that the defendant has made all prior court appearances or has not
committed any new offenses.

begin delete SEC. 4. end delete
begin insert SEC. 3. end insert   

Section 1318.1 of the Penal Code is amended to read:

1318.1.  

(a) A court, sheriff, county probation department, or
other local governmental agency, with the concurrence of the board
of supervisors, may employ an investigative staff for the purpose
of recommending whether a defendant should be released on his
or her own recognizance.

(b) Whenever a court, sheriff, county probation department, or
other local governmental agency has employed an investigative
staff pursuant to subdivision (a), before a court may order a
defendant released on his or her own recognizance in any case
involving a violent felony, as described in subdivision (c) of
Section 667.5, or a felony in violation of subdivision (a) of Section
23153 of the Vehicle Code, a pretrial investigative report shall be
prepared recommending whether the defendant should be released
on his or her own recognizance. The report shall include all of the
following:

(1) Written verification of any outstanding warrants against the
defendant.

(2) Written verification of any prior incidents where the
defendant has failed to make a court appearance.

(3) Written verification of the criminal record of the defendant.

(4) Written verification of the residence of the defendant during
the past year.

After the report is certified pursuant to this subdivision, it shall
be submitted to the court for review, prior to a hearing held
pursuant to Section 1319.

(c) Whenever a court, sheriff, county probation department, or
other local governmental agency has employed an investigative
staff pursuant to subdivision (a), a pretrial investigation report may
be prepared in any case not involving a violent felony, as described
in subdivision (c) of Section 667.5, or a felony in violation of
subdivision (a) of Section 23153 of the Vehicle Code,
recommending whether the defendant should be released on his
or her own recognizance. Only one agency authorized pursuant to
subdivision (a) shall issue a pretrial investigation report.

(d)  Any report prepared pursuant to subdivision (b) or (c) shall
include all of the results of an evidence-based pretrial risk
assessment evaluating the defendant’s probability of appearing at
trial and potential risk to public safety. “Evidence-based pretrial
risk assessment” is the objective, standardized analysis of
information about a pretrial defendant in a way that is consistent
with and guided by the best available scientific evidence and
professional knowledge that measures the begin delete risk of the end delete defendant’s
probability of appearing at trial and the potential risk to public
safety while pending case disposition.

(e) In preparing the report pursuant to subdivision (b) or (c),
the defendant shall not be interviewed about the facts and
circumstances of the current offense, and any information that a
defendant may provide shall not be included in the report. Any
information provided by the defendant shall be used solely for the
purposes of determining whether the defendant should be released
on his or her own recognizance or in setting the conditions of the
defendant’s release or modifying a prior release order. The reports
may be filed as part of the case record.

(f) A court, sheriff, county probation department, or other local
governmental agency may, with the concurrence of the board of
supervisors, employ supervision staff to monitor the defendant’s
compliance with the release conditions ordered by the court.
Supervision staff may do any of the following:

(1)  Notify the defendant of court appearance obligations.

(2)  Require the defendant to report periodically by mail,
telephone, or personal appearance to verify compliance with release
conditions.

(3)  Monitor and assist the defendant with complying with
release conditions.

(4)  Supervise a defendant placed on home detention, with or
without electronic monitoring, as a condition of release.

(5) Promptly report violations of release conditions to the court.

(6) Provide information to assist any law enforcement officer
with detaining a defendant supervised pursuant to this section and
for whom a bench warrant has been issued.

(g) The salaries of the staff are a proper charge against the
county.