Amended in Assembly June 11, 2014

Amended in Senate January 27, 2014

Senate Bill No. 210

Introduced by Senator Hancock

February 11, 2013

An act to amend Sections 1275 and 1318.1 of the Penal Code, relating to criminal procedure.

LEGISLATIVE COUNSEL’S DIGEST

SB 210, as amended, Hancock. Criminal procedure: pretrial release.

(1) 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.

(2) 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.

(3) 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.

SEC. 2.  

Section 1275 of the Penal Code is amended to read:

1275.  

(a) (1) In determining conditions for pretrial release,
and in setting, reducing, or denying bail, a 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 and the safety of the victim 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 nature and circumstances 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.

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

end delete begin delete

(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 delete begin delete

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

end delete begin delete

(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 delete begin insert

(3) In considering the history, characteristics, and previous
criminal record of the defendant, the judge or magistrate may
consider the results of an evidence-based pretrial risk assessment
instrument that is predictive of the defendant’s risk to public safety
and the probability of him or her failing to appear at court
hearings.

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.

SEC. 3.  

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)  begin insert (1) end insert begin insert   end insert 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:

begin delete

(1)

end delete

begin insert (A) end insert  Written verification of any outstanding warrants against the
defendant.

begin delete

(2)

end delete

begin insert (B) end insert  Written verification of any prior incidents where the
defendant has failed to make a court appearance.

begin delete

(3)

end delete

begin insert (C) end insert  Written verification of the criminal record of the defendant.

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(4)

end delete

begin insert (D) end insert  Written verification of the residence of the defendant during
the past year.

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After

end delete

begin insert ( end insert begin insert 2) end insert begin insert   end insert begin insert After end insert 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 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.