Bill Text: CA AB42 | 2017-2018 | Regular Session | Amended
Bill Title: Bail: pretrial release.
Spectrum: Partisan Bill (Democrat 13-0)
Status: (Failed) 2018-02-01 - Died on inactive file. [AB42 Detail]
Download: California-2017-AB42-Amended.html
Amended
IN
Assembly
March 27, 2017 |
Amended
IN
Assembly
February 14, 2017 |
Assembly Bill | No. 42 |
Introduced by Assembly Members Bonta, Bloom, Chiu, Jones-Sawyer, Quirk, and Mark Stone (Principal coauthors: Senators Hertzberg, Allen, Mitchell, and Wiener) (Coauthor: Assembly Member Eggman) |
December 05, 2016 |
LEGISLATIVE COUNSEL'S DIGEST
Digest Key
Vote: MAJORITY Appropriation: NO Fiscal Committee:Bill Text
The people of the State of California do enact as follows:
SECTION 1.
The Legislature finds and declares all of the following:SEC. 2.
It is the intent of the Legislature(a)A 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 monetary 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, shall be entitled to an own recognizance release unless the court makes a finding on the record that there is no condition or combination of conditions that would reasonably ensure public safety and the appearance of the defendant as required, and that, in accordance with Section 1275, that an own recognizance release will compromise public safety or will not reasonably ensure 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 then set
monetary bail and specify the conditions, if any, whereunder the defendant shall be released.
(b)Article 9 (commencing with Section 1318) shall apply to any person who is released pursuant to this section.
SEC. 3.
Section 815a of the Penal Code is repealed.At the time of issuing a warrant of arrest, the magistrate shall fix the amount of bail which in his judgment in accordance with the provisions of section 1275 will be reasonable and sufficient for the appearance of the defendant following his arrest, if the offense is bailable, and said magistrate shall endorse upon said warrant a statement signed by him, with the name of his office, dated at the county, city or town where it is made to the following effect “The defendant is to be admitted to bail in the sum of ____ dollars” (stating the amount).
SEC. 4.
Section 825 of the Penal Code is amended to read:825.
(a) (1) Except as provided in paragraph (2), the defendant shall in all cases be taken before the magistrate without unnecessary delay, and, in any event, within 48 hours after his or her arrest, excluding Sundays and holidays.SEC. 5.
Section 1269 of the Penal Code is amended to read:1269.
The taking of monetary bail consists in the acceptance, by a competent court or magistrate, of the undertaking of sufficient monetary bail for the appearance of the defendant, according to the terms of the undertaking, or that the bail will pay to the people of this state a specified sum. Upon filing, the clerk shall enter in the register of actions the date and amounts ofSEC. 6.
Section 1269a of the Penal Code is amended to read:1269a.
Except as otherwise provided by law,SEC. 7.
Section 1269b of the Penal Code is repealed.(a)The officer in charge of a jail in which an arrested person is held in custody, an officer of a sheriff’s department or police department of a city who is in charge of a jail or is employed at a fixed police or sheriff’s facility and is acting under an agreement with the agency that keeps the jail in which an arrested person is held in custody, an employee of a sheriff’s department or police department of a city who is assigned by the department to collect bail, the clerk of the superior court of the county in which the offense was alleged to have been committed, and the clerk of the superior court in which the case against the defendant is pending may approve and accept bail in the amount fixed by the warrant of arrest, schedule of bail, or order admitting to bail in cash or surety bond executed by a certified, admitted surety insurer as provided in the Insurance Code, to issue and sign an order for the release of the arrested person, and to set a time and place for the appearance of the arrested person before the appropriate court and give notice thereof.
(b)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 as provided in subdivisions (c) and (d).
(c)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 in accordance with Section 40310 of the Vehicle Code.
(d)A court may, by local rule, 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 majority of the judges.
(e)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, including, but not limited to, additional bail for charges alleging facts that would bring a person within any of the following sections: Section 667.5, 667.51, 667.6, 667.8, 667.85, 667.9, 667.10, 12022, 12022.1, 12022.2, 12022.3, 12022.4, 12022.5, 12022.53, 12022.6, 12022.7, 12022.8, or 12022.9 of this code, or Section 11356.5, 11370.2, or 11370.4 of the Health and Safety Code.
In considering offenses in which a violation of Chapter 6 (commencing with Section 11350) of Division 10 of the Health and Safety Code is alleged, the judge shall assign an additional amount of required bail for offenses involving large quantities of controlled substances.
(f)The countywide bail schedule shall 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.
(g)Upon posting bail, the defendant or arrested person shall be discharged from custody as to the offense on which the bail is posted.
All money and surety bonds so deposited with an officer authorized to receive bail shall be transmitted immediately to the judge or clerk of the court by which the order was made or warrant issued or bail schedule fixed. If, in the case of felonies, an indictment is filed, the judge or clerk of the court shall transmit all of the money and surety bonds to the clerk of the court.
(h)If a defendant or arrested person so released fails to appear at the time and in the court so ordered upon his or her release from custody, Sections 1305 and 1306 apply.
SEC. 8.
Section 1269b is added to the Penal Code, to read:1269b.
(a) The officer in charge of a jail in which an arrested person is held in custody, an officer of a sheriff’s department or police department of a city who is in charge of a jail or is employed at a fixed police or sheriff’s facility and is acting under an agreement with the agency that keeps the jail in which an arrested person is held in custody, an employee of a sheriff’s department or police department of a city who is assigned by the department to collect bail, the clerk of the superior court of the county in which the offense was alleged to have been committed, a pretrial services agent, and the clerk of the superior court in which the case against the defendant is pending, may approve and accept an order authorizing pretrial release or admitting to bail, to issue and sign an order for the release of the arrested person, and to set a time and place for the appearance of the arrested person before the appropriate court and give notice thereof.SEC. 9.
Section 1269c of the Penal Code is amended to read:1269c.
If a defendant is arrested without a warrant for a bailable felony offense or for the misdemeanor offense of violating a domestic violence restraining order, and a peace officer has reasonable cause to believe thatSEC. 10.
Section 1270 of the Penal Code is repealed.(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, shall be 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 then set bail and specify the conditions, if any, whereunder the defendant shall be released.
(b)Article 9 (commencing with Section 1318) shall apply to any person who is released pursuant to this section.
SEC. 11.
Section 1270.1 of the Penal Code is repealed.(a)Except as provided in subdivision (e), before any person who is arrested for any of the following crimes may be released on bail in an amount that is either more or less than the amount contained in the schedule of bail for the offense, or may be released on his or her own recognizance, a hearing shall be held in open court before the magistrate or judge:
(1)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, but not including a violation of subdivision (a) of Section 460 (residential burglary).
(2)A violation of Section 136.1
where punishment is imposed pursuant to subdivision (c) of Section 136.1, Section 262, 273.5, or 422 where the offense is punished as a felony, or Section 646.9.
(3)A violation of paragraph (1) of subdivision (e) of Section 243.
(4)A violation of Section 273.6 if the detained person made threats to kill or harm, has engaged in violence against, or has gone to the residence or workplace of, the protected party.
(b)The prosecuting attorney and defense attorney shall be given a two-court-day written notice and an opportunity to be heard on the matter. If the detained person does not have counsel, the court shall appoint counsel for purposes of this section only. The hearing required by this section shall be held within the time period prescribed in Section 825.
(c)At the hearing, the court shall consider evidence of past court appearances of the detained person, the maximum potential sentence that could be imposed, and the danger that may be posed to other persons if the detained person is released. In making the determination whether to release the detained person on his or her own recognizance, the court shall consider the potential danger to other persons, including threats that have been made by the detained person and any past acts of violence. The court shall also consider any evidence offered by the detained person regarding his or her ties to the community and his or her ability to post bond.
(d)If the judge or magistrate sets the bail in an amount that is either more or less than the amount contained in the schedule of bail for the offense, the judge or magistrate shall state the reasons for that decision and shall address the issue of threats made against the victim or
witness, if they were made, in the record. This statement shall be included in the record.
(e)Notwithstanding subdivision (a), a judge or magistrate, pursuant to Section 1269c, may, with respect to a bailable felony offense or a misdemeanor offense of violating a domestic violence order, increase bail to an amount exceeding that set forth in the bail schedule without a hearing, provided an oral or written declaration of facts justifying the increase is presented under penalty of perjury by a sworn peace officer.
SEC. 12.
Section 1270.2 of the Penal Code is repealed.When a person is detained in custody on a criminal charge prior to conviction for want of bail, that person is entitled to an automatic review of the order fixing the amount of the bail by the judge or magistrate having jurisdiction of the offense. That review shall be held not later than five days from the time of the original order fixing the amount of bail on the original accusatory pleading. The defendant may waive this review.
SEC. 13.
Section 1275 of the Penal Code is repealed.(a)(1)In setting, reducing, or denying bail, a judge or magistrate shall take into consideration the protection of the public, the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his or her appearing at trial or at a hearing of the case. The public safety 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 seriousness 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.
(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. 14.
Section 1275 is added to the Penal Code, to read:1275.
(a) (1) In making a pretrial release or detention decision pursuant to Section 1275a or 1275b, a judge or magistrate shall take into consideration the protection of the public, the seriousness of the offense charged, the previous criminal record of the defendant, the probability of his or her appearing at trial or at a hearing of the case, and the presumption of innocence. The public safety, the safety of the victim, and the probability of the accused appearing in court as required shall be the primary considerations.SEC. 15.
Section 1275a is added to the Penal Code, to read:1275a.
(a) Except as provided in subdivision (f) and Section 1275b, at the arraignment of a person who is in custody, the judge or magistrate shall, after considering the pretrial services report with recommendations for conditions of release and any relevant information provided by the prosecuting attorney or the defendant, order the pretrial release of the person subject to a release agreement under Section 1318 without further conditions, unless the judge or magistrate determines that the release will not reasonably assure the appearance of the person as required, the safety of the victim, or public safety. If the judge or magistrate releases the person subject to a release agreement under Section 1318 without further conditions, the reasons for that decision shall be stated in the record and included in the court’s minutes.SEC. 16.
Section 1275b is added to the Penal Code, to read:1275b.
(a) A prosecuting attorney may file a motion with the court at any time, including any time before or after a defendant’s release pursuant to 1269b, seeking the pretrial detention of the defendant in any of the following circumstances:SEC. 17.
Section 1275.1 of the Penal Code is amended to read:1275.1.
(a)SEC. 18.
Section 1277 of the Penal Code is amended to read:1277.
When the defendant has been held to answer upon an examination for a public offense,SEC. 19.
Section 1278 of the Penal Code is amended to read:1278.
(a)(b)
SEC. 20.
Section 1284 of the Penal Code is amended to read:1284.
When the offense charged is not punishable with death, the officer serving the bench warrant must, if required, take the defendant before a magistrate in the county in which it is issued, or in which he is arrested, for the purpose ofSEC. 21.
Section 1288 of the Penal Code is repealed.The provisions contained in sections 1279, 1280, 1280a and 1281, in relation to bail before indictment, apply to bail after indictment.
SEC. 22.
Section 1289 of the Penal Code is repealed.After a defendant has been admitted to bail upon an indictment or information, the Court in which the charge is pending may, upon good cause shown, either increase or reduce the amount of bail. If the amount be increased, the Court may order the defendant to be committed to actual custody, unless he give bail in such increased amount. If application be made by the defendant for a reduction of the amount, notice of the application must be served upon the District Attorney.
SEC. 23.
Section 1289 is added to the Penal Code, to read:1289.
(a) After a defendant has been released from custody upon an indictment or information pursuant to Section 1275a, the court in which the charge is pending may, upon a change in circumstances, amend the release order to change the conditions of release, including the amount of any monetary bail. If, upon motion of the prosecuting attorney, the amount of monetary bail is increased, the court shall set bail in accordance with subdivision (c) of Section 1275a. If the defendant requests a change in the conditions of release, notice of the request shall be served upon the prosecuting attorney.SEC. 24.
Section 1295 of the Penal Code is amended to read:1295.
(a) The defendant,SEC. 25.
Section 1318 of the Penal Code is amended to read:1318.
(1)
(2)
(3)
(4)
(5)
SEC. 26.
Section 1318.1 of the Penal Code is repealed.(a)A court, 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 has employed an investigative staff pursuant to subdivision (a), an investigative report shall be prepared in all cases 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. 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)The salaries of the staff are a proper charge against the county.
SEC. 27.
Section 1318.1 is added to the Penal Code, to read:1318.1.
(a) Each county shall establish a pretrial services agency, which shall be responsible for gathering information about newly arrested defendants, conducting risk assessments on pretrial defendants, preparing individually tailored recommendations to the court regarding release options and conditions, and providing pretrial services and supervision to defendants on pretrial release. Pretrial services agencies shall do all of the following:SEC. 28.
Section 1318.2 is added to the Penal Code, to read:1318.2.
(a) The _____ shall do all of the following:SEC. 29.
Section 1318.3 is added to the Penal Code, to read:1318.3.
(a) For purposes of this section, the following terms have the following meanings:SEC. 30.
Section 1319 of the Penal Code is repealed.(a)No person arrested for a violent felony, as described in subdivision (c) of Section 667.5, may be released on his or her own recognizance until a hearing is held in open court before the magistrate or judge, and until the prosecuting attorney is given notice and a reasonable opportunity to be heard on the matter. In all cases, these provisions shall be implemented in a manner consistent with the defendant’s right to be taken before a magistrate or judge without unreasonable delay pursuant to Section 825.
(b)A defendant charged with a violent felony, as described in subdivision (c) of Section 667.5, shall not be released on his or her own recognizance where it appears, by clear and convincing evidence, that he or she previously has been charged with a felony offense and has willfully and without excuse from the court failed to appear in court as required while that charge was pending. In all other cases, in making the determination as to whether or not to grant release under this section, the court shall consider all of the following:
(1)The existence of any outstanding felony warrants on the defendant.
(2)Any other information presented in the report prepared pursuant to Section 1318.1. The fact that the court has not received the report required by Section 1318.1, at the time of the hearing to decide whether to release the defendant on his or her own recognizance, shall not preclude that release.
(3)Any other information presented by the prosecuting attorney.
(c)The judge or magistrate who, pursuant to this section, grants or denies release on a person’s own recognizance, within the time period prescribed in Section 825, shall state the reasons for that decision in the record. This statement shall be included in the court’s minutes. The report prepared by the investigative staff pursuant to subdivision (b) of Section 1318.1 shall be placed in the court file for that particular matter.
SEC. 31.
Section 1319.5 of the Penal Code is repealed.(a)No person described in subdivision (b) who is arrested for a new offense may be released on his or her own recognizance until a hearing is held in open court before the magistrate or judge.
(b)Subdivision (a) shall apply to the following:
(1)Any person who is currently on felony probation or felony parole.
(2)Any person who has failed to appear in court as ordered, resulting in a warrant being issued, three or more times over the three years preceding the current arrest, except for infractions arising from violations of the Vehicle Code, and who is arrested for any of the following offenses:
(A)Any felony offense.
(B)Any violation of the California Street Terrorism Enforcement and Prevention Act (Chapter 11 (commencing with Section 186.20) of Title 7 of Part 1).
(C)Any violation of Chapter 9 (commencing with Section 240) of Title 8 of Part 1 (assault and battery).
(D)A violation of Section 484 (theft).
(E)A violation of Section 459 (burglary).
(F)Any offense in which the defendant is alleged to have been armed with or to have personally used a firearm.