BILL NUMBER: SB 1180 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 9, 2012
INTRODUCED BY Senator Hancock
FEBRUARY 22, 2012
An act to amend Section Sections 1270,
1275, and 1318.1 of the Penal Code, relating to criminal
procedure.
LEGISLATIVE COUNSEL'S DIGEST
SB 1180, as amended, Hancock. Criminal procedure: release on
defendant's own recognizance.
(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 assure the appearance of the
defendant, in which case the court is required to set bail and
specify conditions, if any, for release.
This bill would instead specify that, any case that is before a
court upon an accusatory pleading concerning the commission of either
a misdemeanor or a felony punishable by imprisonment in a county
jail, the defendant is entitled to be released on his or her own
recognizance, unless the court finds the release will compromise
public safety or will not reasonably assure the appearance of the
defendant. If the court makes one of those findings, the bill would
require the court to specify the least restrictive conditions under
which release of the defendant will not compromise public safety and
will reasonably assure his or her appearance, and would require the
court to release the defendant on his or her own recognizance subject
to those conditions. The bill would set forth certain conditions
that the court may specify, including, but not limited to,
prohibiting contact with alleged victims or potential witnesses, or
home detention, with or without electronic monitoring. The bill would
specify that, if release will compromise public safety or will not
reasonably assure the appearance of the defendant, then the court
would be required to state the reasons for the finding and set bail,
as specified.
(2) 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 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, rather than the seriousness of the offense. The bill would
require a judge or magistrate to also consider those factors when
determining conditions for pretrial release.
Existing
(3) 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 law enforcement agency
sheriff , county probation
department, or other local governmental agency, with the
concurrence of the 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 accordance with
those provisions. 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, and would limit the
use and availability of the information in the report. 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.
(4) 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 have not been convicted of a
crime but rather 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 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 judge 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
that is a misdemeanor or a felony punishable by
imprisonment in a county jail pursuant to subdivision (h) of Section
1170 , and a defendant who appears before a court
judge or magistrate upon an out-of-county
warrant arising out of a case involving only misdemeanors or
felonies punishable by imprisonment in a county jail pursuant to
subdivision (h) of Section 1170 , 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.
specify the least restrictive conditions under which release of the
defendant on his or her own recognizance will not compromise public
safety and will reasonably assure his or her appearance. Upon
specifying those conditions, the court shall order the defendant to
be released on his or her own recognizance. Those conditions may
include, but are not limited to, any of the following:
(1) Mandatory reporting to the court, a designated law enforcement
agency, county probation department, or other local governmental
agency.
(2) Prohibiting contact with alleged victims or potential
witnesses who may testify concerning the offense.
(3) Restricting locations, place of abode, and travel.
(4) Specifying curfew.
(5) Restricting consumption of alcohol.
(6) Refraining from any illegal use of controlled substances, as
defined in Division 10 (commencing with Section 11000) of the Health
and Safety Code.
(7) Home detention, with or without electronic monitoring.
(b) This section shall apply whenever a case is before any court
upon an accusatory pleading concerning the commission of a
misdemeanor or a felony punishable by imprisonment in a county jail
pursuant to subdivision (h) of Section 1170.
(c) If the judge or magistrate makes a finding that release
pursuant to subdivision (a) will compromise public safety or will not
reasonably assure the appearance of the defendant as required, the
court shall state on the record the reasons for that finding and
shall then set bail as is reasonably necessary to assure the
appearance of the defendant.
(b)
(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 seriousness
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 . The public
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.
In
(c) In considering the
seriousness 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, and 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)
(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 both of the following: (1) the alleged
amounts
(1) Whether large quantities of
controlled substances were allegedly involved in the
commission of the offense , and (2) whether .
(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)
(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 shall not solely be based on the
fact that the defendant has made all prior court appearances or has
not committed any new offenses.
SECTION 1. SEC. 4. Section 1318.1 of
the Penal Code is amended to read:
1318.1. (a) A court, law enforcement agency, probation
department 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, law enforcement agency, probation
department sheriff, county probation department
, or other local governmental agency has employed an
investigative staff pursuant to subdivision (a), an
investigative report shall be prepared in all cases
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 investigation 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.
(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 risk of 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. The reports are confidential
and shall be sealed upon receipt by the court and made available
only by court order, except that the reports shall be made available
upon request to any of the following:
(1) Any local or state criminal justice agency.
(2) Any agency to which the defendant is referred for assessment
or treatment.
(3) Counsel for the defendant who is the subject of the report.
(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.
(c)
(g) The salaries of the staff are a proper charge
against the county.