HomeMy WebLinkAboutCity Council Position on Legislation pending before the Stat (13) }. ®VEZ 7-0
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City of Huntington Beach
File #: 18-111 MEETING DATE: 6/18/2018
REQUEST FOR CITY COUNCIL ACTION
SUBMITTED TO: Honorable Mayor and City Council Members
SUBMITTED BY: Fred A. Wilson, City Manager
PREPARED BY: Fred A. Wilson, City Manager
Subiect:
City Council Position on Legislation pending before the State Legislature as recommended by
the City Council Intergovernmental Relations Committee (IRC)
Statement of Issue:
On May 29, 2018, the Intergovernmental Relations Committee met and members recommended the
following positions on pending legislation. This action requests City Council authorization for the
Mayor to sign official City position letters.
Financial Impact:
There is no fiscal impact.
Recommended Action:
A) Approve a City position of Oppose on Senate Bill 10 (Hertzberg) - Bail: Pretrial Release; and,
B) Approve a City position of Oppose Senate Bill 1302 (Lars) - Cannabis - Local Jurisdiction:
Prohibitions on Delivery.
Alternative Action(s):
Do not approve the recommended actions and direct staff accordingly.
Analysis:
The Intergovernmental Relations Committee (IRC) met to discuss pending legislation and regional
issues. The Committee reviewed the 2018 State Legislative Matrix provided by the City's State
Advocate, Townsend Public Affairs. The following is an analysis of bills/positions that the IRC voted
to take a position on.
➢ OPPOSE - Senate Bill 10 (Hertzberg) - Bail: Pretrial Release
This bill would dismantle California's longstanding bail system; replacing it with a costly and
cumbersome alternative that could ultimately have a negative impact on public safety. California's
current pretrial release procedures help to ensure that dangerous defendants are not released to
commit new crimes or harm victims and witnesses before trial. Under these procedures, the court
already has wide discretion to release a defendant on his or her own recognizance or to reduce
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p w r ..i;y Leyistar'',
File #: 18-111 MEETING DATE: 6/18/2018
bail for defendants that do not pose such risks. SB 10 would make it extremely difficult to achieve
pretrial detention for dangerous defendants.
➢ OPPOSE - Senate Bill 1302 (Lars) - Cannabis: Local Jurisdiction: Prohibitions on Delivery
This bill would force local jurisdictions to allow cannabis deliveries within their jurisdictions. The
bill goes against the intent of the voters who passed Proposition 64 by removing a local
jurisdictions ability to allow or ban cannabis deliveries. Existing law, as constructed by both the
Medical and Adult-Use Cannabis Regulation and Safety Act (MAUCRSA) and Proposition 64,
states that local jurisdictions have the ability to adopt and enforce local ordinances to regulate
cannabis businesses.
SB 1302 would fundamentally alter this pillar of cannabis legalization by prohibiting local
jurisdictions from adopting or enforcing ordinances that would prohibit a cannabis licensee from
delivering cannabis within or outside the boundaries of the City. Furthermore, SB 1302 removes
the ability for local jurisdictions to decide what is appropriate for their communities by removing
their authority to ban deliveries.
Environmental Status:
Not applicable.
Strategic Plan Goal:
Improve quality of life
Attachment(s):
1. SB 10 (Hertzberg)
2. SB 1302 (Lars)
City of Huntington Beach Page 2 of 2 Printed on 6/13/2018
pcwerad by Legis:arT l
AMENDED IN ASSEMBLY SEPTEMBER 6, 2017
AMENDED IN ASSEMBLY AUGUST 21, 2017
AMENDED IN ASSEMBLY JULY 5, 2017
AMENDED IN SENATE MARCH 27, 2017
AMENDED IN SENATE JANUARY 17, 2017
SENATE BILL No. 10
Introduced by Senators Hertzberg,Allen,Anderson,Atkins,Beall,
Bradford, Lara, Mitchell, Monning, Skinner, Wieckowski, and
Wiener
(Principal coauthors: Assembly Members Bonta, Bloom, Chiu,
Jones-Sawyer, Quirk, and Mark Stone)
December 5, 2016
An act to amend and repeal Sections 1270, 1270.1, 1270.2, 1288,
1319, and 1319.5 of, to amend, repeal, and add Sections 825, 1269,
1269a, 1269b, 1269c, 1275, 1275.1, 1277, 1278, 1284, 1289, 1295,
1318, and 1318.1 of, and to add Sections 1275a, 1275b, 1318.2, and
1318.3 to, the Penal Code, relating to bail.
LEGISLATIVE COUNSEL'S DIGEST
SB 10, as amended, Hertzberg. Bail: pretrial release.
Existing law provides for the procedure of approving and accepting
bail, and issuing an order for the appearance and release of an arrested
person. Existing law requires that bail be set in a fixed amount, as
specified, and requires, in setting,reducing, or denying bail, a judge or
magistrate to 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
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hearing of the case. Under existing law,the magistrate or commissioner
to whom the application is made is authorized to set bail in an amount
that he or she deems sufficient to ensure the defendant's appearance or
to ensure the protection of a victim, or family member of a victim, of
domestic violence, and to set bail on the tenns and conditions that he
or she, in his or her discretion, deems appropriate, or he or she may
authorize the defendant's release on his or her own recognizance.
Existing law provides that a defendant being held for a misdemeanor
offense is entitled to be released on his or her own recognizance,unless
the court makes a finding on the record that an own recognizance release
would compromise public safety or would not reasonably ensure the
appearance of the defendant as required.
This bill would declare the intent of the Legislature to enact legislation
that would safely reduce the number of people detained pretrial, while
addressing racial and economic disparities in the pretrial system, and
to ensure that people are not held in pretrial detention simply because
of their inability to afford money bail.
This bill would, beginning January 1, 2020, implement a revised
pretrial release procedure. The bill, among other things, would require,
with exceptions, that a pretrial services agency conduct a pretrial risk
assessment on an arrested person and prepare a pretrial services report
that includes the results of the pretrial risk assessment and
recommendations on conditions of release for the person immediately
upon booking. The bill would require the pretrial services agency to
transmit the report to a magistrate,judge, or court commissioner and
the magistrate,judge, or court commissioner, within 6 hours, to issue
an oral or written order to release the person, with or without release
conditions, subject to the person signing a specified release agreement.
The bill would, beginning January 1, 2020, require, if a person is in
custody at the time of his or her arraignment, the judge or magistrate
to consider the pretrial services report and any relevant information
provided by the prosecuting attorney or the defendant and to order the
pretrial release of the person, with or without conditions, subject to the
person signing a specified release agreement. If the judge or magistrate
detennines that pretrial release, with or without conditions, will not
reasonably ensure the appearance of the person in court as required,the
bill would require the judge or magistrate to set monetary bail at the
least restrictive level necessary to ensure the appearance of the defendant
in court as required. The bill would authorize,if the judge or magistrate
has set monetary bail, the person to execute an unsecured appearance
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bond, execute a secured appearance bond, or deposit a percentage of
the sum mentioned in the order setting monetary bail.
The bill would, beginning January 1, 2020, authorize a prosecuting
attorney to file a motion seeking the pretrial detention of a person in
certain circumstances,including when the person has been charged with
a capital crime and the prosecuting attorney alleges that the facts are
evident or the presumption great. The bill would require, if this motion
has been filed, a hearing to be held to determine whether to release the
person pending trial, unless the person waives the hearing. The bill
would authorize the person to be detained pretrial only if the court
makes one of several specified findings.
The bill would, beginning January 1, 2020, require each county to
establish a pretrial services agency that would be responsible for
gathering information about newly arrested persons, conducting pretrial
risk assessments, preparing individually tailored recommendations to
the court regarding release options and conditions, and providing pretrial
services and supervision to persons on pretrial release. The bib _......'a
,
among othefs, seleeting a pretrial risk assessment too! to be ttsed in
eondtteting pretrial fisk assessments that meets speeified feqttifefflents
and feviewing eolleeted data to monitof eomplianee with state law and
guidelines relating to pfetfial felease.The bill wottlel also atahorize tha
b,
things,atnong other pfovieling training and assistanee to judges,
`>jail staff;
and
law enforeelll.11 I L ageneies. The bill would require the Boafd of State,
agener, to develop a platt that establishes statewide fequifements fo.r
information. The bill would require the Judicial Council to, among
other things, adopt rules of court regarding pretrial risk assessment
information and the i»iposition ofpretrial release terms and conditions.
The bill would require courts to provide specified information to the
Judicial Council, and would require the Judicial Council to provide a
biennial report to the Legislature.
By imposing additional duties on local agencies, this bill would
impose a state-mandated local program.
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The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the state.
Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates
detennines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to the statutory
provisions noted above.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
The people of the State of California do enact as follows:
1 SECTION 1. The Legislature finds and declares all of the
2 following:
3 (a) Modernization of the pretrial system is urgently needed in
4 California, where thousands of individuals held in county jails
5 across the state have not been convicted of a crime and are detained
6 while awaiting trial simply because they cannot afford to post
7 money bail or pay a commercial bail bond company. In 2015, 63
8 percent of people in California jails were either awaiting trial or
9 sentencing. In 2016, the percentage of people in California jails
10 awaiting trial or sentencing rose to 66 percent. As compared with
11 the rest of the country, California has relied on pretrial detention
12 at much higher rates than other states.
13 (b) California's existing pretrial detention practices allow a
14 person's wealth rather than the person's likelihood of success on
15 pretrial release to determine whether the person will remain in jail
16 before the person's case is resolved. Detaining people simply due
17 to an inability to afford money bail violates the American principles
18 of equal protection and fundamental fairness. Nationwide, the
19 majority of people who are unable to meet money bail fall within
20 the poorest third of society.
21 (c) The consequences of pretrial detention which include a
22 greater likelihood of innocent people pleading guilty to a crime,
23 longer sentences upon conviction, loss of employment, income,
24 and housing,and traumatic family disruption disproportionately
25 affect people of color and low-income people.
26 (d) The commercial money bail system, which requires people
27 to pay nonrefundable deposits to private companies in order to
28 secure release from jail, often leaves people in debt and drives
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1 them and their families further into poverty. The commercial
2 money bail system does not improve rates of appearance in court
3 or enhance public safety.
4 (e) California should follow the lead of the federal government
5 and jurisdictions across the country that have stopped making
6 wealth-based decisions on pretrial detention and instead have
7 shifted to a system that evaluates whether an individual can be
8 safely returned to the community as well as make required court
9 appearances, and, if so, under what conditions.
10 (f) It is far more expensive to house a person in jail than to safely
11 release him or her pending trial with conditions of release or
12 pretrial supervision.
13 (g) While unnecessary pretrial detention has been found to
14 increase the likelihood that some defendants will commit new
15 crimes, appropriate pretrial release can reduce recidivism.
16 (h) Pretrial services programs have already been successfully
17 implemented in many California jurisdictions and have helped to
18 reduce pretrial jail populations, save money, increase rates of
19 appearance in court, and protect the public.
20 (1) Increasing the use of evidence-based practices in pretrial
21 decisions will provide judges, law enforcement agencies, and
22 pretrial service providers with additional tools to both assist them
23 in assessing a defendant's likelihood of success on pretrial release
24 and to identify and meet the needs of those defendants and the
25 community to ensure constitutional and statutory objectives.
26 0) Modernizing pretrial practices will support the goals of the
27 Public Safety Realignment Act of 2011 by providing additional
28 options to manage pretrial populations using best practices
29 developed over many years across many jurisdictions.
30 SEC. 2. It is the intent of the Legislature in enacting this act
31 to safely reduce the number of people detained pretrial, while
32 addressing racial and economic disparities in the pretrial system,
33 and to ensure that people are not held in pretrial detention simply
34 because of their inability to afford money bail.
35 SEC. 3. Section 825 of the Penal Code is amended to read:
36 825. (a) (1) Except as provided in paragraph(2),the defendant
37 shall in all cases be taken before the magistrate without unnecessary
38 delay, and, in any event, within 48 hours after his or her arrest,
39 excluding Sundays and holidays.
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1 (2) When the 48 hours prescribed by paragraph (1) expire at a
2 time when the court in which the magistrate is sitting is not in
3 session, that time shall be extended to include the duration of the
4 next court session on the judicial day immediately following. If
5 the 48-hour period expires at a time when the court in which the
6 magistrate is sitting is in session, the arraignment may take place
7 at any time during that session. However, when the defendant's
8 arrest occurs on a Wednesday after the conclusion of the day's
9 court session, and if the Wednesday is not a court holiday, the
10 defendant shall be taken before the magistrate not later than the
11 following Friday, if the Friday is not a court holiday.
12 (b) After the arrest, any attorney at law entitled to practice in
13 the courts of record of California, may, at the request of the
14 prisoner or any relative of the prisoner, visit the prisoner. Any
15 officer having charge of the prisoner who willfully refuses or
16 neglects to allow that attorney to visit a prisoner is guilty of a
17 misdemeanor.Any officer having a prisoner in charge,who refuses
18 to allow the attorney to visit the prisoner when proper application
19 is made, shall forfeit and pay to the party aggrieved the sum of
20 five hundred dollars ($500),to be recovered by action in any court
21 of competent jurisdiction.
22 (c) This section shall remain in effect only until January 1,2020,
23 and as of that date is repealed.
24 SEC. 4. Section 825 is added to the Penal Code, to read:
25 825. (a) (1) Except as provided in paragraph(2),the defendant
26 shall in all cases be taken before the magistrate without unnecessary
27 delay, and, in any event, within 48 hours after his or her arrest,
28 excluding Sundays and holidays.
29 (2) When the 48 hours prescribed by paragraph (1) expire at a
30 time when the court in which the magistrate is sitting is not in
31 session, that time shall be extended to include the duration of the
32 next court session on the judicial day immediately following. If
33 the 48-hour period expires at a time when the court in which the
34 magistrate is sitting is in session, the arraignment may take place
35 at any time during that session. However, if the defendant's arrest
36 occurs on a Wednesday after the conclusion of the day's court
37 session and if the Wednesday is not a court holiday,the defendant
38 shall be taken before the magistrate not later than the following
39 Friday, if the Friday is not a court holiday.
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I (b) After the arrest, any attorney at law entitled to practice in
2 the courts of record of California may,at the request of the detainee
3 or any relative of the detainee,visit the detainee.Any officer having
4 charge of the detainee who willfully refuses or neglects to allow
5 that attorney to visit a detainee is guilty of a misdemeanor. Any
6 officer having a detainee in charge, who refuses to allow the
7 attorney to visit the detainee when proper application is made,
8 shall forfeit and pay to the party aggrieved the sum of five hundred
9 dollars (S500),to be recovered by action in any court of competent
10 jurisdiction.
l I (c) This section shall become operative on January 1, 2020.
12 SEC. 5. Section 1269 of the Penal Code is amended to read:
13 1269. (a) The taking of bail consists in the acceptance, by a
14 competent court or magistrate, of the undertaking of sufficient bail
15 for the appearance of the defendant, according to the terms of the
16 undertaking, or that the bail will pay to the people of this state a
17 specified sum. Upon filing, the clerk shall enter in the register of
18 actions the date and amounts of such bond and the name or names
19 of the surety or sureties thereon. In the event of the loss or
20 destruction of the bond, the entries so made shall be prima facie
21 evidence of the due execution of the bond as required by law.
22 (b) Whenever any bail bond has been deposited in any criminal
23 action or proceeding in a municipal or superior court or in any
24 proceeding in habeas corpus in a superior court, and it is made to
25 appear to the satisfaction of the court by affidavit or by testimony
26 in open court that more than three years have elapsed since the
27 exoneration or release of said bail, the court must direct that the
28 bond be destroyed.
29 (c) This section shall remain in effect only until January 1, 2020,
30 and as of that date is repealed.
31 SEC. 6. Section 1269 is added to the Penal Code, to read:
32 1269. (a) The taking of monetary bail consists in the
33 acceptance,by a competent court or magistrate,of the undertaking
34 of sufficient monetary bail for the appearance of the defendant,
35 according to the terms of the undertaking, or that the bail will pay
36 to the people of this state a specified sum. Upon filing, the clerk
37 shall enter in the register of actions the date and amounts of the
38 bond,the defendant's name, and, if applicable, the name or names
39 of the surety or sureties thereon. In the event of the loss or
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1 destruction of the bond, the entries so made shall be prima facie
2 evidence of the due execution of the bond as required by law.
3 (b) Whenever any bail bond has been deposited in any criminal
4 action or proceeding in a municipal or superior court or in any
5 proceeding in habeas corpus in a superior court, and it is made to
6 appear to the satisfaction of the court by affidavit or by testimony
7 in open court that more than three years have elapsed since the
8 exoneration or release of said bail, the court must direct that the
9 bond be destroyed.
10 (c) This section shall become operative on January 1, 2020.
11 SEC. 7. Section 1269a of the Penal Code is amended to read:
12 1269a. (a) Except as otherwise provided by law, a defendant
13 charged in a warrant of arrest with any public offense shall not be
14 discharged from custody upon bail except upon a written order of
15 a competent court or magistrate admitting the defendant to bail in
16 the amount specified in the indorsement referred to in Section
17 815a, and where an undertaking is furnished, upon a written order
18 of the court or magistrate approving the undertaking. All those
19 orders shall be signed by the court or magistrate and delivered to
20 the officer having custody of the defendant before the defendant
21 is released.Any officer releasing any defendant upon bail otherwise
22 than as herein provided shall be guilty of a misdemeanor.
23 (b) This section shall remain in effect only until January 1,2020,
24 and as of that date is repealed.
25 SEC. 8. Section 1269a is added to the Penal Code, to read:
26 1269a. (a) Except as otherwise provided by law, a defendant
27 charged in a warrant of arrest with any public offense shall not be
28 discharged from custody upon monetary bail except upon a written
29 order of a competent court or magistrate admitting the defendant
30 to bail in the amount determined pursuant to subdivision (c) of
31 Section 1275a and where an undertaking is furnished, upon a
32 written order of the court or magistrate approving the undertaking.
33 All those orders shall be signed by the court or magistrate and
34 delivered to the officer having custody of the defendant before the
35 defendant is released. Any officer releasing any defendant upon
36 bail otherwise than as herein provided shall be guilty of a
37 misdemeanor.
38 (b) This section shall become operative on January 1, 2020.
39 SEC. 9. Section 1269b of the Penal Code is amended to read:
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1 1269b. (a) The officer in charge of a jail in which an arrested
2 person is held in custody, an officer of a sheriff's department or
3 police department of a city who is in charge of a jail or is employed
4 at a fixed police or sheriff's facility and is acting under an
5 agreement with the agency that keeps the jail in which an arrested
6 person is held in custody, an employee of a sheriff's department
7 or police department of a city who is assigned by the department
8 to collect bail,the clerk of the superior court of the county in which
9 the offense was alleged to have been committed, and the clerk of
10 the superior court in which the case against the defendant is
11 pending may approve and accept bail in the amount fixed by the
12 warrant of arrest, schedule of bail, or order admitting to bail in
13 cash or surety bond executed by a certified,admitted surety insurer
14 as provided in the Insurance Code, to issue and sign an order for
15 the release of the arrested person, and to set a time and place for
16 the appearance of the arrested person before the appropriate court
17 and give notice thereof
18 (b) If a defendant has appeared before a judge of the court on
19 the charge contained in the complaint, indictment, or information,
20 the bail shall be in the amount fixed by the judge at the time of the
21 appearance. If that appearance has not been made, the bail shall
22 be in the amount fixed in the warrant of arrest or, if no warrant of
23 arrest has been issued, the amount of bail shall be pursuant to the
24 uniform countywide schedule of bail for the county in which the
25 defendant is required to appear, previously fixed and approved as
26 provided in subdivisions (c) and (d).
27 (c) It is the duty of the superior court judges in each county to
28 prepare,adopt,and annually revise a uniform countywide schedule
29 of bail for all bailable felony offenses and for all misdemeanor
30 and infraction offenses except Vehicle Code infractions. The
31 penalty schedule for infraction violations of the Vehicle Code shall
32 be established by the Judicial Council in accordance with Section
33 40310 of the Vehicle Code.
34 (d) A court may,by local rule,prescribe the procedure by which
35 the uniform countywide schedule of bail is prepared, adopted,and
36 annually revised by the judges. If a court does not adopt a local
37 rule, the uniform countywide schedule of bail shall be prepared,
38 adopted, and annually revised by a majority of the judges.
39 (e) In adopting a uniform countywide schedule of bail for all
40 bailable felony offenses the judges shall consider the seriousness
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1 of the offense charged. In considering the seriousness of the offense
2 charged the judges shall assign an additional amount of required
3 bail for each aggravating or enhancing factor chargeable in the
4 complaint, including,but not limited to, additional bail for charges
5 alleging facts that would bring a person within any of the following
6 sections: Section 667.5, 667.51, 667.6, 667.8, 667.85, 667.9,
7 667.10, 12022, 12022.1, 12022.2, 12022.3, 12022.4, 12022.5,
8 12022.53, 12022.6, 12022.7, 12022.8, or 12022.9 of this code, or
9 Section 11356.5, 11370.2, or 11370.4 of the Health and Safety
10 Code.
11 In considering offenses in which a violation of Chapter 6
12 (commencing with Section 11350) of Division 10 of the Health
13 and Safety Code is alleged, the judge shall assign an additional
14 amount of required bail for offenses involving large quantities of
15 controlled substances.
16 (f) The countywide bail schedule shall contain a list of the
17 offenses and the amounts of bail applicable for each as the judges
18 determine to be appropriate. If the schedule does not list all
19 offenses specifically, it shall contain a general clause for designated
20 amounts of bail as the judges of the county determine to be
21 appropriate for all the offenses not specifically listed in the
22 schedule.A copy of the countywide bail schedule shall be sent to
23 the officer in charge of the county jail, to the officer in charge of
24 each city jail within the county, to each superior court judge and
25 commissioner in the county, and to the Judicial Council.
26 (g) Upon posting bail,the defendant or arrested person shall be
27 discharged from custody as to the offense on which the bail is
28 posted.
29 All money and surety bonds so deposited with an officer
30 authorized to receive bail shall be transmitted immediately to the
31 judge or clerk of the court by which the order was made or warrant
32 issued or bail schedule fixed. If, in the case of felonies, an
33 indictment is filed, the judge or clerk of the court shall transmit
34 all of the money and surety bonds to the clerk of the court.
35 (h) If a defendant or arrested person so released fails to appear
36 at the time and in the court so ordered upon his or her release from
37 custody, Sections 1305 and 1306 apply.
38 (i) This section shall remain in effect only until January 1,2020,
39 and as of that date is repealed.
40 SEC. 10. Section 1269b is added to the Penal Code, to read:
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1 1269b. (a) The officer in charge of a jail in which an arrested
2 person is held in custody, an officer of a sheriff's department or
3 police department of a city who is in charge of a jail or is employed
4 at a fixed police or sheriff's facility and is acting under an
5 agreement with the agency that keeps the jail in which an arrested
6 person is held in custody, an employee of a sheriff's department
7 or police department of a city who is assigned by the department
8 to collect bail,the clerk of the superior court of the county in which
9 the offense was alleged to have been committed,a pretrial services
10 agent, and the clerk of the superior court in which the case against
11 the defendant is pending, may approve and accept an order
12 authorizing pretrial release or admitting to bail, to issue and sign
13 an order for the release of the arrested person, and to set a time
14 and place for the appearance of the arrested person before the
15 appropriate court and give notice thereof
16 (b) Except as provided in Section 821, a person who is arrested
17 and booked into jail for a violent felony, as defined in subdivision
18 (c) of Section 667.5, shall not be considered for release until the
19 person appears before a judge or a magistrate for a hearing in
20 accordance with Section 1275a or 1275b. The pretrial services
21 agency shall not conduct a risk assessment or prepare a pretrial
22 services report for any person who is arrested and booked into jail
23 for a violent felony except in accordance with subdivision (f) of
24 Section 1275a.
25 (c) Except as provided in Section 821, the pretrial services
26 agency shall, within 24 hours of arrest, conduct a risk assessment
27 on a person arrested and booked into jail for one of the following
28 offenses and prepare a pretrial services report with
29 recommendations for conditions of release, however, the person
30 shall not be considered for release until the person appears before
31 a judge or magistrate for a hearing in accordance with Section
32 1275a or 1275b:
33 (1) A serious felony, as defined in subdivision (c) of Section
34 1192.7, except a violation of subdivision (a) of Section 460.
35 (2) A violation of subdivision (c)of Section 136.1, or a violation
36 of Section 262, 273.5, or 646.9.
37 (3) A violation of paragraph (1) of subdivision (e) of Section
38 243.
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1 (4) A violation of Section 273.6 if the detained person is alleged
2 to have made threats to kill or harm, engaged in violence against,
3 or gone to the residence or workplace of, the protected party.
4 (5) Any felony committed while the person is on pretrial release
5 for a separate offense.
6 (d) Except as provided in subdivisions(b) and(c)of this section
7 and Section 821, if a person is arrested and booked into jail, the
8 pretrial services agency shall, immediately upon booking and,
9 except where physically impossible, no later than six hours after
10 booking, conduct a pretrial risk assessment on the person and
11 prepare a pretrial services report with recommendations for
12 conditions of release.
13 (e) If a person who is arrested and booked for a misdemeanor
14 is not first released pursuant to Section 853.6, and except as
15 otherwise provided in subdivisions (c) and(f), the person shall be
16 released by the pretrial services agency subject to signing a release
17 agreement under Section 1318 without further conditions.A person
18 who is arrested and booked for a misdemeanor and who is currently
19 on pretrial release with or without conditions shall not be eligible
20 for release under this subdivision and shall instead be considered
21 for release pursuant to subdivision (f).
22 (0 (1) Except as otherwise provided in subdivisions (b), (c),
23 and (e) of this section and Section 821, upon completion of the
24 pretrial risk assessment and preparation of a pretrial services report
25 with recommendations for conditions of release, the pretrial
26 services agency shall immediately transmit the pretrial services
27 report and recommendations on conditions of release to a
28 magistrate,judge, or court commissioner. The magistrate,judge,
29 or court commissioner shall, no later than six hours after receipt
30 of the pretrial services agency's pretrial risk assessment and pretrial
31 services report with recommendations for conditions of release,
32 issue an oral or written order for release subject to a release
33 agreement under Section 1318 without further conditions or subject
34 to a condition or conditions in accordance with Section 1275a.
35 (2) The fact that the court has not received the report required
36 under this section shall not preclude release pursuant to this
37 subdivision.
38 (g) When an arrested person is released from custody under this
39 section, the court in which the charge is pending may, upon a
40 petition by either party alleging that there has been a change in
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1 circumstances, amend the release order to impose different or
2 additional conditions of release at the time of arraignment.
3 (h) If the judge or magistrate orders the pretrial release of a
4 person under this section, the person shall be released with or
5 without conditions in accordance with Section 1318.
6 (1) An arrested person who is not released under this section
7 shall be considered for release pursuant to Section 1275a or 1275b
8 within the time period prescribed in Section 825.
9 0) The judicial duties to be performed under this section are
10 "subordinate judicial duties"within the meaning of Section 22 of
11 Article VI of the California Constitution and may be performed
12 by appointed officers such as court commissioners.
13 (k) This section shall become operative on January 1, 2020.
14 SEC. 11. Section 1269c of the Penal Code is amended to read:
15 1269c. (a) If a defendant is arrested without a warrant for a
16 bailable felony offense or for the misdemeanor offense of violating
17 a domestic violence restraining order, and a peace officer has
18 reasonable cause to believe that the amount of bail set forth in the
19 schedule of bail for that offense is insufficient to ensure the
20 defendant's appearance or to ensure the protection of a victim, or
21 family member of a victim, of domestic violence,the peace officer
22 shall prepare a declaration under penalty of perjury setting forth
23 the facts and circumstances in support of his or her belief and file
24 it with a magistrate, as defined in Section 808, or his or her
25 commissioner,in the county in which the offense is alleged to have
26 been committed or having personal jurisdiction over the defendant,
27 requesting an order setting a higher bail. Except where the
28 defendant is charged with an offense listed in subdivision (a) of
29 Section 1270.1, the defendant, either personally or through his or
30 her attorney,friend, or family member, also may make application
31 to the magistrate for release on bail lower than that provided in
32 the schedule of bail or on his or her own recognizance. The
33 magistrate or commissioner to whom the application is made is
34 authorized to set bail in an amount that he or she deems sufficient
35 to ensure the defendant's appearance or to ensure the protection
36 of a victim, or family member of a victim, of domestic violence,
37 and to set bail on the terms and conditions that he or she, in his or
38 her discretion, deems appropriate, or he or she may authorize the
39 defendant's release on his or her own recognizance. If, after the
40 application is made,no order changing the amount of bail is issued
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1 within eight hours after booking, the defendant shall be entitled
2 to be released on posting the amount of bail set forth in the
3 applicable bail schedule.
4 (b) This section shall remain in effect only until January 1,2020,
5 and as of that date is repealed.
6 SEC. 12. Section 1269c is added to the Penal Code, to read:
7 1269c. (a) If a defendant is arrested without a warrant for a
8 bailable felony offense or for the misdemeanor offense of violating
9 a domestic violence restraining order, and a peace officer has
10 reasonable cause to believe that release subject to a release
11 agreement under Section 1318 without further conditions is
12 insufficient to ensure the defendant's appearance or to ensure the
13 protection of a victim, or family member of a victim, of domestic
14 violence, the peace officer shall, no later than six hours after the
15 arrest, prepare a declaration under penalty of perjury setting forth
16 the facts and circumstances in support of his or her belief and file
17 it with a magistrate, as defined in Section 808, or his or her
18 commissioner, in the county in which the offense is alleged to have
19 been committed or having personal jurisdiction over the defendant,
20 requesting an order pursuant to subdivision (f) of Section 1269b
21 imposing a condition or conditions of release.
22 (b) This section shall become operative on January 1, 2020.
23 SEC. 13. Section 1270 of the Penal Code is amended to read:
24 1270. (a) Any person who has been arrested for, or charged
25 with, an offense other than a capital offense may be released on
26 his or her own recognizance by a court or magistrate who could
27 release a defendant from custody upon the defendant giving bail,
28 including a defendant arrested upon an out-of-county warrant. A
29 defendant who is in custody and is arraigned on a complaint
30 alleging an offense which is a misdemeanor, and a defendant who
31 appears before a court or magistrate upon an out-of-county warrant
32 arising out of a case involving only misdemeanors,shall be entitled
33 to an own recognizance release unless the court makes a finding
34 on the record, in accordance with Section 1275, that an own
35 recognizance release will compromise public safety or will not
36 reasonably assure the appearance of the defendant as required.
37 Public safety shall be the primary consideration. If the court makes
38 one of those findings, the court shall then set bail and specify the
39 conditions, if any, whereunder the defendant shall be released.
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1 (b) Article 9 (commencing with Section 1318) shall apply to
2 any person who is released pursuant to this section.
3 (c) This section shall remain in effect only until January 1,2020,
4 and as of that date is repealed.
5 SEC. 14. Section 1270.1 of the Penal Code is amended to read:
6 1270.1. (a) Except as provided in subdivision (e), before any
7 person who is arrested for any of the following crimes may be
8 released on bail in an amount that is either more or less than the
9 amount contained in the schedule of bail for the offense, or may
10 be released on his or her own recognizance,a hearing shall be held
11 in open court before the magistrate or judge:
12 (1) A serious felony, as defined in subdivision (c) of Section
13 1192.7,or a violent felony,as defined in subdivision(c)of Section
14 667.5, but not including a violation of subdivision (a) of Section
15 460 (residential burglary).
16 (2) A violation of Section 136.1 where punishment is imposed
17 pursuant to subdivision (c) of Section 136.1, Section 262, 273.5,
18 or 422 where the offense is punished as a felony, or Section 646.9.
19 (3) A violation of paragraph (1) of subdivision (e) of Section
20 243.
21 (4) A violation of Section 273.6 if the detained person made
22 threats to kill or harm,has engaged in violence against,or has gone
23 to the residence or workplace of, the protected party.
24 (b) The prosecuting attorney and defense attorney shall be given
25 a two-court-day written notice and an opportunity to be heard on
26 the matter. If the detained person does not have counsel, the court
27 shall appoint counsel for purposes of this section only. The hearing
28 required by this section shall be held within the time period
29 prescribed in Section 825.
30 (c) At the hearing,the court shall consider evidence of past court
31 appearances of the detained person, the maximum potential
32 sentence that could be imposed, and the danger that may be posed
33 to other persons if the detained person is released. In making the
34 determination whether to release the detained person on his or her
35 own recognizance,the court shall consider the potential danger to
36 other persons, including threats that have been made by the
37 detained person and any past acts of violence. The court shall also
38 consider any evidence offered by the detained person regarding
39 his or her ties to the community and his or her ability to post bond.
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1 (d) If the judge or magistrate sets the bail in an amount that is
2 either more or less than the amount contained in the schedule of
3 bail for the offense,the judge or magistrate shall state the reasons
4 for that decision and shall address the issue of threats made against
5 the victim or witness, if they were made, in the record. This
6 statement shall be included in the record.
7 (e) Notwithstanding subdivision (a), a judge or magistrate,
8 pursuant to Section 1269c, may, with respect to a bailable felony
9 offense or a misdemeanor offense of violating a domestic violence
10 order, increase bail to an amount exceeding that set forth in the
11 bail schedule without a hearing, provided an oral or written
12 declaration of facts justifying the increase is presented under
13 penalty of perjury by a sworn peace officer.
14 (f) This section shall remain in effect only until January 1,2020,
15 and as of that date is repealed.
16 SEC. 15. Section 1270.2 of the Penal Code is amended to read:
17 1270.2. (a) When a person is detained in custody on a criminal
18 charge prior to conviction for want of bail, that person is entitled
19 to an automatic review of the order fixing the amount of the bail
20 by the judge or magistrate having jurisdiction of the offense. That
21 review shall be held not later than five days from the time of the
22 original order fixing the amount of bail on the original accusatory
23 pleading. The defendant may waive this review.
24 (b) This section shall remain in effect only until January 1,2020,
25 and as of that date is repealed.
26 SEC. 16. Section 1275 of the Penal Code is amended to read:
27 1275. (a) (1) In setting, reducing, or denying bail, a judge or
28 magistrate shall take into consideration the protection of the public,
29 the seriousness of the offense charged,the previous criminal record
30 of the defendant,and the probability of his or her appearing at trial
31 or at a hearing of the case. The public safety shall be the primary
32 consideration. In setting bail, a judge or magistrate may consider
33 factors such as the information included in a report prepared in
34 accordance with Section 1318.1.
35 (2) In considering the seriousness of the offense charged,a judge
36 or magistrate shall include consideration of the alleged injury to
37 the victim, and alleged threats to the victim or a witness to the
38 crime charged,the alleged use of a firearm or other deadly weapon
39 in the commission of the crime charged, and the alleged use or
40 possession of controlled substances by the defendant.
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1 (b) In considering offenses wherein a violation of Chapter 6
2 (commencing with Section 11350) of Division 10 of the. Health
3 and Safety Code is alleged, a judge or magistrate shall consider
4 the following: (1) the alleged amounts of controlled substances
5 involved in the commission of the offense, and (2) whether the
6 defendant is currently released on bail for an alleged violation of
7 Chapter 6(commencing with Section 11350)of Division 10 of the
8 Health and Safety Code.
9 (c) Before a court reduces bail to below the amount established
10 by the bail schedule approved for the county, in accordance with
11 subdivisions (b) and (c) of Section 1269b, for a person charged
12 with a serious felony, as defined in subdivision (c) of Section
13 1192.7, or a violent felony,as defined in subdivision(c)of Section
14 667.5,the court shall make a finding of unusual circumstances and
15 shall set forth those facts on the record. For purposes of this
16 subdivision, "unusual circumstances" does not include the fact
17 that the defendant has made all prior court appearances or has not
18 committed any new offenses.
19 (d) This section shall remain in effect only until January 1,2020,
20 and as of that date is repealed.
21 SEC. 17. Section 1275 is added to the Penal Code, to read:
22 1275. (a) (1) In making a pretrial release or detention decision
23 pursuant to Section 1275a or 1275b, a judge or magistrate shall
24 take into consideration the protection of the public,the seriousness
25 of the offense charged, the previous criminal record of the
26 defendant, the probability of his or her appearing at trial or at a
27 hearing of the case, and the presumption of innocence. The public
28 safety, the safety of the victim, and the probability of the accused
29 appearing in court as required shall be the primary considerations.
30 (2) In considering the seriousness of the offense charged,a judge
31 or magistrate shall include consideration of the alleged injury to
32 the victim, alleged threats to the victim or a witness to the crime
33 charged, and the alleged use of a firearm or other deadly weapon
34 in the commission of the crime charged.
35 (3) It shall be the duty of the court to determine what condition
36 or conditions will ensure the safety of the community, secure the
37 defendant's appearance at trial or at a hearing of the case, and
38 facilitate pretrial release. If, pursuant to Section 1275b, the court
39 finds that no conditions will reasonably ensure the defendant's
40 appearance in court or at a hearing of the court and protect public
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1 safety, the court shall issue an order with findings of fact and a
2 statement explaining what condition or conditions it considered
3 and why those conditions were inadequate.
4 (b) The judge or magistrate shall make a pretrial release or
5 detention decision for a person without unnecessary delay, and in
6 any event, within the time period prescribed in Section 825.
7 (c) In making a pretrial release decision pursuant to Section
8 1275a, the judge or magistrate shall consider the pretrial services
9 agency's risk assessment, recommendations on conditions of
10 release, and the pretrial services report in accordance with Section
11 1318.3.If a judge or magistrate's release decision is not consistent
12 with the pretrial services program's risk assessment and
13 recommendations on conditions of release,the judge or magistrate
14 shall include in its order for release a statement of the reasons.
15 (d) In making a pretrial detention decision following a detention
16 hearing pursuant to Section 1275b, a judge or magistrate shall not
17 consider the pretrial services agency's risk assessment or the results
18 of the risk assessment and shall instead determine whether the
19 person meets the description of subdivision (a) of Section 1275b,
20 pursuant to Section 12 of Article I of the California Constitution.
21 (e) If a person is arrested for a serious felony, the prosecutor
22 shall provide notice of the hearing required by Section 1275a or
23 1275b to the alleged victim or next of kin of the alleged victim of
24 the offense for which the person was arrested, pursuant to
25 paragraph (3) of subdivision (f) of Section 28 of Article I of the
26 California Constitution.
27 (f) This section shall become operative on January 1, 2020.
28 SEC. 18. Section 1275a is added to the Penal Code, to read:
29 1275a. (a) Except as provided in subdivision (f) and Section
30 1275b, at the arraignment of a person who is in custody,the judge
31 or magistrate shall, after considering the pretrial services report
32 with recommendations for conditions of release and any relevant
33 infonnation provided by the prosecuting attorney or the defendant,
34 order the pretrial release of the person subject to a release
35 agreement under Section 1318 without further conditions, unless
36 the judge or magistrate determines that the release will not
37 reasonably ensure the appearance of the person as required, the
38 safety of the victim, or public safety. If the judge or magistrate
39 releases the person subject to a release agreement under Section
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1 1318 without further conditions,the reasons for that decision shall
2 be stated in the record and included in the court's minutes.
3 (b) (1) If, after considering the pretrial services report with
4 recommendations for conditions of release and any relevant
5 information provided by the prosecuting attorney or the defendant,
6 the judge or magistrate detennines that the release described in
7 subdivision (a) will not reasonably ensure the appearance of the
8 person as required, the safety of the victim, or public safety, the
9 judge or magistrate shall order pretrial release subject to a release
10 agreement under Section 1318 and to the least restrictive further
11 noninonetary condition or conditions that the judge or magistrate
12 determines will reasonably ensure the appearance of the person as
13 required, the safety of the victim, and public safety. The judge or
14 magistrate shall include in its release order findings of fact and a
15 statement of the reasons for the detennination that the release
16 described in subdivision (a) is not appropriate and the reasons for
17 imposing each condition that are specific to the person before the
18 court.
19 (2) The judge or magistrate shall not be required to specify the
20 reasons for ordering that the defendant be provided either of the
21 following services upon release:
22 (A) A reminder notification to come to court.
23 (B) Assistance with transportation to and from court.
24 (3) (A) If a person for whom any nonmonetary condition or
25 combination of conditions is imposed has the financial ability to
26 pay all or part of the costs associated with that condition or
27 conditions, the court may order the defendant to pay a reasonable
28 fee, which shall not exceed the actual cost of the condition or
29 conditions. Inability to pay all or a portion of the costs shall not
30 serve as grounds to impose more restrictive conditions.
31 (B) In cases of fraud or embezzlement prohibited in Section
32 186.11, the prosecutor may seek the remedies provided in that
33 section to preserve property or assets in the control of the defendant
34 or transferred by that person to a third party subsequent to the
35 alleged commission of the crime.
36 (c) (1) If, after considering the pretrial services report with
37 recommendations for conditions of release and any relevant
38 information provided by the prosecuting attorney or the defendant,
39 the judge or magistrate determines that the release described in
40 subdivision (b) will not reasonably ensure the appearance of the
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1 person as required,the judge or magistrate shall set monetary bail
2 as determined pursuant to paragraph(2).The court may also order
3 monetary bail in combination with the least restrictive nonmonetary
4 condition or combination of nonmonetary conditions that the judge
5 or magistrate determines will reasonably ensure the appearance
6 of the person as required,the safety of the victim,and public safety.
7 (2) (A) Monetary bail shall be set at the least restrictive level
8 necessary to ensure the appearance of the defendant in court as
9 required. In setting monetary bail,the court shall conduct an inquiry
10 into the person's ability to pay.
11 (B) For purposes of this paragraph, "ability to pay" means the
12 defendant's ability as defined in paragraph (2) of subdivision (g)
13 of Section 987.8 or as defined by the California Rules of Court
14 developed by the Judicial Council for this purpose.
15 (3) A judge or magistrate shall not set monetary bail in an
16 amount that results in the pretrial detention of a defendant solely
17 because of his or her inability to pay.
18 (d) If the defendant has not retained counsel, the court shall
19 offer to appoint counsel to represent him or her at his or her
20 arraignment. If the defendant requests that counsel be appointed,
21 or if the court finds that the defendant is not competent to represent
22 himself or herself, the court shall appoint counsel.
23 (e) The fact that the court has not received the report at the time
24 of release consideration shall not preclude that release.
25 (0 (1) For a defendant charged with a violent felony,as defined
. 26 in subdivision (c) of Section 667.5, the pretrial services agency
27 shall conduct a pretrial risk assessment and prepare a pretrial
28 services report only if the defendant, either directly or through
29 counsel if the person is represented by counsel, requests a pretrial
30 risk assessment and report.
31 (2) If the defendant requests a pretrial risk assessment, the
32 assessment and report shall be completed within 12 hours, and
33 within 24 hours the defendant shall be considered for release
34 pursuant to subdivisions (a), (b), and(c).
35 (g) A defendant for whom conditions of release are imposed
36 and who,five days after the imposition of the conditions, continues
37 to be detained as a result of an inability to meet the conditions of
38 release, shall be entitled to an automatic review of the conditions
39 by the court. The defendant may waive this review.
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1 (h) For purposes of this section, "least restrictive"means those
2 release terms necessary to reasonably ensure the appearance of
3 the specific person, the safety of the victim, and public safety, as
4 determined by the court.
5 (i) This section shall become operative on January 1, 2020.
6 SEC. 19. Section 1275b is added to the Penal Code, to read:
7 1275b. (a) A.prosecuting attorney may file a motion with the
8 court at any time, including any time before or after a defendant's
9 release pursuant to Section 1269b, seeking the pretrial detention
10 of the defendant in any of the following circumstances:
11 (1) The defendant is charged with a capital crime and the
12 prosecuting attorney alleges that the facts are evident or the
13 presumption great.
14 (2) The defendant is charged with a felony offense involving
15 acts of violence on another person, or a felony sexual assault
16 offense on another person and the prosecuting attorney alleges all
17 of the following:
18 (A) The facts are evident or the presumption great.
19 (B) There is no condition or combination of conditions of pretrial
20 release that would reasonably ensure the physical safety of another
21 person or persons.
22 (C) There is a substantial likelihood the defendant's release
23 would result in great bodily harm to others.
24 (3) The defendant is charged with a felony offense and the
25 prosecuting attorney alleges all of the following:
26 (A) The facts are evident or the presumption great.
27 (B) The defendant has threatened another with great bodily
28 hann.
29 (C) There is no condition or combination of conditions of pretrial
30 release that would reasonably ensure the safety of the person who
31 has been threatened.
32 (D) There is a substantial likelihood that the defendant would
33 carry out the threat if released.
34 (b) (1) If a motion for pretrial detention is filed pursuant to
35 subdivision(a),a hearing shall be held before a magistrate or judge
36 to determine whether to release the defendant pending trial unless
37 the hearing is waived by the defendant, either directly or, if he or
38 she is represented by counsel, through counsel. The defense
39 attorney shall be given notice and a reasonable opportunity to be
40 heard on the matter. If the defendant does not have counsel, the
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1 court shall appoint counsel. The hearing shall be held within 48
2 hours after filing the motion unless waived by the defendant either
3 directly or, if represented by counsel, through counsel.
4 (2) If the defendant waives a hearing under this section and a
5 pretrial risk assessment was conducted and apretrial services report
6 was prepared, they shall not be provided to the parties named in
7 paragraph(2)of subdivision(f)and the defendant shall be ordered
8 detained.
9 (c) The defendant shall be afforded an opportunity to present
10 witnesses, to cross-examine witnesses who appear at the hearing,
11 and to present relevant evidence.
12 (d) In determining whether the facts are evident or the
13 presumption great as specified in paragraph (1), (2), or (3) of
14 subdivision (a), the finding of an indictment or a holding order
15 shall not add to the strength of the proof or create a presumption
16 that the facts are evident or the presumption great.
17 (e) In making the determination whether there is a substantial
18 likelihood that the defendant's release would result in great bodily
19 hann to others, as specified in subparagraph (C) of paragraph (2)
20 of subdivision (a), or whether there is a substantial likelihood that
21 the defendant would carry out the threat of great bodily hann if
22 released, as specified in subparagraph (D) of paragraph (3) of
23 subdivision (a), the court shall consider all of the following:
24 (1) If any condition or combination of conditions of pretrial
25 release would reasonably ensure the physical safety of another
26 person or persons from great bodily harm.
27 (2) The nature and seriousness of the physical harm to any
28 person or persons that might be posed by the defendant's release.
29 (3) Any relevant history or facts about the defendant that directly
30 correspond to whether his or her release is likely to result in great
31 bodily hann to others, as specified in subparagraph (C) of
32 paragraph (2) of subdivision (a), or to the threatened person, as
33 specified in subparagraph (D) of paragraph (3) of subdivision (a).
34 (f) In addition to the above factors, the court shall consider all
35 of the following:
36 (1) The protection of the public.
37 (2) The safety of the victim.
38 (3) The nature and circumstances of the offense charged.
39 (4) The weight of the evidence against the defendant.
40 (5) The previous criminal record of the defendant.
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1 (6) The probability of the defendant appearing at the trial or
2 hearing of the case.
3 (7) The presumption of innocence and the presumption of release
4 pending trial.
5 (g) If, after considering any relevant evidence provided by the
6 prosecuting attorney or the defendant, and if no condition or
7 combination of conditions would reasonably ensure the safety of
8 another person or persons from great bodily harm, the court shall
9 order the person detained pending trial only if,pursuant to Section
10 12 of Article 1 of the Constitution, the court finds that the
11 defendant meets one of the following descriptions:
12 (1) The defendant has been charged with a capital crime and
13 the facts are evident or the presumption great.
14 (2) The defendant has been charged with a felony offense
15 involving an act of violence on another person, or a felony sexual
16 assault offense on another person, the facts are evident or the
17 presumption great, and the court finds based upon clear and
18 convincing evidence that there is a substantial likelihood the
19 person's release would result in great bodily hann to another person
20 or persons.
21 (3) The defendant has been charged with a felony offense, the
22 facts are evident or the presumption great,and the court finds based
23 on clear and convincing evidence that the person has threatened
24 another with great bodily harm in the charged case and that there
25 is a substantial likelihood that the person would carry out the threat
26 if released.
27 (h) In a detention order issued under subdivision (g), the court
28 shall include findings of fact and a statement of the reasons for the
29 detention, including the specific likelihood of great bodily hann,
30 if applicable, and why no condition or conditions could reasonably
31 mitigate that likelihood.
32 (i) If the court does not order the pretrial detention of the person
33 at the conclusion of the hearing under this section,pretrial services
34 shall conduct a risk assessment and prepare a pretrial services
35 report with recommendations for conditions of release and the
36 court shall order the release of the person, with or without
37 conditions, pursuant to Section 1275a.
38 (j) This section shall become operative on January 1, 2020.
39 SEC. 20. Section 1275.1 of the Penal Code is amended to read:
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1 1275.1. (a) Bail,pursuant to this chapter, shall not be accepted
2 unless a judge or magistrate finds that no portion of the
3 consideration, pledge, security, deposit, or indemnification paid,
4 given, made, or promised for its execution was feloniously
5 obtained.
6 (b) A hold on the release of a defendant from custody shall only
7 be ordered by a magistrate or judge if any of the following occurs:
8 (1) A peace officer, as defined in Section 830,files a declaration
9 executed under penalty of perjury setting forth probable cause to
10 believe that the source of any consideration, pledge, security,
11 deposit, or indemnification paid, given, made, or promised for its
12 execution was feloniously obtained.
13 (2) A prosecutor files a declaration executed under penalty of
14 perjury setting forth probable cause to believe that the source of
15 any consideration, pledge, security, deposit, or indemnification
16 paid, given, made, or promised for its execution was feloniously
17 obtained. A prosecutor shall have absolute civil immunity for
18 executing a declaration pursuant to this paragraph.
19 (3) The magistrate or judge has probable cause to believe that
20 the source of any consideration, pledge, security, deposit, or
21 indemnification paid, given, made, or promised for its execution
22 was feloniously obtained.
23 (c) Once a magistrate or judge has detennined that probable
24 cause exists, as provided in subdivision (b), a defendant bears the
25 burden by a preponderance of the evidence to show that no part
26 of any consideration,pledge, security, deposit, or indemnification
27 paid, given, made, or promised for its execution was obtained by
28 felonious means. Once a defendant has met such burden, the
29 magistrate or judge shall release the hold previously ordered and
30 the defendant shall be released under the authorized amount of
31 bail.
32 (d) The defendant and his or her attorney shall be provided with
33 a copy of the declaration of probable cause filed under subdivision
34 (b) no later than the date set forth in Section 825.
35 (e) Nothing in this section shall prohibit a defendant from
36 obtaining a loan of money so long as the loan will be funded and
37 repaid with funds not feloniously obtained.
38 (f) At the request of any person providing any portion of the
39 consideration, pledge, security, deposit, or indemnification paid,
40 given,made, or promised for its execution,the magistrate or judge,
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1 at an evidentiary hearing to detennine the source of the funds,may
2 close it to the general public to protect the person's right to privacy
3 in his or her financial affairs.
4 (g) If the declaration, having been filed with a magistrate or
5 judge, is not acted on within 24 hours, the defendant shall be
6 released from custody upon posting of the amount of bail set.
7 (h) Nothing in this code shall deny the right of the defendant,
8 either personally or through his or her attorney,bail agent licensed
9 by the Department of Insurance, admitted surety insurer licensed
10 by the Department of Insurance, friend, or member of his or her
11 family from making an application to the magistrate or judge for
12 the release of the defendant on bail.
13 (i) The bail of any defendant found to have willfully misled the
14 court regarding the source of bail may be increased as a result of
15 the willful misrepresentation. The misrepresentation may be a
16 factor considered in any subsequent bail hearing.
17 0) If a defendant has met the burden under subdivision(c), and
18 a defendant will be released from custody upon the issuance of a
19 bail bond issued pursuant to authority of Section 1269 or 1269b
20 by any admitted surety insurer or any bail agent, approved by the
21 Insurance Commissioner, the magistrate or judge shall vacate the
22 holding order imposed under subdivision (b) upon the condition
23 that the consideration for the bail bond is approved by the court.
24 (k) As used in this section, "feloniously obtained" means any
25 consideration, pledge, security, deposit, or indemnification paid,
26 given, made, or promised for its execution which is possessed,
27 received, or obtained through an unlawful act, transaction, or
28 occurrence constituting a felony.
29 (1) This section shall remain in effect only until January 1,2020,
30 and as of that date is repealed.
31 SEC. 21. Section 1275.1 is added to the Penal Code, to read:
32 1275.1. (a) Monetary bail, pursuant to this chapter, shall not
33 be accepted unless a judge or magistrate finds that no portion of
34 the consideration, pledge, security, deposit, or indemnification
35 paid, given, made, or promised for its execution was feloniously
36 obtained.
37 (b) A hold on the release of a defendant from custody shall only
38 be ordered by a magistrate or judge if any of the following occurs:
39 (1) A peace officer,as defined in Section 830,files a declaration
40 executed under penalty of perjury setting forth probable cause to
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1 believe that the source of any consideration, pledge, security,
2 deposit, or indemnification paid, given, made, or promised for its
3 execution was feloniously obtained.
4 (2) A prosecutor files a declaration executed under penalty of
5 perjury setting forth probable cause to believe that the source of
6 any consideration, pledge, security, deposit, or indemnification
7 paid, given, made, or promised for its execution was feloniously
8 obtained. A prosecutor shall have absolute civil immunity for
9 executing a declaration pursuant to this paragraph.
10 (3) The magistrate or judge has probable cause to believe that
11 the source of any consideration, pledge, security, deposit, or
12 indemnification paid, given, made, or promised for its execution
13 was feloniously obtained.
14 (c) Once a magistrate or judge has determined that probable
15 cause exists, as provided in subdivision (b), a defendant bears the
16 burden by a preponderance of the evidence to show that no part
17 of any consideration,pledge, security, deposit, or indemnification
18 paid, given, made, or promised for its execution was obtained by
19 felonious means. Once a defendant has met such burden, the
20 magistrate or judge shall release the hold previously ordered and
21 the defendant shall be released under the authorized amount of
22 bail.
23 (d) The defendant and his or her attorney shall be provided with
24 a copy of the declaration of probable cause filed under subdivision
25 (b) no later than the date set forth in Section 825.
26 (e) Nothing in this section shall prohibit a defendant from
27 obtaining a loan of money so long as the loan will be funded and
28 repaid with funds not feloniously obtained.
29 (f) At the request of any person providing any portion of the
30 consideration, pledge, security, deposit, or indemnification paid,
31 given,made,or promised for its execution,the magistrate or judge,
32 at an evidentiary hearing to detennine the source of the funds,may
33 close it to the general public to protect the person's right to privacy
34 in his or her financial affairs.
35 (g) If the declaration, having been filed with a magistrate or
36 judge, is not acted on within 24 hours, the defendant shall be
37 released from custody upon posting of the amount of bail set.
38 (h) Nothing in this code shall deny the right of the defendant,
39 either personally or through his or her attorney,bail agent licensed
40 by the Department of Insurance, admitted surety insurer licensed
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1 by the Department of Insurance, friend, or member of his or her
2 family from making an application to the magistrate or judge for
3 the release of the defendant on monetary bail.
4 (i) The bail of any defendant found to have willfully misled the
5 court regarding the source of bail may be increased as a result of
6 the willful misrepresentation, so long as the amount conforms with
7 subdivision (c) of Section 1275a. The misrepresentation may be
8 a factor considered in any subsequent bail hearing.
9 0) If a defendant has met the burden under subdivision(c), and
10 a defendant will be released from custody upon the issuance of a
11 bail bond issued pursuant to authority of Section 1269 by any
12 admitted surety insurer or any bail agent,approved by the Insurance
13 Commissioner, the magistrate or judge shall vacate the holding
14 order imposed under subdivision (b) upon the condition that the
15 consideration for the bail bond is approved by the court.
16 (k) As used in this section, "feloniously obtained" means any
17 consideration, pledge, security, deposit, or indemnification paid,
18 given, made, or promised for its execution which is possessed,
19 received, or obtained through an unlawful act, transaction, or
20 occurrence constituting a felony.
21 (1) This section shall become operative on January 1, 2020.
22 SEC. 22. Section 1277 of the Penal Code is amended to read:
23 1277. (a) When the defendant has been held to answer upon
24 an examination for a public offense, the admission to bail may be
25 by the magistrate by whom he or she is so held, or by any
26 magistrate who has power to issue the writ of habeas corpus.
27 (b) This section shall remain in effect only until January 1, 2020,
28 and as of that date is repealed.
29 SEC. 23. Section 1277 is added to the Penal Code, to read:
30 1277. (a) When the defendant has been held to answer upon
31 an examination for a public offense, pretrial release pursuant to
32 Section 1275a or admission to bail may be by the magistrate by
33 whom he or she is so held, or by any magistrate who has power
34 to issue the writ of habeas corpus.
35 (b) This section shall become operative on January 1, 2020.
36 SEC. 24. Section 1278 of the Penal Code is amended to read:
37 1278. (a) Bail is put in by a written undertaking, executed by
38 two sufficient sureties (with or without the defendant, in the
39 discretion of the magistrate), and acknowledged before the court
40 or magistrate, in substantially the following form:
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1 An order having been made on the day of , 20 , by
2 , a judge of the Court of County,that be held
3 to answer upon a charge of (stating briefly the nature of the
4 offense), upon which he or she has been admitted to bail in the
5 sum of dollars ($ ); we, and , of (stating
6 their place of residence and occupation), hereby undertake that the
7 above-named will appear and answer any charge in any
8 accusatory pleading based upon the acts supporting the charge
9 above mentioned, in whatever court it may be prosecuted,and will
10 at all times hold himself or herself amenable to the orders and
11 process of the court, and if convicted, will appear for
12 pronouncement of judgment or grant of probation, or if he or she
13 fails to perform either of these conditions, that we will pay to the
14 people of the State of California the sum of dollars ($___)
15 (inserting the sum in which the defendant is admitted to bail). If
16 the forfeiture of this bond be ordered by the court,judgment may
17 be summarily made and entered forthwith against the said(naming
18 the sureties), and the defendant if he or she be a party to the bond,
19 for the amount of their respective undertakings herein,as provided
20 by Sections 1305 and 1306.
21 (b) Every undertaking of bail shall contain the bail agent license
22 number of the owner of the bail agency issuing the undertaking
23 along with the name, address, and phone number of the agency,
24 regardless of whether the owner is an individual, partnership, or
25 corporation. The bail agency name on the undertaking shall be a
26 business name approved by the Insurance Commissioner for use
27 by the bail agency owner, and be so reflected in the public records
28 of the commissioner. The license number of the bail agent
29 appearing on the undertaking shall be in the same type size as the
30 name, address, and phone number of the agency.
31 (c) This section shall reinain in effect only until January 1,2020,
32 and as of that date is repealed.
33 SEC. 25. Section 1278 is added to the Penal Code, to read:
34 1278. (a) (1) Upon a finding that monetary bail should be set
35 pursuant to subdivision (c) of Section 1275a, the defendant may
36 execute an unsecured appearance bond or a secured bond in the
37 amount specified by the court. The court may require, and the
38 defendant may request, that an unsecured appearance bond be
39 signed by uncompensated third parties.
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1 (2) For the purposes of this subdivision, "unsecured appearance
2 bond"means an order to release a person upon his or her promise
3 to appear in court and his or her unsecured promise to pay an
4 amount of money, specified by the court, if he or she fails to appear
5 as promised.
6 (b) A secured bond is put in by a written undertaking, executed
7 by two sufficient sureties (with or without the defendant, in the
8 discretion of the magistrate), and acknowledged before the court
9 or magistrate, in substantially the following form:
10 An order having been made on the day of , 20 , by
11 , a judge of the Court of County,that be held
12 to answer upon a charge of (stating briefly the nature of the
13 offense), upon which he or she has been admitted to bail in the
14 sum of dollars ($ ); we, and , of_ (stating
15 their place of residence and occupation),hereby undertake that the
16 above-named will appear and answer any charge in any
17 accusatory pleading based upon the acts supporting the charge
18 above mentioned,in whatever court it may be prosecuted, and will
19 at all times hold himself or herself amenable to the orders and
20 process of the court, and if convicted, will appear for
21 pronouncement of judgment or grant of probation, or if he or she
22 fails to perform either of these conditions, that we will pay to the
23 people of the State of California the sum of dollars ($ )
24 (inserting the sum in which the defendant is admitted to bail). If
25 the forfeiture of this bond be ordered by the court,judgment may
26 be summarily made and entered forthwith against the said(naming
27 the sureties), and the defendant if he or she be a party to the bond,
28 for the amount of their respective undertakings herein, as provided
29 by Sections 1305 and 1306.
30 (c) Every undertaking of bail shall contain the bail agent license
31 number of the owner of the bail agency issuing the undertaking
32 along with the name, address, and phone number of the agency,
33 regardless of whether the owner is an individual, partnership, or
34 corporation. The bail agency name on the undertaking shall be a
35 business name approved by the Insurance Commissioner for use
36 by the bail agency owner, and be so reflected in the public records
37 of the commissioner. The license number of the bail agent
38 appearing on the undertaking shall be in the same type size as the
39 name, address, and phone number of the agency.
40 (d) This section shall become operative on January 1, 2020.
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30
1 SEC. 26. Section 1284 of the Penal Code is amended to read:
2 1284. (a) When the offense charged is not punishable with
3 death, the officer serving the bench warrant must, if required,take
4 the defendant before a magistrate in the county in which it is issued,
5 or in which he or she is arrested, for the purpose of giving bail. If
6 the defendant appears before the magistrate without the bench
7 warrant having been served upon him or her, the magistrate shall
8 deliver him or her into the custody of the sheriff for the purpose
9 of immediate booking and the recording of identification data,
10 whereupon the sheriff shall deliver the defendant back before the
11 magistrate for the purpose of giving bail.
12 (b) This section shall remain in effect only until January 1,2020,
13 and as of that date is repealed.
14 SEC. 27. Section 1284 is added to the Penal Code, to read:
15 1284. (a) When the offense charged is not punishable with
16 death,the officer serving the bench warrant must,if required,take
17 the defendant before a magistrate in the county in which it is issued,
18 or in which he or she is arrested,for the purpose of a pretrial release
19 hearing. If the defendant appears before such magistrate without
20 the bench warrant having been served upon him or her, the
21 magistrate shall deliver him or her into the custody of the sheriff
22 for the purpose of immediate booking and the recording of
23 identification data, whereupon the sheriff shall deliver the
24 defendant back before the magistrate for the purpose of a pretrial
25 release hearing.
26 (b) This section shall become operative on January 1, 2020.
27 SEC. 28. Section 1288 of the Penal Code is amended to read:
28 1288. (a) The provisions contained in Sections 1279, 1280,
29 1280a, and 1281, in relation to bail before indictment, apply to
30 bail after indictment.
31 (b) This section shall remain in effect only until January 1,2020,
32 and as of that date is repealed.
33 SEC. 29. Section 1289 of the Penal Code is amended to read:
34 1289. (a) After a defendant has been admitted to bail upon an
35 indictment or information,the court in which the charge is pending
36 may,upon good cause shown,either increase or reduce the amount
37 of bail. If the amount be increased, the court may order the
38 defendant to be committed to actual custody,unless he or she give
39 bail in such increased amount. If application be made by the
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31
1 defendant for a reduction of the amount, notice of the application
2 must be served upon the district attorney.
3 (b) This section shall remain in effect only until January 1,2020,
4 and as of that date is repealed.
5 SEC. 30. Section 1289 is added to the Penal Code, to read:
6 1289. (a) After a defendant has been released from custody
7 upon an indictment or information pursuant to Section 1275a, the
8 court in which the charge is pending may, upon a change in
9 circumstances, amend the release order to change the conditions
10 of release, including the amount of any monetary bail. If, upon
11 motion of the prosecuting attorney, the amount of monetary bail
12 is increased,the court shall set bail in accordance with subdivision
13 (c) of Section 1275a. If the defendant requests a change in the
14 conditions of release, notice of the request shall be served upon
15 the prosecuting attorney.
16 (b) If the defendant has not retained counsel, the court shall
17 offer to appoint counsel for purposes of this section. If the
18 defendant requests that counsel be appointed, or if the court finds
19 that the defendant is not competent to represent himself or herself,
20 the court shall appoint counsel.
21 (c)
22 This section shall become operative on January 1, 2020.
23 SEC. 31. Section 1295 of the Penal Code is amended to read:
24 1295. (a) The defendant, or any other person,at any time after
25 an order admitting the defendant to bail or after the arrest and
26 booking of a defendant for having committed a misdemeanor,
27 instead of giving bail may deposit, with the clerk of the court in
28 which the defendant is held to answer or notified to appear for
29 arraignment, the sum mentioned in the order or, if no order, in the
30 schedule of bail previously fixed by the judges of the court, and,
31 upon delivering to the officer in whose custody defendant is a
32 certificate of the deposit, the defendant shall be discharged from
33 custody.
34 (b) Where more than one deposit is made with respect to any
35 charge in any accusatory pleading based upon the acts supporting
36 the original charge as a result of which an earlier deposit was made,
37 the defendant shall receive credit in the amount of any earlier
38 deposit.
39 (c) The clerk of the court shall not accept a general assistance
40 check for this deposit or any part thereof.
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32
1 (d) This section shall remain in effect only until January 1,2020,
2 and as of that date is repealed.
3 SEC. 32. Section 1295 is added to the Penal Code, to read:
4 1295. (a) The defendant, at any time after an order admitting
5 the defendant to bail pursuant to Section 1275a, instead of giving
6 bail may deposit,with the clerk of the court in which the defendant
7 is held to answer or notified to appear for arraignment, the sum
8 mentioned in the order or a percentage of the sum mentioned in
9 the order, not to exceed 10 percent, and, upon delivering to the
10 officer in whose custody defendant is a certificate of the deposit,
11 the defendant shall be discharged from custody.
12 (b) Where more than one deposit is made with respect to any
13 charge in any accusatory pleading based upon the acts supporting
14 the original charge as a result of which an earlier deposit was made,
15 the defendant shall receive credit in the amount of any earlier
16 deposit.
17 (c) The clerk of the court shall not accept a general assistance
18 check for this deposit or any part thereof.
19 (d) This section shall become operative on January 1, 2020.
20 SEC. 33. Section 1318 of the Penal Code is amended to read:
21 1318. (a) The defendant shall not be released from custody
22 under an own recognizance until the defendant files with the clerk
23 of the court or other person authorized to accept bail a signed
24 release agreement which includes:
25 (1) The defendant's promise to appear at all times and places,
26 as ordered by the court or magistrate and as ordered by any court
27 in which,or any magistrate before whom the charge is subsequently
28 pending.
29 (2) The defendant's promise to obey all reasonable conditions
30 imposed by the court or magistrate.
31 (3) The defendant's promise not to depart this state without
32 leave of the court.
33 (4) Agreement by the defendant to waive extradition if the
34 defendant fails to appear as required and is apprehended outside
35 of the State of California.
36 (5) The acknowledgment of the defendant that he or she has
37 been informed of the consequences and penalties applicable to
38 violation of the conditions of release.
39 (b) This section shall remain in effect only until January 1,2020,
40 and as of that date is repealed.
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33
1 SEC. 34. Section 1318 is added to the Penal Code, to read:
2 1318. (a) The defendant shall not be released from custody
3 under his or her own recognizance with no further conditions, or
4 released with a further condition or conditions,until the defendant
5 files with the clerk of the court or other person authorized to accept
6 bail a signed release agreement which includes:
7 (1) The defendant's promise to appear at all times and places,
8 as ordered by the court or magistrate and as ordered by any court
9 in which,or any magistrate before whom the charge is subsequently
10 pending.
11 (2) The defendant's promise to obey all reasonable conditions
12 imposed by the court or magistrate.
13 (3) The defendant's promise not to depart this state without
14 leave of the court.
15 (4) Agreement by the defendant to waive extradition if the
16 defendant fails to appear as required and is apprehended outside
17 of the State of California.
18 (5) The acknowledgment of the defendant that he or she has
19 been informed of the consequences and penalties applicable to
20 violation of the conditions of release.
21 (b) This section shall become operative on January 1, 2020.
22 SEC. 35. Section 1318.1 of the Penal Code is amended to read:
23 1318.1. (a) A court, with the concurrence of the board of
24 supervisors, may employ an investigative staff for the purpose of
25 recommending whether a defendant should be released on his or
26 her own recognizance.
27 (b) Whenever a court has employed an investigative staff
28 pursuant to subdivision(a),an investigative report shall be prepared
29 in all cases involving a violent felony, as described in subdivision
30 (c) of Section 667.5, or a felony in violation of subdivision (a) of
31 Section 23153 of the Vehicle Code, recommending whether the
32 defendant should be released on his or her own recognizance. The
33 report shall include all of the following:
34 (1) Written verification of any outstanding warrants against the
35 defendant.
36 (2) Written verification of any prior incidents where the
37 defendant has failed to make a court appearance. .
38 (3) Written verification of the criminal record of the defendant.
39 (4) Written verification of the residence of the defendant during
40 the past year.
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i
34
1 After the report is certified pursuant to this subdivision, it shall
2 be submitted to the court for review, prior to a hearing held
3 pursuant to Section 1319.
4 (c) The salaries of the staff are a proper charge against the
5 county.
6 (d) This section shall remain in effect only until January 1,2020,
7 and as of that date is repealed.
8 SEC. 36. Section 1318.1 is added to the Penal Code, to read:
9 1318.1. (a) Each county shall establish a pretrial services
10 agency,which shall be responsible for gathering information about
11 newly arrested defendants,conducting risk assessments on pretrial
12 defendants, preparing individually tailored recommendations to
13 the court regarding release options and conditions, and providing
14 pretrial services and supervision to defendants on pretrial release.
15 Pretrial services agencies shall do all of the following:
16 (1) Use methods that research has proven to be effective in
17 reducing unnecessary detention while ensuring court appearance
18 and the safety of the community during the pretrial stage.
19 (2) Assist defendants on pretrial release in remaining free from
20 custody and to employ the least restrictive interventions and
21 practices.
22 (3) Ensure that services provided are culturally and linguistically
23 competent.
24 (4) Ensure that all policies and practices are developed and
25 applied to reduce or eliminate bias based on race,ethnicity,national
26 origin, immigration status,gender,religion, and sexual orientation.
27 (b) Each county shall develop a pretrial services agency. The
28 agency shall follow the standards and guidelines set by the
29 Judicial Councilpursuant to Sections 1318.2 and 1318.3, as well
30 as current bestpractices and standards for pretrial services agencies
31 and professionals.
32 (c) Pretrial services agencies shall make every effort to assist
33 pretrial defendants with complying with their conditions of release
34 and to address noncompliance with pretrial services requirements
35 administratively.
36 (d) Pretrial services agencies shall,at a minimum,notify released
37 defendants of their court dates.
38 (e) In carrying out its duties, pretrial services agencies may do
39 any of the following:
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35
1 (1) Through appropriate referral, and at the request of a
2 defendant, assist a defendant released pretrial to access medical,
3 legal, and social services that would increase the chances of
4 successful compliance with conditions of pretrial release.
5 (2) Coordinate the services of community release projects,other
6 agencies, nonprofit organizations, or individuals that serve as
7 third-party custodians for released defendants.
8 (f) When ordered by the court, a pretrial service agency shall
9 monitor the compliance of released defendants with ordered release
10 conditions through appropriate supervision.In supervising pretrial
11 defendants, pretrial services agencies shall utilize the least
12 restrictive interventions and practices to promote compliance with
13 court-ordered conditions.
14 (g) This section shall become operative on January 1, 2020.
15 SEC. 37. Section 1318.2 is added to the Penal Code, to read:
16 1318.2. (a) The Judicial Council shall do all of the
17 following:
18 .
19
20 pfetrial risk and needs assessment tools.
21
22
�,
23 , 5ft and in,,o
24
25
26 eomplianee by eounties with the feqttifements of state
27 law relating to pretf ial felease and detention.
28 ,
29
31 (B) Analyze 11%.'VV pl%_tlial risk assessment tools as they beeon
32 a-vailable and make reeommendations for the replaeement of the
33 existing pretfial risk assessment to4.
34 , the shall develop a plan to
35
36implementation of the pretrial risk assessment seleeted purs
37 to paragfaph-(3�.
38 (5) Review data eo4leeted by the Boafd of State and Gommttnity
39
40 felating to pt=etfial release.
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36
1
2 pfeffial felease.
3
4 -may do any ofthe following-.-
5 ,
6
7
8 .
9 (3) Consult available feseafe4i and data on the etirrent
10 effeetiveness of pretfial f elease eonditions.
11
12 and ageneies from this and other jttrisdietions to pefform needed
13 researeh and analysis.
14assist
15 the administration of the gttidelines developed purstant to
16 paragraph (1) of stibdivision (a).
17 ,
18 proseetiters, defense aftorneys,
19 and law enfofeement agenetes.
20 (1) Adopt a Rule of Court regarding the proper use of pretrial
21 risk assessment information by judicial officer when making
22 pretrial release and detention decisions. The rule shall address
23 the necessity and frequency of validation of risk assessment tools
24 on local populations.
25 (2) Adopt a Rule of Court regarding the imposition of pretrial
26 release terms and conditions, including designation of risk levels
27 or categories.
28 (3) Train judges on the use of pretrial risk assessment
29 information when makingpretrial release and detention decisions,
30 and on the imposition ofpretrial release terms and conditions.
31 (4) Compile and maintain in a list of validated pretrial risk
32 assessment tools that are available in the public domain.
33 (b) Courts shall provide, at a minimum, the following data to
34 the Judicial Council at least two times per year as directed by the
35 Judicial Council:
36 (1) The number of individuals assessed using a pretrial risk
37 assessment tool.
38 (2) The number of individuals released on their own
39 recognizance withoutfurther conditions.
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37
1 (3) The number of individuals released subject to further-
2 conditions.
3 (4) The number of individuals detained pretrial.
4 (5) The number of individuals released pretrial who fail to
5 appear at a scheduled court appearance.
6 (c) When possible,, the courts shall provide the following data
7 to the Judicial Council.-
8 (1) Demographic data ofthose released and detained, including
9 race or ethnicity and gender:
10 (2) Other data necessary to evaluate the effectiveness ofpretrial
11 programs as identified by the Judicial Council.
12 (d) (1) The Judicial Council shall provide a biennial report to
13 the Legislature that includes the information contained in
14 paragraph (4) of subdivision (a) and subdivisions (b) and(c).
15 (2) A report to be submitted pursuant to this subdivision shall
16 be submitted in compliance with Section 9795 of the Government
17 Code.
18 (e) Each county's pretrial services agency, in coordination with
19 the trial court and local law enforcement agencies shall provide
20 data two times a year as directed by the Judicial Council regarding
21 the following.•
22 (1) The number of individuals on pretrial release who are
23 charged with a new crime while on pretrial release.
24 (2) The number of' individuals on pretrial release who are
25 charged with a new violent crime while on pretrial release.
26 (fi The Judicial Council shall review data collected to inform
27 its duties under this section in a manner that is consistent with
28 state law and best practices related to pretrial release.
29 (e)
30 (g) This section shall become operative on January 1, 2020.
31 SEC. 38. Section 1318.3 is added to the Penal Code, to read:
32 1318.3. (a) For purposes of this section, the following terms
33 have the following meanings:
34 (1) "Pretrial risk assessment tool"is the objective, standardized
35 analysis of information about an arrested person that accurately
36 measures the person's probability of appearing in court as required
37 and the person's potential risk of criminal conduct while on pretrial
38 release pending trial.
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38
1 (2) "Pretrial services report" is a report containing the results
2 of the pretrial risk assessment tool and the pretrial services agency's
3 recommendations on conditions of release.
4 (3) "Validated" means developed through peer-reviewed
5 research and statistical analysis and proven to produce results that
6 are accurate, based on the characteristics of the population being
7 assessed, in predicting the likelihood that a person will fail to
8 appear for trial or act as a threat to the safety of the community
9 during the period of time between the initial arrest and the
10 subsequent trial for the offense.
11 (b) TEA pretrial risk assessment tool
12 to Seetion 13'8.2usedforpretrialdecisiomnaking under Sections
13 1269b, 1275, and 1275a shall meet all of the following
14 specifications:
15 (1) It shall be objective, standardized, and developed based on
16 analysis of empirical data and risk factors relevant to the risk of
17 failure to appear in court when required and risk to public safety.
18 (2) It shall be consistent with and guided by current research
19 and evidence-based best practices.
20 (3) It shall be regularly validated according to current best
21 practices and standards to ensure that it accurately predicts risk of
22 failure to appear in court and risk to public safety.
23 (4) Consistent with paragraph (3), it shall be regularly
24 validated and adjusted,as appropriate,to ensure that the assessment
25 irstrttment tool is equally accurate across all racial groups, ethnic
26 groups, and genders. The validation study shall include testing for
27 predictive bias, and disparate results by race, ethnicity,and gender.
28 The tool shall be adjusted to ensure accuracy and to minimize
29 disparate results.
30 (5) It shall not include race, ethnicity, national origin,
31 immigration status,gender,religion, sexual orientation, education
32 level, employment status, socioeconomic status, arrests that did
33 not lead to conviction,or housing status as factors used in assessing
34 risk or detennining a risk score or level.
35 (6) Consistent with paragraph (3), it shall give appropriate
36 weight to factors, including criminal history, in a manner that
37 ensures accuracy while minimizing racial and economic disparities.
38 (7) It shall not require an in-person interview of an arrested
39 person- person, however, the pretrial services agency 1nay, if
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39
1 necessary and for administrative purposes only, ask the arrested
2 person to identify, a place of residence.
3 (8) it shall distinguish between f�iltffe to appear and willfttl
4 failure to appear.
5 ,
6 , the eounty may
7 eleet to eontintte ttsing that pretrial risk assessment tool,provided
8 the too! meets the requirements of stbdivision (b). For eounties
9 that eleet to eontintte ttse of an existing pretrial risk assessment
10 too! under this ttbd _ isior the ..hall review thtoo! o
I determine whether it meets the require ents of subdivision (b),
12 The shah also,
13produeed using the too! to detetinine whether it meets the
14
15 '
16
17
18 ,-th-e--eotirtty shall
19 ttse the pretrial risk assessment too! seleeted by the_pttrsttan
20 to Seetio 1 31 0
21 (c) Each county shall select a validated risk assessment tool
22 that meets the requirements of subdivision (b). The agency
23 responsible for pretrial assessment shall make an annual report
24 to the Judicial Council of California, demonstrating that the tool
25 meets the requirements of subdivision (b).
26 (d) Pursuant to Sections 1269b and 1275a, the pretrial services
27 agency shall conduct a pretrial risk assessment using the pretrial
28 risk assessment tool selected by .
29 the county pursuant
30 to subdivision (c).
31 (e) (1) The pretrial services agency shall prepare a pretrial
32 services report following the administration of the pretrial risk
33 assessment tool that contains the results of the pretrial risk
34 assessment tool, the offense charged, and a recommendation for
35 release under Section 1318 without further conditions or release
36 subject to the least restrictive further condition or conditions that
37 will reasonably ensure the arrested person's appearance in court
38 as required and public safety.
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1 (2) The pretrial services agency shall provide copies of its report
2 to the court, the prosecuting attorney, and to counsel for the
3 arrested person or, if the person is not represented,to the defendant.
4 (3) The report shall not be used for any purpose other than that
5 provided for in this section and Sections 1269b and 1275a.
6 ,
7 all of the following:
8 .
9 (2) Guidelines f6r identifieation of pretrial release eondi
10 based on risk assessment results.
11 .
12 .
13 �
14 Judges, magistrates, and commissioners who make pretrial
15 release decisions shall be trained in the proper use of the
16 information contained in a pretrial services report, including the
17 results of the risk assessment.
18 {fir)
19 (g) Pretrial services staff who administer pretrial risk assessment
20 tools shall be trained in conducting the pretrial risk assessment
21 tool and interpreting the results.
22 ,
23 eonstiltation with the , shall develop a plan that establishes
24
25 4pretrial release and detention infofmation. At a ,
26 plan shall feqttife eottnttes to sttbmit the following daftt-,
27 disaggfegated by faee or ethnieity and gender,
28 .
29 (2) The pereentage of individuals feleased pretfial who fail to
30 appear as reqttifed.
31 (3) The pefeentage ofin—dividuals released pretrial who eenifflit
32 nevv et itnes while on pretrial release and the pereentage of t4�ose
33 .
34
36
37
38 '
39 to ensttfe eomplianee with the requitements of state law
40 effeetiveness, the shall eompare the data
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41
1 speeified in subdivision (i) with available data on pretfial felease
2 priof to the effeetive date of the aet that added this seetion. The
3 may wofk with the Board of State and Comm ',
4
5
6 state.
7 (k)
8 (h) Each county shall make publicly available its risk assessment
9 tool guidelines, factors, weights, studies, data upon which
10 validation studies rely, and information about how a risk
11 assessment tool was renormed.
12
13 (i) It is the intent of the Legislature in enacting this section to
14 reduce racial, ethnic, and gender bias and disparate impact in
15 pretrial release decisionmaking.
16 �m)
17 (j) This section shall become operative on January 1, 2020.
18 SEC. 39. Section 131.9 of the Penal Code is amended to read:
19 1319. (a) No person arrested for a violent felony, as described
20 in subdivision (c) of Section 667.5, may be released on his or her
21 own recognizance until a hearing is held in open court before the
22 magistrate or judge, and until the prosecuting attorney is given
23 notice and a reasonable opportunity to be heard on the matter. In
24 all cases, these provisions shall be implemented in a manner
25 consistent with the defendant's right to be taken before a magistrate
26 or judge without unreasonable delay pursuant to Section 825.
27 (b) A defendant charged with a violent felony, as described in
28 subdivision (c) of Section 667.5, shall not be released on his or
29 her own recognizance where it appears, by clear and convincing
30 evidence,that he or she previously has been charged with a felony
31 offense and has willfully and without excuse from the court failed
32 to appear in court as required while that charge was pending. In
33 all other cases, in making the determination as to whether or not
34 to grant release under this section, the court shall consider all of
35 the following:
36 (1) The existence of any outstanding felony warrants on the
37 defendant.
38 (2) Any other information presented in the report prepared
39 pursuant to Section 1318.1.The fact that the court has not received
40 the report required by Section 1318.1, at the time of the hearing
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1 to decide whether to release the defendant on his or her own
2 recognizance, shall not preclude that release.
3 (3) Any other information presented by the prosecuting attorney.
4 (c) The judge or magistrate who,pursuant to this section,grants
5 or denies release on a person's own recognizance, within the time
6 period prescribed in Section 825, shall state the reasons for that
7 decision in the record. This statement shall be included in the
8 court's minutes. The report prepared by the investigative staff
9 pursuant to subdivision (b) of Section 1318.1 shall be placed in
10 the court file for that particular matter.
11 (d) This section shall remain in effect only until January 1, 2020,
12 and as of that date is repealed.
13 SEC.40. Section 1319.5 of the Penal Code is amended to read:
14 1319.5. (a) No person described in subdivision (b) who is
15 arrested for a new offense may be released on his or her own
16 recognizance until a hearing is held in open court before the
17 magistrate or judge.
18 (b) Subdivision (a) shall apply to the following:
19 (1) Any person who is currently on felony probation or felony
20 parole.
21 (2) Any person who has failed to appear in court as ordered,
22 resulting in a warrant being issued, three or more times over the
23 three years preceding the current arrest, except for infractions
24 arising from violations of the Vehicle Code, and who is arrested
25 for any of the following offenses:
26 (A) Any felony offense.
27 (B) Any violation of the California Street Terrorism
28 Enforcement and Prevention Act (Chapter 11 (commencing with
29 Section 186.20) of Title 7 of Part 1).
30 (C) Any violation of Chapter 9(commencing with Section 240)
31 of Title 8 of Part 1 (assault and battery).
32 (D) A violation of Section 484 (theft).
33 (E) A violation of Section 459 (burglary).
34 (F) Any offense in which the defendant is alleged to have been
35 armed with or to have personally used a firearm.
36 (c) This section shall remain in effect only until January 1,2020,
37 and as of that date is repealed.
38 SEC. 41. If the Commission on State Mandates determines
39 that this act contains costs mandated by the state, reimbursement
40 to local agencies and school districts for those costs shall be made
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1 pursuant to Part 7 (commencing with Section 17500) of Division
2 4 of Title 2 of the Government Code.
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AMENDED IN SENATE APRIL 26, 2018
AMENDED IN SENATE APRIL 9, 2018
SENATE BILL No. 1302
Introduced by Senator Lara
(Coauthors: Senators Galgiani a Bradford, Galgiani, and
Wieckowski)
February 16, 2018
An act to amend Section 26200 of the Business and Professions Code,
relating to cannabis.
LEGISLATIVE COUNSEL'S DIGEST
SB 1302, as amended,Lara. Cannabis: local jurisdiction:prohibitions
on delivery.
The Control, Regulate and Tax Adult Use of Marijuana Act of 2016
(AUMA), an initiative measure approved as Proposition 64 at the
November 8,2016, statewide general election, authorizes a person who
obtains a state license under AUMA to engage in commercial adult-use
cannabis activity pursuant to that license and applicable local ordinances.
The Medicinal and Adult-Use Cannabis Regulation and Safety Act
(MAUCRSA), among other things, consolidates the licensure and
regulation of commercial medicinal and adult-use cannabis activities.
MAUCRSA authorizes a licensee who obtains a retailer,microbusiness,
or a specified type of nonprofit to deliver cannabis or cannabis products,
and imposes requirements on the delivery of cannabis or cannabis
products.MAUCRSA prohibits a local jurisdiction from preventing the
delivery of cannabis or cannabis products on public roads by a licensee
who is acting in compliance with MAUCRSA as well as any local law
adopted pursuant to MAUCRSA. MAUCRSA generally authorizes a
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local jurisdiction to adopt and enforce local ordinances to regulate
licensed businesses located within the local jurisdiction.
This bill would prohibit a local government from adopting or
enforcing any ordinance that would prohibit a licensee from delivering
cannabis within or outside of the jurisdictional boundaries of the local
jurisdiction.
The bill would include findings that the changes proposed by this bill
address a matter of statewide concern, rather than a municipal affair
and, therefore, apply to all cities, including charter cities.
The Control, Regulate and Tax Adult Use of Marijuana Act, an
initiative measure, authorizes the Legislature to amend the act to further
the purposes and intent of the act with a '-/3 vote of the membership of
both houses of the Legislature.
This bill would declare that its provisions further specified purposes
and intent of the Control, Regulate and Tax Adult Use of Marijuana
Act.
Vote: 2/3. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
The people of the State of California do enact as follows:
I SECTION 1. Section 26200 of the Business and Professions
2 Code is amended to read:
3 26200. (a) (1) This division shall not be interpreted to
4 supersede or limit the authority of a local jurisdiction to adopt and
5 enforce local ordinances to regulate businesses licensed under this
6 division, including, but not limited to, local zoning and land use
7 requirements, business license requirements, and requirements
8 related to reducing exposure to secondhand smoke,or to completely
9 prohibit the establishment or operation of one or more types of
10 businesses licensed under this division within the local jurisdiction.
11 (2) This division shall not be interpreted to supersede or limit
12 existing local authority for law enforcement activity, enforcement
13 of local zoning requirements or local ordinances, or enforcement
14 of local license, pen-nit, or other authorization requirements.
15 (b) This division shall not be intefpfeted to does not require a
16 licensing authority to undertake local law enforcement
17 responsibilities,enforce local zoning requirements,or enforce local
18 licensing, permitting, or other authorization requirements.
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1 (c) A local jurisdiction shall notify the bureau upon revocation
2 of any local license, permit, or authorization for a licensee to
3 engage in commercial cannabis activity within the local
4 jurisdiction.Within 10 days of notification,the bureau shall inform
5 the relevant licensing authorities. Within 60 days of being so
6 informed by the bureau, the relevant licensing authorities shall
7 begin the process to detennine whether a license issued to the
8 licensee should be suspended or revoked pursuant to Chapter 3
9 (commencing with Section 26030).
10 (d) For facilities issued a state license that are located within
11 the incorporated area of a city, the city shall have full power and
12 authority to enforce this division and the regulations promulgated
13 by the bureau or any licensing authority, if delegated by the state.
14 Notwithstanding Sections 101375, 101400, and 101405 of the
15 Health and Safety Code or any contract entered into pursuant
16 thereto, or any other law, the city shall assume complete
17 responsibility for any regulatory function pursuant to this division
18 within the city limits that would otherwise be performed by the
19 county or any county officer or employee, including a county
20 health officer, without liability, cost, or expense to the county.
21 (e) This division does not prohibit the issuance of a state
22 temporary event license to a licensee authorizing onsite cannabis
23 sales to, and consumption by, persons 21 years of age or older at
24 a county fair or district agricultural association event, provided
25 that the activities, at a minimum, comply with the requirements
26 of paragraphs (1) to (3), inclusive, of subdivision (g), that all
27 participants are licensed under this division, and that the activities
28 are otherwise consistent with regulations promulgated and adopted
29 by the bureau governing state temporary event licenses. These
30 temporary event licenses shall only be issued in local jurisdictions
31 that authorize such events.
32 (f) This division, or any regulations promulgated thereunder,
33 shall not be deemed to limit the authority or remedies of a city,
34 county, or city and county under any provision of law, including,
35 but not limited to, Section 7 of Article XI of the California
36 Constitution.
37 (g) Notwithstanding paragraph(1)of subdivision(a)of Section
38 11362.3 of the Health and Safety Code, a local jurisdiction may
39 allow for the smoking, vaporizing, and ingesting of cannabis or
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1 cannabis products on the premises of a retailer or microbusiness
2 licensed under this division if all of the following are met:
3 (1) Access to the area where cannabis consumption is allowed
4 is restricted to persons 21 years of age and older.
5 (2) Cannabis consumption is not visible from any public place
6 or nonage-restricted area.
7 (3) Sale or consumption of alcohol or tobacco is not allowed
8 on the premises.
9 (h) A local jurisdiction shall not adopt or enforce any ordinance
10 that would prohibit a licensee from delivering cannabis within or
11 outside of the jurisdictional boundaries of that local jurisdiction.
12 SEC. 2. The Legislature finds and declares that Section 1 of
13 this act amending Section 26200 of the Business and Professions
14 Code addresses a matter of statewide concern, rather than a
15 municipal affair as that term is used in Section 5 of Article XI of
16 the California Constitution.Therefore, Section 1 of this act applies
17 to all cities, including charter cities.
18 SEC. 3. The Legislature finds and declares that Section 1 of
19 this act amending Section 26200 of the Business and Professions
20 Code furthers the purposes and intent of the Control,Regulate and
21 Tax Adult Use of Marijuana Act.
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