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SB-210 Criminal procedure: pretrial release.(2013-2014)

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SB210:v96#DOCUMENT

Amended  IN  Assembly  August 22, 2014
Amended  IN  Assembly  June 11, 2014
Amended  IN  Senate  January 27, 2014

CALIFORNIA LEGISLATURE— 2013–2014 REGULAR SESSION

Senate Bill
No. 210

Introduced by Senator Hancock

February 11, 2013

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


LEGISLATIVE COUNSEL'S DIGEST


SB 210, as amended, Hancock. Criminal procedure: pretrial release.
(1) Existing law requires a judge or magistrate, in setting, reducing, or denying bail, to take into consideration the protection of the public, the seriousness of the offense, the defendant’s previous criminal record, and the probability of the defendant appearing at trial or a hearing.
This bill would revise the factors that the judge or magistrate would be required to consider to, among other things, require the judge or magistrate to consider the history and characteristics circumstances of the defendant, and to consider the nature and circumstances of the offense. The bill would require a judge or magistrate to also consider those factors when determining conditions for pretrial release.
(2) Existing law authorizes a court, with the concurrence of the county board of supervisors, to employ an investigative staff for the purpose of recommending whether a defendant should be released on his or her own recognizance. In cases involving certain crimes, including violent felonies, an investigative report is required to be prepared that includes specified information, including outstanding warrants against the defendant and prior incidents where the defendant has failed to make a court appearance.
This bill would also authorize a sheriff, county probation department, or other local governmental agency, with the concurrence of the board of supervisors, to employ an investigative staff for those purposes, and would require a pretrial investigative report to be prepared before a court may order a defendant released on his or her own recognizance in any case involving specified crimes, including a violent felony. The bill would authorize the preparation of a pretrial investigation report in all other cases in which a court, sheriff, county probation department, or other local governmental agency has employed an investigative staff to recommend whether the defendant should be released on his or her own recognizance. The bill would require any pretrial investigative report to include the results of an evidence-based pretrial risk assessment, as defined, evaluating the defendant’s probability of appearing at trial and potential risk to public safety. The bill would prohibit, for purposes of preparing the report, a defendant from being interviewed about the facts and circumstances of the defendant’s current offense. The bill would authorize a court, sheriff, county probation department, or other local governmental agency, with the concurrence of the board of supervisors, to employ supervision staff to monitor a defendant’s compliance with release conditions ordered by the court, as specified.

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

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

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

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


SECTION 1.

 The Legislature finds and declares all of the following:
(a) Pretrial custody reform is urgently needed in California, where the pretrial population far exceeds the national average of 61 percent. More than 71 percent of the 71,000 Californians held in county jails statewide on any given day are awaiting trial approximately 63 percent of the 82,000 Californians held in county jails statewide on any given day are awaiting trial.
(b) Pretrial custody reform will support the implementation of public safety realignment by providing counties greater flexibility in managing their pretrial populations using best practices developed over many years across many jurisdictions.
(c) Pretrial services programs have been successfully implemented in many jurisdictions, and have helped to reduce the pretrial jail populations, save money, reduce recidivism, and protect the public.
(d) Increasing the use of evidence-based practices in pretrial population management programs will allow better empirical analysis in pretrial decisions, and will help to ensure that the court’s decision to order release, conditions of release, and bail is based on a credible assessment of the defendant’s risk to public safety and the likelihood of appearance as required.

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

SEC. 2.

 Section 1275 of the Penal Code is amended to read:

1275.
 (a) (1) In determining conditions for pretrial release, and in setting, reducing, or denying bail, a judge or magistrate shall, on the available information, take into consideration the protection of the public, the nature and circumstances of the offense charged, the history and characteristics circumstances of the defendant, the previous criminal record of the defendant, including whether the defendant was, at the time of arrest for the charged offense, on probation, parole, or other form of release pending trial, sentencing, or appeal, and the probability of his or her appearing at trial or hearing of the case, including the defendant’s record of appearance at past court hearings or of flight to avoid arrest or prosecution. Public safety and the safety of the victim shall be the primary consideration. In setting bail, a judge or magistrate may consider factors such as the information included in a report prepared in accordance with Section 1318.1.
(2) In considering the nature and circumstances of the offense charged, a judge or magistrate shall include consideration of the alleged injury to the victim, and alleged threats to the victim or a witness to the crime charged, the alleged use of a firearm or other deadly weapon in the commission of the crime charged, and the alleged use or possession of controlled substances by the defendant.
(3) In considering the history, characteristics circumstances, and previous criminal record of the defendant, the judge or magistrate may consider the results of an evidence-based pretrial risk assessment instrument that is predictive of the defendant’s risk to public safety and the probability of him or her failing to appear at court hearings.
(b) In considering offenses wherein a violation of Chapter 6 (commencing with Section 11350) of Division 10 of the Health and Safety Code is alleged, a judge or magistrate shall consider the following: (1) the alleged amounts of controlled substances involved in the commission of the offense, and (2) whether the defendant is currently released on bail for an alleged violation of Chapter 6 (commencing with Section 11350) of Division 10 of the Health and Safety Code.
(c) Before a court reduces bail to below the amount established by the bail schedule approved for the county, in accordance with subdivisions (b) and (c) of Section 1269b, for a person charged with a serious felony, as defined in subdivision (c) of Section 1192.7, or a violent felony, as defined in subdivision (c) of Section 667.5, the court shall make a finding of unusual circumstances and shall set forth those facts on the record. For purposes of this subdivision, “unusual circumstances” does not include the fact that the defendant has made all prior court appearances or has not committed any new offenses.

SEC. 3.

 Section 1318.1 of the Penal Code is amended to read:

1318.1.
 (a) A court, sheriff, county probation department, or other local governmental agency, with the concurrence of the board of supervisors, may employ an investigative staff for the purpose of recommending whether a defendant should be released on his or her own recognizance.
(b) (1) Whenever a court, sheriff, county probation department, or other local governmental agency has employed an investigative staff pursuant to subdivision (a), before a court may order a defendant released on his or her own recognizance in any case involving a violent felony, as described in subdivision (c) of Section 667.5, or a felony in violation of subdivision (a) of Section 23153 of the Vehicle Code, a pretrial investigative report shall be prepared recommending whether the defendant should be released on his or her own recognizance. The report shall include all of the following:
(A) Written verification of any outstanding warrants against the defendant.
(B) Written verification of any prior incidents where the defendant has failed to make a court appearance.
(C) Written verification of the criminal record of the defendant.
(D) Written verification of the residence of the defendant during the past year.
(2) After the report is certified pursuant to this subdivision, it shall be submitted to the court for review, prior to a hearing held pursuant to Section 1319.
(c) Whenever a court, sheriff, county probation department, or other local governmental agency has employed an investigative staff pursuant to subdivision (a), a pretrial investigation report may be prepared in any case not involving a violent felony, as described in subdivision (c) of Section 667.5, or a felony in violation of subdivision (a) of Section 23153 of the Vehicle Code, recommending whether the defendant should be released on his or her own recognizance. Only one agency authorized pursuant to subdivision (a) shall issue a pretrial investigation report.
(d)  Any report prepared pursuant to subdivision (b) or (c) shall include all of the results of an evidence-based pretrial risk assessment evaluating the defendant’s probability of appearing at trial and potential risk to public safety. “Evidence-based pretrial risk assessment” is the objective, standardized analysis of information about a pretrial defendant in a way that is consistent with and guided by the best available scientific evidence and professional knowledge that measures the defendant’s probability of appearing at trial and the potential risk to public safety while pending case disposition.
(e) In preparing the report pursuant to subdivision (b) or (c), the defendant shall not be interviewed about the facts and circumstances of the current offense, and any information that a defendant may provide shall not be included in the report. Any information provided by the defendant shall be used solely for the purposes of determining whether the defendant should be released on his or her own recognizance or in setting the conditions of the defendant’s release or modifying a prior release order. The reports may be filed as part of the case record.
(f) A court, sheriff, county probation department, or other local governmental agency may, with the concurrence of the board of supervisors, employ supervision staff to monitor the defendant’s compliance with the release conditions ordered by the court. Supervision staff may do any of the following:
(1)  Notify the defendant of court appearance obligations.
(2)  Require the defendant to report periodically by mail, telephone, or personal appearance to verify compliance with release conditions.
(3)  Monitor and assist the defendant with complying with release conditions.
(4)  Supervise a defendant placed on home detention, with or without electronic monitoring, as a condition of release.
(5) Promptly report violations of release conditions to the court.
(6) Provide information to assist any law enforcement officer with detaining a defendant supervised pursuant to this section and for whom a bench warrant has been issued.
(g) The salaries of the staff are a proper charge against the county.