Thoughts on the SB 10 California bail law changes.

Posted by on August 29, 2018 in Uncategorized | 0 comments

Thoughts on the SB 10 California bail law changes.

August 28, 2018 Governor Brown signed SB 10, which is set to become law October 1, 2019. You can read the full text of SB 10 here and what will become new sections of the California Penal Code. But I’ll step through some of the main points to understand, as this will greatly change our bail laws and system in California.

As I step through this, I’ll give the new California Penal Code sections where the language lives. It makes it a little clunky to read, but makes it much easier to track the exact language of what the law will become. Again, you can see the full Penal Code section amendments here.

In general, what is this?

It’s a reassessment to our current bail system in California. Right now, Judges can set money bail amounts for someone arrested for an alleged crime. This bill basically does away with the money part to release persons arrested without them having to pay hard cash. But keep persons in custody who are deemed high risk or violent.

The fun is set to begin October 1, 2019. Penal Code 1320.34.

There is a grip of info to get through, but here are some main points.

If I’m arrested, what is the general sequence I can expect?

As of now, if you’re arrested you can either bail out for money (if a bail amount is set) or you can usually have a bail hearing to try and set a better bail release amount to pay.

With SB 10, here’s the general sequence of events:

  1. You’re arrested and booked in custody (my OCD analytical brain requires me to start with and state the obvious).
  2. For most misdemeanors, you are released on OR (Own Recognizance, promise to appear) release after a book and release. This book and release can take up to 12 hours (Penal Code 1320.8).
  3. For some misdemeanors and felonies, you are assessed for “risk” which I’ll define below. I’ll also discuss which misdemeanors this Code identifies. Also, if you are arrested for an alleged serious or violent felony (per Penal Codes 1192.7 and 667.5(c)), the Court has no power to release you.
  4. You can do this assessment and is in custody, you have a right to a hearing for release within 3 days. Penal Code 1320.19. The alleged Victim has the right to give comment and/or present at this hearing. Penal Code 1320.10.
  5. From this Assessment if you are deemed low or medium risk, you may be released either OR or with Supervised OR.
  6. If you were first released, the People can file a motion to put you back in custody pending the case. If they file this motion, you can still do this assessment. And if in custody during this, the hearing to determine your release must be held no later than 3 days of being brought into custody, or within 5 days of the request for this hearing. Penal Code 1320.19(a).

Some definitions:

As with any area of law, words have specific definition. Penal Code 1320.7 defines many terms per this new law.

“Risk” as we’re discussing here “refers to the likelihood that a person will not appear in court as required or the likelihood that a person will commit a new crime if the person is released before adjudication of his or her current criminal offense.” Penal Code 1320.7(h). Basically, if you’re low risk, you’re going to show up for your Court dates and society is not at risk. Penal Code 1320.7(c). Medium and High Risk are obviously higher risks assessments that you may not come to Court or that you may be a danger. Penal Code 1320.7(d), (b).

What are some misdemeanors that are non-releasable?

Per Penal Code 1320.10(e)(3), some alleged misdemeanor arrested are non-releasable. These include:

  1. Domestic violence inflicting corporal injury resulting in a traumatic condition, California Penal Code Section 273.5
  2. Domestic battery, California Penal Code 243(e)(1)
  3. Violating a protective order (if the detained person is alleged to have made threats to kill or harm, engaged in violence against, or gone to the residence or the workplace of, the protected party), California Penal Code 273.6
  4. Stalking, California Penal Code 646.9
  5. If you’re awaiting trial or sentencing on a misdemeanor or felony case
  6. If you’re on post-conviction supervision other than informal (summary) probation or court supervision

So, what happens with this assessment interview?

At this “pre-arraignment review” for assessment on release, Penal Code 1320.10 requires they interview you on “the facts and circumstances relevant to the arrested person’s custody status, and shall consider any relevant and available information provided by law enforcement, the arrested person, any victim, and the prosecution or defense.” Penal Code 1320.10. Also see Penal Code 1320.9(a)(2).

Also, the review must gather your criminal history. Penal Code 1320.9(a)(2).

If you thought of Miranda, raise your hand. Yea, me too.

You have a right to remain silent. And I’m thinking if you exercise your Miranda rights, that may affect your “risk” assessment score for release. Yikes. Especially because your criminal history may elevate your current exposure to criminal charges. But if you waive Miranda it may implicate you to criminal activity.

Do I have a right to an attorney through all of this?

You have a right to either Private Counsel or a Public Defender for the hearing (Penal Code 1320.19), but not for the risk assessment interview.

If you are released:

Many people ask if they are able to leave California once they’ve bailed out pending their charges. Many times you can.

However with SB 10, if you are released you must sign an affidavit to agree at a minimum with terms listed in California Penal Code 1320.10(g). The biggest problem may be your promise to not leave California without the permission of the Court. California Penal Code 1320.10(g)(2).

Wow. So this was a load of info. Much can change pending this October 1, 2019 date. Goes without saying (although I’m saying it): the California Bail Bonds Association is in opposition to SB 10.

So, we will see where all this goes.

 

 

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    Eric Ganci

    Eric Ganci practices in DUI defense, with a focus on science and trial work. He was awarded the “Lawyer-Scientist” designation by the American Chemical Society, Chemistry and the Law Section. Eric teaches with the Trial Lawyers College and is a founding member of the DUI Defense Lawyers Association.

    He earned his JD from Thomas Jefferson School of Law and his BA in Music Education from Northern Illinois University.
    Eric Ganci

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