Existing law provides that any person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes, as provided, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony, punishable by imprisonment in the state prison for 3, 6, or 8 years.

This bill would make a technical, nonsubstantive change to those provisions.

ASSEMBLY THIRD READING

ATR Bill Id:AB 3125

Author:(Mayes)

As Amended Ver:March 22, 2018

Majority vote

SUMMARY: Prevents the stacking of charges and enhancements in setting bail, except as specified. Specifically, this bill:

1. Requires judges, in adopting or revising a uniform countywide bail schedule, to compute bail as follows when a person is booked for, or charged with, two or more offenses:
   1. As a general rule, that bail be set under the bail schedule for the offense having the highest amount of bail including applicable amounts for enhancements and prior convictions; however,
   2. If the offenses were alleged to have been committed against separate victims, or on separate dates, or separate sex crimes were committed against one victim and each charge may be punished separately, that bail be set as the sum of the amounts listed for each offense, including applicable amounts for enhancements and convictions.
2. Provide that when determining the amount of bail in either situation, both of the following are required:
   1. That amounts of applicable enhancements be added only one time per victim; and
   2. That amounts for prior convictions, if applicable, be added only one time per prior case.

EXISTING LAW:

1. Prohibits excessive bail.
2. States that a person shall be granted release on bail except for the following crimes when the facts are evident or the presumption great:
   1. Capital crimes;
   2. Felonies involving violence or sexual assault if the court finds by clear and convincing evidence that there is a substantial likelihood the person's release would result in great bodily harm to others; and,
   3. Felonies where the court finds by clear and convincing evidence that the person has threatened another with great bodily harm and that there is a substantial likelihood that the person would carry out the threat if released.
3. Requires the court to consider the safety of the victim and the victim's family in setting bail and release conditions for a defendant.
4. Requires the superior court judges in each county to prepare, adopt, and annually revise a uniform, countywide bail schedule for all felony offenses, and for all misdemeanors and infractions except Vehicle Code infractions.
5. Requires the countywide bail schedule to contain a list of the offenses and the amounts of bail applicable for each. If the schedule does not list all offenses specifically, then the bail schedule shall contain a general clause for designated amounts of bail for the offenses not specifically listed.
6. Requires the bail schedule to assign an additional amount of required bail for each aggravating or enhancing factor chargeable in the complaint.
7. Lists several factors that the court must consider in setting, reducing, or denying bail: the protection of the public; the seriousness of the charged offense; the defendant's prior criminal record; and, the probability of his or her appearing at trial or hearing of the case. Public safety is the primary consideration.
8. States that in considering the seriousness of the offense charged, the judge or magistrate shall include consideration of the alleged injury to the victim, and alleged threats to the victim or a witness to the crime charged, 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.
9. Requires the court to make a finding of unusual circumstances before it reduces bail below the amount established by the bail schedule approved for the county, for a person charged with a serious or violent felony or a violent felony, as defined.

FISCAL EFFECT: Unknown. The bill is keyed non-fiscal by the Legislative Counsel.

COMMENTS: Author's Statement: According to the author, ''Bail provides a balance to allow defendant to have pre-trial freedom, while also ensuring accountability and public safety. California's current allowance for superior court judges to stack bail schedules does not adequately provide defendant's access to justice if they cannot afford the bail amounts. Bail stacking disproportionately affects the poor by keeping the accused in jail, jeopardizing jobs, interfering with families, and miring those trying to make ends meet to poverty. AB 3125 is an essential reform that balances public safety concerns, responsibility, and would not further exacerbate poverty for the accused.''

Please see the policy committee analysis for a full discussion of this bill.

Analysis Prepared by: Sandy Uribe / PUB. S. / (916) 319-3744 FN: 0002707

Date of Hearing: April 17, 2018

Counsel: Sandra Uribe

ASSEMBLY COMMITTEE ON

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:

Author:() – As Ver:

SUMMARY:

Prevents the stacking of charges and enhancements in setting bail, except as specified. Specifically, this bill:

1. Requires judges, in adopting or revising a uniform countywide bail schedule, to compute bail as follows when a person is booked for, or charged with, two or more offenses:
   
   1. As a general rule, that bail be set under the bail schedule for the offense having the highest amount of bail including applicable amounts for enhancements and prior convictions; however,
      
   2. If the offenses were alleged to have been committed against separate victims, or on separate dates, or separate sex crimes were committed against one victim and each charge may be punished separately, that bail be set as the sum of the amounts listed for each offense, including applicable amounts for enhancements and convictions.
      
2. Provide that when determining the amount of bail in either situation, both of the following are required:
   
   1. That amounts of applicable enhancements be added only one time per victim; and
      
   2. That amounts for prior convictions, if applicable, be added only one time per prior case.

EXISTING LAW:

1. Prohibits excessive bail. (U.S. Const., 8th Amend. & Cal. Const., art. I, sec. 12.)
   
2. States that a person shall be granted release on bail except for the following crimes when the facts are evident or the presumption great:
   
   1. Capital crimes;
      
   2. Felonies involving violence or sexual assault if the court finds by clear and convincing evidence that there is a substantial likelihood the person's release would result in great bodily harm to others; and,
      
   3. Felonies where the court finds by clear and convincing evidence that the person has threatened another with great bodily harm and that there is a substantial likelihood that the person would carry out the threat if released. (Cal. Const., art. I, sec. 12.)
      
3. Requires the court to consider the safety of the victim and the victim's family in setting bail and release conditions for a defendant. (Cal. Const., art. I, sec. 28, subd. (b)(3).)
   
4. Requires the superior court judges in each county to prepare, adopt, and annually revise a uniform, countywide bail schedule for all felony offenses, and for all misdemeanors and infractions except Vehicle Code infractions. (Pen. Code, § 1269b, subd. (c).)
   
5. Requires the countywide bail schedule to contain a list of the offenses and the amounts of bail applicable for each. If the schedule does not list all offenses specifically, then the bail schedule shall contain a general clause for designated amounts of bail for the offenses not specifically listed. (Pen. Code, § 1269b, subd. (f).)
   
6. Requires the bail schedule to assign an additional amount of required bail for each aggravating or enhancing factor chargeable in the complaint. (Pen. Code, § 1269b, subd. (e).)
   
7. Lists several factors that the court must consider in setting, reducing, or denying bail: the protection of the public; the seriousness of the charged offense; the defendant's prior criminal record; and, the probability of his or her appearing at trial or hearing of the case. Public safety is the primary consideration. (Pen. Code, § 1275, subd. (a).)
   
8. States that in considering the seriousness of the offense charged, the judge or magistrate shall include consideration of the alleged injury to the victim, and alleged threats to the victim or a witness to the crime charged, 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. (Pen. Code, § 1275, subd. (a).)
   
9. Requires the court to make a finding of unusual circumstances before it reduces bail below the amount established by the bail schedule approved for the county, for a person charged with a serious or violent felony or a violent felony, as defined. (Pen. Code, § 1275, subd. (c).)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, “Bail provides a balance to allow defendant to have pre-trial freedom, while also ensuring accountability and public safety. California's current allowance for superior court judges to stack bail schedules does not adequately provide defendant's access to justice if they cannot afford the bail amounts. Bail stacking disproportionately affects the poor by keeping the accused in jail, jeopardizing jobs, interfering with families, and miring those trying to make ends meet to poverty. AB 3125 is an essential reform that balances public safety concerns, responsibility, and would not further exacerbate poverty for the accused.”
2. Background: In California, bail is a constitutional right except when the defendant is charged with: (1) a capital crime; (2) a felony involving violence or sex and the court finds that the person’s release would result in great bodily harm to another; or (3) when the defendant has threatened another and the court finds it likely that the defendant might carry out that threat. The constitution also allows for an arrestee to be released upon a written promise to appear, known as release on own recognizance. The constitution prohibits excessive bail. (Cal. Const. art. I, § 12.)
   
   Courts require many defendants to deposit monetary bail in order to be released from custody. Bail is intended to act as a financial guarantee to the court that the defendant will appear for all required court hearings. An arrestee may post bail with his or her own cash, or may post bail using a bail bond.
   
   But the court is also required to consider protection of the public in setting, reducing, or denying bail. In fact another provision of the state constitution states that public safety and the safety of the victim are designated as the primary considerations in determining release on bail. (Cal. Const. art I, § 28, subds. (b)(3) & (f)(3.).)
   
3. Bail Schedules and Setting Bail: Penal Code section 1275 describes what factors the court must consider in setting, reducing, or denying bail. These include protection of the public, the seriousness of the charged offense, the defendant’s prior criminal record, and the probability that the defendant will appear in court. (Pen. Code, § 1275, subd. (a)(1).) As to the seriousness of the offense, the statute also specifies that the court must consider the alleged injury to the victim, any alleged threats to the victim or witnesses, whether a firearm or other deadly weapon was used, and whether the defendant used or possessed controlled substances. (Pen. Code, § 1275, subd. (a)(2).)
   

Judges in each county are responsible for preparing, adopting, and annually revising the uniform countywide bail schedule. (Pen. Code, § 1269b, subd. (c).) The bail schedule sets a monetary amount of bail in connection with the various criminal offenses. There are wide discrepancies among bail amounts for the same crimes by county. (See Pretrial Detention Reform: Recommendations to the Chief Justice, by Judicial Council Pretrial Detention Reform Workgroup, Oct. 2017, pp. 28-29, http://www.courts.ca.gov/documents/PDRReport-20171023.pdf.)

A bail schedule serves a useful function for an arresting agency to allow an arrestee to post bail prior to his or her appearance before a magistrate. (In re Kenneth Humphrey (2018) 19 Cal.App.5th 1006, 1043-1044.) However, once the person is brought before a magistrate, there is supposed to be an individualized determination of the appropriate bail amount. (Stack v. Boyle (1951) 342 U.S. 1, 5 [the factors relevant to a determination of the appropriate amount of bail “are to be applied in each case to each defendant.”]) “[U]nquestioning reliance upon the bail schedule without consideration of a defendant’s ability to pay, as well as other individualized factors bearing upon his or her dangerousness and/or risk of flight, runs afoul of the requirements of due process.” (In re Kenneth Humphrey, supra, 19 Cal.App.5th at p. 1044.)

The practice of how bail is calculated also varies by county. When a person is charged with multiple offenses, some counties combine the bail amounts for each charge, referred to as bail “stacking,” while other counties only use the highest bail of the charges. For example, Santa Barbara County does not permit bail stacking. (See 2017 Santa Barbara County Felony Bail Schedule, p. 1, https://www.google.com/search?q=santa+barbara+bail+schedule&rlz=1C1RNRA_enUS727US727&oq=Santa+barbara+bail+sc&aqs=chrome.0.0j69i57j0l2.8844j1j7&sourceid=chrome&ie=UTF-8.) In contrast, Los Angeles County permits bail stacking under some circumstances, namely when the offenses area committed against separate victims or on separate dates; when separate sex acts are committed on the same victims; or when offenses committed in a single occurrence are a separate class of crimes. (See 2018 Los Angeles County Felony Bail Schedule, p. 1, https://www.lacourt.org/division/criminal/pdf/felony.pdf.)

This bill would prohibit bail stacking for multiple offenses except when the offenses are alleged to have been committed against separate victims, or on separate dates, or when separate sex crimes were committed against one victim and each charge may be punished separately. This bill would also limit the stacking of enhancements and prior conviction allegations in setting bail.

1. Challenges Presented by Bail System: There are a number of challenges that the bail system faces. A growing number of people acknowledge that the bail system has a negative impact on communities of color and those who come from the lower end of the socio-economic spectrum. In short, those who have money have the ability to confront their criminal charges while free from confinement in county jail. Those who are too poor to post bail are forced to remain incarcerated, and are more likely to plead guilty in order to get out of custody. Prior to the initial court appearance, the determination as to who remains detained while awaiting resolution of criminal charges is made based on money, and not whether the person is a present danger to the community or whether he or she will return to court.
   
   The ability to be out of custody while facing criminal charges carries a number of inherent advantages. A defendant who is released on bail is able to carry on with his or her life while awaiting the disposition of the criminal case. For instance, criminal defendants who are out on bail are not only able to maintain employment but they are also encouraged to do so.
   
   The current system results in California jails being crowded with individuals who are occupying jail beds while they are facing criminal charges. Due to overcrowding, jails are often forced to release inmates who have already been convicted and sentenced and should be serving their criminal sentences.
2. Arguments in Support:
   
   1. According to All Pro Bail Bonds, “AB 3125 is a step in the right direction towards meaningful bail reform that balances the interests of individuals held in custody and public safety.
      
      “AB 3125 would prohibit counties from the practice of ‘stacking’ bail bonds. Stacking is hen an individual is required to post bond for each individual charge they are facing. This results in bail amounts being far higher than necessary- and is unnecessarily punitive. California’s bail schedule is already too high. Stacking only exacerbates the problem.
      
      “AB 3125 highlights one of the issues that can be addressed within the current bail structure that will help individuals when they are arrested. All Pro Bail Bonds is a leader in looking for solutions that reduce the cost of bail to consumers while also maintaining a robust bail bonds industry that serves the public’s interests. Bail agents are partners in the criminal justice system and provide vitally important resources to the courts in ensuring that defendants make their court appearances in a timely fashion.”
      
   2. The California District Attorneys Association writes, “This would change the practice of the ‘volume discount’ defendants get when bail is set per the uniform bail schedule. The fact that multiple offense against multiple victims has occurred, plus enhancements and priors, will now be considered when setting a uniform bail schedule.”
      
3. Related Legislation:
   
   1. SB 10 (Hertzberg) revises the pretrial release system by limiting pretrial detention to specified persons, eliminating the use of bail schedules, and establishing pretrial services agencies tasked with conducting risk assessments on arrested person and preparing reports with recommendations for conditions of release. SB 10 is pending in the Assembly Appropriations Committee.
      
   2. AB 2462 (Harper) requires a judge to consider whether the victim was strangled or suffocated when setting bail in domestic violence cases. AB 2462 failed passage in this Committee and reconsideration was granted.
      
4. Prior Legislation:
   
   1. AB 42 (Bonta) was substantially similar SB 10 (Hertzberg). AB 42 failed passage on the Assembly Floor.
      
   2. AB 1118 (Hagman), of the 2013-14 Legislative Session, would have required courts, in adopting a countywide bail schedule, to consider the statewide bail schedule adopted by Judicial Council. AB 1118 failed passage in the Senate Public Safety Committee.
      
   3. AB 1264 (Hagman), of the 2011-12 Legislative Session, would have repealed the uniform countywide schedule of bail and instead establish the Statewide Bail Commission, and require the commission to prepare, adopt, and annually revise a statewide bail schedule for all bailable felony offenses and for all misdemeanor and infraction offenses except Vehicle Code infractions. AB 1264 was never heard by this Committee.

REGISTERED SUPPORT / OPPOSITION:

Support

All Pro Bail Bonds
American Bail Coalition
California District Attorneys Association

Opposition

None

Analysis Prepared by: