Existing law entitles a person detained in custody on a criminal charge for want of bail to an automatic review of the order fixing the amount of bail by the judge or magistrate.

This bill would require the court at that review to also review, among other things, whether there exists clear and convincing evidence of a risk to public safety or the victim, or a risk of flight, and that no less restrictive alternative can address that risk.

Existing law authorizes a court, after the defendant has been admitted to bail, to, upon good cause shown, either increase or reduce the amount of bail. Existing law authorizes the court, if the amount of bail is increased, to order the defendant be committed to actual custody unless the defendant gives bail in the increased amount.

The bill would make a defendant who has a nonmonetary condition of release, other than a protective order or statutorily mandated condition, entitled to an automatic review of those conditions at the next regularly scheduled court date after the defendant has been in compliance with those conditions for 60 full days. The bill would create a rebuttable presumption at that review that the conditions are no longer necessary and shall be removed if the person has remained in compliance with the condition or conditions for 60 days, and would make that presumption rebuttable by clear and convincing evidence that the conditions remain necessary to mitigate risk to public safety or to the victim, or to mitigate risk of flight, and that no less restrictive alternative can address that risk.

Existing law entitles a person detained in custody on a criminal charge for want of bail to an automatic review of the order fixing the amount of bail by the judge or magistrate. Existing law requires that review to be held no later than 5 days from the time of the original order fixing bail.

This bill would require the court at that review to also review, among other things, whether there exists clear and convincing evidence of a risk to public safety or the victim, or a risk of flight, and that no less restrictive alternative can address that risk. The bill would also require that review to instead occur no later than 3 days from the time of the original order fixing bail, unless the defendant agrees to a later hearing.

Existing law authorizes a court, after the defendant has been admitted to bail, to, upon good cause shown, either increase or reduce the amount of bail. Existing law authorizes the court, if the amount of bail is increased, to order the defendant be committed to actual custody unless the defendant gives bail in the increased amount.

The bill would additionally make a defendant who has a nonmonetary condition of release, other than a protective order or statutorily mandated condition, entitled to an automatic review of those conditions after 60 days. at the next regularly scheduled court date after the defendant has been in compliance with those conditions for 60 full days. The bill would create a rebuttable presumption at that hearing review that the conditions are no longer necessary and shall be removed if the person has remained in compliance with the condition or conditions for 60 days, and would make that presumption rebuttable by clear and convincing evidence that the conditions remain necessary to mitigate risk to public safety or to the victim, or to mitigate risk of flight, and that no less restrictive alternative can address that risk.

Existing law entitles a person detained in custody on a criminal charge for want of bail to an automatic review of the order fixing the amount of bail by the judge or magistrate. Existing law requires that review to be held no later than 5 days from the time of the original order fixing bail.

This bill would require the court at that review to also review, among other things, whether there remains exists clear and convincing evidence of a risk to public safety or the victim, or a risk of flight, and that no less restrictive alternative can address that risk. The bill would also require that review to instead occur no later than 3 days from the time of the original order fixing bail. bail, unless the defendant agrees to a later hearing.

Existing law authorizes a court, after the defendant has been admitted to bail, to, upon good cause shown, either increase or reduce the amount of bail. Existing law authorizes the court, if the amount of bail is increased, to order the defendant be committed to actual custody unless the defendant gives bail in the increased amount.

The bill would require the court to, upon request, conduct a hearing to consider a change in the amount of bail in specified circumstances including, among others, that a plea offer is made by a prosecutor or that the defendant has been incarcerated for the maximum amount of time that they could serve if convicted. The bill would remove the authorization for the court to order the defendant be committed to actual custody when increasing the amount of bail.

The bill would additionally make a defendant who has a nonmonetary condition of release, other than a protective order or statutorily mandated condition, entitled to an automatic review of those conditions after 60 days. The bill would create a rebuttable presumption at that hearing that the conditions are no longer necessary and shall be removed if the person has remained in compliance with the condition or conditions for 60 days, and would make that presumption rebuttable by clear and convincing evidence that the conditions remain necessary to mitigate risk to public safety or to the victim, or to mitigate risk of flight, and that no less restrictive alternative can address that risk.

Existing law entitles a person detained in custody on a criminal charge for want of bail to an automatic review of the order fixing the amount of bail by the judge or magistrate. Existing law requires that review to be held no later than 5 days from the time of the original order fixing bail.

This bill would require the court at that review to also review, among other things, whether there remains clear and convincing evidence of a risk to public safety or the victim, or a risk of flight, and that no less restrictive alternative can address that risk. The bill would also require that review to instead occur no later than 3 days from the time of the original order fixing bail.

Existing law authorizes a court, after the defendant has been admitted to bail, to, upon good cause shown, either increase or reduce the amount of bail. Existing law authorizes the court, if the amount of bail is increased, to order the defendant be committed to actual custody unless the defendant gives bail in the increased amount.

The bill would require the court to, upon request, conduct a hearing to consider a change in the amount of bail in specified circumstances including, among others, that a plea offer is made by a prosecutor or that the defendant has been incarcerated for the maximum amount of time that they could serve if convicted. The bill would remove the authorization for the court to order the defendant be committed to actual custody when increasing the amount of bail.

Existing law makes it a crime, punishable as a misdemeanor or a felony, for 2 or more persons to conspire to commit a crime.

This bill would make technical, nonsubstantive changes to those provisions.

 VETO  

Bill No: SB 1133

Author: Becker (D)

Enrolled: 8/29/24

Vote: 27

SENATE PUBLIC SAFETY COMMITTEE: 4-1, 4/16/24

AYES: Wahab, Bradford, Skinner, Wiener

NOES: Seyarto

SENATE APPROPRIATIONS COMMITTEE: 5-2, 5/16/24

AYES: Caballero, Ashby, Becker, Bradford, Wahab

NOES: Jones, Seyarto

SENATE FLOOR: 28-9, 5/21/24

AYES: Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dodd, Durazo, Eggman, Glazer, Gonzalez, Laird, Limón, McGuire, Menjivar, Newman, Padilla, Portantino, Roth, Rubio, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener

NOES: Alvarado-Gil, Dahle, Grove, Jones, Nguyen, Niello, Ochoa Bogh, Seyarto, Wilk

NO VOTE RECORDED: Allen, Hurtado, Min

ASSEMBLY FLOOR: 43-25, 8/27/24 - See last page for vote

SUBJECT: Bail

SOURCE: Vera Institute of Justice

DIGEST:

This bill specifies that at an automatic bail review hearing, the court shall determine whether there remains clear and convincing evidence of a risk to public safety or the victim, or a risk of flight, and that no less restrictive alternative can reasonably protect against that risk, and entitles a defendant who has nonmonetary conditions of release, other than those specified, to an automatic review of those conditions at the next regularly scheduled court date after the defendant has been in compliance with those conditions for 60 days.

ANALYSIS:

Existing law:

1. Prohibits excessive bail. (Cal. Const., art. I, sections 12 and 28(f)(3).)
2. Declares that a person shall be released on bail by sufficient sureties, except for: (a) capital crimes when the facts are evident or the presumption great; (b) felony offenses involving acts of violence on another person, or felony sexual assault offenses on another person, when the facts are evident or the presumption great and the court finds based upon clear and convincing evidence that there is a substantial likelihood the person's release would result in great bodily harm to others; or (c) felony offenses when the facts are evident or the presumption great and the court finds based on 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, section 12.)
3. Provides that in setting, reducing or denying bail, the judge or magistrate shall take into consideration the protection of the public, the safety of the victim, the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his or her appearing at the trial or hearing of the case. Public safety and the safety of the victim shall be the primary considerations. A person may be released on his or her own recognizance (OR) in the court’s discretion, subject to the same factors considered in setting bail. (Cal. Const., art. I, section 28(f)(3).)
4. States that the admission to bail is the order of a competent court or magistrate that the defendant be discharged from actual custody upon bail. (Penal (Pen.) Code, § 1268.)
5. Authorizes the officer in charge of a jail or the clerk of the superior court to approve and accept bail in the amount fixed by the arrest warrant, schedule of bail, or an order admitting to bail in cash or surety bond and to issue and sign an order for the release of the arrested person and to set a time and place for the appearance of the arrested person in court. (Pen. Code § 1269b, subd. (a).)
6. States that it is the duty of the superior court judges in each county to prepare, adopt, and annually revise a uniform countywide schedule of bail for all bailable felony offenses and for all misdemeanor and infraction offenses except Vehicle Code infractions. The penalty schedule for infraction violations of the Vehicle Code shall be established by the Judicial Council. (Pen. Code § 1269b, subd. (c).)
7. Requires the countywide bail schedule to contain a list of the offenses and the amounts of bail applicable for each as the judges determine to be appropriate. If the schedule does not list all offenses specifically, it shall contain a general clause for designated amounts of bail as the judges of the county determine to be appropriate for all the offenses not specifically listed in the schedule. A copy of the countywide bail schedule shall be sent to the officer in charge of the county jail, to the officer in charge of each city jail within the county, to each superior court judge and commissioner in the county, and to the Judicial Council. (Pen. Code § 1269b, subd. (f).)
8. Authorizes a court to release a person who has been arrested for, or charged with any offense other than a capital offense, on his or her own recognizance. (Pen. Code § 1270.)
9. Requires a person arrested for a misdemeanor to be released on OR release unless the court makes a finding on the record that there is no condition or combination of conditions that would reasonably ensure public safety and the appearance of the defendant as required, an OR release will compromise public safety or will not reasonably ensure the appearance of the defendant. Public safety shall be the primary consideration. If the court makes one of those findings, the court shall then set monetary bail and specify the conditions, if any, under which the defendant shall be released. (Pen. Code § 1270.)
10. Authorizes a court to release a person on bail in an amount that is more or less than the amount contained in the bail schedule, or release the person on OR release after conducting a hearing in open court. If bail is set in an amount that is different from that contained in the bail schedule, the judge or magistrate shall state the reasons for that decision on the record. (Pen. Code § 1270.1.)
11. States that in setting, reducing, or denying bail, a judge or magistrate shall 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 their appearance at trial or at a hearing of the case. The public safety shall be the primary consideration. In setting bail, a judge or magistrate may consider factors such as information in the pretrial release report. (Pen. Code, § 1275, subd. (a)(1).)
12. States that in considering the seriousness 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. (Pen. Code, § 1275, subd. (a)(2).)
13. Provides that before a court reduces bail to below the amount established by the bail schedule approved for the county for a person charged with a serious felony or a violent felony, 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. (Pen. Code, § 1275, subd. (c).)
14. States that when a person is detained in custody on a criminal charge prior to conviction for want of bail, that person is entitled to an automatic review of the order fixing the amount of bail by the judge or magistrate. That review shall be held no later than 5 days from the time of the original order fixing the amount of bail on the accusatory pleading. The defendant may waive this review. (Pen. Code, §1270.2.)
15. States that after a defendant has been admitted to bail upon an indictment, information, or complaint, the court in which the charge is pending may, upon good cause shown, either increase or reduce the amount of bail. If the amount be increased, the court may order a defendant to be committed to actual custody, unless he give bail in such increased amount. If application be made by the defendant for a reduction of the amount, notice of the application must be served upon the District Attorney. (Pen. Code, §1289.)

This bill:

1. Requires at the automatic review hearing, the court to review the considerations required in Penal Code section 1275 and determine whether there remains clear and convincing evidence of a risk to public safety or the victim, or a risk of flight, and that no less restrictive alternative can reasonably protect against that risk.
2. Provides that when a court has imposed upon a defendant a nonmonetary condition or conditions of release, other than a protective order or statutorily mandated conditions, the defendant is entitled to an automatic review of those conditions at the next regularly scheduled court date after the defendant has been in compliance with those conditions for 60 full days.
3. States that at that hearing there shall be a rebuttable presumption that the conditions are no longer necessary and shall be removed if the person has remained in compliance with the condition or conditions.
4. Provides that the District Attorney may rebut this presumption by establishing clear and convincing evidence that the conditions remain necessary to mitigate risk to public safety or the victim, or to mitigate risk of flight, and that no less restrictive alternatives can address that risk.
5. States that an automatic review of the conditions shall occur at the next regularly scheduled court date after every 60-day period during which the defendant has been in compliance with all nonmonetary conditions of release, other than a protective order or statutorily mandated conditions.
6. Clarifies this bill’s provision requiring an automatic review of nonmonetary conditions of release do not replace any other existing opportunity for review of nonmonetary conditions of release.
7. Contains findings and declarations related to pretrial detention.

Comments

According to the author of this bill:

Under the current system, judges typically set financial bail or impose conditions of pretrial release in a matter of minutes or seconds—and without much information to inform that decision. Many circumstances can arise after that initial hearing to justify modifying someone’s bail amount or release conditions: the defense might receive more information for a proper bail argument, the prosecution might offer a plea to a lesser charge, or new information might surface indicating less risk to public safety. But current law does not provide clear, consistent procedures around when and how to revisit pretrial release decisions.

SB 1133 strengthens and clarifies the existing mechanisms for revisiting pretrial release decisions in four ways. First, it aligns the evidentiary standard for initial bail review with the California Supreme Court’s standard as articulated in In re Humphrey, ensuring that courts across the state follow the same decision-making framework. Second, it changes the timeframe for automatic bail review from five days to three days, reducing the risk that people will needlessly suffer from loss of housing, employment, or custody of children while in jail. Third, it clearly defines “good cause” for reviewing bail at any other point in the pretrial period, clarifying certain circumstances that should give rise to reviewing a pretrial release decision. Finally, it ensures other non-monetary pretrial conditions, such as electronic monitoring and mandatory drug testing, are reconsidered on a regular basis to verify that release requirements that are not more onerous than necessary.

By doing so, California will implement a reasonable pretrial release program that improves public safety.

FISCAL EFFECT: Appropriation: No Fiscal Com.: No Local: No

According to the Senate Committee on Appropriations: Unknown, potentially significant workload cost pressures (General Fund, Trial Court Trust Fund) to the courts to conduct the reviews required by this bill.

SUPPORT: (Verified 9/27/24)

Vera Institute of Justice (source)

ACLU California Action
California Public Defenders Association
Californians for Safety and Justice
Californians United for A Responsible Budget
Care First California
Children's Defense Fund - CA
Ella Baker Center for Human Rights
Essie Justice Group
Felony Murder Elimination Project
Initiate Justice
Initiate Justice Action
Justice2jobs Coalition
LA Defensa
Legal Services for Prisoners With Children
Los Angeles Regional Reentry Partnership
Rubicon Programs
San Francisco Public Defender
Silicon Valley De-bug
Smart Justice California, a Project of Tides Advocacy

OPPOSITION: (Verified 9/27/24)

American Bail Coalition
California Bail Agents Association

Crime Victims United of California
Golden State Bail Agents Association, INC

GOVERNOR'S VETO MESSAGE:

I am returning Senate Bill 1133 without my signature.

This bill would require courts to automatically review nonmonetary conditions of release at each regularly scheduled court hearing after a defendant has complied with the conditions for 60 days. It would also establish a rebuttable presumption, to be overcome only through clear and convincing evidence, that the conditions are no longer necessary and must be removed.

I commend the author for seeking to ensure judicial review of the ongoing necessity for nonmonetary conditions of pretrial release. But a rebuttable presumption that these conditions are no longer necessary deprives judges of vital discretion to balance the removal of these conditions against other constitutional and statutory considerations.

Moreover, as a practical matter, this bill would require courts to devote significant additional time to review during thousands of hearings, clogging dockets and imposing delays throughout the court system. As a result, this bill would create millions in ongoing costs to the state General Fund for the Judicial Council to implement.

In partnership with the Legislature this year, my Administration has enacted a balanced budget that avoids deep program cuts to vital services and protected investments in education, health core, climate, public safety, housing, and social service programs that millions of Californians rely on. It is important to remain disciplined when considering bills with significant fiscal implications that are not included in the budget, such as this measure.

ASSEMBLY FLOOR: 43-25, 8/27/24

AYES: Addis, Aguiar-Curry, Bennett, Berman, Boerner, Bonta, Bryan, Juan Carrillo, Wendy Carrillo, Connolly, Mike Fong, Friedman, Garcia, Gipson, Grayson, Haney, Hart, Holden, Jackson, Jones-Sawyer, Kalra, Lee, Low, Lowenthal, McCarty, McKinnor, Papan, Pellerin, Petrie-Norris, Quirk-Silva, Rendon, Reyes, Luz Rivas, Blanca Rubio, Santiago, Ting, Ward, Weber, Wicks, Wilson, Wood, Zbur, Robert Rivas

NOES: Alanis, Bains, Chen, Megan Dahle, Davies, Dixon, Essayli, Flora, Gallagher, Hoover, Lackey, Mathis, Muratsuchi, Pacheco, Jim Patterson, Joe Patterson, Ramos, Rodriguez, Sanchez, Soria, Ta, Valencia, Villapudua, Waldron, Wallis

NO VOTE RECORDED: Alvarez, Arambula, Bauer-Kahan, Calderon, Cervantes, Gabriel, Irwin, Maienschein, Stephanie Nguyen, Ortega, Schiavo

Prepared by: Stella Choe / PUB. S. /

10/9/24 9:58:46

**** END ****

SENATE THIRD READING

STR Bill Id:SB 1133

Author:(Becker)

As Amended Ver:May 16, 2024

Majority vote

SUMMARY

Specifies that at an automatic bail review hearing, the court shall determine whether there remains clear and convincing evidence of a risk to public safety or the victim, or a risk of flight, and that no less restrictive alternative can reasonably protect against that risk, and entitles a defendant who has nonmonetary conditions of release, other than those specified, to an automatic review of those conditions at the next regularly scheduled court date after the defendant has been in compliance with those conditions for 60 days.

Major Provisions

1. Provides that at the automatic review of an order fixing a bail amount for a person detained in custody on a criminal charge prior to conviction, for want of bail, at that hearing, the court shall review the considerations required by Penal Code Section 1275, and additionally determine whether there exists clear and convincing evidence of a risk to public safety or the victim, or a risk of flight, and that no less restrictive alternative can reasonably protect against that risk.
2. Clarifies that the above review shall be held not later than five days from the time of the original order fixing the amount of bail on the original accusatory pleading, unless the defendant agrees to a later hearing.
3. Provides that when a court has imposed upon a defendant a nonmonetary condition or conditions of release, other than a protective order or statutorily mandated conditions, that person is entitled to an automatic review of those conditions at the next regularly scheduled court date after the defendant has been in compliance with those conditions for 60 full days.
4. Provides that at that review, there shall be a rebuttable presumption that the conditions are no longer necessary and shall be removed if the person has remained in compliance with the condition or conditions for 60 days.
5. Provides that the district attorney may rebut this presumption by establishing clear and convincing evidence that the condition or conditions remain necessary to mitigate risk to public safety or to the victim, or to mitigate risk of flight, and that no less restrictive alternative can address that risk.
6. Provides that an automatic review under this section shall occur at the next regularly scheduled court date after every 60-day period during which the defendant has been in compliance with all nonmonetary conditions of release, other than a protective order or statutorily mandated conditions.
7. Clarifies that this section does not replace any other existing opportunity for review of nonmonetary conditions of release.

COMMENTS

According to the Author

"[i]n California, once a court sets bail or imposes pretrial conditions in a criminal case, those decisions are rarely revisited—and even when they are, the law is not clear as to how those reviews should occur. SB 1133 will make two important changes to the process of reviewing pretrial decisions—bringing more clarity, consistency, and fairness to the pretrial system.

"First, SB 1133 will align the evidentiary standard for bail review with the California Supreme Court's standard. In 2021, the California Supreme Court in In re Humphrey clarified the standard of proof judges should be using for bail determinations, but that is not yet reflected in statute. Per Humphrey, a person may not be detained pretrial unless a judge determines there is clear and convincing evidence of risk to public safety or the victim, or risk of flight, and that no less restrictive alternative can reasonably protect against that risk. Right now, judges do not necessarily follow the same standard when making bail decisions, resulting in disparities in bail setting and bail amounts across the state.

"Next, SB 1133 will also create an automatic review for other nonmonetary pretrial conditions like electronic monitoring and mandatory drug testing at the next court date following 60 days of compliance. Specifically, SB 1133 requires judges to periodically reevaluate pretrial conditions so that people are not subject to monitoring unless necessary to address the perceived risks. At the person's next regularly scheduled court date after 60 days of compliance, there would be a rebuttable presumption that the conditions are no longer necessary. That presumption can be overcome if the district attorney establishes that the conditions remain necessary to mitigate public safety or flight risk, and that no less restrictive alternative conditions can address that risk. This would align California with peer states: Illinois passed a 60-day conditions review for electronic monitoring in 2021, and Michigan has introduced comparable policy this session.

"Ensuring more opportunities for reviewing pretrial decisions is good for safety, justice, and county budgets. Although these decisions are intended to address any risk to public safety or missed court appearance, research shows that unnecessary pretrial detention results in heightened pressure to plead guilty, increased rates of re-arrest at any point in the future, and a high price tag for counties—and that overly onerous pretrial release conditions do not appear to reduce re-arrest rates, but instead needlessly expose people to technical violations. SB 1133 seeks to address these issues and ensure better access to pretrial justice across California."

Arguments in Support

According to Initiate Justice Action "[u]nder the current system, judges typically set financial bail or impose other conditions of pretrial release in a matter of minutes—or even seconds—and without much information to inform that decision. Many circumstances can arise after that initial hearing to justify modifying someone's bail amount or conditions of release: the defense might have more information for a proper bail argument, the prosecution might offer a plea to a lesser charge, or new information might surface indicating less risk to public safety. But even so, initial pretrial release decisions are not often revisited.

"Bail amounts in California are also astronomical. The median bail is $50,000 which is five times the national median bail amount.^[1] In Los Angeles alone, the median bail amount is a whopping $235,000.^[2] This further demonstrates how a hastily made bail decision comes at a tremendous cost, especially for low-income Californians, and creates greater challenges for public safety.

"In addition to being an issue of fairness, a well-informed bail decision is a matter of public safety: just 24 hours of jail incarceration increases a person's risk of being rearrested, due to the immediate destabilization caused by detention. Revisiting bail is also a critical opportunity to reduce the risk of coerced guilty pleas that are driven by inability to afford money bail, as recognized by the California Committee on Revision of the Penal Code.

"SB 1133 strengthens and clarifies the existing mechanisms for revisiting pretrial release decisions in four ways. First, it aligns the evidentiary standard for initial bail review with the California Supreme Court's standard as articulated in In re Humphrey, ensuring that courts across the state follow the same decision making framework. Second, it changes the timeframe for automatic bail review from five days to three days, reducing the risk that people will needlessly suffer from loss of housing, employment, or custody of children while in jail.

"Third, it clearly defines "good cause" for reviewing bail at any other point in the pretrial period, clarifying certain circumstances that should always give rise to reviewing a pretrial release decision. Finally, it creates an automatic review hearing for other non-monetary pretrial conditions, such as electronic monitoring and mandatory drug testing, ensuring that people who are compliant with conditions do not have to navigate release requirements that are more onerous than necessary.

"Ensuring adequate opportunities for reviewing pretrial decisions is good for safety, justice, and county budgets. Although these decisions are intended to address any risk to public safety or missed court appearance, research shows that unnecessary pretrial detention results in heightened pressure to plead guilty, increased rates of re-arrest and a high price tag for counties. SB 1133 seeks to address these issues by improving access to bail and pretrial conditions review across California."

Arguments in Opposition

According to the California District Attorneys Association "[t]he newest amendments to SB 1133 removed several of the most beneficial provisions of the bill, namely the proposed additions of subsections (a) and (c) to Penal Code 1289, which explicitly allowed for bail review upon a complaint and provided equity in notice requirements.

"CDAA is still opposed to this bill due to the provision which adds 1289.1 to the Penal Code. This provision forces review of nonmonetary conditions of release every 60 days and creates a rebuttable presumption that they are no longer necessary. The district attorney bears the burden of establishing by clear and convincing evidence that these conditions remain necessary to mitigate the risk to the public. This provision will provide for numerous releases of dangerous criminals into the public and will mire the judicial system with innumerable unnecessary bail review hearings.

"In a typical DUI case, a judge may order the defendant to attend self-help meetings during the pendency of his case. In a typical theft case, a defendant may be ordered to stay away from the location where the crime occurred. In 2022 there were more than 125,000 DUI arrests in California and more than 500,000 theft-related arrests in California. (California Department of Justice, Crime in California 2022.) Most of these arrests result in prosecution and many of these cases remain pending for years. Section 1289.1 will require the judicial system to conduct hundreds of thousands of additional bail review hearings every year, just on these two categories of crimes, let alone the hundreds of other crimes and conditions of release that are possible. These hearings will occur even when there has been no change whatsoever in circumstances and no reduction in danger to the public. This is a waste of judicial resources with no grounding in reality. This provision assumes that all defendants become less of a risk over time, with no evidence whatsoever to support that. Not only that, but this provision gives the defendant the presumption that they are not a danger to the public, despite the fact that the court must presume the charges are true, and despite the fact that the California Constitution mandates that safety of the public and the safety of the victim shall be the primary considerations at every bail hearing. This provision is illogical, wasteful, and unconstitutional.

"The addition of 1289.1 will force unwarranted bail review hearings which fail to protect victims and the public as required by the California Constitution."

FISCAL COMMENTS

Unknown. This bill is keyed non-fiscal by the Legislative Counsel.

VOTES

SENATE FLOOR: 28-9-3

YES: Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dodd, Durazo, Eggman, Glazer, Gonzalez, Laird, Limón, McGuire, Menjivar, Newman, Padilla, Portantino, Roth, Rubio, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener

NO: Alvarado-Gil, Dahle, Grove, Jones, Nguyen, Niello, Ochoa Bogh, Seyarto, Wilk

ABS, ABST OR NV: Allen, Hurtado, Min

ASM PUBLIC SAFETY: 5-2-1

YES: McCarty, Reyes, Ting, Wilson, Zbur

NO: Alanis, Lackey

ABS, ABST OR NV: Stephanie Nguyen

UPDATED

VERSION: May 16, 2024

CONSULTANT: Kimberly Horiuchi / PUB. S. / (916) 319-3744 FN: 0003723

1. Sonya Tafoya, Pretrial Detention and Jail Capacity in California (San Francisco: Public Policy Institute of California, 2015), perma.cc/PL6V-TGYH. For rising jail costs nationally and in California, see Pew Charitable Trusts, "Local Spending on Jails Tops $25 Billion in Latest Nationwide Data," January 29, 2021, perma.cc/M9H6-QE4M; and Vera Institute of Justice (Vera), "What Jails Cost: Cities,", vera.org/publications/what-jails-cost-cities. ↑

2. Vera, Money Bail and the Lost Angeles County Jail System (New York: Vera, 2022), 2, perma.cc/P9K6-GLX8 ↑

Date of Hearing: July 2, 2024

Counsel: Kimberly Horiuchi

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Kevin McCarty, Chair

SBPCA Bill Id:SB 1133

Author:(Becker) – As Amended Ver:May 16, 2024

SUMMARY: Specifies that at an automatic bail review hearing, the court shall determine whether there remains clear and convincing evidence of a risk to public safety or the victim, or a risk of flight, and that no less restrictive alternative can reasonably protect against that risk, and entitles a defendant who has nonmonetary conditions of release, other than those specified, to an automatic review of those conditions at the next regularly scheduled court date after the defendant has been in compliance with those conditions for 60 days. Specifically, this bill:

1. Provides that at the automatic review of an order fixing a bail amount for a person detained in custody on a criminal charge prior to conviction, for want of bail, at that hearing, the court shall review the considerations required by Penal Code Section 1275, and additionally determine whether there exists clear and convincing evidence of a risk to public safety or the victim, or a risk of flight, and that no less restrictive alternative can reasonably protect against that risk.
2. Clarifies that the above review shall be held not later than five days from the time of the original order fixing the amount of bail on the original accusatory pleading, unless the defendant agrees to a later hearing.
3. Provides that when a court has imposed upon a defendant a nonmonetary condition or conditions of release, other than a protective order or statutorily mandated conditions, that person is entitled to an automatic review of those conditions at the next regularly scheduled court date after the defendant has been in compliance with those conditions for 60 full days.
4. Provides that at that review, there shall be a rebuttable presumption that the conditions are no longer necessary and shall be removed if the person has remained in compliance with the condition or conditions for 60 days.
5. Provides that the district attorney may rebut this presumption by establishing clear and convincing evidence that the condition or conditions remain necessary to mitigate risk to public safety or to the victim, or to mitigate risk of flight, and that no less restrictive alternative can address that risk.
6. Provides that an automatic review under this section shall occur at the next regularly scheduled court date after every 60-day period during which the defendant has been in compliance with all nonmonetary conditions of release, other than a protective order or statutorily mandated conditions.
7. Clarifies that this section does not replace any other existing opportunity for review of nonmonetary conditions of release.

EXISTING LAW:

1. Prohibits excessive bail. (U.S. Const., 8th Amend. & Cal. Const., art. I, § 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, § 12.)
3. States that in setting, reducing or denying bail, the judge or magistrate shall take into consideration the protection of the public, the safety of the victim, the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of their appearing at the trial or hearing of the case; public safety and the safety of the victim shall be the primary considerations. (Cal. Const., art. I, § 28, subd. (f)(3).)
4. 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, § 28, subd. (b)(3).)
5. Provides that the Judicial Council shall adopt rules for court administration, practice and procedure, and perform other functions prescribed by statute. (Cal. Const., art. VI, § 6, subd. (d).)
6. Requires the superior court judges in each county to prepare, adopt, and annually revise a uniform, countywide bail schedule. (Pen. Code, § 1269b, subd. (c).)
7. Allows a court, by local rule, to prescribe the procedure by which the uniform countywide schedule of bail is prepared, adopted, and annually revised by the judges. If a court does not adopt a local rule, the uniform countywide schedule of bail shall be prepared, adopted, and annually revised by a majority of the judges. (Pen. Code, § 1269b, subd. (d).)
8. Provides that in adopting a uniform countywide schedule of bail for all bailable felony offenses the judges shall consider the seriousness of the offense charged. In considering the seriousness of the offense charged the judges shall assign an additional amount of required bail for each aggravating or enhancing factor chargeable in the complaint. In considering offenses in which a violation of a controlled substance offense is alleged, the judge shall assign an additional amount of required bail for offenses involving large quantities of controlled substances. (Pen. Code, § 1269b, subd. (e).)
9. Requires the countywide bail schedule to contain a list of the offenses and the amounts of bail applicable for each as the judges determine to be appropriate. If the schedule does not list all offenses specifically, it shall contain a general clause for designated amounts of bail as the judges of the county determine to be appropriate for all the offenses not specifically listed in the schedule. A copy of the countywide bail schedule shall be sent to the officer in charge of the county jail, to the officer in charge of each city jail within the county, to each superior court judge and commissioner in the county, and to the Judicial Council. (Pen. Code, § 1269b, subd. (f).)
10. Specifies if a defendant has appeared before a judge of the court on the charge contained in the complaint, indictment, or information, the bail shall be in the amount fixed by the judge at the time of the appearance. If that appearance has not been made, the bail shall be in the amount fixed in the warrant of arrest or, if no warrant of arrest has been issued, the amount of bail shall be pursuant to the uniform countywide schedule of bail for the county in which the defendant is required to appear, previously fixed and approved. (Pen. Code, § 1269b, subd. (b).)
11. Provides that at the time of issuing an arrest warrant, the magistrate shall fix the amount of bail which, in the magistrate’s judgment, will be reasonable and sufficient for the defendant to appear, if the offense is bailable. (Pen. Code, § 815a.)
12. Provides that an arrested person must be taken before the magistrate with 48 hours of arrest, excluding Sundays and holidays. (Pen. Code, 825, subd. (a).)
13. Authorizes the officer in charge of a jail, or the clerk of the superior court to approve and accept bail in the amount fixed by the arrest warrant, the bail schedule, or an order admitting to bail in case or surety bond, and to issue and sign an order for the release of the arrested person, and to set a time and place for the person’s appearance in court. (Pen. Code, 1269b, subd. (a).)
14. States that if a defendant is arrested without a warrant for a bailable felony offense or for the misdemeanor offense of violating a domestic violence restraining order, and a peace officer has reasonable cause to believe that the amount of bail set forth in the schedule of bail for that offense is insufficient to ensure the defendant’s appearance or to ensure the protection of a victim, or family member of a victim, of domestic violence, the officer shall file a declaration with the judge requesting an order setting a higher bail. (Pen. Code, 1269c.)
15. Allows a defendant to ask the judge for release on bail lower than that provided in the schedule of bail or on his or her own recognizance and states that the judge 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 terms 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. (Pen. Code, § 1269c.)
16. After a defendant has been admitted to bail upon an indictment or information, the Court in which the charge is pending may, upon good cause shown, either increase or reduce the amount of bail. If the amount be increased, the Court may order the defendant to be committed to actual custody, unless he give bail in such increased amount. (Pen. Code, § 1289.)
17. Prohibits the release of a defendant on his or her own recognizance (OR) for any violent felony until a hearing is held in open court and the prosecuting attorney is given notice and an opportunity to be heard on the matter. (Pen. Code, § 1319.)
18. Specifies conditions for a defendant's release on their own recognizance (OR). (Pen. Code, § 1318.)
19. Provides that a defendant released on bail for a felony who willfully fails to appear in court, as specified, is guilty of a crime. (Pen. Code, § 1320.5.)
20. Specifies that if an on-bail defendant fails to appear for any scheduled court appearance, the bail is forfeited unless the clerk of the court fails to give proper notice to the surety or depositor within 30 days, or the defendant is brought before the court within 180 days. (Pen. Code, § 1305, subds. (a) & (b).)

FISCAL EFFECT: Unknown.

COMMENTS:

1. Author's Statement: According to the author, "[i]n California, once a court sets bail or imposes pretrial conditions in a criminal case, those decisions are rarely revisited—and even when they are, the law is not clear as to how those reviews should occur. SB 1133 will make two important changes to the process of reviewing pretrial decisions—bringing more clarity, consistency, and fairness to the pretrial system.

First, SB 1133 will align the evidentiary standard for bail review with the California Supreme Court’s standard. In 2021, the California Supreme Court in In re Humphrey clarified the standard of proof judges should be using for bail determinations, but that is not yet reflected in statute. Per Humphrey, a person may not be detained pretrial unless a judge determines there is clear and convincing evidence of risk to public safety or the victim, or risk of flight, and that no less restrictive alternative can reasonably protect against that risk. Right now, judges do not necessarily follow the same standard when making bail decisions, resulting in disparities in bail setting and bail amounts across the state.

Next, SB 1133 will also create an automatic review for other nonmonetary pretrial conditions like electronic monitoring and mandatory drug testing at the next court date following 60 days of compliance. Specifically, SB 1133 requires judges to periodically reevaluate pretrial conditions so that people are not subject to monitoring unless necessary to address the perceived risks. At the person’s next regularly scheduled court date after 60 days of compliance, there would be a rebuttable presumption that the conditions are no longer necessary. That presumption can be overcome if the district attorney establishes that the conditions remain necessary to mitigate public safety or flight risk, and that no less restrictive alternative conditions can address that risk. This would align California with peer states: Illinois passed a 60-day conditions review for electronic monitoring in 2021, and Michigan has introduced comparable policy this session.

Ensuring more opportunities for reviewing pretrial decisions is good for safety, justice, and county budgets. Although these decisions are intended to address any risk to public safety or missed court appearance, research shows that unnecessary pretrial detention results in heightened pressure to plead guilty, increased rates of re-arrest at any point in the future, and a high price tag for counties—and that overly onerous pretrial release conditions do not appear to reduce re-arrest rates, but instead needlessly expose people to technical violations. SB 1133 seeks to address these issues and ensure better access to pretrial justice across California.”

1. Bail: 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.^[1]

Courts require many defendants to deposit “money” bail – i.e., the amount ordered by the court or the amount charged as a bond by a bail surety - 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.

Currently, each county sets a bail schedule based exclusively on the charged offense. The bail schedule is used by the arresting officer to allow an arrestee to post bail before their court appearance. Once a defendant is brought before the court, there must be an individualized determination of the appropriate amount of bail. Another function of the bail system is protection of the community, although there is no assessment of risk, at least when bail is posted before the arrestee appears before the court.

1. Objections to Monetary Bail: There are a number of challenges 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.

According to information provided by the author and the California Penal Code Revision Commission:

“(a) According to the Committee on Revision of the Penal Code:

(1) Pretrial detention is often the single best predictor of case outcomes. It increases the likelihood of a conviction and the severity of a conviction and sentence while reducing future employment and access to social safety nets.^[2]

(2) Rates of pretrial detention are higher on average for people of color and bail amounts are also consistently higher for Black and Latino defendants.^[3]

(3) The severity of pretrial detention and cascading negative consequences from being incarcerated can often exert undue pressure on people held in custody to plead guilty.^[4]

(b) According to the Prison Policy Initiative, pretrial detention has negative consequences for public safety. Any time spent in pretrial detention beyond 23 hours is associated with a consistent and significant increase in the likelihood of future re-arrest.^[5]

(c) According to Advancing Pretrial Policy and Research, excessive conditions of pretrial release do not appear to reduce re-arrest rates, but instead unnecessarily subject people to technical violations and revocation of bail.^[6]

A law requiring a 60-day automatic conditions review hearing for pretrial electronic monitoring was passed in Illinois in 2021.^[7] Michigan has introduced comparable policy this session.^[8]

1. SB 10 (Hertzberg) and Subsequent Referendum: SB 10 (Hertzberg) was signed into law on August 28, 2018. SB 10 eliminated cash bail in California. In its place, SB 10 created a risk-based non-monetary pre-arraignment and pretrial release system for people arrested for criminal offenses including preventative detention procedures for person’s determined to be too high a risk to assure public safety if released.

A veto referendum to overturn the law was filed on August 29. On January 16, 2019, the California Secretary of State reported that the estimated number of valid signatures exceeded 110 percent of the 365,880 required signatures, putting the targeted law, SB 10, on hold until the November 2020 election. The referendum was identified as Proposition 25 on the ballot. A “Yes” vote indicated a preference to uphold the statutory changes made by SB 10 and end the use of cash bail in California.

Voters rejected SB 10 by a margin of 55% to 45%. The voters’ veto of SB 10 maintained the existing structure of cash bail for criminal defendants in California. In the case of Assembly v. Deukmajian, the California Supreme Court provided the following guidance to the Legislature when it seeks to enact new legislation in an area where the voters have rejected an earlier legislative effort by means of a referendum: “Unless the new measure is ‘essentially different’ from the rejected provision and is enacted ‘not in bad faith, and not with intent to evade the effect of the referendum petition,’ it is invalid.”’^[9] In this case, this bill is likely substantially different than anything having to do with direct money bail. It simply provides an opportunity for review of bail to ensure people are not being held in jail for unnecessary reasons, to force a plea, or where there is just no evidence of flight or risk to public safety. Given the current state of California’s jails – such action seems consistent with the values of pre-trial assessments and Realignment.

1. Argument in Support: According to Initiate Justice Action “[u]nder the current system, judges typically set financial bail or impose other conditions of pretrial release in a matter of minutes—or even seconds—and without much information to inform that decision. Many circumstances can arise after that initial hearing to justify modifying someone’s bail amount or conditions of release: the defense might have more information for a proper bail argument, the prosecution might offer a plea to a lesser charge, or new information might surface indicating less risk to public safety. But even so, initial pretrial release decisions are not often revisited.

Bail amounts in California are also astronomical. The median bail is $50,000 which is five times the national median bail amount.^[10] In Los Angeles alone, the median bail amount is a whopping $235,000.^[11] This further demonstrates how a hastily made bail decision comes at a tremendous cost, especially for low-income Californians, and creates greater challenges for public safety.

In addition to being an issue of fairness, a well-informed bail decision is a matter of public safety: just 24 hours of jail incarceration increases a person’s risk of being rearrested, due to the immediate destabilization caused by detention. Revisiting bail is also a critical opportunity to reduce the risk of coerced guilty pleas that are driven by inability to afford money bail, as recognized by the California Committee on Revision of the Penal Code.

SB 1133 strengthens and clarifies the existing mechanisms for revisiting pretrial release decisions in four ways. First, it aligns the evidentiary standard for initial bail review with the California Supreme Court’s standard as articulated in In re Humphrey, ensuring that courts across the state follow the same decision making framework. Second, it changes the timeframe for automatic bail review from five days to three days, reducing the risk that people will needlessly suffer from loss of housing, employment, or custody of children while in jail.

Third, it clearly defines “good cause” for reviewing bail at any other point in the pretrial period, clarifying certain circumstances that should always give rise to reviewing a pretrial release decision. Finally, it creates an automatic review hearing for other non-monetary pretrial conditions, such as electronic monitoring and mandatory drug testing, ensuring that people who are compliant with conditions do not have to navigate release requirements that are more onerous than necessary.

Ensuring adequate opportunities for reviewing pretrial decisions is good for safety, justice, and county budgets. Although these decisions are intended to address any risk to public safety or missed court appearance, research shows that unnecessary pretrial detention results in heightened pressure to plead guilty, increased rates of re-arrest and a high price tag for counties. SB 1133 seeks to address these issues by improving access to bail and pretrial conditions review across California.”

1. Argument in Opposition: According to the California District Attorneys Association “[t]he newest amendments to SB 1133 removed several of the most beneficial provisions of the bill, namely the proposed additions of subsections (a) and (c) to Penal Code 1289, which explicitly allowed for bail review upon a complaint and provided equity in notice requirements.

CDAA is still opposed to this bill due to the provision which adds 1289.1 to the Penal Code. This provision forces review of nonmonetary conditions of release every 60 days and creates a rebuttable presumption that they are no longer necessary. The district attorney bears the burden of establishing by clear and convincing evidence that these conditions remain necessary to mitigate the risk to the public. This provision will provide for numerous releases of dangerous criminals into the public and will mire the judicial system with innumerable unnecessary bail review hearings.

In a typical DUI case, a judge may order the defendant to attend self-help meetings during the pendency of his case. In a typical theft case, a defendant may be ordered to stay away from the location where the crime occurred. In 2022 there were more than 125,000 DUI arrests in California and more than 500,000 theft-related arrests in California. (California Department of Justice, Crime in California 2022.) Most of these arrests result in prosecution and many of these cases remain pending for years. Section 1289.1 will require the judicial system to conduct hundreds of thousands of additional bail review hearings every year, just on these two categories of crimes, let alone the hundreds of other crimes and conditions of release that are possible. These hearings will occur even when there has been no change whatsoever in circumstances and no reduction in danger to the public. This is a waste of judicial resources with no grounding in reality. This provision assumes that all defendants become less of a risk over time, with no evidence whatsoever to support that. Not only that, but this provision gives the defendant the presumption that they are not a danger to the public, despite the fact that the court must presume the charges are true, and despite the fact that the California Constitution mandates that safety of the public and the safety of the victim shall be the primary considerations at every bail hearing. This provision is illogical, wasteful, and unconstitutional.

The addition of 1289.1 will force unwarranted bail review hearings which fail to protect victims and the public as required by the California Constitution.”

1. Related Legislation: AB 2391 (Vince Fong) Amends the definition of “public safety” to include protection from physical or economic injury for the purpose of the court determining whether a defendant should be released on their own recognizance in a misdemeanor case. AB 2391 was referred to, but never heard in the Assembly Committee on Public Safety.
   
2. Prior Legislation:
   
   1. AB 329 (Bonta) requires bail to be set at $0 for all offenses except, among others, serious or violent felonies, violations of specified protective orders, battery against a spouse, sex offenses, and driving under the influence. AB 329 was referred to, but never heard in the Assembly Committee on Public Safety.
      
   2. SB 262 (Hertzberg), of the 2021-22 Legislative Session, would have prohibited costs relating to conditions of release from custody from being imposed on a person released on bail or their own recognizance including, but not limited to, fees relating to conditions of release or the imposition of conditions of release that require the person released to pay for those conditions.SB 262 failed passage on the Assembly floor.
      

REGISTERED SUPPORT / OPPOSITION:

Support

ACLU California Action
Aouon Orange County
California Public Defenders Association
Californians for Safety and Justice
Californians United for A Responsible Budget
Care First California
Children's Defense Fund - CA
Courage California
Ella Baker Center for Human Rights
Essie Justice Group
Felony Murder Elimination Project
Initiate Justice
Initiate Justice Action
Justice2jobs Coalition
LA Defensa
Legal Services for Prisoners With Children
Los Angeles Regional Reentry Partnership (LARRP)
Rubicon Programs
San Francisco Pretrial Diversion Project
San Francisco Public Defender
Silicon Valley De-bug
Smart Justice California, a Project of Tides Advocacy
The Bail Project
Uncommon Law
Vera Institute of Justice

Oppose

American Bail Coalition
California Bail Agents Association
California District Attorneys Association
Crime Victims United of California
Golden State Bail Agents Association, INC.

Analysis Prepared by: Kimberly Horiuchi / PUB. S. / (916) 319-3744

1. Cal. Const. art. I, § 12. ↑

2. California Committee on Revision of the Penal Code, 2023 Annual Report and Recommendations, p. 55. ↑

3. California Committee on Revision of the Penal Code, 2022 Annual Report and Recommendations, p. 66. ↑

4. California Committee on Revision of the Penal Code, 2023 Annual Report and Recommendations, p. 55. ↑

5. Prison Policy Initiative, “Releasing people pretrial doesn’t harm public safety,” July 6, 2023. ↑

6. Advancing Pretrial Policy and Research, Pretrial Research Summary: Pretrial Monitoring, p. 3. ↑

7. 2021 (Illinois State Legislature, HB 3653 (Public Act 101-0652), 101st General Assembly, 2021,

   ilga.gov/legislation/BillStatus.asp?DocNum=3653&GAID=15&DocTypeID=HB&LegId=120371&SessionID=108&GA=101). ↑

8. (Michigan State House of Representatives, House Bill 4656, 102nd Legislature, 2023, legislature.mi.gov/documents/2023-2024/billintroduced/House/pdf/2023-HIB-4656.pdf). ↑

9. Assembly v. Deukmejian (1982), 30 Cal.3d 638, 678 (citing Reagan v. City of Sausalito (1962), 210 Cal.App.2d 618, 629-631 and Martin v. Smith (1959), 176 Cal.App.2d 115, 118-119. ↑

10. Sonya Tafoya, Pretrial Detention and Jail Capacity in California (San Francisco: Public Policy Institute of California, 2015), perma.cc/PL6V-TGYH. For rising jail costs nationally and in California, see Pew Charitable Trusts, “Local Spending on Jails Tops $25 Billion in Latest Nationwide Data,” January 29, 2021, perma.cc/M9H6-QE4M; and Vera Institute of Justice (Vera), “What Jails Cost: Cities,”, vera.org/publications/what-jails-cost-cities. ↑

11. Vera, Money Bail and the Lost Angeles County Jail System (New York: Vera, 2022), 2, perma.cc/P9K6-GLX8 ↑

 THIRD READING  

Bill No: SB 1133

Author: Becker (D)

Amended: 5/16/24

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 4-1, 4/16/24

AYES: Wahab, Bradford, Skinner, Wiener

NOES: Seyarto

SENATE APPROPRIATIONS COMMITTEE: 5-2, 5/16/24

AYES: Caballero, Ashby, Becker, Bradford, Wahab

NOES: Jones, Seyarto

SUBJECT: Bail

SOURCE: Vera Institute of Justice

DIGEST:

This bill specifies that at an automatic bail review hearing, the court shall determine whether there remains clear and convincing evidence of a risk to public safety or the victim, or a risk of flight, and that no less restrictive alternative can reasonably protect against that risk, and entitles a defendant who has nonmonetary conditions of release, other than those specified, to an automatic review of those conditions at the next regularly scheduled court date after the defendant has been in compliance with those conditions for 60 days

ANALYSIS:

Existing law:

1. Prohibits excessive bail. (Cal. Const., art. I, sections 12 and 28(f)(3).)
2. Declares that a person shall be released on bail by sufficient sureties, except for: (a) capital crimes when the facts are evident or the presumption great; (b) felony offenses involving acts of violence on another person, or felony sexual assault offenses on another person, when the facts are evident or the presumption great and the court finds based upon clear and convincing evidence that there is a substantial likelihood the person's release would result in great bodily harm to others; or (c) felony offenses when the facts are evident or the presumption great and the court finds based on 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, section 12.)
3. Provides that in setting, reducing or denying bail, the judge or magistrate shall take into consideration the protection of the public, the safety of the victim, the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his or her appearing at the trial or hearing of the case. Public safety and the safety of the victim shall be the primary considerations. A person may be released on his or her own recognizance (OR) in the court’s discretion, subject to the same factors considered in setting bail. (Cal. Const., art. I, section 28(f)(3).)
4. States that the admission to bail is the order of a competent court or magistrate that the defendant be discharged from actual custody upon bail. (Pen. Code, § 1268.)
5. Authorizes the officer in charge of a jail or the clerk of the superior court to approve and accept bail in the amount fixed by the arrest warrant, schedule of bail, or an order admitting to bail in cash or surety bond and to issue and sign an order for the release of the arrested person and to set a time and place for the appearance of the arrested person in court. (Pen. Code § 1269b, subd. (a).)
6. States that it is the duty of the superior court judges in each county to prepare, adopt, and annually revise a uniform countywide schedule of bail for all bailable felony offenses and for all misdemeanor and infraction offenses except Vehicle Code infractions. The penalty schedule for infraction violations of the Vehicle Code shall be established by the Judicial Council. (Pen. Code § 1269b, subd. (c).)
7. Requires the countywide bail schedule to contain a list of the offenses and the amounts of bail applicable for each as the judges determine to be appropriate. If the schedule does not list all offenses specifically, it shall contain a general clause for designated amounts of bail as the judges of the county determine to be appropriate for all the offenses not specifically listed in the schedule. A copy of the countywide bail schedule shall be sent to the officer in charge of the county jail, to the officer in charge of each city jail within the county, to each superior court judge and commissioner in the county, and to the Judicial Council. (Pen. Code § 1269b, subd. (f).)
8. Authorizes a court to release a person who has been arrested for, or charged with any offense other than a capital offense, on his or her own recognizance. (Pen. Code § 1270.)
9. Requires a person arrested for a misdemeanor to be released on OR release unless the court makes a finding on the record that there is no condition or combination of conditions that would reasonably ensure public safety and the appearance of the defendant as required, an OR release will compromise public safety or will not reasonably ensure the appearance of the defendant. Public safety shall be the primary consideration. If the court makes one of those findings, the court shall then set monetary bail and specify the conditions, if any, under which the defendant shall be released. (Pen. Code § 1270.)
10. Authorizes a court to release a person on bail in an amount that is more or less than the amount contained in the bail schedule, or release the person on OR release after conducting a hearing in open court. If bail is set in an amount that is different from that contained in the bail schedule, the judge or magistrate shall state the reasons for that decision on the record. (Pen. Code § 1270.1.)
11. States that in setting, reducing, or denying bail, a judge or magistrate shall 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 their appearance at trial or at a hearing of the case. The public safety shall be the primary consideration. In setting bail, a judge or magistrate may consider factors such as information in the pretrial release report. (Pen. Code, § 1275, subd. (a)(1).)
12. States that in considering the seriousness 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. (Pen. Code, § 1275, subd. (a)(2).)
13. Provides that before a court reduces bail to below the amount established by the bail schedule approved for the county for a person charged with a serious felony or a violent felony, 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. (Pen. Code, § 1275, subd. (c).)
14. States that when a person is detained in custody on a criminal charge prior to conviction for want of bail, that person is entitled to an automatic review of the order fixing the amount of bail by the judge or magistrate. That review shall be held no later than 5 days from the time of the original order fixing the amount of bail on the accusatory pleading. The defendant may waive this review. (Pen. Code, §1270.2.)
15. States that after a defendant has been admitted to bail upon an indictment, information, or complaint, the court in which the charge is pending may, upon good cause shown, either increase or reduce the amount of bail. If the amount be increased, the court may order a defendant to be committed to actual custody, unless he give bail in such increased amount. If application be made by the defendant for a reduction of the amount, notice of the application must be served upon the District Attorney. (Pen. Code, §1289.)

This bill:

1. Requires at the automatic review hearing, the court to review the considerations required in Penal Code section 1275 and determine whether there remains clear and convincing evidence of a risk to public safety or the victim, or a risk of flight, and that no less restrictive alternative can reasonably protect against that risk.
2. Provides that when a court has imposed upon a defendant a nonmonetary condition or conditions of release, other than a protective order or statutorily mandated conditions, the defendant is entitled to an automatic review of those conditions at the next regularly scheduled court date after the defendant has been in compliance with those conditions for 60 full days.
3. States that at that hearing there shall be a rebuttable presumption that the conditions are no longer necessary and shall be removed if the person has remained in compliance with the condition or conditions.
4. Provides that the District Attorney may rebut this presumption by establishing clear and convincing evidence that the conditions remain necessary to mitigate risk to public safety or the victim, or to mitigate risk of flight, and that no less restrictive alternatives can address that risk.
5. States that an automatic review of the conditions shall occur at the next regularly scheduled court date after every 60-day period during which the defendant has been in compliance with all nonmonetary conditions of release, other than a protective order or statutorily mandated conditions.
6. Clarifies this bill’s provision requiring an automatic review of nonmonetary conditions of release do not replace any other existing opportunity for review of nonmonetary conditions of release.
7. Contains findings and declarations related to pretrial detention.

Comments

According to the author of this bill:

Under the current system, judges typically set financial bail or impose conditions of pretrial release in a matter of minutes or seconds—and without much information to inform that decision. Many circumstances can arise after that initial hearing to justify modifying someone’s bail amount or release conditions: the defense might receive more information for a proper bail argument, the prosecution might offer a plea to a lesser charge, or new information might surface indicating less risk to public safety. But current law does not provide clear, consistent procedures around when and how to revisit pretrial release decisions.

SB 1133 strengthens and clarifies the existing mechanisms for revisiting pretrial release decisions in four ways. First, it aligns the evidentiary standard for initial bail review with the California Supreme Court’s standard as articulated in In re Humphrey, ensuring that courts across the state follow the same decision-making framework. Second, it changes the timeframe for automatic bail review from five days to three days, reducing the risk that people will needlessly suffer from loss of housing, employment, or custody of children while in jail. Third, it clearly defines “good cause” for reviewing bail at any other point in the pretrial period, clarifying certain circumstances that should give rise to reviewing a pretrial release decision. Finally, it ensures other non-monetary pretrial conditions, such as electronic monitoring and mandatory drug testing, are reconsidered on a regular basis to verify that release requirements that are not more onerous than necessary.

By doing so, California will implement a reasonable pretrial release program that improves public safety.

FISCAL EFFECT: Appropriation: No Fiscal Com.: No Local: No

According to the Senate Committee on Appropriations: Unknown, potentially significant workload cost pressures (General Fund, Trial Court Trust Fund) to the courts to conduct the reviews required by this bill.

SUPPORT: (Verified 5/16/24)

Vera Institute of Justice (source)

ACLU California Action
California Public Defenders Association
Californians for Safety and Justice
Californians United for A Responsible Budget
Care First California
Children's Defense Fund - CA
Ella Baker Center for Human Rights
Essie Justice Group
Felony Murder Elimination Project
Initiate Justice
Initiate Justice Action
Justice2jobs Coalition
LA Defensa
Legal Services for Prisoners With Children
Los Angeles Regional Reentry Partnership
Rubicon Programs
San Francisco Public Defender
Silicon Valley De-bug
Smart Justice California, a Project of Tides Advocacy

OPPOSITION: (Verified 5/16/24)

American Bail Coalition
California Bail Agents Association

Crime Victims United of California
Golden State Bail Agents Association, INC.

Prepared by: Stella Choe / PUB. S. /

5/18/24 16:20:52

**** END ****

SENATE COMMITTEE ON

Senator Anna Caballero, Chair

2023 - 2024 Regular Session

SB 1133 (Becker) - Bail

Bill Summary:

SB 1133 would require courts to consider a change in the amount of bail in specified circumstances, including, among others, when there is new information available to mitigate the risk to public safety or flight and entitles a person to automatic review of nonmonetary conditions of pretrial release every 60 days, if the person has remained in compliance with the conditions.

*********** ANALYSIS ADDENDUM – SUSPENSE FILE ***********

The following information is revised to reflect amendments

adopted by the committee on May 16, 2024

Fiscal Impact:

Unknown, potentially significant workload cost pressures (General Fund, Trial Court Trust Fund) to the courts to conduct the reviews required by this bill.

Author Amendments:

Provide that the court can review nonmonetary conditions of release at regular scheduled court hearings, as specified.

Committee Amendments:

Delete provisions requiring a bail review hearing from no later than three days from the time of the original order fixing the amount of bail. Delete the provisions requiring court to conduct a hearing to consider a change in the amount of bail in specified circumstances.

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SENATE COMMITTEE ON

Senator Anna Caballero, Chair

2023 - 2024 Regular Session

SB 1133 (Becker) - Bail

Bill Summary:

SB 1133 would require courts to consider a change in the amount of bail in specified circumstances, including, among others, when there is new information available to mitigate the risk to public safety or flight and entitles a person to automatic review of nonmonetary conditions of pretrial release every 60 days, if the person has remained in compliance with the conditions.

Fiscal Impact:

• Unknown, potentially significant workload cost pressures (General Fund, Trial Court Trust Fund) to the courts to hold the hearings required by this bill. While the superior courts are not funded on a workload basis, an increase in workload could result in delayed court services and pressure to fund additional staff and resources. The Governor’s 2024-25 state budget proposes $83.1 million ongoing General Fund to continue to backfill the Trial Court Trust Fund for expected revenue declines.
  
• Unknown, potentially significant cost savings (local funds) in lower detention costs if pre-sentenced defendants are released from county jails based on the who otherwise would not have been released awaiting their case disposition.

Background:

When a person has been arrested for a crime and booked into jail custody, the person may be released from custody prior to trial proceedings either on bail, own recognizance (OR), or supervised release with nonmonetary conditions. Persons who are not released pursuant to one of these avenues will remain in custody until the resolution of their case. Pretrial services is responsible for conducting pretrial risk assessments, making recommendations for pretrial release or detention, supervising and providing services to released individuals, and locating those who do not show up for court appearances.

Bail is set through a bail schedule that lists preset amounts of bail for various crimes. A committee of judges in each county promulgates the bail schedule for that county. A defendant or the prosecution can move the judge presiding over a particular case to raise or lower the amount of bail, or the defendant can request OR release. When a defendant remains detained in custody for want of bail, the law entitles the defendant to an automatic review within 5 days of setting bail. A court may also, upon good cause shown, either increase or reduce the amount of bail after a defendant has been admitted to bail.

The money bail system has come under scrutiny because of claims that it does not promote public safety and it unfairly penalizes defendants who are poor while allowing defendants who have means to buy their way out of jail. The Chief Justice of the California Supreme Court set up a working group to study pretrial detention practices and provide recommendations for reform. The study found that California’s “pretrial and release detention system unnecessarily compromises victim and public safety because it bases a person’s liberty on financial resources rather than the likelihood of future criminal behavior and exacerbates socioeconomic disparities and racial bias.” (Judicial Council of Cal., Pretrial Detention Reform: Recommendations to the Chief Justice (2017), p. 1.) The working group recommended several reforms including implementing a robust risk-based pretrial assessment and supervision to replace the monetary bail system. (Id. at p. 2.)

In 2021, the California Supreme Court held that the court must consider a person’s ability to pay when setting bail amounts and that pretrial detention can only be used when no other less restrictive option will ensure follow-up appearance at court and guarantee the public’s safety. (In re Humphrey (2021) 11 Cal. 5th 135.) “The common practice of conditioning freedom solely on whether an arrestee can afford bail is unconstitutional. Other conditions of release — such as electronic monitoring, regular check-ins with a pretrial case manager, community housing or shelter, and drug and alcohol treatment — can in many cases protect public and victim safety as well as assure the arrestee’s appearance at trial. What we hold is that where a financial condition is nonetheless necessary, the court must consider the arrestee’s ability to pay the stated amount of bail — and may not effectively detain the arrestee ‘solely because’ the arrestee ‘lacked the resources’ to post bail.” (Ibid.)

Proposed Law:

This bill would do all of the following:

• Consistent with the standard in Humphreys, as discussed above, require, at bail review hearings, the court to review the protection of the public, the seriousness of the offense charged, the previous criminal record of the defendant, and the probability their appearing at trial or at a hearing of the case and to determine whether there exists clear and convincing evidence of a risk to public safety or the victim, or a risk of flight, and that no less restrictive alternative can reasonably protect against that risk.
• Shorten the time for the bail review hearing from no later than five days to no later than three days from the time of the original order fixing the amount of bail, unless the defendant agrees to a later hearing.
• Upon request, the court to conduct a hearing to consider a change in the amount of bail in any of the following circumstances, and in any other appropriate circumstance as determined by the court:
  • A plea offer is made by a prosecutor;
  • The defendant has been incarcerated for the maximum amount of time, including credits that they could serve if convicted;
  • There is new information available to mitigate the risk to public safety or flight; or,
  • There is new information available that is relevant to a defendant’s pretrial release plan.
• When a court has imposed upon a defendant a nonmonetary condition or conditions of release, other than a protective order or statutorily mandated conditions, that person is entitled to an automatic review of those conditions every 60 days, or as soon as practicable but not to exceed 75 days. At this hearing, there shall be a rebuttable presumption that the conditions are no longer necessary and shall be removed if the person has remained in compliance with the condition or conditions for 60 days. The district attorney may rebut this presumption by establishing clear and convincing evidence that the condition or conditions remain necessary to mitigate risk to public safety or to the victim, or to mitigate risk of flight, and that no less restrictive alternative can address that risk.

Related Legislation:

SB 262 (Hertzberg, 2022) would have required zero-dollar bail for most misdemeanor and felony offenses; required Judicial Council to prepare, adopt, and annually revise a statewide bail schedule for the exempt offenses; and required the return of money or property paid to obtain bail, as specified. SB 262 failed passage on the Assembly Floor.

SB 10 (Hertzberg, Chapter 244, Statutes of 2018) would have created a risk-based non-monetary prearraignment and pretrial release system for people arrested for criminal offenses, as specified. SB 10 was subject to a referendum as Proposition 25 (2020) and rejected by the voters.

Staff Comments:

According to a recently-released report, 44,241 people (which is about 75 percent of the county jail population) are incarcerated in California jails and have not been convicted or sentenced for a crime. Among those individuals, at least 1,300 have been detained for more than three years, 332 for more than five years, and one for almost 12 years.^[1] Under existing case law discussed in Background, above, however, those individuals who are currently incarcerated because they cannot afford the bail amount set in their cases would be eligible for reconsideration of the bail amount to something that is affordable or for release pending the disposition of their cases. This bill would

However, the additional hearings created by this bill could lead to lengthier and additional court proceedings with attendant workload and resource costs to the court. An eight hour court day costs approximately $8,300 in staff in workload. If the bill results in 50 or additional hours spent in court, trial court costs could an amount sufficient to meet the Suspense threshold. As discussed above, although courts are not funded on the basis of workload, increased pressure on the Trial Court Trust Fund and staff workload may create a need for increased funding for courts from the General Fund to perform existing duties.

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1. (Lewis, Waiting for justice: Unsentenced people locked up for years (Mar. 2021) <https://calmatters.org/justice/2021/03/waiting-for-justice/> [as of Apr. 1, 2021].) ↑

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Aisha Wahab, Chair

2023 - 2024 Regular

Bill No: SB 1133 Hearing Date: April 16, 2024

Subject: Bail

HISTORY

Source: Vera Institute

Prior Legislation: SB 262 (Hertzberg), failed passage Assem. Floor, 2022

AB 1347 (Jones-Sawyer), Ch. 444, Stats. 2021

SB 10 (Hertzberg), Chapter 644, Statutes of 2018, repealed by referendum

AB 805 (Jones-Sawyer), Ch. 17, Stats. 2013

SB 210 (Hancock), Assem. inactive file, 2013

Support: ACLU California Action; California Public Defenders Association; Californians for Safety and Justice; Californians United for a Responsible Budget; Care First California; Children’s Defense Fund – CA; Ella Baker Center for Human Rights; Essie Justice Group; Felony Murder Elimination Project; Initiate Justice; Initiate Justice Action; Justice2Jobs Coalition; La Defensa; Legal Services for Prisoners with Children; Los Angeles Regional Reentry Partnership; Rubicon Programs; San Francisco Public Defender; Silicon Valley De-Bug; Smart Justice California

Opposition: American Bail Coalition; California District Attorneys Association (unless amended)

PURPOSE

The purpose of this bill is to 1) require the court to review whether there remains clear and convincing evidence of a risk to public safety or the victim, or a risk of flight, and that no less restrictive alternative can address that risk at the automatic review of the order fixing the amount of bail by the judge or magistrate; 2) require the court to, upon request, conduct a hearing to consider a change in the amount of bail in specified circumstances; and 3) entitles a defendant who has a nonmonetary condition of release, other those specified, to an automatic review of those conditions after 60 days.

Existing law prohibits excessive bail. (Cal. Const., art. I, sections 12 and 28(f)(3).)

Existing law declares that a person shall be released on bail by sufficient sureties, except for:

• Capital crimes when the facts are evident or the presumption great;
• Felony offenses involving acts of violence on another person, or felony sexual assault offenses on another person, when the facts are evident or the presumption great and the court finds based upon clear and convincing evidence that there is a substantial likelihood the person's release would result in great bodily harm to others; or
• Felony offenses when the facts are evident or the presumption great and the court finds based on 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, section 12.)

Existing law provides that in setting, reducing or denying bail, the judge or magistrate shall take into consideration the protection of the public, the safety of the victim, the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his or her appearing at the trial or hearing of the case. Public safety and the safety of the victim shall be the primary considerations. A person may be released on his or her own recognizance (OR) in the court’s discretion, subject to the same factors considered in setting bail. (Cal. Const., art. I, section 28(f)(3).)

Existing law states that the admission to bail is the order of a competent court or magistrate that the defendant be discharged from actual custody upon bail. (Pen. Code, § 1268.)

Existing law authorizes the officer in charge of a jail or the clerk of the superior court to approve and accept bail in the amount fixed by the arrest warrant, schedule of bail, or an order admitting to bail in cash or surety bond and to issue and sign an order for the release of the arrested person and to set a time and place for the appearance of the arrested person in court. (Pen. Code § 1269b, subd. (a).)

Existing law states that it is the duty of the superior court judges in each county to prepare, adopt, and annually revise a uniform countywide schedule of bail for all bailable felony offenses and for all misdemeanor and infraction offenses except Vehicle Code infractions. The penalty schedule for infraction violations of the Vehicle Code shall be established by the Judicial Council. (Pen. Code § 1269b, subd. (c).)

Existing law requires the countywide bail schedule to contain a list of the offenses and the amounts of bail applicable for each as the judges determine to be appropriate. If the schedule does not list all offenses specifically, it shall contain a general clause for designated amounts of bail as the judges of the county determine to be appropriate for all the offenses not specifically listed in the schedule. A copy of the countywide bail schedule shall be sent to the officer in charge of the county jail, to the officer in charge of each city jail within the county, to each superior court judge and commissioner in the county, and to the Judicial Council. (Pen. Code § 1269b, subd. (f).)

Existing law authorizes a court to release a person who has been arrested for, or charged with any offense other than a capital offense, on his or her own recognizance. (Pen. Code § 1270.)

Existing law requires a person arrested for a misdemeanor to be released on OR release unless the court makes a finding on the record that there is no condition or combination of conditions that would reasonably ensure public safety and the appearance of the defendant as required, an OR release will compromise public safety or will not reasonably ensure the appearance of the defendant. Public safety shall be the primary consideration. If the court makes one of those findings, the court shall then set monetary bail and specify the conditions, if any, under which the defendant shall be released. (Id.)

Existing law authorizes a court to release a person on bail in an amount that is more or less than the amount contained in the bail schedule, or release the person on OR release after conducting a hearing in open court. If bail is set in an amount that is different from that contained in the bail schedule, the judge or magistrate shall state the reasons for that decision on the record. (Pen. Code § 1270.1.)

Existing law states that in setting, reducing, or denying bail, a judge or magistrate shall 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 their appearance at trial or at a hearing of the case. The public safety shall be the primary consideration. In setting bail, a judge or magistrate may consider factors such as information in the pretrial release report. (Pen. Code, § 1275, subd. (a)(1).)

Existing law states that in considering the seriousness 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. (Pen. Code, § 1275, subd. (a)(2).)

Existing law provides that before a court reduces bail to below the amount established by the bail schedule approved for the county for a person charged with a serious felony or a violent felony, 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. (Pen. Code, § 1275, subd. (c).)

Existing law states that when a person is detained in custody on a criminal charge prior to conviction for want of bail, that person is entitled to an automatic review of the order fixing the amount of bail by the judge or magistrate. That review shall be held no later than 5 days from the time of the original order fixing the amount of bail on the accusatory pleading. The defendant may waive this review. (Pen. Code, §1270.2.)

This bill reduces the timeframe to hold the automatic review hearing from 5 days to 3 days.

This bill requires at the automatic review hearing, the court to review the considerations required in Penal Code section 1275 and determine whether there remains clear and convincing evidence of a risk to public safety or the victim, or a risk of flight, and that no less restrictive alternative can reasonably protect against that risk.

Existing law states that after a defendant has been admitted to bail upon an indictment, information, or complaint, the court in which the charge is pending may, upon good cause shown, either increase or reduce the amount of bail. If the amount be increased, the court may order a defendant to be committed to actual custody, unless he give bail in such increased amount. If application be made by the defendant for a reduction of the amount, notice of the application must be served upon the District Attorney. (Pen. Code, §1289.)

This bill removes the authority for the court to commit the defendant into actual custody for failure to give bail in the increased amount.

This bill requires the court, upon request, conduct a hearing to consider a change in the amount of bail in any of the following circumstances, and in any other appropriate circumstance as determined by the court:

• A plea offer is made by the prosecutor;
• The defendant has been incarcerated for the maximum amount of time, including credits, that they could serve if convicted;
• There is new information available to mitigate the risk to public safety or flight; or,
• There is new information available that is relevant to a defendant’s release plan.

This bill states that if application be made for an increase or reduction of the amount, notice of the application must be served upon the opposing party.

This bill provides that when a court has imposed upon a defendant a nonmonetary condition or conditions of release, other than a protective order or statutorily mandated conditions, that person is entitled to an automatic review of those conditions every 60 days, or as soon as practicable but not to exceed 75 days.

This bill states that at that hearing there shall be a rebuttable presumption that the conditions are no longer necessary and shall be removed if the person has remained in compliance with the condition or conditions for 60 days.

This bill provides that the District Attorney may rebut this presumption by establishing clear and convincing evidence that the conditions remain necessary to mitigate risk to public safety or the victim, or to mitigate risk of flight, and that no less restrictive alternatives can address that risk.

This bill clarifies this the bill’s provision requiring an automatic review of nonmonetary conditions of release do not replace any other existing opportunity for review of nonmonetary conditions of release.

This bill states that the Legislature finds and declares all of the following:

• According to the Committee on the Revision of the Penal Code, pretrial detention is often the single best predictor of case outcomes. It increases the likelihood of a conviction and the severity of a conviction and sentence while reducing future employment and access to social safety nets. Rates of pretrial detention are higher on average for people of color and bail amounts are also consistently higher for Black and Latino defendants. The severity of pretrial detention and cascading negative consequences from being incarcerated can often exert undue pressure on people held in custody to plead guilty.
• According to the Prison Policy Initiative, pretrial detention has negative consequences for public safety. Any time spent in pretrial detention beyond 23 hours is associated with a consistent and significant increase in the likelihood of future rearrest.
• According to Advancing Pretrial Policy and Research, excessive conditions of pretrial release do not appear to reduce rearrest rates, but instead unnecessarily subject people to technical violations and revocation of bail.

COMMENTS

1. Need for This Bill

According to the author of this bill:

Under the current system, judges typically set financial bail or impose conditions of pretrial release in a matter of minutes or seconds—and without much information to inform that decision. Many circumstances can arise after that initial hearing to justify modifying someone’s bail amount or release conditions: the defense might receive more information for a proper bail argument, the prosecution might offer a plea to a lesser charge, or new information might surface indicating less risk to public safety. But current law does not provide clear, consistent procedures around when and how to revisit pretrial release decisions.

SB 1133 strengthens and clarifies the existing mechanisms for revisiting pretrial release decisions in four ways. First, it aligns the evidentiary standard for initial bail review with the California Supreme Court’s standard as articulated in In re Humphrey, ensuring that courts across the state follow the same decision-making framework. Second, it changes the timeframe for automatic bail review from five days to three days, reducing the risk that people will needlessly suffer from loss of housing, employment, or custody of children while in jail. Third, it clearly defines “good cause” for reviewing bail at any other point in the pretrial period, clarifying certain circumstances that should give rise to reviewing a pretrial release decision. Finally, it ensures other non-monetary pretrial conditions, such as electronic monitoring and mandatory drug testing, are reconsidered on a regular basis to verify that release requirements that are not more onerous than necessary.

By doing so, California will implement a reasonable pretrial release program that improves public safety.

1. Background: Bail

Existing law provides a process whereby the court may set a bail amount for a criminal defendant. (Penal Code Section 1269b.) Additionally, Section 12 of Article 1 of the California Constitution provides, with limited exceptions, that a criminal defendant has a right to bail and what conditions shall be taken into consideration in setting bail. A defendant may post bail by depositing cash or an equivalent form of currency, provide a security in real property, or undertake bail using a bail bond.

The bail bond is the most likely means by which a person posts bail and is essentially a private-party contract that provides the court with a guarantee that the defendant will appear for a hearing or trial. A defendant pays a licensed bail agent a percentage of the total amount of bail ordered as a non-refundable fee – often an amount in the range of 10%. The bail agent will contract with a surety company to issue a bail bond – essentially, an insurance policy. The bond is issued providing that if the defendant fails to appear, the county will receive the full amount of bail set by the court. The bond is provided to the court and, if accepted, the defendant is released. As designed, the bail system often allows the court to rely on the private sector to ensure appearances and provide a means for the county to be made whole in the event that a person fails to appear.

While the main purpose of a bail bond is to provide some assurance that a defendant will return to court to resolve the pending charges, courts also consider the danger a released defendant will pose to the public or specific persons. Bail is set through a bail schedule that lists preset amounts of bail for various crimes. A committee of judges in each county promulgates the bail schedule for that county. (Pen. Code § 1269b, subd. (c).) A defendant or the prosecution can move the judge presiding over a particular case to raise or lower the amount of bail, or the defendant can request OR release. (Pen. Code § 1275.) When a defendant remains detained in custody for want of bail, the law entitles the defendant to an automatic review within 5 days of setting bail. (Pen. Code, § 1270.2.) Additional statutory rules apply if the defendant is charged with a serious felony or domestic violence. (Pen. Code § 1270.1.) A court may also, upon good cause shown, either increase or reduce the amount of bail after a defendant has been admitted to bail. (Pen. Code, § 1289.)

The money bail system has come under scrutiny because of claims that it does not promote public safety and it unfairly penalizes defendants who are poor while allowing defendants who have means to buy their way out of jail. The Chief Justice of the California Supreme Court set up a working group to study pretrial detention practices and provide recommendations for reform. The study found that California’s “pretrial and release detention system unnecessarily compromises victim and public safety because it bases a person’s liberty on financial resources rather than the likelihood of future criminal behavior and exacerbates socioeconomic disparities and racial bias.” (Judicial Council of Cal., Pretrial Detention Reform: Recommendations to the Chief Justice (2017), p. 1.) The working group recommended several reforms including implementing a robust risk-based pretrial assessment and supervision to replace the monetary bail system. (Id. at p. 2.)

The Legislature passed legislation that would have implemented major changes to the bail system by replacing cash bail with pretrial risk assessments and non-monetary conditions of release (SB 10, Chapter 244, Statutes of 2018), however a veto referendum on the law was placed on the November 2020 ballot and the law was repealed. (Proposition 25, failed passage by California voters, Gen. Elec. (Nov. 3, 2020).) When a referendum fails, the Legislature is limited in enacting the same or “essentially similar” legislation. (Assembly v. Deukmejian (1982) 30 Cal.3d 638.)

In 2021, the California Supreme Court held that the court must consider a person’s ability to pay when setting bail amounts and that pretrial detention can only be used when no other less restrictive option will ensure follow-up appearance at court and guarantee the public’s safety, which will be discussed in further detail below. (In re Humphrey (2021) 11 Cal. 5^th 135.)

1. Pretrial Services and Nonmonetary Conditions of Release

When a person has been arrested for a crime and booked into jail custody, the person may be released from custody prior to trial proceedings either on bail, own recognizance, or supervised release with conditions. Persons who are not released pursuant to one of these avenues will remain in custody until the resolution of their case. Pretrial services is responsible for conducting pretrial risk assessments, making recommendations for pretrial release or detention, supervising and providing services to released individuals, and locating those who do not show up for court appearances. Existing law requires pretrial service agencies to validate their pretrial risk assessment tools no less than every three years and to specified information regarding the tool, including validation studies, publicly available. (Pen. Code, §1320.35.)

Although pretrial services have been around since the 1960s, bail has been the primary avenue for pretrial release. (Pretrial Risk Assessment in California, Public Policy Institute of California (Dec. 2019), p. 4.) Critics of the bail system argue that bail system fails to protect public safety and gives wealthy people an advantage over people who cannot afford bail. In 2018, the First District Court of Appeals in San Francisco ruled that pretrial detention of a defendant solely due to inability to post bail is unconstitutional. (In re Humphrey (2018) 19 Cal.App.5th 1006.) The California Supreme Court upheld this ruling: “The common practice of conditioning freedom solely on whether an arrestee can afford bail is unconstitutional. Other conditions of release — such as electronic monitoring, regular check-ins with a pretrial case manager, community housing or shelter, and drug and alcohol treatment — can in many cases protect public and victim safety as well as assure the arrestee’s appearance at trial. What we hold is that where a financial condition is nonetheless necessary, the court must consider the arrestee’s ability to pay the stated amount of bail — and may not effectively detain the arrestee ‘solely because’ the arrestee ‘lacked the resources’ to post bail.” (In re Humphrey, supra, 11 Cal. 5th at p. 143.)

The Budget Act of 2019 (AB 74 (Ting), Ch. 23, Stats. 2019) earmarked $75 million to the Judicial Council to launch and evaluate two-year pretrial projects in local trial courts. The projects aimed to increase the safe and efficient release of arrestees before trial, use the least restrictive monitoring practices possible while protecting public safety and ensuring court appearances, validate and expand the use of risk assessment tools, and assess any bias. In August 2019, the Judicial Council approved and distributed funding to the 16 pilot projects selected for participation in the Pretrial Pilot Program. By the conclusion of the pilot program, 14 of 16 pilot projects had implemented a court date reminder system which provides text message and phone call notifications to all individuals as pretrial release. Initial data showed that court appearances after the implementation of a court date reminder system increased significantly. The final report on the Pretrial Pilot Program suggested an overall positive impact of the program including increased pretrial release and decreased booking/rearrest for misdemeanors and felonies. See https://www.courts.ca.gov/documents/Pretrial-Pilot-Program_Final-Report.pdf [as of Apr. 5, 2024].)

Following the pilot program, the Budget Act of 2021 (SB 129 (Skinner), Ch. 69, Stats. 2021) allocated ongoing funding to the Judicial Council for the implementation or expansion of pretrial programs in all California courts.

1. Impact of This Legislation

As discussed above, a defendant may be released from custody either through bail, OR release or pretrial release with non-monetary conditions. If bail is set by the magistrate or judge and the defendant remains in custody due to want of bail, existing law provides the defendant with an automatic review of the bail amount within 5 days. (Pen. Code, § 1270.2) This bill reduces the time frame for when the hearing must be held from 5 days to 3 days. This bill also requires the court to review the considerations in Penal Code 1275, specifically protection of the public, the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of their appearance at trial or at a hearing of the case. This bill also requires the court to determine whether there remains clear and convincing evidence of a risk to public safety or the victim, or a risk of flight and that no less restrictive alternative can reasonably protect against that risk. This standard comes from the Humphrey, supra, ruling for making bail determinations.

Existing law authorizes a court at any time, if good cause is shown, to increase or reduce bail. If bail is increased, the court has the authority to commit the defendant into custody for failure to give bail in the increased amount. (Pen. Code, §1289.) The Committee on the Revision of the Penal Code (established by SB 94, chapter 25, statutes of 2019) noted its most recent report that:

[A]lmost any period of pretrial detention is harmful to the incarcerated person and community. Pretrial detention is often the single best predictor of case outcomes: it increases the likelihood of a conviction, the severity of conviction, and the length of a sentence. At the same time, pretrial detention reduces future employment and access to social safety nets.

(Committee on the Revision of the Penal Code, 2023 Annual Report, p. 55, http://www.clrc.ca.gov/CRPC/Pub/Reports/CRPC_AR2023.pdf (December 2023) [as of Apr. 8, 2024].

The report recommended that the existing law that allows bail to be revisited for good cause should be amended to specify that a presumption of good cause exists when public safety concerns have diminished or further pretrial incarceration is unfair. Specifically, “good cause” should be defined to include: (1) whenever a plea offer is made by a prosecutor, particularly if the offer is to time served or its equivalent or (2) the defendant has been incarcerated for the maximum amount of time, including credits, that they could serve if convicted. (Ibid.)

This bill requires the court to conduct a hearing to consider a change in the amount of bail in specified circumstances, including those recommended by the Committee on the Revision of the Penal Code and in any appropriate circumstance as determined by the court.

This bill also creates an automatic review process for defendants released on non-monetary conditions. Specifically, this bill states that an automatic review hearing must be held by the court every 60 days for a defendant who is released on nonmonetary conditions of release, other than a protective order or statutorily mandated conditions. The bill establishes a rebuttable presumption that the conditions are no longer necessary and shall be removed if the person has remained in compliance with the conditions for 60 days. This presumption may be rebutted if the district attorney establishes by clear and convincing evidence that the conditions remain necessary to mitigate risk to public safety or the victim or to mitigate flight risk and that no less restrictive alternatives can address that risk.

1. Amendments to be Adopted in Committee

The author of the bill intends to adopt amendments in committee to add back in the authority of the court to commit the defendant into custody if the defendant fails to pay the increased amount following a hearing to consider a change in the amount of bail previously set and other clarifying amendments.

1. Argument in Support

According to Vera Institute, the sponsor of this bill:

SB 1133 strengthens and clarifies the existing mechanisms for revisiting pretrial release decisions in four ways. First, it aligns the evidentiary standard for initial bail review with the California Supreme Court’s standard as articulated in In re Humphrey, ensuring that courts across the state follow the same decision making framework. Second, it changes the timeframe for automatic bail review from five days to three days, reducing the risk that people will needlessly suffer from loss of housing, employment, or custody of children while in jail. Third, it clearly defines “good cause” for reviewing bail at any other point in the pretrial period, clarifying certain circumstances that should always give rise to reviewing a pretrial release decision. Finally, it creates an automatic review hearing for other nonmonetary pretrial conditions, such as electronic monitoring and mandatory drug testing, ensuring that people who are compliant with conditions do not have to navigate release requirements that are more onerous than necessary. Given that the use of electronic monitoring has drastically increased in many counties across California in recent years, this bill will provide an important backstop to ensure that onerous and costly conditions are only imposed when needed. This would align California with peer states: Illinois passed a 60-day conditions review for electronic monitoring in 2021, and Michigan has introduced comparable policy this session.

Ensuring adequate opportunities for reviewing pretrial decisions is good for safety, justice, and county budgets. Although these decisions are intended to address any risk to public safety or missed court appearance, research shows that unnecessary pretrial detention results in heightened pressure to plead guilty, increased rates of rearrest, and a high price tag for counties. SB 1133 seeks to address these issues by improving access to bail and pretrial conditions review across California.

1. Argument in Opposition

According to the American Bail Coalition:

This section requires mandatory bail review hearings in four new circumstances, the most important being at the time the prosecutor offers a plea deal (which is a great percentage of the total cases). This hearing is mandatory and occurs regardless of whether requested by the prosecution or defense. The expansion of categories requiring a hearing do not expand the existing standard for the setting of the underlying bail, and thus unnecessary hearings will occur because defendants are going to be entitled to hearings on bail in many matters when the court is not going to grant it because there is no good cause shown (i.e., a plea deal is offered in every case, which is grounds for a hearing, and the other three new categories that trigger mandatory hearings, but they are not grounds for relief). This is going to further burden pretrial due process in California, stalling many defendants unnecessarily in jail.

. . .

While the Committee to Revise the Penal Code did suggest allowing custodial decisions to be “revisited” upon the issuance of a plea deal, the Committee unfortunately did not recommend any changes to the underlying penal code sections governing the changes in bail, thus rendering this section truly the creation of procedural false hope without a substantive remedy. While a plea offer triggers an automatic hearing to revisit bail, it does not change the reasons for which bail is set or create a presumption in favor of release. Instead, this is going to create a disincentive for timely plea deals, because it will trigger a mandatory bail hearing when offered. Instead, the incentive will be to simply calendar a plea hearing and offer the deal the morning of or night before. All that said, if courts are going to have to have an additional bail hearing when a plea offer is made, but before it is accepted, in all cases whatsoever (including multiple offers within a criminal case), we forecast a complete gridlock of the criminal process absent significant funding. Importantly, today, when a plea offer is accepted in open court, the court may revisit bail at that time. As to the other factors, a court may change a bail when “good cause” is shown, and courts thus already have discretion to grant all of the relief requested, the underlying standard for granting relief remaining the same under this legislation as current law.

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