California Assembly Bill AB178 Amended / Bill

 BILL NUMBER: AB 178AMENDED BILL TEXT AMENDED IN ASSEMBLY MARCH 22, 2011 INTRODUCED BY Assembly Members Gorell and Williams JANUARY 24, 2011 An act to amend Sections 1320 and 12022.1 of, and to add Section 1318.2 to, the Penal Code, relating to county jails. LEGISLATIVE COUNSEL'S DIGEST AB 178, as amended, Gorell. County jail: release pursuant to federal court order. Under existing law, a defendant in a criminal case shall not be released from custody under his or her own recognizance until he or she files a signed release agreement that includes the defendant's promise to appear at all times and places as ordered by the court where the charge is pending, to obey conditions imposed by the court, to not depart the state without leave of the court, to waive extradition if the defendant fails to appear, and an acknowledgment that the defendant has been informed of the consequences and penalties applicable to a violation of the conditions of release. This bill would require a defendant who is being released prior to sentencing by county jail personnel, pursuant to a  federal  court order  or policy  mandating the release of inmates, to sign a release agreement with the same requirements as those pertaining to a defendant who is released under his or her own recognizance, including the defendant's promise to appear at the time and place  the defendant   he or she  is given in writing by the jail personnel at the time of release. Existing law provides that a person who has been released pursuant to the above agreement and who fails to appear, as specified, is guilty of a misdemeanor if the underlying charge or conviction is a misdemeanor, or  if the underlying charge or conviction is a felony, is guilty  of a felony, punishable by imprisonment in state prison or county jail, or a fine not exceeding $5,000, or both  , if the underlying charge or conviction is a felony   that imprisonment and fine  . This bill would apply these same penalties to someone who fails to appear after being released prior to sentencing from a county jail pursuant to a  federal  court order  or policy  mandating the release of inmates. Because this bill would create new crimes, it would impose a state-mandated local program. Existing law imposes a penalty enhancement of 2 additional years in state prison, to be served consecutively to any other term, for a person arrested for a felony offense alleged to have been committed while the person was released from custody on bail or on his or her own recognizance prior to the judgment becoming final. This bill would apply this 2-year penalty enhancement to a person arrested for a felony offense alleged to have been committed while the person was released prior to sentencing from a county jail pursuant to a  federal  court order  or policy  mandating the release of inmates. The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. This bill would provide that no reimbursement is required by this act for a specified reason. Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 1318.2 is added to the Penal Code, to read: 1318.2. (a) Any defendant released prior to sentencing by county jail personnel pursuant to a  federal  court order  or policy  mandating the release of inmates when the jail facility reaches a certain capacity shall sign a release agreement that includes all of the following: (1) The defendant's promise to appear at the time and place the defendant is given in writing by the jail personnel at the time of release. (2) The defendant's promise to appear at all times and places the defendant is ordered at subsequent hearings by the court or magistrate and as ordered by any court in which, or any magistrate before whom, the charge is pending. (3) The defendant's promise to obey all reasonable conditions imposed by the court or magistrate. (4) The defendant's promise not to depart this state without leave of the court. (5) Agreement by the defendant to waive extradition if the defendant fails to appear as required and is apprehended outside the State of California. (6) The acknowledgment of the defendant that he or she has been informed of the consequences and penalties applicable to violation of the conditions of release. SEC. 2. Section 1320 of the Penal Code is amended to read: 1320. (a) Every person who is charged with or convicted of the commission of a misdemeanor who is released from custody pursuant to Section 1318 or 1318.2 and who in order to evade the process of the court willfully fails to appear as required, is guilty of a misdemeanor. It shall be presumed that a defendant who willfully fails to appear within 14 days of the date assigned for his or her appearance intended to evade the process of the court. (b) Every person charged with or convicted of the commission of a felony who is released from custody pursuant to Section 1318 or 1318.2 and who, in order to evade the process of the court, willfully fails to appear as required is guilty of a felony and, upon conviction, shall be punished by a fine not exceeding five thousand dollars ($5,000) or by imprisonment in the state prison, or in the county jail for not more than one year, or by both that fine and imprisonment. It shall be presumed that a defendant who willfully fails to appear within 14 days of the date assigned for his or her appearance intended to evade the process of the court. SEC. 3. Section 12022.1 of the Penal Code is amended to read: 12022.1. (a) For the purposes of this section only: (1) "Primary offense" means a felony offense for which a person has been released from custody on bail or pursuant to Section 1318 or 1318.2 prior to the judgment becoming final, including the disposition of any appeal, or for which release on bail or his or her own recognizance has been revoked. In cases where the court has granted a stay of execution of a county jail commitment or state prison commitment, "primary offense" also means a felony offense for which a person is out of custody during the period of time between the pronouncement of judgment and the time the person actually surrenders into custody or is otherwise returned to custody. (2) "Secondary offense" means a felony offense alleged to have been committed while the person is released from custody for a primary offense. (b) Any person arrested for a secondary offense which was alleged to have been committed while that person was released from custody on a primary offense shall be subject to a penalty enhancement of an additional two years in state prison which shall be served consecutive to any other term imposed by the court. (c) The enhancement allegation provided in subdivision (b) shall be pleaded in the information or indictment which alleges the secondary offense, or in the information or indictment of the primary offense if a conviction has already occurred in the secondary offense, and shall be proved as provided by law. The enhancement allegation may be pleaded in a complaint but need not be proved at the preliminary hearing or grand jury hearing. (d) Whenever there is a conviction for the secondary offense and the enhancement is proved, and the person is sentenced on the secondary offense prior to the conviction of the primary offense, the imposition of the enhancement shall be stayed pending imposition of the sentence for the primary offense. The stay shall be lifted by the court hearing the primary offense at the time of sentencing for that offense and shall be recorded in the abstract of judgment. If the person is acquitted of the primary offense the stay shall be permanent. (e) If the person is convicted of a felony for the primary offense, is sentenced to state prison for the primary offense, and is convicted of a felony for the secondary offense, any state prison sentence for the secondary offense shall be consecutive to the primary sentence. (f) If the person is convicted of a felony for the primary offense, is granted probation for the primary offense, and is convicted of a felony for the secondary offense, any state prison sentence for the secondary offense shall be enhanced as provided in subdivision (b). (g) If the primary offense conviction is reversed on appeal, the enhancement shall be suspended pending retrial of that felony. Upon retrial and reconviction, the enhancement shall be reimposed. If the person is no longer in custody for the secondary offense upon reconviction of the primary offense, the court may, at its discretion, reimpose the enhancement and order him or her recommitted to custody. SEC. 4. No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.