CC SR 20210803 F - SB 262 Letter of Opposition
CITY COUNCIL MEETING DATE: 08/03/2021
AGENDA REPORT AGENDA HEADING: Consent Calendar
AGENDA TITLE:
Consideration and possible action to authorize the Mayor to sign a letter opposing SB
262 (Hertzberg/Skinner).
RECOMMENDED COUNCIL ACTION:
(1) Authorize the Mayor to sign a letter opposing SB 262, which would require bail to
be set at $0 for all offenses except, among others, serious or violent felonies,
violations of specified protective orders, domestic violence, sex offenses, and
driving under the influence.
FISCAL IMPACT: None
Amount Budgeted: N/A
Additional Appropriation: N/A
Account Number(s): N/A
ORIGINATED BY: McKenzie Bright, Administrative Analyst
REVIEWED BY: Karina Bañales, Deputy City Manager
APPROVED BY: Ara Mihranian, AICP, City Manager
ATTACHED SUPPORTING DOCUMENTS:
A. Draft letter in opposition to SB 262 (page A-1)
B. Text of SB 262 (as amended May 20, 2021) (page B-1)
BACKGROUND AND DISCUSSION:
Senators Robert Hertzberg, of Van Nuys, and Nancy Skinner, of Berkeley, introduced
Senate Bill No. 262, which would require bail to be set at $0 for all offenses except, among
others, serious or violent felonies, violations of specified protective orders, domestic
violence, sex offenses, and driving under the influence.
On June 1, 2021, the City Council adopted Resolution No. 2021-22 affirming the City’s
support of victim’s rights, especially as it relates to Los Angeles County District Attorney
George Gascón’s Special Directives, which include the elimination of cash bail.
Furthermore, the City Council adopted Resolution No. 2021-33, a vote of no confidence
in DA Gascón at the July 20, 2021 meeting, as a result of the Special Directives, including
1
CITYOF RANCHO PALOS VERDES
Special Directive 20-06, which eliminates cash bail for any misdemeanor, non-serious
felony, or non-violent felony offense.
The intention of SB 262 is to reform California’s cash bail system, to not inequitably detain
certain low-risk defendants because of their financial incapability to make bail.
California courts require many defendants to deposit monetary bail 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. The bail system is recogniz ed to have a
disproportionate impact on communities of color and those on the lower end of the
socioeconomic spectrum.
Senate Bill No. 10 (Hertzberg) was signed into law on August 28, 2018, eliminating cash
bail in California. A veto referendum to overturn the law was filed on August 28, 2018,
and the law was put on hold until the November 2020 election, identified as Proposition
25 on the ballot. Voters rejected the proposition by a margin of 55% to 45%, overturning
the elimination of cash bail.
The bill authors argue that SB 262 takes a different approach from SB 10 in that it does
not eliminate cash bail, but sets bail at $0 for misdemeanor and nonviolent felony charges.
For all other crimes, the new legislation would require the California Judicial Co uncil to
create a uniform bail schedule with standard bail amounts statewide. SB 262 additionally
requires people who pay bail to receive a refund, minus a small surcharge that is retained
by the bail bond company, if the charges against them are dropped o r if they attend all
mandatory court appearances.
SB 262 additionally states that if the court concludes that money bail is reasonably
necessary to protect the public and the victim and reasonably assure the arrestee’s
presence at trial, the court shall consider the arrestee’s ability to pay, and set bail at a
level the arrestee can reasonably afford. This consideration is already required of
California courts, as indicated in the Humphrey case heard by the California Supreme
Court in March 2021, holding that courts “must consider the arrestee’s ability to pay the
stated amount of bail” and may not detain an arrestee solely for inability to post bail.1 The
California Constitution vests the power to set bail amounts with the courts, so SB 262
may represent a constitutional overreach by the Legislature.
As of July 14, 2021, the bill was referred to the Assembly Appropriations Committee. As
of the writing of this report, a hearing date has not been set. If the bill is not amended in
the Appropriations Committee or on the floor, and it passes the Appropriations Committee
and the Assembly Floor, it will go to the Governor’s desk. If the bill is amended, it will
return to the Senate for concurrence.
Given the City Council’s position in Resolution Nos. 2021-22 and 2021-33, expressing
concern over DA Gascón’s elimination of cash bail through his Special Directives, and
1 See In the Supreme Court of California in re Kenneth Humphrey on Habeas Corpus S247278, March
25, 2021
2
given that California voters rejected SB 10 eliminating cash bail and SB 262’s effective
similarities to SB 10, Staff recommends the City Council authorize the Mayor to sign a
letter to Senators Hertzberg and Skinner as drafted or with revisions, opposing SB 262.
ALTERNATIVES:
In addition to the Staff recommendation, the following alternative actions are available for
the City Council’s consideration:
1. Identify revised language to add to the letter.
2. Do not authorize the Mayor to sign the letter.
3. Take other action, as deemed appropriate.
3
August 3, 2021 Via Email
The Honorable Robert Hertzberg
California State Senate
State Capitol, Room 313
Sacramento, CA 95814
The Honorable Nancy Skinner
California State Senate
State Capitol, Room 5094
Sacramento, CA 95814
SUBJECT: Notice of Opposition to SB 262
Dear Senator Hertzberg and Senator Skinner:
The City of Rancho Palos Verdes opposes SB 262, which would require bail to be set at
$0 for all offenses except, among others, serious or violent felonies, violations of specified
protective orders, domestic violence, sex offenses, and driving under the influence .
While we appreciate the intention of the bill to ensure that pretrial incarceration is based
on protecting the public and the victim, rather than the existing system that inequitably
penalizes low-income and low-wealth arrestees, zero bail potentially threatens public
safety and victims’ rights, and directly contradicts the will of the voters, as expressed in
their rejection of SB 10 (Statutes of 2018) in the November 2020 vote on Proposition 25.
SB 262 effectively eliminates cash bail, which was rejected in Proposition 25, and is an
unconstitutional violation of Separation of Powers, as the California Constitution vests the
power to set bail amounts with the courts. The courts have the information necessary to
make informed decisions on bail amount, and case law provides that courts must consider
an arrestee’s ability to post bail and whether other, nonfinancial conditions can be used.
SB 262 circumvents the will of California voters, unconstitutionally shifts vested powers
from the courts to the Legislature, and poses a threat to public safety. For these reasons,
the City of Rancho Palos Verdes opposes SB 262.
Sincerely,
Eric Alegria
Mayor
A-1
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cc: Lorena Gonzalez, Chair, Assembly Appropriations Committee
Ben Allen, Senator, 26th State Senate District
Al Muratsuchi, Assembly Member, 66th Assembly District
Jeff Kiernan, League of California Cities
Meg Desmond, League of California Cities
Marcel Rodarte, California Contract Cities Association
Rancho Palos Verdes City Council
Ara Mihranian, City Manager
Karina Bañales, Deputy City Manager
A-2
AMENDED IN SENATE MAY 20, 2021
AMENDED IN SENATE MARCH 10, 2021
SENATE BILL No. 262
Introduced by Senators Hertzberg and Skinner
(Principal coauthor: Assembly Member Bonta)
(Coauthors: Senators Bradford and Wiener)
January 27, 2021
An act to amend Section 1269b of, and to add Sections 1269d and
1302.5 to, the Penal Code, relating to bail.
legislative counsel’s digest
SB 262, as amended, Hertzberg. Bail.
Existing law provides for the procedure of approving and accepting
bail, and issuing an order for the appearance and release of an arrested
person. Existing law authorizes specified sheriff, police, and court
employees to approve and accept bail in the amount fixed by the warrant
of arrest, schedule of bail, or order admitting to bail. Existing law
requires the superior court judges in each county to prepare, adopt, and
annually revise a uniform countywide schedule of bail, as specified.
This bill would require 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. The bill would require the Judicial Council to
prepare, adopt, and annually revise a bail schedule for the exempt
offenses. The bill would state the intent of the Legislature to enact
further changes to current law to ensure that a defendant is not detained
pending trial simply due to an inability to pay for the amount of bail in
the statewide schedule. statewide bail schedule. The bill would require
bail to be set according to the statewide schedule for any subsequent
97 B-1
seperate offense while the defendant is released on bail that was set at
$0. The bill would require the court, prior to setting bail, to consider
whether nonfinancial conditions will reasonably protect the public and
the victim and reasonably assure the arrestee’s presence at trial. The
bill would, if the court concludes that money bail is necessary, require
the court to consider the arrestee’s ability to pay and to set bail at a
level the arrestee can reasonably afford. The bill would prohibit costs
relating to conditions of release on bail from being imposed on persons
released on bail or on their own recognizance. The bill would require
the sheriff, police, and court employees above to approve and accept
bail in the amount fixed by the bail schedule.
This bill would require the court to order a return of money or property
paid to a bail bond licensee by or on behalf of the arrestee to obtain bail
if the action or proceeding against the arrestee who has been admitted
to bail is dismissed, no charges are filed against the arrestee within 60
days of arrest, or the arrestee has made all court appearances during the
pendency of the action or proceeding against the arrestee, as specified.
The bill would authorize the bail bond licensee to retain a surcharge
not to exceed 5% of the amount paid by the arrestee or on behalf of the
arrestee. The bill would require the court to order this return of money
or property only for a bail contract entered into on or after January 1,
2022.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
The people of the State of California do enact as follows:
line 1 SECTION 1. The Legislature finds and declares all of the
line 2 following:
line 3 (a) The pretrial justice system in California is fundamentally
line 4 broken. Not only has it failed to achieve its stated objectives of
line 5 preventing recidivism and assuring court appearance, but it has
line 6 significantly eroded a sacred principle in our criminal justice
line 7 system: the presumption of innocence.
line 8 (b) California’s high incarceration rate is a direct consequence
line 9 of our heavy reliance on pretrial detention. In 2015, the Public
line 10 Policy Institute of California reported that roughly 50,000, or 62
line 11 percent, of jail beds in California were filled with inmates awaiting
line 12 trial or sentencing. According to a more recent report, 44,241
line 13 county jail inmates across California in 2020, approximately
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line 1 three-quarters of the state’s total jail population, had not been
line 2 convicted of or sentenced for a crime.
line 3 (c) As the California Supreme Court has observed, the
line 4 consequences of pretrial detention on the accused and their
line 5 families are immense and profound. Research suggests that pretrial
line 6 detention heightens the risk of losing a job, a home, and custody
line 7 of a child. Time in jail awaiting trial may even be associated with
line 8 a higher likelihood of reoffending, beginning anew a vicious cycle.
line 9 (d) These consequences are intensified by California’s money
line 10 bail system, which often keeps people incarcerated before trial
line 11 simply because they cannot afford to pay bail. Indeed, as the
line 12 California Supreme Court has adduced, the median bail amount
line 13 in California, roughly $50,000, is more than five times the median
line 14 for the rest of the nation on average.
line 15 (e) A recent report published by the University of California,
line 16 Los Angeles, Bunche Center estimated that approximately 97
line 17 percent of people who make bail in California use a bail agent
line 18 and pay a nonrefundable fee to a private company in order to
line 19 secure their freedom. This is not a simple transaction because
line 20 people often have to borrow from friends and family, enter into
line 21 exploitative financing schemes, or put up their property, even their
line 22 homes, as collateral. Arrestees unable to gather the funds are often
line 23 pressured into taking a plea without having a full and fair
line 24 opportunity to defend their case, or worse, when they are actually
line 25 innocent.
line 26 (f) The money bail industry in California has evolved into a
line 27 predatory scheme that puts profits over people and does not
line 28 enhance public safety or improve court appearance rates.
line 29 According to the Public Policy Institute of California, despite
line 30 higher rates of pretrial detention compared to other states,
line 31 California, under the current system, still has lower court
line 32 appearance rates and higher rearrest rates.
line 33 (g) The California Supreme Court has noted that the excessive
line 34 pretrial detention that results from California’s money bail system
line 35 forces the state to bear the cost of housing and feeding arrestees
line 36 that could be properly released. For instance, just six California
line 37 counties spent $37,500,000 over a two-year period jailing people
line 38 who were never charged or who had charges dropped or dismissed.
line 39 (h) By shifting from a system focused on pretrial detention to
line 40 one focused on pretrial release, outcomes could be vastly improved.
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SB 262 — 3 — B-3
line 1 Studies show that the cost of supervising a person in the community
line 2 pending trial is generally about 10 percent the cost of keeping
line 3 them in jail. Several jurisdictions across the country have
line 4 transitioned to release-based models that save taxpayers millions
line 5 of dollars without sacrificing public safety.
line 6 (i) Modern technology provides an array of valuable tools that
line 7 have already proven effective in the pretrial context, rendering
line 8 many current practices obsolete. For instance, recent research
line 9 suggests that simple text message reminders can significantly
line 10 improve court appearance. The pretrial system in the County of
line 11 Santa Clara, which relies on text message reminders, has
line 12 maintained a 95-percent court appearance rate for defendants
line 13 released before trial.
line 14 (j) In March 2021, the California Supreme Court ruled that
line 15 conditioning freedom solely on whether an arrestee can afford
line 16 bail is unconstitutional, and that in setting bail, judges must
line 17 consider an arrestee’s ability to pay.
line 18 (k) California should be a leader in enacting meaningful bail
line 19 reform that upholds the values of equal protection and due process
line 20 without compromising the safety of victims and the general public.
line 21 SECTION 1.
line 22 SEC. 2. Section 1269b of the Penal Code is amended to read:
line 23 1269b. (a) The officer in charge of a jail in which an arrested
line 24 person is held in custody, an officer of a sheriff’s department or
line 25 police department of a city who is in charge of a jail or is employed
line 26 at a fixed police or sheriff’s facility and is acting under an
line 27 agreement with the agency that keeps the jail in which an arrested
line 28 person is held in custody, an employee of a sheriff’s department
line 29 or police department of a city who is assigned by the department
line 30 to collect bail, the clerk of the superior court of the county in which
line 31 the offense was alleged to have been committed, and the clerk of
line 32 the superior court in which the case against the defendant is
line 33 pending shall approve and accept bail in the amount fixed pursuant
line 34 to this section in cash or surety bond executed by a certified,
line 35 admitted surety insurer as provided in the Insurance Code, to issue
line 36 and sign an order for the release of the arrested person, and to set
line 37 a time and place for the appearance of the arrested person before
line 38 the appropriate court and give notice thereof.
line 39 (b) If a defendant has appeared before a judge of the court on
line 40 the charge contained in the complaint, indictment, or information,
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line 1 the bail shall be in the amount fixed by the judge at the time of the
line 2 appearance, in accordance with subdivisions (c) and (d). If that
line 3 appearance has not been made, the amount of bail shall be fixed
line 4 pursuant to subdivisions (c) and (d).
line 5 (c) Bail shall be set at zero dollars ($0) for all misdemeanor and
line 6 felony offenses except the following:
line 7 (1) A serious felony, as defined in subdivision (c) of Section
line 8 1192.7, or a violent felony, as defined in subdivision (c) of Section
line 9 667.5.
line 10 (2) A felony violation of Section 69.
line 11 (3) A violation of paragraph (1) of subdivision (c) of Section
line 12 166.
line 13 (4) A violation of Section 136.1 when punishment is imposed
line 14 under subdivision (c) of Section 136.1.
line 15 (5) A violation of Section 262.
line 16 (6) A violation of paragraph (1) of subdivision (e) of Section
line 17 243 or Section 273.5.
line 18 (7) A violation of Section 273.6 if the detained person made
line 19 threats to kill or harm, has engaged in violence against, or has gone
line 20 to the residence or workplace of, the protected party.
line 21 (8) A violation of Section 422 where the offense is charged as
line 22 a felony.
line 23 (9) A violation of Section 646.9.
line 24 (10) A violation of an offense listed in subdivision (c) of Section
line 25 290.
line 26 (11) A violation of Section 23152 or 23153 of the Vehicle Code.
line 27 (12) A felony violation of Section 463.
line 28 (13) A violation of Section 29800.
line 29 (14) A violation of Section 422.6 or Section 422.7.
line 30 (15) A violation of Section 236.1.
line 31 (16) A violation of Section 273a or Section 273d.
line 32 (17) A violation of Section 368.
line 33 (18) A violation of paragraph (4) of subdivision (a) of Section
line 34 245.
line 35 (d) (1) For all offenses listed in paragraphs (1) to (13), (18),
line 36 inclusive, of subdivision (c), and for the purposes of subdivision
line 37 (e), the Judicial Council shall prepare, adopt, and annually revise
line 38 a schedule of bail amounts, which shall apply statewide.
line 39 (2) It is the intent of the Legislature to enact further changes to
line 40 current law to ensure that a defendant is not detained pending trial
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SB 262 — 5 — B-5
line 1 simply due to an inability to pay for the amount of bail in the
line 2 statewide schedule set pursuant to paragraph (1).
line 3 (e) While released on bail for zero dollars ($0), bail for
line 4 subsequent separate offenses shall be set pursuant to the statewide
line 5 bail schedule established by Judicial Council pursuant to
line 6 subdivision (d), and subject to the provisions in subdivision (f).
line 7 This subdivision does not apply to those subsequent and separate
line 8 offenses that occur after the original offense is resolved.
line 9 (f) (1) Prior to setting bail for an offense listed in paragraphs
line 10 (1) to (18), inclusive, of subdivision (c), or for an offense pursuant
line 11 to subdivision (e), the court shall first consider whether
line 12 nonfinancial conditions will reasonably protect the public and the
line 13 victim and reasonably assure the arrestee’s presence at trial.
line 14 (2) If the court concludes that money bail is reasonably
line 15 necessary to protect the public and the victim or reasonably assure
line 16 the arrestee’s presence at trial, the court shall consider the
line 17 arrestee’s ability to pay, and set bail at a level the arrestee can
line 18 reasonably afford.
line 19 (e)
line 20 (g) The penalty schedule for infraction violations of the Vehicle
line 21 Code shall be established by the Judicial Council in accordance
line 22 with Section 40310 of the Vehicle Code.
line 23 (f)
line 24 (h) In adopting a uniform statewide schedule of bail for all
line 25 offenses listed in paragraphs (1) to (13), (18), inclusive, of
line 26 subdivision (c), the Judicial Council shall consider the seriousness
line 27 of the offense charged. In considering the seriousness of the offense
line 28 charged the judges shall assign an additional amount of required
line 29 bail for each aggravating or enhancing factor chargeable in the
line 30 complaint, including, but not limited to, additional bail for charges
line 31 alleging facts that would bring a person within any of the following
line 32 sections: Section 667.5, 667.51, 667.6, 667.8, 667.85, 667.9,
line 33 667.10, 12022, 12022.1, 12022.2, 12022.3, 12022.4, 12022.5,
line 34 12022.53, 12022.7, 12022.8, or 12022.9 of this code, or Section
line 35 11356.5, 11370.2, or 11370.4 of the Health and Safety Code.
line 36 (g)
line 37 (i) The statewide bail schedule shall contain a list of the offenses
line 38 and the amounts of bail applicable for each offense. The Judicial
line 39 Council shall send a copy of the statewide bail schedule to the
line 40 presiding judge of each superior court, and the presiding judge
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line 1 shall provide a copy of the statewide bail schedule to the officer
line 2 in charge of the county jail, to the officer in charge of each city
line 3 jail within the county, and to each superior court judge and
line 4 commissioner in the county.
line 5 (h)
line 6 (j) (1) Upon posting bail, the defendant or arrested person shall
line 7 be discharged from custody as to the offense on which the bail is
line 8 posted.
line 9 (2) All money and surety bonds so deposited with an officer
line 10 authorized to receive bail shall be transmitted immediately to the
line 11 judge or clerk of the court by which the order was made or warrant
line 12 issued or bail schedule fixed. If, in the case of felonies, an
line 13 indictment is filed, the judge or clerk of the court shall transmit
line 14 all of the money and surety bonds to the clerk of the court.
line 15 (i)
line 16 (k) If a defendant or arrested person so released fails to appear
line 17 at the time and in the court so ordered upon their release from
line 18 custody, Sections 1305 and 1306 apply.
line 19 SEC. 2.
line 20 SEC. 3. Section 1269d is added to the Penal Code, to read:
line 21 1269d. Costs relating to conditions of release from custody
line 22 shall not be imposed on a person released on bail or their own
line 23 recognizance pursuant to this chapter.
line 24 SEC. 3.
line 25 SEC. 4. Section 1302.5 is added to the Penal Code, to read:
line 26 1302.5. (a) The court shall order a return of money or property
line 27 paid to a bail bond licensee by or on behalf of the arrestee to obtain
line 28 bail under any of the following circumstances:
line 29 (1) An action or proceeding against an arrestee who has been
line 30 admitted to bail is dismissed.
line 31 (2) No charges are filed against the arrestee within 60 days of
line 32 arrest.
line 33 (3) The arrestee has made all court appearances during the
line 34 pendency of the action or proceeding against the arrestee.
line 35 (b) The bail bond licensee shall be entitled to retain a surcharge
line 36 not to exceed 5 percent of the amount paid by the arrestee or on
line 37 behalf of the arrestee.
line 38 (c) Money or property shall be returned pursuant to subdivision
line 39 (a) within 30 days of the court order issued pursuant to subdivision
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SB 262 — 7 — B-7
line 1 (a) and shall be to the entity or person who paid the money or
line 2 property to the bail bond licensee to obtain bail.
line 3 (d) A court shall order a return of money or property pursuant
line 4 to this section only for a bail contract entered into on or after
line 5 January 1, 2022.
O
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