SR 3%, LOS ANGELES COUNTY DISTRICT ATTORNEY'S OFFICE + SACRAMENTO LEGISLATIVE OFFICE Pg IACKIE LACEY «District Attornay DANIEL FELIZZATTO + Legislative Advocate JOHN K. SPILLANE « Chief Deputy District Attorney e % 4s * oF 108 April 14, 2017 ‘The Honorable Robert Hertaberg yrnia State Senate Sint Capitol, Room 4038 a Sacramento, CA 95814 SENATE BILL 10 (HERTZBERG) OPPOSE Senate Appropriations Committee Dear Senator Hertzberg: The Los Angeles County District Attomey’s Office regrets to inform you that our office respectfully opposes Senate Bill 10. SB 10 would create a presumption of own-recognizance release (O/R) and significantly changes monetary bail, Monetary bait will still be allowed when conditions of an O/R release cannot assure a defendant's, return to court, or where a defendant poses a risk to public safety or to a victim, When monetary bail is imposed the court must set the amount based upon the defendant's ability to pay. Our office believes that changes to California’s current bail/pre-trial release system should be made and are willing to work with all interested parties in crafting well thought out changes that will assist in achieving the goal of eliminating the need for unnecessary pre-trial detention, while at the same time ensuring the defendant’s appearance at their court hearings and protecting public safety. While our office believes SB 10 is well-intentioned, the proposed changes are so dramatic itis difficult to determine what the real world impacts these changes will have on California’s criminal justice system, Devising a bail scheme such as the one proposed by this bill raises the following concerns: ‘© How does a bail amount which is based upon a defendant's ability to pay, assure the defendant will return to court? If the amount is only what the defendant can afford there is no real consequence if the defendant fails to appear in court. «The proposed bail scheme does not adequately assess the risk to public safety posed by defendants accused of things such as use of a weapon, serious injuries, multiple victims, and a defendant's prior criminal history because the bail schedule is eliminate and the these factors are not adequately considered in the proposed guidelines for the risk assessment tool. ‘© The proposed legislation negleets to consider the considerable risk of continuing criminal conduct by persons arrested but not detained for fraud-related crimes, Under the proposed statutes, any person arrested for felony fraud offenses will be released, without consideration of the risk of 1100 K Strost, Suite 404 Sacramento, CA 95814 (916) 442-0668, Fax: (916) 444.8729April 14, 2017 Page ‘Iwo continued criminal conduct, continued generation of criminally obtained revenue, and continued victimization of the publi. ‘The proposed legislation removes any deterrent impact of fraud prosecution by eliminating any risk of detention or pretrial incarceration. In addition, adoption of the “least restrictive level necessary” standard” fails to take into consideration the often sizeable resources available to fraud defendants, which under the current system would be reviewed pursuant to source of bail motions. The proposed legislation renders impotent the provisions of 1275.1 because the bailable amount will no longer refleet the enormity of the chargeable criminal fraud, the number of impacted victims, the pervasiveness of the scheme, or the potential for the criminal conduct to continue. Bernie Madoff, under these statutes, would be immediately released from county jail, despite the enormous damage his criminal conduct inflicted. Robert Rizzo and the entire Bell City ‘Council would be immediately released, despite the enormous damage their criminal conduct inflicted. Currently, we have defendants who committed more than $174 milion in healthcare fraud, luring people into their rehab business by lying about being a residential treatment facility when they were not, and by stealing people’s identities to obtain additional insurance policies which paid for services the purported clients did not receive, then using the proceeds from the fraudulent billing to pay for their operation and their big salaries. ‘These people would have been released at the time of their arrest, despite the enormous injury they inflicted through their de Fraud is incredibly difficult to detect. Unlike violent crimes, that leave victims physically ‘wounded, fraud vietims often do not know they've been victimized until long after the crime has been completed. Detection of fraud committed by released detainees will necessarily require commitment of additional scarce resources to ensure that the released detainee does not continue to offend. The opportunity to monitor the released detainee’s conduct is minimal, because 20 post release conditions can be imposed that cost the released detainee any money. ‘The amendment to Penal Code section 825 states that a defendant will be arraigned on a Friday when arvested on a Wednesday, unless the Friday is a court holiday. In that case, the defendant shall be brought to court on a Thursday. What happens when a defendant is arrested on the ‘Wednesday before Thanksgiving, and Thursday and Friday are court holidays? What day shall the defendant appear before a magistrate? When a Friday is a court holiday, a Wednesday arrestee must be charged by Thursday. In the real world when someone is arrested on Wednesday at 11:00 p.m., SB 10 expects that the police will complete the arrest and booking reports, present them to the DA on Thursday, and expect the DA to make a careful charging decision in time for afternoon court arraignment, This is virtually spossible in the real world. ‘The proposed amendment to Penal Code section 1269b(d) states that the risk assessment must be done within an unspecified period after arrest. Given the likelihood that the period of time to ‘assess the defendant's risk to public safety will be relatively short, it seems impracticable that a real risk assessment will be conducted, especially considering that subsection (g) also makes it ‘mandatory that the defendant be released even if the risk assessment is not available, ic, "the fact that the court bas not received the report required under this section shall not preclude the release.” Release of a defendant without a risk assessment report poses serious public safety concerns,April 14, 2017 Page Three ‘+ The timing of the risk assessment report and the defendant’s release may be in conflict with provisions of Marsy’s Law which states that victims are given the right to be included in all legal proceedings, including the release from custody of their offenders, after arrest but before ‘+ The proposed amendment to Penal Code section 1269b provides that for misdemeanor arrests, unless otherwise specified, the arrestee shall be released without conditions after signing a release agreement. Our office is concerned that list of specified misdemeanors does not include repeat violations of California’s DUI statutes (Vehiicle Code sections 23152 and 23153), The bill also provides that all non-violent felons shall be released without appearing before a judge for a court hearing, We are concerned that the list of offenses that require a hearing should include erimes such as stalking (Penal Code section 646.9), violating a protective order or restraining order (Penal Code section 273.6), violation of a court order, criminal threats (Penal Code section 422), solicitation of a serious crime (Penal Code section 6534), and conspiracy to commit a violent crime (Penal Code section 182). * The proposed amendment to Penal Code section 1275(a)(1) state factors that judges shall consider in making a pretrial release or detention decision. One of the factors is the defendant's minal record, however this is not consistent with Penal Code section 1318.3(b)(5), which states that that the risk assessment tool (upon witich the judge shall rely in making the pre-trial detention decision), shall not give undue weight to factor such as a defendant's criminal history. Criminal history should be an aggravating factor in determining risk to public safety, and is an important factor in determining pre-trial release. ‘+ The proposed amendment to Penal Code section 1275(a)(2) lists factors a judge shall consider ‘when determining seriousness of the offense, but does not include such factors as vulnerability of the victim, multiple victims, prior DUIs, or substantial financial loss in cases of major fraud or thefts. * The proposed amendment to Penal Code section 1275(b) requires the judge to make a pre-trial release or detention decision without unnecessary delay or within 48 hours. This will impact victim's rights under Marsy's Law. ‘+ The proposed amend to Penal Code section 1275a(b)(1) states if the judge determines that pre~ il release will not assure the defendants return to court or the safety of the victim or the public, the judge can impose the least restrictive non-monetary conditions which will reasonably assure the defendant's appearance and victim and public safety. It is counter-intuitive that "least restrictive" will still protect victims and the public. Instead of “least restrictive, the language should state the “most effective” assure a defendant’s return to court and the safety of the victim and the public are safe. * The amendment to Penal Code section 1275a(b)(3) specifies that a detainee shall not be required to pay for any nonmonetary eonditions of release. This would mean that, if a court were to order a fraud defendant to relinquish control of his fraud-producing company, the order would be rendered unenforceable because the defendant could successfully claim that the order is a “non- ‘monetary condition” that will cost money. ‘The costs for these services (GPS monitoring, SCRAM units, drug and/or alcohol sereening for examples) will be quite large and will have significant fiscal impacts on whoever is responsible for these costs (either the State or county).