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Bay Area COVID-19 Emergency Rules Relating to Criminal Offenses
In response to the global COVID-19 pandemic, the California court enacted an Amendment to the California Rules of court on April 6, 2020. This amendment made several sweeping changes to Criminal cases including major changes to rules governing bail as well as those governing statutory periods to address various stages of a criminal case. These rules include a sunset provision which means they are in effect for a period of ninety days after the state of emergency is lifted.
Emergency Rule 4 – Bail Schedule
Prior to this rule, each county was tasked with creating a bail schedule. The rule set bail for almost all offenses (including probation violations) at zero. While the rule sets out some exceptions, it is clear that the statutory intent, that Risk of Flight was essentially no longer a consideration in calculating a bail amount. The exceptions to zero bail are:
A serious felony, as defined in Penal Code section 1192.7(c), or a violent felony, as defined in Penal Code section 667.5(c); 35
A felony violation of Penal Code section 69; – resisting an executive officer
A violation of Penal Code section 166(c)(1); – Willful and knowing violation of a protective order
A violation of Penal Code section 136.1 when punishment is imposed under section 136.1(c); Dissuading a witness
A violation of Penal Code section 262; Spousal Rape
A violation of Penal Code sections 243(e)(1) or 273.5; Domestic Violence
A violation of Penal Code section 273.6 if the detained person made threats to kill or harm, has engaged in violence against, or has gone to the residence 6 or workplace of, the protected party;
A violation of Penal Code section 422 where the offense is punished as a felony; Criminal Threats
A violation of Penal Code section 646.9; Stalking
A violation of an offense listed in Penal Code section 290(c); ANY REGISTERABLE OFFENSE
A violation of Vehicle Code sections 23152 or 23153; Driving under the influence
A felony violation of Penal Code section 463; Burglary in period of emergency
A violation of Penal Code section 29800. Felon in possession of firearm.
Bail for the above-listed offense will remain as set by the county schedule.
Rules governing appearances
The emergency rules also allow for relaxation of the general rule mandating personal appearance in court. Each county was tasked with using technology to accommodate teleconference appearance. Alameda has now employed the use of BlueJeans, a software similar to Zoom. It appears Santa Clara is struggling to identify a single source for appearance, instead requirement Skype calls for some appearances and court call (telephone service) for others.
Rules relating to Speedy Trial Rights
The new rules extend time allowed for detention prior to court appearance from 3 days to seven days. This means that the jail will release an in-custody defendant after 7 days if charges are not brought.
Under the new rules, Preliminary Hearings must be held within 30 days of plea as opposed to 10 days under the old rule.
Under the new Emergency Rules, the time period for Misdemeanor trials is 60 days and 90 days for felony trial.
As stated, these rules have been interpreted differently in each of the bay area counties we serve. Several Bail motion in San Jose appeared to be focused on whether the new rules constitute “new circumstances” to warrant a bail hearing for those in custody prior to the order. We should note that several high profile cases in San Jose involved recently released inmates committing new violent offenses. Alameda and San Francisco counties have allowed wide releases to in-custody clients, opting to incarcerate only those who pose a severe risk to the community. San Mateo county remains an outlier in implementing an oppositional stance to the new rules governing bail while enjoying the obvious benefits of speedy trial right extensions.