BILL NUMBER: SB 1744 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 1, 2004
INTRODUCED BY Senator Dunn
FEBRUARY 20, 2004
An act to amend Section 14020 of the Penal Code, relating
to witness protection. An act to amend Sections 1305,
1306, and 1308 of, and to repeal Section 1305.4 of, the Penal Code,
relating to bail services.
LEGISLATIVE COUNSEL'S DIGEST
SB 1744, as amended, Dunn. Witness protection
Bail services .
Existing law provides for a right to bail, as specified, and
provides for the posting of a bond in lieu of cash bail. Bail may be
forfeited in accordance with specified procedures that require
notice be provided to the surety or depositor of money left as bond
if the amount of the bail is in excess of $400. Existing law
provides that if the surety is an authorized corporate surety, and if
the bond plainly displays the mailing address of the corporate
surety and the bail agent, then any required notice of the forfeiture
shall be mailed to the surety at that address and to the bail agent.
This bill would specify that this notice shall be mailed to the
surety and the bail agent if the bond plainly displays the mailing
addresses of both the statutory home office of the corporate surety
and the bail agent.
Under existing law, when a defendant comes before the court or
otherwise is brought within the court's control within 180 days after
forfeiture or notice of forfeiture of bail, as specified, the court
is authorized to vacate the forfeiture. Existing law requires that a
motion relating to vacating forfeiture be filed within the 180-day
period and heard within 30 days of the expiration of that 180-day
period. The 30-day period may be extended for good cause. Existing
law also authorizes a surety or depositor of bail to file a motion,
based upon good cause, to extend the 180-day period of time, not
exceeding 180 days from its order.
This bill would eliminate provisions allowing extension of the
180-day period, and allowing a hearing on a motion to vacate
forfeiture after the conclusion of the 180-day period. It would also
delete language authorizing the court to require that the moving
party in these proceedings provide 10 days prior notice to the
applicable prosecuting agency as a condition to granting a motion.
Under existing law, a court that has declared a bond forfeited,
after the period provided in law for vacating the forfeiture has
passed, regardless of the amount of the bail, must enter a summary
judgment against each bondsman named in the bond in the amount for
which the bondsman is bound. Existing law provides that this
judgment shall be the amount of the bond plus costs, as specified.
Existing law provides for an appeal procedure from a summary judgment
against a surety or bondsman, and provides for an appeal bond to be
supplied by a surety other than one filing the appeal, as specified.
This bill would specify that the amount of the summary judgment is
due and payable within 30 days of the judgment. On appeal of the
summary judgment, this bill would require the full amount of the
summary judgment to be deposited with and placed in escrow by the
superior court, to be returned within 30 days of the reversal of that
judgment, with any interest retained by the court. It would give a
bondsman or surety 180 additional days to exonerate the bond if an
appeal is filed and the summary judgment is paid in full, as
specified. It would delete the language authorizing an appeal bond
in these circumstances.
Existing law precludes acceptance by a court or magistrate of any
person or corporation as surety on bail if any summary judgment
against that person or surety under these provisions is unpaid after
30 days, except upon appeal or as otherwise specified.
This bill would require the clerk of the court to file a notice of
a surety's failure to pay a summary judgment with the Department of
Insurance within 30 days following the entry of notice of summary
judgment.
Existing law establishes the Witness Protection Program.
This bill would change the name of the program established by that
provision to the California Witness Protection Program.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 14020 of the Penal Code is amended to
SECTION 1. The Legislature finds and declares all of the
following:
(a) A citizen's right to bail is fundamental and guaranteed by
both the Eighth Amendment to the United States Constitution and
Section 12 of Article I of the California Constitution. Consistent
with this right, Section 28 of Article I of the California
Constitution requires that the primary consideration in the setting
of bail is public safety.
(b) In recent years, there has been a startling rise in private
surety bail bonds being issued on high risk defendants without
adequate collateral to insure their appearance, and in private surety
bail bond defaults, resulting in a fiscal loss to cities and
counties. In light of these circumstances, it is apparent that
current procedures that allow an appeal of a summary judgment
following the forfeiture of a private surety bail bond to proceed
upon the posting of a separate appeal bond does not adequately
protect public safety and the fiscal well-being of the state.
(c) It is in the interest of assuring that the right to bail is
not compromised and that public safety is protected that any
forfeited bond be paid in its entirety before the commencement of an
appeal by a private surety of an order of summary judgment on the
forfeiture. The payment of the full amount of the private surety
bail bond before the commencement an appeal on a judgment of a bail
forfeiture order will return stability to the bail system, and
protect and insure public safety and the fiscal well-being of the
counties and cities in this state.
SEC. 2. Section 1305 of the Penal Code is amended to read:
1305. (a) A court shall in open court declare forfeited the
undertaking of bail or the money or property deposited as bail if,
without sufficient excuse, a defendant fails to appear for any of the
following:
(1) Arraignment.
(2) Trial.
(3) Judgment.
(4) Any other occasion prior to the pronouncement of judgment if
the defendant's presence in court is lawfully required.
(5) To surrender himself or herself in execution of the judgment
after appeal.
However, the court shall not have jurisdiction to declare a
forfeiture and the bail shall be released of all obligations under
the bond if the case is dismissed or if no complaint is filed within
15 days from the date of arraignment.
(b) If the amount of the bond or money or property deposited
exceeds four hundred dollars ($400), the clerk of the court shall,
within 30 days of the forfeiture, mail notice of the forfeiture to
the surety or the depositor of money posted instead of bail. At the
same time, the court shall mail a copy of the forfeiture notice to
the bail agent whose name appears on the bond. The clerk shall also
execute a certificate of mailing of the forfeiture notice and shall
place the certificate in the court's file. If the notice of
forfeiture is required to be mailed pursuant to this section, the
180-day period provided for in this section shall be extended by a
period of five days to allow for the mailing.
If the surety is an authorized corporate surety, and if the bond
plainly displays the mailing address addresses
of both the statutory home office of the
corporate surety and the bail agent, then notice of the forfeiture
shall be mailed to the surety at that address and to the bail agent,
and mailing alone to the surety or the bail agent shall not
constitute compliance with this section.
The surety or depositor shall be released of all obligations under
the bond if any of the following conditions apply:
(1) The clerk fails to mail the notice of forfeiture in accordance
with this section within 30 days after the entry of the forfeiture.
(2) The clerk fails to mail the notice of forfeiture to the surety
at the address printed on the bond.
(3) The clerk fails to mail a copy of the notice of forfeiture to
the bail agent at the address shown on the bond.
(c) (1) If the defendant appears either voluntarily or in custody
after surrender or arrest in court within 180 days of the date of
forfeiture or within 180 days of the date of mailing of the notice if
the notice is required under subdivision (b), the court shall, on
its own motion at the time the defendant first appears in court on
the case in which the forfeiture was entered, direct the order of
forfeiture to be vacated and the bond exonerated. If the court fails
to so act on its own motion, then the surety's or depositor's
obligations under the bond shall be immediately vacated and the bond
exonerated. An order vacating the forfeiture and exonerating the
bond may be made on terms that are just and do not exceed the terms
imposed in similar situations with respect to other forms of pretrial
release.
(2) If, within the county where the case is located, the defendant
is surrendered to custody by the bail or is arrested in the
underlying case within the 180-day period, and is subsequently
released from custody prior to an appearance in court, the court
shall, on its own motion, direct the order of forfeiture to be
vacated and the bond exonerated. If the court fails to so act on its
own motion, then the surety's or depositor's obligations under the
bond shall be immediately vacated and the bond exonerated. An order
vacating the forfeiture and exonerating the bond may be made on terms
that are just and do not exceed the terms imposed in similar
situations with respect to other forms of pretrial release.
(3) If, outside the county where the case is located, the
defendant is surrendered to custody by the bail or is arrested in the
underlying case within the 180-day period, the court shall vacate
the forfeiture and exonerate the bail.
(4) In lieu of exonerating the bond, the court may order the bail
reinstated and the defendant released on the same bond if both of the
following conditions are met:
(A) The bail is given prior notice of the reinstatement.
(B) The bail has not surrendered the defendant.
(d) In the case of a permanent disability, the court shall direct
the order of forfeiture to be vacated and the bail or money or
property deposited as bail exonerated if, within 180 days of the date
of forfeiture or within 180 days of the date of mailing of the
notice if notice is required under subdivision (b), it is made
apparent to the satisfaction of the court that both of the following
conditions are met:
(1) The defendant is deceased or otherwise permanently unable to
appear in the court due to illness, insanity, or detention by
military or civil authorities.
(2) The absence of the defendant is without the connivance of the
bail.
(e) In the case of a temporary disability, the court shall order
the tolling of the 180-day period provided in this section during the
period of temporary disability, provided that it appears to the
satisfaction of the court that the following conditions are met:
(1) The defendant is temporarily disabled by reason of illness,
insanity, or detention by military or civil authorities.
(2) Based upon the temporary disability, the defendant is unable
to appear in court during the remainder of the 180-day period.
(3) The absence of the defendant is without the connivance of the
bail.
The period of the tolling shall be extended for a reasonable
period of time, at the discretion of the court, after the cessation
of the disability to allow for the return of the defendant to the
jurisdiction of the court.
(f) In all cases where a defendant is in custody beyond the
jurisdiction of the court that ordered the bail forfeited, and the
prosecuting agency elects not to seek extradition after being
informed of the location of the defendant, the court shall vacate the
forfeiture and exonerate the bond on terms that are just and do not
exceed the terms imposed in similar situations with respect to other
forms of pretrial release.
(g) In all cases of forfeiture where a defendant is not in custody
and is beyond the jurisdiction of the state, is temporarily
detained, by the bail agent, in the presence of a local law
enforcement officer of the jurisdiction in which the defendant is
located, and is positively identified by that law enforcement officer
as the wanted defendant in an affidavit signed under penalty of
perjury, and the prosecuting agency elects not to seek extradition
after being informed of the location of the defendant, the court
shall vacate the forfeiture and exonerate the bond on terms that are
just and do not exceed the terms imposed in similar situations with
respect to other forms of pretrial release.
(h) As used in this section, "arrest" includes a hold placed on
the defendant in the underlying case while he or she is in custody on
other charges.
(i) A motion filed in a timely manner within the 180-day period
may be heard within 30 days of the expiration of the 180-day period.
The court may extend the 30-day period upon a showing of good cause.
The motion may be made by the surety insurer, the bail agent, the
surety, or the depositor of money or property, any of whom may appear
in person or through an attorney. The court, in its discretion, may
require that the moving party provide 10 days prior notice to the
applicable prosecuting agency, as a condition precedent to granting
the motion.
SEC. 3. Section 1305.4 of the Penal Code is repealed.
1305.4. Notwithstanding Section 1305, the surety insurer, the
bail agent, the surety, or the depositor may file a motion, based
upon good cause, for an order extending the 180-day period provided
in that section. The motion shall include a declaration or affidavit
that states the reasons showing good cause to extend that period.
The court, upon a hearing and a showing of good cause, may order the
period extended to a time not exceeding 180 days from its order. A
motion may be filed and calendared as provided in subdivision (i) of
Section 1305.
SEC. 4. Section 1306 of the Penal Code is amended to read:
1306. (a) When any bond is forfeited and the period of time
specified in Section 1305 has elapsed without the forfeiture having
been set aside, the court which has declared the forfeiture,
regardless of the amount of the bail, shall enter a summary judgment
against each bondsman named in the bond in the amount for which the
bondsman is bound. The judgment shall be the amount of the bond plus
costs, and notwithstanding any other law, no penalty assessments
shall be levied or added to the judgment. The full amount of
the bond plus costs is due and payable within 30 days of the entry of
the summary judgment. If an appeal is taken by the surety or
bondsman, the payment of the bond amount shall be placed into an
escrow account maintained by the superior court. If the summary
judgment has been entered, an appeal taken, and the bond amount paid
in full, the bondsman or surety shall then have an additional 180
days to exonerate the bond for any reason specified in Section 1305.
If the summary judgment is reversed or the bail exonerated for any
reason specified in Section 1305, the bond amount shall be returned
to the surety within 30 days of a final order reversing the summary
judgment or exonerating the bail. Any interest accrued by the bond
amount while in the escrow account shall belong to the superior
court.
(b) If a court grants relief from bail forfeiture, it shall impose
a monetary payment as a condition of relief to compensate the people
for the costs of returning a defendant to custody pursuant to
Section 1305, except for cases where the court determines that in the
best interest of justice no costs should be imposed. The amount
imposed shall reflect the actual costs of returning the defendant to
custody. Failure to act within the required time to make the payment
imposed pursuant to this subdivision shall not be the basis for a
summary judgment against any or all of the underlying amount of the
bail. A summary judgment entered for failure to make the payment
imposed under this subdivision is subject to the provisions of
Section 1308, and shall apply only to the amount of the costs owing
at the time the summary judgment is entered, plus administrative
costs and interests.
(c) If, because of the failure of any court to promptly perform
the duties enjoined upon it pursuant to this section, summary
judgment is not entered within 90 days after the date upon which it
may first be entered, the right to do so expires and the bail is
exonerated.
(d) A dismissal of the complaint, indictment, or information after
the default of the defendant shall not release or affect the
obligation of the bail bond or undertaking.
(e) The district attorney or county counsel shall:
(1) Demand immediate payment of the judgment within 30 days after
the summary judgment becomes final.
(2) If the judgment remains unpaid for a period of 20 days after
demand has been made, shall forthwith enforce the judgment in the
manner provided for enforcement of money judgments generally.
If the judgment is appealed by the surety or bondsman, the
undertaking required to be given in these cases shall be provided by
a surety other than the one filing the appeal. The undertaking shall
comply with the enforcement requirements of Section 917.1 of the
Code of Civil Procedure.
(f) The right to enforce a summary judgment entered against a
bondsman pursuant to this section shall expire two years after the
entry of the judgment.
SEC. 5. Section 1308 of the Penal Code is amended to read:
1308. (a) No court or magistrate shall accept any person or
corporation as surety on bail if any summary judgment against that
person or corporation entered pursuant to Section 1306 remains unpaid
after the expiration of 30 days after service of the notice of the
entry of the summary judgment, provided that, if during the 30 days
an action or proceeding available at law is initiated to determine
the validity of the order of forfeiture or summary judgment rendered
on it, this section shall be rendered inoperative until that action
or proceeding has finally been determined , provided that,
if an appeal is taken, an appeal bond is posted in compliance with
Section 917.1 of the Code of Civil Procedure . The
clerk of the court shall file a notice of a surety's failure to pay a
summary judgment with the Department of Insurance within 30 days
following the entry of notice of summary judgment.
(b) The clerk of the court in which the judgment is rendered shall
serve notice of the entry of judgment upon the judgment debtor
within five days after the date of the entry of the summary judgment.
read:
14020. There is hereby established the California Witness
Protection Program.