BILL NUMBER: AB 1824 AMENDED
BILL TEXT
AMENDED IN SENATE JUNE 26, 2012
AMENDED IN ASSEMBLY MAY 2, 2012
AMENDED IN ASSEMBLY MARCH 29, 2012
INTRODUCED BY Assembly Member Hagman
FEBRUARY 21, 2012
An act to amend Section 1305 of add
Section 1305. 6 to the Penal Code, relating to bail.
LEGISLATIVE COUNSEL'S DIGEST
AB 1824, as amended, Hagman. Bail.
Existing law specifies the procedures for the forfeiture and
exoneration of a bail bond, including requiring a court to direct the
order of forfeiture to be vacated and the bond exonerated if the
defendant appears in court within 180 days of the date of forfeiture
or within 180 days of the date of mailing of a specified notice, if
required. Under existing law, 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 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 the penalty of perjury, and the prosecuting agency elects not
to seek extradition after being informed of the defendant's location,
the court is required to vacate the forfeiture and exonerate the
bond. Existing law requires a court to vacate the
forfeiture and exonerate the bond if the defendant is arrested on the
underlying case or surrendered by the bail outside the county where
the case is located.
This bill would require exoneration of the bond if the prosecuting
agency elects not to seek extradition when the defendant is
temporarily detained by the bail agent in a location beyond the
jurisdiction of the state but in the United States or a foreign state
that has a treaty of extradition with the United States. The bill
would require specified proof to be presented when the court is
vacating a bond in these instances, including the local law
enforcement officer's information and other information showing proof
of positive identification of the defendant. The bill would also
allow for an extension of the 180-day period described above, for an
additional period up to 180 days, if the prosecuting agency does not
make a decision within the original 180-day period and would
authorize the court to require that the bail agent or surety pay the
reasonable costs of extradition, in an amount not to exceed the bond,
as a condition of granting the extension. The bill would require the
moving party to give the prosecuting agency written notice at least
10 court days before a hearing on specified motions related to a
bond, including motions to exonerate the bond based on a decision by
the prosecuting agency not to extradite.
This bill would authorize a court, in its discretion, to vacate
the forfeiture and exonerate the bond if a person appears in court
after the 180-day period ends if the person was arrested on the same
case during the 180-day period and has been in continuous custody
from the time of arrest until his or her appearance in court. The
bill would authorize, upon showing of good cause and within 20 days
from the mailing of notice of entry of judgment, the filing of a
motion to vacate the forfeiture and exonerate the bond where the
defendant is secured outside the county where the case is filed, as
provided above. The bill would require written notice to the
prosecuting agency at least 10 court days before a hearing regarding
either of these motions.
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 1305.6 is added to the
Penal Code , to read:
1305.6. (a) If a person appears in court after arrest after the
end of the 180-day period specified in Section 1305, the court may,
in its discretion, vacate the forfeiture and exonerate the bond if
both of the following conditions are met:
(1) The person was arrested on the same case within the 180-day
period.
(2) The person has been in continuous custody from the time of his
or her arrest until the court appearance on that case.
(b) Upon a showing of good cause, a motion brought pursuant to
paragraph (3) of subdivision (c) of Section 1305 may be filed within
20 days from the mailing of the notice of entry of judgment under
Section 1306.
(c) In addition to any other notice required by law, the moving
party shall give the applicable prosecuting agency written notice of
the motion to vacate the forfeiture and exonerate the bond under this
section at least 10 court days before the hearing.
SECTION 1. 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) (1) 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.
(2) 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 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.
(3) The surety or depositor shall be released of all obligations
under the bond if any of the following conditions apply:
(A) The clerk fails to mail the notice of forfeiture in accordance
with this section within 30 days after the entry of the forfeiture.
(B) The clerk fails to mail the notice of forfeiture to the surety
at the address printed on the bond.
(C) 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 voluntarily or is 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) (1) In all cases of forfeiture where a defendant is not in
custody and is beyond the jurisdiction of the state, but in the
United States or in a foreign state that has a treaty of extradition
with the United States, 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. If the defendant is in a foreign state, the
affidavit of the local law enforcement officer shall comply with
Section 1454 of the Evidence Code, or, if the affidavit is a copy,
Section 1530 of the Evidence Code.
(2) In any motion filed under this subdivision, proof shall be
presented showing the local law enforcement officer's full name,
title, agency name, contact telephone number, and contact address.
(3) In any motion filed under this subdivision, proof of positive
identification shall include proof of the defendant's permanent
residency in the state or country in which the defendant is detained
by the bail agent, a legible copy of a government identification,
including, but not limited to, a driver's license or passport issued
by an authorized public agency of the state or government of the
country in which the defendant is detained by the bail agent, with
the number of the identification written on the affidavit, a current
photograph, and a complete and clear set of fingerprints.
(4) If the prosecuting agency does not make an extradition
decision within the 180-day period provided in this section, the bail
agency or surety may make a motion to extend the 180-day period for
an additional period, not to exceed an additional 180 days. The
180-day extension may be renewed on the same basis as the original
order. The court may require that the bail agent or surety pay the
reasonable costs of extradition, in an amount not to exceed the value
of the bond, as a condition of granting the extension.
(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.
(j) In addition to any other notice required by law, the moving
party shall give the applicable prosecuting agency a written notice
at least 10 court days before a hearing pursuant to subdivisions (f),
(g), and (i), and Section 1305.4 as a condition precedent to
granting the motion.