BILL ANALYSIS Ó
AB 1824
Page 1
Date of Hearing: April 24, 2012
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1824 (Hagman) - As Amended: March 29, 2012
As Proposed to be Amended in Committee
SUMMARY : Allows a bail agent or surety to make a motion to
extend the 180-day period to vacate a bond forfeiture if certain
circumstances have been met. Specifically, this bill:
1)Requires the court to vacate forfeiture and exonerate bond in
all cases of forfeiture where a defendant is not in custody
and is beyond the jurisdiction of California 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.
2)Requires an affidavit provided by a law enforcement officer
from a foreign state positively identifying the defendant to
be authenticated in the manner described in existing
provisions of law related to foreign official signatures and,
if a copy, existing provisions of law related to copies of
writing in official custody.
3)Provides that in any motion filed for vacation of forfeiture
pursuant to this section, proof shall be presented showing the
local law enforcement officer's full name, title, agency name,
contact telephone number, and contact address.
4)Provides that in any motion filed for vacation of forfeiture
pursuant to this section, proof of positive identification
shall include proof of the defendant's permanent residency in
the county in which the defendant is detained by the bail
agent, a legible copy of a government identification such as a
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driver's license or passport issued by an authorized public
agency of the 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.
5)States if a prosecuting agency does not make an extradition
decision within the 180-day period, the bail agency or surety
may make a motion to extend the 180-day period for an
additional period not to exceed 180 days. A 180-day extension
may be renewed on the same basis as the original order.
6)Authorizes the court to 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.
7)Requires, in addition to any other notice required by law, the
moving party of a motion to vacate a bond forfeiture or to
extend the 180-day period, to give the applicable prosecuting
agency a written notice at least 10 court days before a
hearing. This notice requirement is a condition precedent to
granting the motion.
EXISTING LAW :
1)Provides that, except as specified, a person accused of a
crime is entitled to be released on bail and that the court
may not set excessive bail. Further provides that in fixing
the amount of bail, the court shall take into consideration
the seriousness of the charged offense, prior criminal record,
and probability of appearing at the trial or hearing.
(Article 1, Section 12 of the California Constitution.)
2)States that if a defendant has appeared before a judge of the
court on the charge contained in the complaint, indictment, or
information, the bail shall be in the amount fixed by the
judge at the time of the appearance. If that appearance has
not been made, the bail shall be in the amount fixed in the
warrant of arrest or, if no warrant of arrest has been issued,
the amount of bail shall be pursuant to the uniform countywide
schedule of bail for the county in which the defendant is
required to appear, previously fixed and approved by a uniform
countywide schedule of bail. ĘPenal Code Section 1269b(b).]
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3)Requires a court in open court to 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 ĘPenal Code Section 1305(a)]:
a) Arraignment;
b) Trial;
c) Judgment;
d) Any other occasion prior to the pronouncement of
judgment if the defendant's presence in court is lawfully
required; and
e) 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.
4)States if the amount of the bond or money or property
deposited exceeds $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. ĘPenal Code Section 1305(b).]
5)Provides that 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
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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. ĘPenal Code
Section 1305(c)(1).]
6)Provides that 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.
ĘPenal Code Section 1305(c)(2).]
7)States 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. ĘPenal
Code Section 1305(c)(3).]
8)Authorizes a court, in lieu of exonerating the bond, to order
the bail reinstated and the defendant released on the same
bond if both of the following conditions are met ĘPenal Code
Section 1305(c)(4).]:
a) The bail is given prior notice of the reinstatement; or
b) The bail has not surrendered the defendant.
9)Provides that 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. ĘPenal Code Section 1305(f).]
10)Provides that in all cases of forfeiture where a defendant is
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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. ĘPenal Code
Section 1305(g).]
11)States that a motion may be filed by the surety insurer, the
bail agent, the surety, or the depositor of money or property,
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 court, in its discretion, may require the moving
party to provide 10 days prior notice to the applicable
prosecuting agency, as a condition precedent to granting the
motion. ĘPenal Code Section 1305(i).]
12)States that when any bond is forfeited and the period of time
specified has elapsed without the forfeiture having been set
aside, the court which has declared the forfeiture, regardless
of the amount of bail, shall enter 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. ĘPenal
Code Section 1306(a).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "This bill is
necessary to close unforeseen holes in current statutes, to
bring the codes back in line with their original spirit, and
to provide a fair shake to those in the bail bonding
industry."
2)Background on Bail : Existing law provides a process whereby
the court may set a bail amount for a criminal defendant.
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(Penal Code Section 1269b.) Additionally, Section 12 of
Article 1 of the California Constitution provides, with
limited exceptions, that a criminal defendant has a right to
bail and what conditions shall be taken into consideration in
setting bail. A defendant may post bail by depositing cash or
an equivalent form of currency, provide a security in real
property, or undertake bail using a bail bond. The bail bond
is the most likely means by which a person posts bail and is
essentially a private-party contract that provides the court
with a guarantee that the defendant will appear for a hearing
or trial. A defendant would pay a licensed bail agent a
percentage of the total amount of bail ordered as a
non-refundable fee - often an amount in the range of 10%. The
bail agent will contract with a surety company to issue a bail
bond - essentially an insurance policy. The bond is issued
providing that if the defendant fails to appear, the county
will receive the full amount of bail set by the court. The
bond is provided to the court and, if accepted, the defendant
is released. As designed, the bail system often allows the
court to rely on the private sector to ensure appearances and
provide a means for the county to be made whole in the event
that a person fails to appear.
3)Process of Bail Forfeiture : When a defendant fails to appear
in court after he or she has posted bail, the court will
generally issue a bench warrant and forfeit the defendant's
bail, meaning that the amount the defendant paid to the bail
bonds person will not be returned and the bail agent is
required to post the remainder of the bail. Existing law
states that if the defendant re-appears in court within 180
days, the bail forfeiture may be vacated and bail may be
reinstated, provided that the bail agent has been given notice
of the reinstatement and the bail agent did not surrender the
defendant. ĘPenal Code Section 1305(c)(4).] Under certain
circumstances, the 180-day time limit may be tolled if the
defendant is unable to return to court because of temporary
illness, insanity or detention by military or civil
authorities. ĘPenal Code Section 1305(e)(1).] Existing law
also states that if the amount of money deposited exceeds
$400, the clerk of the court shall, within 30 days of the
forfeiture, mail notice of the forfeiture to the bail or
surety company. If such notice must be mailed, the 180-day
time period must be tolled for an additional five days.
Hence, assuming the bail amount is more than $400, a bail
agency has 185 days to return the defendant to court. ĘPenal
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Code Section 1305(b).] Also, if the defendant is returned to
court within 180 days from the forfeiture of the bail, the
court must exonerate the bail.
4)Argument in Support : According to the Golden State Bail
Agents Association , "We support AB 1824 (Hagman) because it
will help protect public safety and insure criminals are held
accountable for their crimes by creating a better defined
process for the extradition of fugitives released on bail that
have fled California. Crime victims should not be deprived of
justice merely because their perpetrators have left the
state."
5)Related Legislation :
a) AB 2029 (Ammiano) provides for the regulation of bail
fugitive recovery persons. AB 2029 is currently pending
hearing by the Committee on Appropriations.
b) AB 1913 (Skinner) allows a person on post-release
supervision who has a revocation petition filed against him
or her to make an application for bail pending the
revocation hearing. AB 1913 is currently pending hearing
by the Committee on Appropriations.
c) AB 1529 (Dickinson) establishes a structure for the
jurisdiction over the appeal of the forfeiture of a bail
bond. AB 1529 is currently pending hearing by this
Committee.
d) SB 989 (Vargas) requires the court to exonerate the bond
if the prosecuting agency or the United States Attorney
fails to make an extradition decision within a reasonable
period of time after receiving the affidavit would also
require the court to exonerate the bond where it is shown
to the satisfaction of the court that the defendant has
been deported to a foreign country. SB 989 is currently
pending hearing by the Senate Committee on Public Safety.
6)Previous Legislation :
a) AB 1093 (Runner), of the 2007-08 Legislative Session,
would have tolled the 180-day period before which bail is
forfeited until such time as the defendant is returned to
the jurisdiction that issued the forfeiture if a he or she
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is in custody beyond the jurisdiction of the court and the
prosecuting agency elects to seek extradition or if the
prosecution terminates the extradition order and written
notice is provided to the surety and bail agent. AB 1093
failed passage in this Committee.
b) AB 2166 (Tran), of the 2007-08 Legislative Session,
would have clarified the appellate procedure for appeals
from orders of the superior courts on motions to vacate
bail forfeitures. AB 2166 failed passage in this
Committee.
c) AB 1133 (Dymally), of the 2007-08 Legislative Session,
would have required the court to make specified findings in
order to toll the 180-day time limit to return a defendant
after the bail has been forfeited in order to receive a
bail reinstatement if the extradition process is in effect
and requires the bail or surety to pay the prosecuting
agency's actual costs to extradite the defendant. AB 1133
was vetoed.
d) AB 2854 (Dymally), of the 2005-06 Legislative Session,
would have authorized a bail or surety to file a motion to
toll the 180-day time limit to return a defendant after
bail is forfeited during the time the prosecuting attorney
is seeking extradition. AB 2854 was vetoed.
REGISTERED SUPPORT / OPPOSITION :
Support
California Bail Agents Association
Congress of Racial Equality of California
Golden State Bail Agents Association
Opposition
None
Analysis Prepared by : Stella Choe / PUB. S. / (916) 319-3744