BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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AB 1824 (Hagman) 4
As Amended June 26, 2012
Hearing date: July 3, 2012
Penal Code
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BAIL FUGITIVES - EXTRADITION
EXONERATION OF BAIL
HISTORY
Source: Author
Prior Legislation: AB 1133 (Dymally) - 2008, vetoed
AB 2854 (Dymally) - 2006, vetoed
Support: American Bail Coalition; Golden State Bail Agents
Association; Al Graf Bail Bonds
Opposition:None known
Assembly Floor Vote: No longer relevant
KEY ISSUE
WHERE A FUGITIVE DEFENDANT WAS ARRESTED IN THE COUNTY OF PROSECUTION
DURING THE 180-DAY PERIOD DURING WHICH BAIL FORFEITURE IS STAYED,
BUT THE DEFENDANT DID NOT APPEAR IN COURT UNTIL AFTER THAT TIME,
SHOULD THE BAIL AGENT BE ALLOWED TO MOVE THE COURT FOR RELIEF FROM
FORFEITURE?
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PURPOSE
The purposes of this bill are to 1) provide that where a bail
fugitive has been taken into custody in the county of
prosecution within the 180-day period during which bail
forfeiture is stayed, but he or she has not appeared court until
that period has run, the bail agent may move for relief from
forfeiture, as specified; 2) grant a bail agent 20 days after
notice of summary judgment is mailed to file a motion for
relief from forfeiture in a cases where the defendant was
arrested within the 180-day period outside the county of
prosecution; and 3) require specified notice be given to the
prosecutor of a motion for relief from forfeiture brought under
this bill.
Existing law provides for the licensing of bail agents by the
Insurance Commissioner. (Ins. Code § 1800, et seq.)
Existing law provides that if an on-bail defendant fails to
appear for any scheduled court appearance, bail is forfeited, as
specified, unless the defendant is returned to court within 180
days. (Pen. Code § 1305, subds. (a)-(b).)
Existing law requires the court to exonerate bail where a
defendant surrenders or is recaptured within 180 days of
forfeiture. (Pen. Code § 1305, subd. (c).)
Existing law provides that a motion to extend the 180-day period
for returning a defendant to court before execution of bail
forfeiture may be heard within 30 days of the expiration of the
180-day period. (Pen. Code § 1305, subd. (i).)
Existing law provides that a surety insurer, bail agent, surety
or depositor may file a motion during the 180-day period for an
order extending the period. (Pen. Code § 1305.4.)
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Existing law provides that in the case of a temporary disability
of the defendant to appear within the 180-day forfeiture
exoneration period, the court shall order the tolling
(suspension of the running) of the 180-day period for a
reasonable time under the following circumstances: 1) The
defendant is either temporarily disabled by illness or insanity,
or the defendant has been detained by military or civil
authorities. 2) The defendant is unable to appear in court. 3)
The defendant's absence is without the "connivance" of the bail
agent or insurer. (Pen. Code § 1305, subd. (e).)
Existing law provides that where a fugitive is in custody beyond
the jurisdiction of the court that ordered forfeiture of the
bond, the forfeiture shall be vacated and the bond exonerated
where the prosecuting agency, after being informed of the
location of the fugitive, elects not to seek extradition. (Pen.
Code § 1305, subd. (f).)
Existing law provides that where a bail agent temporarily
detains a fugitive in the presence of a law enforcement officer
in a foreign jurisdiction, and the law enforcement officer
confirms the identity of the fugitive in an affidavit, bond
shall be exonerated if the prosecuting agency elects not to
pursue extradition. (Pen. Code § 1305, subd. (g).)
This bill provides that if a defendant appears in court after
the 180-day period in which bail forfeiture is stayed, the court
may vacate the forfeiture and exonerate the bond if both of the
following conditions are met:
The defendant was arrested in the same case for which
bail was granted within the 180 day period.
The defendant was in continuous custody until returning
to court.
This bill provides that in a motion for relief of forfeiture
where a fugitive is arrested outside the county of prosecution
within the 180-day period, the following shall apply:
Good cause must be shown.
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The motion for relief may be filed with 20 days of the
notice of entry of judgment of forfeiture and summary
judgment.
This bill provides that in motions authorized by this bill to
vacate forfeiture, the bail agent or representative (moving
party) shall notify the prosecutor at least 10 days prior to the
hearing.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
("ROCA")
In response to the unresolved prison capacity crisis, since
early 2007 it has been the policy of the chair of the Senate
Committee on Public Safety and the Senate President pro Tem to
hold legislative proposals which could further aggravate prison
overcrowding through new or expanded felony prosecutions. Under
the resulting policy known as "ROCA" (which stands for
"Receivership/Overcrowding Crisis Aggravation"), the Committee
has held measures which create a new felony, expand the scope or
penalty of an existing felony, or otherwise increase the
application of a felony in a manner which could exacerbate the
prison overcrowding crisis by expanding the availability or
length of prison terms (such as extending the statute of
limitations for felonies or constricting statutory parole
standards). In addition, proposed expansions to the
classification of felonies enacted last year by AB 109 (the 2011
Public Safety Realignment) which may be punishable in jail and
not prison (Penal Code section 1170(h)) would be subject to ROCA
because an offender's criminal record could make the offender
ineligible for jail and therefore subject to state prison.
Under these principles, ROCA has been applied as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress towards reducing prison
overcrowding by passing legislation which could increase the
prison population. ROCA will continue until prison overcrowding
is resolved.
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
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On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances. Design capacity is the number of inmates a
prison can house based on one inmate per cell, single-level
bunks in dormitories, and no beds in places not designed for
housing. Current design capacity in CDCR's 33 institutions is
79,650.
On January 6, 2012, CDCR announced that California had cut
prison overcrowding by more than 11,000 inmates over the last
six months, a reduction largely accomplished by the passage of
Assembly Bill 109. Under the prisoner-reduction order, the
inmate population in California's 33 prisons must be no more
than the following:
167 percent of design capacity by December 27, 2011
(133,016 inmates);
155 percent by June 27, 2012;
147 percent by December 27, 2012; and
137.5 percent by June 27, 2013.
This bill does not aggravate the prison overcrowding crisis
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described above under ROCA.
COMMENTS
1. Need for this Bill
According to the author:
Under current statute, bail is forfeited even if a
defendant is in custody by the prescribed deadline for
returning him or her to the court that granted bail.
For instance, if a defendant has not returned to court
within the 180-day period during which bail forfeiture
is stayed, bail would still be forfeited, even if the
defendant was in custody within the 180-day period.
By definition, a defendant who is in custody is no
longer a fugitive. Nevertheless, the bondsman has no
recourse to extend the time to return a defendant to
court in these circumstances.
This unreasonable and unjust result can be alleviated
by allowing a specified time from the mailing of
notice of entry of judgment (Pen. Code § 1306) during
which the bondsman may file a motion to avoid
forfeiture of the bond. This will serve the interests
of justice by ensuring that bondsmen have incentives
to ensure that defendant return to court to face
charges or sentencing. This bill will also ensure
that both the bondsman and the district attorney have
adequate time to read, understand, and petition the
court on the matter. Specifically, AB 1824 adds
Section 1306.6 to the Penal Code to provide that when
a fugitive has been brought in to custody prior to
expiration of the 180 day deadline, but does not
appear in court until after this deadline, the
bondsman will have recourse to exonerate the bail.
AB 1824 will ensure that bondsmen and district
attorneys have enough time to read and comprehend a
notice of entry of judgment and have 20 days to file a
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motion on the notice. Occasionally, the district
attorney does not receive sufficient written notice
that a bail motion has been presented to the court,
substantially limiting the district attorney's ability
to respond to the motion.
2. Errors in Most Recent Amendments
The bill was amended on June 26 to allow relief from bail
forfeiture where a defendant was arrested in the county where
charges are pending within the 180-day stay of bail forfeiture,
but he or she does not appear in court until after the 180-day
period has run.
The amendments are incorrect. The amendments refer to the
"arrest Żof a defendant] after the end of the 18-day period?."
However, the bill is predicated on a defendant being arrested in
the county where charges are pending within the 180-day period.
Another provision of the bill is correct in this regard. The
bill should be amended to specifically refer to Penal Code
Section 1305, subdivision (c)(1), which concerns cases addressed
by this provision of the bill.
The bill also conflicts with an existing provision of law -
Penal Code Section 1305, subdivision (c)(3) - that grants relief
from forfeiture as of right in any case in which the defendant
is arrested within the 180-day period outside the county where
bail was granted. The amendments would provide that the court
had discretion to grant the relief, not that the bail agent was
entitled to the relief. That does not appear to be the intent
of the author. It is suggested that the bill be amended to not
change existing law in this regard.
SHOULD THE TECHNICAL DRAFTING ERRORS IN THE BILL BE CORRECTED?
3. The Abbreviated Sum and Substance of Bail
Bail is a contract for release of a person from jail upon a
promise to appear at future court hearings. The promise is
backed by a bond issued through a bail agent. A bailed
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defendant is said to be in the constructive custody of the bail
agent. (Taylor v. Taintor (1862) (16 Wall.) 83 U.S. 366, 372.)
"In pre-Norman England, a bondsman ? could suffer the same
penalty as the fugitive. This ? led to the allowance of rather
extreme measures for capture Żof the fugitive]." (Ouzts v.
Maryland National Ins. Co. (1974) 505 F.2d 547, 550.) These
measures include allowing a bail agent to arrest a fugitive in a
state other than where bail was issued. (Ibid.)
4. Cutting through the Thicket of Bail Forfeiture Law
Bail Forfeiture Generally
The statutes governing forfeiture of bail can be difficult to
apply for experienced practitioners and judges, and can be
nearly impenetrable for non-experts. The court is directed to
order a forfeiture of bail when the defendant fails to appear
for a court appearance. The court will then issue a "bench"
warrant for the defendant's arrest. All simplicity ends there.
After the forfeiture is declared, the bail agent has 180 days to
bring the defendant back to court before summary judgment is
entered on the forfeiture. The agent can petition the court for
another extension of the 180-day period for good cause. The
governing law then sets out myriad circumstances under which
bail forfeiture is vacated. These include where the defendant
is temporarily or permanently disabled, where the defendant is
detained by the bail agent in another country and the prosecutor
elects not to extradite and cases where the defendant is in
custody in another country and the prosecutor elects not to
extradite
No Relief from Forfeiture if the Defendant is Arrested within
the 180-Day stay of Forfeiture in the County of Prosecution, but
does not Appear in Court within that Time
This bill addresses a rather odd circumstance where the
defendant is arrested within the 180-day period in the county in
which bail is granted, but does not appear in court within the
180-day period. The issue arises under this provision in
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current law: "If the defendant appears either voluntarily or in
custody after surrender or arrest in court within 180 days of
the date of forfeiture?" the forfeiture shall be vacated. (Pen.
Code § 1305, subd. (c)(1).)
This sentence is difficult to read and easy to misinterpret. A
quick reading of the sentence could lead one to conclude that
the forfeiture is vacated where the defendant is arrested or
surrenders within the 180-day period. A closer reading shows
that the provision requires the defendant to appear in court
within the 180 period. The use of commas or dashes to separate
the clause about surrender or arrest from the rest of the
sentence makes the meaning of the provision more clear: If the
defendant appears - either voluntarily or in custody after
surrender or arrest - in court within 180 days of the date of
forfeiture?" the forfeiture shall be vacated.
Consider this example: The defendant is charged in the Los
Angeles County Superior Court in Long Beach. He fails to appear
for trial and bail is forfeited and a bench warrant issued.
Judgment on the bail forfeiture is stayed for 180 days. On the
178th day, the defendant is arrested by a deputy sheriff in
Lancaster, held in a holding cell in Lancaster for a day and
then transferred to the main jail in downtown Los Angeles. The
defendant is held in the main jail for a few more days until he
is transported to Long Beach to face the court that issued the
bench
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warrant.<1> The defendant does not appear in the Long Beach
court until the 182nd day. Summary judgment is issued and the
bond must be paid.
The wording of the statute is strikingly different concerning
defendants arrested in a county other than the county where the
defendant was charged and released on bail. The following
provision applies in such cases: "If, outside the county where
the case is located, the defendant is surrendered to custody by
the bail or is arrested ?.within the 180-day period, the court
shall vacate the forfeiture and exonerate bail." This provision
does not require that the fugitive defendant appear in court
within the 180-period.
The law is thus harsher for defendants who are arrested in the
county where they were charged than for defendants arrested in
another county. In the example noted above, if the defendant
had been arrested just north of Lancaster in Kern County, his
bail would have been exonerated, as his arrest in another county
occurred within the 180-day period.
This bill authorizes the bail agent to bring a motion for relief
from forfeiture where the fugitive defendant is arrested within
the county where the case is pending within the 180-day period,
but the defendant does not appear in court until after the
180-day period has run. The defendant must have continuously
remained in custody until he or she appears in court. The court
would have discretion to grant the relief or not. However, a
long line of bail forfeiture decisions have held that bail
forfeiture is disfavored. It is likely that most motions
brought under this bill would be granted.
5. Time Deadlines for Filing Bail Motions and Notice to
Prosecutors
A motion for relief from bail forfeiture, or for additional time
---------------------------
<1> Any number of things in jail procedures could delay the
defendant's transportation to Long Beach. The defendant could
even be transported to Long Beach and be returned to the main
jail without entering a court room.
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to return the defendant to court to avoid forfeiture, must be
made within the 180-day period during which judgment on the
forfeiture is stayed. Where bail agents locate a defendant at a
time close to the running of the 180 period, the agent may not
have sufficient time to file the motion. This bill provides
that where a fugitive defendant is arrested outside the county
where charges are pending, the bail agent may file a motion for
relief from forfeiture within 20 days of the mailing of notice
that judgment has been entered on the forfeiture.
The bill also provides that in motions for relief from bail
forfeiture brought pursuant to this bill, the bail agent or
representative must give at least 10-days' notice to the
prosecutor. Under current practice, prosecutors may not get
notice of a motion in time to prepare a response to the
application made by the bail agent. The prosecutor may need
time to verify the circumstances of the defendant's arrest and
prepare arguments on whether or not the court should find good
cause or exercise discretion to grant relief to the bail agent.
6. Related Bill on Forfeiture Relief where Prosecutor Elects not
to Extradite the Defendant from a Foreign Jurisdiction - SB
989 (Vargas)
Existing law provides that where the bail agent temporarily
detains a bail fugitive in another jurisdiction and the fugitive
is identified as such by a local law enforcement officer, bail
shall be exonerated where the prosecutor elects not to extradite
the defendant. This circumstance typically arises where the
defendant is found in a foreign country, as law enforcement in
another state would arrest and hold the defendant in custody.
SB 989 (Vargas) would provide that where the prosecutor and the
bail agent agree that more time is necessary to return the
defendant to court, the court may toll the 180 period during
which the bail forfeiture judgment is stayed.
SB 989 would also require 10-days' notice of a hearing to
exonerate bail or stay the 180-day period where the defendant is
in custody or temporarily detained in a foreign country. As of
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June 27, 2012, SB 989 was on third reading in the Assembly.
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