BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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AB 2029 (Ammiano) 9
As Amended May 25, 2012
Hearing date: June 26, 2012
Penal Code
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BAIL FUGITIVE RECOVERY PERSONS
HISTORY
Source: California Department of Insurance
Prior Legislation: AB 2238 (Spitzer) - Ch. 166, Stats. 2004
AB 243 (Wildman) - Ch. 426, Stats. 1999
AB 2733 (Wildman) - Vetoed, 1998
Support: Aladdin Bail Bonds; California Attorneys for Criminal
Justice; Consumer Attorneys of California; California
State Sheriffs' Association; Peace Officer Research
Association of California; Los Angeles County District
Attorney; California Peace Officers Association; Crime
Victims Action Alliance
Opposition:Golden State Bail Agents Association, unless amended;
California Bail Agents Association, unless amended
Assembly Floor Vote: Ayes 74 - Noes 1
KEY ISSUE
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SHOULD THE BAIL FUGITIVE RECOVERY PERSONS ACT, WHICH REGULATES
PERSONS WHO ARREST AND RETURN BAILED FUGITIVES TO COURT - BOUNTY
HUNTERS - BE REENACTED?
PURPOSE
The purposes of this bill are 1) reenact the Bail Fugitive
Recovery Persons Act, which regulates persons who arrest and
return fugitive defendants to court; 2) require that bail
fugitive recovery persons and bail agents who arrest fugitives
complete a course on arrest and 20 hours of training on the
duties of bail agents; 3) provide that only bail agents, bail
fugitive recovery persons and private investigators, as
specified, may arrest bail fugitives; 4) require a person
authorized by law to arrest a bail fugitive to obtain written
authorization to arrest a bail fugitive and keep the
authorization and applicable certificates of training when
performing his or her duties; 5) require a person authorized by
law to arrest a bail fugitive to inform local law enforcement
when making an arrest, as specified, except under exigent
circumstances; 6) prohibit a person authorized by law to arrest
a bail fugitive from representing themselves to be law
enforcement officers, as specified; and 7) provide that
violation of the Act is a misdemeanor.
Existing law provides for the licensing of bail agents, bail
permittees and bail solicitors by the Insurance Commissioner.
(Ins. Code § 1800 et seq.)
Existing law provides that if an on-bail defendant fails to
appear for arraignment, trial, judgment, or any other scheduled
court appearance, the bail is forfeited unless the clerk of the
court fails to give proper notice to the surety or depositor
within 30 days, or the defendant is brought before the court
within 180 days. (Pen. Code § 1305, subds. (a) and (b).)
Existing law requires the court, on its own motion, to exonerate
bail where a defendant surrenders or is recaptured within 180
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days of forfeiture. Bail is automatically exonerated where the
court fails to act. (Pen. Code § 1305, subd. (c)(1)-(3).)
Existing law specifically provides that where the defendant is
recaptured or surrenders outside the county of prosecution
within the 180-day period, the court shall vacate the forfeiture
and exonerate bail. (Pen. Code § 1305, subd. (c)(3).)
Existing law provides that a timely filed motion to extend the
180-day period allowing exoneration of bail may be heard within
30 days of the expiration of the 180-day period, and that the
30-day period can be extended for good cause. The court may
also require the moving party to give 10-days' prior notice to
the applicable prosecuting agency as a condition precedent to
granting the motion. (Pen. Code § 1305, subd. (i).)
Existing law provides that a surety insurer, bail agent, surety
or depositor may file a motion for an order extending the
180-day forfeiture period. (Pen. Code § 1305.4.)
Existing law makes it a misdemeanor for a bail agent or other
person who is bail for a fugitive admitted to bail in another
state to take the fugitive into custody unless, upon
application, a magistrate has issued a warrant of arrest or that
person. (Pen. Code § 847.5.)
This bill re-establishes the "Bail Fugitive Recovery Persons
Act" which requires that all bail fugitive recovery persons meet
specified training requirements and comply with particular laws.
This bill defines the terms "bail fugitive," "bail", "depositor
of bail," and "bail fugitive recovery person" for the purpose of
the Act, as follows:
A "bail fugitive" is a defendant in a pending criminal
case who has been released from custody under a financially
secured appearance, cash, or other bond and has had that
bond declared forfeited, or a defendant in a pending
criminal case who has violated a bond condition whereby
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apprehension and re-incarceration are permitted.
"Bail" is a person licensed by the California Department
of Insurance (CDI) pursuant to Insurance Code Section 1800.
A "depositor of bail" is as a person or entity who has
deposited money or bonds to secure the release of a person
charged with a crime or offense.
A "bail fugitive recovery person" is a person who is
provided written authorization, as specified, by the bail
or depositor of bail, and is contracted to locate and
arrest a bail fugitive for surrender to the appropriate
court, jail, or police department, and any person who is
employed to assist a bail or depositor of bail to locate
and arrest a bail fugitive for surrender to the appropriate
court, jail, or police department.
This bill provides that no person other than a certified law
enforcement officer shall be authorized to apprehend, detain, or
arrest a bail fugitive unless that person meets one of the
following conditions:
He or she is a person licensed by the Department of
Insurance, as specified.
He or she is a bail fugitive recovery person who has
been provided written authorization by the bail, depositor
of the bail, and is contracted to investigate, surveil,
locate, and arrest a bail fugitive for surrender to the
appropriate authorities, as specified.
He or she is licensed by the State of California as a
private investigator, holds a private investigator's
license issued by another state, is authorized by the bail,
or depositor of to apprehend a bail fugitive, and is in
compliance with provisions of law that govern the
apprehension of a fugitive that has been admitted to bail
in another state.
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This bill clarifies that this bill does not affect a person
ability to make a citizen's arrest, an arrest by order of a
magistrate, or the ability to summon assistance to aid in the
arrest.
This bill requires a bail fugitive recovery person or a bail
agent<1> who contracts his or her services for the arrest of a
bail fugitive, and any a bail agent who arrests a fugitive for
whom the agent has provided bail, to comply with the following:
He or she must be at least 18 years of age.
He or she shall have completed a 40-hour power of arrest
course certified by the Commission of Peace Officer
Standards and Training (CPOST), which is not intended to
confer the same powers of arrest as a peace officer.
He or she shall have completed 20 hours of education in
subjects pertinent to the duties and responsibilities of a
bail licensee.
He or she shall not have been convicted of a felony,
unless he or she has been licensed by the Department of
Insurance.
He or she shall have in his or her possession completed
certificates of required training at all times when
performing his or her duties.
This bill requires a person authorized to arrest a bail
fugitive<2> to have in his or her possession documentation of
authority to apprehend issued by the bail or depositor of bail.
This bill prohibits a person authorized to arrest a bail
fugitive from representing himself or herself in any manner as
---------------------------
<1> For purposes of brevity, the term "bail agent" in this
analysis also refers to a "bail permittee" and a "bail
solicitor."
<2> These persons include bail agents, bail fugitive recovery
persons and private investigators.
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being a sworn law enforcement officer.
This bill prohibits a person authorized to arrest a bail
fugitive from wearing any uniform that represents himself or
herself as belonging to any part or department of a federal,
state, or local government.
This bill prohibits a person authorized to arrest a bail
fugitive from wearing or otherwise using a badge or a fictitious
name that represents that he or she belongs to a federal, state,
or local government.
This bill provides that a person authorized to arrest a bail
fugitive may wear a jacket, shirt, or vest with the words "BAIL
BOND RECOVERY AGENT," "BAIL ENFORCEMENT, " "BAIL ENFORCEMENT
AGENT" displayed in at least two-inch high letters across the
front and back of the jacket, shirt, or vest and in a
contrasting color to that of the jacket, shirt, or vest.
This bill requires, except in exigent circumstances a person
authorized to arrest a bail fugitive to notify local law
enforcement no more than six hours before of the intent to
apprehend a bail fugitive in that jurisdiction. Notice shall
include:
The name of the person authorized to apprehend a bail
fugitive.
The approximate time the person authorized to apprehend
a bail fugitive will be entering the jurisdiction and the
approximate length of stay.
The name and the approximate location of the bail
fugitive.
This bill provides that if an exigent circumstance does arise
and prior notice is not given as required, the person authorized
to apprehend the bail fugitive shall notify local law
enforcement immediately after the apprehension, and upon request
of the local jurisdiction, shall submit a detailed explanation
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of the exigent circumstances within three working days.
This bill provides that nothing in this bill shall preclude a
person authorized to apprehend a bail fugitive from making an
arrest at the request of the bail or the depositor of the bail.
The fact that a bench warrant is not located or entered into a
warrant depository or system shall not affect a lawful arrest of
the bail fugitive.
This bill allows notice to be provided to a local law
enforcement agency by telephone prior to the arrest of, or after
the arrest has taken place, if exigent circumstances exist.
This bill provides that a person authorized to arrest a bail
fugitive may not forcibly enter a premises except to make a
felony arrest after demanding admittance and explaining the
purpose for which admittance is desired.
This bill states that nothing in this Act shall deemed to
authorize a bail, bail depositor, or bail fugitive recovery
person to apprehend, detain, or arrest any person other than to
surrender the person to the court, magistrate, or sheriff.
This bill states that a person authorized to apprehend a bail
fugitive shall not carry a firearm or any other weapon unless in
compliance with the laws of the State.
This bill provides that any person who violates the provision of
the Bail Fugitive Recovery Persons Act is guilty of a
misdemeanor punishable by imprisonment in a county jail by a
term not to exceed one year, by a fine not to exceed $5,000, or
by both that imprisonment and a fine.
This bill states that nothing in this act is intended to exempt
from licensure persons otherwise required to be licensed as
private investigators.
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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.
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
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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
described above under ROCA.
COMMENTS
1. Need for This Bill
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According to the author:
The Bail Fugitive Recovery Persons Act was established
in 1999 in response to California lawmakers' concerns
about some bounty hunters retrieving fugitives in
unlawful ways. The Act's main provisions required bail
fugitive recovery persons to be at least 18 years of
age and specified background, training, education and
documentation requirements, and required such persons
to work under the express written authorization of a
licensed bail agent. The Act prohibited bail fugitive
recovery persons from wearing a uniform or carrying
badges that could imply that the person works for a
governmental agency or public safety task force.
Additionally, the Act required bail fugitive recovery
persons to provide local law enforcement with at least
6 hours' notice of his or her intent to apprehend a
bail fugitive, except in exigent circumstances.
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In 2004, the Legislature revisited the Act and
extended its sunset date to January 1, 2010. Since
the sunset of the Act on January 1, 2010, the
California Department of Insurance's (CDI)
Investigation Division has experienced a significant
amount of cases in which bounty hunters have
overstepped appropriate, if not legal, boundaries in
their apprehension of bail fugitives. These alarming
cases illustrate the need for statewide regulation of
bounty hunters.
AB 2029 will re-establish the Bail Fugitive Recovery
Persons Act. The Act will require bounty hunters to
be properly trained and certified, to have in his or
her possession proper documentation of authority to
apprehend a bail fugitive, and to notify local law
enforcement of their intent to apprehend an individual
in that jurisdiction.
2. 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
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.)
The court in Ouzts recognized a rather road right of the State
of California to regulate bail: "Thus we note that the common
law right of the bondsman to apprehend his principal arises out
of a contract between the parties and does not have its genesis
in statute or legislative fiat. Because it is a contract right
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it is transitory and may be exercised wherever the defendant may
be found. All of this is not to say, however, that the state
may not enter the field and regulate the business and practice
of bail bondsmen. California has done precisely that."
(Ibid.)
3. Examples Provided by the Department of Insurance of Improper
Conduct by Bounty Hunters
Bounty hunters forcibly took a person from his home in handcuffs
to the bail agent's business. He was told that he could not
leave until he paid money for outstanding bail bond payments.
He paid more than $400 before being was released, although he
was later found to not be behind on his bond payments.
A person was at home working outside when bounty hunters,
accompanied by bail agents, handcuffed him and forced him to the
ground. The bounty hunters kicked, punched and placed him in a
car. He was driven to the bail agent's office and forced to
call a third party to "co-sign" bail documents before being
released. He sustained bruises to his face, throat, neck, back
and chest.
After he appeared in court, a defendant was forcibly taken from
the courthouse to the bail agent's business. He was handcuffed
to a pole in the basement of the business and told to raise
money. He was left in the dark basement for up to six hours.
Bounty hunters took a defendant to the bail agent's business
after he appeared in court. He was told that if he did not
raise money, he would be returned to jail. He was threatened
with a Taser and his girlfriend was told she could not leave
even though she was not out on a bail bond.
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