BILL ANALYSIS Ó
AB 1854
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Date of Hearing: March 15, 2016
Consultant: Matt Dean
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
AB
1854 (Bloom) - As Introduced February 10, 2016
SUMMARY: Allows for the recovery of incurred attorney's fees
out of forfeited bail money when the district attorney, county
counsel, or applicable prosecuting agency successfully opposes a
motion to vacate the forfeiture or in collecting on the summary
judgment. Specifically, this bill: States that county counsel,
district attorneys or other applicable prosecuting agencies
shall recover costs and attorney's fees incurred when those
attorneys successfully oppose a motion to vacate bail
forfeiture.
EXISTING LAW:
1)States that bail permits a defendant to be released from
custody by posting bond, which is a promise to pay the bond
amount unless the defendant meets the conditions, which is
generally to make all of their court appearances. (Pen. Code,
§ 1269.)
2)Entitles defendants to bail prior to conviction as a matter of
right unless the offense is punishable by death or a public
safety exception is established. (Cal. Const., art. I, sec.
12.)
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3)States that bail is set by the magistrate at the defendant's
first court appearance. (Cal. Const. art. I, section 12; Pen.
Code, § 1271.)
4)States that judges fix the bail amount according to a
countywide schedule which sets bail amounts according to the
offense charged. (Pen. Code, § 1269b, subd. (c).)
5)States that the availability of bail after conviction in
felony cases is up to the judge's discretion if the felony is
one of the enumerated felonies. (Pen. Code, § 292.)
6)Allows judges to adjust the bail up or down from the fee
schedule when certain conditions exist, but public safety is
the primary concern. (Pen. Code, § 1268, 1269c, 1275, 1289.)
7)Permits judges to attach conditions on bail which, if
violated, can result in forfeiture of the bail. (Pen. Code, §
1269c)
8)States that defendants forfeit their bail when they abscond,
i.e. when the defendant fails to appear for their court
hearing without a valid excuse. (Pen. Code, § 1275, 1305.)
9)Allows the bail surety agents may contest bail forfeiture by
filing a motion to vacate the forfeiture of bail. (Pen. Code,
§ 1305.)
10)States that county counsel, district attorneys or other
applicable prosecuting agency shall recover costs incurred
when the attorneys successfully oppose a motion to vacate bail
forfeiture. (Pen. Code, § 1305.3.)
11)Holds that costs do not include attorney's fees in bail
forfeiture hearings. (People v. U.S. Fire Ins. Co. (2012) 210
Cal.App4th 1423, 1426.)
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "AB 1854 would
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help restore funding for the costs incurred by prosecutorial
agencies in litigating bail forfeiture motions. Forfeiture of
bail due to failure of a defendant to appear in court is often
followed by a counter-motion to challenge the forfeiture. A
significant amount of time and attorney's fees are involved in
opposing these motions, and financially strapped local
prosecutors, district attorneys, and county counsels bear the
costs. This bill would allow them to recover a portion of
those costs out of the forfeited bail money when they have
successfully opposed a motion to vacate a bail forfeiture."
2)Summary: A defendant forfeits the bail they posted when they
fail to appear in court or when they do not fulfill the
conditions of their bail, such as committing another offense
or intimidating witnesses in their case. A motion to vacate
forfeiture of bail is simply a motion to contest the
forfeiture of the bail posted by the defendant. These motions
are filed either by defense counsel or the bond surety agent
in order to recover the bail funds they posted. When defense
counsel, or a surety agent, file a motion to vacate forfeiture
of bail, a prosecuting attorney has the option to contest the
motion. This bill would allow those prosecuting attorneys to
recover their attorneys' fees when they successfully contest
motions to vacate forfeiture of bail.
3)Background: As provided by the author, "This proposal would
restore funding for prosecutorial agencies and county counsel
offices for the costs that are incurred in successfully
opposing a motion to vacate the forfeiture of bail. It would
amend Section 1305.3 of the Penal Code to include 'attorney
fees.'
"Existing law sets forth procedures under which the court is
authorized 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 certain proceedings.
The defendant's surety or bail bond agency in turn often files
a motion to vacate the forfeiture--challenging the court's
forfeiture and countering with a claim explaining why the bail
should not be forfeited. There are significant costs for
district attorney, county counsel, and prosecuting offices in
opposing these motions.
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"California Penal Code section 1305.3 states:
'The district attorney, county counsel, or applicable
prosecuting agency, as
the case may be, shall recover, out of the forfeited bail
money, the costs
incurred in successfully opposing a motion to vacate the
forfeiture and in
collecting on the summary judgment prior to the division
of the forfeited
bail money between the cities and counties in accordance
with Section 1463.'
"Following the enactment of Penal Code section 1305.3,
prosecutorial agencies successfully recovered attorneys' fees
in a number of bail forfeiture cases. For example, in Lincoln
General Ins. Co. & Aladdin Bail Bonds v. Superior Court (Case
No. SJ1570; Crim. Case No.NA052587), after upholding the trial
court's forfeiture on appeal, the Los Angeles District
Attorney's Office received $2,024.95 in attorney fees.
Similarly, in People v. Hernandez (Aegis Security Ins. Co.)
(Case No. 0SJ0213; Crim. Case No. GA047929), the trial court
awarded LADA $3,181.21 in attorneys' fees.
"Unfortunately, in November of 2012, the Court of Appeal in
People v. U.S. Fire Ins. Co. (2012) 210 Cal.App4th 1423, 1426,
found that the provision in section 1305.3 allowing the
recovery of "costs" did not include attorney fees. They
reached this conclusion by holding that the ordinary and usual
meaning of "costs" in California has only encompassed
reporter's transcripts and filing costs, but not attorney
fees.
"The court in People v. U.S. Fire Ins. Co. (2012) stated: "In
sum, applying the rules of statutory construction and the law
regarding the award of attorney fees as costs, we must
conclude that an award of costs under section 1305.3 does not
include attorney fees. Including attorney fees as costs in
this context is a change that should be left to the
Legislature.
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"This proposal seeks to insert the term 'attorney fees' into
the statute.
"Prosecuting offices are often financially constrained and
currently fund all of these bail forfeiture cases. This bill
would allow them to recover a significant portion of the costs
and lessen the cost burden. Since these cases can often
involve multiple court appearances and unique legal issues,
the attorney costs generated are significant. Los Angeles
County District Attorney Office observed, 'Given the financial
constraints faced by our Office, it is imperative that all
deputies make every effort to recover attorneys' fees when
they have successfully opposed a motion to vacate a bail
forfeiture.'
"Due to denial of attorney fee recovery, local government
prosecutors sometimes avoid bail forfeiture litigation
altogether. This bill provides a revenue stream that would
otherwise have been lost."
4)Distribution of Bail Forfeiture Funds: When bail is
forfeited, state penalties, county penalties, special
penalties, service charges, and penalty allocations are
distributed to the proper funds first. The arresting agency
and courts then receive their portions of the bail funds to
alleviate their costs. After these distributions are made,
the prosecuting attorney who successfully defends a motion to
vacate forfeiture of bail can recover their costs. This bill
would allow the prosecuting attorneys to recover their
attorneys' fees. After collection of costs (and attorneys'
fees should this bill becomes law), the cities and counties
receive the remainder according to Penal Code Sections
1463.001 and 1463.002.
5)Bail: The 8th Amendment to the United States of America
states: "Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted."
a) Generally: Bail is a security given to the court to
guarantee a defendant's future attendance at court
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proceedings. The amount of bail required is typically set
according to the local bail schedule that lists common
offended and a suggested amount. These bail schedules are
set by county judges. At arraignment, the magistrate will
review the case and set bail in an amount he or she deems
sufficient to ensure the defendant's appearance. While the
usual practice is to adhere to scheduled bail, either the
prosecution or the defense may argue for a departure from
the bail schedule based on aggravating and mitigating
factors, danger to the public, and ties to the community.
Bail permits a defendant to be released from actual custody
into the constructive custody of a surety on a bond given
to procure the defendant's release. Bail, once posted,
stands until forfeited or exonerated to ensure the
defendant's appearance at all stages of the proceedings on
the original charge. (Pen. Code §§ 1273, 1278 subd. (a),
1458-1459.) If bail was posted through a bail bond agency,
the agent and the defendant sign a bail agreement that will
usually fix the term of the bail bond as one year. The
defendant must pay a renewal premium for any additional
period.
b) Bail Bonds: A bail bond is a document, executed by a
surety, that is a promise to pay the face amount of the
bond equivalent to the sum set as bail, unless the
defendant fulfills the conditions of the bond. (Pen. Code
§ 1269.)
c) Bail Forfeiture: If a defendant fails to appear as
ordered by the court and does not have a sufficient excuse,
the court must declare the bail forfeited. (Pen. Code §
1305.) Sufficient reasons for failure to appear are
usually based on representations made by counsel. (People
v. Amwest Sur. Ins. Co. (1997) 56 CA4th 915, 925.)
A surety or the surety and the defendant must appear before
the court within 180 calendar days after notice of
forfeiture to establish a satisfactory excuse for the
defendant's neglect. (Pen. Code § 1305.) The surety is
entitled to be released from the forfeiture if any of the
following applies (Pen. Code § 1305.):
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i) The court fails to meet the requirement of mailing
notice;
ii) The defendant and his or her surety appear with a
satisfactory excuse for the defendant's absence;
iii) The defendant surrenders to the court or to custody;
iv) The defendant dies or has permanent inability to
appear due to illness, insanity, or detention by other
authorities, all without connivance of the surety.
Forfeiture of the defendant's bail as a result of his or
her failure to appear is proper only when the defendant
failed to appear on the charges for which the bail was
posted. People v. King Bail Bond Agency (1990) 224 CA3d
1120.
Before forfeiture, the surety or other person who deposited
the assets may surrender the defendant into custody to
obtain exoneration of the bail money. (Pen. Code, § 1300,
subd. (a).)
6)Argument in Support: According to the Los Angeles County
District Attorney's Office, a sponsor of this bill, "AB 1854
will help restore funding for the costs incurred by
prosecutorial agencies in litigating bail forfeiture motions.
Forfeiture of bail due to failure of a defendant to appear in
court is often followed by a counter-motion to challenge the
forfeiture. A significant amount of time and attorney's fees
are involved in opposing these motions, and financially
strapped local prosecutors, district attorneys, and county
counsels bear the costs. AB 1854 will allow prosecutorial
offices and county counsels to recover the cost for litigating
these motions out of the forfeited bail money when they have
successfully opposed a motion to vacate a bail forfeiture.
"Existing law sets forth procedures under which the
court is authorized to declare forfeited the undertaking
of bail or the money or property deposited as bail if,
without sufficient excuse, a defendant fails to appear
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for certain proceedings. The defendant's surety or bail
bond agency in turn often files a motion to vacate the
forfeiture--challenging the court's forfeiture and
countering with a claim explaining why the bail should
not be forfeited. There are significant costs for
district attorney, county counsel, and prosecuting
offices in opposing these motions.
"California Penal Code section 1305.3 states:
"The district attorney, county counsel, or applicable
prosecuting agency, as the case may be, shall recover,
out of the forfeited bail money, the costs incurred in
successfully opposing a motion to vacate the forfeiture
and in collecting on the summary judgment prior to the
division of the forfeited bail money between the
cities and counties in accordance with Section 1463.
Since 1994, prosecutorial agencies successfully recovered
attorneys' fees pursuant to Penal Code section 1305.3.
Unfortunately, in November of 2012, the Court of Appeal in
People v. US. Fire Ins. Co. (2012) 210 Cal.App4th 1423, 1426,
found that the provision in section 1305.3 allowing the
recovery of "costs" did not include attorney fees. They
reached this conclusion by holding that the ordinary and usual
meaning of "costs" in California has only encompassed
reporter's transcripts and filing costs, but not attorney
fees.
The court in People v. U S. Fire Ins. Co. (2012) stated:
'In sum, applying the rules of statutory construction
and the law regarding the award of attorney fees as
costs, we must conclude that an award of costs under
section 1305.3 does not include attorney fees. Including
attorney fees as costs in this context is a change that
should be left to the Legislature.'
"AB 1854 inserts the term "attorney fees" into the
statute.
"Prosecuting offices are often financially constrained
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and currently fund all of these bail forfeiture cases.
This bill would allow them to recover a significant
portion of the costs and lessen the cost burden. Since
these cases can often involve multiple court appearances
and unique legal issues, the attorney costs generated
are significant. Los Angeles County District Attorney
Office observed, "Given the financial constraints faced
by our Office, it is imperative that all deputies make
every effort to recover attorneys' fees when they have
successfully opposed a motion to vacate a bail
forfeiture."
"Due to denial of attorney fee recovery, local
government prosecutors sometimes avoid bail forfeiture
litigation altogether."
7)Argument in Opposition: According to the Golden State Bail
Agents Association, "GSBAA opposes AB 1854 (Bloom) because it
seeks to create a one-way attorney fee provision where
attorney fees would only be awarded when the county counsel or
district attorney prevails in a motion to vacate a bail
forfeiture. Bail agents would not be awarded attorney fees
when they prevail in a motion to vacate a forfeiture. This
would not only be unfair to bail agents, it will lead to
oppressive negotiation of disputes, oppressive litigation
tactics and will negatively impact bail consumers, as shown
below.
"Most bail bond forfeitures are paid without the need for
litigation, however, occasionally disputes arise and
litigation ensues. Under current law, when bail bond
forfeitures are contested, each side to the litigation pays
their own attorney fees. In 2012, the 5th District Court of
Appeals [sic] made it clear that county counsel is not
entitled to attorney fees when they prevail in bail bond
forfeiture litigation:
"Appellant further argues that the legislative history for
section 1305.3 supports awarding attorney fees as costs. This
history primarily explains that the statute was amended to
make clear that county counsel, while not technically a
prosecuting agency, should be able to recover costs for
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successfully opposing the vacation of forfeiture before the
money is divided between cities and counties. However,
contrary to appellant's position, county counsel being given
the ability to recoup some operating costs before the bail
money is divided does not demonstrate a legislative intent to
award county counsel attorney fees. (People v. U.S. Fire Ins.
Co. (2012) 210 Cal.App.4th 1423, 1428.)
"This bill will overrule the above case and allow county
counsel to recover attorney fees out of the forfeited bail
money when they prevail. These attorney fees would be paid
prior to the division of the forfeited bail money between
cities and counties in accordance with Penal Code § 1463.
Since county counsel would be paid their fees prior to
division, this bill would reduce the county's share of the
forfeiture money.
"The public policy behind the enactment of Civil Code § 1717
is applicable to the proposed one-way attorney fee provision
of AB 1854. Civil Code § 1717 provides that a contract with a
one-way attorney fee provision is deemed to implement two-way
fee shifting:
"'[T]he party who is determined to be the prevailing party on
the contract, whether he or she is the party specified in the
contract or not, shall be entitled to reasonable attorney
fees." (Civil Code Sec. 1717(a))
"The public policy purpose of Civil Code § 1717 is not solely
to protect weaker individuals, but also to prevent oppressive
negotiation of contracts, oppressive negotiation of disputes,
and oppressive litigation tactics. As stated by the
California Court of Appeal:
""Civil Code section 1717 is not designed exclusively for the
benefit of individuals or unsophisticated, weaker parties to a
contract. Rather, it reflects a general policy to prevent
one-sided attorney fee provisions. Thus, it promotes
certainty, and prevents overreaching both in the negotiation
of a contract and in the use of the courts during litigation.
'One-sided attorney's fees clauses can . . . be used as
instruments of oppression to force settlements of dubious or
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unmeritorious claims.' This litigation concern applies,
whether the parties are of different or equal bargaining
strength in the negotiation of the contract." (ABF Capital
Corp. v. Grove Props. Co., (2005) 126 Cal. App. 4th 204,
218-219, quoting Int'l Billing Servs., Inc. v. Emigh, (2000)
84 Cal.App.4th 1175, 1188)
"As was the case with contract one-way attorney fee provisions
before Civil Code § 1717, enactment of AB 1854's proposed
one-way attorney fee provision would lead to a greater number
of frivolous oppositions to bail bond forfeiture motions and
other oppressive litigation tactics. These oppressive
litigation tactics would especially impact small mom and pop
bail agencies and the defendants who buy bail bonds because it
will lead to increased litigation costs which will be passed
on to bail bond co-signers, thereby increasing the cost of
bail."
8)Prior Legislation:
a) AB 1082 (Linder) of the 2015-2016 Legislative Session,
would have extended from 10 to 12 days the notice of motion
a surety must give the court prior to requesting an
extension of the 180 day period in which the surety must
return an offender to court in order to avoid a permanent
forfeiture of bail. AB 1082 was referred to this committee
but was never heard.
b) AB 1118 (Hagman), of the 2013-14 Legislative Session,
requires the Judicial Council, on or before January 1,
2015, to prepare, adopt and annually revise a statewide
bail schedule for all bailable felony, misdemeanor, and
infraction offenses except Vehicle Code infractions. The
version of the bill that passed out of this Committee also
required the superior courts, in annually adopting
countywide bail schedules, to consider the statewide bail
schedule. That provision was later deleted in an
amendment. AB 1118 failed passage in the Senate Committee
on Public Safety.
c) AB 805 (Jones-Sawyer), Chapter 17, Statutes of 2013,
provides that in setting bail, a judge or magistrate may
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consider factors such as the report prepared by
investigative staff for the purpose of recommending whether
a defendant should be released on his/her own recognizance.
d) AB 723 (Quirk), of the 2013-14 Legislative Session,
allows a person on post-release community supervision who
has a revocation petition filed against him or her to file
an application for bail with the superior court. AB 723
was held on the Senate Committee on Appropriations'
Suspense File.
e) AB 1264 (Hagman), of the 2011-12 Legislative Session,
would have repealed the uniform countywide schedule of bail
and instead establish the Statewide Bail Commission. The
bill would require the commission to prepare, adopt, and
annually revise a statewide bail schedule for all bailable
felony offenses and for all misdemeanor and infraction
offenses except Vehicle Code infractions. AB 1264 was never
heard by this Committee and returned to the Chief Clerk.
REGISTERED SUPPORT / OPPOSITION:
Support
Los Angeles County District Attorney's Office (Sponsor)
County Counsels' Association of California (Sponsor)
California Department of Insurance
California Police Chiefs Association
California State Association of Counties
California State Association of Counties
San Diego County District Attorney's Office
Opposition
Golden State Bail Agents Association
Analysis Prepared
by: Matt Dean / PUB. S. / (916) 319-3744
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