BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 1854 Hearing Date: June 14, 2016
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|Author: |Bloom |
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|Version: |February 10, 2016 |
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|Urgency: |No |Fiscal: |No |
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|Consultant:|JM |
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Subject: Bail: Attorney's Fees: Forfeited Bail
HISTORY
Source: California State Association of Counties; Los Angeles
County District Attorney
Prior Legislation:SB 989 (Vargas) - Ch.129, Stats. of 2012
AB 2854 (Dymally) - 2006, Vetoed
SB 1245 (Polanco) - Ch. 434, Stats. of 1995
SB 1649 (Johannessen) - Ch. 170, Stats. of 1994
AB 734 (Johnson) - Ch. 524, Stats. of 1993
Support: California Department of Insurance; California
District Attorneys Association;
California Police Chiefs' Association; League of
California Cities;
Los Angeles County Professional Peace Officers
Association; Los Angeles County Sheriff's Department;
Orange County Board of Supervisors; San Diego County
Board of Supervisors; San Diego County District
Attorney; Solano County Board of Supervisors
Opposition: Orange County Bail Agents Association
Assembly Floor Vote: 74 - 2
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PURPOSE
The purpose of this bill is to provide that the district
attorney, county counsel, or applicable prosecuting agency that
successfully opposes a motion to vacate bail forfeiture shall
receive attorney's fees out of forfeited bail money, payable
prior to any other distribution of the bail funds.
Existing law 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.)
Existing law 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.)
Existing law states that bail is set by the magistrate at the
defendant's first court appearance. (Cal. Const. art. I,
section 12; Pen. Code, § 1271.)
Existing law 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).)
Existing law 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.)
Existing law permits judges to attach conditions on bail which,
if violated, can result in forfeiture of the bail. (Pen. Code,
§ 1269c)
Existing law states that a defendant forfeits bail when he or
she fails to appear for their court hearing without a valid
excuse. (Pen. Code, § 1275, 1305.)
Existing law allows the bail surety agents may contest bail
forfeiture by filing a motion to vacate the forfeiture of bail.
(Pen. Code, § 1305.)
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Existing law 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.)
Existing law 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.)
This bill provides that that county counsel, district attorneys
or other applicable prosecuting agencies shall recover out of
the forfeited bail money attorney's fees, in addition to costs,
incurred through successfully opposing a motion to vacate bail
forfeiture.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past several years this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In December of 2015 the administration reported that as "of
December 9, 2015, 112,510 inmates were housed in the State's 34
adult institutions, which amounts to 136.0% of design bed
capacity, and 5,264 inmates were housed in out-of-state
facilities. The current population is 1,212 inmates below the
final court-ordered population benchmark of 137.5% of design bed
capacity, and has been under that benchmark since February
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2015." (Defendants' December 2015 Status Report in Response to
February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge
Court, Coleman v. Brown, Plata v. Brown (fn. omitted).) One
year ago, 115,826 inmates were housed in the State's 34 adult
institutions, which amounted to 140.0% of design bed capacity,
and 8,864 inmates were housed in out-of-state facilities.
(Defendants' December 2014 Status Report in Response to February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).)
While significant gains have been made in reducing the prison
population, the state must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1.Need for This Bill
According to the author:
AB 1854 would help restore funding for the costs
incurred by prosecutorial agencies in litigating bail
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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 costs 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.
Following enactment of Penal Code section 1305.3 in
1993 - directing that the costs of the district
attorney in a bail forfeiture case be recovered from
forfeited bail - 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 (Los.
Angeles Co. No. NA052587), the Los Angeles District
Attorney's Office received $2,024.95 in attorney 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 reference in
section 1305.3 to "costs" did not include attorney
fees, as the usual meaning of "costs" has only
encompassed reporter's transcripts and filing costs,
not attorneys' fees.
Specifically, this bill would insert the term
'attorney fees' into the statute. Prosecuting offices
are often financially constrained and currently fund
all of these bail forfeiture cases. Since these cases
often involve multiple court appearances and unique
legal issues, the costs for the hours spent on them by
deputy district attorneys are significant. 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
2.Abbreviated History 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
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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.) 83U.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 [of the fugitive]." (Ouzts v.
Maryland National Ins. Co. (1974) 505 F.2d 547, 550.) However,
it appears that bail in England was typically posted in the form
of pledges of land or property by the defendant personally or by
a relative. Commercial bail - bail posted by private businesses
for profit - was an innovation of the American frontier in the
early 1880s. (Illegal Globally, Bail for Profit Remains in
U.S., Liptak, New York Times, Jan. 29, 2008.)
3.Bail Forfeiture
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 seeking a court order to forfeit 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.
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.
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