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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