BILL ANALYSIS                                                                                                                                                                                                    Ó






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                                   THIRD READING 


          Bill No:  AB 1854
          Author:   Bloom (D) 
          Introduced:2/10/16  
          Vote:     21 

           SENATE PUBLIC SAFETY COMMITTEE:  7-0, 6/14/16
           AYES:  Hancock, Anderson, Glazer, Leno, Liu, Monning, Stone

           ASSEMBLY FLOOR:  74-2, 4/7/16 - See last page for vote

           SUBJECT:   Bail:  attorneys fees:  forfeited bail


          SOURCE:    California State Association of Counties
                     Los Angeles County District Attorney

          DIGEST:  This bill provides 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.  

          ANALYSIS:  
          
          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  








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             of right unless the offense is punishable by death or a  
             public safety exception is established.  (Cal. Const., Art.  
             I, Sec. 12.)

           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) 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.)

           6) Permits judges to attach conditions on bail which, if  
             violated, can result in forfeiture of the bail.  (Pen. Code §  
             1269c)

           7) 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.)

           8) Allows the bail surety agents to contest bail forfeiture by  
             filing a motion to vacate the forfeiture of bail.  (Pen. Code  
             § 1305.)

           9) 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.)

           10)Provides 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 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.

          Background







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          According to the author:

            AB 1854 would 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 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 

          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.) 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.)  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.  
          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 allows  
          the prosecuting attorneys to recover their attorneys' fees.   
          After collection of costs (and attorneys' fees should this bill  
          become law), the cities and counties receive the remainder  
          according to Penal Code Sections 1463.001 and 1463.002.


          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:NoLocal:    No


          SUPPORT:   (Verified6/27/16)


          California State Association of Counties (co-source)
          Los Angeles County District Attorney (co-source)







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          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:   (Verified6/14/16)


          Orange County Bail Agents Association




          ASSEMBLY FLOOR:  74-2, 4/7/16
          AYES:  Achadjian, Alejo, Atkins, Baker, Bigelow, Bloom, Bonilla,  
            Bonta, Brown, Burke, Calderon, Chang, Chau, Chávez, Chiu, Chu,  
            Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier,  
            Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia,  
            Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley,  
            Harper, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey,  
            Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty,  
            Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell,  
            Olsen, Patterson, Quirk, Ridley-Thomas, Rodriguez, Salas,  
            Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner,  
            Waldron, Weber, Wilk, Williams, Wood, Rendon
          NOES:  Travis Allen, Brough
          NO VOTE RECORDED:  Campos, Roger Hernández, Levine

          Prepared by:Jerome McGuire / PUB. S. / 
          6/27/16 16:47:54


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