BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 1854| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- 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 AB 1854 Page 2 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 AB 1854 Page 3 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 AB 1854 Page 4 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) AB 1854 Page 5 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. 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