BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 1854|
|Office of Senate Floor Analyses | |
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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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