BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 2655


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          Date of Hearing:  April 19, 2016
          Counsel:               David Billingsley


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY


                       Reginald Byron Jones-Sawyer, Sr., Chair





          AB  
                        2655 (Weber) - As Amended  March 17, 2016




          SUMMARY:  Authorizes an extension of the court's jurisdiction to  
          declare a forfeiture and authority to release bail for not more  
          than 90 days if the arraignment is properly continued to allow  
          the prosecutor time to file the complaint and the defendant  
          requests the extension in writing or in open court.  

          EXISTING LAW:  

          1)Requires a court in open court declare forfeited the  
            undertaking of bail or the money or property deposited as bail  
            if, without sufficient excuse, a defendant fails to appear for  
            any of the following:  arraignment, trial, judgment, any other  
            occasion prior to the pronouncement of judgment if the  
            defendant's presence in court is lawfully required, and to  
            surrender himself or herself in execution of the judgment  
            after appeal. (Pen. Code, § 1305, subd. (a).)

          2)States that the court shall not have jurisdiction to declare a  
            forfeiture and the bail shall be released of all obligations  
            under the bond if the case is dismissed or if no complaint is  
            filed within 15 days from the date of arraignment. (Pen. Code,  
            § 1305, subd. (a).)









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          3)Specifies that if the amount of the bond or money or property  
            deposited exceeds four hundred dollars ($400), the clerk of  
            the court shall, within 30 days of the forfeiture, mail notice  
            of the forfeiture to the surety or the depositor of money  
            posted instead of bail. At the same time, the court shall mail  
            a copy of the forfeiture notice to the bail agent whose name  
            appears on the bond. (Pen. Code, § 1305, subd. (b).)

          4)Provides that the surety or depositor shall be released of all  
            obligations under the bond if any of the following conditions  
            apply:

             a)   The clerk fails to mail the notice of forfeiture in  
               accordance with this section within 30 days after the entry  
               of the forfeiture. (Pen. Code, § 1305, subd. (b)(1).)

             b)   The clerk fails to mail the notice of forfeiture to the  
               surety at the address printed on the bond. (Pen. Code, §  
               1305, subd. (b)(2).)

             c)   The clerk fails to mail a copy of the notice of  
               forfeiture to the bail agent at the address shown on the  
               bond. (Pen. Code, § 1305, subd. (b)(3).)

          5)States that if the defendant appears either voluntarily or in  
            custody after surrender or arrest in court within 180 days of  
            the date of forfeiture or within 180 days of the date of  
            mailing of the notice if the notice is required, the court  
            shall, on its own motion at the time the defendant first  
            appears in court on the case in which the forfeiture was  
            entered, direct the order of forfeiture to be vacated and the  
            bond exonerated.  (Pen. Code, § 1305, subd. (c)(1).) 
          
          6)Provides that if, outside the county where the case is  
            located, the defendant is surrendered to custody by the bail  
            or is arrested in the underlying case within the 180 day  
            period, the court shall vacate the forfeiture and exonerate  
            the bail. (Pen. Code, § 1305, subd. (c)(3).)

          7)States that instead of exonerating the bond, the court may  
            order the bail reinstated and the defendant released on the  
            same bond if both of the following conditions are met:








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             a)     The bail is given prior notice of the reinstatement;  
               and (Pen. Code, § 1305, subd. (c)(4)(A).)

             b)     The bail has not surrendered the defendant. (Pen.  
               Code, § 1305, subd. (c)(4)(B).)

          8)Specifies that in the case of a permanent disability, the  
            court shall direct the order of forfeiture to be vacated and  
            the bail or money or property deposited as bail exonerated if,  
            within 180 days of the date of forfeiture or within 180 days  
            of the date of mailing of the notice, if notice is required,  
            it is made apparent to the satisfaction of the court that  
            specified conditions are met. (Pen. Code, § 1305, subd. (d).)

          9) 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.)

          10)States that defendants forfeit their bail when they abscond,  
            i.e. when the defendant fails to appear for their court  
            hearing without a valid excuse.  (Pen. Code, § 1275, 1305.)

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

          12)Provides that if an action against a defendant who has been  
            admitted to bail is dismissed, the bail shall not be  
            exonerated until a period of 15 days has elapsed since the  
            entry of the order of dismissal. (Pen. Code, § 1303.) 

          13)States that if, within 15 days from dismissal, the defendant  
            is arrested and charged with a public offense arising out of  
            the same act or omission upon which the action or proceeding  
            was based, the bail shall be applied to the public offense.  
            (Pen. Code, § 1303.)

          FISCAL EFFECT:  Unknown









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          COMMENTS:  

          1)Author's Statement:  According to the author, "This  
            legislation addresses an appeal by a California court to  
            change an undesirable outcome based on strict statutory  
            language. This bill will extend the amount of time a  
            prosecuting agency has to file a criminal complaint, from 15  
            days to 90 days, to ensure that a defendant is not required to  
            post multiple bonds at no fault of their own.

          "AB 2655 will provide flexibility to courts and district  
            attorneys in accommodating any delays in filing a criminal  
            complaint. Before the People vs. Indiana Lumbermen's Insurance  
            case, the common practice of the court was to continue the  
            arraignment, retain jurisdiction of the defendant's bond, and  
            provide more time for the district attorney to file a criminal  
            complaint. By making this clarification, state resources will  
            be saved by not having a court re-issue a warrant, law  
            enforcement re-arrest a defendant, and a jail re-booking a  
            defendant following the strict 15 day period in the statute."

          2)Bail:  Bail is a security given to the court to guarantee a  
            defendant's future attendance at court proceedings.  The  
            amount of bail required is typically set according to the  
            local bail schedule that lists common offenses and a suggested  
            amount.  These bail schedules are set by county judges.  At  
            arraignment, the magistrate will review the case and set bail  
            in an amount he or she deems sufficient to ensure the  
            defendant's appearance.  While the usual practice is to adhere  
            to scheduled bail, either the prosecution or the defense may  
            argue for a departure from the bail schedule based on  
            aggravating and mitigating factors, danger to the public, and  
            ties to the community.  

          Bail permits an individual to be released from actual custody  
            into the constructive custody of a surety on a bond given to  
            procure the defendant's release.  Bail, once posted, stands  
            until forfeited (taken by the court) or exonerated (released)  
            to ensure the defendant's appearance at all stages of the  
            proceedings on the original charge.  If bail was posted  
            through a bail bond agency, the agent and the defendant sign a  
            bail agreement that will usually fix the term of the bail bond  








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            as one year.  The defendant must pay a renewal premium for any  
            additional period. 

          Most individuals that post bail go through a bail bondsman.  The  
            individual pays the bail bondsman a premium and the bail  
            bondsman posts the full amount of the bail.  The premium is  
            generally 10% of the bond.  The premium is the payment from  
            the individual to the bail bondsman for posting the full  
            amount of the bail.  The premium is non-refundable.  When the  
            court exonerates the bail, the bail money is returned to the  
            bail bondsman whom posted the bail.  If a criminal complaint  
            is filed, the bail is exonerated when the case is over, or the  
            defendant is taken into custody.  In either of those cases,  
            the bail is no longer needed to secure the defendant's  
            appearance.  The bail is also exonerated if no criminal  
            complaint is filed within 15 days from the date of the  
            arraignment.  The arraignment is the initial court appearance.  
             A defendant that is arrested and bails out immediately is  
            normally given an arraignment date of the next business day to  
            appear in court.

          3)Requiring Exoneration of Bail Bond after 15 Days if No  
            Complaint is Filed Results In Individuals Paying Premiums for  
            Two Bail Bonds:  The office of the district attorney is not  
            required to file criminal charges immediately, or even within  
            a time frame of 30 or 60 days.  Criminal charges must be filed  
            before the applicable statute of limitations period.  

          There are a variety of reasons a district attorney's office  
            might not file a charge immediately.  Sometimes there is a  
            need for additional investigation to determine if there is  
            sufficient evidence to file charges.  In cases involving  
            drugs, there might be a delay to wait on lab results.  
            Sometimes charges are not filed immediately because there has  
            not been an opportunity for a district attorney responsible  
            for charging crimes to review the police report or other  
            evidence.

          When bail has been posted on behalf of an individual, a delay in  
            the filing of criminal charges can result in the bail being  
            released (exonerated) by the court.  Current law requires the  
            court to exonerate bail if no complaint has been filed within  








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            15 days of the arraignment.  If the district attorney's office  
            files charges after the bail has been exonerated, the  
            individual can be required to post bail a second time.  This  
            is particularly problematic when an individual has posted bail  
            through a bail bondsman.  In those situations, even though  
            bail has been exonerated, the individual does not get back the  
            premium he or she paid to the bail bondsman.  If the  
            individual is required to post a second bail, it results in  
            substantial expense.  If the individual does not have the  
            money to pay a second premium to a bail bondsman, the  
            defendant will be taken into custody, even though they had  
            already posted bail once before.  

          This bill allows an extension of 90 days before being required  
            to exonerate bail if no complaint is filed.  Such an extension  
            would require the arraignment to be continued and a request to  
            be made the defendant in writing or in open court.  That  
            extension allows for situations where the district attorney's  
            office has not completed their investigation, or there has  
            been some other delay in making a decision about whether to  
            file criminal charges. 

          4)Argument in Support:  According to The California Attorneys  
            for Criminal Justice, "Under Penal Code section 1305, the  
            defendant's bail must be released if no criminal complaint is  
            filed within 15 days of the first scheduled arraignment.  
            Unfortunately, the statute contained no provision for  
            extending the 15-day period. As a result, whenever the  
            District Attorney is delayed in filing a criminal complaint, a  
            defendant may be forced to pay for a second bail.

          "In the People v. Indiana Lumbermen's Insurance (2010) 190  
            Cal.App. 4th, 823, the insurance company argued that the trial  
            court had no jurisdiction to forfeit the bond because a  
            complaint was not filed within 15 days of the original date  
            set for a criminal defendant's arraignment, as provided for in  
            §1305(a). The court concluded that the trial court lost  
            jurisdiction to order forfeiture of the bond.

          "Before this decision, the courts regularly continued an  
            arraignment without forfeiting the bond until the DA  
            determined whether or not to file charges. By taking away a  








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            court's jurisdiction to declare a forfeiture after the 15 day  
            time window, Lumbermen's changed that practice in a  
            significant way. 

          "Due to this change, we have faced circumstances where our  
            clients have been forced to post a bond twice, once when  
            initially arrested, and after the DA's decision to file formal  
            charges beyond the statutory 15-day deadline. This is an  
            unjust result because it forces the defendant to post bond  
            twice due to no fault of the defendant. This ambiguity in this  
            section handcuffs the court without allowing discretion,  
            limiting what commonly occurred what commonly occurred  
            commonly in practice.

          "In addition, by not allowing this continuance, this rigidity  
            costs taxpayers of this state substantial amounts of money  
            used on wasted law enforcement, jail and court hours to  
            re-arrest and re-book the defendant. The court in Lumberman's  
            did not find the outcome satisfying:

            "[w]e do not consider this to be a satisfying outcome. We  
            agree with county counsel that it makes more sense, in  
            terms of public policy, to permit a court to continue the  
            arraignment to give the prosecuting agency more time to  
            decide whether to file charges while still retaining  
            jurisdiction to order forfeiture of the bond if the  
            defendant fails to appear at the subsequent arraignment.  
            However, if that was the Legislature's intent, it has  
            failed to say so. The statute contains no provision for  
            extending the 15-day period within which the prosecuting  
            agency is required to file the complaint. We may not read  
            into the statute a provision that is clearly not  
            encompassed within the statutory language ? The  
            Legislature may amend the statute if it finds that the  
            current language does not comport with its intentions. Id  
            at 830.

            "We are acting upon the court's recommendation in amending  
            the statute to avoid this dissatisfying and unjust result.

          5)Related Legislation:  AB 1854 (Bloom), requires the district  
            attorney, county counsel, or applicable prosecuting agency to  








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            recover attorney's fees out of the forfeited bail moneys.  AB  
            1854 is awaiting referral in the Senate Rules Committee.  

          6)Prior Legislation:  

             a)   AB 1082 (Linder) of the 2015-2016 Legislative Session,  
               would have extended from 10 to 12 days the notice of motion  
               a surety must give the court prior to requesting an  
               extension of the 180 day period in which the surety must  
               return an offender to court in order to avoid a permanent  
               forfeiture of bail.  AB 1082 was referred Assembly Public  
               Safety Committee, but was never heard.  

             b)   AB 1118 (Hagman), of the 2013-2014 Legislative Session,  
               would have required the Judicial Council, on or before  
               January 1, 2015, to prepare, adopt and annually revise a  
               statewide bail schedule for all bailable felony,  
               misdemeanor, and infraction offenses except Vehicle Code  
               infractions.  AB 1118 failed passage in the Senate  Public  
               Safety Committee.

             c)   AB 805 (Jones-Sawyer), Chapter 17, Statutes of 2013,  
               provides that in setting bail, a judge or magistrate may  
               consider factors such as the report prepared by  
               investigative staff for the purpose of recommending whether  
               a defendant should be released on his/her own recognizance.

             d)   AB 723 (Quirk), of the 2013-2014 Legislative Session,  
               would have allowed a person on post-release community  
               supervision who has a revocation petition filed against him  
               or her to file an application for bail with the superior  
               court.  AB 723 was held on the Senate Appropriations  
               Committee Suspense File.

          REGISTERED SUPPORT / OPPOSITION:

          Support
          
          California Attorneys for Criminal Justice (Sponsor)
          American Civil Liberties Union of California
          California Department of Insurance
          California Public Defenders Association








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          Ella Baker Center for Human Rights
          Legal Services for Prisoners with Children

          Opposition
          
          None  

          Analysis Prepared  
          by:              David Billingsley / PUB. S. / (916) 319-3744