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