BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    AB 2655       Hearing Date: June 14, 2016        
          
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          |Author:    |Weber                                                |
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          |Version:   |May 5, 2016                                          |
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          |Urgency:   |No                     |Fiscal:    |No               |
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          |Consultant:|JM                                                   |
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                            Subject:  Bail:  Jurisdiction



          HISTORY

          Source:   California Attorneys for Criminal Justice

          Prior Legislation:SB 1649 (Johannessen) Ch. 170, Stats. 1994

          AB 989 (Vargas) Ch. Stats. 2012
          AB 2854 (Dymally)  2006, Vetoed
          SB 1245 (Polanco)  Ch. 434, Stats. 1995 
          AB 734 (Johnson)  Ch. 524, Stats. 1993
          Support:  American Civil Liberties Union of California;  
                    California Department of Insurance; California Public  
                    Defenders Association; Ella Baker Center for Human  
                    Rights; Judicial Council; Legal Services for Prisoners  
                    with Children

          Opposition:None known

          Assembly Floor Vote:                 78 - 0


          PURPOSE

          The purpose of this bill is to allow a court to extend the  
          statutorily required forfeiture or exoneration (return) of bail  







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          for 90 days to allow the prosecutor to file a complaint in the  
          matter for which the defendant was arrested and granted release  
          on bail, if either the defendant or the prosecutor requests the  
          extension. 

          Current law 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).)

          Current law 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).)

          Current law 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).)

          Current law 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).)

          Current law states that if the defendant appears either  
          voluntarily or in custody after surrender or arrest in court  








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          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).) 

          Current law 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).)

          Current law 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:

          a)   The bail agent is given prior notice of the reinstatement;  
               and (Pen. Code, § 1305, subd. (c)(4)(A).)
          b)   The bail agent has not surrendered the defendant. (Pen.  
               Code, § 1305, subd. (c)(4)(B).)

          Current law 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).)

          Current law 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.)

          Current law 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.)

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








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          Current law 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.) 

          Current law 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.)

          This bill 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.

          This bill provides that the extension may if either the  
          defendant or the prosecutor requests the extension in writing or  
          in open court.  

                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the past several years this Committee has scrutinized  
          legislation referred to its jurisdiction for any potential  
          impact on prison overcrowding.  Mindful of the United States  
          Supreme Court ruling and federal court orders relating to the  
          state's ability to provide a constitutional level of health care  
          to its inmate population and the related issue of prison  
          overcrowding, this Committee has applied its "ROCA" policy as a  
          content-neutral, provisional measure necessary to ensure that  
          the Legislature does not erode progress in reducing prison  
          overcrowding.   

          On February 10, 2014, the federal court ordered California to  
          reduce its in-state adult institution population to 137.5% of  
          design capacity by February 28, 2016, as follows:   

                 143% of design bed capacity by June 30, 2014;
                 141.5% of design bed capacity by February 28, 2015; and,
                 137.5% of design bed capacity by February 28, 2016. 

          In December of 2015 the administration reported that as "of  
          December 9, 2015, 112,510 inmates were housed in the State's 34  








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          adult institutions, which amounts to 136.0% of design bed  
          capacity, and 5,264 inmates were housed in out-of-state  
          facilities.  The current population is 1,212 inmates below the  
          final court-ordered population benchmark of 137.5% of design bed  
          capacity, and has been under that benchmark since February  
          2015."  (Defendants' December 2015 Status Report in Response to  
          February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge  
          Court, Coleman v. Brown, Plata v. Brown (fn. omitted).)  One  
          year ago, 115,826 inmates were housed in the State's 34 adult  
          institutions, which amounted to 140.0% of design bed capacity,  
          and 8,864 inmates were housed in out-of-state facilities.   
          (Defendants' December 2014 Status Report in Response to February  
          10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman  
          v. Brown, Plata v. Brown (fn. omitted).)  
           
          While significant gains have been made in reducing the prison  
          population, the state must stabilize these advances and  
          demonstrate to the federal court that California has in place  
          the "durable solution" to prison overcrowding "consistently  
          demanded" by the court.  (Opinion Re: Order Granting in Part and  
          Denying in Part Defendants' Request For Extension of December  
          31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,  
          Coleman v. Brown, Plata v. Brown (2-10-14).  The Committee's  
          consideration of bills that may impact the prison population  
          therefore will be informed by the following questions:

              Whether a proposal erodes a measure which has contributed  
               to reducing the prison population;
              Whether a proposal addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy;
              Whether a proposal addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
              Whether a proposal corrects a constitutional problem or  
               legislative drafting error; and
              Whether a proposal proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy.













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          COMMENTS

          1.   Need For This Bill

          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 Background, Bail Amounts, Premiums Forfeiture and  
          Exoneration

          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  








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          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 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

          A prosecutor 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.









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          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 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 contains no provision to  
               extend 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 Lumbermens Insurance Co.  
               (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  








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               defendant's arraignment, as provided for in §1305(a).   
               The court agreed with the insurer and concluded that  
               the trial court lost jurisdiction to order forfeiture  
               of the bond.  Previously, courts regularly continued  
               arraignment without forfeiting the bond until the  
               prosecutor determined whether or not to file charges.   
               After the Indiana Lumbermens decision our clients have  
               been forced to post bond twice through no fault of  
               their own, once when initially arrested, and after the  
               prosecutor files formal charges.  

               This rigid statute costs taxpayers money for law  
               enforcement, jail and court hours to re-arrest and  
               re-book the defendant. The court in Lumbermens stated:  
               "We do not consider this to be a satisfying outcome.   
               ?[I]t makes more sense? 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 Legislature may  
               amend the statute if it finds that the current  
               language does not comport with its intentions."  (Id.,  
               at 830)  This bill follows the recommendation of the  
               court in Indiana Lumbermens Insurance to amend the  
               statute to avoid this dissatisfying and unjust result.

          5.   Related Legislation - Attorney's Fees for Prosecutors in  
          Bail Litigation

          AB 1854 (Bloom), requires the district attorney, county counsel,  
          or applicable prosecuting agency to recover attorney's fees out  
          of the forfeited bail moneys.  AB 1854 is also set for hearing  
          in this Committee on June 14, 2016.





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