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.
-- END -
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