BILL ANALYSIS                                                                                                                                                                                                    Ó




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                                      CONSENT 


          Bill No:  AB 2655
          Author:   Weber (D) 
          Amended:  5/5/16 in Assembly
          Vote:     21 

           SENATE PUBLIC SAFETY COMMITTEE:  7-0, 6/14/16
           AYES:  Hancock, Anderson, Glazer, Leno, Liu, Monning, Stone

           ASSEMBLY FLOOR:  78-0, 5/9/16 - See last page for vote

           SUBJECT:   Bail:  jurisdiction


          SOURCE:    California Attorneys for Criminal Justice

          DIGEST:   This bill allows a court to extend the statutorily  
          required forfeiture or exoneration (return) of bail 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. 


          ANALYSIS:  

          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).)









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           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).)

           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  








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             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:

              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).)

           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 to 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.) 








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           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.)

          This bill:

          1)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.

          2)Provides that the extension may be granted if either the  
            defendant or the prosecutor requests the extension in writing  
            or in open court.  

          Background
          
          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.

          Bail is a security given to the court to guarantee a defendant's  
          future attendance at court proceedings.  The amount of bail  








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          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 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.

          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.  








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          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 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. 


          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:NoLocal:    No


          SUPPORT:   (Verified6/15/16)








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          California Attorneys for Criminal Justice (source)
          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:   (Verified6/15/16)


          None received




          ASSEMBLY FLOOR:  78-0, 5/9/16
          AYES:  Achadjian, Alejo, Travis Allen, Arambula, Atkins, Baker,  
            Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke,  
            Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley,  
            Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier,  
            Gallagher, Cristina Garcia, Gatto, Gipson, Gomez, Gonzalez,  
            Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden,  
            Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, 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
          NO VOTE RECORDED:  Beth Gaines, Eduardo Garcia


          Prepared by:Jerome McGuire / PUB. S. / 
          6/15/16 17:24:52


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