BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 2655|
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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
**** END ****
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