BILL ANALYSIS Ó SB 405 Page 1 Date of Hearing: June 30, 2015 Counsel: David Billingsley ASSEMBLY COMMITTEE ON PUBLIC SAFETY Bill Quirk, Chair SB 405 (Hertzberg) - As Amended June 1, 2015 SUMMARY: Requires courts to allow individuals to schedule court proceedings, even if bail or civil assessment has been imposed. Specifically, this bill: 1)Provides that the ability to post bail or to pay the civil assessment is not a prerequisite to filing a request that the court vacate the assessment. 2)States that imposition or collection of a civil assessment or SB 405 Page 2 bail shall not prevent a defendant from scheduling a court hearing on the underlying charge. EXISTING LAW: 1)Provides that in addition to any other penalty in an infraction, misdemeanor, or felony the court may impose a civil penalty up to $300 against any defendant who fails to appear in court for any proceeding or fails to pay any portion of the fine ordered by the court. (Pen. Code, § 1214.1, subd. (a).) 2)Provides that the assessment shall not become effective until at least 10 calendar days after the court mails a warning to the defendant, and the court shall vacate the order for the assessment if the person appears in time and shows good failure to appear or failure to pay the fine. (Pen. Code, § 1214.1, subd. (b).) 3)Specifies that if a civil assessment is imposed under this section, no bench warrant or warrant of arrest shall be issued with respect to the failure to appear at the proceeding for which the assessment is imposed or the failure to pay the fine or installment of bail. (Pen. Code, § 1214.1, subd. (c).) 4)States that an outstanding, unserved bench warrant or warrant of arrest for a failure to appear or for a failure to pay a fine or installment of bail shall be recalled prior to the subsequent imposition of a civil assessment. (Pen. Code, § 1214.1, subd. (c).) SB 405 Page 3 5)Provides that the civil assessment imposed shall be subject to the due process requirements governing defense and collection of civil money judgments generally. (Pen. Code, § 1214.1, subd. (d).) 6)Allows the clerk of the court to accept a payment and forfeiture of at least 10 percent of the total bail amount for each infraction violation of the Vehicle Co code prior to the date on which the defendant promised to appear, or prior to the expiration of any lawful continuance of that date, or upon receipt of information that an action has been filed, and prior to the scheduled court date, if all of the following circumstances exist: a) The defendant is charged with an infraction violation of this code or an infraction violation of an ordinance adopted pursuant to the Vehicle Code. (Veh. Code, § 40510.5, subd. (a)(1).) b) The defendant submits proof of correction, when proof of correction is mandatory for a correctable offense. (Veh. Code, § 40510.5, subd. (a)(2).) c) The offense does not require an appearance in court. (Veh. Code, § 40510.5, subd. (a)(3).) d) The defendant signs a written agreement to pay and forfeit the remainder of the required bail according to an installment schedule as agreed upon with the court. The SB 405 Page 4 Judicial Council shall prescribe the form of the agreement for payment and forfeiture of bail in installments for infraction violations. (Veh. Code, § 40510.5, subd. (a)(4).) 7)Specifies that when a clerk accepts an agreement for payment and forfeiture of bail in installments, the clerk shall continue the appearance date of the defendant to the date to complete payment and forfeiture of bail in the agreement. (Veh. Code, § 40510.5, subd. (b).) 8)Provides that for the purposes of reporting violations of the Vehicle Code to the Department of Motor Vehicles under Section 1803, the date that the defendant signs an agreement to pay and forfeit bail in installments shall be reported as the date of conviction. (Veh. Code, § 40510.5, subd. (d).) 9)States that when the defendant fails to make an installment payment, the court may charge a failure to appear or pay and impose a civil assessment as specified, or issue an arrest warrant for a failure to appear. (Veh. Code, § 40510.5, subd. (e).) 10)States that payment of a bail amount under this section is forfeited when collected and shall be distributed by the court in the same manner as other fines, penalties, and forfeitures collected for infractions. (Veh. Code, § 40510.5, subd. (f).) 11)Specifies that the defendant shall pay to the clerk of the court or the collecting agency a fee for the processing of installment accounts. This fee shall equal the administrative and clerical costs, as determined by the board of supervisors or by the court, except that the fee shall not exceed $35. (Veh. Code, § 40510.5, subd. (g).) SB 405 Page 5 12)Requires courts to allow a defendant to appear for arraignment and trial without deposit of bail on traffic infraction violations of the Vehicle Code. (Rule of Court 4.105, subd. (b).) except: a) Courts must require the deposit of bail when the defendant elects a statutory procedure that requires the deposit of bail (Rule of Court 4.105, subd. (c)(1).) ; b) Courts may require the deposit of bail when the defendant does not sign a written promise to appear as required by the court (Rule of Court 4.105, subd. (c)(2).); and c) Courts may require a deposit of bail before trial if the court finds, based on the circumstances of a particular case, that the defendant is unlikely to appear as ordered without a deposit of bail and the court expressly states the reasons for the finding. (Rule of Court 4.105, subd. (c)(3).) 13)States that courts must inform defendants of the option to appear in court without the deposit of bail in any instructions or other materials courts provide for the public that relate to bail for traffic infractions, including any website information, written instructions, courtesy notices, and forms. Courts must implement this subdivision as soon as reasonably possible but no later than September 15, 2015. (Rule of Court 4.105, subd. (d).) FISCAL EFFECT: Unknown. SB 405 Page 6 COMMENTS: 1)Author's Statement: According to the author, "Due to increases in fines and fees, a staggering number of Californians have no access to courts when they are cited for traffic citations. Exorbitant fees can make it challenging for low-income people to resolve minor traffic infractions since many counties require fines to be paid prior to a hearing on the infraction. As a result of unclear policy and high fees, drivers often do not have the opportunity to see a judge and essentially lose the right to due process. "The proposed solution is to reverse that general practice. It will have an effect on the 4.2 million California drivers who have had their licenses suspended in the last eight years for not paying what started out as minor traffic violations or for missing a deadline to appear in court." 2)Budget Cuts Since the Great Recession Have Reduced the Public's Access to Courts: Since the Great Recession in 2008, the California court system in particular has faced unprecedented budget cuts. The result has been years of courthouse closures and layoffs, with over $1 billion in budget reductions and closures of over 200 courtrooms. Members of the public seeking to use court services have found fewer courthouses open for fewer days for shorter hours and with longer lines, among many other barriers to access." (Not Just a Ferguson Problem, How Traffic Courts Drive Inequality in California, p. 12.) ( http://www.lccr.com/wp-content/uploads/Not-Just-a-Ferguson-Pro blem-How-Traffic-Courts-Drive-Inequality-in-California-4.20.15. pdf .) "These court cuts have directly impacted people facing citations SB 405 Page 7 in traffic court. In addition to the general lack of court access, people with tickets have found themselves increasingly shut out of the traffic court system as a result of courts' growing use of "bail" requirements. In essence, courts have begun to require payment of "total bail," or the full amount owed on a citation, as a precondition to accessing court resources." (Ibid.) "A person cannot have an initial hearing on their ticket at all without paying the fine up front. If that person ultimately prevails in fighting the ticket, they would in effect be seeking reimbursement from the court." (Ibid.) 3)Recently Adopted Rule of Court Does Not Address Denials of Court Access Based on Civil Assessments for Failures to Appear or Pay Fine: California courts recently adopted Rule of Court 4.105. That rule was adopted on an expedited basis. It requires courts to allow a defendant to appear for arraignment and trial without a deposit of bail on traffic infraction violations of the Vehicle Code. (Rule of Court 4.105, subd. (b).) This rule states that courts must inform defendants of the option to appear in court without the deposit of bail in any instructions or other materials courts provide for the public that relate to bail for traffic infractions, including any Web site information, written instructions, courtesy notices, and forms. (Rule of Court 4.105, subd. (d).) Courts are to implement this rule as soon as reasonably possible, but no later than September 15, 2015. Rule of Court 4.105 does not address access to courts in those situations where an individual missed the appearance on their traffic ticket, or failed to pay the traffic fine by the required court date, but is prevented from scheduling a court appearance because the bail or civil assessment has not been paid. SB 405 addresses those situations not covered by Rule of Court 4.105. 4)Imposition of Civil Assessment When Individual Misses a Court Date or Fails to Pay Fine: When a person misses a court date or a deadline to pay a traffic ticket, the court can add up to $300 to the original fine. (Pen. Code, § 1214.1.) This amount SB 405 Page 8 is referred to as a "civil assessment" and may only be imposed if the person gets notice and still does not pay or appear within a specified time. If a civil assessment has been imposed, a person should be able to demonstrate that they had good cause for the failure to appear in court or failure to pay the fine. In order to do that, the person needs to get a court appearance in front of a judge. SB 405 would mandate that where a civil assessment has been imposed, a person can schedule a court appearance without having to pay the civil assessment, or fine amount of the ticket, before going to court. SB 405 would also ensures that a person can schedule a court date on the on the underlying traffic ticket without paying the civil assessment or fine. 5)Argument in Support: According to Western Center on Law & Poverty (WCLP), "Under current law, if people have failed to appear at a court date (FTA), their driver's license will be suspended and they will be required to pay full bail (all the fines, fees and assessments) before they can even appear in front of a judge. They are convicted of the FTA and receive an extra $300 civil assessment without ever having been in court, even though such a conviction requires a finding of willfulness. Low income people, who cannot afford to pay full bail, are effectively locked out of court. So, they cannot show good cause for their non-appearance, which means they cannot avail themselves of the benefits of the judge's other discretionary powers. Ultimately, this method of requiring full bail before a person is allowed to see a judge creates a two-tiered system of justice where people's access to justice depends on whether they can pay. This results in poor people missing out on due process. "WCLP and other legal aid organizations compiled a report highlighting this due process problem: 'Not just a Ferguson Problem - How Traffic Courts Drive Inequality in California.' California's Judicial Council (JC) responded by issuing an expedited rule, Rule 4.105. While we approve of the Judicial Council's first step in correcting this problem, we recognize SB 405 Page 9 that the rule leaves out a large group of people who cannot access the court because of the bail requirement. The JC rule states that courts shall not require bail before a hearing, but only for those people who already 'appeared by the appearance date or an approved extension of that date.' Cal Rules of Court, Rule 4.105. This requirement unfortunately excludes people who missed their original court date, and only benefits those who attended their first court date and thereafter failed to appear. As advocates of low-income clients who experience the current system, we see that the principal problem is with exactly that group of people who missed their original court date and cannot get in front of a judge because they cannot afford the payments. "SB 405 will amend Section 1214.1 of the Penal Code to prohibit courts from requiring people with FTAs to pay full bail before seeing a judge. This will cover the people that are left out from the JC's rule and ensure that anyone who has an FTA will have constitutional due process and be able to see a judge to either establish a payment plan, ask for a fee waiver or community service, or show good cause on the FTA." 6)Related Legislation: SB 85, enrolled June 22, 2015, effective immediately, allows counties to set up amnesty programs for fines incurred prior to January 1, 2013. Programs will expire January 1, 2018. 7)Prior Legislation: a) SB 366 (Wright), of the Legislative Session of 2013-2014, held in Senate Appropriations, would have given courts more discretion to consider defendants ability to pay in setting fines and fees. b) AB 2724 (Bradford), of the Legislative Session of 2013-2014, held in Assembly Appropriations, would have allowed defendants to get their driving privileges back when the driver's license had been suspended for failing to pay a fine, if they agree to pay in installments. SB 405 Page 10 REGISTERED SUPPORT / OPPOSITION: Support A New Way of Life (Co-Sponsor) East Bay Community Law Center (Co-Sponsor) Legal Services for Prisoners with Children (Co-Sponsor) ACLU American Friends Service Committee California Association of Highway Patrolmen California Association of Local Conservation Corps California Attorneys for Criminal Justice California Catholic Conference, Inc. California Department of Insurance California Immigrant Policy Center California Partnership California Public Defenders Association SB 405 Page 11 Consumer Attorneys of California Courage Campaign Personal Insurance Federation of California National Association of Social Workers PICO California Rubicon Programs Western Center on Law & Poverty Opposition None Analysis Prepared by:David Billingsley / PUB. S. / (916) 319-3744