BILL ANALYSIS Ó
SB 405
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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
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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).)
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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
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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).)
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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.
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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
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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
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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
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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.
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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
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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