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