BILL NUMBER: AB 1824 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MAY 2, 2012
AMENDED IN ASSEMBLY MARCH 29, 2012
INTRODUCED BY Assembly Member Hagman
FEBRUARY 21, 2012
An act to amend Sections 1166, 1196,
Section 1305 , and 1306 of the Penal Code,
relating to bail.
LEGISLATIVE COUNSEL'S DIGEST
AB 1824, as amended, Hagman. Bail.
Existing law specifies the procedures for the forfeiture and
exoneration of a bail bond, including requiring a court to direct the
order of forfeiture to be vacated and the bond exonerated if the
defendant appears in court within 180 days of the date of forfeiture
or within 180 days of the date of mailing of a specified notice, if
required. Under existing law, in all cases of forfeiture where a
defendant is not in custody and is beyond the jurisdiction of the
state, is temporarily detained by the bail agent in the presence of
local law enforcement officer of the jurisdiction in which the
defendant is located, and is positively identified by that law
enforcement officer as the wanted defendant in an affidavit signed
under the penalty of perjury, and the prosecuting agency elects not
to seek extradition after being informed of the defendant'
s location, the court is required to vacate the forfeiture and
exonerate the bond.
This bill would require exoneration of the bond if the prosecuting
agency elects not to seek extradition when the defendant is
temporarily detained by the bail agent in a location beyond the
jurisdiction of the state but in the United States or a foreign state
that has a treaty of extradition with the United States. The bill
would require specified proof to be presented when the court is
vacating a bond in these instances, including the local law
enforcement officer's information and other information showing proof
of positive identification of the defendant. The bill would also
allow for an extension of the 180-day period described above, for an
additional period up to 180 days, if the prosecuting agency does not
make a decision within the original 180-day period and would
authorize the court to require that the bail agent or surety pay the
reasonable costs of extradition, in an amount not to exceed the bond,
as a condition of granting the extension. The bill would require the
moving party to give the prosecuting agency written notice at least
10 court days before a hearing on specified motions related to a
bond, including motions to exonerate the bond based on a decision by
the prosecuting agency not to extradite.
This bill would require the bond to be exonerated if the defendant
appears in court, is surrendered to custody by the bail, or is
arrested in the underlying case within 180 days after forfeiture and
would allow 30 days from the mailing of the notice of entry of
judgment to file a motion for exoneration if the defendant is
surrendered by the bail outside the county where the court is
located.
Under existing law, where a defendant is detained beyond the
jurisdiction of the court and the prosecuting agency elects not to
seek extradition, the court is required to vacate the forfeiture and
exonerate the bond.
This bill would require exoneration of the bond if the prosecution
elects not to seek extradition or transfer from a jurisdiction
outside the county. The bill would also require the court, if the
prosecuting agency elects to extradite the defendant, to toll the
180-day period for the time required by the prosecuting agency to
obtain an extradition warrant for the defendant plus a reasonable
time for the service of the warrant.
Under existing law, if a general verdict is rendered against the
defendant or a special verdict is given, the defendant is required to
be remanded or, if on bail, committed to the county to await
judgment.
The bill would require remand or commitment to the county after a
defendant enters a plea of guilty or is found guilty after entering a
plea of nolo contendre.
Existing law requires county agencies to enter each bench warrant
issued on a private surety-bonded felony case into the national
warrant system. If the county agency fails to do this and that
failure prevents the surety or bond agent from surrendering the
fugitive into custody, prevents the fugitive from being arrested or
taken into custody, or results in the fugitive's subsequent release
from custody, then the bail is exonerated.
This bill would require the warrants in the national warrant
system to be entered as fully extraditable warrants. By increasing
the duties of county agencies, this bill would impose a
state-mandated local program.
Existing law requires the district attorney or county counsel,
when a bond is forfeited after the 180-day period, to take specified
actions, including demanding immediate payment of the judgment within
30 days after summary judgment becomes final.
This bill would also make these requirements applicable to other
applicable prosecuting agencies and would authorize the named
agencies to enter into a court-approved resolution of the judgment of
forfeiture if the motion to vacate for forfeiture or judgment is
made.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes
no . State-mandated local program: yes
no .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1166 of the Penal Code is
amended to read:
1166. If a general verdict is rendered against the defendant, a
special verdict is given, the defendant enters a plea of guilty, or
the defendant is found guilty after entering a plea of nolo contendre
he or she shall be remanded, if in custody, or, if on bail, he or
she shall be committed to the proper officer of the county to await
the judgment of the court upon the verdict, unless, upon considering
the protection of the public, the seriousness of the offense charged
and proven, the previous criminal record of the defendant, the
probability of the defendant failing to appear for the judgment of
the court upon the verdict, and public safety, the court concludes
the evidence supports its decision to allow the defendant to remain
out on bail. When committed, his or her bail shall be exonerated or,
if money is deposited instead of bail, it shall be refunded to the
defendant or to the person or persons found by the court to have
deposited the money on behalf of the defendant.
SEC. 2. Section 1196 of the Penal Code is
amended to read:
1196. (a) The clerk shall, at any time after the order, issue a
bench warrant into one or more counties.
(b) The clerk shall require the appropriate agency to enter each
bench warrant issued on a private surety-bonded felony case into the
national warrant system (National Crime Information Center (NCIC)).
If the appropriate agency fails to enter the bench warrant into the
national warrant system (NCIC) as a fully extraditable warrant, and
the court finds that this failure prevented the surety or bond agent
from surrendering the fugitive into custody, prevented the fugitive
from being arrested or taken into custody, or resulted in the
fugitive's subsequent release from custody, the court having
jurisdiction over the bail shall, upon petition, set aside the
forfeiture of the bond and declare all liability on the bail bond to
be exonerated.
SEC. 3. SECTION 1. Section 1305 of
the Penal Code is amended to read:
1305. (a) A court shall 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:
(1) Arraignment.
(2) Trial.
(3) Judgment.
(4) Any other occasion prior to the pronouncement of judgment if
the defendant's presence in court is lawfully required.
(5) To surrender himself or herself in execution of the judgment
after appeal.
However, 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.
(b) (1) 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. The clerk shall also
execute a certificate of mailing of the forfeiture notice and shall
place the certificate in the court's file. If the notice of
forfeiture is required to be mailed pursuant to this section, the
180-day period provided for in this section shall be extended by a
period of five days to allow for the mailing.
(2) If the surety is an authorized corporate surety, and if the
bond plainly displays the mailing address of the corporate surety and
the bail agent, then notice of the forfeiture shall be mailed to the
surety at that address and to the bail agent, and mailing alone to
the surety or the bail agent shall not constitute compliance with
this section.
(3) 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.
(B) The clerk fails to mail the notice of forfeiture to the surety
at the address printed on the bond.
(C) The clerk fails to mail a copy of the notice of forfeiture to
the bail agent at the address shown on the bond.
(c) (1) If , within the county where the case is located,
the defendant appears in court, is surrendered to custody by the
bail, or is arrested in the underlying case within 180 days of the
date of forfeiture the defendant appears
voluntarily or is 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 under
subdivision (b) , 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. If the court fails to so act on its own
motion, then the surety's or depositor's obligations under the bond
shall be immediately vacated and the bond exonerated. An order
vacating the forfeiture and exonerating the bond may be made on terms
that are just and do not exceed the terms imposed in similar
situations with respect to other forms of pretrial release.
(2) If, within the county where the case is located, the defendant
is surrendered to custody by the bail or is arrested in the
underlying case within the 180-day period, and is subsequently
released from custody prior to an appearance in court, the court
shall, on its own motion, direct the order of forfeiture to be
vacated and the bond exonerated. If the court fails to so act on its
own motion, then the surety's or depositor's obligations under the
bond shall be immediately vacated and the bond exonerated. An order
vacating the forfeiture and exonerating the bond may be made on terms
that are just and do not exceed the terms imposed in similar
situations with respect to other forms of pretrial release.
(3) If, outside the county where the case is located,
either foreign or domestic, the defendant is surrendered to
custody by the bail or is arrested in the underlying case within the
180-day period, the court shall vacate the forfeiture and exonerate
the bail. Notwithstanding subdivision (i), a motion for
exoneration brought under this paragraph may be filed within 30 days
of the mailing of the notice of entry of judgment pursuant to Section
1306.
(4) In lieu 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 is given prior notice of the reinstatement.
(B) The bail has not surrendered the defendant.
(d) 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 under subdivision (b), it is made
apparent to the satisfaction of the court that both of the following
conditions are met:
(1) The defendant is deceased or otherwise permanently unable to
appear in the court due to illness, insanity, or detention by
military or civil authorities.
(2) The absence of the defendant is without the connivance of the
bail.
(e) In the case of a temporary disability, the court shall order
the tolling of the 180-day period provided in this section during the
period of temporary disability, provided that it appears to the
satisfaction of the court that the following conditions are met:
(1) The defendant is temporarily disabled by reason of illness,
insanity, or detention by military or civil authorities.
(2) Based upon the temporary disability, the defendant is unable
to appear in court during the remainder of the 180-day period.
(3) The absence of the defendant is without the connivance of the
bail.
The period of the tolling shall be extended for a reasonable
period of time, at the discretion of the court, after the cessation
of the disability to allow for the return of the defendant to the
jurisdiction of the court.
(f) In all cases where a defendant is in custody outside
the county where the case is located beyond the
jurisdiction of the court that ordered the bail forfeited , and
the prosecuting agency elects not to seek extradition or
transfer after being informed of the location of the
defendant, the court shall vacate the forfeiture and exonerate the
bond on terms that are just and do not exceed the terms imposed in
similar situations with respect to other forms of pretrial release.
If the prosecuting agency elects to extradite the defendant,
the court shall toll the 180-day time period for the time required
by the prosecuting agency to obtain an extradition warrant for the
defendant plus a reasonable time for the service of the warrant.
(g) (1) In all cases of forfeiture where a
defendant is not in custody and is beyond the jurisdiction of the
state , but in the United States or in a foreign state that has
a treaty of extradition with the United States , is temporarily
detained, by the bail agent, in the presence of a local law
enforcement officer of the jurisdiction in which the defendant is
located, and is positively identified by that law enforcement officer
as the wanted defendant in an affidavit signed under penalty of
perjury, and the prosecuting agency elects not to seek extradition
after being informed of the location of the defendant, the court
shall vacate the forfeiture and exonerate the bond on terms that are
just and do not exceed the terms imposed in similar situations with
respect to other forms of pretrial release. If the
prosecuting agency elects to extradite the defendant, the court shall
toll the 180-day time period for the time required by the
prosecuting agency to obtain an extradition warrant for the defendant
plus a reasonable time for the service of the warrant.
If the defendant is in a foreign state, the affidavit of the
local law enforcement officer shall comply with Section 1454 of the
Evidence Cod e, or, if the affidavit is a copy, Section
1530 of the Evidence Code.
(2) In any motion filed under this subdivision, proof shall be
presented showing the local law enforcement officer's full name,
title, agency name, contact telephone number, and contact address.
(3) In any motion filed under this subdivision, proof of positive
identification shall include proof of the defendant's permanent
residency in the state or country in which the defendant is detained
by the bail agent, a legible copy of a government identification,
including, but not limited to, a driver's license or passport issued
by an authorized public agency of the state or government of the
country in which the defendant is detained by the bail agent, with
the number of the identification written on the affidavit, a current
photograph, and a complete and clear set of fingerprints.
(4) If the prosecuting agency does not make an extradition
decision within the 180-day period provided in this section, the bail
agency or surety may make a motion to extend the 180-day period for
an additional period, not to exceed an additional 180 days. The
180-day extension may be renewed on the same basis as the original
order. The court may require that the bail agent or surety pay the
reasonable costs of extradition, in an amount not to exceed the value
of the bond, as a condition of granting the extension.
(h) As used in this section, "arrest" includes a hold placed on
the defendant in the underlying case while he or she is in custody on
other charges.
(i) A motion filed in a timely manner within the 180-day period
may be heard within 30 days of the expiration of the 180-day period.
The court may extend the 30-day period upon a showing of good cause.
The motion may be made by the surety insurer, the bail agent, the
surety, or the depositor of money or property, any of whom may appear
in person or through an attorney. The court, in its
discretion, may require that the moving party provide 10 days prior
notice to the applicable prosecuting agency, as a condition precedent
to granting the motion.
(j) In addition to any other notice required by law, the moving
party shall give the applicable prosecuting agency a written notice
at least 10 court days before a hearing pursuant to subdivisions (f),
(g), and (i), and Section 1305.4 as a condition precedent to
granting the motion.
SEC. 4. Section 1306 of the Penal Code is
amended to read:
1306. (a) When a bond is forfeited and the period of time
specified in Section 1305 has elapsed without the forfeiture having
been set aside, the court that has declared the forfeiture,
regardless of the amount of the bail, shall enter a summary judgment
against each bondsman named in the bond in the amount for which the
bondsman is bound. The judgment shall be the amount of the bond plus
costs, and notwithstanding any other law, no penalty assessments
shall be levied or added to the judgment.
(b) If a court grants relief from bail forfeiture, it shall impose
a monetary payment as a condition of relief to compensate the people
for the costs of returning a defendant to custody pursuant to
Section 1305, except for cases where the court determines that in the
best interest of justice no costs should be imposed. The amount
imposed shall reflect the actual costs of returning the defendant to
custody. Failure to act within the required time to make the payment
imposed pursuant to this subdivision shall not be the basis for a
summary judgment against any or all of the underlying amount of the
bail. A summary judgment entered for failure to make the payment
imposed under this subdivision is subject to the provisions of
Section 1308, and shall apply only to the amount of the costs owing
at the time the summary judgment is entered, plus administrative
costs and interests.
(c) If, because of the failure of a court to promptly perform the
duties enjoined upon it pursuant to this section, summary judgment is
not entered within 90 days after the date upon which it may first be
entered, the right to do so expires and the bail is exonerated.
(d) A dismissal of the complaint, indictment, or information after
the default of the defendant shall not release or affect the
obligation of the bail bond or undertaking.
(e) The district attorney, county counsel, or applicable
prosecuting agency shall:
(1) Demand immediate payment of the judgment within 30 days after
the summary judgment becomes final.
(2) If the judgment remains unpaid for a period of 20 days after
demand has been made, shall forthwith enforce the judgment in the
manner provided for enforcement of money judgments generally. If the
judgment is appealed by the surety or bondsman, the undertaking
required to be given in these cases shall be provided by a surety
other than the one filing the appeal. The undertaking shall comply
with the enforcement requirements of Section 917.1 of the Code of
Civil Procedure.
(3) If a motion to vacate forfeiture or judgment is made, be
authorized to enter into a court-approved resolution of the judgment
or forfeiture.
(f) The right to enforce a summary judgment entered against a
bondsman pursuant to this section shall expire two years after the
entry of the judgment.
SEC. 5. If the Commission on State Mandates
determines that this act contains costs mandated by the state,
reimbursement to local agencies and school districts for those costs
shall be made pursuant to Part 7 (commencing with Section 17500) of
Division 4 of Title 2 of the Government Code.