BILL ANALYSIS �
AB 1824
Page 1
Date of Hearing: April 17, 2012
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1824 (Hagman) - As Amended: March 29, 2012
SUMMARY : Requires all defendants to be remanded or committed to
custody after entering a plea of guilty or nolo contendre, and
once committed his or her bail shall be exonerated, or any money
deposited on behalf of the defendant shall be refunded.
Specifically, this bill:
1)Requires the county agencies to enter bench warrants issued on
a private surety-bonded felony case into the national warrant
system as a fully extraditable warrant.
2)Requires a bond to be exonerated 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.
3)Clarifies that if the defendant is surrendered to the custody
by the bail or is arrested in the underlying case outside the
county where the case is located, either foreign or domestic,
within the 180 day period, the court shall vacate the
forfeiture and exonerate the bail.
4)Allows a motion for exoneration to be filed within 30 days of
the mailing of the notice of entry of judgment against a
bondsman for the bond and plus costs.
5)States that in all cases where a defendant is in custody
outside the country where the case is located, 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.
6)Provides that in cases where a defendant is in custody outside
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the country where the case is located and 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.
7)States that 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 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 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.
8)Authorizes a district attorney, county counsel, or applicable
prosecuting agency, if a motion to vacate forfeiture or
judgment is made, to enter into a court-approved resolution of
the judgment or forfeiture.
EXISTING LAW :
1)Provides that, except as specified, a person accused of a
crime is entitled to be released on bail and that the court
may not set excessive bail. Further provides that in fixing
the amount of bail, the court shall take into consideration
the seriousness of the charged offense, prior criminal record,
and probability of appearing at the trial or hearing.
(Article 1, Section 12 of the California Constitution.)
2)States that if a defendant has appeared before a judge of the
court on the charge contained in the complaint, indictment, or
information, the bail shall be in the amount fixed by the
judge at the time of the appearance. If that appearance has
not been made, the bail shall be in the amount fixed in the
warrant of arrest or, if no warrant of arrest has been issued,
the amount of bail shall be pursuant to the uniform countywide
schedule of bail for the county in which the defendant is
required to appear, previously fixed and approved by a uniform
countywide schedule of bail. �Penal Code Section 1269b(b).]
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3)Provides that it is the duty of the judges in each county to
prepare, adopt, and annually revise as necessary a uniform
countywide bail schedule based on the requirements that apply
to that jurisdiction for all bailable felony offenses and
misdemeanors except Vehicle Code infractions. The penalty
schedule for infraction violations of the Vehicle Code shall
be established by the Judicial Council. �Penal Code Section
1269b(c).]
4)Provides that the uniform countywide bail schedule shall
contain a list of offenses and corresponding applicable bail
amount and a general clause for any offenses not enumerated.
�Penal Code Section 1269b(f).]
5)Requires a court in open court to 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 �Penal Code Section 1305(a)]:
a) Arraignment;
b) Trial;
c) Judgment;
d) Any other occasion prior to the pronouncement of
judgment if the defendant's presence in court is lawfully
required; and
e) 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.
6)States if the amount of the bond or money or property
deposited exceeds $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
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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. �Penal Code Section 1305(b).]
7)Provides 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 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. �Penal Code
Section 1305(c)(1).]
8)Provides that 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.
�Penal Code Section 1305(c)(2).]
9)States if, outside 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, the court
shall vacate the forfeiture and exonerate the bail. �Penal
Code Section 1305(c)(3).]
10)Authorizes a court, in lieu of exonerating the bond, to order
the bail reinstated and the defendant released on the same
bond if both of the following conditions are met �Penal Code
Section 1305(c)(4).]:
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a) The bail is given prior notice of the reinstatement; or
b) The bail has not surrendered the defendant.
11)Provides that in all cases where a defendant is in custody
beyond the jurisdiction of the court that ordered the bail
forfeited, 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. �Penal Code Section 1305(f).]
12)Provides that 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 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. �Penal Code
Section 1305(g).]
13)States that a motion may be filed by the surety insurer, the
bail agent, the surety, or the depositor of money or property,
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 court, in its discretion, may require the moving
party to provide 10 days prior notice to the applicable
prosecuting agency, as a condition precedent to granting the
motion. �Penal Code Section 1305(i).]
14)States that when any bond is forfeited and the period of time
specified has elapsed without the forfeiture having been set
aside, the court which has declared the forfeiture, regardless
of the amount of bail, shall enter 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. �Penal
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Code Section 1306(a).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "This bill is
necessary to close unforeseen holes in current statutes, to
bring the codes back in line with their original spirit, and
to provide a fair shake to those in the bail bonding
industry."
2)Background : According to the background information provided
by the author, "Current law relating to bail was written over
20 years ago and needs to be cleaned up to account for
eventualities. The codes pertaining to these sections are
Penal Codes 1166, 1196, 1305(c)(1), 1305(c)(3), 1305(f),
1305(g), 1306, and 1306(e). These codes need to be modernized
in order to better serve everyone involved in the bail
process."
3)Provision Requiring Remand or Commitment to Custody : This
bill requires the court to remand or commit to the county all
defendants who have pled guilty or no contest. The court
already has the power to order a defendant remanded, but to
place a mandate on the court not only removes judicial
discretion but also places a burden on courts' already
strained resources due to reductions in the budget. In a
climate where public access to courts has been reduced,
self-help services have been eliminated, and increasing
backlogs of case processing, is this a good use of the courts'
resources?
Additionally, this provision is impractical in the current
criminal justice system. There are a myriad of cases where a
defendant would not be required to serve any time in custody,
including infractions, low-level misdemeanors and any offense
eligible for diversion or deferred entry of judgment. This
provision also undermines plea bargaining, which is how the
large majority of cases are resolved, as the provision makes
obsolete any plea deals where a defendant does not have to
serve time in custody.
4)Argument in Support : According to the Congress of Racial
Equality of California , "This bill specifically addresses
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accountability of offenders who flee jurisdiction for either
avoidance of prosecution or incarceration which has become a
problem by virtue of the California only warrants placed in
NCIC issues by the courts. Further, when defendants are
located on foreign soil, bail agents are limited in their
ability to have them returned to court in many cases by the
process of obtaining an extradition warrant. The
prosecutorial agency is charged with obtaining the extradition
warrant in a process that may exceed the statutory limit
required by law to return defendants to custody or court. We
contend that the time in such cases where reasonable cause
exists should be tolled for the process to reach fruition."
5)Arguments in Opposition :
a) According to California Attorneys for Criminal Justice
(CACJ), "AB 1824, mandates the incarceration of defendants
upon entry of plea, including defendants who have appeared
in court as required. This legislation has the potential
to cause many more cases which should resolve by plea to
proceed to trial.
"CACJ also cannot support language which mandates that every
bench warrant issued for failing to appear in court be
fully extraditable.
"Our organization, however, is not opposed to the tolling of
the 180 day period in which a bondsman has to apply for
exoneration of bail in cases where an absconding defendant
is arrested out of state and extradition proceedings have
begun."
b) According to the Los Angeles County District Attorney's
Office , "AB 1824 would dictate to the prosecution that a
decision pertaining to extradition, a complicated
determination that involves the United States Department of
State, must be made within 30 days.
"A decision to extradite is not one that can be rushed,
especially when on many occasions the documentation
provided to the District Attorney has failed to positively
identify the defendant. Even when it does, the extradition
decision involves considerations of the expense of return
and negotiations with the Department of State. Such
decision cannot be made in an instant, nor should they be.
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Moreover, it is not in the public interest for information
regarding out strategies and analysis on a fugitive case to
become a matter of public record, since a fugitive may go
into hiding or move to another country if he/she becomes
aware of actions taken regarding his/her case.
"Another concern our office has with AB 1824 is the provision
that would require that a defendant be remanded upon a plea
of guilty or nolo contendre. While this may seem
reasonable it may have the unintended consequence of
interfering with the prosecution's ability to settle cases
without the need for a costly, time consuming trial.
"Our office also has concerns about the provision in AB 1824
that would require all bench warrants (failure to appear)
where bail has been posted as a fully extraditable warrant.
This requirement interferes with the People's right to
decide on how to proceed with its prosecution. There may
be instances where it is either unreasonable or impractical
to request extradition."
6)Related Legislation :
a) AB 2029 (Ammiano) provides for the regulation of bail
fugitive recovery persons. AB 2029 is currently pending
hearing by the Committee on Appropriations.
b) AB 1913 (Skinner) allows a person on post-release
supervision who has a revocation petition filed against him
or her to make an application for bail pending the
revocation hearing. AB 1913 is currently pending hearing
by the Committee on Appropriations.
c) AB 1529 (Dickinson) establishes a structure for the
jurisdiction over the appeal of the forfeiture of a bail
bond. AB 1529 is currently pending hearing by this
Committee.
d) SB 989 (Vargas) requires the court to exonerate the bond
if the prosecuting agency or the United States Attorney
fails to make an extradition decision within a reasonable
period of time after receiving the affidavit would also
require the court to exonerate the bond where it is shown
to the satisfaction of the court that the defendant has
been deported to a foreign country. SB 989 is currently
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pending hearing by the Senate Committee on Public Safety.
7)Previous Legislation :
a) AB 1093 (Runner), of the 2007-08 Legislative Session,
would have tolled the 180-day period before which bail is
forfeited until such time as the defendant is returned to
the jurisdiction that issued the forfeiture if a he or she
is in custody beyond the jurisdiction of the court and the
prosecuting agency elects to seek extradition or if the
prosecution terminates the extradition order and written
notice is provided to the surety and bail agent. AB 1093
failed passage in this Committee.
b) AB 2166 (Tran), of the 2007-08 Legislative Session,
would have clarified the appellate procedure for appeals
from orders of the superior courts on motions to vacate
bail forfeitures. AB 2166 failed passage in this
Committee.
c) AB 1133 (Dymally), of the 2007-08 Legislative Session,
would have required the court to make specified findings in
order to toll the 180-day time limit to return a defendant
after the bail has been forfeited in order to receive a
bail reinstatement if the extradition process is in effect
and requires the bail or surety to pay the prosecuting
agency's actual costs to extradite the defendant. AB 1133
was vetoed.
d) AB 2854 (Dymally), of the 2005-06 Legislative Session,
would have authorized a bail or surety to file a motion to
toll the 180-day time limit to return a defendant after
bail is forfeited during the time the prosecuting attorney
is seeking extradition. AB 2854 was vetoed.
REGISTERED SUPPORT / OPPOSITION :
Support
California Bail Agents Association
Congress of Racial Equality of California
Golden State Bail Agents Association
Opposition
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California Attorneys for Criminal Justice
Los Angeles County District Attorney's Office
Analysis Prepared by : Stella Choe / PUB. S. / (916) 319-3744