BILL ANALYSIS �
AB 1824
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 1824 (Hagman)
As Amended August 7, 2012
Majority vote
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|ASSEMBLY: |71-0 |(May 25, 2012) |SENATE: |37-0 |(August 23, |
| | | | | |2012) |
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Original Committee Reference: PUB. S.
SUMMARY : Authorizes a court to vacate the forfeiture and
exonerate the bond if a person appears in court after the
180-day period if certain conditions are met.
The Senate amendments :
1)Authorize a court, in its discretion, to vacate the forfeiture
and exonerate the bond after the 180-day period ends if the
person was arrested on the same case within the county where
the case is located during the 180-day period and the person
has been in continuous custody from the time of arrest until
the court appearance on that case.
2)Authorize, upon a showing of good cause, a motion to be
brought to vacate the forfeiture and exonerate the bond within
20 days from the mailing of the notice of entry of judgment,
where a defendant, who is outside the county where the case is
located, is surrendered to custody by the bail or is arrested
in the underlying case within the 180-day period.
3)Require the moving party to give the applicable prosecuting
agency written notice of the motion to vacate the forfeiture
and exonerate the bond at least 10 court days before the
hearing.
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.
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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.
3)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:
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.
4)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
mailed pursuant to this section, the 180-day period provided
for in this section shall be extended by a period of five days
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to allow for the mailing.
5)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 Penal
Code Section 1305(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.
6)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.
7)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.
8)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:
a) The bail is given prior notice of the reinstatement; or,
b) The bail has not surrendered the defendant.
9)Provides that in all cases where a defendant is in custody
beyond the jurisdiction of the court that ordered the bail
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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.
10)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.
11)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.
12)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.
AS PASSED BY THE ASSEMBLY , this bill allowed a bail agent or
surety to make a motion to extend the 180-day period to vacate a
bond forfeiture if certain circumstances have been met.
Specifically, this bill:
1)Required the court to vacate forfeiture and exonerate bond in
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all cases of forfeiture where a defendant is not in custody
and is beyond the jurisdiction of California 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.
2)Required an affidavit provided by a law enforcement officer
from a foreign state positively identifying the defendant to
be authenticated in the manner described in existing
provisions of law related to foreign official signatures and,
if a copy, existing provisions of law related to copies of
writing in official custody.
3)Provided that in any motion filed for vacation of forfeiture
pursuant to this section, proof shall be presented showing the
local law enforcement officer's full name, title, agency name,
contact telephone number, and contact address.
4)Provided that in any motion filed for vacation of forfeiture
pursuant to this section, proof of positive identification
shall include proof of the defendant's permanent residency in
the county in which the defendant is detained by the bail
agent, a legible copy of a government identification such as a
driver's license or passport issued by an authorized public
agency of the 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.
5)Stated if a prosecuting agency does not make an extradition
decision within the 180-day period, the bail agency or surety
may make a motion to extend the 180-day period for an
additional period not to exceed 180 days. A 180-day extension
may be renewed on the same basis as the original order.
6)Authorized the court to 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.
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7)Required, in addition to any other notice required by law, the
moving party of a motion to vacate a bond forfeiture or to
extend the 180-day period, to give the applicable prosecuting
agency a written notice at least 10 court days before a
hearing. This notice requirement is a condition precedent to
granting the motion.
FISCAL EFFECT : Unknown. This bill is keyed non-fiscal by the
Legislative Counsel.
COMMENTS : 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."
Please see the policy committee analysis for a full discussion
of this bill.
Analysis Prepared by : Stella Choe / PUB. S. / (916) 319-3744
FN: 0004656