BILL NUMBER: SB 989 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Vargas
FEBRUARY 1, 2012
An act to amend Section 1305 of the Penal Code, relating to bail.
LEGISLATIVE COUNSEL'S DIGEST
SB 989, as introduced, Vargas. Bail: extradition.
Existing law specifies the procedures for the forfeiture and
exoneration of bail, 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 specified notice, if required.
Under existing law, 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, and the prosecuting agency elects not to seek
extradition after being informed of the location of the defendant,
the court is required to vacate the forfeiture and exonerate the
bond.
This bill would require 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 affadavit and would require the court to toll the
180-day period while the extradition decision is pending and, upon
motion of the surety or bail agent, while extradition is in process.
The bill 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.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
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) 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.
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.
The surety or depositor shall be released of all obligations under
the bond if any of the following conditions apply:
(1) The clerk fails to mail the notice of forfeiture in accordance
with this section within 30 days after the entry of the forfeiture.
(2) The clerk fails to mail the notice of forfeiture to the surety
at the address printed on the bond.
(3) 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 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.
(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, 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.
(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 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.
(g) 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 or the United States
Attorney 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 or
the United States Attorney
fails to make an extradition decision within a reasonable period of
time after receipt of the affadavit the bond shall be exonerated. The
court shall order the tolling of the 180-day period provided in this
section pending the prosecuting agency's or
the United States Attorney's extradition
decision. If the prosecuting agency or the
United States Attorney proceeds with the
extradition, and upon motion by the surety or bail agent, the court
shall order the tolling of the 180-day period provided in this
section from the date on which the surety or bail agent delivered the
affadavit to the prosecuting agency or the
United States Attorney until such time as the
bond is exonerated or the extradition process is completed.
(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) The court shall vacate the forfeiture and exonerate the bond
in all cases of forfeiture where it is shown to the satisfaction of
the court that the defendant has been deported by the United States
to a foreign country, either permanently or temporarily.