BILL NUMBER: SB 989 AMENDED
BILL TEXT
AMENDED IN SENATE MAY 17, 2012
AMENDED IN SENATE MAY 1, 2012
INTRODUCED BY Senator Vargas
FEBRUARY 1, 2012
An act to amend Section Sections
1305 and 1305.4 of the Penal Code, relating to bail.
LEGISLATIVE COUNSEL'S DIGEST
SB 989, as amended, 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.
Existing law requires the court to vacate the forfeiture and
exonerate the bond, as specified, if the defendant is not in custody,
is beyond the jurisdiction of the state, is temporarily detained and
positively identified, as specified, and the prosecuting agency
selects not to seek extradition after being informed of the defendant'
s location.
This bill would authorize a court, under the circumstance
described above, to toll the 180-day period within which to vacate
the forfeiture for the length of time agreed upon by the parties if
the bail agent and the prosecuting attorney
agency agree that additional time is needed to return the
defendant to the jurisdiction of the court , and the prosecuting
agency agrees to the tolling of the 180-day period. The bill would
require the moving party to give the prosecuting agency written
notice at least 10 court days before a hearing held to toll the
180-day period. The bill would also make a related change .
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) (1) 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.
(2)
(h) In cases arising under this
subdivision (g) , if the bail agent and the prosecuting
attorney agency agree that additional
time is needed to return the defendant to the jurisdiction of the
court, and the prosecuting agency agrees to the tolling of the
180 -day period, the court may, on the basis of the
agreement, toll the 180-day period within which to vacate the
forfeiture . The court may order tolling for
up to the length of time agreed upon by the parties.
(h)
(i) 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)
(j) 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.
(k) In addition to any other notice required by law, the moving
party shall give the prosecuting agency a written notice at least 10
court days before a hearing held pursuant to subdivision (f), (g), or
(j), as a condition precedent to granting the motion.
SEC. 2. Section 1305.4 of the Penal
Code is amended to read:
1305.4. Notwithstanding Section 1305, the surety insurer, the
bail agent, the surety, or the depositor may file a motion, based
upon good cause, for an order extending the 180-day period provided
in that section. The motion shall include a declaration or affidavit
that states the reasons showing good cause to extend that period. The
court, upon a hearing and a showing of good cause, may order the
period extended to a time not exceeding 180 days from its order. A
motion may be filed and calendared as provided in subdivision (i) of
Section 1305. In addition to any other notice required by law,
the moving party shall give the prosecuting agency a written notice
at least 10 court days before a hearing held pursuant to this section
as a condition precedent to granting the motion.