BILL ANALYSIS �
SB 989
Page 1
Date of Hearing: June 12, 2012
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 989 (Vargas) - As Amended: May 17, 2012
SUMMARY : Provides that, in specified cases, if the bail agent
and the prosecuting attorney agree that additional time is
needed to return the defendant to the jurisdiction of the court,
the court may, on the basis of the agreement, toll the 180-day
period within which to vacate the forfeiture for the length of
time agreed upon by the parties. Specifically, this bill :
1)Requires, 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.
2)Provides that the 10-day notice requirement is a condition
precedent to granting the motion.
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
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countywide schedule of bail. �Penal Code Section 1269b(b).]
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 �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.
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 to allow for the mailing. �Penal Code Section
1305(b).]
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, 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
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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).]
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.
�Penal Code Section 1305(c)(2).]
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. �Penal
Code Section 1305(c)(3).]
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 �Penal Code
Section 1305(c)(4).]:
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
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).]
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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. �Penal Code
Section 1305(g).]
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. �Penal Code Section 1305(i).]
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. �Penal
Code Section 1306(a).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "SB 989 would
allow a court to toll the 180-day period within which to
vacate bail forfeiture, if it is agreed by both the bail agent
and prosecuting attorney that additional time to return a
fugitive defendant to the jurisdiction of the court is
necessary. This bill simply allows both parties to come to
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an agreement if more time is needed to return a fugitive to
custody."
2)Background on Bail : Existing law provides a process whereby
the court may set a bail amount for a criminal defendant.
(Penal Code Section 1269b.) Additionally, Section 12 of
Article 1 of the California Constitution provides, with
limited exceptions, that a criminal defendant has a right to
bail and what conditions shall be taken into consideration in
setting bail. A defendant may post bail by depositing cash or
an equivalent form of currency, provide a security in real
property, or undertake bail using a bail bond. The bail bond
is the most likely means by which a person posts bail and is
essentially a private-party contract that provides the court
with a guarantee that the defendant will appear for a hearing
or trial. A defendant would pay a licensed bail agent a
percentage of the total amount of bail ordered as a
non-refundable fee - often an amount in the range of 10%. The
bail agent will contract with a surety company to issue a bail
bond - essentially an insurance policy. The bond is issued
providing that if the defendant fails to appear, the county
will receive the full amount of bail set by the court. The
bond is provided to the court and, if accepted, the defendant
is released. As designed, the bail system often allows the
court to rely on the private sector to ensure appearances and
provide a means for the county to be made whole in the event
that a person fails to appear.
3)Process of Bail Forfeiture : When a defendant fails to appear
in court after he or she has posted bail, the court will
generally issue a bench warrant and forfeit the defendant's
bail, meaning that the amount the defendant paid to the bail
bonds person will not be returned and the bail agent is
required to post the remainder of the bail. Existing law
states that if the defendant re-appears in court within 180
days, the bail forfeiture may be vacated and bail may be
reinstated, provided that the bail agent has been given notice
of the reinstatement and the bail agent did not surrender the
defendant. �Penal Code Section 1305(c)(4).] Under certain
circumstances, the 180-day time limit may be tolled if the
defendant is unable to return to court because of temporary
illness, insanity or detention by military or civil
authorities. �Penal Code Section 1305(e)(1).] Existing law
also states that if the amount of money deposited exceeds
$400, the clerk of the court shall, within 30 days of the
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forfeiture, mail notice of the forfeiture to the bail or
surety company. If such notice must be mailed, the 180-day
time period must be tolled for an additional five days.
Hence, assuming the bail amount is more than $400, a bail
agency has 185 days to return the defendant to court. �Penal
Code Section 1305(b).] Also, if the defendant is returned to
court within 180 days from the forfeiture of the bail, the
court must exonerate the bail.
4)Argument in Support : According to Two Jinn, Inc. dba Aladdin
Bail Bonds , "This modest bill would allow the court to
postpone the forfeiture of bail bonds in cases where
additional time is necessary to extradite defendants from
foreign jurisdictions. Importantly, the forfeiture could be
postponed only when the local prosecutor agrees to a
postponement. The bill gives district attorneys complete
control over whether any postponements will be granted. The
bill also adds a notice requirement so that prosecutors will
be informed of any motions brought by bail agents relating to
bond exoneration.
"The bill will further the principal purpose of Penal Code
section 1305 by promoting the location and return of fugitives
from justice. Under the current law, if the 180-day clock is
drawing to a close, bail agents may be unwilling to risk the
expense of traveling to foreign jurisdictions to attempt to
locate a fugitive, even if they have a strong probability of
locating him. This is because while they may locate the
fugitive within the 180-day window, they know that the
extradition process is unlikely to be completed prior to the
time at which they must forfeit the bond. In a perverse way,
the longer a fugitive can elude authorities, the greater the
chance he will escape entirely, because there is an economic
disincentive for bail agents to attempt to recapture him. SB
989 will change this to accomplish the original purpose -
encourage bail agents to spend every last moment of the
180-day window attempting to locate fugitives."
5)Argument in Opposition : According to the California District
Attorneys Association , "This association has historically
raised concerns about providing bail agents with additional
time to avoid the forfeiture of bail given the extensive
consideration already provided by current law. That said, if
this bill is amended to clarify that a prosecutor's decision
relative to whether the 180-day period should be extended is
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(1) final and (2) not appealable by the bail agent, we would
remove our opposition."
6)Related Legislation :
a) 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 the Senate
Committee on Judiciary.
b) AB 1824 (Hagman) allows 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. AB 1824
is currently pending referral in the Senate Committee on
Rules.
c) 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 referral
in the Senate Committee on Rules.
d) AB 2029 (Ammiano) provides for the regulation of bail
fugitive recovery persons. AB 2029 is currently pending
referral in the Senate Committee on Rules.
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,
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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
Two Jinn, Inc. dba Aladdin Bail Bonds (Sponsor)
Golden State Bail Agents Association
Opposition
California District Attorneys Association
Analysis Prepared by : Stella Choe / PUB. S. / (916) 319-3744