AB 2655: Bail: jurisdiction.
- Session Year: 2015-2016
- House: Assembly
- Latest Version Date: 2016-07-22
Existing law generally regulates the provision of bail or bond, including forfeiture, vacation of forfeiture, and exoneration of bail or bond. Existing law requires the court to declare bail to be forfeited if, without sufficient excuse, a defendant fails to appear as specified. Existing law denies the court jurisdiction to declare a forfeiture and requires the bail to 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.
This bill would authorize an extension of the courts jurisdiction to declare a forfeiture and authority to release bail for not more than 90 days from the date of the arraignment if the arraignment is properly continued to allow the prosecutor time to file the complaint or if the defendant requests the extension in writing or in open court.
Existing law generally regulates the provision of bail or bond, including forfeiture, vacation of forfeiture, and exoneration of bail or bond. Existing law requires the court to declare bail to be forfeited if, without sufficient excuse, a defendant fails to appear as specified. Existing law denies the court jurisdiction to declare a forfeiture and requires the bail to 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.
This bill would authorize an extension of the courts jurisdiction to declare a forfeiture and authority to release bail for not more than 90 days from the date of the arraignment if the arraignment is properly continued to allow the prosecutor time to file the complaint or if the defendant requests the extension in writing or in open court.
Existing law generally regulates the provision of bail or bond, including forfeiture, vacation of forfeiture, and exoneration of bail or bond. Existing law requires the court to declare bail to be forfeited if, without sufficient excuse, a defendant fails to appear as specified. Existing law denies the court jurisdiction to declare a forfeiture and requires the bail to 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.
This bill would authorize an extension of the courts jurisdiction to declare a forfeiture and authority to release bail for not more than 90 days from the date of the arraignment if the arraignment is properly continued to allow the prosecutor time to file the complaint and or if the defendant requests the extension in writing or in open court.
Existing law generally regulates the provision of bail or bond, including forfeiture, vacation of forfeiture, and exoneration of bail or bond. Existing law requires the court to declare bail to be forfeited if, without sufficient excuse, a defendant fails to appear as specified. Existing law denies the court jurisdiction to declare a forfeiture and requires the bail to 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.
This bill would authorize an extension of the courts jurisdiction to declare a forfeiture and authority to release bail for not more than 90 days if the arraignment is properly continued to allow the prosecutor time to file the complaint and the defendant requests the extension in writing or in open court.
Existing law defines a crime or public offense as an act committed or omitted in violation of a law forbidding or commanding it. Under existing law, a crime that is punishable by imprisonment in a county jail for a period not to exceed a year is a misdemeanor. Existing law provides that every offense punishable by imprisonment in a county jail up to or not exceeding one year is punishable by imprisonment not to exceed 364 days.
This bill would make technical, nonsubstantive changes to that provision.
Existing law defines a crime or public offense as an act committed or omitted in violation of a law forbidding or commanding it. Under existing law, a crime that is punishable by imprisonment in a county jail for a period not to exceed a year is a misdemeanor. Existing law provides that every offense punishable by imprisonment in a county jail up to or not exceeding one year is punishable by imprisonment not to exceed 364 days.
This bill would make technical, nonsubstantive changes to that provision.
(a)(1)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:
(A)Arraignment.
(B)Trial.
(C)Judgment.
(D)Any other occasion prior to the pronouncement of judgment if the defendants presence in court is lawfully required.
(E)To surrender himself or herself in execution of the judgment after appeal.
(2)(A)Notwithstanding paragraph (1), except as provided in subparagraph (B), 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)The courts jurisdiction to declare a forfeiture and authority to release bail may be extended for not more than 90 days from the arraignment date originally set by the jailer pursuant to subdivision (a) of Section 1269b if either of the following occur:
(i)The prosecutor requests in writing or in open court that the arraignment be continued to allow the prosecutor time to file the complaint.
(ii)The defendant requests the extension in writing or in open court.
(b)(1)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 courts 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.
(2)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.
(3)The surety or depositor shall be released of all obligations under the bond if any of the following conditions apply:
(A)The clerk fails to mail the notice of forfeiture in accordance with this section within 30 days after the entry of the forfeiture.
(B)The clerk fails to mail the notice of forfeiture to the surety at the address printed on the bond.
(C)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 suretys or depositors 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 suretys or depositors 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)(1)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:
(A)The defendant is temporarily disabled by reason of illness, insanity, or detention by military or civil authorities.
(B)Based upon the temporary disability, the defendant is unable to appear in court during the remainder of the 180-day period.
(C)The absence of the defendant is without the connivance of the bail.
(2)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 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.
(h)In cases arising under subdivision (g), if the bail agent and the prosecuting 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.
(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.
(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.
(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.
(a)(1)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:
(A)Arraignment.
(B)Trial.
(C)Judgment.
(D)Any other occasion prior to the pronouncement of judgment if the defendants presence in court is lawfully required.
(E)To surrender himself or herself in execution of the judgment after appeal.
(2)(A)Notwithstanding paragraph (1), except as provided in subparagraph (B), 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)The courts jurisdiction to declare a forfeiture and authority to release bail may be extended for not more than 90 days from the arraignment date originally set by the jailer pursuant to subdivision (a) of Section 1269b if either of the following occur:
(i)The prosecutor requests in writing or in open court that the arraignment be continued to allow the prosecutor time to file the complaint.
(ii)The defendant requests the extension in writing or in open court.
(b)(1)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 courts 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.
(2)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.
(3)The surety or depositor shall be released of all obligations under the bond if any of the following conditions apply:
(A)The clerk fails to mail the notice of forfeiture in accordance with this section within 30 days after the entry of the forfeiture.
(B)The clerk fails to mail the notice of forfeiture to the surety at the address printed on the bond.
(C)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 suretys or depositors 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 suretys or depositors 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)(1)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:
(A)The defendant is temporarily disabled by reason of illness, insanity, or detention by military or civil authorities.
(B)Based upon the temporary disability, the defendant is unable to appear in court during the remainder of the 180-day period.
(C)The absence of the defendant is without the connivance of the bail.
(2)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 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.
(h)In cases arising under subdivision (g), if the bail agent and the prosecuting 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.
(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.
(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.
(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.
(a)(1)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:
(A)Arraignment.
(B)Trial.
(C)Judgment.
(D)Any other occasion prior to the pronouncement of judgment if the defendants presence in court is lawfully required.
(E)To surrender himself or herself in execution of the judgment after appeal.
(2)(A)Notwithstanding paragraph (1), except as provided in subparagraph (B), 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)The courts jurisdiction to declare a forfeiture and authority to release bail may be extended for not more than 90 days if both from the arraignment date originally set by the jailer pursuant to subdivision (a) of Section 1269b if either of the following occur:
(i)The arraignment is continued to allow the prosecutor time to file the complaint.
(i)The prosecutor requests in writing or in open court that the arraignment be continued to allow the prosecutor time to file the complaint.
(ii)The defendant requests the extension in writing or in open court.
(b)(1)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 courts 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.
(2)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.
(3)The surety or depositor shall be released of all obligations under the bond if any of the following conditions apply:
(A)The clerk fails to mail the notice of forfeiture in accordance with this section within 30 days after the entry of the forfeiture.
(B)The clerk fails to mail the notice of forfeiture to the surety at the address printed on the bond.
(C)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 suretys or depositors 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 suretys or depositors 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)(1)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:
(A)The defendant is temporarily disabled by reason of illness, insanity, or detention by military or civil authorities.
(B)Based upon the temporary disability, the defendant is unable to appear in court during the remainder of the 180-day period.
(C)The absence of the defendant is without the connivance of the bail.
(2)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 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.
(h)In cases arising under subdivision (g), if the bail agent and the prosecuting 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.
(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.
(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.
(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.
(a)(1)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)
(A)Arraignment.
(2)
(B)Trial.
(3)
(C)Judgment.
(4)
(D)Any other occasion prior to the pronouncement of judgment if the defendants presence in court is lawfully required.
(5)
(E)To surrender himself or herself in execution of the judgment after appeal.
However, the
(2)(A)Notwithstanding paragraph (1), except as provided in subparagraph (B), 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)The courts jurisdiction to declare a forfeiture and authority to release bail may be extended for not more than 90 days if both of the following occur:
(i)The arraignment is continued to allow the prosecutor time to file the complaint.
(ii)The defendant requests the extension in writing or in open court.
(b)(1)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 courts 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
(2)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
(3)The surety or depositor shall be released of all obligations under the bond if any of the following conditions apply:
(1)
(A)The clerk fails to mail the notice of forfeiture in accordance with this section within 30 days after the entry of the forfeiture.
(2)
(B)The clerk fails to mail the notice of forfeiture to the surety at the address printed on the bond.
(3)
(C)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 suretys or depositors 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 suretys or depositors 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)(1)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)
(A)The defendant is temporarily disabled by reason of illness, insanity, or detention by military or civil authorities.
(2)
(B)Based upon the temporary disability, the defendant is unable to appear in court during the remainder of the 180-day period.
(3)
(C)The absence of the defendant is without the connivance of the bail.
The
(2)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 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.
(h)In cases arising under subdivision (g), if the bail agent and the prosecuting 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.
(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.
(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.
(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.
SECTION 1.Section 18.5 of the Penal Code is amended to read:18.5.Every offense that is prescribed by a law of the state to be punishable by imprisonment in a county jail up to or not exceeding one year shall be punishable by imprisonment in a county jail for a period not exceeding 364 days.
Every offense which that is prescribed by any a law of the state to be punishable by imprisonment in a county jail up to or not exceeding one year shall be punishable by imprisonment in a county jail for a period not to exceed exceeding 364 days.
|
Date
|
Status
|
|---|---|
| May 9, 2016 | In Senate. Read first time. To Com. on RLS. for assignment. |
| Jul 22, 2016 | Chaptered by Secretary of State - Chapter 79, Statutes of 2016. |
| Jul 22, 2016 | Approved by the Governor. |
| Jul 11, 2016 | Enrolled and presented to the Governor at 4:30 p.m. |
| Jun 30, 2016 | Read third time. Passed. Ordered to the Assembly. (Ayes 37. Noes 0. Page 4644.). |
| Jun 30, 2016 | Read third time. Passed. Ordered to the Assembly. |
| Jun 30, 2016 | In Assembly. Ordered to Engrossing and Enrolling. |
| Jun 15, 2016 | Read second time. Ordered to Consent Calendar. |
| Jun 14, 2016 | From committee: Do pass. To Consent Calendar. (Ayes 7. Noes 0.) (June 14). |
| May 19, 2016 | Referred to Com. on PUB. S. |
| May 9, 2016 | Read third time. Passed. Ordered to the Senate. (Ayes 78. Noes 0. Page 4717.) |
| May 9, 2016 | Read third time. Passed. Ordered to the Senate. |
| Feb 19, 2016 | Introduced. To print. |
| May 5, 2016 | Read third time and amended. Ordered to third reading. (Page 4675.) |
| May 5, 2016 | Read third time and amended. Ordered to third reading. |
| Apr 25, 2016 | Ordered to third reading. |
| Apr 25, 2016 | From Consent Calendar. |
| Apr 21, 2016 | Read second time. Ordered to Consent Calendar. |
| Apr 20, 2016 | From committee: Do pass. To Consent Calendar. (Ayes 7. Noes 0.) (April 19). |
| Mar 28, 2016 | Re-referred to Com. on PUB. S. |
| Mar 17, 2016 | Referred to Com. on PUB. S. |
| Mar 17, 2016 | From committee chair, with author's amendments: Amend, and re-refer to Com. on PUB. S. Read second time and amended. |
| Feb 22, 2016 | Read first time. |
| Feb 21, 2016 | From printer. May be heard in committee March 22. |
|
Date
|
Description
|
Location
|
Votes
|
|
|---|---|---|---|---|
| Jun 30, 2016 | Consent Calendar 2nd AB2655 Weber | Senate Floor |
Passed |
|
| Jun 14, 2016 | Do pass and be ordered to the Consent Calendar | Senate Standing Committee on Public Safety |
Passed |
|
| May 9, 2016 | AB 2655 WEBER Assembly Third Reading | Assembly Floor |
Passed |
|
| Apr 19, 2016 | Do pass. To Consent Calendar. | Assembly Standing Committee on Public Safety |
Passed |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
|
Organization
|
Position
|
Date
|
|---|---|---|
| American Civil Liberties Union of California | ** Support | May 5, 2016 |
| California Attorneys For Criminal Justice | ** Support | May 5, 2016 |
| California Department of Insurance | ** Support | May 5, 2016 |
| California Public Defenders Association | ** Support | May 5, 2016 |
| Ella Baker Center For Human Rights | ** Support | May 5, 2016 |
| Legal Services for Prisoners with Children | ** Support | May 5, 2016 |
Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | AB |
CONSENT
Bill No: AB 2655
:
SENATE PUBLIC SAFETY COMMITTEE: 7-0, 6/14/16
AYES: Hancock, Anderson, Glazer, Leno, Liu, Monning, Stone
ASSEMBLY FLOOR: 78-0, 5/9/16 - See last page for vote
SOURCE: California Attorneys for Criminal Justice
DIGEST: This bill allows a court to extend the statutorily required forfeiture or exoneration (return) of bail for 90 days to allow the prosecutor to file a complaint in the matter for which the defendant was arrested and granted release on bail, if either the defendant or the prosecutor requests the extension.
Existing law:
- Requires a court 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: arraignment, trial, judgment, any other occasion prior to the pronouncement of judgment if the defendant's presence in court is lawfully required, and to surrender himself or herself in execution of the judgment after appeal. (Pen. Code § 1305, subd. (a).)
- States that 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. (Pen. Code § 1305, subd. (a).)
- Specifies that 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. (Pen. Code § 1305, subd. (b).)
- Provides that the surety or depositor shall be released of all obligations under the bond if any of the following conditions apply:
- The clerk fails to mail the notice of forfeiture in accordance with this section within 30 days after the entry of the forfeiture. (Pen. Code § 1305, subd. (b)(1).)
- The clerk fails to mail the notice of forfeiture to the surety at the address printed on the bond. (Pen. Code § 1305, subd. (b)(2).)
- The clerk fails to mail a copy of the notice of forfeiture to the bail agent at the address shown on the bond. (Pen. Code § 1305, subd. (b)(3).)
- States 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 bond exonerated. (Pen. Code § 1305, subd. (c)(1).)
- Provides that 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. (Pen. Code § 1305, subd. (c)(3).)
- States that instead 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:
- The bail agent is given prior notice of the reinstatement; and (Pen. Code § 1305, subd. (c)(4)(A).)
- The bail agent has not surrendered the defendant. (Pen. Code § 1305, subd. (c)(4)(B).)
- Specifies that 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, it is made apparent to the satisfaction of the court that specified conditions are met. (Pen. Code § 1305, subd. (d).)
- States that bail permits a defendant to be released from custody by posting bond, which is a promise to pay the bond amount unless the defendant meets the conditions, which is generally to make all of their court appearances. (Pen. Code § 1269.)
- States that defendants forfeit their bail when they abscond, i.e. when the defendant fails to appear for their court hearing without a valid excuse. (Pen. Code § 1275, 1305.)
- Allows the bail surety agents to contest bail forfeiture by filing a motion to vacate the forfeiture of bail. (Pen. Code § 1305.)
- Provides that if an action against a defendant who has been admitted to bail is dismissed, the bail shall not be exonerated until a period of 15 days has elapsed since the entry of the order of dismissal. (Pen. Code § 1303.)
- States that if, within 15 days from dismissal, the defendant is arrested and charged with a public offense arising out of the same act or omission upon which the action or proceeding was based, the bail shall be applied to the public offense. (Pen. Code § 1303.)
This bill:
- Authorizes an extension of the court’s jurisdiction to declare a forfeiture and authority to release bail for not more than 90 days if the arraignment is properly continued to allow the prosecutor time to file the complaint.
- Provides that the extension may be granted if either the defendant or the prosecutor requests the extension in writing or in open court.
Background
According to the author:
This legislation addresses an appeal by a California court to change an undesirable outcome based on strict statutory language. This bill will extend the amount of time a prosecuting agency has to file a criminal complaint, from 15 days to 90 days, to ensure that a defendant is not required to post multiple bonds at no fault of their own.
AB 2655 will provide flexibility to courts and district attorneys in accommodating any delays in filing a criminal complaint. Before the People vs. Indiana Lumbermen’s Insurance case, the common practice of the court was to continue the arraignment, retain jurisdiction of the defendant’s bond, and provide more time for the district attorney to file a criminal complaint. By making this clarification, state resources will be saved by not having a court re-issue a warrant, law enforcement re-arrest a defendant, and a jail re-booking a defendant following the strict 15 day period in the statute.
Bail is a security given to the court to guarantee a defendant's future attendance at court proceedings. The amount of bail required is typically set according to the local bail schedule that lists common offenses and a suggested amount. These bail schedules are set by county judges. At arraignment, the magistrate will review the case and set bail in an amount he or she deems sufficient to ensure the defendant's appearance. While the usual practice is to adhere to scheduled bail, either the prosecution or the defense may argue for a departure from the bail schedule based on aggravating and mitigating factors, danger to the public, and ties to the community.
Bail permits an individual to be released from actual custody into the constructive custody of a surety on a bond given to procure the defendant's release. Bail, once posted, stands until forfeited (taken by the court) or exonerated (released) to ensure the defendant's appearance at all stages of the proceedings on the original charge. If bail was posted through a bail bond agency, the agent and the defendant sign a bail agreement that will usually fix the term of the bail bond as one year. The defendant must pay a renewal premium for any additional period.
Most individuals that post bail go through a bail bondsman. The individual pays the bail bondsman a premium and the bail bondsman posts the full amount of the bail. The premium is generally 10% of the bond. The premium is the payment from the individual to the bail bondsman for posting the full amount of the bail. The premium is non-refundable. When the court exonerates the bail, the bail money is returned to the bail bondsman whom posted the bail. If a criminal complaint is filed, the bail is exonerated when the case is over, or the defendant is taken into custody. In either of those cases, the bail is no longer needed to secure the defendant’s appearance. The bail is also exonerated if no criminal complaint is filed within 15 days from the date of the arraignment. The arraignment is the initial court appearance. A defendant that is arrested and bails out immediately is normally given an arraignment date of the next business day to appear in court.
A prosecutor is not required to file criminal charges immediately, or even within a time frame of 30 or 60 days. Criminal charges must be filed before the applicable statute of limitations period.
There are a variety of reasons a district attorney’s office might not file a charge immediately. Sometimes there is a need for additional investigation to determine if there is sufficient evidence to file charges. In cases involving drugs, there might be a delay to wait on lab results. Sometimes charges are not filed immediately because there has not been an opportunity for a district attorney responsible for charging crimes to review the police report or other evidence.
When bail has been posted on behalf of an individual, a delay in the filing of criminal charges can result in the bail being released (exonerated) by the court. Current law requires the court to exonerate bail if no complaint has been filed within 15 days of the arraignment. If the district attorney’s office files charges after the bail has been exonerated, the individual can be required to post bail a second time. This is particularly problematic when an individual has posted bail through a bail bondsman. In those situations, even though bail has been exonerated, the individual does not get back the premium he or she paid to the bail bondsman. If the individual is required to post a second bail, it results in substantial expense. If the individual does not have the money to pay a second premium to a bail bondsman, the defendant will be taken into custody, even though they had already posted bail once before.
This bill allows an extension of 90 days before being required to exonerate bail if no complaint is filed. Such an extension would require the arraignment to be continued and a request to be made the defendant in writing or in open court. That extension allows for situations where the district attorney’s office has not completed their investigation, or there has been some other delay in making a decision about whether to file criminal charges.
FISCAL EFFECT: Appropriation: Fiscal Com.: Local:
California Attorneys for Criminal Justice (source)
American Civil Liberties Union of California
California Department of Insurance
California Public Defenders Association
Ella Baker Center for Human Rights
Judicial Council
Legal Services for Prisoners with Children
OPPOSITION: (Verified 6/15/16)
None received
ASSEMBLY FLOOR: 78-0, 5/9/16
AYES: Achadjian, Alejo, Travis Allen, Arambula, Atkins, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Gallagher, Cristina Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Quirk, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Rendon
NO VOTE RECORDED: Beth Gaines, Eduardo Garcia
6/15/16 17:24:52
**** END ****
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 2655 Hearing Date: June 14, 2016
Author: | Weber | ||
Version: | May 5, 2016 | ||
Urgency: | No | Fiscal: | No |
Consultant: | JM | ||
Subject: Bail: Jurisdiction
HISTORY
Source: California Attorneys for Criminal Justice
Prior Legislation: SB 1649 (Johannessen) Ch. 170, Stats. 1994
AB 989 (Vargas) Ch. Stats. 2012
AB 2854 (Dymally) 2006, Vetoed
SB 1245 (Polanco) Ch. 434, Stats. 1995
AB 734 (Johnson) Ch. 524, Stats. 1993
Support: American Civil Liberties Union of California; California Department of Insurance; California Public Defenders Association; Ella Baker Center for Human Rights; Judicial Council; Legal Services for Prisoners with Children
Opposition: None known
Assembly Floor Vote: 78 - 0
PURPOSE
The purpose of this bill is to allow a court to extend the statutorily required forfeiture or exoneration (return) of bail for 90 days to allow the prosecutor to file a complaint in the matter for which the defendant was arrested and granted release on bail, if either the defendant or the prosecutor requests the extension.
Current law requires a court 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: arraignment, trial, judgment, any other occasion prior to the pronouncement of judgment if the defendant's presence in court is lawfully required, and to surrender himself or herself in execution of the judgment after appeal. (Pen. Code, § 1305, subd. (a).)
Current law states that 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. (Pen. Code, § 1305, subd. (a).)
Current law specifies that 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. (Pen. Code, § 1305, subd. (b).)
Current law provides that the surety or depositor shall be released of all obligations under the bond if any of the following conditions apply:
a) The clerk fails to mail the notice of forfeiture in accordance with this section within 30 days after the entry of the forfeiture. (Pen. Code, § 1305, subd. (b)(1).)
b) The clerk fails to mail the notice of forfeiture to the surety at the address printed on the bond. (Pen. Code, § 1305, subd. (b)(2).)
c) The clerk fails to mail a copy of the notice of forfeiture to the bail agent at the address shown on the bond. (Pen. Code, § 1305, subd. (b)(3).)
Current law states 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 bond exonerated. (Pen. Code, § 1305, subd. (c)(1).)
Current law provides that 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. (Pen. Code, § 1305, subd. (c)(3).)
Current law states that instead 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 agent is given prior notice of the reinstatement; and (Pen. Code, § 1305, subd. (c)(4)(A).)
b) The bail agent has not surrendered the defendant. (Pen. Code, § 1305, subd. (c)(4)(B).)
Current law specifies that 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, it is made apparent to the satisfaction of the court that specified conditions are met. (Pen. Code, § 1305, subd. (d).)
Current law states that bail permits a defendant to be released from custody by posting bond, which is a promise to pay the bond amount unless the defendant meets the conditions, which is generally to make all of their court appearances. (Pen. Code, § 1269.)
Current law states that defendants forfeit their bail when they abscond, i.e. when the defendant fails to appear for their court hearing without a valid excuse. (Pen. Code, § 1275, 1305.)
Current law allows the bail surety agents may contest bail forfeiture by filing a motion to vacate the forfeiture of bail. (Pen. Code, § 1305.)
Current law provides that if an action against a defendant who has been admitted to bail is dismissed, the bail shall not be exonerated until a period of 15 days has elapsed since the entry of the order of dismissal. (Pen. Code, § 1303.)
Current law states that if, within 15 days from dismissal, the defendant is arrested and charged with a public offense arising out of the same act or omission upon which the action or proceeding was based, the bail shall be applied to the public offense. (Pen. Code, § 1303.)
This bill authorizes an extension of the court’s jurisdiction to declare a forfeiture and authority to release bail for not more than 90 days if the arraignment is properly continued to allow the prosecutor time to file the complaint.
This bill provides that the extension may if either the defendant or the prosecutor requests the extension in writing or in open court.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past several years this Committee has scrutinized legislation referred to its jurisdiction for any potential impact on prison overcrowding. Mindful of the United States Supreme Court ruling and federal court orders relating to the state’s ability to provide a constitutional level of health care to its inmate population and the related issue of prison overcrowding, this Committee has applied its “ROCA” policy as a content-neutral, provisional measure necessary to ensure that the Legislature does not erode progress in reducing prison overcrowding.
On February 10, 2014, the federal court ordered California to reduce its in-state adult institution population to 137.5% of design capacity by February 28, 2016, as follows:
- 143% of design bed capacity by June 30, 2014;
- 141.5% of design bed capacity by February 28, 2015; and,
- 137.5% of design bed capacity by February 28, 2016.
In December of 2015 the administration reported that as “of December 9, 2015, 112,510 inmates were housed in the State’s 34 adult institutions, which amounts to 136.0% of design bed capacity, and 5,264 inmates were housed in out-of-state facilities. The current population is 1,212 inmates below the final court-ordered population benchmark of 137.5% of design bed capacity, and has been under that benchmark since February 2015.” (Defendants’ December 2015 Status Report in Response to February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman v. Brown, Plata v. Brown (fn. omitted).) One year ago, 115,826 inmates were housed in the State’s 34 adult institutions, which amounted to 140.0% of design bed capacity, and 8,864 inmates were housed in out-of-state facilities. (Defendants’ December 2014 Status Report in Response to February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman v. Brown, Plata v. Brown (fn. omitted).)
While significant gains have been made in reducing the prison population, the state must stabilize these advances and demonstrate to the federal court that California has in place the “durable solution” to prison overcrowding “consistently demanded” by the court. (Opinion Re: Order Granting in Part and Denying in Part Defendants’ Request For Extension of December 31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court, Coleman v. Brown, Plata v. Brown (2-10-14). The Committee’s consideration of bills that may impact the prison population therefore will be informed by the following questions:
- Whether a proposal erodes a measure which has contributed to reducing the prison population;
- Whether a proposal addresses a major area of public safety or criminal activity for which there is no other reasonable, appropriate remedy;
- Whether a proposal addresses a crime which is directly dangerous to the physical safety of others for which there is no other reasonably appropriate sanction;
- Whether a proposal corrects a constitutional problem or legislative drafting error; and
- Whether a proposal proposes penalties which are proportionate, and cannot be achieved through any other reasonably appropriate remedy.
COMMENTS
1. Need For This Bill
According to the author:
This legislation addresses an appeal by a California court to change an undesirable outcome based on strict statutory language. This bill will extend the amount of time a prosecuting agency has to file a criminal complaint, from 15 days to 90 days, to ensure that a defendant is not required to post multiple bonds at no fault of their own.
AB 2655 will provide flexibility to courts and district attorneys in accommodating any delays in filing a criminal complaint. Before the People vs. Indiana Lumbermen’s Insurance case, the common practice of the court was to continue the arraignment, retain jurisdiction of the defendant’s bond, and provide more time for the district attorney to file a criminal complaint. By making this clarification, state resources will be saved by not having a court re-issue a warrant, law enforcement re-arrest a defendant, and a jail re-booking a defendant following the strict 15 day period in the statute.
2. Bail Background, Bail Amounts, Premiums Forfeiture and Exoneration
Bail is a security given to the court to guarantee a defendant's future attendance at court proceedings. The amount of bail required is typically set according to the local bail schedule that lists common offenses and a suggested amount. These bail schedules are set by county judges. At arraignment, the magistrate will review the case and set bail in an amount he or she deems sufficient to ensure the defendant's appearance. While the usual practice is to adhere to scheduled bail, either the prosecution or the defense may argue for a departure from the bail schedule based on aggravating and mitigating factors, danger to the public, and ties to the community.
Bail permits an individual to be released from actual custody into the constructive custody of a surety on a bond given to procure the defendant's release. Bail, once posted, stands until forfeited (taken by the court) or exonerated (released) to ensure the defendant's appearance at all stages of the proceedings on the original charge. If bail was posted through a bail bond agency, the agent and the defendant sign a bail agreement that will usually fix the term of the bail bond as one year. The defendant must pay a renewal premium for any additional period.
Most individuals that post bail go through a bail bondsman. The individual pays the bail bondsman a premium and the bail bondsman posts the full amount of the bail. The premium is generally 10% of the bond. The premium is the payment from the individual to the bail bondsman for posting the full amount of the bail. The premium is non-refundable. When the court exonerates the bail, the bail money is returned to the bail bondsman whom posted the bail. If a criminal complaint is filed, the bail is exonerated when the case is over, or the defendant is taken into custody. In either of those cases, the bail is no longer needed to secure the defendant’s appearance. The bail is also exonerated if no criminal complaint is filed within 15 days from the date of the arraignment. The arraignment is the initial court appearance. A defendant that is arrested and bails out immediately is normally given an arraignment date of the next business day to appear in court.
3. Requiring Exoneration of Bail Bond After 15 Days if No Complaint is Filed Results In Individuals Paying Premiums For Two Bail Bonds
A prosecutor is not required to file criminal charges immediately, or even within a time frame of 30 or 60 days. Criminal charges must be filed before the applicable statute of limitations period.
There are a variety of reasons a district attorney’s office might not file a charge immediately. Sometimes there is a need for additional investigation to determine if there is sufficient evidence to file charges. In cases involving drugs, there might be a delay to wait on lab results. Sometimes charges are not filed immediately because there has not been an opportunity for a district attorney responsible for charging crimes to review the police report or other evidence.
When bail has been posted on behalf of an individual, a delay in the filing of criminal charges can result in the bail being released (exonerated) by the court. Current law requires the court to exonerate bail if no complaint has been filed within 15 days of the arraignment. If the district attorney’s office files charges after the bail has been exonerated, the individual can be required to post bail a second time. This is particularly problematic when an individual has posted bail through a bail bondsman. In those situations, even though bail has been exonerated, the individual does not get back the premium he or she paid to the bail bondsman. If the individual is required to post a second bail, it results in substantial expense. If the individual does not have the money to pay a second premium to a bail bondsman, the defendant will be taken into custody, even though they had already posted bail once before.
This bill allows an extension of 90 days before being required to exonerate bail if no complaint is filed. Such an extension would require the arraignment to be continued and a request to be made the defendant in writing or in open court. That extension allows for situations where the district attorney’s office has not completed their investigation, or there has been some other delay in making a decision about whether to file criminal charges.
4. Argument in Support
According to the California Attorneys for Criminal Justice:
Under Penal Code section 1305, the defendant’s bail must be released if no criminal complaint is filed within 15 days of the first scheduled arraignment. Unfortunately, the statute contains no provision to extend the 15-day period. As a result, whenever the District Attorney is delayed in filing a criminal complaint, a defendant may be forced to pay for a second bail.
In the People v. Indiana Lumbermens Insurance Co. (2010) 190 Cal.App. 4th 823, the insurance company argued that the trial court had no jurisdiction to forfeit the bond because a complaint was not filed within 15 days of the original date set for a criminal defendant's arraignment, as provided for in §1305(a). The court agreed with the insurer and concluded that the trial court lost jurisdiction to order forfeiture of the bond. Previously, courts regularly continued arraignment without forfeiting the bond until the prosecutor determined whether or not to file charges. After the Indiana Lumbermens decision our clients have been forced to post bond twice through no fault of their own, once when initially arrested, and after the prosecutor files formal charges.
This rigid statute costs taxpayers money for law enforcement, jail and court hours to re-arrest and re-book the defendant. The court in Lumbermens stated: “We do not consider this to be a satisfying outcome. …[I]t makes more sense… to permit a court to continue the arraignment to give the prosecuting agency more time to decide whether to file charges while still retaining jurisdiction to order forfeiture of the bond if the defendant fails to appear at the subsequent arraignment. However, if that was the Legislature's intent, it has failed to say so. …The Legislature may amend the statute if it finds that the current language does not comport with its intentions.” (Id., at 830) This bill follows the recommendation of the court in Indiana Lumbermens Insurance to amend the statute to avoid this dissatisfying and unjust result.
5. Related Legislation – Attorney’s Fees for Prosecutors in Bail Litigation
AB 1854 (Bloom), requires the district attorney, county counsel, or applicable prosecuting agency to recover attorney’s fees out of the forfeited bail moneys. AB 1854 is also set for hearing in this Committee on June 14, 2016.
-- END –
ASSEMBLY THIRD READING
ATR Bill Id:AB 2655
Author:(Weber)
As Amended Ver:May 5, 2016
Majority vote
Committee | Votes | Ayes | Noes |
Public Safety | 7-0 | Jones-Sawyer, Melendez, Lackey, Lopez, Low, Quirk, Santiago |
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SUMMARY:
- Authorizes an extension of the court's jurisdiction to declare a forfeiture and authority to release bail for up to 90 days from the original arraignment date if the prosecutor or defendant requests in writing or in open court that the arraignment be continued to allow the prosecutor time to file the complaint.
EXISTING LAW:
- Requires a court 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: arraignment, trial, judgment, any other occasion prior to the pronouncement of judgment if the defendant's presence in court is lawfully required, and to surrender himself or herself in execution of the judgment after appeal.
- States that 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.
- Specifies that 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.
- Provides that the surety or depositor shall be released of all obligations under the bond if any of the following conditions apply:
- The clerk fails to mail the notice of forfeiture in accordance with this section within 30 days after the entry of the forfeiture.
- The clerk fails to mail the notice of forfeiture to the surety at the address printed on the bond.
- The clerk fails to mail a copy of the notice of forfeiture to the bail agent at the address shown on the bond.
- States 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 bond exonerated.
- Provides that 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.
- States that instead 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:
- The bail is given prior notice of the reinstatement; and
- The bail has not surrendered the defendant.
- Specifies that 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, it is made apparent to the satisfaction of the court that specified conditions are met.
- States that bail permits a defendant to be released from custody by posting bond, which is a promise to pay the bond amount unless the defendant meets the conditions, which is generally to make all of their court appearances.
- States that defendants forfeit their bail when they abscond, i.e. when the defendant fails to appear for their court hearing without a valid excuse.
- Allows the bail surety agents may contest bail forfeiture by filing a motion to vacate the forfeiture of bail.
- Provides that if an action against a defendant who has been admitted to bail is dismissed, the bail shall not be exonerated until a period of 15 days has elapsed since the entry of the order of dismissal.
- States that if, within 15 days from dismissal, the defendant is arrested and charged with a public offense arising out of the same act or omission upon which the action or proceeding was based, the bail shall be applied to the public offense.
FISCAL EFFECT:
Unknown. This bill is keyed non-fiscal by the Legislative Counsel.
COMMENTS:
According to the author, "This legislation addresses an appeal by a California court to change an undesirable outcome based on strict statutory language. This bill will extend the amount of time a prosecuting agency has to file a criminal complaint, from 15 days to 90 days, to ensure that a defendant is not required to post multiple bonds at no fault of their own.
"AB 2655 will provide flexibility to courts and district attorneys in accommodating any delays in filing a criminal complaint. Before the People vs. Indiana Lumbermen’s Insurance case, the common practice of the court was to continue the arraignment, retain jurisdiction of the defendant’s bond, and provide more time for the district attorney to file a criminal complaint. By making this clarification, state resources will be saved by not having a court re-issue a warrant, law enforcement re-arrest a defendant, and a jail re-booking a defendant following the strict 15 day period in the statute."
Analysis Prepared by: David Billingsley/ PUB. S. / (916) 319-3744 FN: 0002833
ASSEMBLY THIRD READING
ATR Bill Id:AB 2655
Author:(Weber)
As Amended Ver:
Majority vote
Committee | Votes | Ayes | Noes |
Public Safety | 7-0 | Jones-Sawyer, Melendez, Lackey, Lopez, Low, Quirk, Santiago |
SUMMARY:
Authorizes an extension of the court's jurisdiction to declare a forfeiture and authority to release bail for not more than 90 days if the arraignment is properly continued to allow the prosecutor time to file the complaint and the defendant requests the extension in writing or in open court.
EXISTING LAW:
- Requires a court 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: arraignment, trial, judgment, any other occasion prior to the pronouncement of judgment if the defendant's presence in court is lawfully required, and to surrender himself or herself in execution of the judgment after appeal.
- States that 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.
- Specifies that 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.
- Provides that the surety or depositor shall be released of all obligations under the bond if any of the following conditions apply:
- The clerk fails to mail the notice of forfeiture in accordance with this section within 30 days after the entry of the forfeiture.
- The clerk fails to mail the notice of forfeiture to the surety at the address printed on the bond.
- The clerk fails to mail a copy of the notice of forfeiture to the bail agent at the address shown on the bond.
- States 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 bond exonerated.
- Provides that 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.
- States that instead 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:
- The bail is given prior notice of the reinstatement; and
- The bail has not surrendered the defendant.
- Specifies that 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, it is made apparent to the satisfaction of the court that specified conditions are met.
- States that bail permits a defendant to be released from custody by posting bond, which is a promise to pay the bond amount unless the defendant meets the conditions, which is generally to make all of their court appearances.
- States that defendants forfeit their bail when they abscond, i.e. when the defendant fails to appear for their court hearing without a valid excuse.
- Allows the bail surety agents may contest bail forfeiture by filing a motion to vacate the forfeiture of bail.
- Provides that if an action against a defendant who has been admitted to bail is dismissed, the bail shall not be exonerated until a period of 15 days has elapsed since the entry of the order of dismissal.
- States that if, within 15 days from dismissal, the defendant is arrested and charged with a public offense arising out of the same act or omission upon which the action or proceeding was based, the bail shall be applied to the public offense.
FISCAL EFFECT:
Unknown. This bill is keyed non-fiscal by the Legislative Counsel.
COMMENTS:
According to the author, "This legislation addresses an appeal by a California court to change an undesirable outcome based on strict statutory language. This bill will extend the amount of time a prosecuting agency has to file a criminal complaint, from 15 days to 90 days, to ensure that a defendant is not required to post multiple bonds at no fault of their own.
"AB 2655 will provide flexibility to courts and district attorneys in accommodating any delays in filing a criminal complaint. Before the People vs. Indiana Lumbermen's Insurance case, the common practice of the court was to continue the arraignment, retain jurisdiction of the defendant's bond, and provide more time for the district attorney to file a criminal complaint. By making this clarification, state resources will be saved by not having a court re-issue a warrant, law enforcement re-arrest a defendant, and a jail re-booking a defendant following the strict 15 day period in the statute."
Analysis Prepared by: David Billingsley/ PUB. S. / (916) 319-3744 FN: 0002777
Date of Hearing:
Counsel: David Billingsley
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
ABPCA Bill Id:AB 2655
Author:(Weber) – As Amended Ver:March 17, 2016
SUMMARY:
Authorizes an extension of the court’s jurisdiction to declare a forfeiture and authority to release bail for not more than 90 days if the arraignment is properly continued to allow the prosecutor time to file the complaint and the defendant requests the extension in writing or in open court.
EXISTING LAW:
- Requires a court 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: arraignment, trial, judgment, any other occasion prior to the pronouncement of judgment if the defendant's presence in court is lawfully required, and to surrender himself or herself in execution of the judgment after appeal. (Pen. Code, § 1305, subd. (a).)
- States that 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. (Pen. Code, § 1305, subd. (a).)
- Specifies that 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. (Pen. Code, § 1305, subd. (b).)
- Provides that the surety or depositor shall be released of all obligations under the bond if any of the following conditions apply:
- The clerk fails to mail the notice of forfeiture in accordance with this section within 30 days after the entry of the forfeiture. (Pen. Code, § 1305, subd. (b)(1).)
- The clerk fails to mail the notice of forfeiture to the surety at the address printed on the bond. (Pen. Code, § 1305, subd. (b)(2).)
- The clerk fails to mail a copy of the notice of forfeiture to the bail agent at the address shown on the bond. (Pen. Code, § 1305, subd. (b)(3).)
- The clerk fails to mail the notice of forfeiture in accordance with this section within 30 days after the entry of the forfeiture. (Pen. Code, § 1305, subd. (b)(1).)
- States 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 bond exonerated. (Pen. Code, § 1305, subd. (c)(1).)
- Provides that 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. (Pen. Code, § 1305, subd. (c)(3).)
- States that instead 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:
- The bail is given prior notice of the reinstatement; and (Pen. Code, § 1305, subd. (c)(4)(A).)
- The bail has not surrendered the defendant. (Pen. Code, § 1305, subd. (c)(4)(B).)
- The bail is given prior notice of the reinstatement; and (Pen. Code, § 1305, subd. (c)(4)(A).)
- Specifies that 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, it is made apparent to the satisfaction of the court that specified conditions are met. (Pen. Code, § 1305, subd. (d).)
- States that bail permits a defendant to be released from custody by posting bond, which is a promise to pay the bond amount unless the defendant meets the conditions, which is generally to make all of their court appearances. (Pen. Code, § 1269.)
- States that defendants forfeit their bail when they abscond, i.e. when the defendant fails to appear for their court hearing without a valid excuse. (Pen. Code, § 1275, 1305.)
- Allows the bail surety agents may contest bail forfeiture by filing a motion to vacate the forfeiture of bail. (Pen. Code, § 1305.)
- Provides that if an action against a defendant who has been admitted to bail is dismissed, the bail shall not be exonerated until a period of 15 days has elapsed since the entry of the order of dismissal. (Pen. Code, § 1303.)
- States that if, within 15 days from dismissal, the defendant is arrested and charged with a public offense arising out of the same act or omission upon which the action or proceeding was based, the bail shall be applied to the public offense. (Pen. Code, § 1303.)
FISCAL EFFECT:
Unknown
COMMENTS:
- Author's Statement: According to the author, "This legislation addresses an appeal by a California court to change an undesirable outcome based on strict statutory language. This bill will extend the amount of time a prosecuting agency has to file a criminal complaint, from 15 days to 90 days, to ensure that a defendant is not required to post multiple bonds at no fault of their own.
“AB 2655 will provide flexibility to courts and district attorneys in accommodating any delays in filing a criminal complaint. Before the People vs. Indiana Lumbermen’s Insurance case, the common practice of the court was to continue the arraignment, retain jurisdiction of the defendant’s bond, and provide more time for the district attorney to file a criminal complaint. By making this clarification, state resources will be saved by not having a court re-issue a warrant, law enforcement re-arrest a defendant, and a jail re-booking a defendant following the strict 15 day period in the statute.” - Bail: Bail is a security given to the court to guarantee a defendant's future attendance at court proceedings. The amount of bail required is typically set according to the local bail schedule that lists common offenses and a suggested amount. These bail schedules are set by county judges. At arraignment, the magistrate will review the case and set bail in an amount he or she deems sufficient to ensure the defendant's appearance. While the usual practice is to adhere to scheduled bail, either the prosecution or the defense may argue for a departure from the bail schedule based on aggravating and mitigating factors, danger to the public, and ties to the community.
Bail permits an individual to be released from actual custody into the constructive custody of a surety on a bond given to procure the defendant's release. Bail, once posted, stands until forfeited (taken by the court) or exonerated (released) to ensure the defendant's appearance at all stages of the proceedings on the original charge. If bail was posted through a bail bond agency, the agent and the defendant sign a bail agreement that will usually fix the term of the bail bond as one year. The defendant must pay a renewal premium for any additional period.
Most individuals that post bail go through a bail bondsman. The individual pays the bail bondsman a premium and the bail bondsman posts the full amount of the bail. The premium is generally 10% of the bond. The premium is the payment from the individual to the bail bondsman for posting the full amount of the bail. The premium is non-refundable. When the court exonerates the bail, the bail money is returned to the bail bondsman whom posted the bail. If a criminal complaint is filed, the bail is exonerated when the case is over, or the defendant is taken into custody. In either of those cases, the bail is no longer needed to secure the defendant’s appearance. The bail is also exonerated if no criminal complaint is filed within 15 days from the date of the arraignment. The arraignment is the initial court appearance. A defendant that is arrested and bails out immediately is normally given an arraignment date of the next business day to appear in court. - Requiring Exoneration of Bail Bond after 15 Days if No Complaint is Filed Results In Individuals Paying Premiums for Two Bail Bonds: The office of the district attorney is not required to file criminal charges immediately, or even within a time frame of 30 or 60 days. Criminal charges must be filed before the applicable statute of limitations period.
There are a variety of reasons a district attorney’s office might not file a charge immediately. Sometimes there is a need for additional investigation to determine if there is sufficient evidence to file charges. In cases involving drugs, there might be a delay to wait on lab results. Sometimes charges are not filed immediately because there has not been an opportunity for a district attorney responsible for charging crimes to review the police report or other evidence.
When bail has been posted on behalf of an individual, a delay in the filing of criminal charges can result in the bail being released (exonerated) by the court. Current law requires the court to exonerate bail if no complaint has been filed within 15 days of the arraignment. If the district attorney’s office files charges after the bail has been exonerated, the individual can be required to post bail a second time. This is particularly problematic when an individual has posted bail through a bail bondsman. In those situations, even though bail has been exonerated, the individual does not get back the premium he or she paid to the bail bondsman. If the individual is required to post a second bail, it results in substantial expense. If the individual does not have the money to pay a second premium to a bail bondsman, the defendant will be taken into custody, even though they had already posted bail once before.
This bill allows an extension of 90 days before being required to exonerate bail if no complaint is filed. Such an extension would require the arraignment to be continued and a request to be made the defendant in writing or in open court. That extension allows for situations where the district attorney’s office has not completed their investigation, or there has been some other delay in making a decision about whether to file criminal charges. - Argument in Support: According to The California Attorneys for Criminal Justice, “Under Penal Code section 1305, the defendant’s bail must be released if no criminal complaint is filed within 15 days of the first scheduled arraignment. Unfortunately, the statute contained no provision for extending the 15-day period. As a result, whenever the District Attorney is delayed in filing a criminal complaint, a defendant may be forced to pay for a second bail.
“In the People v. Indiana Lumbermen’s Insurance (2010) 190 Cal.App. 4th, 823, the insurance company argued that the trial court had no jurisdiction to forfeit the bond because a complaint was not filed within 15 days of the original date set for a criminal defendant's arraignment, as provided for in §1305(a). The court concluded that the trial court lost jurisdiction to order forfeiture of the bond.
“Before this decision, the courts regularly continued an arraignment without forfeiting the bond until the DA determined whether or not to file charges. By taking away a court’s jurisdiction to declare a forfeiture after the 15 day time window, Lumbermen’s changed that practice in a significant way.
“Due to this change, we have faced circumstances where our clients have been forced to post a bond twice, once when initially arrested, and after the DA’s decision to file formal charges beyond the statutory 15-day deadline. This is an unjust result because it forces the defendant to post bond twice due to no fault of the defendant. This ambiguity in this section handcuffs the court without allowing discretion, limiting what commonly occurred what commonly occurred commonly in practice.
“In addition, by not allowing this continuance, this rigidity costs taxpayers of this state substantial amounts of money used on wasted law enforcement, jail and court hours to re-arrest and re-book the defendant. The court in Lumberman’s did not find the outcome satisfying:
“[w]e do not consider this to be a satisfying outcome. We agree with county counsel that it makes more sense, in terms of public policy, to permit a court to continue the arraignment to give the prosecuting agency more time to decide whether to file charges while still retaining jurisdiction to order forfeiture of the bond if the defendant fails to appear at the subsequent arraignment. However, if that was the Legislature's intent, it has failed to say so. The statute contains no provision for extending the 15-day period within which the prosecuting agency is required to file the complaint. We may not read into the statute a provision that is clearly not encompassed within the statutory language … The Legislature may amend the statute if it finds that the current language does not comport with its intentions. Id at 830.
“We are acting upon the court’s recommendation in amending the statute to avoid this dissatisfying and unjust result.
- Related Legislation: AB 1854 (Bloom), requires the district attorney, county counsel, or applicable prosecuting agency to recover attorney’s fees out of the forfeited bail moneys. AB 1854 is awaiting referral in the Senate Rules Committee.
- Prior Legislation:
- AB 1082 (Linder) of the 2015-2016 Legislative Session, would have extended from 10 to 12 days the notice of motion a surety must give the court prior to requesting an extension of the 180 day period in which the surety must return an offender to court in order to avoid a permanent forfeiture of bail. AB 1082 was referred Assembly Public Safety Committee, but was never heard.
- AB 1118 (Hagman), of the 2013-2014 Legislative Session, would have required the Judicial Council, on or before January 1, 2015, to prepare, adopt and annually revise a statewide bail schedule for all bailable felony, misdemeanor, and infraction offenses except Vehicle Code infractions. AB 1118 failed passage in the Senate Public Safety Committee.
- AB 805 (Jones-Sawyer), Chapter 17, Statutes of 2013, provides that in setting bail, a judge or magistrate may consider factors such as the report prepared by investigative staff for the purpose of recommending whether a defendant should be released on his/her own recognizance.
- AB 723 (Quirk), of the 2013-2014 Legislative Session, would have allowed a person on post-release community supervision who has a revocation petition filed against him or her to file an application for bail with the superior court. AB 723 was held on the Senate Appropriations Committee Suspense File.
- AB 1082 (Linder) of the 2015-2016 Legislative Session, would have extended from 10 to 12 days the notice of motion a surety must give the court prior to requesting an extension of the 180 day period in which the surety must return an offender to court in order to avoid a permanent forfeiture of bail. AB 1082 was referred Assembly Public Safety Committee, but was never heard.
REGISTERED SUPPORT / OPPOSITION:
Support
California Attorneys for Criminal Justice (Sponsor)
American Civil Liberties Union of California
California Department of Insurance
California Public Defenders Association
Ella Baker Center for Human Rights
Legal Services for Prisoners with Children
Opposition
None
Analysis Prepared by:
David Billingsley / PUB. S. / (916) 319-3744
Discussed in Hearing
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Bill Author
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