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California
Bail Law
For
many states the regulations on the bail
bond industry are found in multiple state
codes. In the case of California, the
regulatory body is the Insurance
Department, but the bail bond industry is
also subject to California’s Penal
Code.
I.
Applicable State Statutes.
A.
California Insurance Code, Div. 1, Part
2, Ch. 7, Sections 1800-1823, (hereafter
referred to as IC). Under IC 1800.6,
cities and counties are free to enact
further regulations not in conflict with
the IC sections cited above in A.
B.
California Penal Code, Part 2, Title 10,
Ch. 1, Article 5.5, Sections 1299-1317
(hereafter referred to as PC).
C.
California Code of Regulations, Title
10, Ch. 5, Sections 2053 et seq.
II.
Licensing Requirements for Agents
A.
California provides for three kinds of
bail licenses [IC 1801]: the bail
agents’ license [IC 1802], the bail
permitees’ license [IC 1802.5], and
the bail solicitors’ license [IC
1803]. Of concern here will be the bail
agents’license, which permits the
holder to solicit, negotiate, and effect
undertakings of bail on behalf of any
admitted surety. (A license may also be
held by a corporation [IC 1810(b)]). The
requirements of which license are:
1.
A surety bond of $1000 for proper
handling of money collected [IC 1802],
2.
A notice of appointment on file with
commissioner by a surety insurer [IC
1802.1],
3.
Filing an application in the form
prescribed by the commissioner with such
supporting documents as required [IC
1804],
4.
Filing of annual notices and
applications to keep licenses in force
and payment of fees by 1 May annually
[IC 1808],
5.
Taking and passing a written examination
given by the commissioner [IC 1810.5,
1810.6], to qualify for which the
applicant must take 12 hours of
classroom education in pertinent
subjects [IC 1810.7(a)],
6.
Completion annually of not less than six
hours of continuing classroom education
on pertinent subjects prior to renewal
of license [IC 1810.7(a)],
7.
Payment of a license application fee of
$118.00 [IC 1811(a)],
B.
The regulatory body is the Insurance
Department. III. Notice of Forfeiture
[PC 1305-1308]. Upon the court’s
declaration of a forfeiture [PC
1305(a)(1)-(5)],
A.
The clerk of the court must mail notice
to both surety and bail agent within 30
days of the declaration [1305(b)],
B.
The forfeiture period is 180 days
extended by five days for mailing
[1305(b)],
IV.
Allotted Time Between Forfeiture
Declaration and Payment Due Date
When
the bond is forfeited and the period of
time in PC 1305 has elapsed, the court
in question enters a summary judgement
[PC 1306(a)] and the district attorney
or county counsel must demand immediate
payment within 30 days after the summary
judgement becomes final [PC 1306(e)(1)].
The clerk of the court must serve notice
of the entry of judgment within five
days of the date of the judgment [PC
1308(b)].
The
court can extend the time period not to
exceed 180 days from its order [PC
1305.4] or permit tolling [PC 1305(e)].
The
California Penal Code establishes a
number of conditions under which the
forfeiture is set aside:
A.
If case is dismissed or no complaint is
filed within 15 days of arraignment
[1305(a)(5)],
B.
If the clerk fails to mail forfeiture
notice within 30 days or fail to mail to
both agent and surety [1305(b)(1)-(3)],
C.
If defendant is returned to court within
the 180 period [1305(b)(1)-(3)],
D.
If defendant is permanently disabled [PC
1305(d)], deceased or otherwise
permanently unable to appear [PC
1305(d)(1)], temporarily disabled [PC
1305(e)(1)-(3)], or in custody beyond
jurisdiction of the court [PC
1305(f)(g)],
E.
A motion is filed by the agent/surety
within the 180 day period to be heard
within 30 of the expiration of the 180
day period [PC 1305(I)], 1305.4],
F.
If the court has reason to believe there
is a sufficient excuse for a failure to
appear, it may continue the case for a
period it deems reasonable [PC 1305.1].
California
has no remission period.
VII.
Bail Agent’s Arrest Authority
California
Penal code allows the agent to arrest
the principal himself or empower another
to do so. [PC 1301].
VIII.
Other Noteworthy Provisions
A
bail agent’s license may also be held
by a corporation [IC 1810(b)].
IX.
Noteworthy State Appellate Decisions
A.
Unexcused Non-Appearance
1.
People v. American Bankers Ins. Co.
(1989) 264 Cal.Rptr. 152, 215 Cal.
App.3d 1363. If defendant fails to
appear and court continues the matter
without forfeiting bail, the excuse for
defendant's failure to appear must be
"on the record."
After
defendant failed to appear at his
probation and sentencing hearing, the
trial court continued the matter and
ultimately ordered bail forfeited.
Summary judgment was entered in favor of
the People. The trial court denied the
bail bond company's motion to vacate the
summary judgment and to exonerate the
bond. (Superior Court of Orange County,
No. C-63343, Myron S. Brown, Judge.)
The
Court of Appeals reversed the trial
court's order denying the motion to
vacate the summary judgment and
exonerate the bond. The court held that
where, as in this case, there is no
indication on the record that either the
defendant or defense counsel presented
any information to the court which could
be said to constitute a sufficient basis
to entertain a reasonable belief that
the defendant's nonappearance may have
been with sufficient excuse. Thus, it
held that the failure of the trial court
to declare forfeiture of defendant's
bail bond on the first day he neglected
to appear for his probation and
sentencing hearing deprived it of
jurisdiction to later forfeit the bond,
since there was nothing in the record to
show that the trial court had any reason
to believe sufficient cause existed for
his failure to appear. (Opinion by
Scoville, P.J. with Wallin and
Sonenshine, JJ., concurring.)
2.
People v. Frontier Pacific Ins.
Co.(1998) 74 Cal.Rptr.2d 316, 63 Cal.App.
4th 889.
If
upon the non-appearance of a defendant,
the trial court continues a case without
forfeiting bail, and the surety later
brings a motion for relief from a
subsequently entered forfeiture, the
court may not consider evidence not part
of the record from the first hearing to
determine whether there was a rational
basis for a sufficient excuse.
In
criminal prosecution, the Superior
Court, Santa Clara County, No. 191155,
Leonard B. Sprinkles, J., declared bail
forfeited after defendant's second
failure to appear for sentencing.
Surety's motion to vacate forfeiture and
exonerate bail was denied, and surety
appealed. The Court of Appeal, Mihara,
J., held that:
(1)
trial court lacked jurisdiction to
forfeit bail bond upon defendant's
second failure to appear, in absence of
showing on the record that court found
sufficient excuse at time of first
nonappearance for defendant's absence;
and
(2)
declaration submitted by district court
in opposing motion to vacate forfeiture,
detailing an alleged in camera
discussion with judge at time of
defendant's first nonappearance that
allegedly explained his absence, did not
change result. Reversed.
B.
Reinstatement Without Notice
County
of Madera v. Ranger Ins. Co. (1991) 281
Cal.Rptr. 230, 230 Cal. App.3d 271.
County
sought to recover from surety on bail
bond when defendant failed to appear in
criminal case. The Madera Justice Court,
No. 020641, Victor C. Dahman, J.,
granted summary judgment in favor of
county. Surety Appealed.
The
Court of Appeal, Dibiaso, Acting P.J.,
held that:
(1)
court may not reinstate defendant on
previously forfeited bail bond without
prior notice to the surety, and
(2)
failure of court to provide prior notice
requires release of surety obligation.
Reversed.
C.
No Election Required by Prosecution
Where Extradition Infeasible
County
of Orange V. Ranger Ins. Co. (1998) 61
Cal.App.4th 795, 71 Cal.Rptr.2d 811.
In
bail forfeiture proceedings, the trial
court ruled that §Pen. Code, 1304, subd.
(g), which provides for relief from
forfeiture of bail when the prosecuting
agency elects not to seek extradition
after being informed of the location of
a fugitive defendant, did not provide
relief to a surety whose bond posted for
a Mexican national convicted of drug
offenses had been forfeited after
defendant fled to Mexico. (Superior
Court of Orange County, No. 95NF1458,
David O. Carter, Judge.)
The
Court of Appeal affirmed. The court held
that §Pen. Code, 1305, subd. (g),
applies to defendants in foreign
countries, but that it not triggered
when extradition is not feasible. The
term "elect" implies a choice
of options, and the implication is that
the prosecutor will have the option
whether or not to seek extradition.
Accordingly, the court held that the
prosecution, having given evidence of
Mexico's demonstrated reluctance to
extradite its own nationals for
nonheinous offenses, was not required to
make a formal request for defendant's
extradition from the Mexican government,
and the trial court properly found that
extradition was infeasible. (Opinion by
Sonenshine, Acting P.J., with Rylaarsdam
and Bedsworth, JJ., concurring.)
D.
When Is A Bailee Required to Appear in
Court?
People
v. Ranger Ins. Co. (1998) 66 Cal.App.4th
1549, 78 Cal.Rptr. 2d 763. Defendant
must appear at a "master trial
calendar hearing."
In
a felony criminal prosecution, the trial
court properly granted defendant’s
surety’s motion to vacate the bail
forfeiture ordered when defendant failed
to appear at a hearing on a defense
motion to continue the trial. The trial
court lost jurisdiction when it failed
to forfeit the bail bond two days
earlier on the occasion of defendant’s
failure to appear at the master trial
calendar hearing and so it was without
jurisdiction to order the forfeiture two
days later.
Pen.
Code, 1305, requires a defendant’s
presence at "trial," which
includes the date set for the appearance
in the master trial calendar department.
If the court fails to declare forfeiture
at that time, it loses jurisdiction and
the bond is exonerated by operation of
law. Even though defendant had executed
a Pen. Code, 977, waiver, which allows a
felony defendant to be absent on
specific occasions, Pen. Code, 1305,
which governs forfeiture procedure, was
the more specific statute and thus it
took precedence. When there is a
conflict between a general and a special
law, the special law must control.
[See
4 Witkin & Epstein, Cal. Criminal
Law (2d ed. 1989) 2023 et seq.] (2) Bail
and Recognizance §9 -- Forfeiture of
Bond or Deposit. The forfeiture or
exoneration of bail is entirely a
statutory procedure, and forfeiture
proceedings are governed entirely by the
special statutes applicable thereto
(Pen. Code, 1305-1309). Because the law
abhors forfeitures, these statutes are
to be strictly construed in favor of the
surety.
E.
Timeliness of Entry of Summary Judgment
People
v. Topa Ins. Co. (1995) 38 Cal.Rptr.2d
167, 32 Cal. App.4th 296. Summary
judgment must be filed within 90 days
after the date it may first be filed, or
the trial court loses jurisdiction over
the bond.
Surety
filed motion to vacate forfeiture of,
reinstate and exonerate bail bond. The
Superior Court, Sonoma County, No.
16737, R. Bryan Jamar, J., granted
summary judgment on forfeiture, and
denied surety’s motion to set aside
summary judgment and exonerate bail.
Surety Appealed. The Court of Appeal,
Merrill, J., held that: (1) trial court
was without jurisdiction to do anything
other than enter summary judgment of
forfeiture following expiration of
180-days period for seeking relief from
forfeiture, absent tolling of 180-days
period, and (2) trial court’s failure
to enter summary judgment forfeiting
bail within 90 days after lapse of
180-day period for seeking relief from
forfeiture meant that its jurisdiction
to enter summary judgment had expired
and bail was exonerated. Reversed.
People
v. Ranger Ins. Co.(1996) 59 Cal.Rptr.2d
777, 51 Cal.App.4th 1379. The court must
give notice to the surety at its proper
address. After receiving notice of
summary judgment of forfeiture, surety
on bail bond moved to discharge
forfeiture, set aside judgment, and
exonerate bail, based on procedural
irregularities in giving of notice. The
Superior Court, Santa Clara County, No.
172001, John A. Flaherty, J., denied
motion. Surety appealed The Court of
Appeal, Wunderlich, J., held that:
(1)
notice of original forfeiture forwarded
to surety by defunct general agent to
whom it was mailed achieved statutory
goal of actual notice;
(2)
order, naming wrong surety, that surety
reassume its obligations under
reinstated bond was ineffective; and
(3)
even if reassumption had been effective,
notice to address known to be incorrect
was ineffective. Reversed.
People
v. American Surety Ins. Co. (2000) 92
Cal.Rptr.2d 216. Deportation of a bailee
entitles the surety to relief from a
forfeiture (and to have its liability
extinguished).
Surety
which had posted bail for defendant who
was arrested on drug charges, and who
was unable to appear for preliminary
hearing due to his deportation by
Immigration and Naturalization Service
(INS), moved to vacate forfeiture and
exonerate bail. The Superior Court,
Ventura County, Nos. CR44361, 187541,
John J. Hunter, J., denied motion.
Surety appealed. The Court of Appeal,
Yegan, J., held that defendant’s
deportation rendered him unable to
appear due to "detention" by
civil authorities, and thus operated
under statute to exonerate bail.
Reversed.
X.
Bounty Hunter Provisions
In
September 1999, California enacted a law
(A 243) regulating bounty hunters,
termed "bail fugitive recovery
persons" in the statute. This law
added section 1299 to the California
Penal Code. The bail fugitive recovery
person is defined as one who has
"written authorization" by a
bail agent, surety, etc., (under PC 1300
and 1301) and is contracted to
investigate, surveil, locate, and arrest
a bail fugitive for surrender to
appropriate authorities, or any person
employed to assist in the arrest of such
a fugitive.
A.
Licensing Requirements. [PC
1299.04(a)(1)-(5)]
1.
Be at least 18 years old [PC
1299.04(a)(1)],
2.
Completion of a 40 hour power of arrest
course [PC 1299.04(a)(2)],
3.
Completion of a minimum of 12 hours
classroom education pursuant to IC
1810.7 [PC 1299.04(a)(3)],
4.
Completion of a training course in the
exercise of the power to arrest pursuant
to Section 7583.7 of Business and
Professions Code [PC 1299.04(a)(4)],
5.
No felony convictions [PC
1299.03(a)(5)].
B.
Arrest Authority. [PC 1299.02]
