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Navigating Bail

By Steve Cooley

      In 1791, the Eighth Amendment established a defendant's constitutional right to bail. Since then, defendants routinely have posted bail and appeared in court to answer criminal charges. What happens procedurally, however, when a defendant fails to appear in court and his or her bail is forfeited?
      The objective of this article and the accompanying self-assessment test is to educate practitioners and bench officers about the basic rules concerning the posting and forfeiture of bail. By reading the article and taking the test, readers will learn the mechanics of the initial posting of bail, courts' options and procedures if the defendant fails to appear and bail is forfeited and important time limits that must be followed throughout.
      An Educational Deficit
      When I was first elected district attorney in 2000, I became aware of a number of issues affecting the bail industry, especially unfair business practices and illegal activities. My department's investigation revealed that some surety companies routinely were failing to pay bail forfeitures, resulting in an outstanding debt of $7 million in unpaid summary judgments owed to Los Angeles County. We also learned that some bail agents were engaging in illegal activities, such as operating without a license or preparing and filing false court documents. These problems endangered public safety and permitted defendants who had no intention of returning to be released from jail.
      A major goal of the district attorney's office has been to make sure that the bail system in this county works the way it should. To that end, with the cooperation of the Superior Court and the county counsel, the problem of unpaid summary judgments has been eliminated and a debt of $7 million dollars has been collected.
      During the investigations by the district attorney's office, it became apparent that many prosecutors, bench officers and defense attorneys are unaware of the intricacies of bail law. Consequently, I provided training for my own deputies and those from other agencies. This article is part of that effort.
      The Basics
      Following a defendant's arrest, he or she can be released from custody by posting a private surety bail bond, which is arranged by a bail agent. Normally, the bail agent charges 10 percent of the face value of the bond as the premium and secures collateral (for example, automobiles or homes) to insure the remaining 90 percent.
      In Los Angeles County, the Superior Court's comprehensive bail schedule establishes a specific recommended amount for each offense ( For example, the scheduled bail for a defendant charged with a felony violation of spousal battery is $50,000. Therefore, a defendant being released on bail likely would pay a $5,000 premium and would need to post other security with the bail agent to insure the remaining balance of $45,000.
      Once the jailor has accepted the bail bond, the defendant is released, and he or she is ordered to appear in court on a particular date. After the defendant appears and the case is concluded, the bail is exonerated, and the bail agent and surety are released from any further liability on the bond.
      Failure to Appear
      If a defendant fails to appear in court, without sufficient excuse, his or her bail is forfeited. (People v. National Automobile & Casualty Insurance Co. (2002) 98 Cal.App.4th 277, 285.) The trial court, however, must declare this forfeiture in "open court." (Penal Code, section 1305(a).) For example, in National Automobile, the defendant failed to appear, but the court held the bench warrant for a day or two, stating that, while court was in session, "Bail status is revoked." (at pp. 280-281, emphasis in original.) During a recess later that morning, the court clerk asked the judge whether the bail had been forfeited, and he replied, "[Y]es." (at p. 281.) Subsequently, the surety sought to vacate the forfeiture and exonerate the bond, arguing that it had not been forfeited in open court.
      The National Automobile decision illustrates one of bail's most basic concepts: The law abhors forfeitures, and, therefore, trial courts must strictly comply with bail statutes. (People v. National Automobile & Casualty Insurance Co., supra, 98 Cal.App.4th at pp. 287-288.) Applying that rule, the National Automobile court strictly construed the bail statute to find a significant difference between bail revocation, which denies a defendant a right to be released from custody, and bail forfeiture, which is directed at the security bond guaranteeing the defendant's appearance. (at p. 285.) Since the court had forfeited the bond during a recess, not in open court as mandated by the statute, the surety was entitled to have the bond exonerated and its obligation terminated.
      The general rule is that a trial court must forfeit bail whenever a defendant fails to appear and does not have a sufficient excuse for his or her absence. (Penal Code, section 1305(a).) But what constitutes a sufficient excuse? Appellate cases held, for example, that a defendant had a sufficient excuse when he did not appear because he was visiting his mother, who was dying of cancer. (People v. Ranger Insurance Co. (1994) 31 Cal.App.4th 13, 19-20.) There was also a sufficient excuse to delay forfeiture when the defendant's attorney informed the court that his client was in another city receiving medical treatment for internal bleeding. (People v. Surety Insurance Co. (1976) 55 Cal.App.3d 197, 199.)
      By contrast, an insufficient showing of good cause existed in People v. American Bankers Insurance Co. (1989) 215 Cal.App.3d 1363, 1365-1367, and the bail forfeiture was exonerated, when the appellate record was devoid of any explanation for the defendant's absence. A similar ruling arose in People v. Surety Insurance Co. (1984) 160 Cal.App.3d 963, 965, when the defendant's attorney informed the trial court that he would "'endeavor to have [his client] brought in.'" In finding this representation to be an insufficient excuse, the Court of Appeal noted that all the statement revealed was "counsel's desire to bring defendant into court[,]" not an explanation of why the defendant was not in court that morning. (at p. 969.)
      Another common problem is the defendant who fails to get to court on time. What happens when a defendant fails to appear and the trial court forfeits the bond, only to have the defendant appear later in the day? The rule is clear that, under Penal Code section 1305(c)(4), a bail bond may be reinstated after being forfeited, but only if the trial court has given the surety or bail agent notice of the reinstatement. However, in People v. Surety Insurance Co. (1983) 148 Cal.App.3d 351, 353, the appellate court held that, despite this rule, a trial court could reinstate bail without notice to the surety if it was reinstituted on the same day that it was forfeited.
      The appellate court's reasoning was that, because court minute orders are not normally completed until the end of the day, there is no permanent entry and, therefore, no need to notify the surety if bail is reinstated. ( at p. 357.) This differs completely from the holding in People v. Wilshire Insurance Co. (1975) 46 Cal.App.3d 216, 218, when the defendant failed to appear, but the bond was reinstated when he appeared in court the next day. That entry was too late, and notice should have been given to the surety; but because it had not been provided, the bail forfeiture was exonerated.
      After Forfeiture
      Within 30 days of the bail being forfeited, the court clerk must mail written notice to both the bail agent and the surety. (Penal Code, section 1305(b).) If the clerk fails to mail notice or does not send it to both parties, the forfeiture is exonerated. This happened in 1999 when a Los Angeles County court clerk failed to mail a timely notice and a $2.5 million bail bond was exonerated. (People v. American Contractors Indemnity Co. (2001) 91 Cal.App.4th 799, 807.)
      Once notice is received by the bail agent, the hunt to find the fleeing defendant is on, because the bail agent has only 185 days in which to return him or her to court. Otherwise, the bail agent must pay the county the full amount of the forfeited bail bond. (Penal Code, Section 1305.) However, that risk is lessened because a bail bond is exonerated if a police agency arrests the defendant in the underlying case, even without any assistance from the bail agent. (Penal Code, 1305(c)(3).) Similarly, if a defendant is in custody outside of the trial court's jurisdiction, either in another state or a foreign country, the bail is exonerated if the prosecution elects not to seek extradition. (Penal Code, Section 1305(f).)
      The bail agent in People v. Far West Insurance Co. (2001) 93 Cal.App.4th 791, 797-798, benefited from this rule when a police department representative mistakenly informed Georgia police that the defendant in their custody would not be extradited to California. Even though the information given to Georgia police was wrong, the bail bond was exonerated because the California law enforcement agency impeded the extradition process. On the other hand, a bail agent could not take advantage of this rule when his client fled the United States and was living "in a private Cuban hotel, free and at liberty ..." (County of Los Angeles v. Ranger Insurance Co. (1996) 48 Cal.App.4th 992, 997). Strictly construing the bail statute led the appellate court to hold that this was hardly the "custody" envisioned by the statute.
      In a similar vein, a bail forfeiture will be upheld if the state unsuccessfully seeks extradition, as happened when the prosecution attempted but was unable to return a defendant from Sri Lanka in People v. Ranger Insurance Co. (1998) 61 Cal.App.4th 812, 818-819. The chance that a defendant will flee beyond the prosecution's reach, the appellate court observed, is merely one of the risks a surety accepts when it posts bail for a defendant. (at p. 819.)
      One of the more problematic provisions of the bail statutes is Penal Code section 1305(g). First enacted in 1995, this provision requires that bail be exonerated when a bail agent temporarily detains a defendant in the presence of a local law enforcement officer who positively identifies the defendant in an affidavit signed under penalty of perjury, and the prosecution, on receiving that paperwork, elects not to seek extradition. (Ibid.)
      Although this subdivision pertains to any detention made outside of California, it has been employed principally when a defendant is found outside of the United States. (See, County of Orange v. Ranger Insurance Co. (1998) 61 Cal.App.4th 795, 800.) An initial issue under this subdivision was determining exactly what constitutes a law enforcement officer, with many bail agents asserting, for example, that a Mexican notary public was sufficient. However, that contention was rejected by the Court of Appeal in People v. Frontier Pacific Insurance Co. (1999) 69 Cal.App.4th 1093, 1098, which held that a notary is not a "law enforcement officer" because his or her duties do not include "enforcing criminal statutes and arresting violators."
      The other issue bedeviling government agencies is the provision that bail be exonerated when the prosecution elects not to seek extradition. However, what happens if extradition is technically feasible but the policies of a particular foreign government make it unlikely that a defendant will ever be returned to the United States? Until recently, Mexico rarely returned its citizens to the United States for prosecution. (County of Orange v. Ranger Insurance Co., supra, 61 Cal.App.4th at p. 803.)
      But does the prosecutor still need to request extradition when it is unlikely ever to happen? No, according to the Ranger court, a prosecutor does not have to "butt his [or her] head against a wall just to see how much it hurts." (at p. 804.) If extradition is not feasible, the prosecution does not need to make a futile attempt at it, and any subsequent forfeiture will be upheld. (at p. 804.)
      Ticking Clock
      Once the forfeiture is declared and notice mailed, the bail agent has 185 days to locate the defendant and return him or her to custody. (Penal Code, section 1305.) However, if a bail agent has good cause at the end of that period, a trial court can grant up to an additional 180 days in order to locate the defendant. (Penal Code, section 1305.4.)
      The issue plaguing trial and appellate courts for some time, however, was what showing the bail agent would have to make to be given additional time. Recently, this issue was resolved in People v. Accredited Surety and Casualty Co., Inc. (2006) 137 Cal.App.4th 1349, 1356-1357, which held that, to earn more time, a bail agent must prove that he or she is pursuing the defendant actively and has a reasonable likelihood of capturing the defendant if an extension is granted.
      Once the bail agent has exhausted all the time in which to locate the defendant, the trial court must enter summary judgment within 90 days of the end of the exoneration period. (Penal Code, section 1306(c).) Failure to enter summary judgment during that period requires exoneration of the forfeiture. (People v. Topa Insurance. Co. (1995) 32 Cal.App.4th 296, 300-301.) A court clerk, however, may not sign a summary judgment; only a judge may. And if the order is not signed properly, the forfeiture is exonerated. (People v. Frontier Pacific Insurance Co. (2000) 83 Cal.App.4th 1289, 1294.)
      If the defendant has not been located and time has run out, the surety owes the county the face value of the bond. Bail, of course, is not about government revenue, nor should it ever be. Instead, it is about protecting the public by insuring that those charged with a crime appear in court to answer those accusations.
      California's bail statutory scheme requires strict adherence. The more trial courts and attorneys understand the intricacies of bail law, the better the public will be protected.
      Steve Cooley is serving his second term as the district attorney of Los Angeles County.

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