Assemblymember Tom Ammiano
State Capitol
P.O. Box 942849
Sacramento, CA 94249-0013

Location: Assembly Appropriations Committee
Position: Oppose Unless Amended

Re: AB 2029 (Ammiano) Bail Fugitive Recovery Persons Act (As Amended 3/20/12)

Dear Assemblymember Ammiano:

Golden State Bail Agents Association (GSBAA) is a trade association representing the California bail industry.  The purpose of the association is to promote the understanding of the bail industry’s important role in California’s criminal justice system and to protect the rights of its citizens.  The Association is headquartered in Sacramento, California, but has members throughout California.  The members of GSBAA include bail employees, bail agents and bail insurance companies.

GSBAA is opposed to AB 2029 unless it is amended to include the attached amendments. This letter provides background on our proposed amendments (attached).

1. 1299.09(a) Amendment of Language Restricting Fugitive Recovery Person’s Right to Forcibly Enter a Premises to Felonies Only:

Restricting the right to forcibly enter a premises to Penal Code §844 is unworkable, because Section 844 only applies to felony offenses.  Many bonds are written on misdemeanor offenses and those bonds can be in the hundreds of thousands of dollars.  Therefore, we propose a compromise amendment that would incorporate all of the requirements of Section 844 except the requirement that the offense be a felony.

Our amendment, would require that if the court declare the bail bond forfeited, the defendant would have to be present in the house, or there would have to be probable cause for believing that the defendant is present in the house and the fugitive recovery person would have to demand admittance and explained the purpose for which admittance is desired.

The issuance of the warrant cannot be the triggering event because, the Court often will hold the warrant and forfeit the bail bond. This starts the 180 day forfeiture clock running even though no warrant has been issued.  Furthermore, many misdemeanor warrants are not entered into the CLETS warrant system,  therefore law enforcement may not be aware of the warrant.

This amendment is needed because bail agents and fugitive recovery persons have broader arrest powers over defendants released on bail than that of an ordinary citizen.

Bail is a special form of contract where a person is granted release from jail upon a promise to appear at a specified time backed by a bond secured by the bail agent.  A defendant stays in the constructive custody of the bail agent at the contractual consent of the bailed defendant.  Bail agents thus have a right to arrest absconding defendants to perfect the constructive custody. (Taylor v. Taintor (1862) (16 Wall.) 83 U.S. 366, 372; People v. McReynolds (1894) 102 Cal. 308, 311-312.)

Furthermore, unlike ordinary citizens, bail agents and fugitive recovery persons have training in the law of arrest and are authorized under Penal Code §1301 to arrest a fugitive who has forfeited his bail bond at “…any time before such bail or other person is finally discharged, and at any place within the state …”

2. 1299.09(b) Addition of Penal Code §1300 to Arrest Authorization:

Bail agents and fugitive recovery persons are authorized to arrest defendants released on bail pursuant to Penal Code Sections 1300 and 1301.

Section 1300 has been interpreted to apply to the arrest of defendants prior to forfeiture, such as when the bail agent receives a tip that the defendant is planning to flee to Mexico.

Section 1301 has been interpreted to apply after the defendant has forfeited his bail bond.

Therefore, Section 1299.09(b) should refer arrest under both sections.

Otherwise, the bill would conflict with Section 1300 and would be internally inconsistent on this issue because Section 1299.02(d) states that:

“‘Bail fugitive recovery person’ means a person who is provided written authorization pursuant to Sections 1300 and 1301 by the bail or depositor of bail, and is contracted to investigate, surveil, locate, and arrest a bail fugitive for surrender to the appropriate court, jail, or police department, and any person who is employed to assist a bail or depositor of bail to investigate, surveil, locate, and arrest a bail fugitive for surrender to the appropriate court, jail, or police department.”

Furthermore, Section 1299.08(c) states that:

“This section shall not preclude an individual authorized by Section 1299.02 to apprehend a bail fugitive from making or attempting to make a lawful arrest of a bail fugitive on bond pursuant to Section 1300 or 1301.”

Again, GSBAA is opposed to AB 2029 unless amended.

Should you have any questions, please contact our legislative advocate, Kathryn Lynch, at (916) 443-0202.

Sincerely,

John Bench, President
Golden State Bail Agents Association

cc:
Mr. Aaron Maguire, Deputy Legislative Secretary, Governor’s Office
Mr. Geoff Long, Fiscal Consultant, Assembly Appropriations Committee
Mr. Allan Cooper, Fiscal Consultant, Assembly Republican Caucus
Ms. Kathryn Lynch, Legislative Advocate
Golden State Bail Agents Association