Untitled California Attorney General Opinion ( 1998 )

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 98-108
of :
: July 29, 1998
DANIEL E. LUNGREN :
Attorney General :
:
CLAYTON P. ROCHE :
Deputy Attorney :
General
:
______________________________________________________________________
THE HONORABLE MICHAEL D. BRADBURY, DISTRICT ATTORNEY, VENTURA
COUNTY, has requested an opinion on the following question:
What duties may a bail agent perform for a surety and may he carry a loaded firearm while
performing such duties?
CONCLUSION
A bail agent may, upon request of the surety liable for the undertaking, arrest a defendant
and transport him to a court, magistrate, sheriff, or police, as directed. Although a bail agent has
no explicit statutory authority to carry a loaded firearm when performing his duties, he is not
precluded from doing so in limited circumstances. Like any person who does not have a permit
to carry a firearm, he may carry a loaded firearm while engaged in the act of making or
attempting to make a lawful arrest of the defendant.
ANALYSIS
Subdivision (e) of section 28 of article I of the Constitution provides:
"A person may be released on bail by sufficient sureties, except for capital crimes when the
facts are evident or the presumption great. Excessive bail may not be required. . . ."
This constitutional provision and a similar one (Cal. Const., art. I, § 12 ["A person shall be
released on bail by sufficient sureties, except for . . ."]) have been implemented by the
Legislature (Pen. Code, §§ 1268-1292) Footnote No. 1 to allow a defendant to be released from
custody while waiting to make a court appearance.
The question presented for resolution concerns the authority of a bail agent to arrest a
defendant and transport him to a court or appropriate law enforcement agency. Under what
circumstances may the arrest take place, and may the bail agent carry a loaded firearm to
effectuate the arrest? We conclude that a bail agent may arrest a defendant prior to the time the
surety is discharged. Although no explicit statutory authority exists for a bail agent to carry a
loaded firearm, he is not precluded from doing so in limited circumstances. Like any person who
does not have a permit to carry a firearm, he may carry a loaded firearm while engaged in the act
of making or attempting to make a lawful arrest of the defendant.
The term "bail" normally refers to the undertaking submitted by the surety to obtain the
defendant's release. "The term 'bail' means the security--whether cash or bond--given for the due
appearance of a prisoner in order to obtain his release from imprisonment. [Citation.]" (People v.
Allied Fidelty Ins. Co. (1984) 152 Cal. App. 3d 283, 286.) Footnote No. 2
"The purpose of bail is to assure the defendant's attendance in court when his presence is
required, whether before or after conviction. [Citations.]" (In re Underwood (1973) 9 Cal. 3d 345,
348; see McDermott v. Superior Court (1972) 6 Cal. 3d 693, 695; People v. Allen (1994) 28
Cal. App. 4th 575, 580.) The surety's obligation, then, is "to secure attendance of a defendant."
(People v. American Bankers Ins. Co., supra, 233 Cal.App.3d at 568.) In performing this
obligation, the surety may designate someone to assist him; this person is commonly referred to
as the "bail agent." (See People v. Landon White Bail Bonds (1991) 234 Cal. App. 3d 66, 71-73;
People v. American Bankers Ins. Co., supra, 233 Cal.App.3d at 565-566.)
A bail agent may perform the duties of a surety by arresting the defendant, taking the
defendant into custody, and transporting the defendant to the proper authorities, whether to a
court, a magistrate, sheriff, or police. (People v. Amwest Surety Ins. Co. (1991) 229 Cal. App. 3d
351, 355; People v. Houle (1970) 13 Cal. App. 3d 892, 895.) Section 1300 states:
"(a) At any time before the forfeiture of their undertaking, or deposit by a third person, the
[surety] may surrender the defendant in their exoneration, or he may surrender himself, to the
officer to whose custody he was committed at the time of giving bail, in the following manner:
"(1) A certified copy of the undertaking of the bail, or a certified copy of the certificate of
deposit where a deposit is made, must be delivered to the officer who must detain the defendant
in his custody thereon as upon a commitment, and by a certificate in writing acknowledge the
surrender.
"(2) The [surety], upon surrendering the defendant, shall make reasonable effort to give
notice to the defendant's last attorney of record, if any, of such surrender.
"(3) The officer to whom the defendant is surrendered shall, within 48 hours of the
surrender, bring the defendant before the court in which the defendant is next to appear on the
case for which he has been surrendered. The court shall advise the defendant of his right to move
the court for an order permitting the withdrawal of any previous waiver of time and shall advise
him of the authority of the court, as provided in subdivision (b), to order return of the premium
paid by the defendant or other person, or any part of it.
"(4) Upon the undertaking, or certificate of deposit, and the certificate of the officer, the
court in which the action or appeal is pending may, upon notice of five days to the district
attorney of the county, with a copy of the undertaking, or certificate of deposit, and the
certificate of the officer, order that the bail of deposit be exonerated. However, if the defendant is
released on his own recognizance or on another bond before the issuance of such an order, the
court shall order that the bail or deposit be exonerated without prejudice to the court's authority
under subdivision (b). On filing the order and papers used on the application, they are exonerated
accordingly.
"(b) Notwithstanding subdivision (a), if the court determines that good cause does not exist
for the surrender of a defendant who has not failed to appear or has not violated any order of the
court, it may, in its discretion, order the [surety] to return to the defendant or other person who
has paid the premium or any part of it, all of the money so paid or any part of it."
Section 1301 provides:
"For purpose of surrendering the defendant, the [surety] . . . at any time before such [surety]
is finally discharged, and at any place within the state, may himself arrest defendant, or by
written authority indorsed on a certified copy of the undertaking or a certified copy of the
certificate of deposit, may empower any person of suitable age to do so.
"Any . . . person who so arrests a defendant in this state shall, without unnecessary delay,
and, in any event, within 48 hours of the arrest, deliver the defendant to the court or magistrate
before whom the defendant is required to appear or to the custody of the sheriff or police for
confinement in the appropriate jail in the county or city in which the defendant is required to
appear. Any . . . person who arrests a defendant outside this state shall, without unnecessary
delay after the time defendant is brought into this state, and, in any event, within 48 hours after
defendant is brought into this state, deliver the defendant to the custody of the court or magistrate
before whom the defendant is required to appear or to the custody of the sheriff or police for
confinement in the appropriate jail in the county or city in which defendant is required to appear.
"Any . . . person who willfully fails to deliver a defendant to the court, magistrate, sheriff,
or police as required by this section is guilty of a misdemeanor.
"The provisions of this section relating to the time of delivery of a defendant are for his
benefit and, with the consent of the [surety], may be waived by him. To be valid, such waiver
shall be in writing, signed by the defendant, and delivered to such . . . person within 48 hours
after the defendant's arrest or entry into this state, as the case may be. The defendant, at any time
and in the same manner, may revoke said waiver. Whereupon, he shall be delivered as provided
herein without unnecessary delay and, in any event within 48 hours from the time of such
revocation.
"If any 48-hour period specified in this section terminates on a Saturday, Sunday, or
holiday, delivery of a defendant by a . . . person to the court or magistrate or to the custody of the
sheriff or police may, without violating this section, take place before noon on the next day
following which is not a Saturday, Sunday, or holiday."
As indicated in section 1301, a bail agent may not only arrest a defendant when the latter
has failed to appear in court but also whenever the surety wishes to be relieved of his obligation
under the bond. However, in either case, the bail agent acts as a private citizen to protect the
financial interest of the surety rather than "to vindicate the interest of the state." (People v.
Houle, supra, 13 Cal.App.3d at 895.)
In arresting a defendant, a bail agent may use reasonable force as necessary under the
circumstances. (See Long Beach Police Officers Assn. v. City of Long Beach (1976) 61
Cal. App. 3d 364, 373-374; People v. Piorkowski (1974) 41 Cal. App. 3d 324, 327-330; People v.
Lathrop (1920) 49 Cal. App. 63, 67-68; see also People v. Amwest Surety Ins. Co., supra, 229
Cal.App.3d at 356-357.)
With specific regard to a bail agent's authority to carry a loaded firearm, we find two
statutory prohibitions particularly relevant. Section 12025 states in part:
"(a) A person is guilty of carrying a concealed firearm when he or she does any of the
following:
"(1) Carries concealed within any vehicle which is under his or her control or direction any
pistol, revolver, or other firearm capable of being concealed upon the person.
"(2) Carries concealed upon his or her person any pistol, revolver, or other firearm capable
of being concealed upon the person.
"(3) Causes to be carried concealed within any vehicle in which he or she is an occupant
any pistol, revolver, or other firearm capable of being concealed upon the person."
We note that "[f]irearms carried openly in belt holsters are not concealed within the meaning of
this section" (§ 12025, subd. (e)), and the prohibition does not generally apply to one's own
"place of residence, place of business, or on private property owned or lawfully possessed by the
citizen or legal resident" (§ 12026, subd. (a)). Footnote No. 3 Moreover, a firearm may generally
be transported under the following conditions:
"(1) The firearm is within a motor vehicle and it is locked in the vehicle's trunk or in a
locked container in the vehicle other than the utility or glove compartment.
"(2) The firearm is carried by the person directly to or from any motor vehicle for any
lawful purpose and, while carrying the firearm, the firearm is contained within a locked
container." (§ 12026.1, subd. (a).)
While various persons are exempt from section 12025's prohibition (§ 12027), none appear
applicable to bail agents. Of course, a bail agent may apply for a license to carry concealed a
firearm capable of being concealed (§§ 12050-12054). (See § 12027, subd. (j); 78
Ops.Cal.Atty.Gen. 209, 210 (1995).)
Even more germane to our inquiry is the prohibition of section 12031, which states in part:
"(a)(1) A person is guilty of carrying a loaded firearm when he or she carries a loaded
firearm on his or her person or in a vehicle while in any public place or on any public street in an
incorporated city or in any public place or on any public street in a prohibited area of
unincorporated territory."
Similar to section 12025's prohibition, various exceptions to the prohibition of section 12031 are
specified by the Legislature. The particularity of section 12031's language detailing the persons
to whom the prohibition is inapplicable, including peace officers (subd. (b)(1)), retired peace
officers (subd. (b)(2), (b)(3)), members of the military (subd. (b)(4)), persons using target ranges
(subd. (b)(5)), persons with licenses to carry firearms (subd. (b)(6)), armored vehicle guards
(subd. (b)(7)), and retired federal officers (subd. (b)(8)), is noteworthy for our purposes.
Subdivision (c) of section 12031 provides an additional exemption for persons who have
completed a firearms training course offered by the Commission on Peace Officer Standards and
Training, including patrol special police officers (subd. (c)(1)), animal control officers and zoo
keepers (subd. (c)(2)), and harbor police officers (subd. (c)(3)). Subdivision (d) of section 12031
further exempts persons who have been issued a certificate by the Department of Consumer
Affairs for completing a training in firearms use and the powers of arrest, including guards and
messengers of financial institutions (subd. (d)(1)), licensed private investigators (subd. (d)(3)),
public agency security guards (subd. (d)(4)), and private security guards (subd. (d)(5)). Finally,
section 12031 exempts from the statutory prohibition the carrying of a firearm at one's place of
business (subd. (h)), while hunting (subd. (i)), when under a reasonable belief of immediate,
grave danger (subd. (j)), while engaged in the act of making or attempting to make a lawful
arrest (subd. (k)), and at one's place of residence (subd. (l)), under specified conditions.
Such specificity in the exemptions listed in section 12031 illustrates the Legislature's
careful consideration of the persons and circumstances under which the statutory prohibition is to
be found inapplicable. Significantly, no exemption is provided for bail agents. Had the
Legislature intended to cover bail agents, it clearly knew how to do so. (See Safer v. Superior
Court (1975) 15 Cal. 3d 230, 237- 238; State Farm Mut. Auto. Ins. Co. v. Department of Motor
Vehicles (1997) 53 Cal. App. 4th 1076, 1082; Board of Trustees v. Judge (1975) 50 Cal. App. 3d
920, 927.)
However, the fact that section 12031 does not expressly exempt bail agents from its
proscription does not end our inquiry. As indicated above, the statute not only exempts specified
persons but also particular circumstances and activities regardless of the status of the person
involved. Of significance here is subdivision (k) of section 12031, which provides:
"Nothing in this section is intended to preclude the carrying of a loaded firearm by any
person while engaged in the act of making or attempting to make a lawful arrest."
In examining the language of subdivision (k) of section 12031, we do not extend its scope
beyond what is specified therein by the Legislature. It does not cover bail agents per se, but bail
agents may come within its exemption language depending upon their conduct. As with other
persons, the nature of their acts is what determines whether the subdivision's exemption is
applicable.
Accordingly, a bail agent "engaged in the act of making or attempting to make a lawful
arrest" (§ 12031, subd. (k)) may carry a loaded firearm. While an analysis of what constitutes
"the act of making or attempting to make a lawful arrest" is beyond the scope of this opinion, we
note that this factual circumstance defines when a loaded firearm may be carried pursuant to
subdivision (k) of section 12031. No other acts are authorized by this subdivision.
We conclude that a bail agent may, upon request of the surety liable for the undertaking,
arrest a defendant and transport him to a court, magistrate, sheriff, or police, as directed.
Although a bail agent has no explicit authority to carry a loaded firearm when performing his
duties, he is not precluded from doing so in limited circumstances. Like any person who does not
have a permit to carry a firearm, he may carry a loaded firearm while engaged in the act of
making or attempting to make a lawful arrest of the defendant.
*****
Footnote No. 1
All references hereafter are to the Penal Code unless otherwise indicated.
Footnote No. 2
"Bail" may also refer to the surety (sometimes also referred to as the "bondsman") or to the bail agent. (See § 1301;
People v. American Bankers Ins. Co. (1991) 233 Cal. App. 3d 561, 565, fn. 1; People v. Amwest Surety Insurance
Co. (1980) 105 Cal. App. 3d 51, 54.) In this opinion, we use the term "bail" to refer to the security posted by the
surety.
Footnote No. 3
In People v. Wooten (1985) 168 Cal. App. 3d 168, 173, the court concluded that a bail agent's vehicle was not his
"place of business" for purposes of section 12026, stating in part:
". . . The clear legislative purpose of section 12025 is to prohibit the carrying around of concealed weapons.
Section 12026 provides an exception for possession in one's residence or place of business. The natural meaning of
the term 'place of business' is a fixed location, simply because almost all businesses are conducted in some office,
store or other building. When a business is mobile, one generally says that the business is not conducted in any
particular place, but in an area. Giving Penal Code section 12026 the broad meaning advocated by defendant would
render it meaningless. Salesmen, truck drivers, delivery persons--in short, anyone whose business puts them in
transit--could use section 12026 to justify an exemption from section 12025. The obvious result would be that even
convicted felons (other than those specified) could easily set themselves up as traveling salesmen and carry a
concealed weapon in their car with impunity. This would frustrate the obvious legislative purpose of section 12025.
[Citation.] We are required to construe penal statutes according to the fair import of their terms, to effect their
objectives and promote justice. [Citations.] . . . ."