13.1 Surrender Before Forfeiture and Premium Return

Surrender Before Forfeiture and Premium Return

Quick Answer: Penal Code 1300 lets the bail surrender the defendant before any forfeiture and ask the court to exonerate the undertaking. 10 CCR 2090 is the consumer overlay: a surrender prior to the appearance time specified in the undertaking generally requires return of all premium, except that a licensee who can show a material, substantially increased hazard may retain the 2081(c) and (d) out-of-pocket expenses. Penal Code 1300(b) lets the court order return of all or part of the premium when there was no good cause to surrender a defendant who has not failed to appear and has not violated a court order. CDI's consumer page adds that premiums are nonrefundable even if charges are dropped.

The CDI Bail Educational Objectives put forfeitures and remedies in the Laws domain. This section is the pre-forfeiture half. After the court has declared a 1305 forfeiture in open court, the face amount of the bond is in play and the appearance-period statutes in 13.2 and 13.3 govern. Before that declaration, the surety can still put the body back and walk the paper off the risk — but the family may be entitled to money back, and Title 10 will test whether you kept premium you had no right to keep.

1300 is available only before forfeiture

Penal Code 1300(a) is timed to one event: at any time before the forfeiture of the undertaking, or of a third-person deposit. The bail, or the person who deposited cash, may surrender the defendant in their exoneration, or the defendant may surrender himself, to the officer to whose custody he was committed at the time of giving bail.

The manner is statutory, not a hallway custom:

1. Deliver a certified copy of the undertaking, a certified copy of the certificate of deposit, or an affidavit by the bail licensee or surety company listing all the specific information that would appear on a certified copy. The officer must detain the defendant as upon a commitment and acknowledge the surrender by a certificate in writing.
2. Upon surrendering, make a reasonable effort to notify the defendant's last attorney of record, if any.
3. The officer who received the surrender must, within 48 hours, bring the defendant before the court in which the defendant is next to appear. That court shall advise the defendant of the right to withdraw a previous time waiver and of the court's authority under 1300(b) to order return of premium.
4. On the undertaking or certificate of deposit and the officer's certificate, the court may, on five days' notice to the district attorney, order the bail or deposit exonerated. If the defendant is released on own recognizance or on another bond before that order issues, the court shall order exoneration without prejudice to 1300(b).

Exam trap: 1300 is not 1305. Surrender after the open-court forfeiture is an appearance-period problem. Do not tell a family that "we can still 1300 this" on day 40 of a declared forfeiture. Penal Code 1301 is the arrest-for-surrender tool used to get the body to that officer; it is a purpose-limited arrest with a 48-hour in-state delivery clock, taught in the Penal Code framework chapter. This section's money question is what happens to premium once the surrender is real.

1300(b): the court's premium-return order

Penal Code 1300(b) is independent of the exoneration order. If the court determines that good cause does not exist for the surrender of a defendant who has not failed to appear and has not violated any order of the court, it may, in its discretion, order the bail or the depositor to return to the defendant or other person who paid the premium all of the money so paid or any part of it.

Three findings sit in that sentence. The defendant has not failed to appear. The defendant has not violated a court order. And the court finds no good cause for the surrender. A GPS bracelet cut off, a booked flight, a threatened witness, or a demonstrated flight plan can be good cause. A family argument about an unpaid installment, standing alone, is the fact pattern CDI has already told the industry is unlawful as a reason to surrender.

California scenario — Pomona. Two weeks before a Pomona preliminary hearing, the indemnitor reports that the defendant packed a suitcase and talked about a bus to El Paso. There has been no failure to appear and no violated order. The agent surrenders at the original jail with a certified copy, tries to reach the last attorney of record, and the jailer certifies the surrender. The officer must produce the defendant in the next-appearance court within 48 hours, and that court must advise the defendant of 1300(b). If the judge finds the suitcase story was rumor, 1300(b) authorizes an order returning all or part of the premium. If the judge finds a real flight plan, the bond is still in line for exoneration and a return order is much less likely.

At the jail window the licensee also has a Title 10 speaking duty. 10 CCR 2090 requires that, at the time of any surrender prior to the time specified in the undertaking, the licensee inform the arrestee of the right under 1300(b) to petition the court for a ruling on return of premium. Skipping that advisement is a regulatory violation even if the certified copy and the officer's certificate were perfect.

10 CCR 2090: return of premium on a pre-appearance surrender

10 CCR 2090 is the Title 10 rule the exam will quote more often than 1300(b). No bail licensee shall surrender an arrestee to custody prior to the time specified in the undertaking of bail or the bail bond for the appearance of the arrestee, or prior to any other occasion when the presence of the arrestee in court is lawfully required, without returning all premium paid, except as follows.

The exception is narrow. When, as the result of judicial action, information concealed or misrepresented by the arrestee, or other reasonable cause, any one of which was material to the hazard assumed, and the licensee can show that the hazard was substantially increased, the licensee may retain incurred out-of-pocket expenses permitted by 10 CCR 2081(c) and (d). Those are the actual, necessary, and reasonable expenses of that transaction, and the breach expenses capped at the penal amount. They are not a second premium, and they are not a keep-the-whole-fee license.

2090 then names two events that shall never, in and of themselves, be considered surrender for reasonable cause:

• surrender of an arrestee who is again in custody for an offense for which a penalty greater than that for the original offense may not be imposed; and
• surrender of such an arrestee at the request of the guarantor.

If the surrender is under those circumstances and the licensee cannot show an actual and substantial increase in hazard, the licensee must return all premiums received and incurred expenses.

One more 2090 sentence closes the loop with the Penal Code. Compliance with a 1300(b) court order is compliance with 2090. If the judge orders return of part of the premium, that order is the Title 10 answer, not a hallway formula of "we always keep administrative costs."

CDI's consumer bail page restates the same policy in consumer English. Are premiums refundable? No, unless the bailee is surrendered, then the bail fee is refundable minus administrative costs per 10 CCR 2090. Premiums are nonrefundable even if charges are dropped. A Riverside family whose felony is dismissed on the prosecutor's motion on day 12 does not get the filed premium back just because the case died. Penal Code 1303's 15-day hold on exoneration after dismissal is a bond clock, not a premium-refund clock. CDI's 2017 bail-system overview adds the companion prohibition: it is illegal for a bail agent to surrender a bailee to custody solely for non-payment of bail fees.

California scenarios and traps

Fresno guarantor. The indemnitor is angry that the last financed installment bounced. She asks the agent to "put him back in" so she can stop paying. The defendant has made every appearance. 2090 says a guarantor's request is never, by itself, reasonable cause. CDI says surrender solely for non-payment of bail fees is illegal. Surrender anyway and keep the premium, and you have a Title 10 and 1300(b) problem on the same facts.

Oakland dismissal. The complaint is dismissed. The family wants "the 10 percent back." CDI's answer is no: premiums are nonrefundable even if charges are dropped. The bond may still sit in 1303's 15-day hold so the same paper can be applied if the defendant is re-arrested on a public offense arising from the same act. Do not confuse a dismissed case with a 2090 surrender refund, and do not treat CDI's "most commonly ten percent" industry description as a statutory refund formula.

Stockton concealed warrant. At posting the defendant hid a second out-of-county felony warrant. A week later the agent learns of it, the risk on the paper has actually and substantially increased, and the agent surrenders before the first appearance. 2090's concealed-or-misrepresented-information exception can allow retention of 2081(c) and (d) expenses. It does not authorize keeping the entire filed premium as "earned because we got burned," and it does not skip the 1300(b) advisement at the window.

Traps. 1300 is before forfeiture; 1305 is after. 2090's default is return all premium on a pre-appearance surrender, not "premium is always earned at posting." The 2081(c)/(d) retainage requires a material, substantially increased hazard; a guarantor request and a no-greater-penalty re-arrest are never, by themselves, that showing. Inform the arrestee of 1300(b) at the surrender. Dismissal does not refund premium. Non-payment is not a surrender ground. Penal Code 1166's post-verdict deposit refund is a refund of cash bail or an exoneration of the undertaking, not a 2090 premium return. 1303's 15 days is exoneration, not a cooling-off period to keep the fee.