P. v. Accredited Surety and Casualty
Filed 10/17/13 P. v. Accredited Surety and
Casualty CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
ACCREDITED SURETY AND CASUALTY
COMPANY,
Defendant and Appellant.
A135542
ORDER MODIFYING
NONPUBLISHED OPINION
[NO CHANGE IN JUDGMENT]
(Mendocino
County
Super. Ct.
No. MCUKCVCV12-18269)
BY THE COURT:
name="_ftnref1" title="">*
IT IS ORDERED that the
opinion filed on September 24, 2013, is
as follows and the petition for rehearing and request for publication are DENIED:
1. On page 11, in part III.C., the second
sentence of the first full paragraph, is deleted and the following is inserted
in its place:
The Granite
forfeiture during the exoneration period, but not decided during that period,
it cannot be said that the ‘period of time specified in Section 1305 has
elapsed without the forfeiture having been set aside,’ (§ 1306,
subd. (a)) because the court may yet decide to set aside the forfeiture. It is
only when a decision has been made to deny the motion that the ‘period of
time specified in Section 1305,’ i.e., 185 days plus any extension of that
period, ‘has elapsed without the forfeiture having been set aside.’ (§ 1306, subd. (a).)†(Granite
State, supra, 114 Cal.App.4th at p. 764, italics added.) However, the
judgment is premature when entered the same day as an order denying the motion
to vacate the forfeiture.
2. On page 11, in part III.C., add
a new penultimate sentence to the second full paragraph (i.e., add a new
penultimate sentence to the final full paragraph of part III.C.):
On May 1,
2012, Accredited’s
motion to vacate forfeiture was denied and, accordingly, the appearance period
“ha[d] elapsed without the forfeiture having been set aside.†(§ 1306, subd. (a).)
The modification effects no change in the
judgment.
Date___________________
____________________________ P.J.
Filed 9/24/13
(unmodified version)
NOT TO BE PUBLISHED IN
OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of
rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
ACCREDITED
SURETY AND CASUALTY COMPANY,
Defendant and Appellant.
A135542
(Mendocino County
Super. Ct. No. MCUKCVCV12-18269)
Appellant Accredited Surety and
Casualty Company (Accredited) appeals from an order denying its motion to
vacate the forfeiture of a bail bond and from summary judgment entered on the
bond, pursuant to Penal Code sections 1305 and 1306.
to order forfeiture of the bond because it failed to give timely notice of
forfeiture; (2) that the bail bond was invalidated when the trial court issued
a bench warrant in an amount less than the amount of bail; and (3) that the
trial court lacked jurisdiction to enter summary judgment on the same day it
denied Accredited’s motion to vacate the forfeiture. None of Accredited’s arguments have merit and
we affirm.
I. Statutory Background
“ ‘The object of bail and its
forfeiture is to insure the attendance of the accused and his obedience to the
orders and judgment of the court.’ [Citations.]
. . . [T]he ‘bail bond is a contract between the surety and the
government whereby the surety acts as a guarantor of the defendant’s appearance
in court under the risk of forfeiture of the bond.’ [Citation.]
Thus, when there is a breach of this contract, the bond should be
enforced. [Citation.]†(People v. American
Contractors Indemnity Co. (2004) 33 Cal.4th 653, 657–658 (American Contractors).)
Accordingly, section 1305,
subdivision (a), provides, in relevant part:
“A court shall in open court
declare forfeited the undertaking of bail or the money or property
deposited as bail if, without sufficient
excuse, a defendant fails to appear for any of the following: [¶] (1)
Arraignment. [¶] (2) Trial. [¶] (3) Judgment. [¶] (4) Any other
occasion prior to the pronouncement of judgment if the defendant’s presence in court is lawfully required.
[¶] (5) To surrender himself or herself in execution of the judgment after
appeal.†(Italics added.) Section 1305, subdivision (b), provides, in part: “If the amount of the bond . . .
exceeds four hundred dollars ($400), the clerk of the court shall, within 30
days of the forfeiture, mail notice of the forfeiture to the surety
. . . . The clerk shall also
execute a certificate of mailing of the forfeiture notice and shall place the
certificate in the court’s file. If the
notice of forfeiture is required to be mailed pursuant to this section, the
180-day period provided for in this section shall be extended by a period of
five days to allow for the mailing. [¶] . . . [¶] The surety or
depositor shall be released of all obligations under the bond if
. . . : [¶] (1) The clerk fails to mail the notice of forfeiture
in accordance with this section within 30 days after the entry of the forfeiture.â€
“The 185[-day period] after the date
the clerk of the court mails a notice of forfeiture (180 days plus five days
for mailing) to the appropriate parties is known as the appearance period. (§ 1305, subd. (b).) During this time, the surety on the bond is
entitled to move to have the forfeiture vacated and the bond exonerated on
certain grounds, such as an appearance in court by the accused. (§ 1305,
subd. (c)(1).) The trial court may also
toll the appearance period under certain circumstances, or extend the period by
no more than 180 days from the date the trial court orders the extension,
provided that the surety files its motion before the original 185-day
appearance period expires and demonstrates good cause for the extension. (§§ 1305, subds. (e), (i) [(current
subd. (j))], 1305.4.) [¶] After the appearance period expires, the
trial court has 90 days to enter summary judgment on the bond. (§ 1306, subds. (a), (c).) If summary judgment is not entered within the
statutory 90-day period, the bond is exonerated. (§ 1306, subd. (c).)†(American
Contractors, supra, 33 Cal.4th at p. 658, fns. omitted.)
“ ‘The law traditionally disfavors forfeitures
and this disfavor extends to forfeiture of bail. [Citations.]
Thus, Penal Code sections . . . dealing with forfeiture of bail
bonds must be strictly construed in favor of the surety to avoid the harsh
results of a forfeiture.’ [¶] The standard of review, therefore, compels us to
protect the surety, and more importantly the individual citizens who pledge to
the surety their property on behalf of persons seeking release from custody, in
order to obtain the corporate bond.†(
(1984) 162 Cal.App.3d 58, 62.)
II. Factual and Procedural Background
On May 9, 2009, Accredited issued a
bail bond in the amount of $150,000 ensuring the appearance of Jonathan C.
Passel to answer a felony charge of manufacturing controlled substances (Health
& Saf. Code, § 11379.6, subd. (a)).
A pretrial conference was held, on
October 13, 2010. The minute order from
that date indicates that Passel was not present but that Passel’s attorney
appeared on his behalf, pursuant to section 977.
present for a pretrial conference. The
minutes again indicate that Passel’s attorney appeared on his behalf, pursuant
to section 977. However, the minute
order also shows a check mark in the box titled “Cash/Bond Posted/Forf.†The reporter’s transcript makes no reference
to bond forfeiture, but does indicate that Passel had a section 977 waiver
on file.
November 10, 2010.
Our limited record next indicates
that, on February 24, 2011, Passel again did not personally appear for a
hearing on a motion in limine. The trial
court declared the bond forfeited and issued a bench warrant in the amount of
$75,000. On February 28, 2011, the court
clerk mailed Accredited a notice of order forfeiting bail. The notice reads in pertinent part: “You are hereby notified that the surety bond
posted by you on behalf of [Passel] has been ordered forfeited by the Court for
failure to appear on 2/24/11. [¶] Your contractual obligation to pay this
bond will become absolute on the 181st day following the date of the mailing of
this Notice of Order Forfeiting Bail unless the Court shall sooner order the
forfeiture set aside and the bond reinstated.â€
Accredited timely requested and was granted a 180-day extension of the
exoneration period.
On March 2, 2012, Accredited filed a
motion to vacate the forfeiture, contending that the court lost jurisdiction to
declare a subsequent forfeiture when Passel failed to appear on October 27,
2010, bail was ordered forfeited, but the clerk failed to mail notice of the
forfeiture. In the alternative,
Accredited argued that the trial court should reduce the bond to the amount of
the $75,000 bench warrant.
On May 1, 2012, the trial court both denied
Accredited’s motion and entered summary judgment, against Accredited, in the
sum of $150,000. In denying Accredited’s
motion to vacate the forfeiture, the court found: “The court did not actually order the bail
forfeit[ed] on October 27, 2010.†The
court explained: “[A section] 977 waiver
had been filed on behalf of [Passel] by his attorney . . . on 8/24/10
authorizing [defense counsel] to appear on his behalf unless directed otherwise
by the court. The motion was
unopposed. The court granted the motion
but ordered [Passel] to be personally present on 2/24/11. When he didn’t appear at that time the
appropriate notice was given. [¶] . . . [¶] . . .
Here, the fact that [Passel] had signed a 977 waiver and the court, in August,
had given counsel discretion as to whether [Passel] had to appear for pre-trial
[was] a sufficient excuse or justification. . . . [¶] Out
of an abundance of caution, the court reviewed a previously filed transcript of
the court record from 10/27/10 which shows that counsel appeared late but was
allowed to appear 977 for [Passel].
There is no indication in that transcript that a warrant was issued for
[Passel] or the bail forfeit[ed].†Accredited
filed a timely appeal from the trial court’s summary judgment and from the
order denying Accredited’s motion to vacate the forfeiture.
III. Discussion
In seeking reversal of summary
judgment and the trial court’s order denying the motion to vacate forfeiture,
Accredited argues: (1) that the trial
court lacked jurisdiction to order forfeiture of the bond, on February 24,
2011, because it failed to give notice of the October 27, 2010 forfeiture; (2)
that the bail bond was invalidated when the trial court issued a bench warrant
for an amount less than the amount of bail; and (3) that the trial court lacked
jurisdiction to enter summary judgment on the same day it denied Accredited’s
motion to vacate the forfeiture.
A. Failure to Give Notice of October 27, 2010 Forfeiture
First, Accredited argues that bail was exonerated as a
matter of law when the trial court failed to give notice of the forfeiture
ordered on October 27, 2010. “ ‘The
abuse of discretion standard applies to the trial court’s resolution of a
motion to set aside a bail forfeiture [citation], subject to constraints
imposed by the bail statutory scheme.
‘[W]hen a statute requires a court to exercise its jurisdiction in a
particular manner, to follow a particular procedure, or to act subject to
certain limitations, an act beyond those limits is in excess of its
jurisdiction.’ [Citation.]†(County
of Los Angeles v. Fairmont Specialty Group (2009) 173 Cal.App.4th 538, 542;
County of Orange, supra, 140
Cal.App.4th at pp. 1491–1492.)
“[H]owever, ‘[t]he abuse of discretion standard is not a unified
standard; the deference it calls for varies according to the aspect of a trial
court’s ruling under review. The trial
court’s findings of fact are reviewed for substantial evidence, its conclusions
of law are reviewed de novo, and its application of the law to the facts is
reversible only if arbitrary and capricious.’
[Citation.]†(
Group, at p. 543.) Here,
contrary to Accredited’s assertion, the issue is not a legal one. Rather, Accredited appears to take issue with
the trial court’s factual finding that, on October 27, 2010, it did not
actually order the bail forfeited. The
trial court’s finding is supported by the record.
“ ‘[T]he surety and bail agent are entitled to
separate notice under the statute every time a forfeiture is declared.’ [Citation.]â€
(County of Los Angeles v. Granite
State Ins. Co. (2004) 121 Cal.App.4th 1, 4.) And, the clerk’s failure to provide notice of
an initial forfeiture constitutes jurisdictional error. (County
of Orange, supra, 140 Cal.App.4th at p. 1490.) However, “the court can continue a hearing
and still retain its jurisdiction to declare a forfeiture at a later time as
long as it has a reason to believe that a sufficient excuse exists for the
nonappearance.†(People v. Ranger Ins. Co. (1994) 31 Cal.App.4th 13, 19.) “[T]he reviewing court may look to the
reporter’s transcript, as well as the minutes, to supply a sufficient record of
sufficient excuse.†(
63 Cal.App.4th 889, 895.) However,
“where the record of the actual proceedings[, either in the transcript or in
the minutes,] fails to disclose that the court had sufficient cause for a
continuance, the court has lost jurisdiction to later declare a forfeiture of
bail.†(Id. at p. 891.)
We agree with the People that Accredited has presented
what is essentially a dispute over whether the transcript or minutes from
October 27, 2010, should prevail. “It
may be said that as a general rule that when . . . the record is in
conflict it will be harmonized if possible; but where this is not possible that
part of the record will prevail, which, because of its origin and nature or
otherwise, is entitled to the greater credence [citation]. Therefore whether the recitals in the clerk’s
minutes should prevail as against contrary statements in the reporter’s
transcript must depend upon the circumstances of each particular case. [Citation.]â€
(In re Evans (1945) 70
Cal.App.2d 213, 216.)
Here, the October 27, 2010 transcript—making no mention
of bail forfeiture, much less a declaration of forfeiture in open court—is
entitled to greater credence. Although
the record does not contain a written section 977 waiver, the transcript, from
October 27, 2010, the register of actions, and the minute order indicate that a
section 977 waiver was on file. Thus,
because Passel’s appearance on October 27, 2010, was not “lawfully required†or
was with “sufficient excuse,†by virtue of his section 977 waiver, there could
have been no actual forfeiture on that date.
(§ 1305, subd. (a)(4); People
v. American Bankers Ins. Co. (1987) 191 Cal.App.3d 742, 747 [“[s]ince the
defendant may appear through counsel under section 977, subdivision (a), he or
she will have sufficient excuse for not appearing so long as counsel appears
and is authorized to proceed in the defendant’s absenceâ€].)
In any event, even if the trial court made an order of
bail forfeiture on October 27, 2010, that order itself would be void. In People
v. National Automobile & Casualty Ins. Co. (2004) 121 Cal.App.4th 1441,
Division Three of this court rejected an argument very similar to that raised
by Accredited. In that case, defense
counsel asked that the defendant’s presence be waived for an appearance on
October 19, 2001. The trial court
agreed. Nonetheless, when the defendant
did not appear on October 19, 2001, the trial court ordered bail
forfeited. No notice of forfeiture was
sent. At a subsequent hearing, the trial
court “set aside†the forfeiture and reinstated the bail bond. (Id.
at pp. 1444–1445.) Approximately
one year later, on November 1, 2002, the defendant again failed to appear and
bail was ordered forfeited. Notice of
forfeiture was timely sent. (
On appeal, the surety argued that because the trial court
failed to provide notice of the October 19, 2001 forfeiture, it lacked
jurisdiction to subsequently declare a forfeiture on November 1, 2002. (People
v. National Automobile & Casualty Ins. Co., supra, 121 Cal.App.4th
at p. 1446.) The court concluded: “Appellant’s contentions are undermined by
the record. The bond issued by appellant
in this case could not have been forfeited on October 19, 2001, for the simple
reason the defendant’s appearance on that date was not ‘lawfully required’
under section 1305.†(
date was not required, any order forfeiting bail was void, and there was
consequently no actual forfeiture or necessity for providing the surety with
section 1305, subdivision (b) notice.†(
Here too, the trial court did not err in failing to give
notice of forfeiture after October 27, 2011, and it retained jurisdiction to
declare a subsequent forfeiture.
In its reply brief, Accredited states: “[O]n further scrutiny of the record, it was
the occasion of November 10, 2010, that the defendant failed to appear and the
court declared a bail forfeiture without giving notice of forfeiture to the surety
and bail agent.†We need not address
this argument because it was raised for the first time in Accredited’s reply
brief. (Julian v. Hartford Underwriters Ins. Co. (2005) 35 Cal.4th 747,
761, fn. 4; Tilton v. Reclamation Dist.
No. 800 (2006) 142 Cal.App.4th 848, 864, fn. 12.) Furthermore, the record does not contain
either a minute order or a transcript from November 10, 2010 and, thus,
Accredited has not met its burden to show reversible error by an adequate record. (People
v. Allegheny Casualty Co. (2007) 41 Cal.4th 704, 715 [“the general rule is
that, faced with a silent record, an appellate court will presume that the
trial court performed its duty and acted in the lawful exercise of its
jurisdictionâ€]; Ballard v. Uribe (1986)
41 Cal.3d 564, 574–575; People v. Indiana
Lumbermens Mutual Ins. Co., supra, 194 Cal.App.4th at p. 52 [“[a]n
appealed judgment is presumed to be correctâ€].)
B. Amount
of the Bond
Next, Accredited argues that “the bail bond was
invalidated when the trial court issued a bench warrant for an amount less than
the amount of bail ordered by the court.â€
However, we agree with the People that no authority has been cited, and
we know of none, that suggests the issuance of a bench warrant in an amount
less than the amount of bail previously posted exonerates a bail bond.
C. Time
for Entering Summary Judgment
Finally, Accredited contends that bail was exonerated
when the trial court entered summary judgment prematurely—on the same day the
trial court denied its motion to vacate the forfeiture. Specifically, Accredited asserts that the May
1, 2012 summary judgment was not in compliance with section 1306,
subdivision (a), because it was entered before the 180-day exoneration
period elapsed. Again, Accredited’s
factual and legal premises are unsupported.
The language of the statute is clear. At the time summary judgment was entered,
section 1306, subdivision (a), provided:
“When any bond is forfeited and the period of time specified in Section
1305 has elapsed without the
forfeiture having been set aside, the court which has declared the forfeiture,
regardless the amount of the bail, shall
enter a summary judgment against each bondsman named in the bond in the amount
for which the bondsman is bound. The
judgment shall be the amount of the bond plus costs, and notwithstanding any
other law, no penalty assessments shall be levied or added to the judgment.â€
added.) In other words, “[i]f the
forfeiture is not set aside by the end of the appearance period, the court is
required to enter summary judgment against the surety. (§ 1306, subd. (a).)†(American
Contractors, supra, 33 Cal.4th at p. 657.)
Here, it is clear that the statutory requirements for
entry of summary judgment were met. The
statutory 185-day period (180 days plus 5 days for mailing) would have expired
on September 1, 2011. (§ 1305, subds.
(b), (c).) However, Accredited filed a
timely motion to extend the exoneration period, which gave Accredited until
March 5, 2012, to move to vacate the forfeiture. (§ 1305.4; People v. American Surety Ins. Co. (1999) 75 Cal.App.4th 719, 727
[“trial court did not err in determining the request to extend the 180-day
period was untimely because it was filed after the period expiredâ€].) Accredited filed such a motion, on March 2,
2012. But, by the time summary judgment
was entered, on May 1, 2012, the appearance period had “elapsed without the
forfeiture having been set aside.â€
Accordingly, the trial court was compelled to enter summary judgment. (§ 1306, subd. (a).)
Accredited’s reliance on People v. Granite State Insurance Co. (2003) 114 Cal.App.4th
758, 762 (Granite State) and
653 do not convince us to reach a contrary conclusion. Accredited contends: “[Granite
State] means that as long as a motion for relief from forfeiture is
pending, the exoneration period does not expire until the day the motion is
denied, and a court necessarily has no jurisdiction to enter summary judgment
on the day it is denied.†But,
In Granite State,
supra, 114 Cal.App.4th 758, the surety moved to vacate forfeiture and
exonerate the bond before the expiration of the appearance period, and
scheduled the hearing within 30 days following expiration of that period. The trial court found good cause to continue
the hearing three times, ultimately hearing the motion more than five months
after the expiration of the appearance period.
The motion was denied, and the trial court entered summary judgment on
the bond within 90 days following the denial.
The surety moved to set aside the summary judgment, claiming the trial
court lost jurisdiction to enter it because it was entered more than 90 days
beyond the expiration of the extended appearance period. (Id.
at pp. 761–762.)
The Granite State court
held only that a trial court did not lose jurisdiction to enter summary
judgment 90 days after the expiration of the 185-day period provided by
sections 1305 and 1306 when a surety’s motion to vacate forfeiture is
pending. (144 Cal.App.4th at
pp. 760–761, 766.) Instead, the
court concluded that “the 90-day period for entry of summary judgment does not
begin to run until the motion is denied.â€
(Id. at p. 766.) The court explained: “In sum, we conclude that where a surety
timely files a motion to vacate forfeiture prior to the expiration of the
exoneration period, and the motion is decided after expiration of that period
as provided under section 1305, subdivision (i) [(current subdivision (j))],
the court’s power to enter summary judgment begins on the day following denial of the motion and expires 90 days
later. Since summary judgment in this
case was entered within 90 days of the date the trial court denied the motion
to vacate, it was timely entered and the court did not err in denying Granite’s
motion to set aside the judgment.†(
One could read the italicized dicta above as supporting
Accredited’s argument. However, the
consider whether the exoneration period “lapses†only on the day a motion for
relief from forfeiture is denied.
(§ 1306, subd. (a).) We
refuse to read Granite State as
authority for a proposition it did not consider. (People
v. Avila (2006) 38 Cal.4th 491, 566.)
American
Contractors, supra, 33 Cal.4th 653, is no more availing. In American
Contractors, our Supreme Court held that a summary judgment entered on the
last day of the original 180-day appearance period was one day premature and
thus voidable. (Id. at p. 657, 659, 665.)
Here, in contrast, the appearance period—having been extended
once—expired on March 5, 2012. The trial
court’s entry of summary judgment, on May 1, 2012, was not premature.
IV. Disposition
The summary judgment and order
denying Accredited’s motion to vacate a forfeiture order and exonerate the bail
bond are affirmed. The People are to
recover their costs on appeal.
_________________________
Bruiniers,
J.
We concur:
_________________________
Jones, P. J.
_________________________
Simons, J.
Before Jones, P.J., Simons, J., and Bruiniers, J.
Unless otherwise noted, all further statutory references are to the Penal Code.
