P. v. American Surety

Filed 1/21/09 P. v. American Surety CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Defendant American Surety Company (American) appeals the denial of its motion to exonerate a bail bond and entry of summary judgment against it on forfeiture of the bond. The criminal defendants bail was forfeited twice, but had been reinstated the first time, without notice to American, when the defendant appeared in court later the same day. American contends the trial court clerk is under a mandatory duty to provide notice of both forfeiture and reinstatement, and the clerks failure to provide either deprived the court of jurisdiction to declare a later forfeiture. (See Pen. Code, 1305.)[1] We agree and therefore reverse the judgment.

I. Factual and Procedural Background

American posted a $15,000 bond (bond No. AS15-247899) for the release of Esteban Sanchez from custody in case No. SS060877A in Monterey County Superior Court. On August 3, 2006, Sanchez failed to appear for pretrial setting of his jury trial and bail was declared forfeited. Notice of forfeiture of bond No. AS15-247899 was mailed to the surety and bail agent on August 4, 2006. On August 25, 2006, Sanchez appeared in court. Bond No. AS15-247899 was eventually exonerated on February 8, 2007.

On September 5, 2006, American posted another $15,000 bond (bond No. AS15-257871) for the release of Sanchez from custody in case No. SS060877A. When Sanchez failed to appear in court on October 4, 2006, bail was declared forfeited. However, later that day, Sanchez did appear, and the trial court set aside the forfeiture of bail.

Sanchez pled guilty on December 7, 2006, and the matter was set for sentencing on January 31, 2007. Sanchez was allowed to remain free on bail.

On January 31, 2007, Sanchez failed to appear for sentencing, and bail was again declared forfeited. Notice of forfeiture of bond No. AS15-257871 was mailed to the surety and the bail agent on February 6, 2007.

American moved to set aside the forfeiture and exonerate bail. The trial court denied Americans motion on September 21, 2007. American appealed from the denial of its motion on October 18, 2007 (H032206).

Summary judgment was entered on the forfeited bail bond on November 28, 2007. On December 10, 2007, American separately appealed from entry of summary judgment (H032458).[2]

II. Discussion

American asserts the bond was exonerated by operation of law when the trial court failed to give notice of the forfeiture and reinstatement within 30 days of the October 4, 2006 failure to appear as required by section 1305, subdivision (a). We agree.

Section 1305, subdivision (a), provides that notice of forfeiture must be given to both the surety and the bail agent within 30 days of the failure to appear. The requirements of section 1305 are jurisdictional and must be strictly observed. (People v. National Automobile & Casualty Ins. Co. (2004) 121 Cal.App.4th 1441, 1447.) Because the surety and bail agent are entitled to separate notice under the statute every time a forfeiture is declared, the clerk was required to send notice of the forfeiture to the surety and bail agent within 30 days of the Sanchezs failure to appear on October 4, 2006. (People v. American Contractors Indemnity Co. (2001) 91 Cal.App.4th 799, 808.)

As appellate courts have repeatedly noted, [t]he forfeiture or exoneration of bail is entirely a statutory procedure, and forfeiture proceedings are governed entirely by the special statutes applicable thereto. . . . Because the law abhors forfeitures, these statutes [sections 1305-1309] are to be strictly construed in favor of the surety. (People v. Ranger Ins. Co. (1998) 66 Cal.App.4th 1549, 1552; see also People v. Ranger Ins. Co. (1999) 76 Cal.App.4th 326, 329.) Nevertheless, an order denying a motion to set aside a bail forfeiture is a matter committed to the sound discretion of the trial court and should not be disturbed unless an abuse of discretion appears on the record. (People v. Legion Ins. Co. (2002) 102 Cal.App.4th 1192, 1195.)

The People rely on People v. Amwest Surety Insurance Co. (1980) 105 Cal.App.3d 51 for the proposition that, where bail has been forfeited, but that forfeiture is set aside when the criminal defendant appears in court the same day, the clerks failure to mail a notice of forfeiture to the surety and the bail agent is not jurisdictional. Since bail was forfeited and reinstated the same day, notification as to the prior lateness would have served no purpose. (Id. at p. 56.) While this no harm, no foul reasoning seems sound at first blush, on closer examination it is not.

The objectives of section 1305 are to provide for a reasonably effective means of notice, and to create a reasonably reliable record of that notice. (County of Orange v. Lexington Nat. Ins. Corp. (2006) 140 Cal.App.4th 1488, 1492.) The surety and bail agent are entitled to notice of forfeiture so that they can determine how to proceed with respect to the bond. (Id. at p. 1494.) For example, had American been notified that bail was forfeited, but then reinstated because the defendant was late to court, it could choose to surrender the defendant to custody, rather than risk another forfeiture. (See 1300, subd. (a) [bail may surrender defendant to custody in exoneration at any time before forfeiture].) We do not know that American would have done so in this case, but [t]he real point is that by the failure to receive notice the surety was deprived of the opportunity to consider all factors potentially producing an increased risk, which opportunity the statute apparently intended to assure. (People v. Wilshire Ins. Co. (1975) 46 Cal.App.3d 216, 220, fn. 1.)

Alternatively, the People, relying on People v. Surety Ins. Co. (1983) 148 Cal.App.3d 351, contend that notice to the surety was excused, since the trial court, before the permanent minutes were prepared, had the power to vacate the forfeiture and reinstate bail. Since there is only one minute order from October 4, 2006, the order of reinstatement was in effect before the permanent minutes were prepared and it is as if the forfeiture never occurred.

We find this reasoning unpersuasive. It is well established in the case law that Penal Code sections 1305 and 1306 are subject to precise and strict construction. (County of Los Angeles v. Surety Ins. Co. (1984) 162 Cal.App.3d 58, 62.) The language of the statute is unambiguous. It certainly does not admit of the exception urged by the People that notice is excused where, so long as it occurs on the same day, the trial court excuses a defendants late appearance and orders bail reinstated. Allowing such an exception to be read into the statute would frustrate one of its primary purposes, i.e., providing a surety with information relevant to the risk it has undertaken in issuing the bond.

III. Disposition

The judgment is reversed. The matter is remanded to the trial court for entry of an order exonerating the bond. American is entitled to its costs on appeal.

Premo, J.

WE CONCUR:

Rushing, P.J.

Elia, J.

Publication courtesy of San Diego free legal advice.

Analysis and review provided by Santee Property line Lawyers.

San Diego Case Information provided by www.fearnotlaw.com

[1] Further statutory references are to the Penal Code unless otherwise stated.

[2] By order dated June 10, 2008, we denied Americans application for consolidation of these two appeals, but ordered that the matters be considered together for purposes of briefing, oral argument and decision.