P. v. Fairmont Specialty Group

Filed 1/7/09 P. v. Fairmont Specialty Group 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Fairmont Specialty Group (surety) appeals from an order denying its motion to vacate a forfeiture and exonerate its bond, asserting that the trial court did not in open court declare forfeited the undertaking of bail as required by Penal Code section 1305, subdivision (a).[1] We agree with this contention and will reverse the order.

I. Facts

On August 23, 2006, surety posted a bail bond of $30,000 guaranteeing the appearance of defendant Fabien Cappa in order to obtain his release from custody. At a court hearing on August 13, 2007, attorney Dan Barton appeared and explained that Cappa was not present because he had left the country and was unable to return due to visa problems. The court stated: Thats why you should carry Mastercard, Mr. Barton. Bad joke. [] Bench warrant forfeited -- no. Bench warrant issue[s]. No bail. [] You can do a letter of reassumption. These statements were recorded in the clerks minutes as a forfeiture of bail with issuance of a bench warrant. The record does not reflect whether surety or a bail agent was present in court to hear these statements. On August 15, 2007, a notice of forfeiture was filed and mailed to surety and the bail agent.

Surety brought a motion to vacate the forfeiture and exonerate the bond, which the court denied, concluding in writing, based on the totality of the circumstances including the minute order for August 13, 2007 and the reporter[]s transcript for that same date, that the court ordered the Δs bail forfeited in open court in compliance with the law.

II. Discussion

A. Standard of Review

As this court has said before, [t]he determination of a motion to set aside a bail forfeiture is in the discretion of the trial court and should not be disturbed on appeal unless an abuse of discretion appears in the record. (People v. Ranger Ins. Co. (1996) 51 Cal.App.4th 1379, 1383.) However, trial courts exercise a limited discretion in ordering bail forfeitures. [S]ection 1305 must be strictly and precisely followed in order to accomplish its purposes. (Id. at p. 1386.) This court has also explained: Sections 1305 through 1309 govern the forfeiture of bail bonds. Because the law disfavors forfeitures, including the forfeiture of bail, these statutory provisions must be strictly construed in favor of the surety to avoid the harsh results of forfeiture. [Citation.] Moreover, section 1305, like other forfeiture statutes, has been held to be jurisdictional in a variety of circumstances. Thus, the provisions of the statute must be strictly followed or the court acts without or in excess of jurisdiction. (People v. Frontier Pacific Ins. Co. (1998) 63 Cal.App.4th 889, 894.)

B. Was there a declaration of forfeiture in open court?

Surety asserts that the trial court lost jurisdiction when it failed to declare a forfeiture of bail in open court (capitalization omitted) as required by section 1305, subdivision (a). The statute provides: A court shall in open court declare forfeited the undertaking of bail . . . if, without sufficient excuse, a defendant fails to appear for various hearings.[2]

The open court requirement was added (Stats. 1998, ch. 223, 2) effective prospectively on January 1, 1999 (People v. Ranger Ins. Co. (1999) 76 Cal.App.4th 326, 331), apparently to change the law applied in People v. Ranger Ins. Co. (1993) 19 Cal.App.4th 353. (People v. Allegheny Cas. Co. (2007) 41 Cal.4th 704, 710-714 (Allegheny).) The legislative intent of the amendment was to provide actual and immediate notice of bail forfeiture for the benefit of any surety or bail agent in attendance at the public court session, so that prompt efforts might be undertaken to locate the absent defendant. (Id. at p. 712.) The requirement of an oral declaration of forfeiture was added to the pre-existing statutory requirement, also designed to provide for a reasonably effective means of notice to the surety (County of Orange v. Lexington Nat. Ins. Corp. (2006) 140 Cal.App.4th 1488, 1492), that the court clerk mail notice of the forfeiture within 30 days to the bail agent and the surety or depositor of money. ( 1305, subd. (b).)

As the Assembly Committee analysis explained, this oral declaration  requirement places an insignificant burden on the court as it only requires the court to state [in open court,] bail is forfeited. It is a better practice to openly declare the forfeiture (most courts already follow this procedure) . . . . (Allegheny, supra, 41 Cal.4th 704, 712.) People v. National Auto. and Cas. Ins. Co. (2002) 98 Cal.App.4th 277 (National) holds: The plain language of the amended statute indicates in order for bail to be forfeited a trial court must (1) make a declaration of forfeiture stating bail is forfeited (2) on the record while court is in session. The Legislatures use of the word shall signifies this dual requirement is mandatory. (Id. at p. 283, fn. omitted; cf. People v. Amwest Sur. Ins. Co. (2004) 125 Cal.App.4th 547, 550.)

In the absence of a reporters transcript, the evidentiary presumption would apply that the court had fulfilled its duty under the statute. (Allegheny, supra, 41 Cal.4th 704, 715-718.) But here we have a reporters transcript of the hearing which does not disclose a judicial utterance like bail is forfeited. Instead, the court stated: Bench warrant forfeited -- no. Bench warrant issue[s]. No bail. [] You can do a letter of reassumption.

County counsel concedes that the trial court misspoke, but urges that the court made an unmistakable declaration in open court that could not be interpreted to mean anything but the declaration of bail forfeiture. The reference to a letter of reassumption could only imply that the court intended the forfeiture of bail with the possibility of the surety reassuming its obligation.

A similar argument was rejected in National, supra, 98 Cal.App.4th 277, as surety points out. In that case, after noting the defendants nonappearance, the trial court stated:  At counsels request, the warrant is going to be issued and held. [] Bail status is revoked. No bail warrant is issued. It will be held here until the 9th.  (Id. at pp. 280‑281; italics and fn. omitted.) In an off-the-record discussion with the court clerk during a recess, the court stated that bail was forfeited and the clerks minutes reflected that a forfeiture was ordered. (Id. at p. 281.) The appellate court rejected an argument that the declaration of bail revocation was synonymous with forfeiture. We are not persuaded the trial court simply misspoke. Revocation of bail and forfeiture of bail have distinct legal meanings. (Id. at p. 285.)

County counsel seeks to distinguish National on the basis that the courts statement here has no distinct legal meaning or alternate interpretation. We reject the suggestion that a meaningless statement by the trial court can or should be construed to amount to a declaration of bail forfeiture in open court. The statutory amendment puts a premium on what the trial court actually says, not on what it means to say. Since the intent of the oral declaration requirement is to provide notice to those in attendance, the courts statements should be clear enough to do so without those present being mind-readers. Another form of words than bail is forfeited may suffice, but we conclude that the words used here do not qualify as a meaningful declaration of bail forfeiture. Since the trial court failed to fulfill its statutory obligation, it lost jurisdiction to later attempt to forfeit the bail by simply noting it in the minutes. (National, supra, 98 Cal.App.4th 277, 290.)

III. Disposition

The order is reversed and the cause is remanded to the trial court with directions to vacate the forfeiture and exonerate the bond.

_______________________________

Mihara, J.

WE CONCUR:

______________________________

Bamattre-Manoukian, Acting P. J.

______________________________

McAdams, J.

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[1] Unspecified section references are to the Penal Code.

[2] The first full paragraph of section 1305, subdivision (a) states: 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: . . . .