P. v. International Fidelity
Ins. Co.
Filed 12/28/12 P.
v. International Fidelity Ins. Co. CA6
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
THE PEOPLE,
Plaintiff and Respondent,
v.
INTERNATIONAL
FIDELITY INSURANCE COMPANY,
Defendant and Appellant.
H037366
(Santa Clara County
Super. Ct. Nos.
C1072307, C1077825)
Appellant
International Fidelity Insurance Company, through its San Jose agent,
issued bail bonds upon two misdemeanor arrests, first of Saul Contreras and
later of his alias, Javier Escobar. In
separate proceedings the trial court learned that defense counsel had lost
contact with the defendant, and on each occasion it ordered the bond
forfeited. Appellant contends that these
orders were improper because the attorney was authorized to appear on
Contreras's behalf at each pretrial
hearing. We agree and therefore must
reverse the order denying appellant's motion to vacate forfeiture of the bonds.
Background
On
March 18, 2010, the People filed a misdemeanor complaint accusing Saul Contreras
of driving under the influence of alcohol, in violation of Vehicle Code
section 23152, subdivisions (a) and (b), with a blood alcohol level of 0.15
percent. Three days earlier when
Contreras was arrested, appellant (through its bail agent, Amigo Bail Bonds)
had posted an $11,000 bond for his appearance in court to answer the
charges. Arraignment on the March 18
complaint took place on April 29, 2010. Contreras was not present, but attorney
Michael Paez appeared for him with a not-guilty plea. Pretrial conferences took place on May 25 and
June 22, 2010; each time Paez appeared for Contreras in the defendant's
absence. At the June 22 hearing counsel
obtained a continuance to July 20, 2010, saying he needed
Contreras to come to his office and sign some papers.
Meanwhile,
on May 1, 2010 Contreras was arrested again,
this time for driving with a suspended license as well as driving under the
influence of alcohol and with a blood alcohol level of more than .08 (again
0.15 or more). Professing that identity
resulted in an additional charge of giving a false name to a peace officer
(Pen. Code, § 148.9) in the People's ensuing complaint, filed against
Contreras on May
25, 2010.
Arraignment on the new charges took place on June 15, 2010 and a pretrial conference on June 29, both with Contreras absent
and Paez appearing for him. At the June
29 proceeding Paez advised the court that he was "in the process of
reconnecting with Mr. Contreras," and he asked for a continuance of four
weeks. The court granted that request
and set the matter for a further pretrial conference on July 29, 2010.
At
the beginning of the July 20 pretrial conference on the first complaint, Paez
immediately informed the court (referring to the defendant as "Mr.
Escobar") that he was appearing on the defendant's behalf. Paez added, "Judge, Mr. Escobar's wife
contacted me about a month ago, indicating Mr. Escobar was no longer in the
country and is unable to return. If that
changes, I will inform the Court and put him on calendar. But at this point, I've lost contact with
him." The prosecutor then requested
issuance of a bench warrant. The court
commissioner issued the warrant and ordered the bail bond forfeited. A notice of bail forfeiture was filed the
next day, July 21, 2010, with the forfeiture to become final on January 22,
2011.
The July 29 pretrial conference on the second
complaint ended the same way. At the
outset, Paez represented to the court that he was appearing on Contreras's
behalf. He then explained, "Judge,
we put this over for me to attempt to contact Mr. Contreras. He had another matter pending as well in a
different department. I've lost contact
with him. The last I heard, his wife was
trying to get him back in the country.
It's been a couple months now."
At the court's inquiry counsel confirmed his "understanding"
that Contreras had been in Mexico "since some time in June." The following colloquy then took place: "THE COURT: What would you like to do? [¶]
MR. PAEZ: Well, Judge, it's up to
the Court. At this point, I've lost
contact with him and indicate that on the record. [¶]
THE COURT: Shall I issue a
$20,000 bench warrant, Mr. Morris [the prosecutor], or no bail warrant? [¶]
MR. PAEZ: If you're going to
issue a warrant, Judge, perhaps $20,000 was going to be appropriate." The court initially set that amount for the
bench warrant, but when the prosecutor pointed out that bail was already
$25,000, the court decided that $20,000 was insufficient. The court then issued the bench warrant for
$40,000 and declared the $25,000 bail bond forfeited. The next day, July 30, 2010, the court filed
the notice of bail forfeiture on this second complaint, noting January 31, 2011
as the date the forfeiture would become final.
On
May 2, 2011, appellant filed motions to vacate
the forfeitures and exonerate the two bonds.
Appellant contended that Penal Code section 977 had authorized Paez to
appear on Contreras's behalf, and no evidence indicated that such authority had
been terminated by Contreras himself.
Furthermore, the court had not ordered Contreras to be personally
present on either July 20 or 29.
Consequently, appellant argued, the court lacked authority to forfeit
the bonds.
The
People opposed the motions, arguing that it was Paez's loss of contact with
Contreras that demonstrated the termination of Paez's authority to represent
Contreras in the proceedings. Appellant
replied that if Paez's loss of contact with Contreras deprived Paez of
authority to continue representing his client, then forfeiture should have been
declared at the June 22 and June 29 hearings, when Paez informed the court that
he had lost contact with Contreras.
The
motions were heard together on June 13 and July 18, 2011. The trial court determined that Contreras had
not been obligated to be present at any of the 2010 hearings until those of
July 20 and 29. By that time, because
Paez had lost contact with Contreras, Paez no longer was authorized to proceed
on Contreras's behalf under Penal Code section 977. Responding to appellant's point regarding the
loss of contact in June 2010, the court agreed with the People that Paez had
not made it clear to the court at the June 22 and 29 hearings that he had lost
contact with Contreras, so he retained that authority to represent him on those
occasions. Consequently, the court had
retained jurisdiction to order the bond forfeited in July 2010, when it learned
that Paez had actually lost contact with his client. Accordingly, the court denied both motions to
vacate forfeiture on July 18, 2011, and on July 26, 2011, it entered separate
judgments for the People on the two bonds.
On September 13, 2011 appellant filed its notice of appeal from the July
18 order.
Discussion
Appellant
contends that forfeiture of the two bonds was improper because there was no
legal requirement, whether by statute or by court order, that Contreras appear
personally at the July 2010 hearings.
Because there was no factual showing that Contreras had terminated
Paez's authority to represent him, Penal Code section 977, subdivision (a),
allowed Contreras to be absent from those proceedings.
The
People observe that an order denying a motion to vacate a bail forfeiture is
normally reviewed for abuse of discretion.
(People v. Wilcox (1960) 53
Cal.2d 651, 656; People v. United Bonding
Ins. Co. (1970) 12 Cal.App.3d 349, 353.)
On the other hand, to the extent that the evidence before the reviewing
court is undisputed and the dispositive issue is one of statutory construction,
we apply an independent review standard.
(People v. Frontier Pacific Ins.
Co. (1998) 63 Cal.App.4th 889, 893.)
Under either standard, we believe error occurred.
"The
forfeiture or exoneration of bail is entirely a statutory procedure, and
forfeiture proceedings are governed entirely by the special statutes applicable
thereto. [Citation.] . . . " (People v. Ranger Ins. Co., supra, 66 Cal.App.4th at p. 1552.) Because the law disfavors forfeitures, the
bail statutes must be construed strictly to avoid forfeiture, and the
procedures set forth therein must be " 'precisely followed or the
court loses jurisdiction and its actions are void.' " (People
v. Topa Ins. Co. (1995) 32 Cal.App.4th 296, 300; accord,
supra, 194 Cal.App.4th at p. 51; People
v. United Bonding Ins. Co. (1971) 5 Cal.3d 898, 906.)
The
bail statutes at issue in this case are Penal Code sections 977 and 1305.
accused is charged with a misdemeanor only, he or she may appear by counsel
only, except as provided in paragraphs (2) and (3). . . . [¶]
(3) If the accused is charged with a misdemeanor offense involving
driving under the influence, in an appropriate case, the court may order a
defendant to be present for arraignment, at the time of plea, or at sentencing.
For purposes of this paragraph, a misdemeanor offense involving driving under
the influence shall include a misdemeanor violation of any of the
following: . . . [¶]
(C) Section 23152 of the Vehicle Code."
It
is clear from section 977 that a defendant charged with a misdemeanor may
appear through counsel at pretrial proceedings, unless ordered to be present at
one of the specified proceedings. Even
if the court in this case could have ordered Contreras to attend the pretrial
conference pursuant to subdivision (a)(3) of the statute, it did not make any
such order.
Section
1305 specifies the circumstances in which a trial court must declare a bail
bond forfeited. It states: "(a) 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."
The
People do not specify which of the proceedings specified in section 1305, subdivision
(a), is applicable here, but presumably they rely on subdivision (a)(4), on the
assumption that Contreras's presence was "lawfully required" at the
July hearings because Paez was no longer authorized to appear for him. We cannot agree with either the premise or
the conclusion.
As
the Fifth District explained in People v.
American Bankers Ins. Co. (1987) 191 Cal.App.3d 742, 747-748 (
declared forfeited [under section 1305] if, 'without sufficient excuse,' the
defendant neglects to appear for arraignment or for trial or judgment, or upon
any other occasion when his or her presence in court is lawfully required.
Since 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 absence." (Id.
at p. 747.)
Moreover,
"the court [may] rely upon the representation of counsel that the accused
is knowingly absent from the proceedings. [Citation.] In the absence of a
statutory requirement that the attorney's authority be evidenced by a writing,
appearing and acting for a party has authority to do so. [Citation.] This
confidence rests not only upon a belief in the honor and integrity of the
attorney, but upon the fact that the attorney is a sworn officer of the
court. . . . Thus, without
a strong factual showing to the contrary [citation], the attorney's
representation that he or she is authorized to proceed in the defendant's
absence is sufficient." (Id.
at pp. 746-747, italics added.) Absent
that "strong showing," the attorney "has no obligation to prove
his authority to represent his client beyond his oral statement to the court
that he is appearing for his client and is ready to proceed . . . ." (
Appellant
offers the concession that a court may, even without a factual showing that the
defense attorney lacks authority to proceed, nonetheless declare a forfeiture
if it has "specifically ordered the defendant to personally
appear." (Id. at p. 748.) Assuming he
is correct even with respect to a misdemeanor pretrial hearing, we find nothing
in the record indicating a specific order that Contreras appear personally for
the conference on July 20 or the conference on July 29. At every hearing, including those of July 20
and July 29, Paez announced his appearance for Contreras, thereby implicitly
representing that he was authorized to proceed in the defendant's absence. When the court invited him to withdraw, Paez
declined the opportunity, instead agreeing to remain counsel of record. That he retained authority to represent
Contreras is not contradicted by any evidence in the record, and Paez was in
continual contact with Contreras's wife.
Thus, the presumption that Paez had authority to continue
"appearing and acting for" Contreras was not rebutted. (
Cal.App.3d at p. 746.)
The
People maintain that Contreras was required to attend the hearings on July 20
and 29 because Paez "most certainly did not represent to the court that he
was authorized to proceed in his absence."
On the contrary, they point out, Paez had volunteered that he had lost
contact with Contreras. Consequently,
the People infer, Paez was not authorized to proceed in Contreras's
absence.
The
People's position not only turns the operative presumption around but rests on
illogical reasoning. Paez, having
announced on each occasion that he was appearing on Contreras's behalf, was presumed
to be authorized under section 977 absent a "strong factual showing"
to the contrary. (American Banker's, supra, 191 Cal.App.3d at p. 747.) That showing was not met merely by
Contreras's having escaped to Mexico and losing (or even avoiding) contact with
his attorney. Contreras's wife, by
communicating with Paez about Contreras's status,
apparently acted as liaison between him and Paez, and nothing in Paez's
explanations to the court indicated that he had lost Contreras's authorization
to continue representing Contreras in court.
Thus, we cannot join in the People's inference that because Paez did not
affirmatively indicate his authority to proceed, his loss of contact alone
means he had also lost his client's consent to represent him.
People
v. Sacramento Bail Bonds (1989) 210 Cal.App.3d 118 does not instruct
otherwise. In that case the defendant
was charged with a felony;
consequently there was no statutory authorization for his attorney to appear in
his absence; on the contrary, subdivision (b) of section 977 compelled his
personal attendance, unless he executed a written waiver of his presence, with
leave of the court. The defendant had not signed such a waiver, and a rule of
court required his presence at the readiness conference. Thus, the defendant was "lawfully
required" to be at the conference. (Id.
at p. 121.) Here, by contrast,
subdivision (a) of section 977 permitted Contreras to be represented in the
pretrial misdemeanor proceedings by his attorney, no showing was made that
counsel was doing so without Contreras's authorization, and no specific court
order commanded Contreras to be personally present at either of the July 2010
hearings. The bail forfeiture orders
cannot stand.
Disposition
The
order denying appellant's motion is reversed.
The trial court is directed to vacate the forfeiture of the bonds and
exonerate them, and to vacate the July 26, 2011 judgments. Appellant is entitled to its
______________________________
ELIA,
J.
WE CONCUR:
_______________________________
RUSHING, P. J.
_______________________________
PREMO, J.
name="_ftn1" title="">[1] Failure to declare forfeiture when the circumstances call for it
divests a court of jurisdiction to do so at a later hearing on the case. (People
v. Indiana Lumbermens Mut. Ins. Co. (2011) 194 Cal.App.4th 45, 49; compare
Cal.App.4th 1549, 1554-155 [failure to forfeit bail when defendant inexcusably
failed to appear deprived court of jurisdiction to forfeit several days later]
with People v. National Automobile and
Cas. Ins. Co. (2004) 121 Cal.App.4th 1441, 1448 [no loss of jurisdiction
where presence at earlier hearings was not lawfully required].) The People portrayed the circumstances
differently; at the June 22 hearing, Paez merely said that he needed the
defendant to "be present," to go to his office to sign some
papers. At the June 29 hearing Paez
stated that he was "in the process of reconnecting with Mr.
Contreras." He asked for a
continuance "to have him either show up or [inaudible] that
time." The prosecutor viewed
these representations as inadequate to show that Paez had lost contact, thus
terminating Paez's authorization, and therefore the court was not obligated to
declare a forfeiture on those occasions.
name="_ftn2" title="">[2] All further statutory
references are to the Penal Code except as otherwise indicated.
